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Clause 3 - Limitations on order-making power

Regulatory Reform Bill [Lords] – in a Public Bill Committee at 4:30 pm on 27th March 2001.

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Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal 4:30 pm, 27th March 2001

I beg to move amendment No. 8, in page 3, line 2, leave out

`the Minister making the order is of the opinion that'.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this we may discuss the following amendments: No. 9, in clause 3, page 3, line 8, leave out

`the Minister is of the opinion'.

No. 10, in clause 3, page 3, line 9, leave out `that'.

No. 11, in clause 3, page 3, line 12, leave out `that'.

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

Amendments Nos. 8 to 11 are designed around the specific objective of removing from the structure of the Bill the provision that, in applying the four tests, which are subsequent to the objectives of the order-making power in clause 1, a Minister must form an opinion. The amendments would make the four tests less subjective and more objective.

It may be helpful if I refer to each amendment and make it clear which does what. Amendments Nos. 8 and 9 are substantive; amendments Nos. 10 and 11 are consequential. Amendments Nos. 8 and 9 both relate to clause 3(1), which concerns two tests. The first test is that the order should not ``remove any necessary protection''. The second test in clause 3(1)(b) is a new test that goes beyond the Deregulation and Contracting Act 1994. It states that the order should not

``prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue exercise.''

That, for convenience, is called the reasonable expectations test.

Those two tests are currently in the structure of the Bill. A Minister making the order must be of the opinion that the order does not remove either reasonable expectations or necessary protection. The purpose of amendment No. 8 is to remove the subjective view of the Minister on those two matters.

Amendment No. 9 concerns clause 3(2)(a) and (b), which describe the two other tests. Paragraph (a) states that the first test should

``strike a fair balance between the public interest and the interests of the persons affected by the burden being created''.

Paragraph (b), the desirability test, states that the order may create a burden if the Minister is of the opinion

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

In subsection (2), we are talking about circumstances where burdens have been created.

In respect of Amendment No. 9, it is difficult to be sure under what circumstances the two tests would be used. Ministers propose to introduce the new tests but they have obviously not been tested in the context of the Deregulation and Contracting Out Act 1994. There is no reason to suppose that ``a fair balance'' as determined by a Minister would be challengeable by the courts. I am equally unsure why it would be a problem to remove the opinion of the Minister in those circumstances, and to term the Bill so that the order would be one that struck a fair balance and was desirable in the agreed views of the Minister, the Select Committees and the House. Any court that wished to challenge the two tests would have to prove that they had not been applied, or had been applied unreasonably.

To insert the reference that the Minister is ``of the opinion'' is to take the tests that the courts would have to apply a step further. The question would be not simply whether the tests had been applied unreasonably, but whether no reasonable Minister could have arrived at such an opinion and that is not what we want. The Committee wants the exceptional power and scrutiny provisions provided by the Bill to be used in circumstances where there is a clear demonstrable instance of benefit, which is not controversial or likely to be challenged. That is the more difficult ambition of amendment No. 9.

Amendment No. 8 is more straightforward and I would like the Minister to explain why he will not accept it. The test of necessary protection already exists in section 3(4)(b) of the 1994 Act and it is not subject to the Minister's opinion. As far as I am aware, in the 48 instances in which the deregulation and contracting out orders have been used, that test has not been challenged by the courts and has worked well. I do not understand why it is necessary to put into the structure of the Bill the test of a Minister's opinion. If necessary protection is proof against legal challenge, and Ministers in the past have exercised the power well, why can the test of reasonable expectation not be the subject of a similar provision, without the intrusion of a Minister's opinion?

I apologise to the Committee if I appear to be labouring the point, but there is a difficulty. Clause 3(1) states that the Minister making the order must be

``of the opinion that the order does not . . . prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise.''

