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Lord Norton of Louth: I thank the Minister for giving way. The example of imposing a burden on schools--and I speak as a school governor and a former chairman of the governing body--is fine if the Minister then exercised the discretion to provide the funding for the schools to fulfil the new burden imposed on them. But what if he does not exercise that discretion? Under this measure, one could impose that burden with no compensating grants to schools at all. If that route was taken, I would regard it as extremely negative.

The Minister intends to come up with other examples of burdens with a beneficial effect, but they have to be offset against the potential of that kind of negative burden, which could be imposed without any compensating benefit to those affected.

Lord Falconer of Thoroton: At the moment I am saying that the position under the existing law is that you are dependent upon the discretionary grant being given. What you achieve by this is that you get rid of the massive administrative and bureaucratic problem by identifying clearly where responsibility lies. Inevitably, if the repairs were justified, no doubt the discretionary grant would be given--although, of course, I should not be taken as in any way tying the hands of the Department for Education and Employment in that respect.

The example I have given is a case where, by making clear where responsibility lies, you lift an administrative, bureaucratic burden. That does not justify under the terms of the Bill because the Bill is concerned exclusively with legislative burdens. We accept that the circumstances in which this would apply would be rare. The example that I have given looks to me, quintessentially, like something for which it will be very hard to get time in primary legislation. It is something which, after consultation and consideration by the two committees of both Houses, would be worthwhile to do by RRO. It is something that people on the ground would appreciate being done because it reduces a burden.

One, maybe two, examples have been given--I shall have to check in relation to the one given by the noble Lord, Lord Goodhart--of where it is worthwhile.

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Should it be dependent, as the noble Lords, Lord Goodhart and Lord Norton, suggest, on being able to identify somewhere a burden? It does not matter if the burden is not connected with the burden that is being reduced; there has to be some burden somewhere. What is the sensible course in relation to that? We think that the sensible course is to include paragraph (c) because it allows you to do the kinds of sensible things that I have described.

Lord Skelmersdale: Before the noble and learned Lord leaves that point and that example, surely the example he has given, at some length now, is exchanging one burden on A, the school governors, to a burden on B, the education authority, perhaps, or the education committee of a local authority. That is exchanging one burden for another. It is not a new burden. It is a new burden on A, taking one away from B, but it is not an altogether new burden. I understand paragraph (c) to be concerned with totally new burdens. That is why my argument about primary legislation comes into play.

Lord Falconer of Thoroton: The effect of the proposal that is being discussed is that there is no burden on the local authorities at the moment but there are constant rows as to precisely who is responsible. You therefore make it clear that the school governors have the burden. You could not do that under the proposals made by the noble Lords, Lord Goodhart and Lord Norton, unless you could identify some existing burden on local authorities. As the noble Lord, Lord Norton of Louth, as a school governor, will confirm, you cannot identify such a burden. Ergo, you cannot do it for purely technical reasons.

Moving on to the second part of the amendment of the noble Lord, Lord Goodhart, which seeks to alter the test of proportionality in relation to any new burdens that might be imposed by order, this would, of course--as I think he recognises--be a different test of proportionality to that which would exist in relation to the re-enactment of existing burdens. His amendment, as I understand it, leaves Clause 1(1)(b) in place and proposes different tests for new burdens as opposed to re-enacted burdens.

I believe that the test of proportionality as it stands in Clause 1(1)(c) is a stronger test than that proposed by the noble Lord. We believe that it is important in terms of proportionality that any new burden should be looked at in terms of what it achieves in itself and at what cost, not by weighing it against the burden that has gone.

Perhaps I may take the example of reforming fire safety. Current fire safety legislation is bewildering and complicated. It is spread over more than 120 different statutes and a similar number of regulations, and much of the legislation overlaps. Although theoretically on different people--owners and occupiers--it is in practice frequently the same person on whom different overlapping burdens are imposed. So the burden being removed is only the excess of whichever is the greater of the two where both apply.

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But there is also confusion. People have to work out, and take advice on, which burden they have to comply with.

The reform, if it goes through under the regulatory reform order, would sweep away much of this legislation and create a single fire safety regime that everyone could understand. It is important to know that the burdens imposed by the new regime are proportionate to the benefits resulting from it. It would be a very difficult exercise to assess whether the burdens in the new scheme were proportionate to the removal of the confusion under the old scheme, which is what the proposal of the noble Lord, Lord Goodhart, suggests. Surely people want to know whether or not the burden imposed on them is worthwhile for the benefits they get, rather than some difficult comparison with the old burdens that they were under.

Lord Skelmersdale: Why can that not be done under paragraph (b)?

Lord Falconer of Thoroton: That refers to existing obligations. This involves a new obligation.

Lord Skelmersdale: It deals with the reform of obligations. The Minister has just said that.

Lord Falconer of Thoroton: What we are dealing with here is where a new burden is being imposed. Paragraph (b) deals with continuing existing obligations. These are two separate issues. I do not think that the noble Lords, Lord Goodhart and Lord Norton, have any problem with paragraph (b); they accept that there is no problem if you are just continuing an existing burden.

I appreciate the noble Lord's concerns that there must be some assessment of the overall package. That is the function of the fair balance test at present; to weigh up the benefits to all against the burdens on those affected. So what we currently provide is stronger than the amendment proposes because we have tests that the burden must be proportionate and that there must be a fair balance between benefits for the many and burdens for the few. Whereas under the amendment it would be possible for huge benefits to lead to disproportionate burdens, it would achieve all that is done under the fair balance test at present but would lose the proportionality test.

Let me further reassure Members of the Committee that their concerns are addressed in the Bill. Clause 3(2) provides that the Minister must be of the opinion,

    "that the provisions of the order, taken as a whole, strike a fair balance between the public interest and the interests of the persons affected by the burden being created".

This means comparing like with like.

We can return to this matter when we debate Clause 3. It is worth pointing out that two other safeguards also apply to orders, irrespective of whether they impose burdens. The Minister must be of the opinion that the order maintains any necessary protection and that it preserves any rights and freedoms that any

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person might reasonably expect to continue to exercise. That opinion is to be informed by the thorough consultation required by the Bill; it will then be tested rigorously by the two scrutiny committees and the two Houses of Parliament.

For those reasons, we believe that the provision in Clause 1(1)(c) should remain an objective of the Bill, even accepting, as was pointed out by the noble Lord, Lord Norton of Louth, that it is free-standing. We believe also that the proportionality test proposed by the noble Lord, Lord Goodhart, is not as effective as the proportionality test that we have already imposed. We also ask noble Lords to bear in mind that that is all in the context of the safeguards in Clause 3.

6.30 p.m.

Viscount Goschen: Will the Minister give an indication of the extent to which he feels, in having prepared the Bill, that the provision in paragraph (c) would be brought forward? Does he think that any such eventuality would be extremely unlikely--perhaps in the region of 10 per cent or so of the type of orders that he has considered? Or does he think it likely that all the provisions in paragraphs (a), (b) and (c) will be used? I do not expect a mathematically defined answer, but some indication would help the Committee. We clearly have some real difficulties over the issue of imposing new, free-standing burdens. The Minister has gone to some lengths, and we appreciate his effort, to describe a relatively complex example relating to a specific circumstance in which it might be necessary to use the provision in paragraph (c). It might also be argued that, if this provision gives so much difficulty and is not expected to be used very often, the Minister might have to accept a clipping of his wings in this area. I should appreciate some guidance from the Minister.

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