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Lord Kingsland moved Amendment No. 15:

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The noble Lord said: My Lords, in moving Amendment No. 15 I shall speak also to Amendments Nos. 16 and 17. In Committee the noble and learned Lord, Lord Falconer, explained that the use of the word "includes" was deliberate as paragraphs (a) and (b) which followed were intended to include examples of burdens only, without restricting the natural meaning of the word. He gave as examples of burdens which would not fall within (a) and (b) but which would, none the less, be burdens within the natural meaning of the word, outright prohibitions and appeals mechanisms.

I have some difficulty with that analysis. First, the structure of paragraph (a) is such as to indicate a broad approach to the definition. The words used are effective to define wide categories, not mere instances. Secondly, I do not believe that an outright prohibition is anything other than a restriction within the meaning of paragraph (a), likewise an appeals mechanism. The breadth of definition in paragraph (a) seems to me to catch both.

We are left with the clear impression that the use of the word "includes" is intended as some form of escape clause. I have no objection to the use of an escape clause if its use is warranted, but given the broad definition in paragraph (a), I can see no reason why such an escape clause should be necessary.

I can deal with Amendments Nos. 16 and 17 together. From the website of the Cabinet Office, and in particular the sites which give details about the Bill and potential regulatory reform orders, we can soon expect to see a package of business-friendly initiatives, reform of outdated, overlapping and over-burdensome legislation; clearer and better-targeted legislation and a climate that encourages thriving business.

I am sure that your Lordships are excited by those prospects. However, it is not entirely clear from the website--in fact, it is not clear at all to the Opposition--that those new initiatives will allow Ministers to make regulatory reform orders which permit Ministers, government departments and local authorities to incur further expenditure.

I would be grateful, therefore, if the Minister would make clear, to the extent that he can, whether or not the Government intend to use the Bill for the purpose of making regulatory reform orders that remove conditions or limits which prevent the incurring of expenditure. I beg to move.

Lord Falconer of Thoroton: My Lords, we debated the first issue in Committee; namely, is it right to say "includes" or should the definition in 2(1)(a) be exhaustive? The approach that we have taken is the one adopted in the 1994 Act, where the word "includes" was used and not the word "means", which is the word proposed by the noble Lord, Lord Kingsland. I am unaware of that causing difficulty in terms of definition. The noble Lord skated over skilfully, but, with the greatest of respect, inadequately, the argument that had been advanced in

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Committee by the Government. When it was said in Committee that the appeal procedure that he wanted to include might be a burden the noble Lord said that the word "restriction" includes an appeal procedure. I do not think for one moment that that is right. If that is not right, one can see that it would be far more sensible, when one defines "burden", to say that burden includes the things set out but leave it to Parliament to define "burden" in its ordinary, natural meaning. Ministers, the scrutiny committees and both Houses of Parliament will have an opportunity to consider the matter.

With the greatest respect to the noble Lord, I do not think that he has addressed the fact that the word "burden" has worked well, that it is sensible; and that it is a word that has an ordinary meaning. He has not dealt with the arguments advanced in Committee.

As regards the second group of amendments, are there occasions when we would want to remove conditions which prevent expenditure? Yes, there are. The example that was given was conditions attached to the granting of vaccine-damage compensation. It would be our intention specifically to make it easier for Ministers to incur that expenditure for the benefit of the parents and the vaccine-damaged child.

Lord Kingsland: My Lords, I am grateful to the Minister for his response to Amendments Nos. 16 and 17 and for the particular example he gave. He will not be surprised to hear that I remain unhappy with his explanation in respect of Amendment No. 15. It is clear on the face of the Bill that a restriction is a burden. If I follow his argument correctly, it is therefore strange to find it as part of the definition of "includes". I have no objection to the noble and learned Lord having an escape clause to sweep up those circumstances that are not defined. However, in my submission the proper form of legislative drafting is first to define "burden" and then at the end to provide a clause or expression which picks up all those instances which are not dealt with. Does the noble and learned Lord not agree that that would be a happier way of achieving the objective he seeks?

Lord Falconer of Thoroton: My Lords, perhaps I may say to the noble Lord that I do not. It is sensible to say that Parliament, the committees and Ministers are well able to understand the word "burden". Too great a complexity in how we define something means that we would depart from the ordinary, natural meaning of the word.

Lord Kingsland: My Lords, I am grateful to the noble and learned Lord. The word "burden" is crucial to the function of the Bill. In our submission it therefore merits specific definition. That is why I continue to be unhappy with the reply given by the noble and learned Lord. I shall reflect on the matter and may return to it at Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 and 17 not moved.]

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Lord Falconer of Thoroton moved Amendment No. 18:

    Page 2, line 35, leave out ("only affects") and insert ("affects only").

The noble and learned Lord said: My Lords, in Committee, the noble Baroness, Lady Buscombe, raised the issue of the discrepancy in the placing of the word "only" in Clause 1(5)(c) when compared with Clause 2(1) where the words come in a different order.

The complexity and brilliance of the argument raised by the noble Baroness indicated the problems that can arise where words intended to mean the same thing come in a different order. I do not share her concerns, because in a number of respects I failed adequately to follow them. However, the brilliance of the argument requires that the amendment be made so that nobody else can seek to take advantage of a difference in the order of the words. In those circumstances, we have made it the same in both places. I thank the noble Baroness for drawing this matter to our attention. I hope that in those circumstances she agrees to the amendment. I beg to move.

Baroness Buscombe: My Lords, as noble Lords will see, I am eager to thank the Minister and pleased that he has taken the time to explore and consider the points. I am happy to accept and support the amendment.

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

Clause 3 [Limitations on order-making power]:

[Amendment No. 20 not moved.]

Baroness Buscombe moved Amendment No. 21:

    Page 3, line 2, after ("opinion") insert ("that the purpose of the order is not politically controversial and").

The noble Baroness said: My Lords, no one has yet succeeded in identifying those areas of legislation which are appropriate candidates for regulatory reform, although in Committee we were told by the noble Lord, Lord McIntosh of Haringey, that if anyone came up with an adequate definition the Government would consider it seriously.The elephant test showed us that although we could not define a suitable candidate we would know it when we saw it. In our view, that is not satisfactory because an attempt at definition, as an attempt, defines nothing. It seems to me that if we cannot define what our elephant is, we should at least attempt to define what it is not.

We have repeatedly been assured that the Bill will not be used to legislate matters which are politically controversial. However, nowhere in the Bill does that assurance appear. That omission is easily remedied. Let the Minister concerned be required to be of the opinion that the matter is politically non-controversial.

If it is the intention of the Bill to avoid matters of political controversy, no Minister should be permitted to bring forward legislation without first having satisfied himself that it is so. The amendment ensures

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that in future any Minister wishing to use the Bill will be bound by the assurances given to your Lordships' House.

I am aware that an order may be deemed controversial without that controversy having a political aspect. I considered whether it might be appropriate to broaden the exclusion which the amendment would provide but thought better of it. It would not be desirable that reform could be prevented in such circumstances and for that reason I have adopted the phrase used by the noble and learned Lord the Minister.

There is the added safeguard that by the time the Minister comes to make his order he will have gone through the consultative procedures required by Clause 5. Whether or not the order taken as a whole is politically controversial is a matter about which by that stage he will be well qualified to have an opinion. No doubt the Minister's opinion could then be subject to parliamentary scrutiny in the normal way. I beg to move.

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