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Lord Norton of Louth: I am grateful for the Minister's response. It has clarified matters, certainly in my own mind, in terms of the clause. As he rightly said, and as I conceded, there are other safeguards written in. In terms of drafting, I had certain doubts about the phraseology that I was employing. Therefore, I do not want to press the matter. In an earlier amendment, I was trying to push the Government; with this one, I was trying to give them a gentle nudge to call attention to the point. I am extremely grateful to the Minister for his response, which I believe meets the points that I have made. In the light of what he has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Lord Goodhart moved Amendment No. 36:

(c) in the case of a new criminal offence which replaces an existing offence, with any sentence greater than the maximum which could have been imposed for the existing offence").

The noble Lord said: This is a short point. The Delegated Powers Committee has always taken the view that it is inappropriate to use delegated powers to increase the maximum sentence provided in any statute. Under this Bill, it is not possible completely to avoid the creation of new offences. But it seems to me that where the offence that is created merely replaces an existing offence, and where that offence is punishable by a maximum penalty less severe than that referred to in Clause 3(3)--for instance, if the existing offence is not punishable by imprisonment at all--it would be inappropriate to use this power to enable the maximum sentence to be increased up to the limit provided in Clause 3(3). It would therefore be

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desirable to exclude the possibility of using these powers to increase the sentences for existing offences, where these are re-enacted. I beg to move.

Lord Falconer of Thoroton: This is a short but important point about criminal offences and powers under regulatory reform orders. The noble Lord's proposal would create a new safeguard in relation to any criminal offence created by an order in the place of an existing criminal offence, or offences, which that order repealed.

Although there is a superficial attraction in the noble Lord's points, his proposal does not sit easily with the type of reform proposals that this Bill will, and I believe should, be capable of delivering. The Bill is capable of achieving large-scale reforms. I return to the fire safety example. A regulatory reform order could sweep aside much of the existing legislation and create a single fire safety regime that could be understood by everyone. It would move to a common sense, risk-based approach and, in the course of doing so, would almost inevitably repeal quite a large number of criminal offences. But, in order to function effectively, the new, streamlined, risk-based regime would doubtless create new offences. It would be very difficult to compare old and new criminal offences that may deal with different sorts of mischief. A new approach would also bring with it a different sort of approach to the criminal law in relation to offences.

Similarly, we can envisage a situation in which we might want to replace a number of technical offences with civil sanctions, thus entirely sweeping away some aspects of criminality, while a part of that reform imposed a higher criminal penalty for deliberate wrongdoing. They are perfectly sensible situations, for which we believe that the existing safeguards in the Bill provide adequate protection. Those safeguards include the provision that no new criminal offence can, on indictment, be punishable with more than a two-year prison term and, on summary conviction, with no more than a level five fine or a six-month term of imprisonment. Obviously, that is an additional safeguard to all the others we have already discussed and, indeed, to all the other processes we have debated on many occasions in this place.

Although I believe it to be an important issue and one that should rightly be aired, when one considers what the Bill is trying to achieve and the protections that already exist I do not think that this would be an appropriate safeguard. Therefore, I invite the noble Lord to withdraw his amendment.

Lord Goodhart: I am grateful to the noble and learned Lord for his response. I, too, believe this to be an issue of some importance. I am glad that the noble and learned Lord acknowledged that fact. However, I can see some difficulties arising in this respect. It is probably an issue that we shall have to leave to be covered by the appropriate scrutiny of the Select Committees, and, perhaps, other bodies. In those circumstances, it is not my intention to press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Buscombe moved Amendment No. 37:

    Page 3, line 30, at end insert--

("(6) An order under section 1 must be followed two years later with a report to Parliament giving the actual cost of implementation compared to the original estimated cost, and if the actual cost is more than 25 per cent. higher than originally estimated, the Minister is to take the necessary steps to annul the order.").

The noble Baroness said: This is very much a probing amendment, which we have tabled in order to flag up what we believe is a real need to introduce a duty to review the workings of the orders. A regulatory assessment, to which I shall speak in regard to particular data in the Bill, and detailed proposals (such as those that will be required to be set down in relation to Clause 6) are fine as far as they go. However, can the Government foretell the future? One wonders.

Regulatory impact assessments are estimates--more accurately, "guesstimates"--and are usually compiled by civil servants, who are doing the best they can. Indeed, no more than that can be expected of them. But the proof of the pudding is in the eating. Hence this probing amendment in which we have allowed for a two-year period in which to assess how the order has fared. After two years, we believe that the pudding will be well and truly eaten. In which case, instead of having mere "guesstimates", as set down in the regulatory impact assessment, we shall know the true position. For example, we shall know if a mistake has been made in the order. In such a case, we believe that the Government should be mature enough to own up and accept that the original cost estimates were wrong: the grounds upon which the original decision to make an order was based were wrong because they were based upon an incorrect assessment.

However, the question is whether it is possible to draw the line at, say, a 25 per cent increase, as we propose in the amendment. We say, in the amendment, that if,

    "the actual cost is more than 25 per cent higher than originally estimated, the Minister is to take the necessary steps to annul the order".

