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Lord McIntosh of Haringey: I cannot agree. The amendment would add a "necessary" test to the face of the Bill. Orders could be made only if they could be shown to be necessary to meet all the objectives of Clause 1. Of course that is significant. The amendment would imply that a burden would have to be necessary in order to remove another burden or replace an anomaly. We have made it clear all along that the four elements in paragraphs (a) to (d) of Clause 1(1) stand on their own and cannot necessarily be linked.
Lord Kingsland: I am much obliged to the noble Lord the Minister for his further clarification. If I were to draft an amendment for Report reflecting what I believe my amendment was intended to achieve, and not what the noble Lord believes it was intended to do, would he give it serious consideration?
The noble Lord said: The clause as presently drafted provides that an order under Clause 1 may create a burden affecting a person in the carrying on of an activity only if the Minister is of the opinion that the provisions of the order, taken as a whole, strike a fair balance between the public interest and the interests of the person affected by the burden being created.
I say straightaway that I appreciate this is not a free-standing provision. The interests of those affected by an order achieve some protection, as we have heard already, under subsection (1) of the clause. So an order may not remove any necessary protection; nor, as the Minister said, prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise. Those are important limitations on the order-making power. We have just discussed whether they should be subject to the opinion of the Minister, but I accept that they are important and necessary limitations.
As we have already discussed--and as the Minister will doubtless remind us at some length--with this measure we are saying that secondary legislation may be employed to add or remove burdens. We are saying that through this order-making power criminal offences may be created, in some cases carrying a maximum penalty of two years' imprisonment. The use of secondary legislation in this way may be acceptable if the measure is fairly tightly drawn or has a fairly specific purpose, as with the Deregulation and Contracting Out Act 1994. However, in terms of scope, the Bill is not tightly drawn. As I have already argued, the definition of a burden means that most statutes fall within its scope. Given that, the potential for persons to be affected by orders made under this Bill is vast--and I stress the word "potential". For some the effect will be beneficial; that is the point of the Bill. However, for others it may be detrimental.
Clearly I can see the force of the argument that the public interest should be put against the detrimental impact. I understand completely the reasons for the subsection. However, my argument is that, given the nature of the Bill, the interests of those affected by an order perhaps need greater protection than would be the case with primary legislation, or even with secondary legislation deriving from a clearly specified object of the parent Act.
With primary legislation, or even orders under a clearly focused Act, we are likely to have some idea of the consequences, detrimental as well as positive, that the measure may have for particular individuals. With this Bill at this time, we have no idea as to the impact--certainly not the negative impact--which it may have on certain individuals. The balance between the public interest and the interests of those affected by an order may be an extremely fine one. Those affected may have had no idea that they might be affected adversely by an order made under this measure. Given that, there is a case that the thresholds designed to protect individuals need to be higher in this Bill than is the case with other measures. Injecting the higher hurdle created by my amendment builds in a degree of protection.
If a proposed order does not satisfy this test but a Minister believes that, on balance, the public interest does outweigh the interests of those affected, it is open to the Government to introduce primary legislation. As I argued earlier, that will give the issue a much higher visibility. I appreciate that the scrutiny of orders under the Bill will be intensive, but requiring the introduction of primary legislation imposes a greater burden on government and is likely to attract far more attention than is the case with orders dealt with under the provisions of the Bill.
Lord McIntosh of Haringey: This is an interesting proposal and I am grateful to the noble Lord, Lord Norton, for attempting it. I see what he is trying to do and I am not unsympathetic. However, I should like to place his proposal in the context of Clause 3 as a whole.
Clause 3 is a series of limitations on the scope of Clause 1. Subsection (1) is about necessary protection, which we have debated--or, in the case of some of the amendments on the Marshalled List, not debated. Subsection (2) relates to the fair balance between the public interest and the interests of persons affected by the burden. That is the provision that the noble Lord, Lord Norton, seeks to strengthen. Subsection (3) goes on to limit the penalties if criminal offences are created. Subsection (4) again limits the punishment for offences that are triable either way. Subsection (5) prohibits provisions for forcible entry or compelling the giving of evidence. I think it will be generally agreed that all of these are restrictions, and in some cases severe restrictions, on what can be done in regulatory reform orders.
In this amendment, the noble Lord seeks to strengthen the "fair balance" test. The issue of providing adequate safeguards against potential future misuse of the order-making power is important. In effect, it is almost the only issue that we have debated all day. The Bill contains a wide power that is matched by tough safeguards governing the use of the power. I believe that the noble Lord, Lord Norton, recognises that. Those safeguards are robust and were created with that protection in mind.
The amendment proposes that the test of "fair balance" should be removed and that it should be replaced with a new test of "public interest". Let me first assure the Committee that the existing test of fair balance takes account of the public interest. The current position is that a new order may create new burdens only if, in the Minister's opinion, they strike a fair balance between the public interest and those affected by the imposition of the burden. The Minister must apply his mind to the public interest and may not create a new burden unless he believes that a fair balance is struck between the effects of the burden and the public interest.
I suppose that, strictly speaking, "fair balance" is neutral; it could mean that the burdens are greater than the benefits but the Minister may consider that to be a fair balance. I do not think that he would get away with that. I do not think that a common-sense interpretation would suggest that he would get away with it in consultation, in the committees and before Parliament. It clearly means that the fair balance must be to the benefit of the public interest.
The amendment seeks to strengthen that provision by adding the words "substantially outweighs". I do not think that that adds anything. What it does is to make the test a different one, so that the public interest,
I am grateful for the opportunity to say that, and I am grateful to the noble Lord for bringing this amendment forward. However, I hope that he will not press it.
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