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Lord McIntosh of Haringey: You would hardly do it if in order to remove a burden with a weight of x you were imposing a burden of 10 times x on the same or on different people. That would not be permitted under Clause 1(1) anyway.
We introduce proportionality in subparagraphs (b) and (c) of Clause 1(1). The reason is that it is recognised that in the spectrum of legislation which needs to be considered for the overall purpose of improving the lot of our citizens, whether corporate or individuals, there are the simple cases of the removal or reduction of burdens; the removal of inconsistencies and anomalies in subparagraphs (a) and (d); the more difficult cases where there have to be burdens which are re-enacted for the greater good of the greater number; and the even more difficult case of subparagraph (c) where new provision has to be made to impose burdens, again for the greater good of the larger number. That is what proportionality means.
Baroness Buscombe: I am grateful for the debate on the subject. I cannot and do not agree with the Minister. A number of noble Lords are clearly articulating that proportionality is different from necessity in the sense that something might well be proportionate but not necessarily a necessity. Therefore, what is wrong with adding it anyway? If there is no problem with the use of the word, is it such a problem to add it to the Bill because in our view it adds clarification?
Lord McIntosh of Haringey: If that is other than a rhetorical question, the answer is that one does not add words when the existing words are adequate for the purpose. If the concept of proportionality is as I claim, and as the draftsman has provided to deal with those matters which are necessary for the purpose of the Bill, one does not add words. The noble Lord, Lord Renton, if he were here, would agree with me.
Baroness Buscombe: I hear what the Minister says when he says "if the use of the word proportionality is adequate for the purposes". But we are questioning whether that is the case. I will not get far on that point. But I want to add that one of the reasons for pressing the point is that we are continuing, as we shall right through the Bill, to be mindful of the fact that this is a
Bill with a very wide scope. We believe that it makes absolute sense to ensure that when these different orders arise to be discussed, in large part outside the two Houses of Parliament, not only is there a proportionate benefit but that it is necessary. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 5:
- Page 1, line 14, at end insert ("and strikes a fair balance between the public interest and the interests of the persons affected by it").
The noble Lord said: Amendment No. 5 is grouped with Amendment No. 8. Both of these amendments are in the nature of probing amendments and seek to add at lines 14 and 19 respectively of page 1 the expression,
- "and strikes a fair balance between the public interest and the interest of the persons affected by it".
It had been my intention to engage in a long series of questions about the meaning of the word "proportionate". However, such has been the brilliance of the exposition, by my noble friend Lady Buscombe, on the meaning of the word, that I feel that it would be inappropriate for me to pursue that line with the noble and learned Lord the Minister. I shall content myself with asking him to explain to the Committee the distinctive role that proportionality, on the one hand, and the striking of a fair balance between the public interest and the interests of the persons affected by the burden being created, on the other, have in the application of the rules in Clauses 1 and 3. I beg to move.
Lord Falconer of Thoroton: The amendment seeks to add the fair balance test in Clause 3(2) and to insert it in Clause 1. We think that that is a bad idea and the noble Lord has abandoned that as a basis for the amendment. He is nodding so I do not need to deal with the basis of the amendment. As far as concerns the point he raises, "proportionate" has a legal and a clear meaning. The noble Baroness, Lady Buscombe, read extracts from cases which was very helpful from our point of view. My noble friend Lord McIntosh read a prepared brief which defined what "proportionate" means. It has legal meaning. The noble Baroness and my noble friend defined it clearly.
The test that is laid down in subsection (2) is about the public interest being balanced. Before the Minister can propose an RRO he has to be of the opinion that the provisions of the order taken as a whole--not just looking at the individual burden--strike a fair balance between the public interest and the interest of the persons affected by the burden being created. What the statute is directing the Minister to look, if it becomes law, is this: here is a burden that is going to be placed on particular people; before I can move to an RRO, in my opinion, can this burden on the people affected be justified when looking at the whole order to be proposed, and is that burden justified in the public interest? That is a wholly different kind of test from
that so eloquently defined by the noble Baroness, Lady Buscombe, and defined by my noble friend Lord McIntosh.
Lord Kingsland: I am much obliged to the noble and learned Lord for his response. Can I conclude that, at least in respect of the matters to which he referred in his response, there is a clear two-stage process? First, the criterion of proportionality must be satisfied. If it is not satisfied, that is that. Secondly, even if it is satisfied the Minister must still go on to Clause 3(2) and further satisfy himself that a fair balance is struck between the public interest and the interests of the persons affected by the burden being created.
Lord Falconer of Thoroton: Yes. I hope that I made it clear in my earlier response to the noble Baroness, Lady Buscombe. Clause 1, when it refers to proportionality, is defining an objective of the order, so the order proposed has to satisfy that. It is one of the objectives that if there is a burden, whether it be continued or newly imposed, it has to be proportionate as defined in Clause 1. That is a separate requirement from the Minister having the opinion, looking at the RRO as a whole. It should be remembered that "proportionate" in Clause 1 refers only to burdens and that Clause 3(2) refers to the order as a whole. So separately from satisfying the proportionate test in paragraphs (b) and (c), the Minister has to have the opinion that Clause 3(2) is satisfied. They are two separate requirements, but we would describe them as having one objective. Once the objective is satisfied, one still cannot do it unless one satisfies the requirements in Clause 3.
