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Lord Campbell of Alloway: Perhaps I may put the record straight. I did not say that the amendment was not important. I said that it was the first of a series of amendments and was in a somewhat different category.
Viscount Goschen: I wholly accept the words of my noble friend. My memory fails me. One Member of the Committee--I shall check Hansard to see who it was--said that there were more important amendments to come. If I am wrong, I shall write to whoever it was who did not say that!
The noble Lord, Lord Phillips, attempted to clarify the wording of paragraph (b) and I welcome that initiative. I am not sure whether his wording is the best possible but the burden lies on the Minister to clarify the jumbled mess we have in front of us. We need clarity.
I now turn to the point made by the noble Lord, Lord Borrie. Under certain circumstances, the proposals which are emanating in this succession of amendments limit the occasions on which the measures in the Bill can be used. That is wholly to be welcomed. If the Committee is presented with a clear Bill indicating specific circumstances under which the powers can be used, it is more likely to pass the Bill.
Lord Falconer of Thoroton: Perhaps I may deal first with the general philosophical point made by the noble Lord, Lord Lea. As has been made clear throughout
the passage of the Bill in this House, and as was made clear throughout the passage of the 1994 Bill, it is not intended to use these powers under the Bill for matters which will be regarded as significant and controversial in political terms; matters of policy. Therefore, it would be wrong, for example, to use this Bill to make any changes in relation to controversial employment law.The Bill is intended to provide a process under which regulatory regimes which need reform can receive it. There can be differences of opinion about the best way of dealing with that; not political-type issues but issues of substance as regards the best way of doing that. Therefore, the procedure envisaged in the Bill is a wide and statutory period of consultation; a hearing before the committees in both Houses of Parliament which can call evidence, decide what they think and make a report; and then each House of Parliament will approve the regime or not, as the case may be.
The process involves many more stages than the ordinary process which applies to secondary legislation. It is a process in which there can be detailed scrutiny of the legislation being passed. What it allows to occur, which presently cannot occur, is a detailed reform of, for example, fire or weights and measures legislation which would not otherwise find parliamentary time and would require it because the kind of amendments envisaged would require primary legislation.
It is most important that these new provisions are given new scrutiny by both Houses of Parliament because they will have an effect on what can be done by this form of secondary legislation and what must be done by primary legislation. Therefore, I welcome the kind of amendment tabled by the noble Lord, Lord Phillips, because it gives me an opportunity to describe precisely what the Bill seeks to achieve.
However, I utterly reject two aspects of what the noble Lord said. First, parliamentary draftsmen are delighted when they hear that there is a "Lord Phillips' amendment" to consider. Secondly, with respect, I believe that the noble Lord is wrong in saying that there is a lack of clarity in relation to the Bill. There can be a legitimate debate about whether the safeguards and scope of the Bill are adequate but the idea that the Bill is not clear is misplaced.
Paragraph (b) allows the re-enacting of an existing burden. The Bill uses the word "re-enacting" rather than the word "continuance" because in many cases where one is creating a new regulatory regime one would want to do so in one piece of legislation rather than leaving littered all over the statute book bits and pieces which must be examined in order to discover one's statutory obligations. In those circumstances, it seemed sensible to allow for the re-enacting of existing statutory burdens. That is why the word "re-enacted" is used rather than the word "continuance".
The noble Lord raised a point about the word "its". With respect, there is no difficulty in relation to that. "Any of those burdens" is in the singular. The provision refers to a burden which it is envisaged will
continue to exist. The fact that "any of those burdens" is in the singular is exemplified by the fact that a subsequent paragraph provides for cases in which the burden--that is singular--
- "is proportionate to the benefit which is expected to result from its retention".
Viscount Goschen: That must be a matter of judgment. If at a dinner party table I read out paragraph (b), I suspect that some people might think there was a lack of clarity. If I sat down with a team of parliamentary draftsmen cross-referencing to other parts of the Bill, I suspect that they would say that there was perfect clarity. Between the two extremes of the argument--and I have deliberately polarised it in order to illustrate the point--the issue is not clear. The noble and learned Lord believes that it is.
Lord Falconer of Thoroton: It is interesting to identify the kind of dinner parties the noble Viscount attends--those at which people read out paragraph (b) of this clause! I suspect that its clarity would depend on the time of evening it was read out.
I turn to the next point raised by the noble Lord, Lord Phillips of Sudbury; the removal of the proportionality protection to Clause 3. It may be useful now to identify the safeguards in the Bill--they appear in Clause 3--in order to see how they relate to the proportionality provision. The safeguards in Clause 3 are a fundamental part of the Bill.
Clause 3 provides, first, that no order may remove "necessary" protection; secondly, that it cannot remove a right or freedom which people could reasonably expect to continue to enjoy; and, thirdly, that any order-imposing burdens must strike a fair balance between the rights of the individuals affected and the more general--
Lord Goodhart: With respect to the noble and learned Lord the Minister, Clause 3 does not provide that. It does not provide that the order cannot remove any necessary protection; it provides that the order may be made only if the Minister is of the opinion that it does not remove any necessary protection.
Lord Falconer of Thoroton: That is correct and I was not seeking to indicate otherwise. I am seeking to identify the stages which must be gone through as a matter of fundamental safeguard. However, the noble Lord is right to make that point. Those three safeguards, which depend upon the opinion of the Minister, are limitations. No order can be made which, in the opinion of the Minister, offends those safeguards.
The proportionality test in Clause 1 is in a different category for precisely the reason identified by the noble Lord, Lord Goodhart. It is one of the objectives which must be satisfied before an order can reach the
stage where the safeguards apply. Each new or continued or increased burden in an order must be proportionate to the benefit expected to result from it. There is more protection in that respect if it comes in Clause 1--namely, it is the objective of the proposed order--than if it is dealt with under Clause 3. Therefore, the objective of proportionality is to be satisfied before one reaches the safeguards identified in Clause 3. We believe that that is the right format before we get to the point when an order can be considered either by a parliamentary committee or Parliament itself.The result of the proposals of the noble Lord, Lord Phillips, is to reduce the protection provided by the Bill. There is no lack of clarity which requires to be dealt with. In those circumstances, I invite the noble Lord to withdraw his amendment.
5.30 p.m.
Lord Phillips of Sudbury: I do not believe that Standing Orders prevent me saying, "Hands up all Members of the Committee now present who still understand Clause 1(1)(b)?" Not a single hand is raised, not even that of the noble Lord, Lord Borrie.
Lord Borrie: I did not wish to play games in Committee.
Lord Phillips of Sudbury: For the Minister to say that Clause 1(1)(b) is clear is a statement that I shall cherish, especially falling from his lips. It is not clear. I ask the noble and learned Lord to reflect on my attempted analysis of the clause as drawn to satisfy himself that, quite apart from the language, it achieves its intention.
Lord Norton of Louth: I am in grave danger of being helpful to the Minister. I think that I understand what the Minister is getting at, but I see a problem with the drafting. One wonders whether the deletion of "retention" in paragraph (b) and its replacement with "re-enactment", which refers back to the beginning, would make the provision internally consistent.
Lord Phillips of Sudbury: I am obliged to the noble Lord. That is precisely the kind of point which requires reflection. On the face of it, that would be an improvement. I entirely reject the suggestion that the protection is reduced by putting the proportionality test into Clause 3. It does not in any way reduce the effect of it. In any event, the noble and learned Lord will have noted that Amendment No. 29 removes the subjective test. In the circumstances, time for reflection is the better part of valour, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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