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Lord Peston: Before we proceed, is the Bill taking place in the 1995 Session of Parliament? The answer must be yes. When we were dealing with the legislation in

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1994, my question was: could it apply to any Bill coming forward later? The answer was no. Therefore, although I am always willing to accept that I missed some subtle point, I cannot see how the noble Lord, Lord Skelmersdale, can remotely argue that, having been told that that legislation could not apply to a later Bill, it applies to this. It is not a matter of saying, "Amend it or divide on it". I regard it as a deeper issue than that.

The Minister may say in reply: "I don't understand, this has nothing to do with what I think the Bill concerns". However, if the clause treats the Bill as if it had been passed last year, then I repeat my point that it is not a matter of amendment but of bad faith, going against the word of a Minister given to me and other noble Lords in the House. That is unacceptable in any circumstances. It is not a matter of divide or argue. I shall not take part in proceedings that are conducted in that way. I shall not do so.

Lord Skelmersdale: It is not for me to defend my noble friend on the Front Bench; but since, by imputation, I have been attacked for the speech that I have just made, I should like to respond. My understanding of the assurance given at that time in the context of the previous Bill is that that Bill was not prospective. Given that it was not, if we wish to bring any future Bill which subsequently becomes an Act of Parliament within the ambit of the Deregulation and Contracting Out Act, we have to do it in the future Bill. That is what is being done now.

Lord Ezra: It is difficult to reconcile what the noble Lord, Lord Skelmersdale, has just said with what is written in the report of the Delegated Powers Scrutiny Committee in relation to the Bill. The report says in black print on page 3:

    "This would appear to be a departure from the principles of the Deregulation and Contracting Out Act; and the Committee accordingly draws this power to the attention of the House as the House may wish to consider why, so soon after the passing of the Act, it is now necessary to extend its deregulation provisions in this way."

Earl Ferrers: Perhaps I may try to help the noble Lord, Lord Peston. I believe I understand his main anxiety and I do not like him to feel that there has been ill-faith or bad faith on behalf of the Government. He is quite right. When the Deregulation and Contracting Out Bill was introduced last year it referred to any Bills that existed then and to previous Bills. It is right that the deregulation order-making power did not apply to future legislation because Section 1(5) defined the legislation to which it applied as being all the existing legislation up to and including the 1994 Session. That was the position and the noble Lord is quite right about it.

I shall go into this in more detail later. Here we are asking Parliament to approve the fact that the principle could be used for this legislation as well. That is not the same as saying that the Deregulation and Contracting Out Act refers to all Bills in the future. It does not. It referred to those Bills and Acts of Parliament up to and including 1994.

The order-making power in the Deregulation and Contracting Out Act was limited to the application of Acts of Parliament that had been passed up to and including the last Session, because we realised that Parliament would not know whether it would apply to future legislation. It

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did not mean that the Government thought that the principles of deregulation were in some way inappropriate to future legislation—but rather that each case of future legislation should be considered on its individual merits. The purpose of this clause in the Bill is to give Parliament an opportunity to consider whether the deregulation power would be appropriate in this case.

This Bill is full of regulations and detail, and we took the view that, as in other areas, circumstances could well change in the future in such a way that there may be a need for a simplified procedure to repeal or amend legislative provisions where they become outdated or where, for example, technological advances mean that legislative provisions introduced in an earlier age (which is now) and overtaken by events or by technology, might no longer be appropriate. For example, remote meter reading by electronic means might become universal in future, such that provisions allowing for rights of entry to read meters would no longer be needed. Another example might be the provision for regulating the assessment of calorific value, which might become redundant if, for instance, devices for measurement in individual homes were to be available cheaply.

