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("( ) any Act (whether or not in force) which was passed before this Act is passed and at least two years before the day on which the order is made,
( ) any Act (whether or not in force) which was passed after this Act is passed and at least two years before the day on which the order is made and which contains a provision that it shall be deemed "legislation" within the meaning of this subsection, or").

The noble Lord said: My Lords, the noble Lord, Lord McIntosh of Haringey, helpfully pointed out a difficulty in our earlier amendment to this paragraph, which we have sought to resolve at Third Reading. The amendment would help to define what the elephant test cannot define--the type of legislation to which the power granted by the Bill applies.

We believe that all future legislation that contains what is regarded as regulatory content should identify itself as such. The Government have repeatedly stressed that the Bill will not be used for politically controversial measures. It must follow that the inclusion of such a provision in primary legislation would be non-controversial. I beg to move.

Lord McIntosh of Haringey: My Lords, I am glad that I finally persuaded the noble Lord, Lord Kingsland, that taking out seven years of legislation between 1994 and 2001 was not a particularly good idea. However, I am afraid that the issue is not as simple as he seems to think.

19 Feb 2001 : Column 524

Throughout the passage of the Bill, we have discussed at great length the procedures and safeguards surrounding the order-making power, including public consultation, parliamentary scrutiny, the objective of proportionality and the tests contained in Clause 3. Those are substantial hurdles, which go considerably further than those in the Deregulation and Contracting Out Act 1994. They are the best gatekeepers for the power.

I am sure that the noble Lord recognises that it is rare for a Bill to be prepared with the express intention of being reformed in some years. The amendment would result in the danger of many Acts for which the order-making power would be suitable being omitted from the definition of eligible legislation. A valuable and universally welcomed reform could become impossible because one--and only one--of a large number of Acts concerned did not contain the magic formula in the amendment, even if the changes required to that Act were small and uncontroversial.

If Parliament feels strongly about an issue, there is nothing to stop it saying that a particular Act should not be subject to the order-making process. There would be no need to amend the Bill for that. However, I see no case for contracting in, as the amendment would do.

As things stand, Parliament can decide whether an area is suitable for reform each time a regulatory reform proposal comes before it. Surely that is the most sensible route. The Bill will be able to make substantial legislative reform, while still providing stringent and transparent safeguards. I am sorry to say that the amendment would add nothing to those provisions.

Lord Kingsland: My Lords, on the one hand the Government have asserted that the Bill is not intended to deal with controversial matters, but on the other hand they have consistently refused to accept concrete controls that would ensure that it did not affect controversial matters. In those circumstances, I wish to test the opinion of the House.

4.34 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 80; Not-Contents, 149.

Division No. 2

CONTENTS
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Blaker, L.
Boardman, L.
Bowness, L.
Brougham and Vaux, L.
Burnham, L. [Teller]
Buscombe, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Cope of Berkeley, L.
Courtown, E.
Cox, B.
Crickhowell, L.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Fookes, B.
Freeman, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Goschen, V.
Gray of Contin, L.
Hanham, B.
Hayhoe, L.
Henley, L. [Teller]
Higgins, L.
Hogg, B.
Home, E.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Jenkin of Roding, L.
Kingsland, L.
Kirkham, L.
Lawson of Blaby, L.
Lucas, L.
Luke, L.
Lyell, L.
Macfarlane of Bearsden, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Naseby, L.
Noakes, B.
Northesk, E.
Oxfuird, V.
Palmer, L.
Park of Monmouth, B.
Peel, E.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Rawlinson of Ewell, L.
Renton, L.
Roberts of Conwy, L.
Seccombe, B.
Selborne, E.
Strathclyde, L.
Swinfen, L.
Tebbit, L.
Thomas of Gwydir, L.
Trumpington, B.
Vinson, L.
Vivian, L.
Wade of Chorlton, L.
Wilcox, B.
Young, B.

NOT-CONTENTS
Acton, L.
Addington, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Avebury, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Bernstein of Craigweil, L.
Borrie, L.
Bradshaw, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Bruce of Donington, L.
Burlison, L.
Carter, L. [Teller]
Christopher, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crawley, B.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dholakia, L.
Dixon, L.
Dubs, L.
Elder, L.
Elis-Thomas, L.
Evans of Watford, L.
Ezra, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Richmond, B.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hooson, L.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B. (Lord Privy Seal)
Jeger, B.
Jenkins of Putney, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Lipsey, L.
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.
Maddock, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mishcon, L.
Molloy, L.
Morgan, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Nicol, B.
Northover, B.
Orme, L.
Patel of Blackburn, L.
Paul, L.
Peston, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L.
Rodgers of Quarry Bank, L.
Sandberg, L.
Sawyer, L.
Scotland of Asthal, B.
Serota, B.
Sharp of Guildford, B.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Simon of Glaisdale, L.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tomlinson, L.
Tordoff, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Wallace of Saltaire, L.
Walmsley, B.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

19 Feb 2001 : Column 526

4.45 p.m.

Clause 2 [Meaning of "burden" and related expressions]:

Baroness Buscombe moved Amendment No. 4:

Page 2, line 32, leave out ("or preventing the incurring of expenditure").

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 5 and 6. Many of us will have read with considerable interest articles in our newspapers this weekend concerning a Bill currently "working its way through Parliament" which is being hailed by the Government as the Bill that will get rid of all unwanted red tape. I must confess that I find it difficult to believe that the Bill referred to is this one.

What does not surprise me is that there is no mention by government Ministers and noble Lords opposite in the press of the considerable increase in executive power afforded by the Bill, including an enabling power which will allow Ministers, government departments and local authorities to incur further expenditure.

The Minister made it very clear on Report that there would be,

"occasions when we would want to remove conditions which prevent expenditure".--[Official Report, 13/2/01; col. 184.]

and the example used was the condition attached to the granting of vaccine damage compensation, such that it would be easier for Ministers to incur that expenditure for the benefit of the parents of a vaccine-damaged child.

19 Feb 2001 : Column 527

That is an example with which we should have no argument. While we support extra spending on things that matter such as schools, hospitals and police officers, this clause raises serious alarm bells at the possibility of Ministers using the Bill as a quietly convenient way to waste taxpayers' money--spending by stealth on matters which are not deemed by Ministers to be of a politically controversial nature and therefore ripe for a regulatory reform order.

For example, is it politically controversial for the Government to have spent £300,000 of hard-earned taxes on a poetry competition designed to make people more aware of the provisions of the European Convention on Human Rights? It is our view that while the competition may be a tame idea, the degree of expenditure is clearly controversial.

Perhaps it matters not to the Government how much money is wasted so long as the Minister deems the initiative to be of a politically non-controversial nature and, therefore, appropriate for a regulatory reform order.

Will the Minister concede that as currently drafted the Bill could easily be used by the executive as a licence to spend? If the Government are not minded to accept our amendments, will the Minister agree with me that there should be some clearly defined parameters on the face of the Bill for the use of that power? I beg to move.

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