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Lord Norton of Louth moved Amendment No. 7:
- Page 1, line 16, at end insert--
The noble Lord said: My Lords, I shall be brief because I suspect that the matter may have been overtaken by what was discussed earlier. The motivation, as we discussed at Committee stage, was to ensure that Clause 1(1)(c) was not free-standing, but linked to the removal of a burden. I believe that at Committee stage the noble and learned Lord, Lord Falconer, thought that I was arguing that it did not matter if they were unrelated and that as long as one burden was removed it did not matter if one was added. There did not have to be a link between the two. I tabled this amendment as a marker because I believe that there should be a link between the two, but if in
Lord Falconer of Thoroton: My Lords, I do not know when the noble Lord joined us but the effect of the amendments of the noble Lord, Lord Goodhart, were that one could not have Clause 1(1)(c) unless the order is covered in Clause 1(1)(a). In addition, it has to be the opinion of the Minister that the removal of the burdens justifies the making of the order. That does not mean that the Minister has to be satisfied that the burdens imposed, when weighed against those removed, are not a balance. The balance is identifying what burdens are being removed from the citizen and whether that makes the order desirable. If, in the opinion of the Minister, that is so, then and only then is he entitled to promote the order. There is not the direct link that the noble Lord proposes in his amendment, but there has to be a consideration and a conclusion by the Minister that the overall reduction in burdens justifies the making of the order.
Lord Norton of Louth: My Lords, I am grateful to the noble and learned Lord for that response. In principle, I would like to believe that he would prefer to go further and that there is a link. I understand what is being said. I am very pleased with what the Government have accepted in principle. I would like there to be a link where a new burden is added, which compensates for a burden which is reduced. In principle that is desirable. In the light of what has already been accepted, I do not wish to push the matter further. There has been an advance, but I do not believe that it goes far enough. I welcome what has been achieved so far. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
Lord Campbell of Alloway moved Amendment No. 10:
The noble Lord said: This amendment makes mandatory provision for meticulous and methodical examination of any order laid under this Bill to ensure conformity with the provisions of Clause 1(1) and the general provisions of the Bill, as amended through the revised amendment of the noble Lord, Lord
It is the ultimate, if not the only effective safeguard, which could commend itself perhaps to the Delegated Powers and Deregulation Committee as a safeguard against the misuse of what are, without question, wide and unprecedented powers conferred by this Bill. In that context it would also strengthen the role of Parliament in calling government to account in the due exercise of the functions of this House.
This amendment is supported by my noble friend Lord Norton of Louth. It delays making an order until there has been scrutiny of the draft, as laid by a Select Committee in either or both Houses. I accept that it is implicit that to avoid undue delay some flexible limit of time for scrutiny and report by the Select Committee must be given consideration. It is also requisite that there should be administrative arrangements for debate which inhibit a perfunctory decision or resort to the guillotine.
My noble friend Lord Dean of Harptree referred to the recent change in procedure in another place on Bills concerning the constitution which are now taken under the guillotine without the agreement of the Opposition. The noble Lord, Lord Dahrendorf, took the point as regards adequate time for scrutiny. He said that orders emanating from this Bill concern our core functions and that necessary time for scrutiny was essential.
This is a main constitutional Bill. It derogates from the fundamental concept of the separation of powers. It confers new powers to legislate by order, as already asserted by Amendment No. 6. In principle, parliamentary scrutiny will confer the only effective safeguard irrespective of the drafting of this amendment. As mentioned on Amendment No. 6, the supervisory functions of the judiciary have been slighted.
The wording of this amendment would inhibit the imposition of,
Viscount Goschen: My Lords, before we leave Clause 1, especially paragraph (d) relating to,
When the Minister addresses the points raised by my noble friend Lord Campbell of Alloway about additional parliamentary safeguards being inserted
Lord McIntosh of Haringey: My Lords, I do not believe that I can assist the noble Viscount, Lord Goschen. If he wishes to have a discussion on inconsistencies and anomalies, he can table an amendment. I am sure that the House would not appreciate it if I strayed from the amendment on the Marshalled List. After all, that is what we are supposed to be considering.
