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Clause 1 - Power by order to make provision reforming law which imposes burdens

Regulatory Reform Bill [Lords] – in a Public Bill Committee at 10:45 am on 27th March 2001.

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Photo of Mr Brian Cotter Mr Brian Cotter Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson 10:45 am, 27th March 2001

I beg to move amendment No. 36, in page 1, line 3, leave out `(3) to (5)' and insert

`(3), (3A), (4) and (5)'.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss amendment No. 35, in page 2, line 5, at end insert—

`(3A) No order under this section may be made unless each House of Parliament, following any report made by a select committee of that House charged with functions of examining orders made under this Act, has passed a resolution expressing the opinion that the order is consistent with one or more of the objects set out in subsection 1(a) to (d).'.

Photo of Mr Brian Cotter Mr Brian Cotter Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson

The Programming Sub-Committee discussed the fact that a great deal of work was done in the other place, but through this and other amendments I want to highlight certain matters that could cause concern. Amendment No. 36 would amend the wording of subsection (1). Amendment No. 35 would add a new subsection (3A), which states:

``No order under this section may be made unless each House of Parliament, following any report made by a select committee of that House charged with functions of examining orders made under this Act, has passed a resolution expressing the opinion that the order is consistent with one or more of the objects set out in subsection 1(a) to (d).'.''

If the amendment were accepted, no regulatory reform order could be made unless we and both Deregulation Committees agree that it is consistent with the objectives in clause 1. The amendment would also formally require both Houses of Parliament to ratify such reports.

Although clause 4(1) states that an order

``shall be made by statutory instrument.'', and clause 4(2) states:

``no such order shall be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.'', the amendment to clause 1 is still necessary to provide an extra safeguard against misuse of the procedure. The Bill might well prove an immensely useful tool for removing any unnecessary regulation—indeed, we hope that it will—but the concern remains that it will confer significant constitutional powers on a Minister, who will be able to legislate by order.

I accept that it might be necessary to introduce new regulations to replace those that are being removed, but we must strike a balance and ensure that safeguards are in place. I further accept that debating every order in the House could take up a great deal of parliamentary time, and we do not want to do that. However, the amendment is necessary in order to establish a mandatory provision to examine extensively any order made under the Bill in relation to the criteria laid down in clause 1.

It is true that the Minister will have to explain in a document laid before Parliament how an order relates to the provisions in clause 1. However, the amendment would perhaps deter those who might want to abuse the power in the clause in future. It specifically draws attention to the fact that parliamentary scrutiny should occur with regard to the objects outlined in clause 1.

An order would have to be approved after favourable Select Committee reports and ratification by both Houses that would concentrate on those objectives. The amendment is intended to place in the Bill a statutory requirement that a Select Committee of each House must report to Parliament on the proposed order. Although it is not for the Government to prescribe parliamentary scrutiny procedures, it is necessary to outline how the procedure should operate because of the unprecedented powers that are available in the Bill. Indeed, concerns about that matter have been expressed in the other place. Additionally, the future operation of the other place is in a state of transitional reform. I shall be interested to hear the Minister's response in light of general concerns about the lack of balance on deregulation in the Bill.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

I shall declare any interests that may be relevant to the Bill, which is extraordinarily wide in its scope. People may know that I have a small management consultancy through which I advise the Communications Management Association and a company called Trevor Gilbert and Associates. I also own several houses that are let out as a business.

I should like the Minister to address my concern about changing the procedures of the House. I would not argue that the time legislation takes in Committee or on the Floor of the House should be shorter or that legislation should be programmed. My concern, which relates to the amendments, is about the speed with which a Government proposal can become law. People outside the House may not have an opportunity to make representations to Ministers and Members of Parliament. That is relevant to the amendments because, if a Committee approves legislation and moves rapidly through a deregulation order, the matter will not be considered in both Houses of Parliament.

The Government, who want to get to the end of a Bill's consideration and rush legislation in Committee, have a tendency—I have seen it recently—to leave an insufficient gap between proposal and enactment. In the nature of our affairs, legislation that goes through both Houses of Parliament is subject to a delaying factor. If it has been discussed in the House of Commons there is a pause before it goes to the House of Lords, or vice versa. That enables people to say, ``I have examined what was said in Committee and I am concerned. However, I can make representations that will be discussed in the other place.''

Photo of Mr Brian White Mr Brian White Labour, North East Milton Keynes

I sit on the Select Committee on Deregulation, which is currently considering three orders. Is the hon. Gentleman aware that there is a consultation procedure built into that process? The Committee examines consultations and has the power to call witnesses, which we have done on several occasions. That provides the safeguards that he is discussing.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

I am grateful to the hon. Gentleman and I admit to being unfamiliar with Select Committee procedure. I commend the excellent process whereby Select Committees do such work, which involves full consultation. My concern, which is why I am making these brief remarks on the back of the amendments, is to ask the Minister whether the new procedure will include periods during which representations can be made. At the end of the day, the regulations make little difference to us as parliamentarians, but they may be life or death to those trying to run a business. I hope that the Minister will respond to that.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

I am delighted that you are chairing our proceedings, Mr. Cook. You always keep me in order and you are much stricter than other Chairman under whom I have served.

I start by declaring an interest. I have businesses, which groan and suffer because of the extra regulation that has required unnecessary bureaucratic time-wasting. My staff complain to me continually about the time they must spend dealing with regulations. I am delighted to be a member of the Committee and to try to bring about a reduction in the burdens that have increased dramatically during the past four years.

When I read the amendments, I was amazed, as always, at the Byzantine skills of parliamentary draftsmen and those who table amendments. The amendments have an arcane beauty and I usually have great difficulty following them. Amendments Nos. 36 and 35 must hang together because they cannot hang separately.

We are not against the amendments tabled by the hon. Member for Weston-super-Mare (Mr. Cotter), although they seem to have an element of goldplating. I take the points made by him and by my hon. Friend the Member for South Dorset (Mr. Bruce) who said that the Bill will provide tremendous power above and beyond what is normally given to Committees and operations in the House. This Committee's responsibility is to ensure that that power will be used sensibly and correctly and will not be open to abuse.

It was difficult to appreciate what the hon. Member for Weston-super-Mare said and to square that with the words of the noble Lord Goodhart, the Liberal Democrats spokesman when the Bill was discussed in the other place. On Second Reading he expressed strong views on some aspects of the Bill, particularly the first part. He said that paragraph (c) is objectionable because it

``would enable an order to be made to increase burdens without any offsetting removal of other burdens''

He continued:

``I am unhappy with a free-standing power to impose new burdens. I believe that the thrust of the Bill should be deregulation—[Official Report, House of Lords, 21 December 2000; Vol. 620, c. 861.]

I know that my noble Friends in the other place were very much taken with the wise words of Lord Goodhart and supported some amendments. I commend that rare and unusual event of the Liberal Democrats working with the Conservative party—the Liberal Democrats are blood brothers with the Labour party and work with it daily. You will remember Mr. Cook, the enthusiasm with which the Liberal Democrat representative supported the Minister during the procedural debate the other day. He had to ask the Minister how he should vote to support the Labour party on that measure. You are giving me that steely look again, Mr. Cook, so I shall get back to the amendment.

The amendment would introduce subsection (3A) into the clause and refers to the orders being passed by both Deregulation Committees. We have to accept that those two Committees will not always be independent paragons of parliamentary procedure, unattacked by or unattached to party pressures. We have already seen how Committees, with their large majorities, can push through measures with which certain members of the Government may be unhappy.

Photo of Mr Brian White Mr Brian White Labour, North East Milton Keynes 11:00 am, 27th March 2001

Will the hon. Gentleman give an example of that happening in the Deregulation Committee, or in the Delegated Powers and Deregulation Committee— its equivalent in the House of Lords?

