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Lord Falconer of Thoroton: As I said, the provision is expected to be used very rarely.

Viscount Goschen: I hoped that that would be the reply. I tried to quote the Minister previously and was shot down in flames. It was worth his restating it. In that case, is it worth the bother of creating a provision which clearly causes Members of the Committee considerable difficulty. An administration that is not guided by the philosophies and principles that the Minister so eloquently describes may use it to impose wholly fresh burdens.

Lord Falconer of Thoroton: My Lords, the answer to that is "very rarely". We believe that in the context of the safeguards and the close parliamentary scrutiny to which these orders will rightly be subjected, the benefits to be obtained from the provision are worth having.

Lord Phillips of Sudbury: I should be grateful if the Minister would explain a little further the example that he has used again and again of a school where there is disagreement between the school itself and the

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education authority as to which is responsible for the buildings. Under the existing provision in paragraph (c) what benefit is expected to result from the creation of the burden? Plainly, it cannot be said that the repair of the buildings is the benefit, because one or other of the bodies, the LEA or the school, will do the repairs. Therefore, am I right in thinking that the benefit that will flow from this provision will be a reduction in hassle between those two bodies and the administrative expense associated with it? If that is correct, how can it be said that there is proportionality, as that will be a relatively minor matter compared with the cost of repairing the school buildings? Under the model mentioned by the Minister a school would, beyond peradventure, then have the burden of repairing the buildings. That burden could run into half a million pounds a year--as against the burden of the removal of the administrative hassle, which may amount to 20,000.

Lord Falconer of Thoroton: The benefit is the removal of time and money spent on determining who is responsible. The burden will not involve a school in any additional expenditure, because in practice it will always receive grants to do the work. Therefore, the burden of there being no way out of the legal burden is matched by the fact that there is no administrative hassle and no additional expense in relation to the repair of the school.

Lord Norton of Louth: Before the Minister finally sits down, perhaps I may return to the point about education. The Minister is almost using tunnel vision in this case: in saying that a burden might need to be imposed but not recognising that, in the context of education, we could identify a large number of burdens that schools would be happy to have removed. So in that example a balance could be struck.

The Minister says that the provision in paragraph (c) would only rarely be used. But there is nothing in the Bill that ring-fences its application. Potentially, it could be used a great many times--indeed, it might be the only provision that could be used. That is the worry. The Minister has given examples of where the provision could be beneficial. I can think of plenty of examples where this route might be attempted. The Minister's point is that it might not succeed because of parliamentary scrutiny. But it might succeed. This route might be used to impose a large number of undesirable burdens.

Lord Falconer of Thoroton: First, in relation to the noble Lord's point about education, let us suppose, as is the position, that the DfEE legitimately identified the issue of the responsibility of voluntary aided schools in relation to repair of the buildings as causing a problem. Is it wrong for them to say, "Let us see if we can solve this problem?", rather than saying, "Let's see if we can solve this problem--oh, in order to solve it we have got to look around for some other burden". That does not appear to be a direct or sensible approach.

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The second point relates to whether the provision could be used for "bad" purposes. First, the Minister has to have an opinion on the three matters set out in Clause 3; secondly, there must be a consultation, statutorily defined in the Bill; thirdly, having gone through that consultation, the Minister must reconsider whether his draft order is right or wrong; fourthly, he must publish the results fairly of the whole of his consultation; fifthly, he must satisfy the committees in both Houses that it is an appropriate course to take; and sixthly, he must satisfy the Chambers of both Houses that it is appropriate. Is that a satisfactory series of protections to ensure that a "bad" order does not go through? A decision and a judgment have to be made.

Lord Norton of Louth: Perhaps I may quickly respond on the latter point about the procedure. I shall not take up the Committee's time now; I shall return to the point in relation to later amendments. Will the Minister confirm a fairly straightforward point. He has dealt with the qualitative dimension, but what about the quantitative one; namely, that the Bill provides no limitation on the extent to which this provision can be employed? It could be used extensively.

Lord Falconer of Thoroton: That is why one is looking all the time at the terms of the Bill and its scope. The wider the scope, the more safeguards there must be.

Lord Phillips of Sudbury: I apologise for returning to this point. I am grateful to the Minister for a tour de force, but getting into the guts of these provisions will be helpful in future. In the example of the school, the Minister said that in applying the proportionality test there will be no burden in terms of the cost of maintenance of the school because there will be grants.

