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Lord Goodhart: I rise briefly to say that I shall be unable to support Amendments Nos. 12 and 13 tabled by the Conservative Front Bench. I believe that this must be a rolling power and not one that can affect only Acts passed before this legislation itself comes into force. However, Amendment No. 11 moved by
the noble Viscount, Lord Goschen, and Amendment No. 14 tabled in the name of the noble Lord, Lord Norton of Louth, both address important issues that require some serious consideration. They certainly raise a case to answer.
Lord McIntosh of Haringey: I hope that I can reassure both the noble Viscount, Lord Goschen, and the noble Lord, Lord Norton of Louth, about their amendments. That applies particularly to the noble Viscount. This group of amendments addresses issues of principle upon which we may not reach agreement. However, as far as concerns Amendment No. 11, I hope that I can assure the noble Viscount that his proposed revision is unnecessary. The Bill is already excluded from the power as it does not satisfy the definition of "eligible legislation", which is set out in what my briefing refers to as the chapeau--the bit in italics at the top of Clause 1 which also appears in Clause 8.
This Bill does not have the effect of imposing burdens affecting persons in the carrying on of activity. Of course, an order made under this legislation could have that effect, but the Bill itself will not have that effect. Therefore, the Bill does not fall within that scope and, thus, cannot be amended by a regulatory reform order. The Bill achieves what the amendment of the noble Viscount, Lord Goschen, wishes it to achieve.
Amendment No. 12 is an interesting and particular case. It would exclude Acts that are on the statute book but not yet commenced. I do not need to go back as far as the Easter Act 1928. I am not sure whether that imposes any burdens, but if I go back to 21st March 1997 I hope the Committee will understand what I am saying.
There are Bills which have been found to be defective. One in particular was the Sexual Offences (Protected Materials) Act, which was passed on the 21st March 1997 in a spirit of genuine outrage at the circulation of pornographic material in prisons. It has never come into force because, as drafted, it makes it impossible for defence lawyers to have proper access to certain materials that may be central to the case. As the purpose of the Act was to enhance protection for the victims of sexual offences, the fact that the deficiency has prevented its commencement is a heavy burden on such victims.
I would put it to the Committee that since we have the procedures involving prior public consultation, detailed parliamentary scrutiny and approval by both Houses, this is a good way of enacting the necessary reform, rather than waiting for a legislative opportunity. Of course, in an ideal world legislation would always be right first time, but those who have spoken on these amendments have made it clear that they have the same scepticism as I have about that. We do have an opportunity here for correcting these errors, although they may be rare. I hope that Amendment No. 12 will not be pressed.
Amendment No. 13 is much more wide ranging and would exclude all legislation before this Bill receives Royal Assent: in other words, it would repeat the self-imposed restriction which exists in the 1994 Act. If I may explain our thinking, regulatory reform problems have many causes. Sometimes there are problems because legislation passed some time ago no longer meets modern requirements, but they can also be the result of the interaction of overlapping legislation--legislation already on the statute book for some time and much more recent legislation. Fire service legislation is a very good example of that. It is spread over 120 Acts, as has already been referred to this afternoon, passed over many years. It is the interaction and overlapping nature of these Acts that is part of the problem.
As I am sure the Committee is aware, the 1994 Act limited eligible legislation to that passed before the 1993-94 parliamentary session. This was a significant limitation, and it is one of the reasons why it is running out of steam and there are fewer and fewer deregulation orders under that Act. When we consulted over reforming this Act in 1999 we tackled this very issue, and there was unanimous support for the idea of extending the range of eligible legislation to that passed after Royal Assent to the Bill.
What we have done instead is to opt for a two-year cut-off period for legislation. I will come to the actual period when we consider Amendment No. 14, but it means that there can be no question of a "knee-jerk" reaction to amend legislation newly placed on the statute book. It also means that we have a tool with which to tackle as yet unforeseen problems arising from burdensome legislation: indeed, better ways of solving problems than imposing burdens. If we agreed this amendment we would be limiting our ability to do that.