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

It is interesting that those Committees refer to ``deregulation'', yet the Bill talks about ``regulation''. Over the past four years, we have seen what has been considered by members of the Deregulation Committee. It has had to tackle so few measures that that I am amazed that it had the opportunity to meet at all, let alone discuss anything with which it disagreed.

Photo of Ian Stewart Ian Stewart Labour, Eccles

How can the hon. Gentleman assert that they have ``seen'' what has been going on when Conservative members of the Deregulation Committee rarely turn up?

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

I am not responsible for attendance at the Deregulation Committee, but I understand that the meetings are ineffectual and achieve very little, except for the ban on Sunday dancing.

Photo of Frank Cook Frank Cook Labour, Stockton North

Order. This is quite fascinating, but I am having difficulty relating what is being said to the amendment under discussion. Will the hon. Gentleman confine his remarks to the terms of the amendment?

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

You are absolutely right, Mr. Cook. I apologise for rising to the bait of the Opposition Members. It is something that I am prone to do, so I look to you to protect me and stop them. I want to get on with this as I can see that you are giving me your piercing look again, Mr. Cook.

The hon. Member for Weston-super-Mare referred to the measures going through the two Committees. I was making the point that however independent and virtuous the Committees may be, they could be subject to Executive pressure. Therefore, we need to ensure that the Bill provides checks and balances and that the ministerial aspect, which the hon. Gentleman mentioned, can be checked.

Photo of Mr Brian Cotter Mr Brian Cotter Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson

I thank the hon. Gentleman for emphasising that point. Concerns about the transitional nature of the procedures in the other place lie behind my amendment. We want to ensure that the other place will work properly when dealing with these matters in the future.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

The hon. Gentleman is absolutely right. We shall not be opposing the two amendments because we are as one in our desire to ensure that the Committees in both Houses have the necessary checks and balances. As we go through the Bill, I hope that the Government will accept that the present control of the Executive may not stay that way for ever—within a month or two, there could be a dramatic change. We want the Bill to proceed. We do not want it to be used as a way of adding more regulations that may not be successful or desirable under the traditional methods of both Houses. We shall support the hon. Member for Weston-super-Mare if he presses his amendment, but I hope that the Minister will accept it when he realises that there is extra support for the proposal.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I shall deal first with the comments made by the hon. Members for South Dorset and for South-West Hertfordshire (Mr. Page). The main thrust of their comments concerned the consultation procedure, whether anything could go wrong with the process and whether they should be worried about changing the procedures of the House. Later in our proceedings, we shall be discussing amendments, which deal with the consultation process and the protections that are built into the Bill. I hope that we can persuade hon. Members that the procedures are the same as those provided under the Deregulation and Contracting Out Act 1994, known as ``super-affirmative'' procedures, which have worked well. There are extra protections in the process because the power provided by this Bill is wider than in previous legislation. That is all I want to say about the detail at present because we shall debate these issues later.

I can tell my hon. Friend the Member for Eccles (Mr. Stewart) that it would be instructive to look at the voting records of the two Committees to see whether there is historical evidence that they looked for party political advantage or took short cuts. I think that I am right in saying that neither of the two Committees has ever divided. Since the 1994 Act, they have worked on a basis of consensus. Indeed, the Government have disagreed at times, but have never forced the point; they have withdrawn and represented the deregulation orders in a different form.

Photo of Mr Brian White Mr Brian White Labour, North East Milton Keynes

Is it not the case that the Deregulation Committee took a position contrary to that of the Government on certain proposals in this Bill and that after much argument, the Government eventually acceded to some of the points being made?

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

My hon. Friend is right. During the consultation process, the Committees made valuable comments, which the Government met. He is right, too, about the last but one order on Sunday dancing, which went backwards and forwards on a number of occasions.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

That gives us a happy picture. The Minister rightly stresses that we shall be considering the formal procedures for scrutiny of an order later in the Bill. Amendment No. 36 relates specifically to the relationship of the Select Committees in both Houses and the draft orders. Will the Minister reiterate undertakings that have been given previously by his noble Friends that the Government will not proceed with an order if it is the subject of an adverse motion by the relevant Committee in either House?

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I am happy to give the hon. Gentleman the commitment that, in the light of an adverse report, the Government will not proceed, but will reconsider the proposal. They would either withdraw it or represent a different order.

Before I turn to the bulk of the amendments, the hon. Member for South-West Hertfordshire mentioned the noble Lord Goodhart's comments on Second Reading, which led to the amendments that connect clause 1(1)(a) to any regulatory reform order; his comments bore fruit.

Turning to the amendment moved by the hon. Member for Weston-super-Mare, it is fair—as opposed to an earlier comment—to say that the two amendments are related. Amendment No. 36 is an enabling amendment that would allow the Bill to make sense if amendment No. 35 were accepted. The important part of amendment No. 35 states:

``the order is consistent with one or more of the objects set out in subsection 1(a) to (d).''

I am not a lawyer, but I understand what he is driving at—he is looking for extra safeguards. However, in non-legal language that is tautological. He is arguing that we must write into the Bill that its objects must be followed, but its objects have already been stated. Writing the objects of the Bill twice would be repetitious and unnecessary. Consider the opposite case: if a Minister were to present a regulatory reform order or the Committees were to agree a regulatory reform order that was not in line with the objectives, in legal language it would be ultra vires, so it could not happen. In that sense, I understand the hon. Gentleman's motive, but his amendment adds nothing to the Bill. He is arguing that the law should be the law and that it should therefore be enforced.

I draw the hon. Gentleman's attention to clause 6(2)(b), which describes the document that must be laid before Parliament. It does not say that the document's objects must be the objects of the Bill, but they clearly will be because that will be the law. However, it does say how the proposals further the objects mentioned in clause 1(1)(a), which, of course, every regulatory reform order must contain.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I apologise for delaying the Minister. He is being slightly harsh on the hon. Member for Weston-super-Mare since the amendment's purpose is not only to state that the law must be the law and that if an order is brought forward it must be compliant with the objects of the Bill. That is, to a degree, a matter of opinion and I am sure that the Minister is aware of the extent to which paragraphs 3(2)(a) and (b) make it clear that there is a degree of opinion in the extent to which an order meets the objects set out in paragraphs 1(1)(a) to (d). The amendment would allow persons other than the Minister, such as members of Select Committees, to have an opinion about that central issue.

There is nothing to stop Select Committees having an opinion. Indeed, I suspect that when they come to examine orders they will carefully consider whether they are compliant with the objectives of clause 1. The question, however, is whether we should rest on Ministers' undertakings that they will not proceed if there is an adverse report, or whether we should write in the Bill that the Deregulation Committee can stop the order proceeding by failing to give a report to that effect.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I was not intending to be mean to the hon. Member for Weston-super-Mare. By the end of these proceedings I hope to have persuaded everybody that this is a good Bill, and that we are all rowing in the same direction. There is no party political division over the objectives.

In reference to the points made by the hon. Member for South Cambridgeshire, there are subjective tests within the Bill. Later amendments, which will probably be discussed at length, also relate to that.

The Bill's objectives are clear. The amendment is redundant because it simply states that those objectives should be met. I hope that the hon. Member for Weston-super-Mare will be persuaded of that argument. Of course, the Committees will have to be persuaded that the regulatory reform orders are in order.

Photo of Ian Stewart Ian Stewart Labour, Eccles 11:15 am, 27th March 2001

The amendment is not necessary because of the strict criteria to which the existing Committee works. There is a rigorous consultative process, and the Committee also makes sure that the correct balance is achieved between the removal of burdens and the need to ensure that there is no detriment to any party. That balancing effect is a key part of the Committee's work.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I thank my hon. Friend for that point. When I said that the Committees had not divided, I meant that they had not divided on the final report that is put before both Houses. I hope that that is clear, and I ask the hon. Member for Weston-super-Mare to withdraw the amendment.