Lord Kingsland: I am most grateful to the noble and learned Lord for that reply. Will he confirm that the expression "taken as a whole", in Clause 3(2), which occurs just before the expression,
- "strike a fair balance between the public interest and the interests of the persons affected by the burden being created",
Lord Falconer of Thoroton: Yes.
Lord Kingsland: I am much obliged. In those circumstances, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (The Viscount of Oxfuird): In calling Amendment No. 6, I must advise the Committee that should it be agreed to, I cannot call Amendments Nos. 7 and 8 due to pre-emption.
6 p.m.
Lord Goodhart moved Amendment No. 6:
- Page 1, line 15, leave out paragraph (c).
The noble Lord said: My Lords, I rise to move Amendment No. 6 and to speak also to Amendment Nos. 9, 54 and 56. Amendments Nos. 54 and 56 are minor consequential amendments and I shall say no more about them.
As we indicated at Second Reading, my party gives general support to the objectives of this Bill. The Bill gives wide powers to the Government to legislate by order rather than by primary legislation. Therefore, it needs to be looked at with a great deal of care. The Deregulation and Contracting Out Act 1994 provided for the removal of burdens and allowed new burdens to be imposed only if they were imposed on the same persons or bodies but were less onerous than the previous burdens which they replaced.
A number of orders--many of them very useful--have been made under the 1994 Act, but the number has declined in recent years, allegedly because the obvious targets for deregulation have been hit and nothing much has been left. I am not sure that that is entirely true. Appendix C to the Memorandum of the Cabinet Office, which is printed in the report of the Delegated Powers and Deregulation Committee on the Bill, lists 24 reforms that the Government either intend to bring forward or could bring forward under the powers in this Bill. As the Appendix itself points out, 10 of them could be brought forward under the 1994 Act. However, the Government want to create further powers. We have been told that Clause 1(1) lists the four objects on which powers can be exercised. Clause 1(1)(a) restates the existing powers under the 1994 Act.
I do not have as serious an objection to Clause 1(1)(b) as my noble friend Lord Phillips of Sudbury. It seems to me that this is directed to the rationalisation of existing legislation. It is a power to re-enact legislation imposing burdens, and if it goes no further than that, I can see no serious objection to it; nor do I see any objection to Clause 1(1)(d) which deals with the removal of inconsistencies and anomalies.
I am seriously concerned with Clause 1(1)(c) which allows a government to use a procedure to make new provisions imposing burdens if the burden is proportionate to the benefit which is expected to result from its creation. That is not very much of a restriction because governments of any hue are not in the habit of imposing burdens which they believe are disproportionate to the benefits which will result from those burdens. Other parties may have a different belief but a government will normally believe that they are acting in the public interest. I accept that there is further protection in Clause 3, to which we will come later in Committee, but I am unhappy about the general power to increase existing burdens by order even if the new burden is not balanced by a reduction in other burdens.
At the heart of this debate is the fact that the aim of the Bill should in general be one of deregulation. If the Committee wants evidence of that, I merely need to point out that deregulation was the main theme of the Second Reading speech of the noble and learned Lord, Lord Falconer of Thoroton. Perhaps I may refer to various passages of the speech. The noble and learned Lord opened by saying:
- "The Bill will provide a major tool for this and future governments to reform entire regulatory regimes and to tackle unnecessary, overlapping, over-complex and over-burdensome legislation".
- "It facilitates reducing the burden of regulation".
- "The Panel for Regulatory Accountability is pursuing vigorously its remit of modernising the regulatory system, simplifying existing regulation and easing regulatory pressures on business and the public sector".
- "we need a wider-ranging reform power so that we can over-haul and reduce burdens on business".
- "We want the Bill to bring about the sensible reform of regulatory regimes, and such rebalancing will often involve the redistribution of burdens".--[Official Report, 21/12/00; cols. 851-853.]
Clause 1(1)(c) its present form goes well beyond deregulation. Amendment No. 6 therefore proposes the removal of paragraph (c). The noble Lord, Lord Norton of Louth, supports that amendment. However, unlike the noble Lord, I think that the simple removal of paragraph (c) would be too draconian. I accept that there is a case for using a power under the Bill to rearrange burdens by, for example, imposing a new burden on A in place of an existing burden on B. I have therefore proposed Amendment No. 9. The effect of the amendment is that where powers under Clause 1(1)(a), (b) or (d) are exercised, a new burden may be imposed but only if that burden is proportionate to the benefit from the removal or reduction of other burdens under the order. The result is that the new burden must be balanced against the removal of other burdens and the emphasis remains broadly on deregulation or rationalisation of an existing regime.
I do not believe that my amendments would significantly reduce the powers to make appropriate orders. I have already referred to the 24 proposals in Appendix C to the Cabinet Office memorandum. So far as I can see, none of them would be excluded by the proposed amendment. There could be a few cases in which the Government could be prevented by the amendment from taking what might otherwise be regarded as reasonable action.
One case which was put to me and which appears on a different list was an order requiring more information, such as mandatory mileage recording to be given by car owners to the DVLA to inhibit cheating by the sellers of second-hand cars. That undoubtedly imposes new burdens both on the DVLA and on those who have to submit reports to it. That would be an increase in burden not matched by a reduction in other burdens. I accept that that would be a desirable objective and in itself I would think it a legitimate subject for legislation by order. But I believe that such cases would be few and far between and that it would be better to accept an inability to legislate by order in those few cases as the price for reducing the risk that this wide and extensive power given to the
Government could be abused. I hope that the Government will give serious consideration to my amendments. I beg to move.
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