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Lord Borrie: As I indicated at the beginning of our debates today, I feel that this is perhaps one of the more fundamental amendments to the Bill. Although the points made by the noble Lord, Lord Goodhart, are somewhat modified by his second amendment, Amendment No. 9, Amendment No. 6 standing by itself appears to strike at the very roots of the Bill. The noble Lord, Lord Goodhart, quoted the Second Reading speech of my noble and learned friend the Minister. While the Bill is very much concerned with making it easier to improve and develop the deregulatory objectives of the 1994 Act, it is something more. It is meant also to enable the Government in the first place and Parliament and its scrutiny committees in the second place to examine the possibility and desirability of making a regulatory reform order that involves imposing new burdens as well as deregulating.
Lord Goodhart: I am grateful to the noble Lord for giving way. I should make it clear that for me, although obviously not for the noble Lord, Lord Norton of Louth, Amendments Nos. 6 and 9 are Siamese twins. I would in no way wish to see Amendment No. 6 accepted without Amendment No. 9.
Lord Borrie: I am delighted to hear that. Otherwise I would wish to make my remarks more extreme in terms of condemning Amendment No. 6. In relation to both amendments, my noble and learned friend the Minister, the noble Baroness, Lady Buscombe, and others have helped to explain the use of the word "proportionate", which is one of the key safeguards in Clause 1. We have also had discussion on Clause 3, particularly Clause 3(2), which states that the Minister must be of the opinion that the provisions of the order strike a fair balance.
One could go on to talk about all the other safeguards in the Bill which many Members of the Committee may think are stronger in reality than the safeguards of parliamentary control over an ordinary Bill as it passes through both Houses--the tremendous safeguards of the so-called super- affirmative procedure process, the role of the scrutiny committees and so on. Those safeguards are vital.
It is true that Amendment No. 6 does not stand by itself but is grouped with Amendment No. 9. I do not wish to be condemnatory of the amendment but it strikes me as being somewhat narrow. I shall be interested to hear my noble and learned friend's response to Amendment No. 9. However, I think that I would prefer Clause 1 as it stands.
Lord Norton of Louth: I rise to speak to Amendment No. 6, to which I have added my name. I agree with the noble Lord, Lord Borrie, to the extent that I think it is a fundamental amendment, along with one or two others that we shall discuss later. I should like to respond to some of the points that the noble Lord made.
The noble Lord, Lord Goodhart, will be pleased to know that I agree with him to a greater extent than he thinks. I did not put my name to Amendment No. 9, as I too was looking for an alternative formulation of words, but looking through it I cannot find a better form of wording than the noble Lord has brought before the Committee. Therefore, I support Amendment No. 9, and I take the noble Lord's view that the two amendments are indeed Siamese twins. I want to put the case against paragraph (c) as it stands, which is the basis for then making the case for Amendment No. 9.
The Bill, as we have heard, is designed ostensibly to facilitate deregulation. That was the thrust of the noble and learned Lord, Lord Falconer, in moving Second Reading. The Government propose to use the provisions of the Bill to reduce the burden of regulation on business, charities, the voluntary sector, individuals and legal persons. That is commendable. In order to achieve that goal, we have a measure that introduces what the Delegated Powers and Deregulation Committee has described as an unprecedentedly wide power.
Given the scope of the Bill, it requires detailed scrutiny by the Committee. We need especially to force the Government to justify those provisions that appear to go beyond, or at least to stretch, the purpose of the Bill.
Prima facie there is a case for subjecting it to critical scrutiny and asking whether it should, as it stands, remain in the Bill. Is there a case for the paragraph? Let me anticipate the Minister's justification.
The case for the Bill--I have no doubt that this is in the Minister's briefing--is that the power to impose new burdens is necessary in order to achieve an even playing field. There may be occasions on which ensuring that a regulatory regime is equitable involves burdens being imposed on bodies not previously subject to regulation. Furthermore, as I am sure the Minister will remind us, the provision is subject to the safeguards written into the Bill, and indeed to the additional test of proportionality. My problem with this defence is twofold: first in terms of scope and secondly in terms of appropriateness.