It is surely abridging the reasonable expectations test that we set out to protect. If a person has reasonable expectations, a court will uphold them, even if Ministers, the Select Committee and the House should fail to uphold them as we would hope. However, including

``the Minister is of the opinion'', creates a circumstance, for a person with reasonable expectations, in which it would be necessary to demonstrate in court that the Minister was not of that opinion. In such a case, those reasonable expectations might be frustrated, without any possibility of a successful legal challenge.

Although we are working somewhat in the dark on amendment No. 9, I cannot see the necessity of including the test of a Minister's opinion. It strikes me as objectionable. I hope that I might stir my colleagues and other hon. Members to support amendment No. 8, which concerns necessary protection and reasonable expectations. It seems clear that, in line with the legislation that the Bill replaces, the intrusion implied by the words is not only unnecessary but undesirable.

Photo of Mr Brian Cotter Mr Brian Cotter Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson 4:45 pm, 27th March 2001

I rise to support the hon. Member for South Cambridgeshire. As hon. Members have said, we are discussing the possibility of a situation being based on a Minister's opinion. However, Ministers will have to substantiate such opinions in the documents placed before Parliament.

The amendments are key to the Bill because we are concerned to have objective, rather than subjective, tests. Reference has been made to my colleague in the other place, Lord Goodhart. He pointed out that a Minister's opinion would not be the definitive factor in the making of the order. A Minister will have to convince the Deregulation Committee that his opinion is correct. The Committee will be able to take issue with the Minister's opinion if it considers it an incorrect assessment of the situation. The Minister must then either amend the draft order accordingly, or risk the concept being rejected in the Committee's report. As Lord Goodhart said, the Minister's opinion is not the ultimate factor in determining whether an order should be accepted, and that should be reflected in the Bill.

What protection does the clause afford in terms of judicial review? A court of law could only intervene if a Minister's opinion were found to be irrational. That would be a hard concept to prove or disprove. A further fear was put forward. If the Government accepted the Wakeham report in its current form, the ability of the other place to block an order would be removed. A future Executive with a working majority in the Commons would not then be subject to any effective control.

The hon. Member for South Cambridgeshire has raised an important point. A Minister's opinion will not carry something through—he will have to convince the Committee that it is valid and correct. The Minister, therefore, is going to have to convince us that there is serious reason not to accept the amendments.

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

The hon. Member for South Cambridgeshire had me flapping during his speech when he said that the Deregulation and Contracting Out Act, which refers to necessary protection, does not take into account the subjective opinion of the Minister of the Crown. In fact, section 1(1) of the Act begins:

``If, with respect to any provision made by an enactment, a Minister of the Crown is of the opinion—''.

I therefore hope that he will accept that, at least in that part of the Bill that is taken from the 1994 Act, we have changed nothing. What has been added to the Bill is the extra protection that the Minister must satisfy himself according to subsections 2(a) and (b). The hon. Gentleman read them out, so I shall not do so.

The hon. Gentleman said that there had not previously been a subjective test, and now there is one. I hope that I have shown that that is not right. He accepted that the new protections were sensible and followed the same principle of the Minister coming to a view, then going through the super-affirmative process. The process as it is applied under the 1994 Act was supported by the Conservative party from the beginning. It was not so supported by the Labour party, but it has since been convinced that the process has not been a problem. We have put in extra safeguards as we have widened the powers that can be used. Essentially, the same arguments apply to the extra safeguards as applied to necessary protection.

If a Minister intended to act in an unreasonable, dictatorial way, the process would be a strange one for him to go through. He has to consult the appropriate representative bodies and people affected by the measure, and that consultation—with certain exceptions that we will come to—has to be placed before the deregulation Committees. If the Minister wanted to remove protection and was being unreasonable in his judgment about necessary protection, or was attempting to remove rights or freedoms that people could reasonably expect to continue, that would be transparently clear to the Committees of both Houses, because the people affected would say, ``We believe our freedoms are being removed; the balance is not right.'' Moreover, the Committees can take evidence from those people. Given the political composition of both Committees, it is most unlikely, in the foreseeable future, that they would say, ``Fine, go ahead with the process.'' They would say, as has happened on several occasions, that the Minister was being unreasonable and that he or she should reconsider the matter.

