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Lord Peyton of Yeovil: My Lords, perhaps my noble friend will forgive my intervention. I shall not detain the House for long. When I first saw the amendment, I thought that my noble friend was being rather unkind to the Government, who were showing a becoming modesty and humility. It is not often that administrations come to Parliament and say that they admit the possibility that a Bill may contain a whole mass of inconsistencies and anomalies. I thought that the Government deserved a note of praise for that.
However, my noble friend has succeeded in causing me to have second thoughts. If the Government are admitting that Bills can be strewn with inconsistencies
and anomalies they ought, first, to take an early opportunity humbly to express regret that that is so and to explain the inconsistencies that need to be removed, and then to remove them with at least some ceremony, not merely with a stroke of the pen saying, "We don't like this". On second thoughts, I agree with my noble friend that the Government are making their own lives a bit too easy instead of, as I thought originally, making a humble admission of the fact that they can be wrong, welcome though that is.
Baroness Buscombe: My Lords, I rise to speak in support of my noble friend Lord Goschen. I do so, not because I disagree with the purpose envisaged by the words "inconsistencies and anomalies", but because it seems to me that this is yet another example in the Bill of an attempt to adopt the same legislative approach to matters of a fundamentally different character.
Paragraphs (a), (b) and (c) of Clause 1(1) are concerned with burdens: their removal, their reduction, their introduction and their reintroduction. However, that does not apply to paragraph (d); it is concerned with inconsistencies and anomalies. Burdens are not mentioned, save that the legislation, which is to be the subject of a regulatory reform order (the purpose of which is to remove inconsistencies and anomalies), must be such as to impose burdens. That is all. There is not even any need for there to be a casual link between, on the one hand, the burdensome nature of the legislation and, on the other hand, the inconsistencies and anomalies. They should merely appear in the same legislation.
Legislation is rarely internally inconsistent. What is to happen if the burden is created by one Act, but the inconsistency by another Act that does not create a burden at all? I fear that I shall be told by the Minister that, of course, the Government will not use this procedure other than to strike down bad regulation, or regulation in need of reform where inconsistencies and anomalies are found. However, I have to say that that is not an acceptable answer for it is circular in its nature.
Paragraph (d) of Clause 1(1) has every appearance of being a provision that has been added to this clause, not because that is where it belongs but because that is the least inconvenient place to put it. So it seems that, yet again, if we are to have any sort of threshold test for the exercise of this wide-ranging ministerial power, we are to be driven back upon the elephant test. Indeed, I must express my concern that the power contained in the Bill is too widely drawn and too ill defined to provide adequate safeguards against abuse.
4 p.m.
Lord Campbell of Alloway: My Lords, I support this amendment. I apologise to the Ministers on the Front Bench opposite because I promised both of them that I would not speak at all. Indeed, there did not seem much object in doing so. I was unaware that my noble friend Lord Goschen was going to table this amendment. I shall take very little time in what I have to say.
We are talking about a sort of indefinable catch-all phrase that really enhances the unprecedented powers of the executive. It is wholly without any form of judicial control. For the reasons that have bored your Lordships in the past, I am bound to support the amendment. If my noble friend divides the House, I shall support him in the Lobby.
Lord Borrie: My Lords, one of the odd elements of the speech of the noble Viscount, Lord Goschen, was the fact that twice in the early part of his remarks he said that this provision would enable the Minister responsible to deal with what he would call "inconsistencies" and "anomalies" just because they would be considered so to be, "in the opinion of the Minister". Noble Lords will recall that during certain stages of the Bill I drew attention to Clauses 3 and 5 where phrases like, "in the opinion of the Minister", or, "if it appears to the Minister", appear. We debated those matters and the Bill stands in its present form for very good reason; namely, that it should be dependent on the opinion of the Minister.
However, it seems to me that there must be some objective test applicable in the case of Clause 1 which does not leave the matter to a Minister's opinion. The clause states that a Minister may make an order for the purpose of reforming legislation which has the effect of imposing burdens, but that he must do so with a view to several following considerations--one being,
- "the removal of inconsistencies and anomalies".
Viscount Goschen: My Lords, I am grateful to the noble Lord for giving way. He is quite right on the point regarding the opinion of the Minister. I do not dispute that for a moment. However, it does apply as regards tiny inconsistencies. Indeed, it is like the point raised by my noble friend Lord Ferrers on a previous occasion regarding "an" versus "a" hereditary Peer. This might, perhaps, be ideally suited for such an argument. It could, for example, be said to be inconsistent for football supporters to be banned from travelling overseas to watch their team play, but not rugby or cricket supporters. Those are the sort of circumstances where a Minister could say, "This is an anomaly and, therefore, I am bringing forward an order". It goes rather wider than the type of "micro, micro" issue, as the noble Lord, Lord Borrie, quite rightly pointed out in his remarks.
Lord Borrie: My Lords, my noble friend the Minister will correct me if I am wrong, but I believe that one of the purposes of the Bill was outlined on Second Reading as follows. When you have a whole range of primary or secondary legislation that has grown up over the years leaving a whole lot of inconsistencies and/or anomalies that necessitate the making of a regulatory reform order, that action may be justified simply because those inconsistencies cause
confusion. That confusion among businessmen and other people, who are subjected to a range of regulations on a particular subject, calls for the removal of the difficulty by removing not just burdens but also inconsistencies. When those businessmen are legally advised, and so on, they are told, "Well, this regulation says this, but that somewhat later regulation says the opposite". It is almost impossible for a lawyer to tell which of the two is correct. Getting rid of anomalies and inconsistencies is surely wholly desirable. Given the fact that the noble Lord kindly agreed to my first point--namely, that it is not simply dependent on the view of the Minister--there must, objectively speaking, be an anomaly.
Lord Lawson of Blaby: My Lords, I am surprised that, for someone as distinguished as he is, the noble Lord seems to be labouring under a misapprehension. I believe that the point that my noble friend is quite rightly putting to the House is not that inconsistencies and anomalies should remain on the statute book--none of us is opposed to the removal of inconsistencies and anomalies--but the question of the proper way to do this. There is a real danger under this legislation that matters that should not just be passed without any parliamentary scrutiny will be able to be so passed under the umbrella of the words, "inconsistencies and anomalies". This House must be jealous in that respect, remembering, as always, that there is no written constitution and no constitutional court to which we can appeal. Of course, there is judicial review, but that involves a whole lot of extra, elaborate apparatus and, indeed, imposes more burdens on individuals than applies to the present position without this innovation.
Lord Borrie: My Lords, I am not sure whether than was an intervention or a speech. However, if I take it as an intervention, there is a great deal of what the noble Lord, Lord Lawson, said with which I entirely agree. At several stages during the passage of this Bill both in Committee and on Report Ministers were asked to explain where the parameters are for a Bill which, on the face of it, looks very broad. Important statements have been made that it is not intended, for example, to use the Bill for controversial political matters. It is a Bill that is, in a sense, a very technical piece of legislation. However, it will greatly help in removing such difficulties experienced by businessmen and others who are subject, as we all know, to regulation of which they either disapprove or which they regard as overburdensome. Surely it is worth while to get rid of inconsistencies and anomalies. I give way.
Lord Campbell of Alloway: My Lords, I am obliged. Does the noble Lord accept that that is wholly beside the point? The intentions of government are not a way in which one approaches a Bill. The undertakings of government as to how to use precision are totally immaterial. We have to look at what use might be made of the provision, not by this Government but by any government. Does not the noble Lord accept that?
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