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Lord Norton of Louth: I shall speak briefly to Amendment No. 20 which is grouped with these amendments. I do not need to take up much of the time of the Committee because my amendment is similar in effect to Amendment No. 19. The objective--to remove the subjective element of paragraph (c) and replace it with an objective test is the same.

Orders can be made under this clause with a view to achieving one or more of the objects listed in subsection (1) as this is designed to ensure that orders may be made to provide for such incidental, consequential, transitional or supplemental provision as is necessary to achieve those objects. I see no reason why that should not be made explicit. Thus my amendment is designed to replace the subjective element with an objective one and to remove any ambiguity.

Lord Borrie: Surely the advantage of the phrase "in the Minister's opinion" in the context of this Bill--I leave aside those concerned with the amendment tabled by the noble Lord, Lord Goodhart, which is not in this group--is that it emphasises that the Bill is designed around parliamentary scrutiny and control and with a great deal of emphasis in detailed clauses, to which we have yet to turn, concerning the scrutiny committees of both Houses.

The speech of the noble Baroness, Lady Buscombe, emphasised throughout the desirability of people being able to go to the courts. I would be the last person to suggest that it is undesirable to go to the courts in appropriate situations. But it seems to me that, to a considerable degree, the parliamentary scrutiny that is emphasised is ministerial accountability to Parliament and to its scrutiny committees. In my view that should not be undermined.

The advantage of the phrase "in the Minister's opinion" is that if one then goes to court to seek a judicial review one has to establish a fairly heavy burden of proof that the Minister acted in a way in which no reasonable Minister would have acted. In other words, as the noble Baroness said earlier,

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according to Wednesbury principles as to reasonableness, that is quite a heavy burden for a person to overcome.

As has been suggested by the noble Baroness and by the noble Lord, Lord Norton of Louth, in theory, and in many cases if people wanted to, in practice, the courts could have a much greater involvement in hearing arguments as to whether, on the merits, something was appropriate or desirable if the phrase "in the Minister's opinion" were deleted from wherever it appears in the Bill. It seems to me that the efforts of noble Lords opposite are designed to undermine the thorough parliamentary scrutiny that is intended for regulatory reform orders and to introduce in an inappropriate manner the possibility--lawyers would no doubt encourage the probability--of legal action in the courts.

Lord Falconer of Thoroton: I shall take up the point that appears to me to be at the heart of this issue--the extent to which the courts should be involved. We are proposing a parliamentary procedure. Without repeating what I have already said, I shall indicate that procedure. First, the Minister who wants to make the reform has to reach the opinion that it does not remove any necessary protection, does not interfere with any reasonable expectation that a person may have of continuing to exercise rights and freedoms and in the case of new burdens they must be proportionate. The Minister must also be of the opinion that they strike a fair balance between the public interest and the interest of those affected by the burden to be created.

There is then an obligatory consultation period that will probably last for 12 weeks. If there were no consultation, it could not proceed. Once the consultation is complete, the Minister must assess the responses and reassess his opinion. If the weight of evidence from the consultation were that the proposal removed ministerial protection or interfered with a reasonable expectation that someone may continue to exercise a right or freedom, or if the balance were not struck, a notional wicked Minister in the future--according to the noble Baroness, Lady Buscombe--rather than a current Minister, would bash on, despite the fact that the consultation would tell him he was wrong in his opinion, and he would stick to his opinion.

The next step for that wicked Minister would be to publish in full and objectively the result of his consultation. Having done so, it would be for the two Committees to consider what the result of the consultation was. The document that the Minister published would also explain why he thought he had given the right course, despite the consultation. The proposal may impose new burdens but not replace others, or it may impose new burdens and replace others. If he somehow got through that process, he would have to persuade both Houses of Parliament that the order should be approved. That is basically the scheme of the legislation.