Photo of Mr Brian Cotter Mr Brian Cotter Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson

I feel much better since the hon. Member for South Cambridgeshire stood up for me. Such support from Conservative Members is quite surprising. The Minister has not, however, been too harsh. The hon. Member for Eccles also mentioned strictness, so we seem to be getting off to a harsh and strict start.

It was important to discuss the question of the two Committees achieving the right balance when the Bill is implemented. That is of great concern, but it has been emphasised by our debate. In the light of the Minister's comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I beg to move amendment No. 1, in page 1, line 9, after ``is'', insert ``necessary and''.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this is will be convenient to take amendment No. 3, in page 1, line 14, after first ``is'', insert ``necessary and''.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

Amendments Nos. 1 and 3 relate to clause 1, which contains the objectives on which the rest of the Bill essentially hangs. It is important that we make those objectives as clear and accurate as possible.

The amendments relate to separate parts of clause 1. Amendment No. 1 relates to line 9, which concerns the re-enactment of provision—the amendment of a scheme of regulation—and burdens imposed on any persons by that re-enactment. As drafted, the clause provides that any imposed burden must be

``proportionate to the benefit which is expected to result''.

The purpose of the amendment is to specify that the burden must be both necessary and proportionate.

The same applies to paragraph (c)(ii) and the making of new provisions. Unlike the Deregulation and Contracting Out Act 1994, the Bill does not simply allow the reduction and removal of burdens and in that process secure amendment of the specific provision in question. It goes wider and allows new burdens to be imposed in creating a scheme of regulation. Paragraph (c) deals with that and anticipates that, if an order imposes a new burden that will affect any person, it must be

``proportionate to the benefit which is expected to result from its creation''.

The purpose of amendment No. 3, as of amendment No. 1, is to ensure that the burden will be both necessary and proportionate.

During our previous debate, I referred briefly to provisions in clause 3(2) which provide that Ministers must subject orders that create burdens to various tests. There should be a fair balance between the public interest and the interests of persons affected by the burden being created, and there should be a balance between the burdens removed or reduced and the beneficial effects overall to ensure that it is desirable for the order to be made, having weighed that against new burdens created. Those are the subjective tests, to which we shall return, so I shall not dwell on them now. They relate not to the original question of what objectives should be set out in clause 1, but to the tests of proportionality, fair interest and desirability to which Ministers will subject orders under clause 3.

I return to the objectives. On Second Reading, we were critical of the Bill in principle and of the way in which it enabled new burdens to be created. We want the Bill to have a wholly deregulatory effect. I shall not elaborate on that, but if it is to have a reregulatory effect and create new burdens, that should be constrained to the greatest possible extent. The addition of the word ``necessary'' so that there is a requirement that, when burdens are imposed, they must be both necessary and proportionate, would deliver precisely the effective constraint on Ministers that is contemplated as we go down a different path from the 1994 Act.

I hope that it is self-evident that, if something is considered to be proportionate, it does not follow that it is necessary. There may be circumstances in which Ministers wish to reregulate and create a new scheme of regulation, considering the additional burdens to be imposed, either in re-enactment or new provisions, to be proportionate to the benefit which flows or the reduction and removal of burdens elsewhere. However, the point is not whether Ministers have a general sense of the overall proportionate nature of the reregulation, but whether, when creating burdens and using a power that was originally designed for deregulation, Ministers create new, unnecessary burdens. Just as the word ``necessary'' is applied to protection elsewhere in the Bill--there should be retention of necessary protection--the test of necessity should be applied when any new burdens are created. That should be at the heart of the order-making power. Ministers should create burdens, whether by re-enactment or new provision, only when they are necessary to deliver other benefits or to reduce or remove burdens elsewhere.

In our view, it is important that the word ``necessary'' be inserted in the two relevant places in clause 1. One principal benefit is that Ministers would be constrained in their use of the order-making power, thus keeping it closer to the purposes for which it was intended. Moreover, as the Minister rightly pointed out in the previous debate, Ministers will translate whatever is said in relation to the objects mentioned in clause 1(1) into justification in the document to be laid before Parliament, which is provided for in clause 6. The amendment would add a new test to the burdens that will be created or imposed, in that the document would have to demonstrate that they were necessary as well as proportionate. On that basis, I hope that the Minister will respond positively to the amendments.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

If I may begin with a slightly flippant remark, the hon. Gentleman will not be surprised to hear that Government have no intention of introducing unnecessary burdens. Similarly, I would be surprised to discover that he considered that a complete and adequate answer to the points that he raised.

Before I turn to the central issue, I shall deal with the hon. Gentleman's comments about judgments that have to be made. He implied that the proportionate test is a subjective one, but it is not. The Bill does contain subjective tests, but the proportionate test is not one of them. It is a legally understood term, and courts are used to balancing one matter against another.

I should also point out that the issue was discussed at length in the other place. Lord Falconer asked whether anyone could produce an example of something that was unnecessary but proportionate, or vice versa, but no example was given. The necessary test is bound up in a definition of ``proportionate'' that explains the matter neatly: if it is not necessary to do something to secure the benefit, it is necessary not to do it in order to be proportionate. In case members of the Committee would like me to repeat that definition, I shall do so: if it is not necessary to do something to secure the benefit, it is necessary not to do it in order to be proportionate. In other words, something unnecessary is likely to be disproportionate, and if it is proportionate it will pass the necessary test.

I hope that that is a clear exposition of the way in which ``proportionate'' incorporates ``necessary'' in the test. The term is not subjective, and it is difficult to imagine an unnecessary burden that is also proportionate. In the light of those points, I hope that the hon. Gentleman will withdraw the amendment.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal 11:30 am, 27th March 2001

I am grateful to the Minister for his response—indeed, I even understood it.

The Minister said that his was a flippant remark, but he will not be surprised that we take the view that, although it may not be the Government's intention to introduce unnecessary additional burdens, in practice, the introduction of burdens through regulations is often unnecessary. However, that is a subjective test. At the risk of becoming tortuous, the issue turns on whether, owing to the nature of the quasi-legal meaning of the word ``proportionate'', the word ``necessary'' is not necessary. In plain English, if Ministers intend that we should introduce only burdens that are both necessary and proportionate, why cannot the Bill stipulate that?

You, Mr. Cook, will have heard, even more often than I have, hon. Members say, ``I am not a lawyer, but'', then go on to advance lawyers' arguments as to why we should proceed in a certain direction. The purpose of the Bill is to convey the Government's intention in relation to the imposition of burdens. I stress the point that the Bill enters entirely new territory, and is distinct from the Deregulation and Contracting Out Act. It deals with imposing burdens in ways that are not necessarily precisely intended to reduce and to remove other burdens. It also imposes burdens in places where they are intended to deliver benefits, not necessarily to reduce and to remove burdens. We must therefore be careful about specific phrasing. Our understanding of the word ``proportionate''—

Photo of Ian Stewart Ian Stewart Labour, Eccles

The hon. Gentleman does not follow through with his own party's arguments about the importance of deregulation. Does not he accept that all Governments, when placing burdens for the good reasons that he has explained, at some point have to review those regulations, because they may have run their course and become irrelevant? That is why the deregulatory aspect is necessary.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

The hon. Gentleman tempts me into a different debate, which we may have later on, concerning the extent to which, when regulatory burdens are imposed—even Conservative Members would not contend that there were no proper circumstances in which regulations should be imposed—they should be tested for their necessity, subsequently for their effectiveness, and removed if they do not meet those tests. The point of this test is to consider regulations not in the sense of subsequent examination, which we shall cover at a later stage, but at the point in the process at which an exceptional power—the super-affirmative procedure, which was originally intended for a deregulatory purpose—is used for a reregulatory purpose, imposing new burdens simply because it is believed that benefits will flow from doing so: benefits that will not necessarily be connected and proportionate to the reduction and removal of other burdens.