The final point concerned why the Bill should contain a subjective test as opposed to an objective test. When one takes into account all the nuances and the difficult balances as the regulatory regimes are moved around, it is better for Parliament to decide the issue through a thorough and vigorous consultation involving both Houses. If there were no subjective test, but we relied only on an objective test, we would be passing the decision to the courts. My noble and learned Friend Lord Falconer of Thoroton said:

``We do not think that the right course is to allow the courts, after Parliament has scrutinised the legislation with the relevant amount of information and in the necessary degree of detail, to try to unhinge that process.''—[Official Report, House of Lords, 21 December 2000; Vol. 620, c. 854.]

The super-affirmative process is an extremely thorough and rigorous process of scrutiny of the deregulation orders, which will become regulatory reform orders. The Minister has to provide tests and protections. He must provide extra information, but there is nothing essentially different in this Bill from the 1994 Act. All that we have done is add extra protection against a wider power in clause 1. I hope that the hon. Member for South Cambridgeshire will recognise that and withdraw his amendment.

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

I am grateful to the Minister as I clearly misdirected myself in my construction of the necessary protection provisions of the Deregulation and Contracting Out Act. It is clear that the fair balance and desirability test must be constructed initially by the parliamentary process. If, as the Minister says, that is necessary to defend the parliamentary process from being converted into a court-led interpretation of fair balance and desirability, I am prepared to accept his argument.

I am still somewhat confused about reasonable expectations, however. It may be because of a lack of awareness on my part, but if the test is of a reasonable expectation and a Minister has to be of the opinion that no reasonable expectations will be frustrated by the order, do we not still run the risk of a court overturning that and saying that there are reasonable expectations? The reasonableness is in the test itself.

Does the fact that a Minister has to have an opinion on the matter mean that reasonable expectations would not be sustained by a court? Would a Minister have to have an unreasonable expectation, perhaps saying that reasonable expectations were not being frustrated when they clearly were, in order for that to be challenged in the court? If reasonable expectations are the test, is not the court exactly the place where such a test should be applied, if an order might be reasonably construed to have frustrated those reasonable expectations?

I am still not wholly persuaded by the Minister's arguments on amendment No.8. Perhaps he will take a moment to offer some further comfort. If he signifies that he will think about the matter and perhaps write to members of the Committee, we might reasonably move on.

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

I am always happy to save time and I thank the hon. Gentleman for saving me going through even more complicated and technical issues. I shall write to him.

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

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. 12, in page 3, line 15, at end insert

`, and—

(c) there is a net reduction in the total burden on all those affected by the changes'.

We have moved on only to the end of these tests. We have in the course of the discussion understood, rather better on my part anyway, the nature of the tests that are to be applied before an order is made furthering these objectives. On Second Reading, I put a question pretty straightforwardly to the Minister, which those reading our proceedings might feel has not been answered completely. The question is not whether the order has to remove or reduce burdens because clause 3(2)(b) makes that clear. Indeed, the amendment in the other place provided for that. We know that an order will, among other purposes, remove or reduce burdens.

We know, however, that the order has other potential objectives. It can create burdens and it can re-impose them. It can do so to an extent that, in the view of Ministers, is justified by the benefits that flow from it. Taking all those provisions as a whole, we do not know whether the net effect of such an order would be to reduce the total burdens on persons affected by the changes proposed in the order. Indeed, the Minister might have felt that I was asking a different question on Second Reading, such as whether an order must give rise to a reduction or the removal of burdens? The Minister made it clear that the answer to that is yes.My purpose in asking the question and tabling the amendment is to clarify that the overall effect of an order should not simply be that some burdens are removed or reduced, but that it should reduce the totality of burdens imposed on persons affected by the changes.

