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Lord Falconer of Thoroton: My Lords, I understand the motives for the amendment. It is based upon what was said during Committee but I do not believe that it would be appropriate to put the words on the face of the Bill.

As has been repeatedly stated by everyone involved, the power in the Bill is not suited to large and controversial measures. The entire procedure contained in the Bill would weed out such proposals. A highly contentious issue would come up against serious problems during the consultation period and the Minister, obliged to set all this out in the document he placed before Parliament, would have to reflect that explicitly. The scrutiny procedures in Parliament, involving careful examination by committees and the co-equal status of the two Houses, are such that any Minister would obviously be ill-advised to choose this route.

Of course, that does not mean that no proposal could contain any controversial provision, but the consultation and scrutiny process would allow opposing views to be tested. There will always be disagreements about the best way to achieve a particular goal, however desirable that goal might be, and this Bill provides an excellent method of achieving a consensus as to what that best method might be. However, that is quite different from highly political and highly controversial legislation which would not be suitable for treatment under the Bill. It would be simpler to get such legislation through via primary legislation.

The phrase adopted--namely, "not politically controversial"--also has a degree of imprecision which would not be appropriate for insertion in a Bill. Therefore, for two reasons--first, that the processes envisaged in the Bill would ensure that such a measure never got through and, secondly, that the phrase is

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imprecise--we respectfully submit that the wording is not appropriate to incorporate in the Bill. We invite the noble Baroness to withdraw her amendment.

Baroness Buscombe: My Lords, I thank the Minister for his response. I hear what he says but he will appreciate that we are all searching for a way of identifying the areas of legislation which are appropriate candidates for regulatory reform in this way.

I accept that there is a degree of imprecision in the terminology that we have proposed. It is not ideal; it is not perfect. However, we are deeply concerned that the door is wide open for any form of legislation to be considered relevant or right for regulatory reform as opposed to primary legislation.

We shall consider the matter further and perhaps return to it at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 22:

    Page 3, line 3, after ("remove") insert ("or reduce").

The noble Baroness said: My Lords, in rising to speak to Amendment No. 22, I shall speak also to Amendment No. 39. I do so with some trepidation because it relates to fire safety, although I am using that as an example for the protection of life safety. I have tabled the amendments in response to considerable consultation with outside bodies and concerns expressed to us about some of the implications with regard to regulatory reform. Concern has been expressed that in trying to reduce regulations we might also reduce safety.

Any watering down of regulations protecting life safety is a delicate matter. Proper concern, for example, for small businesses hampered by red tape, should not outweigh the need to maintain an appropriate level of fire safety for employees and the general public. It is possible that regulatory reform procedures could remove antiquated and disused statutes, facilitating modernisation, consolidation and rationalisation of fire safety standards. That must be good.

However, the Fire Safety Development Group in particular worries that the provision could be extended to cut back on fire safety demands. The amendments are intended to ensure continuity and improvement in public safety and ensure that they remain a core principle of good regulation. Many in the fire community believe that the amendments are essential for the Bill to achieve its objectives. They would be consistent with principles promoted in Section 1(2) of the Health and Safety at Work etc. Act 1974, stating that existing health and safety law cannot be replaced unless substituted by legislation which maintains or improves upon present standards. The 1974 Act was a measure taken to rationalise and consolidate safety law.

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Furthermore, the Better Regulation Task Force accepts the need,

    "to safeguard health and safety or protect citizens from harming themselves".

I beg to move.

Lord Goodhart: My Lords, it may assist the noble Baroness to know that, in my experience, when such issues come before the Delegated Powers and Deregulation Committee it interprets the word "remove" as meaning not only to remove absolutely but to remove to some degree or in some part. Therefore, while I entirely sympathise with the noble Baroness's objective, I am not sure that the amendment is necessary.

Lord McIntosh of Haringey: My Lords, I am sympathetic to the thrust of both amendments and to the thinking behind them. Perhaps, with the permission of the Fire Brigades' Union, I may continue to use fire safety as an example. I am happy to do so. I believe that the noble Lord, Lord Goodhart, is right about Amendment No. 22. The point is not merely that the word "remove" will be interpreted by the committee as including any lesser part but also that the word "any" is significant. An order may not reduce the level of necessary protection and the Bill already achieves the purposes intended in Amendment No. 22.

I must give the same reply in respect of Amendment No. 39. As it stands, Clause 6 allows for consideration of,

    "whether the existing law affected by the proposals affords any necessary protection and, if so, how that protection is to be continued".

The amendment would add "or improved, and ensured", and that must be desirable.