The subsequent subjective test should consider the desirability of the imposition of new burdens through the order, together with the reduction and removal of burdens, to ensure that there is an overall benefit in deregulatory terms. We shall come to that debate later. These matters are connected, but not so much so that we cannot disentangle them.

Where burdens are imposed using this exceptional power, we should be clear about what we are setting out to do. I am not a lawyer, but the present understanding of the use of the word ``proportionate'' may be interpreted by a court such that, if it took the view that the creation and imposition of a burden were not necessary in order to secure a benefit, it may strike it out. As we often discover, it does not necessarily follow that all the tests that courts might apply are applied wholly accurately in framing an order that is presented to the House by Ministers.

We must stress to Ministers that, in the scrutiny of legislation—not least that carried out by the Select Committee on Deregulation—we should look for the word ``proportionate'' to be accompanied by the concept of a test of necessity. The layman's view of what is proportionate in respect of the creation of burdens and the delivery of benefits could be different from the definition that courts might apply. As part of the tests set out in the Bill, we want a test of necessity, and we want that idea to be reflected in the scrutiny procedure. I take the layman's view that, if one wishes something to be both necessary and proportionate, one should say so in the Bill. I will press that point if my hon. Friends support me.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

As a fellow layman and non-lawyer, I will make one last effort to persuade the hon. Gentleman not to press the issue.

Where is the problem? We have had a very theoretical debate in both Houses. Those who expect the Bill to cause problems should provide examples. There is a huge absence of such examples from noble Lords and hon. Members. If that does not convince the hon. Gentleman, I will finish with a quote.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I think that it is. The orders that have been made under the Deregulation and Contracting Out Act do not have the provisions proposed in the Bill. We cannot look back to see whether in the past any burdens created have been unnecessary. The question of how Ministers use the Bill in future is difficult to answer on the basis of a long list of unscripted, potential orders. The Government are presenting the acceptable face of reregulation in their examples. They will forgive us if we are sceptical about the use to which the powers may be put in future.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

The hon. Gentleman makes my case. A layman worried about something would be able to give examples. I finish by paraphrasing Lord Falkland, who said that if it is not necessary to say something, it is necessary not to say it.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8.

Division number 1 Adults Abused in Childhood — Clause 1 - Power by order to make provision reforming law which imposes burdens

Aye: 5 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Frank Cook Frank Cook Labour, Stockton North

At this stage, I register my sympathy for those of the Committee who, like me, did not have a Jesuit education.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

I beg to move amendment No. 2, in page 1, line 11, after `a', insert `small'.

It is my pleasure to move the amendment, which has been tabled by my hon. Friend the Member for South Cambridgeshire because of the power that the Bill will confer. Despite what the hon. Members for Milton Keynes, North-East (Mr. White) and for Eccles say about their strengths, independence and impartiality, they will not be here for ever, so their guidance will not always be there to restrain the Executive. A number of members of the Committee have mentioned what may come when discussing the ministerial role in these matters.

I am not criticising my hon. Friend the Member for South Cambridgeshire when I say that I accept that the amendment is not a gleaming, polished diamond. It is more of a rough pebble, but it is designed to put a little grit into the debate so that the Minister can respond and let us know what he is thinking. I should like to think that the Minister and the massive Cabinet Office team who are backing him up will recognise the germ of the good idea that is lying behind the amendment, and that they can table a more polished and effective amendment in the future. Clause 1(1)(c) is so loosely worded that it allows for the possibility that significantly greater burdens will be imposed by means of subordinate legislative powers. The powers being granted in the Bill need to be limited in the way suggested by the amendment because, if they are not, we are writing a blank cheque. We have no idea what could be pushed through.

There is no substantive check on these powers. My hon. Friend the Member for South Cambridgeshire has tried to introduce a degree of sense and sensibility, and has been brutally tossed aside by the Minister. Thank goodness, I have not had a Jesuit education either, which I understand is exceedingly painful, especially when one is young. Nevertheless, I can see through the tortuous toils and it is necessary to have extra checks in clause 1. The word ``small'' would be one of those checks. There are no checks in clause 1—or clause 3—to stop a Minister making an order if he ``is of the opinion'' that the order falls within the objects in subsection (1)(a) to (d).

We can all see the power that that gives a Minister and how the deregulation power in the Bill will be weakened. The test imposed by the word ``small'' would ensure that the balance between the interests of individuals, of small companies, of sectors of the economy and of the public will not be profoundly altered by false ministerial modesty on the scope and impact of the measures that will be proposed.

Lord Falconer of Thoroton argued in another place for the

``high quality scrutiny process'' to be

``used for more substantial items, such as reform of fire safety legislation currently spread over 120 Acts; or reform of weights and measures legislation.''—[Official Report, House of Lords, 21 December 2000; Vol. 620, c. 853.]

That provided some excitement in the House during the past week.

The effect is different, but important, on measures such as those for after-hours child care at schools and for invalid allowances, which the Minister for the Cabinet Office cited when she moved the Bill on Second Reading. If the Bill allows such important measures to be dealt with in Committee, we must ensure that it can safeguard the limit of the potential impact of prospective orders. The amendment would achieve that.

My final point is psychological. Clause 1(1) uses the word ``burden'' four times, but ``removal'' and ``reduction'' only once each. The emphasis should be changed. We should be focusing on reduction and removal, not on burdens. I will not press the amendment, but I hope that the Minister understands why the word ``small'' has been introduced into the debate. Could a Government amendment be tabled, perhaps in the other place, to take account of my concerns?

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office) 11:45 am, 27th March 2001

I understand what the hon. Member for South-West Hertfordshire is getting at. I am pleased that he recognises that the amendment is not a perfect gem.

Let us consider a £10,000 burden on the retail sector, as an example of an occasion when we might want to prevent large burdens being placed on businesses. It would be a relatively trivial amount to the Safeways, Asdas and Tescos of this world, but a huge burden to a corner shop. How would we decide whether £10,000 was small or large? That is why ``proportionate'' has been used in the Bill, rather than ``small''. To call £10,000 ``small'' would be disproportionate in the case of a small business. It would not be disproportionate were it applied to major supermarkets for a licensing regime. I am glad that the hon. Gentleman has signalled that he will withdraw the amendment, and I hope that he recognises that ``proportionate'' is a better safeguard than ``small''.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

If the Minister is unable to define small, what does he mean by ``large''? His noble Friends told the other place that, as with the Deregulation and Contracting Out Act 1994, the Government did not intend these powers to extend to ``large and controversial measures''. We usually recognise something that is controversial by the nature of the ensuing debate, but what does the Minister mean by the ``large'' measures or burdens that are not to be introduced using these powers?

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I think that the hon. Gentleman is confusing burdens and regulatory regimes. In the debates that he mentioned, my noble and learned Friend Lord Falconer gave a commitment, which I repeated on Second Reading, not to use this power to change large and controversial measures.

Mr. Lansley rose—

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

May I finish my point? The regulatory regime on fire is clearly large. We have used that example on various occasions. The quote that the hon. Gentleman gave referred to controversial regimes, as opposed to the size of a particular burden. However, the basic point on burdens is that they are better dealt with by the use of ``proportionate'' as opposed to a term that would be difficult to define in the abstract, such as ``small'' or ``large''.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

I regret to say that the Minister is confusing me. When Lord Falconer argued in the other place that there would be a high quality scrutiny process, which was first introduced under the 1994 Act, he said that it would be

``used for more substantial items''— for ``substantial'' I read ``large''—

``such as reform of fire safety legislation currently spread over 120 Acts''.—[Official Report, House of Lords, 21 December 2001; Vol. 620, c. 853.]