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The noble Baroness wished to add to that approach the right to consider objectively in the courts whether or not the necessary protection was available, whether that interfered with any reasonable expectation, and whether or not the proposals struck a fair balance between the public interest and the interest of those affected by the burden that will be created.

With the greatest respect to the noble Baroness--the amendment was plainly moved with the best of intentions--we do not think that the right course is to allow the courts, after Parliament has scrutinised the legislation with the relevant amount of information and in the necessary degree of detail, to try to unhinge the process. The noble Baroness said that that provision would apply only to people on whom burdens were imposed; only they would seek to do that. With the greatest respect, she does not realise what goes on in courts now. There are pressure groups and interest groups, which frequently want to keep burdens that others would oppose. The noble Lord, Lord Kingsland, will break that news to the noble Baroness.

7.30 p.m.

Lord Phillips of Sudbury: Is the situation that the Minister described a result of the fact that the Government introduced contingent fees for every type of legal action?

Lord Falconer of Thoroton: I am glad that the noble Lord regards the solicitors' profession simply as an interest group or pressure group in that respect.

A serious point is raised in this context; it does more than raise questions about on whom burdens are imposed or about the role of pressure groups, which might think that the right course was to go to the courts. For example, under one proposed order, the provisions will make the circumstances in which trustees can invest more liberal. If a trustee invested in accordance with the terms of that wider provision, and it suited someone financially to challenge the investment, the person would have a financial interest in challenging the basis of the regulatory reform order.

The noble Baroness displayed touching faith in the fact that the only people who would be affected would be those on whom burdens were imposed. However, that does not reflect the nature of litigation these days. Although this is a matter for the House to decide, I do not think that we want a process that involves a mixture of the courts and Parliament. We have faith in the fact that Parliament will appropriately scrutinise the orders. If Parliament does not like what it sees, it will be able to prevent the orders from going through. That is the right approach--Parliament should be the body that determines such matters, not Parliament and the courts. The courts will have a role in relation to judicial review--if no reasonable Minister under all the circumstances could have that opinion--but that is a different and more limited role than that involved in addressing the primary issues of necessary protection, the balance between public interest and the interests of

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those affected, and the possibility of depriving people of rights that they would otherwise reasonably expect to exercise.

Lord Kingsland: I am grateful to the noble and learned Lord for giving way. I am delighted to hear the Minister's faith in the process of parliamentary scrutiny. Such amendments under the Bill, if it is enacted, would be introduced on the Government's initiative. The Government are the Government only because they have a majority in another place. Therefore, if any scrutiny were to be effective, perhaps to the extent that the measure was rejected, the measure would have to be rejected in your Lordships' House. Is the Minister happy for that to happen, if necessary?

Lord Falconer of Thoroton: I have made it clear throughout that the position under the Bill, if it is enacted, is that there will not be a regulatory reform order unless it is passed in the House of Commons and the House of Lords. That is made absolutely plain in the Bill. We have made it clear at all stages that we are dealing with orders that are not politically controversial, although there may be controversy about the detail. If they were politically controversial to a serious extent, that would not be appropriate for a regulatory reform order. We are discussing matters that would otherwise have to be dealt with in primary legislation, although it would be difficult to find time in legislative programmes, which are often crowded. I am more than happy to agree; yes, the orders would need to be passed by both Houses. If an order was not passed by the House of Lords, it would not get through.

Lord Norton of Louth: I want to pick up a specific point relating to the noble and learned Lord's earlier comments on parliamentary scrutiny. He said that a Minister would have to persuade both Houses to approve an order. He rightly said that both Houses would have to approve it--it would come before both Houses for a vote--but if the Select Committee on Deregulation in the other place did not divide on an order, it would not be subject to debate in the other place. Although there could be a vote in certain circumstances, the House of Commons might not debate it at all. I realise that that may be regarded as a rather narrow point--it is premised on agreement in the Deregulation Committee, although there may be disagreement in the House of Commons. I seek to clarify the fact that there are circumstances in which the other House would not have an opportunity to debate a draft order.

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