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Lord Williams of Elvel: The Committee will be grateful to the noble Lord, Lord Lucas, for introducing this amendment. It is particularly appropriate since the Committee has just decided to allow ministerial guidance to be apparently free from any control by Parliament.

I should have to say that we should like to go rather further than the amendment tabled by the noble Lord, Lord Lucas, as I am sure he will understand. Later in the Bill, we shall oppose the Motion that Clause 37 stand part in its entirety. In so far as the noble Lord's amendment is in mitigation of what we regard as being the unpleasant effects of Clause 37, we support it. However, if Members of the Committee decide to include Clause 37 in the Bill as it stands, I would very much prefer the noble Lord to move his amendment on Report rather than in Committee. If the Committee decides that Clause 37 should stand part of the Bill—which we will oppose—we shall do what we can to mitigate the effects on Report. I believe that the noble

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Lord's amendment is designed to mitigate such effects. Therefore, to that extent, I support it. However, there is a major issue which rides above the amendment.

Lord Renton: I regret to say that I cannot support my noble friend's amendment, not only because it contains a rather long split infinitive, with the insertion of no fewer than seven words, but also because it assumes that Clause 4 as it stands will remain part of the Bill. As I have already mentioned, I hope that Clause 4 will not do so.

Lord Howie of Troon: I doubt that the split infinitive will kill the issue because I imagine that the split infinitive can be unsplit either on Report or later. I hesitate to dissent from my noble friend on the Front Bench who I promised on Second Reading to support as much as I could, but surely if we pass the amendment now it would be every bit as good as passing it on Report. However, I may be mistaken in that respect. I shall leave the issue on one side.

It strikes me that Clause 37 is a very curious provision. It is one which, I must confess, I find a little difficult to understand—whether or not its infinitives are split or unsplit. I believe that the amendment moved by the noble Lord, Lord Lucas, is an improvement on a very difficult clause. However, I am willing to be advised further by my noble friend on the Front Bench.

Baroness Hamwee: I, too, find this to be a most difficult amendment. Like other noble Lords, I have a distaste for Clause 37. However, if Parliament decides that Clause 37 should remain in the Bill, then, for precisely the reasons that we discussed earlier, it seems to me that it should not be for Ministers to give guidance saying that it should be disregarded.

Viscount Ullswater: The amendment of my noble friend Lord Lucas would require the guidance issued under Clause 4 to the agency to include advice on when it would be unreasonable to take account of costs and benefits, as required by Clause 37.

I am happy to be able to give my noble friend the assurance he is seeking that the agency will be given guidance on that subject. As I hope he has by now had the opportunity to see, the draft scoping guidance document that we discussed on Tuesday shows that it is indeed our intention to offer such guidance. I see that the noble Lord wishes to intervene. I give way.

Lord Williams of Elvel: I am much obliged. I am sorry to interrupt the Minister so early in his response, but can he tell the Committee whether the guidance will be permanent? In other words, the noble Viscount said that there would be guidance, but, as I understand Clause 4, Ministers may change their mind from time to time; for example, every 30 seconds. Is the Minister now saying that the guidance he mentioned to the noble Lord, Lord Lucas, will be permanent?

Viscount Ullswater: I am saying that it will be continuous. That may not be quite what the noble Lord is saying, but that is the word that I believe I should use.

As I was about to say as regards the guidance, paragraphs 1.7 and the second indent of paragraph 1.8 note that the detailed guidance document will include

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advice on how the agency is to have regard to likely costs and benefits, including social and environmental ones as well economic ones.

However, as I made clear on the first day of Committee, the Government believe that it would be dangerous to seek to overspecify on the face of the Bill the full contents of the guidance. I believe that my noble friend will agree that this may not, perhaps, be the right place for such a provision. Nevertheless, I am not criticising my noble friend for tabling the amendment on that account. I said that I believe a long list might appear to be exhaustive but not cover all the issues on which in future years we might need to give the agency guidance. In any case, it is unnecessary in practice to require Ministers to give guidance on costs and benefits. Section 1.8 of the draft document that I issued, showing the scope of the guidance, shows that the Government already intend to include advice on costs and benefits and the relationship to Clause 37. With that assurance, I hope that my noble friend will feel able to withdraw the amendment.