Lord Falconer of Thoroton: Taking up the point made by the noble Lord, Lord Kingsland, the burden that is being imposed is a statutory obligation to be responsible for the repair of the school. When I said "burden" in terms of there being no extra financial cost because there will be discretionary grants, I meant "burden" in a loose sense, not by reference to a legislative burden, which is what the Bill is concerned with.

Lord Phillips of Sudbury: I think that working through the provision in paragraph (c) will be extremely difficult, especially when it comes to proportionality--because it is a burden in one sense and not in another. I merely point out to the Minister that this becomes something of a riddle.

Lord Goodhart: We have had a pretty full debate on this group of amendments. I am grateful to those who have contributed to it. I am particularly grateful to the noble Lord, Lord Norton of Louth, for the support that he has given. I agree with everything that he said. I agree in particular that where you are increasing

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burdens--where you are relying on Clause 1(1)(c)--there should be clearly defined statutory objectives in primary legislation. A general, free-standing power, not so limited, appears to me to be unacceptable.

The Minister suggested that improvements could be made to the legislation involving an increase of burdens without a corresponding reduction in other legislative burdens. In opening this debate, I accepted that possibility. However, I believe that my noble friend Lord Phillips of Sudbury made a number of strong points to indicate that the example of the school is perhaps not as clear cut a case as it might be. I believe that it is agreed by everyone that reliance is likely to have to be placed on Clause 1(1)(c) on only rare occasions. As it now stands, it raises important constitutional issues that need to be very carefully considered. I beg leave to withdraw the amendment on this occasion. However, we may well need to reconsider the matter on Report.

Amendment, by leave, withdrawn.

[Amendments Nos. 7 to 9 not moved.]

Lord Campbell of Alloway moved Amendment No. 10:

    Page 1, line 20, at end insert--

("(1A) Subject to the procedural requirements of subsection (1B) below, no provision may be made under subsection (1) above (other than by remit conferred by statute) to impose any offence, obligation, liability or administrative control not in force on the date on which this Act takes effect which involves the burden of any sanction, or to increase the burden of any sanction, in force on the date on which this Act takes effect.
(1B) The procedural requirements before any provision referred to in subsection (1A) above may be made are--
(a) that the Minister seeking to make such provision shall have laid a draft order in both Houses of Parliament;
(b) that a report shall have been received either from a Select Committee of each House of Parliament, or from a Joint Select Committee of both Houses of Parliament, as to whether such provision would be required and the burden would be proportionate to the benefit, whether such a provision would be appropriate in all the circumstances; and if so whether the order should be subject to any sunset provision;
(c) that both Houses of Parliament shall have debated and approved the making of such order as laid in draft, or (if so advised) as amended.
(1C) The provisions of this section shall not prevent consolidation of subordinate legislation if within the remit conferred by statute.").

The noble Lord said: Having listened to the debate on this Bill, it is perfectly apparent that there are basically two key amendments to Clause 1(1). One is the Amendments Nos. 3 and 29 route. The other is the Amendments Nos. 6 and 9 route. Having attended to the argument on both, your Lordships may consider that the amendment moved by the noble Lord, Lord Goodhart, is worthy of the most serious consideration.

However this Bill is amended, there is no doubt that the amendment standing in my name would have to be substantially amended in the light of this debate, and that my consequential Amendments Nos. 64, 65 and

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74 would not be moved. Nevertheless, I want very shortly to make the point that, however Clause 1 is amended, only due scrutiny can afford an ultimate effective safeguard, and that that scrutiny cannot effectively be conducted without reports from a Select Committee.

At Second Reading, considerable emphasis was placed on this point by the noble Lord, Lord Dahrendorf, by my noble friend Lord Norton of Louth, and by my noble friend Lord Skelmersdale, who suggested that a sub-committee of the deregulation committee should be set up. Other than the noble Lord, Lord McIntosh of Haringey, no one in that debate queried the need for this type of meticulous scrutiny. The noble Lord, Lord McIntosh of Haringey, side-stepped this assumption as misconceived, only applicable to control freak governments. But it is precisely with regard to the "freak control" of the executive under any government--not this Government in particular--that this assumption as to due scrutiny is conceived.

I mention that matter because, having redrafted this amendment in the light of this debate, I should like to return to the question of scrutiny, which is not dealt with in any other amendment. On that basis, I respectfully beg leave to withdraw the amendment.

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