Alternatively, perhaps the Minister can offer other suggestions as to how we approach the matter and how we devise an appropriate line to be drawn whereby we say, "Well, we have introduced an order; but, after two years, it is clear that the original cost estimates were wrong. Therefore, there must be some form of review".

We suggest that there should be an opportunity for the Minister to take the necessary steps to annul the order, as set out in our amendment. This means that if the original order turns out not to be entirely wrong--indeed, it may have been good in parts--it need not be annulled without another order replacing it; in other words, the decision to make the order in the first place may have been correct, but the order could, and should, be improved upon based on new and correct information, as well as being subject to a two-year review of its workings. In such a case a new and improved order could be introduced once the Minister had taken steps to annul the old order. I beg to move.

Lord McIntosh of Haringey: The amendment raises two issues that the Government take most seriously. I

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am grateful for the opportunity to say something about them. First, how do we know whether or not it has worked; and, secondly, what do we do if we have got it wrong? I do not in any way regret the fact that the amendment has been put forward in this way. I realise that it is a probing amendment and I shall, no doubt, have some criticisms to make about the detail, but the issues remain important.

The amendment would require a report to be made to Parliament two years after an order came into force which would detail the actual costs of the regulatory reforms. Then it would "sunset" the order if the costs proved to be 25 per cent more than originally estimated.

Let me first talk about the issue of a report. I have to do it in the context of saying that this is a Bill about regulatory reform. It is not a backdoor route to making new legislation: it simply amends existing legislation. So in the case of fire safety, which we have gone on using because it is the easiest but there are plenty more, there are 120 statutes and as many statutory instruments. We want to make it easier for all and to move to a risk-based system.

This is a different thing from what might otherwise be done by a consolidation Bill, which does remove the different origins of legislation but does not change the effect of them. The sort of re-balancing that we would achieve in a regulatory reform order would undoubtedly mean that some people would pay less and others more, while there would be no change for some. It is not an easy exercise to estimate the cost in these cases; but, more fundamentally, on that point the amendment says nothing about the benefits that a regulatory reform order had brought. Surely the costs should be assessed in relation to the benefits delivered. For example, if we had an order in which the cost turned out to be 30 per cent higher but the benefits were 100 per cent greater than estimated, the amendment, taken literally, would mean that the order would have to be annulled. I am sure that is not the intention.

I certainly agree that we should not neglect to check these things. All departments should keep their legislation under review. That is why we have set up a panel for regulatory accountability and why we have regulatory reform Ministers in each of the main regulatory departments. And of course behind that we have my noble friend Lord Haskins, with his better regulation task force, keeping an eye on them and keeping them on their toes. I think anyone who has read his reports knows that he is no respecter of persons and certainly no respecter of Ministers or of governments.

In addition, the guidance on regulatory impact assessment says that the RIA must detail the arrangements for review. Of course this is only appropriate in certain cases. To take an example at random, how would you look at the cost of implementing the removal of the restriction that requires the publication of corn returns data in the London Gazette? Or what about an order relaxing the licensing requirements for New Year's Eve 2001? There is no sense annulling that in 2003.

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One can see that I have difficulties about the wording of the amendment, because it will be a rare case when the order has no merit at all. Uncertainty is bad for business. It would create greater uncertainty if businesses waited with bated breath at the two-year stage to see whether the costs enabled them all to continue, and the effects of sunsetting a regulatory reform order would be to leave the statute book full of holes. Measures that had been repealed or annulled by the regulatory reform order would not be automatically reinstated and that would cause complete confusion.

I realise that the noble Baroness said that "necessary steps" could allow an order to be amended rather than annulled, and I agree entirely with that. Surely it would be better to amend an order that was not working in the way that had been intended and it is perfectly possible for a department to amend its regulatory reform order with another one under the Bill as drafted.

I do not think that we could accept the kind of uncertainty and sometimes perverse results which would arise from an amendment anything like the one we have before us. I do not accept that there is anything magical about two years or 25 per cent, or anything like it, but I do accept that it is incumbent on government to review the effectiveness of regulatory reform orders, and we have measures in place to do that. I accept that we have to bear in mind the possibility that if something is going wrong, we have to put it right. However, we have the power to do that by amendment. I hope that I can take the noble Baroness, Lady Buscombe, at her word when she says that this is a probing amendment.

10.45 p.m.

Baroness Buscombe: Indeed, it is a probing amendment. However, I did not agree with the

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Minister when he said that it was remiss of me not to include the word "benefit" in relation to the amendment. The costs are relative to the benefits.

There could be tremendous benefits, but benefits which no one could afford. I believe that that point should be made. In addition, as I said at the beginning, the purpose of the amendment was to flag up the need to question whether the opportunities to review the workings of the order are sufficient. Obviously I shall read with care what the Minister said on that point.

I turn to the Minister's comment that it is rare for an order to have no benefit at all. Many in the business community would say that we continue to witness regulations coming on to the statute book which have no benefit. Therefore, it may be wishful thinking to believe that none of the orders that will be passed in the future will have no benefit--or is it burden?--at all. Perhaps I am wrong in what I have said.

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