The amendment sets out to ensure that there is further limitation on the order-making power. With all the changes and objectives set out in clause 1, the Minister must be of the opinion that there is a net reduction in the total burden on all those affected by the changes. That is the purpose for which the Deregulation and Contracting Out Act was first created. That is why we set out to create an exceptional deregulatory purpose. The Minister described it as a super-affirmative procedure, which has considerable constitutional implications for the way that we conduct business in the House. I will not dwell on that as I raised it on Second Reading. The purpose of the amendment is to press the point.

Notwithstanding that, the Minister has said, quite fairly, that regulation schemes need to be affected by these orders, that they need to be able to apply to enactments more recent than those to which the Deregulation and Contracting Out Act would have applied and that the overall impact should be a deregulatory one. That is why the organisations—principally business organisations—to which the Minister was keen to refer on Second Reading welcomed the provisions of the Bill. They believe that they could be more effective overall as a consequence of delivering a lighter regulatory burden. They are also clear that that should not be overlaid by the consequences of the imposition of new burdens, whether outside the scope of the regulatory reform orders or, heaven forfend, by bringing back into the structure of such orders a framework of new regulatory burdens that would frustrate the deregulatory effect. We can deliver the purposes for which the business community, in particular, has sought only by ensuring, through an amendment such as this, that regulatory reform orders are deregulatory in their effect.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire 5:00 pm, 27th March 2001

I endorse the amendment so ably moved by my hon. Friend the Member for South Cambridgeshire. It encapsulates the Bill; it is the raison d'etre of our proceedings because the Bill provides for a reduction in the total burden on all those affected by the changes. I would find it difficult to face a constituent who came to me, after the Committee and the various processes had done their work, saying that his burdens had increased. That would be totally unacceptable. It would also be hard to argue. Even though I would say, of course, that many other people had benefited, my constituent would be justified in being sceptical and upset that the House and the Committee had failed to give him adequate protection.

You would take me to task, Mr. Cook, if I were to re-enter the whole debate of proportionality. We had a fairly tortuous and, dare I say, convoluted sitting this morning, but it has a tenuous connection with the matters under discussion because it leads on from the question of proportionality. Lord Falconer tried to argue in the other place that a small number of people might be faced with increased burdens if Ministers sought to rebalance an entire regulatory regime. His advocacy met with considerable scepticism. No one can be sure what changes would occur to affect entire regulatory regimes. Just how small would the small number of people be? There is a moral weakness in the noble Lord's argument; I hope that the Minister accepts that and will look with favour on our amendment. This morning, the Minister rejected our amendment No. 2, which proposed the insertion of the word ``small''. It would be a tremendous step in the right direction if he were to accept this amendment. That is surely the right and proper thing to do.

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

I am not sure whether we have a disagreement or a misunderstanding. I hope that it is a misunderstanding. It might be helpful if I begin by giving three definitions. There is genuine misunderstanding about the phrases ``deregulation'', ``regulatory form'' and ``better regulation''. As I have tried to explain at Cabinet Office questions, deregulation is the removal of regulations and better regulation is improving the quality of regulations and the process of generating them.

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

Is not better regulation a reduction of burdens? Would not that consequence naturally follow?

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

I tend to define it as a process of creating better regulations. They may well be less burdensome than they would otherwise be, but it means taking into account their impact and having a better regulatory process. Indeed, one might not regulate at all and opt for self-regulation, co-regulation or codes of practice. What we have before us now, however, is not only better regulation, but a Regulatory Reform Bill. The problems caused to business, commerce and industry by legislation and regulation often derive from overlapping regimes.

We spoke earlier about fire regulations as 120 pieces of primary legislation and a similar number of statutory instruments. That is a good example. The amendment would allow the regulatory regime for fire to be rebalanced to a deregulatory regime. The amendment states:

``there is a net reduction in the total burden on all those affected by the changes''.

