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Lord Falconer of Thoroton: The use of the words,
- "preventing the incurring of expenditure",
A very common form has been used in Clause 2(1). One deals in the definition section with matters that might otherwise cause room for doubt. The prevention of expenditure is a matter which, at first blush, would not be thought of as a burden, but once it has been explained it can be seen as such. Clarity is achieved by including such definitions.
There are many things that could be burdens that are not specifically defined: appeals mechanisms are one such example; an absolute prohibition on doing something is plainly a burden. But it would be otiose, and unwise, to try to include everything. The best bet must be to rely on the ordinary meaning of a word that people well understand.
Lord Kingsland: My Lords, I am much obliged to the Minister for elaborating on his original explanation. I shall reflect on his remarks and I may return to the matter on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 to 24 not moved.]
Baroness Buscombe moved Amendment No. 25:
- Page 2, line 35, leave out ("only").
The noble Baroness said: I have a number of concerns about the use of the word "only" in this part of the clause. Indeed, the variety of my concerns is perhaps surprising, given that we are here concerned with a single word.
First, it will not have escaped the attention of the Committee that there appears a similar phrase in Clause 1(5)(b). Only there, the words "only" and "affects" are transposed. I do not know whether it is intended that this short phrase should carry the same meaning in each instance, but I must tell your Lordships that as a matter of correct interpretation it does not.
Where the phrase appears in Clause 1, it is permissive in its effect and removes what might otherwise have been thought to be an inhibition. It allows the imposition of a "burden" (in the technical sense) upon a Minister or government department, even though such, by reason of the definition in Clause 2, ought not to be so described.
I have no difficulty with that approach and the meaning is clear. What is not clear is the meaning to be given to the words as they appear in Clause 2. First, the definition in Clause 2 is infinitely narrower than if the words were, "does not include any burden which affects only a Minister of the Crown". That is so because, in the Bill as presently drafted, the word "only" qualifies the word "burden", and so means that not only does the burden affect "only" a Minister of the Crown, but it affects no one else and nothing else at all. I have tried to identify a burden which "only" affects a Minister and has no other effect on anyone or anything whatsoever, and I confess that I am unable to do so.
I now turn to my second point. It is possible that this intensely narrow construction is not what is intended and that, in truth, the words should be transposed. I shall assume that that is so. Perhaps I should say at this point that this is a probing amendment. But, even if it is, these words produce an exceptionally narrow exception to the definition of the word "burden". We have already heard that the word "affects" in Clause 1 is to be given as wide a meaning as possible. That being so, the words "burden which affects only a Minister of the Crown" are again productive of only the narrowest exclusion from the definition of the word "burden" in the case of a burden imposed on a Minister. There can be very few burdens indeed that affect, in the very broad sense that is intended, only the Minister.
It follows that the word "burden", as here defined, is likely to include almost any burden borne by a Minister of the Crown. The Government accept that this Bill should not be available to Ministers as a vehicle by which they may divest themselves of their responsibilities to provide essential services. The prevention of its use for that purpose is indeed the aim of this part of this clause. Unfortunately, upon careful analysis, it does not seem to me to fulfil that purpose.
I have one further concern, which is a serious one. Whatever may be the limit on the use of this Bill as a vehicle for the removal of burdens upon Ministers, there is one use that is not limited in any way, which is to relieve Ministers of the obligation to observe the requirements imposed upon them with regard to the passing of secondary legislation. I take as an example the burden placed upon a Minister by Clause 4 of this Bill to lay a draft order before each House of Parliament, as part of any regulatory reform process. That seems to me to represent a burden. It may be said that it is a burden borne solely by the Minister, and thus not susceptible of "regulatory reform", but it takes little imagination to think of a form of words that could impose such a burden on the Minister and AN Other.
Once such a burden had been jointly imposed, the Minister could make use of the power granted by this Bill to divest himself of that burden. I cannot imagine that it is the intended purpose of this Bill to permit such an activity, whatever other safeguards may be in place to prevent it. But I cannot presently see how it can be said not to be within the power that this Bill will create. The truth may be that insufficient thought has gone into the drafting of this part of the Bill. Plainly, while the aim is worthy, the result is inadequate. I beg to move.
Lord Falconer of Thoroton: I am grateful to the noble Baroness for the opportunity to set out the justification for the drafting of the Bill on this point. As currently drafted, the Bill provides, in the tailpiece to Clause 2(1),that "burden",
- "does not include any burden which only affects a Minister of the Crown or government department".
I deal immediately with the point that the word "only" is in a different place in the sentences at line 35 and line 22 on page 2. I have heard the explanation given by the noble Baroness. To follow it, I shall need to read it. It was, albeit very sophisticated, incredibly complicated. I am not suggesting that it was unclear. I accept that it is a tricky argument and that it has therefore been necessary to explain it in some detail. The placing of the word "only" does not seem to me to make any difference. The noble Baroness suggests that it does. I shall therefore take time to explore and consider the points that she has made. I appreciate that there may be validity in the point that if it appears in a difference place and it tends not to have the same meaning, it may not look right and that one may need to do something about it. That may be a valid point, which I shall consider.
I deal with the points of substance. The Bill is drafted with the tailpiece in Clause 2(1) to prevent Ministers divesting themselves of their responsibilities. Perhaps I may give an example. The Department for Culture, Media and Sport had intended to use a regulatory reform order to remove the requirement on the Secretary of State to run part of Osborne House as a convalescent home for members of the Armed Forces and the Civil Service.
Under the Osborne Estate Act 1902, as amended by the Osborne Estate Act 1914, the Secretary of State is currently obliged to open to the public that part of Osborne House which was occupied by Queen Victoria, and to use the remainder of the House and grounds for the benefit of members of the Armed Forces and the Civil Service. The lifting of the second of those obligations will enable the Secretary of State to find new uses for those parts of the house and grounds currently used as a convalescent home, for the benefit of a much wider range of people.
However, the measure cannot be effected under an RRO (a regulatory reform order) because it would remove a burden that applies only to the Secretary of State at the DCMS. He is the only person under an obligation to run Osborne House as a convalescent home for members of the Armed Forces and the Civil Service. As a result, any change in his obligation must be effected by primary legislation because the obligation is created by the earlier Act to which I referred. Indeed, that is now happening. The matter is before this place at present by way of the Culture and Recreation Bill.
There are many burdens on Ministers that affect others; for example, the provisions of the Bill as drafted mean that we could enable disabled drivers to renew their vehicle excise duty licences by telephone. Although this is a great burden on 900,000 disabled motorists, it is the burden on the DVLA that currently prevents them from being able to verify entitlement by using the Benefits Agency computer. That is what prevents them from obtaining licences in that way. Therefore, it is vital that we do not restrict the provision in the way proposed by the amendment. I trust that the noble Baroness will reconsider her amendments, just as I shall seriously consider the point she made about the position of the word "only". In the light of my response, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Buscombe: I thank the Minister for his explanation, and especially for his agreement to reflect upon what I said in relation to the placement of the word "only" in the Bill. I hear what the noble and learned Lord said in relation to the substantive part of my introductory remarks. In turn, I shall reflect upon that aspect of the matter. On that basis, I beg leave to withdraw the amendment this evening.
Amendment, by leave, withdrawn.
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