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Baroness Hamwee: The Minister's reply deserves re-reading quietly. I am left with a question about the retrospective effects of secondary legislation, not only in principle but because I am working through Clause 101 to establish what secondary legislation there may be which would enable the Secretary of State to deal with the concerns we all have. I shall not take up the time of the Committee by going through it orally but it does not seem to have the necessary scope. I should like to know how it will be possible because the order-making powers referred to do not seem relevant to the issue. Perhaps the Minister will deal with that matter on Report.

Lord Rooker: Leave it with me. I shall take further advice and, if need be, I shall write to the noble Baroness.

Lord Hanningfield: I agree with what the noble Baroness, Lady Hamwee, said about retrospection, which does not seem to apply to this Bill but to previous legislation and previous activities of local government. We are not sure why that should be so. I agree that we should explore the issue further. Perhaps the Minister will clarify the matter before we reach further stages of the Bill. I shall not move my amendment.

Baroness Hamwee: I beg leave to withdraw whatever amendment I started with.

Amendment, by leave, withdrawn.

[Amendment No. 195A not moved.]

Clause 96 agreed to.

Clause 97 [Regulation of trading powers]:

[Amendment No. 196 not moved.]

[Amendment No. 196ZA had been withdrawn from the Marshalled List.]

[Amendments Nos. 196ZB to 196B not moved.]

Clause 97 agreed to.

Clause 98 [Power to modify enactments in connection with charging or trading]:

Lord Rooker moved Amendment No. 197:

The noble Lord said: In moving Amendment No. 197, I shall speak also to Amendments Nos. 198 and 199 and set out why I oppose Amendment No. 198A.

Amendments Nos. 197, 198 and 199 seek to implement recommendations made by the Delegated Powers and Regulatory Reform Committee's 16th

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report in relation to Clause 98, which provides the power to modify enactments—including future enactments—that may prevent or obstruct best value authorities from charging or doing things for commercial purposes.

Amendment No. 197 seeks to implement the Committee's recommendation that it would not be appropriate for the power to be used to repeal Clauses 94(2) or 96(2) of the Bill. Amendment No. 198 is prompted by the Select Committee's comment that future enactments were not expressly covered in Clause 98(2) whereas they were in Clause 98(1). The amendment rectifies that situation by bringing the two subsections in line with each other. Amendment No. 199 also follows a recommendation of the Select Committee and seeks to bring the drafting of Clause 98(9) in line with that for order-making powers elsewhere in the Bill. It will ensure that no doubts could arise as to how Clause 122(5), as proposed to be amended by government Amendment No. 223—which we shall discuss later—applies in relation to instruments under Clause 98.

Amendment No. 198A is not acceptable. It seeks to prevent Clause 98 from being used to modify Section 50 of the Disability Discrimination Act 1995. However, Section 50 of the 1995 Act was repealed with effect from 25th April 2000 by Section 14(2) and Schedule 5 to the Disability Rights Commission Act 1999.

I am aware that some disability groups are concerned that Clause 98 might be used so that, for example, the requirements of the Disability Discrimination Act 1995 would be disapplied in relation to the charging and trading powers set out in Clauses 94, 96 and 97.

First, as the Committee will be aware, any proposals to use Clause 98 to modify an enactment would initially be subject to consultation with any person who appears to be representative of the interests likely to be affected by such proposals. If following consultation the proposals were to be implemented, they would then be subject to the rigorous scrutiny of both this House and another place as set out in the affirmative procedures contained in Clause 99 of the Bill.

Secondly, the Government have no plans to use Clause 98 to modify the Disability Discrimination Act 1995. In fact the Government are seeking to improve the position of disabled people, not to disadvantage them.

We are committed to comprehensive and enforceable civil rights for disabled people. Much of the Disability Discrimination Act is already in place and in October 2004 we will be implementing the final phase of Part 3 of the Act. This requires service providers to tackle the physical barriers to access which might otherwise make it impossible or unreasonably difficult for disabled people to use their service. In addition, subject to parliamentary approval, we will introduce significant new rights under the employment provisions of the Disability

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Discrimination Act using secondary legislation. Indeed, draft regulations were debated and approved by the House on 10th June.