If the fire regime were changed to a risk-based assessment, factories and offices with higher risks might, under the conditions and objectives of clause 1, have a greater burden placed on them. Establishments with fewer fire risks, though previously assessed at the same level—if it were possible to find a way through the 240 pieces of legislation—would face fewer burdens.

Simplification and better regulatory reform, which is different from straightforward deregulation, benefits everyone. That is why the definitions are important. The hon. Gentleman's points may be a definite disagreement or a misunderstanding about where the Bill is leading.

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

Let me see if I understand the difficulty. The Minister mentioned fire safety legislation in the context of risk-based assessments that result from the new scheme of regulation. Is he confusing burdens, which are requirements, conditions and restrictions placed on the persons affected—principally businesses—with impacts? The impacts are quite outwith the question of burdens. The Minister may believe that beneficial effects will flow from the new scheme of regulation, but that is not the same as assessing whether the burdens, in terms of the direct impact of the legislation, will be reduced on a net basis. That is a deregulatory point, but it does not necessarily mean that the scheme cannot be pursued: it can, but it must have a less burdensome effect on the industry as a whole.

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

I return to my point that any regulatory reform must have a deregulatory element. The hon. Gentleman's amendment states:

``there is a net reduction in the total burden on all those affected by the changes''.

If the regulatory regime applied to fire were rebalanced towards a risk-based regime, factories, offices and buildings at greater risk might have to be inspected more often. Higher fees might have to be paid and changes made to buildings to protect people. Overall, that could be a greater burden on businesses than before. Under the previous more even regime, other businesses might have faced a lower regulatory burden. I am not saying that it is simple to do the sum because we get into questions of apples and pears, but we will benefit from putting all the legislation in one place and making it easier to understand. I ask the hon. Gentleman to withdraw the amendment because it would require that

``there is a net reduction in the total burden on all those affected''.

If we changed the nature of that particular regime—I can give him other examples if he wants—some people would have a greater regulatory burden.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal 5:15 pm, 27th March 2001

I now understand the Minister's point, and I apologise because I misunderstood him when I made my previous intervention. His point is simple: the amendment would require a reduction in the total burden on each person affected by the changes. The amendment is not intended to do that; it is a technical point and perhaps the Minister could tell us if we are wrong. We could always return to it on Report. The amendment's purpose is to reduce the overall burden of regulation. For example, the Minister mentioned fire safety legislation. If a risk-based assessment subjected people to greater burdens with more inspection and additional requirements, there should be a countervailing reduction in the burdens on those affected by the fire safety legislation as a consequence.

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

I am certainly making that point about the hon. Gentleman's amendment. I do not agree that the net impact will necessarily be reduced. As I said on Second Reading, part of the regulatory reform order must have a deregulatory effect. However, because of the change in the balance of the regulatory regime, it might be impossible to do the sum to find out. We would have to compare the apples—the simplicity of having the legislation in one place—with the pears—the real costs. In my opening speech, I said that, in assessing each part of the regulatory reform order, any burden that is placed on people or businesses has to be proportionate to the benefits provided. That should be the test, not one of overall burden.

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

The Minister is being patient with me, and I am grateful. Would it not be simpler for him to say that he could envisage circumstances in which the burdens imposed by a regulatory reform order might increase in total? Such circumstances would be justified by the benefits that flow from it; that is what the proportionality test, the fair balance test and even the desirability test are based on. The Minister's least impressive argument is that we are comparing apples with pears, or fruit with vegetables, because such a comparison is implied by all those tests.