I assure the Minister that fire safety legislation is expensive and large, and that it damages businesses' cash flow and finances. Whether those businesses are small or large, the impact is substantial and there is no opt-out. One must comply with the legislation or one is put out of business.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

The hon. Member for South Cambridgeshire has confused the issue with that quote. The important point made by Lord Falconer and repeated by me is that the Bill, which is a Government commitment, would not be used for large or controversial measures. The list of 51 examples includes some large items, including fire safety regulations. The test of balancing those regulatory regimes in the Bill is whether any burden introduced is proportionate to the benefits, not the definition of whether it is small or large.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I am understanding something that I confess had previously escaped me. My understanding was that undertakings given by Ministers during the passage of the Deregulation and Contracting Out Act 1994 not to affect large or controversial measures had been repeated by Ministers this time round. Indeed, the Minister appeared to give such an undertaking. However, is it not the case that Ministers intend to affect large measures, so long as they are not controversial? We are asking the Minister whether he will give a further undertaking that Ministers will not impose large burdens in the course of affecting measures using that power.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I am pleased to have enlightened the hon. Gentleman about our objectives. When we reach the amendments that he has tabled, which effectively say that this should not be the Regulatory Reform Bill but a deregulatory Bill, we shall debate the issue of moving burdens within regulatory regimes. The general point on the amendment is burdens that are changed should be proportionate to the benefits considered. In our opinion that is a better wording than trying to define ``small'' or ``large'' out of the context of the businesses affected.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I am grateful to the Minister, who is being patient. Let us be clear: he intends to affect large measures using the powers in the Bill and he will only give an undertaking not to affect controversial measures.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I am happy to explain again that the Bill is to deal with the regulatory regimes that were not covered by the 1994 Act, many of which are large. Indeed, we shall mention fire regulations again because they involve 120 pieces of primary legislation and 120 pieces of secondary legislation. The Bill is important because regulatory regimes are contained on many pieces of different legislation; it will benefit business to put them in one place where they can be clarified and improved.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

In view of the explanation given by the Minister, and the fact that we will continue to probe the matter by other means, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I beg to move amendment No. 4, in page 1, line 16, at end insert—

`if recommended by the Law Commission'.

We are still considering the essential issue of the objective of the order-making power created by clause 1. That touches on the vexed question of the removal of inconsistencies and anomalies. When the other place debated an amendment that would have deleted subsection (d), Ministers argued, with some justification, that it would be inconsistent with the structure of the Bill—given that it is intended to effect a new scheme of regulations—were not one of the objectives of such re-regulation to remove inconsistencies and anomalies. Often, when one sees inconsistencies and anomalies and recognises them for what they are, it is not remotely controversial to try to remove them in the course of an order-making power.

The key issue—to echo the scepticism with which my noble Friends addressed the matter in another place—is the extent to which that objective might tend to bulk relatively large in the overall purpose of a scheme of regulation, as distinct from having a deregulatory impact. Ministers and the Executive should not be encouraged to go on an expedition to search out inconsistencies and anomalies as a justification for an order-making power that does not give rise to any significant deregulatory effects. Therefore, we want to be sure that we are clear about the legitimacy of the purpose of removing inconsistencies and anomalies when such an order-making power is used.

In searching for such a source of legitimacy, it seemed to us that the Law Commission was an entirely apt body for the purpose. Other hon. Members will be at least as aware as I am of its work, which is essentially concerned with reviewing the structures of law to try to ensure consistency, simplification and effectiveness. It produces a significant number of reports on law reform, to which the House would normally have to give effect through primary legislation. It would be advantageous if it were possible for Ministers to introduce schemes of legislative reform—as long as they are not controversial—that remove inconsistencies and anomalies and reduce burdens. The amendment would go further, by providing that the specific objective of the removal of inconsistencies and anomalies should stem from Law Commission reports, and therefore—this would be the principal benefit of the amendment—from the whole process of consultation and scrutiny that the Law Commission provides.

Photo of Mr Brian White Mr Brian White Labour, North East Milton Keynes 12:00 pm, 27th March 2001

Given that we are a Committee of non-lawyers, is not one of the problems with our legislative process that it is too dominated by lawyers? The hon. Gentleman seems to want to add more lawyers to the process and to keep a closed shop in existence.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

The hon. Gentleman is being unreasonable. There is a place for lawyers, and it is in the Law Commission. However, he makes a fair point. We are dealing here with an antecedent process to the process of scrutiny by the House and the Deregulation Committee, of which he is a member. It is not the case, therefore, that the removal of inconsistencies and anomalies will stem from a Law Commission process without proper scrutiny by Ministers, officials and the House. There will still be scrutiny and consultation, because the order makes provision for that.

The point is whether Ministers and officials should be able to begin the process by removing inconsistencies and anomalies without prior scrutiny. In my view, the power was created not for that purpose but to reduce burdens. Ministers want to extend the power to achieve wider regulatory reform, and the removal of inconsistencies and anomalies is a subset to that aim. If the amendment were accepted, other benefits that flow from rewriting regulations in a less burdensome form would not necessarily be precluded—Ministers would still be able to go down that path. However, to make the removal of inconsistencies and anomalies one of the order's initial objectives is to make it a prominent one. Under what circumstances should that prominent objective be brought forward?

Photo of Mr Brian White Mr Brian White Labour, North East Milton Keynes

One other Committee that I sit on is the Joint Committee on Consolidation of Bills—I have upset a lot of people through my participation in such Committees—to which the Law Commission made a number of recommendations. There is a long lead-in time for such recommendations, but is there not a danger that the hon. Gentleman's amendment would add to the lead-in time for deregulation proposals?

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

The hon. Gentleman, by virtue of his obvious experience in such matters, may be able further to enlighten us, but I doubt whether the amendment would necessarily lead to an overall delay. Its purpose is not to change the way in which the Law Commission works; in any event, Ministers would not be constrained in any way in their use of Law Commission reports as a basis for bringing forward an order that forms part of a regulatory reform scheme. I should be interested to hear the Minister's views on that.

I shall not disguise the fact that the purpose of the amendment is yet again to constrain Ministers. We do not trust this Government in particular, but a mistrust of Governments in general is built into the Conservative party's genes.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

Including any Government. Governments should not be given free powers to rewrite legislation where scrutiny will be modest and limited. The purpose of the amendment is to ensure that, when Ministers introduce an order with the express objective of removing inconsistencies and anomalies—an objective that is likely to be large-scale rather than trivial—they do so in the light of Law Commission reports. That would ensure that the ostensible purpose is viewed through the consultative process, and that it is robust in relation to the law to which it applies. Indeed, those are matters on which lawyers should advise us.

On that basis, I hope that the Minister will respond positively to our efforts to ensure that the removal of inconsistencies and anomalies will be exercised with care. I hope, too, that he will comment on the extent to which the Law Commission, rather than the desires of Ministers themselves, might be the regular source of such proposals.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I understand that the hon. Gentleman wants to limit the power of the Bill because he does not trust Labour Governments--

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

Or Conservative Governments. I understand that, but his proposal is less consistent than he believes. For example, one of the 51 proposals for regulatory reform covers unfair contract terms and will remove from businesses the costs of having to adhere to two different sets of regulations that are currently in force with substantial overlap. That proposal will be put to the Law Commission and the Scottish Law Commission. When the Law Commission was consulted on the Bill and on whether it should be referred to in the Bill, it stated that it wanted to be consulted only on areas in which it had particular expertise because it was reviewing that part of the law. If we followed the hon. Gentleman's reasoning and there were inconsistencies and anomalies, which are covered by clause 1(1), the use of the Bill would be prohibited for no good reason. That is not sensible. I shall give an example.

During the debate on the Postal Services Act 2000 (Determination of Turnover for Penalties) Order 2001 on 19 March, the hon. Member for Somerton and Frome (Mr. Heath) spotted that the order made anomalous or inconsistent provision on what would happen in the case of a breach of a licence which the commission considered had lasted for exactly two years. It provided for what would happen in the case of a breach of a licence which the commission considered had lasted for less than two years or for more than two years. It was possible to deduce logically what the position should be if the breach was exactly two years, but it did not fit in with the order.

