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Viscount Goschen: My Lords, because the Government have made some move towards strengthening the level of detail in the Bill does not mean that we should not improve it further.
When replying to a previous amendment proposed by my noble friend Lord Kingsland, the noble Lord, Lord McIntosh of Haringey, was in two minds as to whether he should speak to the amendment or the speech of my noble friend. When addressing this group, Members of your Lordships' House are in the same position: whether to address what is contained in the Bill or the assurances given by Ministers as to how the Bill will operate.
In their speeches, Ministers have gone to great lengths to reassure the House that there are only targeted and specific circumstances in which the measure could be used. However, the Bill states nothing of the kind. The instances where it can be used are extremely wide. That is why I strongly support my noble friend. We need to take out more of the subjective nature of the Bill.
The whole Bill is about what "the Minister thinks"--whether the Minister thinks some piece of legislation should be amended which is not at the top of the Government's priority list. We have heard time and again about fire safety legislation. If safety is a priority of the Government, perhaps they should consider bringing forward in primary legislation a new fire safety Bill which draws all the measures together. I wonder how many ministerial speeches would have to be rewritten to delete fire safety legislative arguments.
The words "the Minister thinks" appear throughout the Bill. There are instances where such a phrase is appropriate in legislation. However, in a Bill which is so open to abuse, to have such latitude for a Minister is not appropriate. I support my noble friend's amendment.
Lord McIntosh of Haringey: My Lords, fire safety is one of 51 examples. Perhaps the noble Viscount, Lord Goschen, would like us to bring forward 51 Bills to deal with each of those issues. That is an interesting proposition.
Viscount Goschen: My Lords, I cannot let the noble Lord get away with that. He has used the same example at every stage of the Bill and done so at great length. That is why I drew attention to it. My noble friend Lord Kingsland said earlier that perhaps we should write those 51 examples into the Bill. Let the
Government get that through and then bring forward another Bill if they want. Then there might be something to consider.
Lord McIntosh of Haringey: My Lords, I do not mind being accused of using the fire safety example, but I very much mind being accused of doing it at great length. If the noble Viscount measures the column inches on fire safety, he will find that they do not amount to much.
We dealt with the issue thoroughly in Committee. We have not changed our opinion since then. The procedure in the Bill, which the amendments would alter, is the same as in the 1994 Act. It has been there all the time and has not caused any difficulty. The Conservative Party introduced that legislation, which included the provisions for the Minister's opinion.
Viscount Goschen: My Lords, I know that my party did that. The noble Lord will recall that I was sitting in the position that he is sitting in now. That is still reasonably fresh in my memory. The Bill is much wider and goes much further than the Deregulation and Contracting Out Act 1994. It therefore needs much more powerful provisions to limit its effects.
Lord McIntosh of Haringey: My Lords, as is well known, I dispute that claim. Bearing in mind the amendments that we have accepted from the noble Lord, Lord Goodhart, today, the relationship between the scope of the Bill and the safeguards included in it is highly defensible. We have nothing to apologise for and no need to make different provision from that in the 1994 Act. We still have the principle of thorough consultation and intense scrutiny in both Houses of Parliament. As my noble and learned friend Lord Falconer said in Committee:
- "We do not think that the right course is to allow the courts, after Parliament has scrutinised the legislation with the relevant amount of information and in the necessary degree of detail, to try to unhinge the process".--[Official Report, 23/1/01; col. 208.]
Of course, that is subject to the legitimate point made by the noble Lord, Lord Borrie, about judicial review. If the Minister acts unreasonably, judicial review is possible under well established principles. However, the amendments would give the courts much greater scope to intervene or to be approached to intervene.
I shall deal with the amendments in turn. Although they all have the same thrust, it is necessary to consider them individually. The noble Lord, Lord Goodhart, tabled comparable amendments in Committee to Amendments Nos. 20 and 23. He made the correct observation about them. They relate to the safeguards in Clause 3 of necessary protection, rights and freedoms and fair balance. That is carried over from the 1994 Act. The provision has worked well and the committees have been vigilant to police it. The noble Lord, Lord Goodhart, pointed out today that the Minister reaching an opinion is the starting point. That happens before any consultation takes place and before the matter comes before any committee. There
are provisions to make sure that if the consultation is unfavourable, the adverse results of consultation are brought before the committees of both Houses. The committees then have the duty of considering whether the Minister's opinion is reasonable and deciding whether the proposal before them removes any necessary protection, as in Clause 3.Removing the Minister's opinion from the Bill would leave the power to decide to the courts, not to Parliament. I do not want to get involved, as a mere market researcher, in a disagreement between the noble Lord, Lord Borrie, and the noble Lord, Lord Kingsland, although it sounded to me as if it was abusing plaintiff's attorney, for which I was grateful. Surely the protection for the public is that the Minister has to make a judgment before going to consultation and before the matter comes before Parliament, and that the Minister is accountable to Parliament.