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

I am not prepared to say what the hon. Gentleman would like me to say. The Bill's objective is to improve regulatory regimes. Such improvements must have a deregulatory element to them—which was passed as an amendment in the other place—and would have to pass the test of proportionality and all the other tests. I will not pretend that I can do a sum here and now to guarantee that one way or another, because someone might come along in 12 months and say, ``You were wrong.'' I am not prepared to say what the hon. Gentleman wants me to, because it is impossible to say that unless one has been through the process of assessing the regulations. We are clear in our objectives: to help businesses, individuals and public sector bodies by reforming the regulatory regimes that often inhibit them, and to rebalance those regulatory regimes in a better way, using the tests in the Bill and including a deregulatory element. As much as the hon. Gentleman might want me to, I am afraid that I cannot go further than that. I agree with what he said about the amendment not being a helpful addition to the Bill.

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

I am not sure that I said that. Amendments might or might not achieve the purpose for which they are intended, but I believe that this amendment would achieve its purpose. If I had sought to limit the order-making power such that the total burden on each person affected by the changes would be reduced, I would have written that. I wrote ``all those affected'', and I am not persuaded that the meaning of the amendment is anything other than what I intended.

The purpose is clear. As my exchange with the Minister demonstrated, we wish to insert additional limitations such that the order-making power—when one considers the burdens and leaves aside the benefits—would be deregulatory in its effect. That does not mean that the regulatory burdens cannot be rebalanced—I take the Minister's point that that could happen. Fire safety legislation, if a different form of assessment is used, is a reasonable example of where burdens could be rebalanced. We all know that rebalancing burdens is not the same as increasing them; it can increase or decrease them.

A further test is that burdens should be decreased. It was wrong for Lord Falconer to suggest in the other place that the ability to rebalance legislation was a necessary reason not to have a specific deregulatory effect. It is perfectly possible to do that. He was wrong to suggest that the quantification of burdens is so difficult that it would be a constraint upon achieving that. It is clear that on a number of the tests that have to be applied through the legislation, Ministers will have to balance quantified and unquantified burdens and benefits. When we discuss clause 6, we might examine the extent to which quantification can be derived. That is a subset of the issue.

Ministers should not only be of the opinion but be able to demonstrate subsequently that the orders have a deregulatory effect, taking into account the burdens. That is what we seek through the amendment and what the Minister is clearly unable to give us. On that basis, I encourage my hon. Friends, and Government Members if they are of a mind, to sustain the original purposes of the Deregulation and Contracting-Out Act 1994 and to support amendment No. 12.

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

I can be of no further help to the hon. Gentleman, but I will make one last effort to persuade him that his amendment would reduce the Bill's effectiveness. We would be almost back to the 1994 Act, under which it was very difficult to achieve the objectives that we share.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Division number 3 Adults Abused in Childhood — Clause 3 - Limitations on order-making power

Aye: 5 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

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

I beg to move amendment No. 13, in page 3, line 20, at end insert

`or—

(c) in the case of a new criminal offence which replaces an existing offence, with any fine or sentence greater than the maximum which could have been imposed for the existing offence'.

I am aware that the title of clause 3 is ``Limitations on order-making power''. The amendment was tabled because it would constitute a limitation on that power. As was mentioned this morning, Opposition Members are worried about how a Bill as powerful as this might be used by Ministers and Departments. I am more generous than my hon. Friend the Member for South Cambridgeshire, who expressed a specific worry about the Labour Government. That is perfectly reasonable and understandable, but I will add that, in extreme and rather unlikely circumstances, the measure might even be used by a Conservative Government. I would not want to see the Bill used in such a way even by our party, although in our case that would happen inadvertently rather than by design. I do not see why we should add to the legislation process in that way. It is inappropriate for the order-making powers to be in the hands of Ministers as a result of secondary legislation to increase the maximum sentence provided for in an existing statute.

If the new offence created by the Bill merely replaces an existing offence and where that offence is punishable by a maximum penalty less severe than those referred to in subsections (2)(a) and (b)—for example, where no punishment of imprisonment is available under existing law—it would be wrong to use the power to enable the maximum sentence to be increased. I repeat that the powers should not be used, deliberately or inadvertently, to increase sentences for existing offences.