That is an example of an anomaly or inconsistency that could be dealt with if a deregulatory power were attached to it by the Bill. If problems can be easily dealt with by the regulatory reform process with all its safeguards and the Law Commission is not considering that part of the legislation, it is not sensible or consistent to be unable to use the process.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

I had the privilege of serving on that Committee with the hon. Member for Weston-super-Mare and we both expressed our concern at the savage penalties being introduced. The Minister will recall that our argument was dismissed, but, when the Bill went to another place, the Minister there rectified the position and no harm was done.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I am grateful to the Minister for elaborating on the relationship with the Law Commission. I am aware that it is examining the legislation on unfair contract terms. I accept his point that, if we are dealing with a relatively limited and specific instance such as the one that he gave in his example, it would be undesirable to be restricted from removing such inconsistencies and anomalies.

I would like the Minister to respond to the real question, which is rather different. Under clause 1, it is possible to introduce an order, the objective of which is to remove inconsistencies and anomalies, so long as under clause 3(2)(b) it

``removes or reduces one or more burdens, or has...beneficial effects''

that make it desirable. A scheme designed around the removal of inconsistencies and anomalies might have the beneficial effect of simplifying the law and give rise to an order that was substantially, if not legally, about the removal of such elements. Can the Minister make it clear that, wherever possible, such a scheme of regulatory reform will be the subject of a prior report from the Law Commission? If it were suitable for the Law Commission to undertake such work, would it be invited to report on the issue before it was brought before the House and an order was introduced? If that does not happen, we may be caught between two parallel processes: an Executive-led regulatory law reform and a judiciary-led law reform. They may not operate sequentially, but unduly extend the process of reform.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I am happy to expand on my previous comment by saying that, where the Law Commission has expertise, the Government will consult it and the Scottish Law Commission. If its expertise is not in that area, it will not be sensible to consult it; it would not have the resources or expertise to produce the work. I hope that I have persuaded the hon. Gentleman that the amendment would prevent sensible reforms that come from sources other than the Law Commission. To accept the amendment would mean that important reforms were stopped or slowed down because the Law Commission could not look at them at a particular time. That is not sensible, so I ask the hon. Gentleman to withdraw the amendment.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I am grateful that the Minister has elaborated on that point. In view of the positive and constructive nature of the Minister's response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I beg to move amendment No. 5, in page 1, line 16, at end insert—

`(1A) In exercising the powers in subsection (1) above Ministers shall act to simplify the law and to produce orders easily comprehensible to those affected by them.'.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to take amendment No. 6, in page 1, line 16, at end insert—

`(1B) All Ministers of the Crown shall keep under review the legislation for which they are responsible to identify enactments suitable for amendment by regulatory reform orders under subsection (1) above.'.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

Amendments Nos. 5 and 6 have different purposes that I will explain.

Amendment No. 5 follows on from our previous discussion. It is clear that the objective of the legislation is not just to remove burdens, but to reform legislation. I am sure that the Minister will say that reforming legislation is a wider objective than the creation, reduction or removal of burdens; it is intended to make legislation more accessible, simpler and more comprehensible. In seeking to anticipate and to deflect the Minister's argument, I point out that the phrase ``reforming legislation'' does not have—unless the Minister can tell me otherwise—a quasi-legal, technical meaning that demands it to mean simplification and comprehensibility.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I refer the hon. Gentleman to paragraph 36 of the explanatory notes, which makes it clear that reform has a legal definition. It states:

``The term `reform' is given its natural meaning. Section 3(1) of the Law Commissions Act 1965 describes the systematic development and reform of the law as including `the codification of . . . law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law'. In the Bill the term `reform' is intended to have a similar meaning (other than in relation to codification) to that which it has in the Law Commissions Act. The key difference is that the concept in the Law Commissions Act is intended to cover the whole of the law while the Bill is concerned only with burdensome statute law (as detailed below).''

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal 12:15 pm, 27th March 2001

I am grateful to the Minister. As I said at the outset of my argument, I understand his contention that the modernisation, simplification or comprehensibility of the law will be embraced by the term ``reforming legislation''. I am arguing not that it is impossible for that term to embrace such purposes, but that it is desirable that those purposes should be elaborated in the objectives of the legislation.

The removal of inconsistencies and anomalies might be included in the term ``reforming legislation'', but the Government have thought it right to specify the aim of removing inconsistencies and anomalies in clause 1(1)(d). The Minister has explained why that is so. Likewise, notwithstanding what is comprised in the preamble to clause 1, amendment No. 5 seeks to set down that the purpose of the Bill's powers is to simplify the law and to produce orders that are easily comprehensible.

Such simplification and comprehensibility are always Ministers' stated intentions, but, unfortunately, they are not always the experience of those affected by legislation. As I mentioned earlier, if a subsection is added to clause 1 to express those intentions in detail, it might be possible to illustrate them in consultation documents. Under clause 6, those will have to be laid before Parliament.

In the pre-legislative scrutiny, the Deregulation Committee looked for simplification and modernisation. I have become suspicious of the word ``modernisation'' during the past three and a half years, which is why I felt reluctant to repeat it, but simplification and comprehensibility are entirely desirable.

On amendment No. 6, I hope to learn that Ministers intend to keep the opportunity to introduce orders under review. I will not repeat the argument advanced on Second Reading because hon. Members are familiar with it, but, in our experience, the powers available under the Deregulation and Contracting Out Act 1994 have not been used with the same rigour since the 1997 election as before it. The fact that powers are available to Ministers does not mean that they are always pursued with vigour. Amendment No. 6 would require Ministers to continue to review the enactments for which they are responsible, so as to maintain the flow of orders and to keep the Deregulation Committee, or whatever it may subsequently care to call itself, busy with reforming legislation—always, it is to be hoped, with a substantially deregulatory purpose.

The amendments deal with two key points—first, the need for Ministers to be accountable for simplicity and comprehensibility when they introduce orders; and, secondly, the need for a spur on Ministers to ensure that such orders are used. We do not want to find a few years down the line that a whole new Bill is to be introduced as a cover for Ministers' deregulatory purposes, when the powers had been available but were not used.

Photo of Mr Brian Cotter Mr Brian Cotter Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson

I support the hon. Member for South Cambridgeshire on both amendments.

You referred earlier to Jesuitical education, Mr. Cook.

Photo of Frank Cook Frank Cook Labour, Stockton North

Order. I used the word ``Jesuit'', not ``Jesuitical''. There is a difference.

Photo of Mr Brian Cotter Mr Brian Cotter Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson

I am sorry, Mr. Cook. I realised as the word came out of my mouth that it was not quite right.

In my case, Benedictine monks endeavoured to educate me. I leave others to judge how successful, or otherwise, they were. On the one hand, we were encouraged to learn English clearly; on the other, we had to learn a great deal of Latin. I am glad to say that the Church has done away with much of the Latin. I am sure that the hon. Member for South Cambridgeshire will agree that the need to use plain English is integral to amendment No. 5.

The hon. Member for North Wiltshire (Mr. Gray) has already raised the issue of plain English and clarity. Idly flicking through the Bill, I noticed that clause 3 states at line 23:

``by virtue of—

(a) Part V of the Criminal Justice Act 1988 (c. 33), or

(b) Section 292(6) and (7) of the Criminal Procedure (Scotland) Act 1995 (c. 46)''

Perhaps it is impossible for matters to be otherwise phrased in Bills—or perhaps I should have had the Criminal Justice Act or the Criminal Procedure (Scotland) Act in my back pocket. I wonder whether it would be possible in such cases to give some information about what the parts of Acts refer to.

I do not know how Governments should deal with the matter. I have always been told that Yorkshire people speak clearly and to the point, so perhaps they should attend Committees to help us to judge whether Bills are understandable. In common parlance, we talk about bullet points, which might help to make Bills clearer.

