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Lord Norton of Louth: I rise to make one or two points on the motion that the clause stand part. It is appropriate that we do so largely for the reason that was touched upon by the noble and learned Lord, Lord Falconer, in opening our proceedings earlier. Because of the way the amendments have been scattered around--some touch on rather important issues--there has been no one amendment on which we can stand back and reflect upon the measure of a particular clause as a whole. It is appropriate that we take the opportunity to stand back and remind ourselves of the nature of the Bill.

There are two important points I should like to make. First, this is a Bill with important constitutional implications. We should, therefore, see it as a constitutional Bill, one that should be subject to very special scrutiny by your Lordships' House.

There is a problem that is part of a wider problem. It is something I plan to touch upon in another debate tomorrow. It is that in this country in post-war decades we have lost the capacity to engage in constitutional discourse, to talk about the constitution as a constitution. We used to have it and we lost it in post-war decades. Despite various attempts at constitutional reform and despite the various attempts that have been made over the past 20 or more years, we

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have not recovered that capacity to talk about the constitution. We need to recover it, and to recover it quickly, if we are to discuss the constitution in terms of not just how it is changing but where we think it is going and the shape that we believe it should take in the future. There is a real danger that we discuss constitutional issues in a rather disparate way. That is exacerbated when we have to discuss a Bill through specific amendments. That is a general point but it is relevant in the context of the Bill. It is a constitutional Bill. It has to be seen in that wider context. I look to the Government for a little greater sensitivity as to the constitutional implications of the measure.

That leads into my second point, which is related but distinct. This is not a managerial Bill. It has managerial implications and there is the danger that one sees it solely as a managerial Bill rather than as a constitutional Bill with managerial clauses. That is an important point. If one sees it narrowly in that sense, it becomes easy to become complacent about the Bill. One then sees it as a mechanism for achieving particular good intentions. As I said earlier, we are not arguing about the Government's intentions but about whether this is the appropriate means for realising those intentions. There is the danger of seeing this as a nice managerial Bill. There is also the danger of complacency, particularly if one takes the view, "This is what we want to achieve. The Bill allows us to achieve it". The problem is that the provisions of the Bill allow the Government to achieve far more than what the Government intend by the measure. That is what we have to be sensitive to.

What could the Bill be used to achieve in terms of what the Government have not been contemplating? As the example given by the Minister revealed, the Government intend it to achieve deregulation. The examples given are frequently difficult to disagree with. The problem with the examples that are given relates to the wider totality of other cases that could come up in the future. There is the danger of simply relying on ministerial assurances. I realise that a balance has to be drawn and that not everything can be written into legislation. In many respects, we proceed on the basis of there being to some extent a self-denying ordinance of the part of government in respect of how we proceed and that provides the context within which Parliament can operate.

None the less, given the nature of this measure, there has to be that wider sensitivity. What worries me is that, in respect of Clause 1, the Government have not indicated any give in relation to the worries that have been raised. There has been an explicit acknowledgement that paragraph (c) of Clause 1(1) is free-standing in relation to the other subsections. Potential problems derive from that. That is the kind of sensitivity we need to have. We need to think through the matter. To what extent can the Bill be ring-fenced in order to achieve the intentions for which the Government have argued they want to use the Bill? That is not at issue. What is at issue is whether the Bill could be used to achieve other purposes.

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At this stage, I do not want to delay the Committee any further. I just want to put down a marker. Given the nature of the Bill, we have to be sensitive to what the Bill could be used for. I urge the Government to be sensitive to the concerns that have been raised. If they cannot promise to go away and come back with something, they should at least promise to go away and reflect on the matter.

Lord Skelmersdale: We have heard a great many words about the circumstances in which the noble and learned Lord the Minister believes that it would be appropriate to use the Bill. What I have not heard from him is when he believes that it would not be appropriate to use the Bill. I return to the matter of policy. The noble and learned Lord has placed total reliance on the work of the Delegated Powers and Deregulation Committee--and quite rightly so. That is the parliamentary backbone to the Bill. However, as I said at Second Reading, it is already an overworked committee. At the very least, its manpower will need to be increased in order to encompass what the noble and learned Lord wants to do with the Bill.