I pointed out on Second Reading, echoing the noble Lord, Lord Goodhart, that the paragraph is a free-standing one. Winding up for the Government on that occasion, the noble Lord, Lord McIntosh, argued that it was not free-standing, in that it was subject to the other provisions of the Bill. In arguing that it was qualified by other parts of the Bill, he was correct. However, his comments did not negate the truth of the assertion that the paragraph is free-standing in relation to the other subsections of the clause. There is no specified link between the subsections. A Minister may make an order for the purpose of reforming legislation,
As I pointed out on Second Reading, it would be possible--unlikely, but possible--for Ministers to rely solely on this paragraph for introducing orders under the Bill. That would render the Bill a means of imposing only new burdens rather than a tool for getting rid of unnecessary burdens. The making of a new burden under the paragraph has to be proportionate to the benefit that is expected to result from its creation. It also has to meet the tests stipulated in other parts of the Bill. There are thus hurdles, but I am not sure that the opportunity to get even to the starting line should exist. The scope is far too broad. The paragraph is not confined to the purpose for which the Government wish to use it.
The paragraph should, at a minimum, be redrawn to provide that new burdens can be introduced only as a corollary of the removal of a burden and the need to achieve equity in regulation. That is the purpose of Amendment No. 9, and I welcome it. It is clear from the memorandum submitted by the Cabinet Office to the Delegated Powers and Deregulation Committee that the objectives of the clause are meant to tie in with one another. However, it is not clear that, as drafted, they do so.
If the scope is not limited, in the way suggested by Amendment No. 9 of the noble Lord, Lord Goodhart, there is an important question as to the appropriateness of retaining this provision in the Bill. I can see the case for achieving a level playing field. However, I am not certain that a free-standing power to introduce new regulations should be possible through a measure such as this. New regulations should derive from some clearly defined statutory objective.
I appreciate that orders under the Bill--this is the point made by the noble Lord, Lord Borrie--will be subject to rigorous parliamentary scrutiny. However, there is an important principle at stake. The power to impose new regulations should derive from specific primary legislation identifying the purpose for which regulations may be made. Primary legislation has a higher political profile than the order-making process, and it affords more opportunity for all Members to discuss it and propose changes.
Paragraph (c) as it stands is, on the face of it, a step too far within the context of a Bill that imposes such unprecedentedly wide power. I therefore support Amendment No. 6, and as a corollary warmly support Amendment No. 9.
Lord Skelmersdale: Is not that to the point? When one is making new provision, as the paragraph tells us, one is by definition imposing new burdens. If one is imposing new burdens, one is almost always changing policy. If one is changing policy, it should be by primary legislation. Is it not as simple as that?
In his second amendment, Amendment No. 9, the noble Lord, Lord Goodhart, proposes a test of proportionality in relation to any such new burden, a test which I understand the noble Lord, Lord Norton of Louth, to support.
I should like to deal with the matter in two stages. First, is it right that there is the free-standing objective in Clause 1(1)(c)? I accept the analysis of the noble Lord, Lord Norton of Louth, that it is, as a matter of drafting and construction of the Bill, a free-standing objective. That means that one can get through the objective requirement--the requirement of Clause 1--in relation to something that only imposes a burden. It obviously must satisfy all the other safeguards, which are fairly important, but I think we need to address that particular issue.
We believe that it is right for there to be such a provision. I made it clear on Second Reading that it would be used only very rarely, but we believe that there will be circumstances in which it is worth using it. I should also make it clear that in the explanatory notes, at paragraphs 40 and 41, we also said that it would only be very rarely used.
I should like to illustrate the circumstances in which the provision would be used, by way of an example. School governing bodies have responsibilities for some aspects of the repair and maintenance of voluntary aided school buildings. Disagreements often ensue as to who should pay for what--whether it should be the governing body or a local authority. These are time-consuming and frustrating disputes, which lead to an administrative burden on all those concerned. The DfEE could propose a regulatory reform order under the Bill to impose burdens on school governors, making them responsible for all the repairs. Any additional cost burden that they incur under that would be offset by grants. So a burden would be imposed on school governing bodies, but there would be no additional financial burden. It would get rid of the administrative problems that arise in relation to that process.
Additional grants are given on a discretionary basis, and so there is no legal burden to be removed in relation to those. Initial analysis suggested that, in legal terms, this proposal--which is a beneficial proposal and is number 11 in the list that we have--would amount solely to the imposition of burdens.
The noble Lord, Lord Goodhart, referred to another example in relation to the DVLA. I have not had a chance to check whether that is an example of where there is no reduction in burden. It could well be. I shall need to check and write to the noble Lord.
Further analysis has identified the existence of a burden in legislation that can be removed--by which you could justify it--but that is not central to what is being done. It is plainly not inconceivable that this kind of proposal would occur again, where you could not identify some collateral burden which could also be removed.
The question we ask ourselves in relation to this is whether we should really seek to eliminate the possibility of a class of reforms where the imposition of a small legal burden removed a massive administrative one. That would be the effect of Amendment No. 6, which is proposed by the noble Lord, Lord Goodhart.
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