The Secretary of State for Work and Pensions has also announced his intention to publish a draft disability Bill later this year with measures to further extend civil rights for disabled people.

Accordingly, I hope that the Committee will agree that Clause 98(10) should not be removed from the Bill and that there is no need for Clause 98 to be restricted in relation to the enactments to which it may apply. With those reassurances, I hope that the noble Baronesses will be content and not move their amendment, which they have so far not spoken to. I beg to move.

Baroness Hamwee: The Minister referred to Amendment No. 198A, which I was requested to bring forward by a disability organisation. In its briefing it stated that such a power could be very dangerous in the hands of the wrong Minister. The organisation did not mean the noble Lord, Lord Rooker.

Baroness Hanham: How do you know?

Baroness Hamwee: It would have said so more strongly. The Minister circulated a letter in regard to withdrawing certain amendments—we have not yet come to them—in which he referred to my Amendment No. 199A. He explained the error of my ways in tabling the amendment. I spotted that yesterday, which is why we have withdrawn the amendment. We just about got there in time. The amendment is in this group and that is why I refer to it now.

On Question, amendment agreed to.

Lord Rooker moved Amendment No. 198:

    Page 53, line 2, after "enactment" insert "(whenever passed or made)"

On Question, amendment agreed to.

[Amendment No. 198A not moved.]

Lord Rooker moved Amendment No. 199:

    Page 53, line 28, after "the" insert "statutory instrument containing the"

On Question, amendment agreed to.

[Amendment No. 199A had been withdrawn from the Marshalled List.]

Lord Bassam of Brighton moved Amendment No. 200:

    Page 53, line 32, leave out paragraph (a).

The noble Lord said: Amendment No. 200, along with Amendment No. 202, would make subject to the affirmative procedure orders which extend orders removing barriers to charging and trading to individual authorities or particular descriptions of authorities.

When originally considered, the amendment was designed to match one of the Delegated Powers and Regulatory Reform Committee's recommendations.

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Having brought it forward, we are now in the embarrassing position of wanting to withdraw the amendment and also Amendments Nos. 202, 205, 206, 207, 208 and 209, which we believe are unnecessary and would mean significant delays to local authorities benefiting from new freedoms and flexibilities.

We are in the odd situation where we thought we were being helpful—in fact we were being helpful technically—but, on reflection, we have ended up putting ourselves in a position where we are running counter to the overall thrust of the legislation to provide freedoms and flexibilities.

If the Committee are content for me to withdraw Amendment No. 200, I will not move the other amendments at this stage.

Lord Hanningfield: I am content to accept the noble Lord withdrawing the amendment and not moving the others.

Amendment, by leave, withdrawn.

6.45 p.m.

Lord Hanningfield moved Amendment No. 201:

    Page 53, line 41, leave out "authorised, but" and insert "not prohibited from providing and"

The noble Lord said: The purpose of this technical amendment is to ascertain the extent of the powers provided in this clause. Does the definition of "discretionary service" in Clause 98(11) mean that this power can apply to any service that local authorities have not expressly been prohibited from supplying? Or is the definition narrower?

If the definition is regarded as being narrower than that, can the Minister give examples of services that fall outside the definition? If he cannot, will he accept that to all intents and purposes the two definitions are the same?

While speaking to the amendment on this clause, can the Minister say how far the Government are likely to go in exercising the discretion in Clause 98 to modify or exclude current restrictions on trading in legislation? We have heard many promises about such freedoms but we have seen a good deal less action. For example, is it the Government's intention to free up the system to enable Essex County Council to market its social services equipment stores regionally, including directly to the public, with a view to making a profit? That would enable us to support further social care needs throughout the county generally.

If the Minister can say today that it is precisely such freedoms that the Government have in mind, and if he can say that there is a will across government to make this happen, it will be welcomed by all local authorities. I beg to move.

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