Lord Lucas of Chilworth: I am most grateful to my noble friend the Minister for his explanation and, indeed, for the assurance that he has given. However, when my noble friend says that the scope of the guidance will be "continuous", that rather suggests to me something of a moving feast, parts of which are to be enjoyed and other parts of which are not to be so enjoyed. It is somewhat difficult to see quite how that will pan out.

I feel that my noble friend Lord Renton was a little unkind to me. Guilty I have been of many errors in this Chamber and in our Committees over some years, but that has never stopped noble Lords from understanding the purport of my remarks. I do not believe that my noble friend Lord Renton, misunderstood that—

Lord Renton: No I did not.

Lord Lucas of Chilworth: I can only deal with matters as they appear at this moment. On giving some consideration to the Marshalled List, I noticed that several noble Lords had given notice of their intention to oppose Clause 37. However, we are a long way from that stage. I have to deal with matters as they stand at present.

However, I do not wish to delay Members of the Committee any further because, judging by the last Division, there is little likelihood of my being able to carry a Division on the amendment at this time. I should like to see how the Bill unfolds during the next five days or so. I may then wish to seek further clarification and, perhaps, put something along those lines on the face of the Bill. In the meantime, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments Nos. 39A to 41 not moved.]

4.45 p.m.

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Renton: I certainly do not wish to oppose the proposition that Clause 4 should stand part of the Bill. However, all I rise to do is to invite my noble friend the Minister to consider the discussions that have taken place so far this afternoon and to bear in mind the doubts expressed on all sides of the Committee about Clause 4 as it stands. It seems to me to be contrary to the good principles of legislation under which Parliament should express its intention clearly and Ministers should be guided by that intention.

To have a very wide power of giving guidance by letter or by some other means behind the back of Parliament and without Parliament being given the opportunity to say whether or not it is acceptable, seems to me to be going too far. For that reason, I implore my noble friend the Minister to say that, between now and Report stage, he will give further thought to Clause 4.

Lord Williams of Elvel: I support the sentiments expressed by the noble Lord, Lord Renton. It is perfectly true that serious reservations have been expressed about Clause 4 on all sides of the Committee. I tried to explain to the Committee that I thought the only way to get the Government to change their mind on Clause 4 was—if I may put it like this—by the power of the gun. But the power of the gun, I am afraid, went against me. There were various noble Lords who, I thought, might support an amendment which would in a sense compel the Government to reconsider Clause 4. However, that amendment was defeated. But, if the imploring of the noble Lord, Lord Renton, can change the Government's mind then I, for one, would be very happy. I hope that he will pay attention at least to his noble friend, if not to the Opposition.

Lord Crickhowell: I have just two points to make on the clause. They are points I have made both on Second Reading and, I think, in earlier Committee stage debates. At Second Reading I said that we were creating a partnership, a marriage, between the department and the agency and that I feared the department was insisting on the introduction of the word "obey". I suppose in a way this is the first of the marriage clauses. As I quite welcome the marriage, all I want to ensure is that the terms of the contract are correct.

It seems to me that there are two requirements for a sensible contract. One is that the guidance should always be published; the second is that before it is given the department should always consult with the agency. I was wrong, I think on two occasions, when I said that nowhere in the Bill is there any provision that the Government should consult the agency. That is not right. Under Clause 38, the clause concerning ministerial directions to the new agency, there is indeed a requirement that before giving a direction the Minister consults. There is also a requirement that the direction is published. All I am asking is that similar provisions should be written into this clause, so ensuring that the

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guidance is always published and that before it is finalised there is consultation, including consultation with the agency, and indeed with both agencies because we are dealing as well with the Scottish agency.


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