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Lord Falconer of Thoroton: My Lords, I congratulate the noble Lord, Lord Goodhart, on his extremely clear exposition and I agree in particular with the following elements. The extracts which he quoted from speeches made by my noble friend Lord McIntosh and myself at Second Reading and in Committee reflected our view of the purpose of the Bill. The proposal he makes in Amendment No. 1 and in other amendments in the group give better effect to that purpose.

The noble Lord, Lord Goodhart, is correct in saying that we will agree to the amendments he has tabled. Their effect would be that there could not be an RRO which did not comply with the provision in Clause 1(1)(a) and it must therefore be deregulatory. I also agree with his remark that that of itself would not

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provide the protection he was seeking and that therefore the addition to Clause 3 has been tabled. It provides that,

    "the extent to which the order removes or reduces one or more burdens, or has other beneficial effects ... makes it desirable for the order [which contains new burdens] to be made".

That means that there must be a consideration of the burdens going and the burdens coming and a consideration of whether in those circumstances it is desirable to proceed with the order.

Dealing with the matter as proposed by the noble Lord, Lord Goodhart, covers many of the concerns which were expressed in Committee and to which the Government have listened. We will therefore support Amendment No. 1 and the subsequent amendments.

Lord Skelmersdale: My Lords, before the noble and learned Lord sits down, perhaps I may ask a simple question following on from what he said. He will remember that at Second Reading and in Committee I commented on "new new burdens"; in other words, burdens flowing from Acts of Parliament which have no trigger clauses for them or any orders flowing from them. Does the acceptance of Amendment No. 1 remove that anxiety?

Lord Falconer of Thoroton: My Lords, I do not follow what the noble Lord says. He referred to "new new burdens" and I am lost at sea as regards his question. I apologise.

Lord Skelmersdale: My Lords, I understand that the new burdens referred to are alternative; in other words, they are substitution burdens of a greater or lesser extent. That is what the Bill and these amendments provide. However, perhaps we may take an unlikely scenario: that of the fox hunting Bill which is currently going through another place. It is not beyond conceivability that that Bill will fail before a general election. Were it so to do, I understand that up to the time of the noble and learned Lord accepting the amendment from the noble Lord, Lord Goodhart, under Clause 1(1)(c) it would be possible to produce what I call "new new burdens"; in other words, the regulation of fox hunting. However, am I correct in believing that with the linkage produced by the noble Lord, Lord Goodhart, that would no longer be possible?

Lord Falconer of Thoroton: My Lords, perhaps I may say for the record that it would be inconceivable that fox hunting would remotely be considered under a regulatory reform order. Anyone would regard it as so controversial as to be wholly inappropriate for such a provision. All the committees would immediately indicate that.

The amendments tabled by the noble Lord, Lord Goodhart, have two effects. First, one cannot have an order which does not have some deregulatory effect. Secondly, before the Minister can promote such an

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order he must be satisfied that the benefits which come from imposing new burdens are balanced by the old burdens which are removed.

Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for his constructive response. I commend the amendment.

On Question, amendment agreed to.

Lord Phillips of Sudbury moved Amendment No. 2:

    Page 1, line 9, after ("any") insert ("charitable, educational or business").

The noble Lord said: My Lords, in the absence of the noble Lord, Lord Norton of Louth, who tabled the amendment, perhaps one may give it a run for its money. I assume that the noble Lord, in seeking to insert the words,

    "charitable, educational or business",

was seeking to achieve clarity as to the extent of the measure proposed by the Bill. I beg to move.

3.30 p.m.

Lord Falconer of Thoroton: My Lords, at Committee stage the noble Lord, Lord Norton, indicated that he would come back to try to restrict the word "activity" in Clause 1. The effect of the amendment which he tabled would cripple the Bill and I shall explain why. It would restrict the activities which could benefit from legislative reform to those persons engaged in charitable, educational or business activities and to only a narrow interpretation of those categories of persons. That is because the noble Lord's list of qualifying activities omits any qualifying phrase, such as "or otherwise", which is in the existing Act.

That phrase was construed as including charities, the voluntary sector and the individual, but not public bodies. The amendment tabled by the noble Lord, Lord Norton, and moved by his amanuensis the noble Lord, Lord Phillips of Sudbury, would restrict Ministers to even less than that. It would mean that an order could not reform burdensome legislation that affected the individual in his or her private capacity, or voluntary organisations or any public body in the wider public sector, such as NHS trusts. For example, in the vaccine damage case burdens are placed on those who apply for compensation. They are not engaged in charitable, educational or business activities, and yet a regulatory reform order could not help them because it would not fall within that activity.

The Bill seeks to move away from the acknowledged deficiencies of the deregulation process. Under the 1994 Act only the subject or person, however described, be it a trade, business, profession or otherwise, could benefit. That approach represents a mistaken view which we should not carry forward in this Bill. Government no longer just regulate and prohibit but provide services and facilitate. The regulatory reform power would not be used to take burdens off government and the wider public sector merely to make life easier for them. This is not a Bill about administrative convenience. The tailpiece of

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Clause 2(1) will prevent them from getting rid of burdens which apply only to them, such as the general duty to maintain the NHS. For example, we should be able to deal with burdens on hospitals, doctors or policemen. For all those reasons, I urge the noble Lord not to go as far as to press the amendment tabled by the noble Lord, Lord Norton of Louth.

