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Lord Phillips of Sudbury moved Amendment No. 3:
- Page 1, line 12, leave out paragraphs (b) and (c) and insert
The noble Lord said: Last night we sat in a Chamber that was packed to the rafters with Peers considering, with some passion, matters affecting the most fundamental issues of human life. Less than 24 hours later we few, we puzzled few, sit poring over one of the driest pieces of legislation that will go through your Lordships' House in many a year. For all that, it is not an unimportant measure and not a boring measure, as I believe I saw the Minister's lips describe it, but a crucial measure. Of course, he did not so describe it! It is one that could have great ramifications for us and for those for whom we legislate into the future.
I hope the Committee will forgive me if I deal carefully with Amendments Nos. 3 and 4, standing in my name, as Clause 1 is very much the heartland of this Bill. Apart from the amendment in the name of the noble Lord, Lord Campbell of Alloway, my amendment is the most radical. I am sure that the fact that any Peer has had the temerity to try to improve upon hard-considered wordage such as exists here will have caused a great groan in the offices of the parliamentary draftsmen.
I confess to being a long-in-the-tooth lawyer who has spent a good part of his career poring over constitutions. The reason why I have tabled these amendments is that I have sweated--that is the only appropriate word--for a long time to understand exactly what is the scope of Clause 1(1). As has already been said, Clause 1(1) defines the scope, the object, the purpose of the whole Bill. Unless a reforming order can be brought within the ambit of paragraphs (a), (b), (c) or (d) in Clause 1(1) it cannot be brought at all.
Clause 1(1)(a) is clear. It talks about an object which is,
I hope that the Committee will allow me to go through this matter somewhat carefully. Not only do we few zealots who are here this afternoon need to understand what this Bill is about, but lawyers, citizens and even the Delegated Powers and Deregulation Committee will have to look at the consequences of these measures. Of course, Her Majesty's judges will occasionally, I am sure, have the task of deciding whether an application for a judicial review of a government seeking to use what will then be an Act is or is not well founded.
My first objection is that paragraphs (b) and (c) in Clause 1(1) deal with apples and pears. The four categories listed are supposed to be the four objects to be pursued by an order laid under this Bill. Yet under paragraphs (b) and (c) a condition of proportionality is put into the pot. I believe that that, of itself, is likely to confuse. For that reason, the proportionality condition would be much better placed in subsections
My second objection is that Clause 1(1)(b) as drafted is not construable. I hope that noble Lords will forgive me for quoting it. Clause 1 states that any order has to pursue one of various objects, including those in paragraph (b), which states:
I turned to the Explanatory Notes. I commend the Government and the officials who drafted them; they are, on the whole, tremendously good and useful, especially the tables at the back, which are useful to duffers such as myself, who find that approach much simpler. However, although the Explanatory Notes have 49 pages, this heartland provision of the Bill is dealt with in only one sentence, which states:
The Minister may well tell me that the amendment's wording does not satisfy the parliamentary draftsmen. Whether or not my proposed wording does the trick, I urge the Government to examine the clause with an open mind and to have sympathy and regard for all those hereafter who will have to understand it. The public are entitled to have clear legislation--or, at any rate, legislation that is as clear as the circumstances allow. Although I am the first to admit that this is an extremely difficult piece of legislation to frame, the difficulty of framing it must be matched by the clarity with which those difficulties are contended with. For reasons that I have endeavoured briefly to enunciate, that is simply not the case in this context.
My only comment on Amendment No. 55, which is grouped with Amendment No. 3, is that it is consequential.
Finally, I thank officials at the Department of Trade and Industry and the Cabinet Office for the assistance they gave me in my attempt to understand these provisions. I beg to move.
The Deputy Chairman of Committees: I should remind the Committee that if Amendment No. 3 is agreed to, I shall be unable to call Amendments Nos. 4 to 8.
Lord Campbell of Alloway: I support the amendment for precisely the same reasons as were given by the noble Lord, Lord Phillips of Sudbury. He has moved the crucial, radical amendment. Like him, I found trying to get to the root of the Bill's proposals a somewhat agonising experience. I became concerned and horrified at its width, and about the want of safeguards in relation, in particular, to paragraphs (b) and (c) in Clause 1(1).
