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Lord Falconer of Thoroton: I do not intend to repeat the arguments we have just had but will deal instead with the new points raised by the noble Lord, Lord Goodhart. We have already had a debate on this matter in which the burden of my argument was that this is a parliamentary procedure and that it would be wrong to involve the courts in making judgments on a basis which is not simply, "Is it irrational?" or what the right or wrong answer is in relation to necessary protection.
The noble Lord, Lord Goodhart, advanced two separate arguments in addition to those already advanced. First, he said that it was appropriate for the courts to have a greater role because we do not know what will happen in relation to the Wakeham report. With the greatest respect to the noble Lord, Lord Goodhart, I submit that that is a totally wrong approach to take in principle. We must decide on the basis of the current position what are the appropriate ways to deal with regulatory reform orders. If both Houses of Parliament take the view that it is preferable for this to be a process where Ministers form an opinion about the relevant matters and then submit that opinion, in effect, for consideration by the detailed parliamentary processes that are described, Parliament will decide whether to go ahead with the order. It will be broadly unattractive for the courts to become involved as a separate player in determining, for example, whether there are necessary protections. That is the view that we take at present.
For the reasons I have given I should say that it is not a good approach to bring in the courts when otherwise they would not be appropriate simply because of some possibility of the kind identified by the noble Lord, Lord Goodhart. That is how I deal with his first argument.
I turn to his second argument. He was tantalising in his speech because he gave me the impression, wrongly as it transpired, that but for the Wakeham point he was with us. Having suggested that that was the position, he went back to a prepared script. I am not saying that he read it, but he went back to the old mind-set before he had heard the argument. He added one point to the argument. He said that if the committee rejected the view of the Minister it would not go ahead. If, on the other hand, the committee accepted the view of the Minister then there was no prospect--assuming it to be an objective test--of the courts striking down the Minister's opinion. One has no idea whether he is right or wrong. What every Member in the Committee knows is that the courts would approach the issue in a totally different way from the way in which the deregulation committees would approach it. They would hear evidence; there would be litigants fighting out the issue. I can conceive of situations where the courts, looking at the matter through their eyes, having regard to the evidence presented to them and to the adversarial process, could easily come to a different conclusion from that reached by the Minister in his opinion and the committee, which I accept is not bound by the opinion of the Minister, which can look at the matter completely afresh.
With respect to the noble Lord, I do not think his answer that if both committee and Minister reach the same conclusion the courts may never intervene is right. The Wakeham reason is a bad reason. His second reason is based on an over-optimistic view of how the courts would operate.
I return to where we started in this debate. This is a parliamentary process and it should be for Parliament to decide whether it likes and is prepared to approve the orders and it is for Parliament to decide whether the Bill should become law.
I want to make one final point. It was not raised by the noble Lord but it is germane to this matter. The "in the opinion" approach is the one adopted by the 1994 Act. In that Act, on the question of necessary protection, which is one of the important points raised by Members of the Committee, it was decided by the Government that the appropriate course was to start the process by the opinion of the Minister on those
Baroness Buscombe: Perhaps I may interrupt the Minister to suggest that it was working in practice because the parameters of the 1994 Act were much more narrowly defined. That is the fundamental difference between the 1994 Act and what we are discussing today.
Lord Goodhart: I found the Minister's response disappointing. I cannot agree with him. I do not think that we can stick our heads in the sand and ignore Wakeham. It is not as if this is purely hypothetical. This concerns the report of a Royal Commission which was placed before Parliament and on which the Government have indicated they look with some favour. Whether the particular provision with which I am concerned will meet with the favour of the Government is uncertain. It is there and I do not think that we can ignore it, whatever is the appropriate weight to put on it.
On the question of necessary protection, the noble and learned Lord suggested that the Select Committee and a court would look at it in very different ways. He said that a court would hear evidence. But so may the Select Committee. The Select Committee has the power and does indeed hear evidence. We heard evidence on the Sunday licensing order. It is highly likely that, in the case of an order which aroused a great deal of public interest or possibly some controversy, the Select Committee would take evidence and would approach these questions in very much the same way as a judge would approach them. Therefore, I do not think that the arguments stand up.
However, I do not wish to divide the Committee on this occasion. We may wish to come back to the issue again, particularly in view of the support given by the Conservative Front Bench. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Boston of Faversham): In calling Amendment No. 29, I have to point out to the Committee that, if it is agreed to, I cannot call Amendments Nos. 30 to 35 inclusive.
The noble Lord said: It may well be that the Minister will accept that he has already conceded the point that lies behind the amendment. He will recall our discussion earlier in the day--it seems a long time ago now--about whether proportionality is a precondition to the test set out in Clause 3(2). The noble and learned Lord will remember that I asked him whether the test in relation to striking a fair balance between the public
Proportionality is a component part of paragraphs (b) and (c) of Clause 1(1), but not of paragraphs (a) and (d). Given that the Minister is already on record on the question of the relationship between proportionality and Clause 3(2), I seek only his agreement to go on record in relation to paragraphs (a) and (d) of Clause 1(1) to the same effect. If he is prepared to do that, I shall be happy to withdraw the amendment.
Lord McIntosh of Haringey: I have to suspect a trap, and I think it will be better if I respond to the amendment as it is on the Marshalled List and see whether the noble Lord, Lord Kingsland, feels that my response squares with anything that he thinks my noble and learned friend has said.
The amendment would add the "necessary" test, which we have debated in relation to Clause 1, to Clause 3(2) which currently ensures that any order creating a new burden should, in the Minister's opinion, maintain a fair balance between the public interest and the interests of the persons affected by the burden being created.
What the amendment proposes is to make the imposition of any burden possible only if it is necessary in order to remove other burdens. This would be a major restriction on reform. In other words, it goes against the formulation in Clause 1(1)(a) to (d), which we have already debated at considerable length. What we are seeking with the Bill is the power to reform entire regulatory regimes. We have given the example of fire regulations, and there are obviously many more. It is simply not possible to do this under the narrow restriction that the amendment would impose.
The imposition of a burden, however well justified and reasonable, can rarely be linked in a simplistic way to the removal of a burden somewhere else. Overlapping and over-complex pieces of legislation do not allow such a link to be made. The amendment would impose an unnecessary straitjacket.
The safeguards already on the face of the Bill are more than stringent enough to prevent any misuse. As we have heard, every new burden must be proportionate, and every order creating a burden must maintain a fair balance between the public interest and the interests of those affected by the burden. This is in addition to the two tests taken from the 1994 Act: the maintenance of the necessary protection and the preservation of rights and freedoms. Those are tough tests, and they have stood the test of time.