As I have probably just proved in my previous three sentences, I am a bear of very little brain. Therefore, I shall have to do as the noble and learned Lord enjoined us to do at the beginning of the debate on Clause 1 and take the amendments and his utterances as a whole. I cannot do that at this moment. I shall read them very carefully. But I have no doubt that I shall come back to Clause 1(1)(c), which has the effect of imposing burdens of various kinds. It still seems to me that the noble and learned Lord's defence of the provision was that he was seeking to transfer burdens rather than creating new ones. I shall read carefully what the noble and learned Lord said, but that is my instinct at the moment.

Lord McIntosh of Haringey: I am grateful for this reprise of the relevant parts of the Second Reading debate. I do not in any way object to having the fundamental issues behind Clause 1 exposed in the Committee. It is a welcome opportunity. It is true that debate has been somewhat fragmented, although to some extent I blame the noble Baroness, Lady Buscombe, for that. We could have had larger groupings with more coherent content.

Baroness Buscombe: It would be more appropriate for the noble Lord to thank me because I think it was important to take some of these issues separately. They are of profound importance to us on this side of the Committee.

9 p.m.

Lord McIntosh of Haringey: I do not doubt the importance and I do not doubt the sincerity. I just think that it would have been easier if we had proceeded subject by subject rather than speaker by speaker. That is a tiny and unworthy thought and I do not pursue that issue. However, I pursue very seriously indeed the issue raised by the noble Baroness in her speech. She said that she has two problems with Clause

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1. The first is the policy behind the clause and the second is the process of legislation. I want to comment on both of those points.

The noble Baroness started by saying that our claim is--she is right--to advance the public interest and to do so by a light touch of legislation. She then said that in contrast to those stated aims, we are imposing more burdens--unlike the 1994 Act which concentrated on the removal of burdens. I think that I have represented the noble Baroness correctly. What the noble Baroness suggests is simply not the case. What has happened is that in the six years or so since the 1994 Act was passed, the Act has run out of steam. It has run out of steam for the most obvious reason: it does not apply to any legislation passed after the 1993-94 Session.

I acknowledge that that could be overcome readily not by a new regulatory reform Bill, but simply by an amendment to the 1994 Act to bring it up to date. But it has also run out of steam because it has become apparent in the intervening years that, whatever good work had been done in the few years immediately following the Act, we have come to the end of what can be done using those methods and that the kinds of problems which we need to address with regulatory reform, with deregulation, are more complex than had originally been thought. The answer does not simply consist of removing or reducing regulation; it does not simply consist of removing anomalies or inconsistencies, as provided for in paragraphs (a) and (d). If we are to take serious regulatory problems seriously, they need a combination of the obvious and simple things which were already provided for in the 1994 Act, with bolder attempts to rationalise a regulatory system, with the intention of reducing burden. That is what paragraphs (b) and (c), which have come under such criticism, are for.

I am not sure that I was right in speaking of the greatest good of the greatest number. I think Bentham was a simplifier. I am a simplifier in a way, but I do not think that that applies to this legislation. However, I do think that the principle of reculer pour mieux sauter is appropriate here. In other words, it is necessary, in order to achieve our wider objectives, in order to achieve a significant number of those 51 proposals which have been presented to the Committee, to envisage the possibility of continuing or re-enacting some regulatory burdens in order to achieve a greater removal of other burdens, and of introducing new burdens on some people in order to reduce the aggregate amount of burden on those people or on other people. That is the only way in which, on the really complex problems such as fire safety--and many others are immediately apparent--we shall achieve those objectives.

In that sense, to the extent that we have extended the scope of the 1994 Act, it is not out of any intention to increase the amount of burden in total, or even in detail. The intention is to use the whole range of

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facilities and abilities and powers available to us to more effectively reduce burdens than the 1994 Act made possible.

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