I must say that I am surprised to see Amendment No. 10 here. I thought that we spent a good deal of time in Committee discussing the fact that the procedures of the House are matters for this House, not for government by way of legislation. I am still very firmly of that view. How the House organises its affairs is a matter for the House; it is not a matter for legislation. Therefore, many--though not all--of the matters referred to in either paragraph (a) or (b) of the amendment are matters for the House to consider by way of its own procedures; for example, whether or not to have debates, under what circumstances, and at what stage. It would be presumptuous of the Government to seek to impose such restrictions on the House.
I have a further problem with the amendment in that it would return the restrictions to the Bill that were contained in the comparable amendment tabled in Committee and which, presumably, the noble Lord, Lord Campbell, withdrew on the basis that he had an improved version for this stage. It has become a mantra for this Bill, but it is worth repeating: the power contained in the Bill is a wide one, but one that is surrounded by robust safeguards. Indeed, the noble Baroness, Lady Buscombe, referred to that when addressing Amendment No. 3. Although I know that she does not agree that we have achieved those safeguards, she recognises that that is the structure of the Bill.
The Bill provides that a Minister will have to show that any new burden imposed by an order is proportionate and that, in his or her opinion, it also strikes a fair balance between the rights of the persons involved and the interests of society at large. That applies to Clause 1(1) and Clause 3. We should not forget that the consultation process would have to be thorough in exposing those issues and seeking views, including the views of those likely to be adversely affected. The Minister will have to document his reasoning and submit the proposal for rigorous scrutiny by the two committees. The House is then free to vote on the matter when it comes before it for affirmation. As I said in Committee, any Peer can table
The amendment seeks to limit the order-making power by ruling out the introduction of,
Let us consider the implications. I am sure noble Lords will agree that it would be a very good move if an order were to simplify a highly complex, regulatory regime by replacing a whole gamut of licences with one simple, transparent licence for all. And that the reform should take into account appropriate changes in circumstances since the parent Act was enacted. It is possible that this hypothetical new licensing regime with the simple, transparent licence would only be workable in the sense of the protections that it offered to consumers if there were some sort of penalty for non-compliance. That is not just a possibility; it seems to me to be almost inevitable. However, it would be impossible under the terms of the amendment now before us.
The proposed restriction would make it impossible to carry out some of the most worthwhile reforms. The classic example is reform of fire safety regulations--one of the key examples of what would be possible under this Bill--which could be ruled out if the amendment were carried. Another example is the worthwhile and sensible reform of weights and measures legislation. There has to be some power and there have to be some penalties, but they do not have to be set out in the complex, often out-of-date and burdensome way that applies at present.
The amendment would also reintroduce a problem that we had with the Deregulation and Contracting Out Act 1994. It proposes an arbitrary, date-driven cut-off date that would quickly render the Act useless as a tool for worthwhile reform. Therefore, for those three reasons--the interference with the privileges and processes of the House, the removal of the possibility of having penalties for the new orders that would be required to remove greater burdens, and the arbitrary cut-off date--I hope that the noble Lord will not pursue his amendment.
("( ) is necessary to compensate for the removal of an existing burden").
Page 1, line 20, at end insert--
("(1A) An order may not be made under subsection (1) above--
(a) until a Select Committee of either House, or both Houses, upon scrutiny of the draft order as laid has reported that such order if made would be in conformity with the provision of such subsection and would not impose any offence, obligation, liability or administrative control not in force on the date on which this Act takes effect which involves the burden of any sanction, or increase the burden of any sanction, in force on the date on which this Act takes effect, and
(b) unless both Houses of Parliament shall have debated and approved the making of such order as laid in draft, or (if so advised) as amended.").
"any offence, obligation liability or administrative control not in force on the date on which this Act takes effect which involves [or increases] the burden of any sanction",
by order under this legislation. It reflects the concern, as already expressed by my noble friend Lord Norton of Louth, that, under the Bill, primary legislation could be changed by order. I beg to move.
"the removal of inconsistencies and anomalies",
I have one brief point to make which reflects my noble friend's desire to see enhanced safeguards within the Bill. During our detailed considerations in Committee, we did not spend very much time on this little "get-out" paragraph at the end of the clause.
4.45 p.m.
"any offence, obligation, liability or administrative control not in force",
on the day that the Bill is enacted, if it,
"involves the burden of any sanction".
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