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Lord Norton of Louth moved Amendment No. 26:
- Page 2, line 36, at end insert ("nor any burden contained within an Act of Parliament affecting the powers, privileges, tenure or responsibilities of the Crown, Her Majesty's Courts or either House of Parliament").
The noble Lord said: According to the Explanatory Notes to the Bill the new order-making power is intended to be wide enough, but no wider than necessary, to deal with regulatory reform measures that the Government wish to achieve. That point is stressed more than once in the Explanatory Notes. As we discussed earlier, the Government wish to achieve
the removal of unnecessary burdens and, in some cases, regulatory reform in order to achieve an even playing field.We are told that it is the Government's policy intention to direct the order-making power to the benefit of business, charities, the voluntary sector, individuals, legal persons and the wider public sector. In order to achieve that aim, they propose a wider gateway than that created by the 1994 Act. The Explanatory Notes also say that in order to ensure that the gateway is no wider than necessary to achieve reform of regulatory regimes, the gateway will be limited by two particular requirements.
The first requirement is that the reform must be carried out "with a view to" the "objects" set out in Clause 1(1)(a) to (d). Given the discussion that has already taken place on subsection (c), I am not sure how this constitutes a significant limitation.
The second requirement is that the reform must meet the policy test of "appropriateness". The noble and learned Lord, Lord Falconer of Thoroton, told the Delegated Powers and Deregulation Committee that there is no precise line to be drawn between matters in respect of which it is appropriate to legislate by way of order and other matters in respect of which it would not be appropriate. He said that it would be for Ministers to decide whether or not the use of the power would be appropriate. As my noble friend Lady Buscombe has already said, he used the elephant test: you know it when you see it. I appreciate that both Chambers would be called upon to agree with the Minister that what was before them was, indeed, an elephant. However, I am not sure whether that is a particularly novel safeguard. I would have thought that the test of appropriateness applied to every single measure brought before this Chamber and another place. We have to decide whether a particular measure or procedure is appropriate, and so to subject an issue to that test may be seen as no more than a statement of the obvious. We would be entitled to wonder what sort of government we have if such a test were not applied.
The gateway is therefore not limited other than by Ministers' good intentions and good intentions have to be put alongside the observation of the comment by the Delegated Powers and Deregulation Committee in paragraph 35 of its Fifteenth Report in the last Session. I quote:
- "It would be open to a future Government of a presently unknown political complexion to propose changes of potentially great significance by means of an order."
Indeed, as it notes in the concluding paragraph, the Bill could allow much of the legislative programme to be implemented by orders rather than by Bills. That is not the intention of the Government: we have assurances of that. However, those assurances are not sufficient to meet the claim. Some might regard them as necessary, but they are not sufficient to meet the claim that the order-making power is no wider than necessary to obtain the regulatory measures that the
Government wish to achieve. The order-making power in the Bill is much wider than is necessary to achieve the Government's ostensible purpose.The question then arises: how can the provisions of the Bill be crafted in such a way as to limit them to those necessary, and no more than that, to achieve what the Government wish to achieve? The Minister argues that it is not possible to limit the provisions further and that we must rely on the appropriateness test. To be fair to the Minister, the Delegated Powers and Deregulation Committee has also said that it has not found a way to limit the provisions of the Bill while at the same time enabling the substantial reform of the statute book which it would facilitate. I acknowledge that.
As I said on Second Reading, it may be an impossible task but we must not let this Bill through simply on the basis that we believe it to be so. I therefore place before your Lordships an attempt to limit the Bill. It is one of two options that I believe we can pursue. The first, embodied in this amendment, is to identify what are in effect class exemptions. The term will be very familiar to the noble and learned Lord the Minister. I have sought to identify Acts covering particular aspects of our constitutional arrangements that should not, indeed must not, be changed by means of secondary legislation.
I appreciate that the amendment is not exhaustive. By that I mean two things. The first is that Acts covering other aspects of our constitutional arrangements, such as devolution, are not, but perhaps should be, included. Secondly, even if we extend the scope of my proposed amendment, it will still not include everything that should be exempt from change by secondary legislation.
This amendment is an initial attempt to limit the scope of the order-making power. I bring it forward to prompt discussion. If there is agreement that there is a move in the right direction, it may be felt that it should be extended to include other class exemptions. Another amendment could be brought forward on Report. As I concede, it will almost certainly be impossible to draw a clear line between what should and should not be excluded. In that respect, the noble and learned Lord is quite right. However, that is not an argument against putting certain areas beyond the reach of the Bill. The Minister will doubtless reiterate that the amendment covers areas that the Government have absolutely no intention of seeking to change through the order-making power of this Bill. In that case, I see no reason why the Minister should not accept the amendment. Furthermore, unpalatable as the truth of the assertion may be to the Minister, I would remind him that no government are in power in perpetuity. The Minister's assurances do not carry forward to a future government.
If the Minister would like an example, since we are very keen this evening on examples, I will offer one. I can think of another one, which should come straight to the minds of Ministers. The Bill as it stands could be used by a future government to achieve the purpose of the Parliament Acts (Amendment) Bill introduced by
the noble and learned Lord, Lord Donaldson. The burden imposed on this House by the Parliament Act 1949 could be removed by order. Some in your Lordships' House may well find that attractive, but I doubt if the noble and learned Lord does.Another example has occurred to me, which I suspect will focus the minds of Ministers enormously. It occurred to me that one could use the powers of this Bill. A future Conservative government, if the Ministers were so minded and thought it was in the public interest, could undo the provisions of the House of Lords Act. It imposes a burden on excluded hereditaries. Why not get rid of that burden? As I said, it could be seen as being in the public interest. I do not believe that it is caught by any of the stipulations in the Bill; therefore, it could be done in that way. Some people may believe that that is most unlikely, but it does not have to be likely, merely to demonstrate the truth of the assertion that I am advancing.
If the approach which I have adopted in this amendment--the class exemption approach--is felt to be flawed, the second option would be to exclude from the provisions named Acts listed in a schedule to the Bill. It would be quite possible, for example, to stipulate that any Act passed before 1900 is excluded and then to list all the Acts passed in the 20th century which should also be excluded: the Parliament Acts, the Life Peerages Act, the House of Lords Act, particular Representation of the People Acts, the European Communities Act, and so on. That approach would perhaps provide more flexibility. It may be the approach that we wish to consider if the one adopted in this amendment is not acceptable.
Whichever approach is taken, we must amend the Bill in order to ensure that its provisions justify the claim that the order-making power is no greater than is necessary to achieve the Government's stated intentions. I believe that this amendment at least moves us in the right direction. I beg to move.
Lord Skelmersdale: I put my name to this amendment for a very simple reason. Obviously I agree with the general tenets advanced by my noble friend Lord Norton of Louth. However, the real reason why I put my name to this amendment was the extraordinary comment, as I see it, in paragraph 57 on page 18 of the Explanatory Notes to the Bill, which states:
- "The remainder of subsection (1)"--
- "excludes from the definition of 'burden' any burden that only affects a Minister of the Crown or government department".
- "This means that, while local authorities, schools, hospitals, non-departmental public bodies and other public sector bodies could be the sole beneficiaries of an order, Ministers and government departments cannot be the sole beneficiaries".
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