To save much time, I seriously suggest that the noble Lord's approach, as outlined in Amendment No. 3, and in Amendment No. 29, which is the sister amendment--Amendment No. 55 is merely consequential--as a matter of principle is right. If that principle were agreed to, it would become impossible for me to move Amendment No. 10 in its present form because Amendments Nos. 3 and 29 would subsume proposed new paragraph (1A) in my amendment. That would involve a form of double counting with the same approach. I firmly support the noble Lord's amendment. If that goes home--if it is agreed to--that would alter my whole approach to the Bill.
Lord Borrie: I want to raise one query with the noble Lord, Lord Phillips of Sudbury. I know that he is seeking to improve, and has carefully examined, the paragraphs in Clause 1(1). He criticised the wording in paragraph (b). He said that its concluding words, "its retention", could not refer to "burdens" because that is in the plural. However, the second line of that paragraph--line 13 on page 1 of the Bill--refers to "burdens" and to "burden" in the singular. Does not "its retention" mean the retention of that burden?
Lord Phillips of Sudbury: The word "burden" in the singular would be a new one, and to talk of its retention is therefore a contradiction in terms.
Lord Lea of Crondall: I do not know whether it is convenient at this moment to ask a slightly broader question that arises in relation to the amendment moved by the noble Lord, Lord Phillips of Sudbury. It concerns the general philosophy vis-a-vis regulations and primary legislation, or the power to amend regulations versus primary legislation. I ask my noble and learned friend the Minister to put on the record the Government's philosophy in terms of intentions. Of course there could be a qualitative criterion relating to the importance of primary changes of policy; it would match the need to have primary legislation. One would assume that many broad fields of policy are
Viscount Goschen: I welcome the initiative of the noble Lord, Lord Lea of Crondall. I remind him that the Minister offered several explanations of the type of circumstances in which the Bill's philosophy would be used. The argument from this side of the Committee is that the Minister is asking for such extraordinarily wide powers that it is not good enough to say, "Well, it is our intention to do this and that, and we can explain the philosophy that lies behind the Bill". We need to convert some of those assurances, which we take in good faith, into specific provisions in the Bill.
In our debate on the previous amendment, the Minister said that he did not feel that the amendment moved by my noble friend Lady Buscombe, which proposed changing the words, "with a view to", was the most important of amendments. He said something to that effect; perhaps he said that there would be other amendments that were of equal importance. In fact, it may have been the noble Lord, Lord Campbell of Alloway, who said that. I apologise to the Minister. We will come back to this matter again and again. I welcome the initiative of the noble Lord, Lord Phillips.
("(b) the continuance of any of those burdens,
(c) the alteration or increase of any of those burdens or creation of new burdens, and").
"the removal or reduction of any of those burdens".
I believe that paragraph (b) is beyond safe and clear interpretation.
"the re-enacting of provision having the effect of imposing any of those burdens, in cases where the burden is proportionate to the benefit which is expected to result from its retention".
The phrase "those burdens" plainly--this is the one provision in the clause that is beyond doubt--refers back to the burdens imposed by the legislation that is being reformed. Then we come to the phrase,
"the benefit which is expected to result from its retention".
What does "its" refer to? I have sought high and low through the clause to find an answer. It cannot refer to the "provision" because the provision is being re-enacted, and "its" refers to something that is being retained. It cannot refer to "those burdens", because "its" is in the singular, and "burdens" is in the plural. Moreover, what is the "retention"? What is being retained?
"Paragraph (b) allows burdens to be carried over from the legislation under reform, as in the DCOA"--
that is, the Deregulation and Contracting Out Act 1994--
"but only where they ... pass the test of proportionality".
If that is what this provision is about, why on earth does not the Bill say so? That is what led me to the extraordinary presumption of proposing to replace paragraph (b) with the phrase,
"the continuance of any of those burdens",
which is contained in Amendment No. 3.
5.15 p.m.
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