Amendment No. 6 is important, too. We need to ensure that there is proactive assessment of legislation in every way possible. That is all the more necessary because of the lack of sunset clauses in Bills. If there are sunset clauses, certain issues will drop away, but the lack of them means that there has to be proactive examination of legislation. I support the amendment and look forward to the Minister's response.

Photo of Mr Brian White Mr Brian White Labour, North East Milton Keynes

Had I got my act together, I would have tabled a similar amendment, and it is sheer incompetence on my part that I did not do so. I have sympathy with the amendment, having spoken on this issue many times. The key words in the amendment are ``easily comprehensible''. One of the problems with our legislative process is that much of the proposed legislation is not comprehensible. Sometimes, Members of Parliament even have difficulty understanding amendments or the original text of Bills. That is not the way in which to conduct parliamentary affairs.

The hon. Member for Weston-super-Mare referred to Yorkshire people, but I am not sure that it was a particularly helpful reference. Bills must use plain English and non-sexist language. This Bill is one of the better ones for its use of non-sexist language, but there are still 20 examples of the use of the word ``he'' when it could have been avoided. Having said that, however, I commend the parliamentary draftsmen and the way in which the Bill has been presented.

Photo of Mr Brian White Mr Brian White Labour, North East Milton Keynes

That proves my point. We need to campaign for comprehensibility not only in this Bill. The procedure should be used to simplify all legislation and to ensure that it is more comprehensible. I do not think that it will need to be written into the Bill if the Minister accepts that the procedure can be used to simplify regulations, so that they are in a language that can be understood by the people to whom they are appropriate. Many people have a problem not with the principle of regulation, but with its detail and comprehensibility. The Bill is a useful way of dealing with such problems. I hope that the Minister will accept that it can be used as a way of modernising legislation—I do not apologise for using that word, as I am responsible for it being in the Deregulation Committee report. It is important to modernise our legislation to ensure that it can be understood even by idiots like me.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

It is interesting to follow the hon. Member for Milton Keynes, North-East. He appears to be trying to set a convention on how Ministers deal with legislation. One of my predecessors in South Dorset, Viscount Cranborne, will become the Marquess of Salisbury. There is of course the Salisbury convention in the House of Lords. I am not sure whether the north-east Milton Keynes convention has quite the same ring to it. I am sure that, in making those suggestions, the hon. Gentleman hopes for our support if the Minister does not provide a proper answer.

I want to talk about which Minister will deal with which matter. It is always difficult when one gets a card the night before a Bill is introduced to get one's own amendments into proper order. Amendment No. 6 states:

``All Ministers of the Crown shall keep under review the legislation for which they are responsible''.

The Minister can help the Committee by explaining which Minister is doing what.

We heard a wonderful example this morning from my hon. Friend the Member for South Cambridgeshire, who tabled an amendment containing the word ``small''. Our systems in the Conservative party are so brilliant that we immediately got the Minister with responsibility for small business to speak on that subject. I say that flippantly, but I am interested in which Departments are responsible for primary legislation and which are responsible for secondary legislation.

A recent example occurred during consideration of the Electronic Communications Act 2000, which was Department of Trade and Industry legislation introduced in the previous Session of Parliament. After much discussion, it was decided that the original draft, which was shown to Opposition Members, was too regulatory. Indeed, it would have imposed enormous numbers of regulations on the communications industry. DTI Ministers rightly slashed it to a shadow of its former self and introduced simple deregulatory legislation. However, the Home Office grabbed the regulations that had been pulled out and included them in the Regulation of Investigatory Powers Act 2000.

The story does not finish there because the DTI was the Department responsible for the secondary legislation that brought in parts of the Electronic Communications Act 2000. The DTI examined the regulations again and effectively—I do not know whether there is a polite way of saying this—castrated the Home Office's secondary legislation by reducing regulation.

The amendments raise the subject of ministerial responsibility. It is important that the Minister grips that issue in his response. A Minister might go to the Deregulation Committee and say, ``We have this deregulation that reduces burdens—it is great,'' and the members of the Committee would tick the box. However, another Minister in another Department might say, ``Hang on a minute. You have removed the burdens on that ministry, but you changed a whole raft of what this ministry was trying to do.'' I have flagged that up as a quick point that I hope the Minister can get to grips with.

Photo of Ian Stewart Ian Stewart Labour, Eccles 12:30 pm, 27th March 2001

My hon. Friend the Member for Milton Keynes, North-East has already outlined his view in relation to the simplification of regulations in law and the use of plain language. I concur with his comments, as does the Deregulation Committee in its report. Clause 6 addresses a feeling that is widely held within the Deregulation Committee. In my view, it does not need to be set out in the Bill, but I should argue strongly, as other hon. Members and I did on Second Reading, that we are discussing the creation of a cross-departmental culture of revisiting regulation and legislation to ensure that better regulation is adhered to at all times. That is the purpose of the Bill. I hope that Opposition Members will withdraw their amendments because they are unnecessary.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

Unsurprisingly, I shall enthusiastically endorse and support the two amendments. My hon. Friend the Member for South Cambridgeshire made a persuasive and intellectual argument, which I immediately took on board. I say that because I referred to his previous amendment as a rough pebble.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

I was relying on the Government to turn it into a polished diamond.

I support amendment No. 5, in particular, in the light of my experience as a former Minister with responsibility for small business, to which my hon. Friend the Member for South Dorset referred. All Governments introduce Bills with the best intentions; once they are enacted, consequential legislation flows. As a result, small business men and women are expected to absorb and handle reams of regulations. In time, they might be visited by a health and safety official or someone from the Environment Agency, the Inland Revenue or Customs and Excise. Indeed, even a representative of the nuclear installations inspectorate could descend on their premises if an examination were considered necessary.

Such people are experts on every single aspect of regulations. They expect the small business man and woman to be equally expert, but that is just not possible. That is why my hon. Friend the Member for South Cambridgeshire was right to table his amendment. The Executive should make a concentrated effort to make life easier for the small business man and woman by producing legislation that can be easily and comprehensively understood, and which allows them a little time in which to carry on their business. I hope that the Minister will give a commitment to making a concentrated effort to employ plain English in our legislation.

Amendment No. 6 offers a golden opportunity for the Minister to spell out what is happening in the various Departments. The explanatory notes contain various flow diagrams illustrating how Bills will whistle backwards and forwards and be checked by worthy and important people such as the hon. Members for Milton Keynes, North-East and for Eccles, who will doubtless subject it to detailed and rigorous scrutiny. However, the amendment would give legislative impetus to existing Whitehall arrangements by compelling Departments to offer new proposals for amending and, one hopes, reducing the regulatory burden.

The right hon. Lady, the Minister for the Cabinet Office, who led the debate on Second Reading, waxed lyrical about matters such as the deregulation impact unit, the Department's thorough appraisal of the costs and benefits of any new proposals and regulations, and so on. She also claimed that no one wants unnecessary or complicated regulation. We all say ``amen'' to that, but the reality is somewhat different. In the past four years, more regulations have been passed than in any previous four-year period. The Minister quoted some immortal answer that I gave, when I was a Minister with responsibility for small business, in response to a question about the number of regulations. I remember that I was embarrassed to admit that we had added many regulations to the statute book and removed few. We were castigated for that at the time, but four years later the problem is getting worse. We want the Bill to become the saviour of the situation.

The Government have the opportunity to apply their bold claims by accepting the amendment. It would cover not just the new regulations, which they have been so keen to introduce since May 1997, but the body of previous legislation that needs regular scrutiny. I look forward to the Minister giving a clear and definitive explanation of how the process will be pushed through, monitored and enthusiastically encouraged throughout Whitehall so that we can gain confidence for the future.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

There are two amendments and three points. I am not sure that the Committee would benefit if I reread paragraph 33 of the explanatory notes, but it clarifies the meaning of ``reform''.