The noble Lord, Lord Norton, made a very rational case, if I may put it that way, for Amendment No. 14. The 1994 Acts stipulate that no order can amend any Act passed before the 1993-94 session, and we have sought to remove that restriction. Again, for the reasons I have given about overlapping legislation, we need to be able to tackle older and more recent pieces of legislation at the same time. We realise that the exact period will be a matter of judgment, but we think that two years is the right period to avoid what might be called laxness in drafting.
There are two kinds of safeguard against that. First of all, the two-year cut-off means that it is not a "quick fix", because we have to live with the effects of the legislation for two years or for such time as the legislation is in effect. Of course there may be delays. Secondly, it is a high price to pay for making mistakes if you go through the very lengthy and difficult procedures involved in the super-affirmative resolution provided for in this Bill. I really do not think that any Minister in any government would embark on this route without careful thought. It is a balancing act, but we think we have the balance right.
I am advised that in relation to what I said about the amendment of the noble Viscount, Lord Goschen, the "chapeau" is the paragraph immediately after Clause 1(1) and is the important element which ensures that this Act is not covered by itself.
Viscount Goschen: Certainly the term is not one I have come across before. I do appreciate the Minister's attempt to reassure me on this issue; and to some extent he has reassured me on certain parts of it. I think it is clear that this Bill imposes burdens, not just on the Government but on Parliament. Whether or not you consider Parliament to be under the control of a Minister of the Crown (and I suspect it is not) the noble Lord will be able to give me a definitive judgment. There are also many burdens imposed by the consultation process on various statutory bodies, including the Scottish Law Commission among others.
One can imagine circumstances where an order is brought forward under this Bill and someone says, "This is a burden we could well do without and so we shall bring forward an order which removes a burden under this very Act". I do not suggest that the Minister should respond to that specific point at this stage, but I feel that he did not fully explain how this Act could not be used to amend itself. If there is any shadow of a doubt, I would suggest that the position should be made crystal clear.
The noble Lord might well say that to do this might offend my noble friend Lord Renton by using a small number of extra words. I believe our primary consideration should be how strong are the safeguards contained in this Bill.
On the arguments deployed against Amendment No. 13 proposed by my noble friend Lady Buscombe, there is a strong argument which says, "Let this Bill deal with prior mistakes anomalies or inconsistencies that have built up--as, for example, over the 120 statutes which contain fire legislation"--unless the Government propose to come forward with another 120 statutes covering fire legislation, which I am sure they would not. Surely this Bill must be focused on the vast breadth of the statute book which lies behind us.
To say that this Bill, when enacted, can be forward looking would be an incitement to sloppy drafting, and I am quite sure that Ministers would receive briefing from officials to the effect of "Never mind if you get it slightly wrong here: we have a joke get-out-of-jail-free card under the Regulatory Reform Bill and we will use that." Just occasionally I have spied briefs saying, "Don't worry about the appeals process: there is always judicial review." To that, the noble Lord, Lord McIntosh, and his colleagues, when they were on the Benches on this side of the Chamber, would say, "Oh, but that's a cumbersome process." I think the same type of argument would apply in present circumstances.
I feel that this is a genuine issue that we shall need to return to at a later stage of the Bill. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 12 to 14 not moved.]
Lord Norton of Louth moved Amendment No. 15:
- Page 2, line 18, leave out ("includes") and insert ("is confined to").
The noble Lord said: This amendment is straightforward. It is similar to Amendment No. 1 moved by my noble friend. It provides for provision made by order under this clause to be confined to fulfilling the objects stipulated by the clause. Under subsection (1), the Minister may by order make provision with a view to one or more of four objects. We have already discussed that point. By stating:
- "The provision that may be made by order under this section includes",
In any event, my instinct is to be wary of the use of the word "includes" in legislative provision. I believe that we should be sceptical each time that word appears. The meaning of the provision should be stated clearly and, wherever possible, it should be exhaustive in terms of what it encompasses. That is especially so when it confers powers and where the creation of a criminal offence may be involved. Given the significance of this measure, we need to ensure that it is as clear and precise as possible. The use of the word "includes" appears to provide a much wider scope than clearly is intended. For that reason, I bring the amendment before the Committee. I beg to move.
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