Lord Phillips of Sudbury: My Lords, I can assure the noble and learned Lord that I have no such intent. I am not the amanuensis of the noble Lord; I merely sought to keep the amendment alive for the Minister's excellent explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 3:

    Page 1, line 9, leave out ("with a view to") and insert ("for the primary purpose of achieving").

The noble Baroness said: My Lords, in Committee the Minister indicated that it would not be appropriate to use the word "solely" in this context as that would have an unduly inhibiting effect. I have heeded that. The noble and learned Lord also said that the words "with a view to" were adequate. I respectfully disagree. If amended, the opening words of the clause (which I paraphrase) would read:

    "A Minister of the Crown may by order make provision for the purpose of reforming legislation ... for the primary purpose of achieving one or more of the following objects".

I should like to make two points clear at the outset. In Committee it was perhaps inferred that by proposing amendments we on this side of the House did not favour regulatory reform. That is not so. We are wholly in favour of the proposition that it is desirable to introduce an effective and safe means of achieving regulatory reform. That said, the power to amend primary legislation by secondary means which is contained in this Bill is unusual and potentially far-reaching. The power represents a singular shift in the balance of power away from Parliament and the courts and into the hands of Ministers. For that reason, it is a power which should be jealously guarded and strictly policed.

The Bill grants a dual power: the power to amend primary legislation by secondary means and the power to impose new burdens. By that means the Bill places unprecedented power in ministerial hands. Given the nature of that power, one immediately asks: what are the effective safeguards against abuse? As the Minister said in Committee,

    "one is looking all the time at the terms of the Bill and its scope. The wider the scope, the more safeguards there must be".--[Official Report, 23/1/01; col. 193.]

I am pleased to hear that that is the view of the Minister. However, the Bill provides no effective substantive safeguards. The measure before us provides only a form of procedural safeguard; namely, use of the super-affirmative procedure. In Committee the Government placed great reliance upon the existence of the super-affirmative procedure. However, that reliance is misplaced. However great may be the powers of scrutiny that are available, vital

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checks and balances are missing. We believe that there are almost no safeguards as regards the scope of the power itself, in which case the Bill will be a weapon in the armoury of the government of the day. Procedural safeguards will count for little, not least should your Lordships' House fall victim to future reform.

I am pleased that the Government have accepted the amendments spoken to by the noble Lord, Lord Goodhart. Notwithstanding that, I should like to speak also to Amendments Nos. 6 and 9. My noble friend Lord Campbell of Alloway should like to deal with Amendment No. 6 separately. I apologise for not making that clear at the outset of my speech. The purpose of Amendment No. 3, in common with Amendments Nos. 6 and 9, is to ensure that, while maintaining the aim of the Bill, adequate safeguards are included. The elephant test previously proposed by the noble and learned Lord for the use of the power is, with all due respect, meaningless both as a descriptive definition and as a threshold test. Amendment No. 3 inserts a first threshold test which any RRO should be required to pass; namely, that its primary purpose is regulatory reform.

The words "with a view to" are manifestly too wide. They may be appropriate when the purpose and use of a power is clearly defined, but that is not so here where the purpose is wholly undefined. The use of the words "the primary purpose" meets the objection raised by the noble and learned Lord in Committee. They are not in any way restrictive, provided the Bill is used for its proper purpose; they will ensure that the Bill is used for its proper purpose and for that purpose alone.

As to Amendment No. 6, I have heard the Minister's observations this afternoon. I have also read with care and interest the Minister's observations in Committee. However, the Minister stated repeatedly that there was no question of any increase in the burden of regulation, and that the power to increase the burden would be used only on very rare occasions. As if to underline the point, there was produced a list of 51 current categories of measures which required attention as candidates for regulatory reform. However, in Committee the noble Lord, Lord McIntosh of Haringey, said that none of them would increase burdens. I seek confirmation that when the Minister said that there would be no increase in burdens he meant that there would be no net increase. The concern is that there is no need for the provision if it is true to say that in any event there will not be an increase in the burden. I refer in particular to the second day in Committee when the Minister said:

    "If it is seriously suggested that the effect of this Bill will increase burdens, perhaps the noble Baroness, Lady Buscombe, or anybody else will tell me which of the 51 examples of measures that are high on our priority list for regulatory reform orders will actually increase burdens. Of course they will not".--[Official Report, 25/1/01; col. 403.]

We believe that Amendment No. 9 is preferable to the amendment which has been accepted by the Minister because in that event there is only a need to ensure that Clause 1(1)(c) is subsidiary to Clause 1(1)(a), (b) and (d). Paragraph (c) of subsection (1) is presently a free-standing provision which permits the

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creation of burdens regardless of whether the other objectives laid down in that subsection are intended to be achieved. However, were the Minister to accept our Amendment No. 9, the position would be such that Clause 1(1)(c) would be subsidiary. I hope that the House will forgive my predicament; I have only just been told that the first group of amendments has been accepted. The provision would hang, and rest, only upon the objects in Clause 1(1)(a), (b) and (d) being achieved. I beg to move.

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