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Lord Phillips of Sudbury: I identify myself wholly with what the noble Lord, Lord Norton, has said.
Lord Falconer of Thoroton: I pause to see whether the noble Baroness, Lady Buscombe, is going to move the amendments in this group which stand in her name.
Lord Kingsland: I am grateful to the noble and learned Lord for giving way. It is our intention not to move these three amendments.
Lord Falconer of Thoroton: Perhaps I may give the noble Lord, Lord Norton of Louth, the reassurance that he requires in relation to his amendment. Of course, it would not be possible to include in an order anything which was not within the objective set out in Clause 1(1). It is not intended that Clause 1(5) should include wider objectives. It is a question of how Clause 1(1), not Clause 1(5), is put into practice.
Although I can understand the noble Lord's suspicion of the word "includes", if that word is not inserted, anything in the new order which is not
amendment or repeal, does not impose a burden on a Minister only, or is not incidental or consequential is excluded. Therefore, any new material is excluded from an order if the words "confined to" are used instead of "includes".I hope that I have reassured the noble Lord and that I have indicated what the consequences would be if his amendment were to be pursued. Therefore, I ask him to withdraw it.
Lord Norton of Louth: I believe that I am persuaded by what the Minister says. I shall want to reflect upon it, but I see some force in what he says. I shall consider whether there is a way in which the wording can be ring-fenced so that it still includes the points which he mentioned and, thus, is internally consistent. However, on that point, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): Before I call Amendment No. 19, I should tell the Committee that the noble Lord, Lord Goodhart, wishes his Amendments Nos. 27 and 31 to be withdrawn from this group and taken separately.
[Amendments Nos. 16 to 18 not moved.]
7.15 p.m.
Baroness Buscombe moved Amendment No. 19:
- Page 2, line 25, leave out ("the Minister thinks") and insert ("is").
The noble Baroness said: In moving Amendment No. 19, I wish to speak also to Amendments Nos. 20, 27, 31, 41, 46, 47 and 50 to 52.
Lord Goodhart: But not Amendments Nos. 27 and 31, which are in my name.
Baroness Buscombe: I apologise. During the course of the debate at Second Reading, the Minister indicated that tests existed to de-limit the scope of any use made of the order-making power introduced by the Bill. He spoke in terms which moved the noble Lord, Lord Goodhart, to comment that the noble and learned Lord, Lord Falconer, had spoken as if the requirements in Clause 3(1) were objective; that is, that the scope of any secondary legislation introduced pursuant to the Bill would be dependent not upon an expression of subjective ministerial opinion but upon objectively judged compliance with the tests laid down in paragraphs (a) and (b) in this clause.
However, it is plain that it is not intended that that should be the case, the tests being, as they are, scattered about the Bill. They are all intended to be subjective, not objective. What is the effect of this and other clauses, as presently drafted, which are dependent for their effect upon ministerial opinion? This matter is of great practical importance. Plainly the lawful scope of any exercise of the power granted by Clause 1 is to be determined by reference to the limitation set out in Clause 3.
When referring to Clause 1 earlier, I spoke of the need for adequate policing of regulatory reform measures not only during their passage through Parliament but also subsequently. If the limitations set out in paragraphs (a) and (b) are capable of being satisfied by an expression of ministerial opinion, the scope for policing the limitations intended to be imposed upon the use of the power by that clause will be severely limited. Any expression of ministerial opinion, provided it could not be said to be based upon wrong reasons or, for some reason, to be wholly untenable, would pass the test.
That is not an appropriate approach to matters as important as these. It is commonplace for regulatory matters to cause serious and, in some cases, grave hardship. Those affected, particularly where they have no other form of redress, should be enabled to challenge the imposition of regulation in the courts.
The Minister told the Select Committee:
- "If you did not have the opinion test but had an absolute test, then the lawyers would rub their hands every time there was a deregulation order and there would be a trial on each occasion".
Legislation which is protected by an expression of ministerial opinion, if burdensome, is likely to provoke resentment, and the lack of effective redress is likely to increase such resentment tenfold. What are the Government afraid will happen in the courts to their deregulation orders? If they are properly thought out and accord with the provisions of this Bill, why should it be necessary to seek to hide behind the refuge of ministerial opinion? Again, I propose that proper safeguards are introduced to protect those who are likely to be affected by the burden of compliance with regulations created by the secondary methods anticipated by the Bill.
In the case of these clauses, such safeguards are introduced by the removal of reference to ministerial opinion so that compliance with the limitations placed upon the order-making power in Clause 1 can be achieved only by observance, judged objectively, of the limitations expressed in paragraphs (a) and (b). That is what the amendment and those with which it is grouped seek to achieve.
I wish to make particular reference to Amendment No. 41 concerning the words on page 3, line 40 of the Bill:
- "contains a statement that".
The fact that the provision may go further than merely modifying the subordinate provisions of the previous order, or further than containing provisions that are merely incidental, consequential, transitional or supplemental to the modification, is completely irrelevant. As drafted, all that is required is a statement in the order, however wrong that statement may be.
We believe that that is unacceptable. Either the provisions in the subordinate provision order fall within paragraphs (a) or (b) or they do not. If they do not fall within those paragraphs it cannot possibly be right that those provisions become law merely because it is wrongly stated in the order that the provisions fall within those paragraphs. That is an important point but it is not one that is made against the Minister. I have no doubt that were he to be responsible for a subordinate provisions order it would not contain a statement that the provisions fell within either paragraph (a) or paragraph (b) if the provisions did not fall within either of those paragraphs.
However, this Bill is not just for Christmas; this Bill is forever. Who knows what politicians will be like in 50 years' time. I cannot rule out a future Minister making a statement that the provisions fall within paragraph (a) or paragraph (b), either through ignorance or worse, when in fact they do not fall within either of those paragraphs. If such a Minister were to make such a statement the order would be subject to the negative resolution procedure only and not to the affirmative or super-affirmative resolution procedure. My comments are directed solely at such future Ministers.
Therefore, I ask the Government to reconsider this matter. Present Ministers have nothing to fear. This will not affect them in any way. If the provisions fall within paragraphs (a) or (b) the order containing such provisions will be a subordinate provisions order. The only people prejudiced by my proposed amendment will be such future Ministers who feel able to make the statement that the provisions fall within either of those paragraphs when they do not.
I turn finally to Amendments Nos. 46, 47, 50, 51 and 52. The rationale behind those amendments is to minimise the damage that could be caused by an incompetent Minister. As presently drafted, Clause 5 imposes an obligation on a Minister to consult organisations that appear to him to be representative of interests substantially affected by the proposals, to consult statutory bodies or organisations that appear
to him to be representative of those bodies and to undertake further consultation, but only if it appears appropriate to the Minister.
Those amendments protect against incompetence. A competent Minister will probably get it right. A competent Minister will be able to recognise organisations representative of interests affected by his proposals and the relevant statutory bodies or organisations. A competent Minister will know when it is appropriate to undertake further consultation. Unfortunately, an incompetent Minister may not be able to recognise such organisations or bodies. Worse still, an incompetent Minister may not even notice that it is appropriate and necessary to undertake further consultation. People need protecting against incompetent Ministers. These amendments achieve that object. I beg to move.
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