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Lord Kingsland: I thank the Minister for that answer. I shall read it and reflect on it. Investigations under the Financial Services Act of particular individuals are likely to be different from the kind of investigations which take place under this legislation. I understand that this legislation deals with burdens imposed by other legislation with a view to alleviating them. Is it not unlikely that a situation similar to Barlow Clowes would arise as a result of investigations made under this legislation.
Lord McIntosh of Haringey: It might not arise directly. Suppose that the Financial Services Authority itself carried out an investigation of the kind to which the noble Lord refers and concluded that something had to be changed in primary legislation, secondary legislation or a directive. It would then promote a regulatory reform order through the Treasury. In order to promote that regulatory reform order the kind of evidence on which it had based its opinion would be relevant.
Lord Kingsland: This is a good example of the issue that the Committee debated on Tuesday--namely, the kind of legislation which would be likely to be affected by the operation of the Bill. The example that the Minister gives is wholly inappropriate to the application of this legislation, raising as it does questions about criminal prosecution, the rights of the individual in such circumstances and so on. I have heard what the Minister says and shall reflect upon it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 61:
- Page 5, line 35, leave out from ("6(2)(k),") to ("shall") in line 36.
The noble Lord said: Amendment No. 61 is concerned with the same general theme. This amendment deals with a situation in which, even if a Minister has been requested not to disclose particular representations made by a person, he is nevertheless obliged to disclose the fact that the person has made some representations.
I illustrate my reservations by the example to be found in paragraph 78 of the Explanatory Notes which sets out the effect of Clause 7. The paragraph states:
- "This clause sets out what should be done when someone responding to the consultation exercise on a proposed order requests that their response should not be disclosed".
- "The reason for allowing representations to be made in confidence is that, for example, an elderly person living near a public house may want to give details of the disturbance caused if there is a proposal to extend the opening hours ... but he or she may be justifiably concerned about reprisals".
But in a situation like that the elderly person may have previously expressed her views to one or two people, perhaps even the publican. If there is a proposal to extend the opening hours and it is disclosed that that elderly person has made some representations, it does not require a great deal of intelligence to work out that that elderly person has given details of her previously expressed views. If the Minister is obliged to disclose the fact that any particular person has made representations, inevitably there is a risk of reprisals. That risk is not proportionate to the benefit.
I go further and suggest that there is no benefit at all in disclosing the fact that a particular person has made representations if the representations must not be disclosed in a manner that identifies them with the person who made them. On that premise, the disclosure of the identity of the person who made representations, whatever they may be, is an entirely useless piece of information. It becomes useful only if one can put two and two together and identify the representations with the person whose identity is disclosed. But that is the mischief that the clause seeks to avoid.
The Committee must remove the obligation on the Minister to disclose the fact that any particular respondent has made a representation. I beg to move.
Lord McIntosh of Haringey: The noble Lord describes a possible conflict between an elderly lady who lives near licensed premises who may be affected by a regulatory reform order and the contrary case, which he did not put fully and rejected out of hand as having no validity. I do not deny that there is something in his case, or that it is conceivable that a regulatory reform order is so precise in its application that disclosure of the identity of a respondent to consultation, without the content of that response to the committees of both Houses, may damage that respondent. However, I believe that it is highly unlikely. We are not dealing here with planning
applications but much more general issues and burdens. Nevertheless, I acknowledge that there is some weight on that side of the scales.The alternative case, which in a sense is anti-government, is one that the noble Lord dismisses out of hand. It is incumbent on Ministers to report everything that comes to them which is relevant to the consideration of the committees. If someone approached a wicked Minister, not of this Government or even the previous one, and asked him not to proceed with a particular regulatory reform, or, worse, to proceed with it because it would assist his despicable financial interests, should the Minister be able not to disclose those representations? Surely, the case for open government must be that when a consultation process is in place Ministers are not at liberty to pick and choose the representations or the names of respondents to make available to Parliament. That is the case on the other side, which I believe is a stronger one.
Lord Kingsland: The Minister will be relieved to hear that I shall not repeat my speech. I disagree with the noble Lord profoundly in his assessment of the balance. I put him on notice that I shall return to this matter at Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 62 to 64 not moved.]
Clause 8 [Parliamentary consideration of proposals]:
Lord Norton of Louth moved Amendment No. 66:
- Page 6, line 17, leave out ("of sixty days beginning on") and insert ("taken by Parliament to complete its consideration of the draft order, which shall be no shorter than forty days, and no more than ninety days, from").
The noble Lord said: Subsection (2) as it appears in the Bill reproduces the provision in the 1994 Act which has worked well. However, we now face a new situation. One point made at Second Reading was that, if the Bill was to live up to the Government's intentions, the Delegated Powers and Deregulation Committee would labour under a substantial burden of work. We are faced with considering how to help the committee cope with that burden. Much of what we can do does not entail statutory provision. We have to look to our Standing Orders and to the provision of staff resources. However, one resource of the committee that will be under pressure is time, and my amendment is directed to that particular problem. My amendment is designed to give greater flexibility to the period of time that may be taken for parliamentary consideration by the committee. At present, the stipulated period is 60 days. When that period has elapsed a draft order may be laid. That repeats the provisions of the 1994 Act. I believe we are moving into new territory and that we may need to go beyond the existing provisions.
Under my amendment a draft order can be laid after 40 days if committee deliberation is complete, or it can be delayed for up to 90 days if the committee wants to take that long. Some flexibility may be useful. Orders made under the Bill are likely to differ significantly in scope and effect. Some may require little parliamentary scrutiny; others may require substantial scrutiny, perhaps taking longer than is presently the case with orders under the 1994 Act.
I readily concede that my amendment might not hit the mark. This is a probing amendment and one that is designed to elicit a response essentially from two quarters. One is from members of the Delegated Powers and Deregulation Committee. I shall be guided by their views as to what is necessary. The other is from the Government: first, in terms of the thought they have given to the burden that will fall on the Delegated Powers and Deregulation Committee; and, secondly, what resources will be necessary to enable it to fulfil what may well be an onerous duty. Given that the provisions of the Bill impose a burden on the Committee, and the Government wants to reduce burdens, it is appropriate that we turn our minds to achieving that.
My amendment is designed to focus attention on what is necessary and how we may assist the Committee in discharging what is likely to be an extremely onerous burden. I beg to move.
6 p.m.
Lord Campbell of Alloway: In principle, I support the amendment. As a probing amendment, it is concerned with the question of adequate time for scrutiny. In that context it relates to one of the aspects of Amendment No.10 to insert Clause 1A that my noble friend Lord Norton, and I move, and which I shall move on Report. Therefore, I support the amendment in principle as being relevant to that consideration.
Lord Goodhart: While I can be somewhat critical of the drafting of the amendment, particularly because what is laid before Parliament in the first instance is not a draft order but a document in the form of a draft order, nevertheless there is something in the substance of the amendment. I would prefer to see greater flexibility with regard to the time. I shall be interested to hear what the Minister has to say.
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