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Regulatory Reform Bill [H.L.]

4.39 p.m.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE DEPUTY CHAIRMAN of COMMITTEES (Lord Ampthill) in the Chair.]

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Clause 1 [Power by order to make provision reforming law which imposes burdens]:

Baroness Buscombe moved Amendment No. 1:

Page 1, line 8, leave out ("affecting") and insert ("upon").

The noble Baroness said: In rising to speak to this amendment and to Amendment No. 2, perhaps I may, first, read out to the Committee the beginning of subsection (1) of the clause, which states:

"a Minister of the Crown may by order make provision for the purpose of reforming legislation which has the effect of imposing burdens affecting persons in the carrying on of any activity, with a view to one or more of the following objects",

and so on. We are all "affected", but it is not the effect upon me that should be any part of the threshold test for the use of this power. It is not about those of us who are indirectly affected by this Bill: it is, or at least it should be, about those of us who will be directly affected. It is those who will be directly affected by the burden of compliance who should be the focus of this Bill and it is their interests which should be paramount in our debate.

This amendment will give this clause that focus without inhibiting in any way the use of the power, and it will serve as a guide to those who will be tasked with what all are agreed is a worthwhile aim: the process of reforming our regulatory system; that is, to deregulate.

The power granted by this Bill should extend only so far as is necessary to achieve what all are agreed is a desirable object. It should apply only to cases in which a burden lies directly "upon" he who has to bear it. To apply the power to cases in which persons are "affected" is to grant a power of almost limitless scope. We are all affected, directly or indirectly, by most forms of regulation.

This clause needs to be more tightly drawn than that if it is to provide an effective threshold test for the use of subordinated legislative powers. There are constitutional implications in extending the power granted by this Bill to cover an almost limitless area, and clear dangers in allowing subordinate legislation to fulfil a primary role. It is for the purpose of providing the beginnings of an effective system of safeguards that I propose this amendment.

In turning to Amendment No. 2, I return to the matter that has already been raised with regard to the extent and scope of the power granted by the Bill and the attendant need for proper safeguards in the threshold test to be applied before that power may be used.

This part of this clause seeks to define what shall be the required intention of the legislature in order for a proposal to fall within the order-making power. To say that subordinate legislation should be being advanced "with a view to" achieving a particular object is to make the power, in our view, too wide. Amost all legislation can be said to be being advanced "with a view to" achieving any number of objects, some more important or more immediate than others.

The existence of numerous objectives may provide any number of good reasons why legislation should be advanced, but the existence of one particular object

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among many is not an appropriate threshold test for the exercise of the particular legislative power contained in this Bill. If used for that purpose, it is altogether lacking in rigour.

This clause as presently framed would grant power to permit the making of an order which has as only one of its aims the achievement of one of the objectives stated in Clause 1. Furthermore, that aim need not even be central to the aim of the Bill; it may be a wholly peripheral or entirely accidental one. That makes the power, as presently defined, too wide.

The order-making power in this clause should be limited to that legislation which has as its "sole" (or possibly "primary") purpose the achievement of that which this Bill is intended to provide: "regulatory reform". If it does not, not only is it not fulfilling the purpose we all intend, but it is open to abuse.

It may be suggested that the use of the power in this Bill should be available as a means of annexing regulatory reform to other new legislation. That may be a desirable objective: it will save parliamentary time. But it is no reason for seeking to procure what ought otherwise to be primary legislation by secondary means.

This amendment is a further safeguard upon the use of the power granted by this Bill. It is a safeguard which does not inhibit a proper use of the power, and so is inoffensive. Indeed, I would suggest that it encourages the proper use of the power and therefore ought to be thought desirable. It is an amendment of which, if unacceptable to the Government, one is bound to ask the question, "Why?" I beg to move.

Viscount Goschen: I support my noble friend's amendments, which go some way towards tightening the drafting of the opening clause. The Minister has come to Parliament asking for very broad powers--unprecedentedly broad powers--and against that he has put forward arguments that will be used only in very tightly controlled circumstances.

I have to agree with my noble friend because the drafting of the Bill in no way reflects that. The phrase "with a view to" is so broadly framed that one could not think of it being any broader. Of course it would be perfectly possible to prove that one did something "with a view to" achieving a certain outcome. This clause does need strengthening, and my noble friend's suggested wording does exactly that. I think that we shall come back to this issue time and time again as we go through the Marshalled List of amendments, all of which seek to tie not only the Minister but his successors in a type of instance when these powers, which effectively bypass the standard parliamentary procedures, can be used. I support my noble friend.

Lord Campbell of Alloway: This is the first in a series of amendments, all, in my respectful opinion, wholly requisite to curtail the width of the powers conferred

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here. For the reasons given, I wholly support this amendment, for a start. It is not by any means the main one.

Lord Goodhart: I should like to rise briefly to point out that, as the noble Lord, Lord Campbell of Alloway, has pointed out, this is one of a series of amendments. I think there are six groups covering Amendments Nos. 1 to 10 which are all in one way or another designed to try to limit the powers of a Minister of the Crown.

In those circumstances, I do not think any useful purpose would be served by my commenting in any detail on any of these amendments, except of course those which I shall move myself. We all share a common objective here, even though our methods may differ somewhat and some may be less effective than others.

Lord Borrie: With regard to the speeches just made from the Liberal Democrat and Conservative Benches, I feel that these amendments are not the most important ones, but they happen to be in a certain order which I can understand. However, just like other noble Lords, I should like to make one or two general remarks. Mine are entirely different from those made by others Members of the Committee: they are simply to say in relation to this matter and others yet to come that they are seeking to reduce the effectiveness of an extremely valuable Bill.

There are a number of parts of the Bill where I may seek amendment and argue that improvements might be made, as may others. I should like to make a general statement that this is a Bill concerning regulatory reform and it is a far better Bill, and a major improvement on the Act of 1992, if only because it does something to which the noble Baroness, Lady Buscombe, objected at Second Reading. In other words, it does not just deregulate, it does not just remove restrictions and burdens; it seeks to form a whole scheme of regulation. And when that is done, it is clearly in the public interest that not only should obsolete or bad regulations be got rid of but new regulations should be introduced which will inevitably involve placing burdens on certain people. This is the very "two-street" type of law to which the noble Baroness, Lady Buscombe, objected in her Second Reading speech. However, I consider it to be a mark of the way in which this Bill is a major improvement on the other one. Therefore, I suggest that several of the amendments which we are about to discuss in relation to the early clauses of the Bill are, in many cases, undesirable because they seek to undermine the Minister's ability to deal with regulatory reform in a more effective way than has been permissible to date.

Lord Skelmersdale: The noble Lord, Lord Borrie, is absolutely right: this is not only a deregulation Bill; it is also a regulation Bill. The question is whether Parliament, in its wisdom, should allow totally new burdens for totally new reasons to be legislated upon by statutory instrument. I made it clear on Second Reading that I do not believe that to be the case and I stick by that view.

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However, we digress somewhat from the two amendments tabled by my noble friend Lady Buscombe that we are now discussing. I certainly agree with her that we should very gently and very pertinently narrow the scope of the beginning of Clause 1(1) of the Bill.

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