I deal first with "ensured". The word "continued" in Clause 6(2)(d) already covers this in legal and legislative terms and there is no need to add the word. The word "improved" is interesting. It is intended to cover those instances when necessary protection is increased. That is not necessary. This part of the Bill deals specifically with the "necessary protection" test; namely, how existing protection is being maintained. It would not be appropriate to dilute that by including other material which was not part of the test. That is not to say that any increase in protection should not be discussed. The point is already covered by paragraph (i) at the bottom of the page. Clearly, the words,

    "any benefits ... which are expected to flow from the implementation of the proposals",

include improvement in protection.

I hope that in this case too the noble Baroness, Lady Buscombe, recognises that, however well-meaning the amendments, the Bill already covers the points which they raise.

6 p.m.

Baroness Buscombe: My Lords, I thank the Minister for his response. I also thank the noble Lord, Lord Goodhart, for his reassurance in relation to the customary response of the Delegated Powers and

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Deregulation Committee to such terminology. The Minister is aware that these are in a sense probing amendments to the extent that we seek reassurance. I believe that I heard words of reassurance in the Minister's response. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 23 not moved.]

Lord Goodhart moved Amendment No. 24:

    Page 3, line 7, after ("opinion") insert ("--


On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 25:

    Page 3, line 10, at end insert (", and

(b) that the extent to which the order removes or reduces one or more burdens, or has other beneficial effects for persons affected by the burdens imposed by the existing law, makes it desirable for the order to be made.").

On Question, amendment agreed to.

Clause 4 [Statutory instrument procedure]:

Lord Phillips of Sudbury moved Amendment No. 26:

    Page 3, line 34, at end insert ("subject to such amendment or amendments as both Houses shall agree upon in respect of any order made under section 1(1)(b) or (c)").

The noble Lord said: My Lords, in Committee on 25th January your Lordships generously allowed me to explain at some length (at cols. 366 to 369) why I believed this amendment to be important. It gives noble Lords the power to amend rather than wholly to reject an order. I hesitated before I re-tabled the amendment. However, I want to raise this fundamental issue again, in particular because at present there is considerable feeling in the country, first, that there is far too much regulation, and secondly, that Parliament is losing its effectiveness in controlling a powerful executive.

I am well aware that one of the principal arguments against allowing the amendment of statutory instruments by either House is that it could slow down the tidal wave of secondary legislation which is habitually put through both Houses. In Committee, the arguments put forward by me and others in support of the amendment were responded to by the noble Lord, Lord McIntosh of Haringey, on the basis that,

    "the super-affirmative process already permits the amendment of regulatory reform orders ... Furthermore, it affords the opportunity for amendment".--[Official Report, 25/1/01; col. 370.]

The first essential point to make clear--I do not intend to repeat the arguments that I put forward in Committee--is that when the noble Lord made those two statements he was not speaking about amendment at all. The truth of the matter is that this House has no power of amendment with regard to secondary legislation. We can kill it or not. If we pass a Motion to annul or a Motion to amend, by convention the effect is to kill the order. That gives the Government three choices: to abandon the secondary legislation; to

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bring it back in a form which is consistent with the Motion passed; or to reintroduce the instrument unamended. But we must avoid confusion by talking about an existing power to amend where none exists. We are in an all-or-nothing situation: if we reject it we risk throwing out the baby with the bath water.

The reason why only one Motion to annul has been passed in, I believe, over 50,000 statutory instruments is precisely that the absence of a power intelligently to amend deters most noble Lords from simply striking down what is, in most of its detail, a sensible and constructive instrument. That is the reason why, on re-reading Hansard, I was wholly dissatisfied with the argument put forward by the noble Lord, Lord McIntosh. One part of his argument with which I agree is that,

    "it is right that both the House and individual Peers should have the power to propose amendments that are thought necessary to a particular draft regulatory reform order. That is essential to proper parliamentary scrutiny".--[Col. 37.]

That is the point. Such a power is essential, and we do not have that power. As a result, Alice in Wonderland circumstances arise, as happened last Thursday, when there was extraordinary confusion in relation to the Local Authorities (Executive Arrangements)(Access to Information)(England) Regulations 2000. That is a natty little title. The House considered two Motions alongside each other, both of which, if passed, would have had the effect of killing the instrument.

Those comments and this amendment, far from containing any implied criticism of the work of the Delegated Powers and Deregulation Committee, endorse the committee's conclusions. Perhaps I may quote the end of conclusion 65 to the committee's second report on the Bill:

    "Only Parliament itself can decide whether this guidance from the Committees"--

here and in another place--

    "and the unfettered and important power of either House to refuse to approve the final draft order makes this unprecedentedly wide power acceptable".

My amendment builds on that and gives your Lordships power to make real improvements. I believe that it would be extremely helpful to the work of Parliament under the provisions of the Bill. I beg to move.

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