Most of our debate has been taken up with a discussion of plain English and comprehensible legislation. The Government agree that that is a desirable objective. It has been debated several times on the Floor of the House and my hon. Friend the Member for Milton Keynes, North-East had an Adjournment debate on it and referred to it a number of times on Second Reading. Everyone agrees on the objective, but no one has got over the hurdle of deciding whether it is more important to use plain English or to be precise. Hon. Members will know that the Bill provides the possibility of imposing two-year prison sentences and if someone can be charged under an Act of Parliament, it is important that the law is precise, even if it is not in plain English.

I shall appeal to the prejudices of all Committee members and say that it is unfortunate that the law is used by lawyers--

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

Fortunately, we have parliamentary privilege.

On simple definitions, it may be obvious to the Committee what a seller or buyer is, but those words do not cover all the different ways of acquiring or disposing of property so definitions must be included, which may detract from the clarity and plainness of the English.

My next point is particularly appropriate to the Bill, which will necessarily refer to other legislation in attempting to reform and simplify new provisions and to make them clearer. A difficulty in all legislation is the existence of previous legislation. If sections and subsections of other Acts are referred to, those Acts have to be obtained and the new provisions cannot be read as one piece of script. When people's freedom, liberty and costs are involved, it is better to be precise than to insist on the objective of plain English, which is a subjective opinion, otherwise the courts might draw a conclusion that was not intended by Parliament.

Photo of Mr Brian White Mr Brian White Labour, North East Milton Keynes

Does my hon. Friend accept that other legislatures that are based on the Westminster model--for example, in Canada and Australia--have attempted to be precise in language that is understandable? The two are not always in conflict and forethought can provide understandable English with definitions at the end?

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office) 12:45 pm, 27th March 2001

I recognise the weight and power of my hon. Friend's comment. I would be the last person to say that every piece of legislation produced by the House is clear, straightforward and as much in plain English--that is probably bad English--as it could be. Some other legislatures are better at that, which is why the Government are trying to improve their performance.

The Deregulation Committee, which my hon. Friend served so well, can press the Government to improve their performance on deregulation. The distinguished right hon. and learned Member for Rushcliffe (Mr. Clarke) said that the Capital Allowances Bill was a model of plain English, so there is some evidence that, while all is not perfect, there has been improvement. The Government share the Committee's aspirations, but amendment No. 5 would be a mistake.

Amendment No. 6 would require Ministers to keep constantly under review the legislation for which they are responsible. The Bill is a commitment to review regulation and I hope that hon. Members recognise that. The point was made that the Deregulation and Contracting Out Act 1994 has not been used much since 1997 and we went through the reasons for that on Second Reading--it applies to pre-1994 regulation and does not deal with whole regulatory regimes. The Bill is direct evidence of the Government's intention to keep the matter under review.

My right hon. Friend the Minister for the Cabinet Office chairs a panel on regulatory accountability which can call any member of the Government to account for future regulatory programmes for which they are responsible and to explain whether they impose too many burdens on business. In support of that process, every Department with regulations under its control has a Minister with responsibility for current regulation and future regulatory programmes. That is solid evidence that the Government are treating the matter seriously. We may disagree on how much more the 1994 Act could have been used, but the mechanisms and processes in determination of the Government's intention to introduce better regulation and have it place as small a burden as possible on business are clear.

A technical point about the amendment is that it includes no sanction and no period of review to ensure that its requirements are implemented. The Government are implementing the process to which it refers, so the amendment is unnecessary.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I am grateful to my hon. Friend the Member for South-West Hertfordshire and to other members of the Committee for responding so positively to the amendments.

I entirely take the Minister's point that amendment No. 6 involves no sanction. Later on, we will discuss the extent to which Ministers should make regular reports and consider the use that they have made of the powers in relation to existing legislation. On that basis, and because the hon. Member for Eccles was positive about amendment No. 6, but thought that we should withdraw it—

Photo of Ian Stewart Ian Stewart Labour, Eccles

In response to the hon. Gentleman's comments about the Deregulation Committee's powers and its relations with Ministers, he should understand that the Committee already has the power to ask Ministers to come before it, and has made it clear that it will exercise that power annually.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

Indeed, I recall the hon. Member for Burnley (Mr. Pike) making that point on Second Reading.

I do not intend to press amendment No. 6, but amendment No. 5 is a different matter. I was heartened by the support of hon. Members on both sides of the Committee for the purposes expressed by the amendment. I listened carefully to the Minister's interesting exposition of the difficulties associated with phrasing Bills in simpler terms. I did not detect from anything that he said that it is not the Government's intention to try to phrase regulatory reform orders in as simple and comprehensive a form as possible, and indeed he did not dispute the purposes of the amendment. However, he did not address the issue of whether it is desirable to state those purposes in the Bill by adding the subsection that the amendment proposes.

The Minister did not deal with the meaning of the word ``reform''—its natural meaning, that is, rather than its legal meaning, as in the Law Commission's interpretation—which includes the elimination of anomalies. The Government do not agree that because the elimination of anomalies is part of the natural meaning of the word ``reform'', subsection (d) is unnecessary—they believe that it has to be included because they want it to be one of the objectives of introducing regulatory reform orders. Unless the Minister explains to me otherwise, it seems reasonable for us to believe that one of our objectives, in terms of elaborating on the meaning of reform, should be to seek both to simplify and to make more comprehensible the legislation to which regulatory reform orders should apply.

Photo of Ian Stewart Ian Stewart Labour, Eccles

The thrust of my previous comments related not only to amendment No. 6, but to amendment No. 5. The Deregulation Committee is absolutely clear about its role in relation to advising the Government in respect of any anomalous situations, bad wording or the like. That is an existing goal of the Committee, which it will exercise rigorously in future. Therefore, I ask the hon. Gentleman to withdraw the amendment.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

The hon. Gentleman is tempting me by the reasonable way in which he puts his argument. I do not dispute that the Committee has that purpose and mode of operation. However, its role in examining regulatory reform orders would be strengthened if it were able, as with the other objectives in clause 1, to see it stated in the Bill that Ministers should seek to simplify and to make more comprehensible the orders that are introduced.

On amendment No. 6, if Ministers will abstain from fire and forget, we will discuss the question of reporting in more detail. On amendment No. 5, however, I regret to have to tell the Minister that I am wholly unpersuaded by his argument, and must urge my hon. Friends and other members of the Committee to support the amendment.

Question put, That the amendment be made:--

The Committee divided: Ayes 5, Noes 9.

Division number 2 Adults Abused in Childhood — Clause 1 - Power by order to make provision reforming law which imposes burdens

Aye: 5 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I beg to move amendment No. 7, in page 1, line 18, after `Act', insert `other than this Act'.

I shall be brief. I confess that the purpose of the amendment is to seek clarity. If the order-making power were used to introduce substantive amendments to the Regulatory Reform Bill, when enacted, it would heighten the nature of the exceptional character of the powers being taken in this legislation to an absurd level. When primary legislation has been established for this exceptional power, it should be used only in precisely the form set out in the primary legislation, and should not subsequently be amended.

The Minister may say that the amendment is technically deficient. It is not the intention of the amendment that regulatory reform orders themselves should not be capable of subsequent amendment by virtue of the legislation. Subject to that point, if the Minister were to give an undertaking that there is no intention for regulatory reform orders themselves subsequently to seek to change the structure of the Regulatory Reform Act, that would meet the concerns on which the amendment is based.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I am happy to explain that this is an enabling power; it is not a compelling or regulatory regime. The Regulatory Reform Act cannot apply to itself, and the Government have no intention of using it in that way. The same applied to the Deregulation and Contracting Out Act 1994, apart from the ``contracting out'' parts of the Act. I hope that that reassures the hon. Gentleman.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I am grateful for the Minister's clarification. In the light of his remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.