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Baroness Buscombe: My Lords, I thank the noble and learned Lord for his response to the amendments. I am sorry in some ways that Amendment No. 9 was not accepted in lieu of the amendment put forward by the noble Lord, Lord Goodhart. We have one small concern. Are we not trying to compare apples with pears in relation to comparing a new benefit with the removal of an old burden?
I am grateful to the noble Lord, Lord Haskins, for what he has been able to say to us so far. However, I hope that, in the absence of my noble friend Lord Vinson, it is not his intention that I should attempt to relay his comments to my noble friend. That would be impossible. I hope that the noble Lord is able later today to repeat some of what he said. On that basis, I beg leave to withdraw the amendment.
I shall deal first of all with the misunderstanding. The use of the word "necessary" in this context is not intended to imply some form of proportionality test, to be applied ex post facto to determine whether the retention or creation of a burden is proportionate. It is intended as a threshold test. Only after this threshold has been passed does the question of proportionality arise.
With the greatest of respect, the noble Lord fell into the very trap which it is the purpose of this amendment to avoid. One cannot allow an elision between the two concepts of necessity and proportionality.
Perhaps I may give your Lordships a working example. Section 5(2) of the Regulation of Investigatory Powers Act 2000 makes provision for the issue of interception warrants. These are warrants which may be used to intercept postal and telephone communications. The subsection reads as follows:
That Act grants a variety of powers, all broadly similar in nature, which for want of a better description I shall call "powers of executive interference". The dual test--that of necessity followed by a requirement of proportionality--is adopted within the Regulation of Investigatory Powers Act on no fewer than 10 occasions. It is a format with which the draftsman is well acquainted. This Bill, and that Act, have this in common. Each is intended to enable a degree of executive interference. In the case of this Bill it is the imposition not merely of new regulations, but new burdens, which is the interference with which I am concerned.
I compare and contrast the provisions of paragraphs (a) and (d) in the Bill, where we do not propose a "necessity" test, with paragraphs (b) and (c). Neither paragraph (a) nor (d) is concerned to create or recreate a burden. It is only where there is a burden that the test of "necessity" should require to be satisfied. I shall deal, first, with paragraph (b). We are being asked to vest in a Minister the power to impose burdens in the name of regulatory reform. As a matter of principle, if it is not necessary to re-enact a burden, then in the context of deregulation, that burden should not be re-enacted. If a burden which is a possible candidate for re-enactment cannot pass the "necessity" test, we do not want it. Keeping such a burden, even if it could be said to be "proportionate", would be unnecessary and would amount to regulation for regulation's sake. If new burdens are to be imposed by means of secondary legislation, they should, at the very least, be demonstrated to be necessary. If they are not, there is no justification for imposing them. This is no more than is required in practice of primary legislation and I can think of no reason why, in principle, secondary legislation of the kind with which we are concerned should be any different. I beg to move.
Lord Falconer of Thoroton: My Lords, these amendments propose a twofold test in relation to retaining burdens and imposing new burdens. First, it is said that the retention or imposition of the new burden should be necessary and, secondly, that it should be proportionate. The Government hold to the position they adopted in Committee; namely, that if the word "proportionate" imports into it the concept of necessity, then if the burden is unnecessary, it cannot be proportionate either to impose it or to retain it. That remains the Government's position. With respect to the noble Baroness, I do not think that anything stands between us here.
In support of her argument for a twofold test, the noble Baroness relied on the Regulation of Investigatory Powers Act. She referred to a provision which states, in effect, that where X thinks that it is necessary to impose an interception order on the grounds set out in Section 3, then such an order can be made where it is proportionate to do so. That is a totally different situation because in that example the RIP Act lays down that such an action will be
What context does the noble Baroness have in mind when she refers to necessity in her additional test in Clause 1(1)(b) and (c)? Is it necessary because of an overriding legal imperative? Is it necessary to maintain the integrity of the state or is it, as I think she may mean, that a burden is imposed only where the balance--having regard to the benefits that may accrue from it--is in favour of imposing it rather than getting rid of it? If that is the correct interpretation of her approach, then that is precisely the effect of the word "proportionate". The introduction of the word "necessity" would lead to confusion because there is no context. Furthermore, it would not give that which she seeks.
I covered these points in our discussions at the previous stage. Perhaps the noble Baroness could cite a practical example--not from a different statute in which plainly there is a statutory context, because the action is "necessary" under the terms of Section 3--of where a regulation or a burden is either being imposed or retained which is not necessary but is proportionate.
As I said earlier, I do not think that there is anything between us in what we seek to achieve here. We are discussing simply the method of achieving it. In the light of what I said, I earnestly suggest that the noble Baroness should reconsider her amendment.
Baroness Buscombe: My Lords, I have listened to what the Minister has had to say as regards my amendment. I have to respond by saying that I entirely disagree with him. On that basis, I should like to test the opinion of the House.
Resolved in the negative, and amendment disagreed to accordingly.
The noble Lord said: This is a modest drafting amendment. It seeks to clarify the extremely difficult terminology of Clause 1(1)(b) of the Bill. At Committee stage I attempted a much more ambitious clarification in the form of Amendment No. 3, which did not find favour with the Government. This amendment is a much more modest attempt to clarify the words "its retention" at the end of Clause 1(1)(b). We should always put ourselves in the position of those who subsequently have to try to interpret these provisions. Admittedly, the parliamentary draftsman faced a challenging task in drafting this Bill. However, I believe that the replacement of the word "retention" by the word "re-enactment" will enable Clause 1(1)(b) to be much more readily understood. I beg to move.
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