Amendment No. 14 deals with such incidental, consequential, transitional or supplemental provision as the Minister thinks appropriate. The question of what is incidental, consequential, transitional or supplemental is objective. There are examples in legislation that show what that means. If the Minister does not determine what provision to include, that leaves open the question of who is to decide on the appropriateness, which is, by definition, a matter of judgment.
Amendments Nos. 29 and 30 relate to whom a Minister consults about a proposal. It is not possible for a Minister to know whether a particular body is representative of a certain group of people. He can only form an opinion. The starting point has to be someone's opinion. On Amendment No. 32, the Minister thinking that it is appropriate to vary the proposals is a factual precondition. If the Minister thinks that it is appropriate to vary the conditions, he must undertake such further consultation as appears necessary. It would be nonsensical to remove the reference to what the Minister thinks. Amendments Nos. 33 and 34 are purely consequential.
We have not learned any more from this debate than we learned from the same debate in Committee. The Government's position is the same: the public interest is best protected by the Minister exercising his duty to form an opinion and that being tested by consultation and by the parliamentary process. The amendments would remove that.
Lord Kingsland: My Lords, I am most grateful to the Minister for his reply. I thank the noble Lord, Lord Borrie, very much for giving my article in Counsel some publicity. I doubt that it would have received it otherwise. That article is about the relationship between the courts and Parliament in its primary legislative mode in the particular context of the Human Rights Act 1998. We are considering, here, a delegated legislative procedure in which most of the safeguards depend on particular conduct in your Lordships' House, not on procedures set out in detail in the statute. With great respect to the noble Lord, Lord Borrie, the parallel is not fair, although I have no objection to his attempting to draw it.
I am grateful to the Minister for setting out the Government's position clearly on each amendment. The Opposition disagree with it and we would like to test the opinion of the House.
5.29 p.m.
On Question, Whether the said amendment (No. 14) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 152.
Alton of Liverpool, L.
Astor, V.
Attlee, E.
Biffen, L.
Boardman, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L. [Teller]
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Cox, B.
Cranborne, V.
Cumberlege, B.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Eden of Winton, L.
Elliott of Morpeth, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Goschen, V.
Gray of Contin, L.
Hanham, B.
Hanningfield, L.
Haslam, L.
Hayhoe, L.
Henley, L. [Teller]
Holderness, L.
Home, E.
Howe, E.
Howe of Aberavon, L.
Jenkin of Roding, L.
Kimball, L.
Kingsland, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lucas, L.
Luke, L.
Lyell, L.
Monson, L.
Mowbray and Stourton, L.
Moynihan, L.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Oxfuird, V.
Park of Monmouth, B.
Patten, L.
Peel, E.
Rawlings, B.
Rees, L.
Renfrew of Kaimsthorn, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Rogan, L.
Saatchi, L.
Seccombe, B.
Selborne, E.
Skelmersdale, L.
Stewartby, L.
Stodart of Leaston, L.
Strathclyde, L.
Swinfen, L.
Thomas of Gwydir, L.
Trefgarne, L.
Vinson, L.
Waddington, L.
Acton, L.
Addington, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B.
Ampthill, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L. [Teller]
Castle of Blackburn, B.
Christopher, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Craig of Radley, L.
Crawley, B.
Currie of Marylebone, L.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Desai, L.
Dixon, L.
Dubs, L.
Elder, L.
Erroll, E.
Evans of Parkside, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gale, B.
Geraint, L.
Gibson of Market Rasen, B.
Gilbert, L.
Gladwin of Clee, L.
Goldsmith, L.
Goodhart, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greaves, L.
Grenfell, L.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Haskel, L.
Haskins, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Jacobs, L.
Janner of Braunstone, L.
Jay of Paddington, B. (Lord Privy Seal)
Jeger, B.
Jenkins of Putney, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Listowel, E.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Miller of Chilthorne Domer, B.
Molloy, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Newby, L.
Orme, L.
Parekh, L.
Patel, L.
Peston, L.
Phillips of Sudbury, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Roper, L.
Russell, E.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Shepherd, L.
Shore of Stepney, L.
Shutt of Greetland, L.
Simon, V.
Slim, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tordoff, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Wallace of Saltaire, L.
Walmsley, B.
Weatherill, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Resolved in the negative, and amendment disagreed to accordingly.
5.40 p.m.
Clause 2 [Meaning of "burden" and related expressions]:
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