Parliament has already accepted that the provisions of the Deregulation and Contracting Out Act are appropriate for the 1986 Gas Act. The noble Lord's amendment, were it to be accepted, would have a very strange effect. It would mean that the deregulation provisions could apply to certain parts of the 1986 Act but not to those parts which are amended by this Act. The Deregulation and Contracting Out Act provides for such a power. However, the power is subject to stringent checks and balances. These include, as the noble Lord, Lord Peston, knows only too well, a requirement that the use of the order-making power must not remove any necessary protection; a requirement for special scrutiny of interested parties; and a requirement for consideration of any proposal by Select Committee in each House for 60 parliamentary days, and then by affirmative resolution of both Houses. These are very strong safeguards, and they were recognised as such by your Lordships when we approved this power a year ago and the very wide application that it has.

The point that I would make to the noble Lord—and this is where there could be a misunderstanding—is that he was right that that Act referred to what happened in 1994, and to what happened previously. What we are doing in this Act is not to abuse that, but to put it for Parliament to approve that there could be circumstances in the future where the application of that Act in this Bill would not be inappropriate. I do not think that that is bad faith. It is straightforward, one might say, honesty, in bringing to Parliament the suggestion that that Act has a purpose in this Bill, subject to your Lordships' approval.

Lord Peston: I am sure that the noble Earl is doing the best that he can, and we have conducted our proceedings most amicably. But it will not do. I went through the whole of that Act. I know exactly how it was argued. I raised the fears. I said that it was a constitutional outrage, and I made other remarks of that sort. I said that I thought it was wrong. But in particular I warned about the phenomenon that we have before us at the moment. I

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expressed my fear as to what would happen, and I repeat my point. I said that no Act would then be safe from these ad hoc powers. I was told that I was wrong. And I was not just mildly told, I was strongly told that I was wrong. If any Members of the Committee were present, they will remember how strongly I was told.

I must tell the noble Earl that if he is unhappy about some of the developments his duty is to bring before this Chamber an amendment to the Deregulation and Contracting Out Act. It should not be done in this manner. I will not have it. I repeat that I did not fight that Bill on constitutional grounds so strongly as I did fight it only for this provision to be slipped into this Bill and for anybody to accept the argument here that that clause can be put into any other Bill that ever comes before Parliament. That is just not acceptable.

I do not believe that the noble Lord, Lord Ezra, will divide the Chamber tonight on the amendment. I hope that he does not do so. But between now and Report stage this matter has to be dealt with at the highest possible level. Never mind everything else that we have done—we have argued in terms of whether we do or do not agree and I can live with defeat there—I cannot accept that this amendment is in any way other than crucial. I cannot understand how the noble Earl even remotely let his officials proceed in that manner. It is beyond me, given the Government's commitment and the commitment of other Ministers, the noble Earl's friends, in the debates. It simply must not be allowed to go ahead.

Half past nine on a summer evening is not the time to go into the issue. But between now and Report I intend to have this whole subject debated, either within the Gas Bill for a whole day or as a separate debate. On constitutional grounds this provision must not be allowed to go ahead. Those are the warnings that I place on the record. I wait to hear what the noble Lord, Lord Ezra, has to say.

Lord Ezra: Certainly this has turned out to be a most serious issue. The wording of the paragraph definitely gives cause for concern. The wording that is used could be used in any subsequent Act to get away from what was very clearly agreed. It says that:

    "The provisions of this Act shall be treated for the purposes of sections 1 and 5 of the Deregulation and Contracting Out Act ... as if they were contained in an Act passed in the same Session as that Act".

Every single subsequent Bill that comes before this Chamber could have that same pretence: put the clock back, put the calendar back and pretend that the measure was passed in the same Session, so that the undertaking that was then given would be met.

I do not believe that that is a subterfuge that can easily be accepted. As the noble Lord, Lord Peston, said, the hour is late. Certainly, we cannot divide on this issue now. It is an issue that has to be debated in much more depth. It raises a very serious constitutional issue. Therefore, on the assumption that we shall come back to this matter in a big way at the next stage of the Bill, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Schedule 5 [Transitional provisions and savings]:

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