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Lord Norton of Louth: The noble Lord has hit upon the point where the problem arises, because he keeps saying "intentions", and what we are concerned with is the potential effects of the clause. That is the big difference. The noble Lord is making a case for going beyond the 1994 Act. I have no problem with that. It is a question of how far one goes, particularly since the Delegated Powers and Deregulation Committee said that in order to achieve the objective the Bill created unprecedentedly wide powers, not just wide powers. Therefore, it is being taken to a new paradigmatic plane in terms of powers. The problem is not with intentions; it is with the potential effects.
Lord McIntosh of Haringey: I was responding to the noble Baroness, Lady Buscombe, who sought to identify a difference between our intentions and what we are doing. I acknowledge what the noble Lord, Lord Norton of Louth says. I acknowledge that if it were possible to provide a simple test for the wide powers which I think it is agreed are necessary in order to extend the demolition of burdens we would adopt it. The noble Lord, Lord Norton of Louth, said in his Second Reading speech that he thought he could provide it. I do not think he has done so in the amendments he has put before the Committee. If he did, we would listen very seriously. I am not saying for a moment that we would necessarily accept it, or believe that it would have to be on the face of the Bill, but I understand the natural suspicion--after all, I spent 14 years in opposition prior to four years in government--of government intentions and the natural suspicion of future government intentions. I understand the desire to have some sort of screening test. If any of us can come up with something that is workable and plausible and does not actually restrict the beneficial scope of the Bill, we shall listen very carefully to what is proposed. That is the first issue, the issue of power, following the agenda of the noble Baroness, Lady Buscombe.
The next issue is what the noble Baroness calls the constitutional issue, which is the issue of the process of legislation. The noble Baroness says that this is too wide an extension of subordinate legislation. Let me first sound a note of doubt about the efficiency of public debate on primary legislation. Again, having spent 14 years in opposition as well as four years in government, I have seen how primary legislation can go through on the nod without adequate scrutiny late at night. I have seen the way in which the scrutiny depends on chance in primary legislation. I think that the very detailed procedures here--their length, the extent to which they involve public consultation, which is not necessarily involved in primary legislation, the extent to which they involve committees of both Houses, the extent to which they come back in draft and are then produced in detail, with a series of consultations--in many ways provide better public debate than primary legislation. So I do
not accept the argument that there is anything backdoor or undercover about the measures proposed in the Bill. Primary legislation is in many ways easier than the super-affirmative procedure proposed here. I think that Ministers in any government will discover that and will retreat to primary legislation. I can assure the Committee that the Labour Government in their second term, when it starts, will have just as crowded a primary legislation programme as before, for exactly that reason.
Lord Norton of Louth: I do not want to prolong this debate, but I should like to pick up on the point about parliamentary scrutiny. I take the noble Lord's point that there is a very real balancing act in terms of the benefits proposed under this measure replicating the 1994 Act and existing methods of primary legislation. I see the argument and recognise the benefits that derive from the process that the noble Lord is outlining. However, one has to weigh that against the fact that primary legislation concentrates the Government's mind far more in that they have to find a slot. Primary legislation, whether one likes it or not, none the less has the potential of gaining the oxygen of publicity, because more time is usually spent on the Floor. That is an important point.
The other point concerns the extent to which Members can be involved, particularly in the other place. The process is very much confined to committees. I have nothing against committee scrutiny--that is invaluable; it is when it is then linked to debate in the Chamber. There are limited opportunities for that, particularly in the other place when it comes both to debate and amendment. That is where the difference arises.
I recognise what the Minister is saying. I recognise that there are benefits in that process against primary legislation. What I draw from that is that there is a case for reforming the way in which we deal with primary legislation in order that the scrutiny through that process is improved.
Lord McIntosh of Haringey: I love this stuff, but we are getting beyond the scope of the Bill. I shall gladly come and take part in a debate with Lord Norton of Louth, at Hull or anywhere else. If I were not in government, I might charge a fee!
I started from the point that the contrast that was being made by the opposition between what is claimed to be a stealthy backdoor procedure and the public debate of primary legislation is not all that it seems. I shall not press the argument further than that.
In this Bill we have the special scrutiny demanded by the noble Lord, Lord Norton. I think he is anticipating his speech tomorrow. If we are to ensure that the effect of the Bill is not merely managerial but improves the effect of the Government's relationship with the citizens of this country--which it is capable of doing--we must take seriously any specific amendments which help to achieve that. The amendments that we have had before us today go no way towards achieving that.
Clause 1 has survived unscathed the scrutiny of the Committee. I hope that the Committee will agree that it should stand part of the Bill.
Baroness Buscombe: I do not think it is quite true that Clause 1 has gone unscathed. It is clear that there has been a lot of opposition to the drafting of Clause 1 in view of the points that have been raised. I should like to thank my noble friends Lord Norton of Louth and Lord Skelmersdale for their support.
This is not only about the extent to which the Bill can be used to ring-fence the purposes currently intended; it is, in essence, what the Bill could permit which is the problem. What my noble friend Lord Norton of Louth had to say in relation to the future of our constitution should give Ministers cause to reflect on the wider totality of cases that may arise in the future.
When the Deregulation and Contracting Out Bill was passing through Parliament, the then Opposition was apoplectic with rage in regard to its constitutional ramifications. It is therefore worth making the point that our response to this Bill has been measured and, dare I say, proportionate. The Bill raises serious and significant constitutional concerns. We would be remiss if we did not expose them to scrutiny.
Let me conclude my thoughts on Clause 1 for today by referring to the final report of the Select Committee on Delegated Powers and Deregulation dated 18th December 2000. In its conclusion it stated:
- "The potential gains are considerable--but so too, without stringent safeguards, would be the risks inherent in this unprecedentedly wide power".
Clause 2 [Meaning of "burden" and related expressions]:
Lord Kingsland moved Amendment No. 21:
- Page 2, line 28, leave out ("includes") and insert ("means").
The noble Lord said: This clause purports to define. That being so, it should define and not merely include. The appropriate word to use is "mean". The meaning of the word "burden"--surely the most important single word in the Bill--must be accurately and clearly defined. If the word "burden" is only said to include these meanings, what else is to be included? Are we to be told--or is that to be left to the imagination? If other burdens are envisaged as falling within the ambit of the Bill, let us identify them. I beg to move.
Lord Falconer of Thoroton: I agree with the noble Lord that the definition of "burden" is key to the way the power in the Bill will work and to ensuring that we are able to implement important and wide-ranging reforms. I do not think that the amendment as proposed would add anything. The word "includes" has been put into Clause 2 quite deliberately. It ensures that, while the definition of "burden" given in Clause 2 gives the framework within which each order would operate, "burden" retains its natural meaning. That is
obviously the right way to do it. It would be wrong to impose artificial restrictions on the word. It is one that we all understand.The word "includes" is taken from Section 1 of the 1994 Act. That is where the approach came from. Experience with that Act has shown that the safeguards are more than robust enough to prevent any abuse. There has been no difficulty in defining the meaning of "burden".
Additionally, the effect of the amendment would be to limit the removal as well as the imposition of burdens. So the scope for deregulatory measures, which is important to both sides of the House, could well be diminished. I ask the noble Lord to reflect on my response and to withdraw his amendment.
9.15 p.m.
Lord Kingsland: I am grateful to the noble and learned Lord the Minister; however, I must confess that I am not happy about what he has said. For example, even if one looks at what is included in Clause 2(1), one is surprised to see that one of the definitions of "burden" is,
- "preventing the incurring of expenditure".
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