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Lord Norton of Louth: My Lords, I rise briefly to support the noble Lord, Lord Phillips of Sudbury, and also to prove that I am now in my place. Unfortunately, I was the victim of signalling problems earlier today. I am grateful to the noble Lord, Lord Phillips of Sudbury, for moving, in my absence, an earlier amendment standing in my name. I now know how a Member of the other place feels sitting with a speech that cannot be delivered. My only consolation is that I can claim that it would have been excellent.
As the noble Lord, Lord Phillips of Sudbury, mentioned, this amendment was tabled in Committee. At that time I understood the point made by the Minister in response to the noble Lord. I suggested that, to ensure that the paragraph was internally
With regard to whether we should replace the current word "re-enactment" with the word "retention", as I explained in Committee, I believe that, apart from being unnecessary, it would be positively damaging. As we have said on numerous occasions, any proposal aimed at reforming a substantive legislative regime would almost certainly not need to amend many parts of the Act of Parliament affected. Even if it did, it would do so only consequentially--for example, by way of renumbering--but those unamended parts would still form part of the new regulatory regime. We have many times heard the example of the 120 pieces of legislation that presently form the fire regime, many of which, if brought together in one place, would involve re-enactments of the existing legislation but would not be changed in any way.
As the noble Lord's amendment is worded, the burdens are "retained". He suggests that the use of the word "retained" would make it clear to the public. The noble Lord, Lord Norton of Louth, underlines the point by suggesting that the word "retained" be used by reference to "burdens" in another part of the same provision. We want to go one stage further than retaining them, do we not? We want to allow an order to incorporate those unamended parts, which would result in one piece of legislation that would be much easier to understand and apply.
Lord Falconer of Thoroton: My Lords, I apologise for that. The note that I have is based on the precisely opposite contention. It is obvious that I have considered the matter on a false basis. I shall consider it and return to it at Third Reading.
The noble Lord said: My Lords, this amendment seeks to leave out Clause 1(1)(c) in order to remove the power conferred to make new provisions. The amendment tabled in Committee by the noble Lord, Lord Goodhart, and retabled for Report stage, would also have removed Clause 1(1)(c). If it had not been withdrawn, I would have supported that amendment as a reasonable compromise position with which the House could live. However, I fear that I cannot live with the revised form of the amendment proposed by the noble Lord, Lord Goodhart, and accepted by the Government. Clause 1(1)(c)--for reasons that I shall give in a moment, and fairly shortly--is wholly unacceptable.
On Second Reading, the noble Lords, Lord Haskins and Lord Dahrendorf, in two remarkable speeches, identified and expressed the paradox of the Bill: that to alleviate and remove the heavy load of government it was proposed to strengthen the hand of government and to give it unprecedented powers to legislate by order. That would indeed remain the position under the revised form of the amendment of the noble Lord, Lord Goodhart, which is acceptable to the Government. It is this unprecedented power under paragraph (c) to which objection is taken.
At the outset it may be said that in the Bill as drafted there are no safeguards as to the exercise of that wide, unprecedented power such that, I suggest quite seriously, it could have ever been considered acceptable by the Delegated Powers and Deregulation Committee as envisaged in the conclusion of its report.
I make no bones about it. Paragraph (c) is wholly deviant from the constitutional requirement that secondary legislation must lie within the remit of a specific delegation of power under a specific Act of Parliament, so that if, without such remit, an order is made, the judiciary will declare it ultra vires the Act and unenforceable. But paragraph (c), as a total departure, would confer a kind of single source of power under primary legislation to enable the Government to introduce any secondary legislation imposing burdens on persons carrying on any activity. This could not be treated by the judiciary as ultra vires under this generic delegation of power under paragraph (c). This is a totally novel, unprecedented situation of considerable danger.
Why so? Because it would breach the fundamental doctrine of a separation of powers as between the legislature, the executive and the judiciary. In effect, it lifts the lid off Pandora's box to govern by decree for the sake of some administrative convenience. The functions of the judiciary would be slighted; there would be no effective control over misuse of executive
The judiciary will no longer decide, as a matter of construction, whether the secondary legislation is without the delegation of power under the Act; under Clause 1(1)(c) that simply no longer arises. My noble friend Lord Norton of Louth truly said at Second Reading that this is a major constitutional Bill. The powers conferred are excessive and take the Bill beyond deregulation. The problem which lies at the heart of the Bill is the power to change primary legislation by order. My noble friend said that the solution is to remove, or considerably amend, subsection (1)(c). With respect to the House, I suggest that that is the only solution. It is not the solution afforded by the Government's acceptance of the amendments of the noble Lord, Lord Goodhart.
The only ground under subsection (1)(c)--as long as it stays in the Bill--on which the judiciary could declare a new provision ultra vires or unlawful could be that the burden was not proportionate to the benefit. But that is not a question of legal construction; it is a complex process of assessment which would have already been taken by two Houses of Parliament. In those circumstances, no court would intervene with a decision which had been taken by two Houses of Parliament, on a qualitative assessment, approving the order. So there is no effective judicial control. This is a dangerous situation; an unconstitutional situation. The only way to deal with it is to remove Clause 1(1)(c). I beg to move.
Lord Falconer of Thoroton: My Lords, as has occurred already in the course of the Report stage, there now cannot be an order which imposes a burden in accordance with Clause 1(1)(c) unless it also reduces or removes burdens under Clause 1(1)(a). In addition, before the Minister can propose any order which imposes burdens, he must be satisfied that the order is desirable as a result of the burdens it removes.
The purpose of including Clause (1)(c), as has been made clear at all stages, was to permit the streamlining and improvement of regulatory regimes, very often by reducing many burdens but, in addition, perhaps replacing five burdens with one. If the proposal of the noble Lord, Lord Campbell of Alloway, was to be followed, that would not be possible. The decision for the House in relation to the noble Lord's amendment is whether one wants to remove that ability. Does one want a Bill which allows regulatory reform orders where indeed burdens can be imposed, but only in the context of an order that removed other burdens and allowed the streamlining of regulatory regimes? I would respectfully suggest--particularly having regard to the safeguards which have now been introduced as a result of the amendments of the noble Lord, Lord Goodhart--that the far better course is that one should allow such regulatory reform orders.
I could not disagree more with the way in which the noble Lord, Lord Campbell of Alloway, put his case. He said that there were no safeguards. There is a requirement that the Minister has to be satisfied that
This is a parliamentary procedure and it is for Parliament to ensure that appropriate orders are allowed and inappropriate orders are not allowed. I respectfully invite the noble Lord to withdraw his amendment.
Lord Campbell of Alloway: My Lords, as always, I listened with respect to what the noble and learned Lord said. I heard his suggestion that what he proposes is a better course. I profoundly disagree for the reasons I have given. I am also very concerned that the provisions in Clause 1(1)(c) are not being treated as a matter of strict construction. That is our duty and advisory function when considering any Bill and the use to which the provisions could be put by any government. We have heard protestations from the Government Front Bench as to the use to which they intend to put paragraph (c) and not on matters of policy, whatever that may mean. Reference has been made to good governments, wicked governments and control freak governments. That is simply not to the point having regard to the plain provisions of the Bill which is about to become a statute.
This is not the time to carry on further argument. Obviously, the noble and learned Lord and I look at this matter from a totally different point of view. It is also obvious that the representation of our respective cases cannot marry exactly, but there is no reason why we should not regard each other's views objectively. I would certainly like further time to study the observations made by the noble and learned Lord. On that basis, I beg leave to withdraw the amendment.