I am glad that the hon. Member for Weston-super-Mare (Mr. Cotter) is here, because I want to draw to his attention the fact that the amendment is almost identical to one that was moved by the noble Lord Goodhart in the other place on 23 January. It has, however, been honed to greater perfection than was the case when it was in the House of Lords.

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

I was not going to draw to the Committee's attention the failings of Lord Goodhart in tabling an amendment that was not practical. That is why I said, as carefully and kindly as I could, that this amendment had been honed to a greater pitch of perfection.

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

That honing is purely a matter of opinion, which is somewhat subjective.

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

That is a poor recovery, but I suppose that it is the best that the hon. Gentleman can do in difficult circumstances.

I can almost summarise the arguments that the Government will advance. They will say that the Bill can achieve large-scale reforms. We have already expressed our concern at the scale of the Bill's reforms, and stressed the need for safeguards. The reforms will mean the sweeping aside, by order, of much existing legislation.

I pray in aid once again the fire safety regulations, which will entail getting rid of many criminal offences. The new offences that could be created might be difficult to compare with old offences, and some technically criminal offences will be replaced by criminal sanctions. Existing safeguards provide that no new criminal offence can, on indictment, be punishable by more than a two-year prison term and, on summary conviction, by no more than a level 5 fine or six months' imprisonment.

I hope that the Minister will not propose all those arguments, which I have plucked and pulled from replies in the other place. I must draw to his attention, however, that large-scale reforms in respect of major aspects of criminal justice should be carried through not by secondary but by primary, legislation. As the Committee knows, there are more criminal justice Bills and Acts than we can shake a stick at. It should not be too difficult to produce something to tie in with the intentions behind this measure.

The Bill's procedures for dealing with a new streamlined risk-based approach to counter some novel forms of mischief might lead to neither House responding positively to the document produced under clause 6 simply because the changes are viewed as too complex. I remind the Minister that examination of criminal penalties in parts of our legislation should be done other than through secondary legislation. If not, a distinct limit should be placed on what can be done, which the amendment is designed to achieve. The amendment would provide important safeguards for the individual and I hope that the Minister will accept it.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal 5:30 pm, 27th March 2001

I support my hon. Friend the Member for South-West Hertfordshire (Mr. Page), who has presented a positive case for amendment No. 13, but I want to ask a question. The provisions of section 2 subsections (1) and (2) of the Deregulation and Contracting Out Act 1994 seem precisely the same as clause 3 subsections (3) and (4) of the Bill. However, section 2(3) of the Deregulation and Contracting Out Act goes on to provide that if a new offence is created, replacing an existing offence where the maximum penalty is greater than the standard scale set out in subsection (1), the maximum penalty should not be greater than that of the offence that is abolished. That is almost but not quite the same as our proposals. We have applied the same principle, but more widely.

If the Minister will not respond positively to my hon. Friend's arguments, will he explain—the explanatory notes, admirable as they are, do not—why similar provisions to section 3(2) of the original Act were omitted from the Bill?

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

The hon. Member for South Cambridgeshire is right that the drafting was taken, word for word, from the 1994 Act. I understand hon. Members' motivation and the introduction of new criminal offences is a serious matter. I suspect that if they examine what the amendment could mean in practice, they may be less happy with it. If a wide regime of penalties is replaced with one or two penalties from a series ranging from five years' imprisonment to six months' imprisonment or a fine, the amendment would open a gateway that could impose five-year sentences for offences that most reasonable people would think did not justify such a sentence. We took the two-year penalty from the DCOA, but the other penalties in that Act were not transferred to the Bill. I could read out the note providing me with advice, but it might be easier if I write to the hon. Gentlemen. I hope that I have explained that the amendment would open a gateway allowing five-year sentences to be imposed for offences that do not merit such sentences.

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

The Minister is perhaps being too harsh because the purpose of the amendment is to introduce a penalty for a new offence that replaces an offence that has been abolished. Clearly, it would not be appropriate for that to be an open door to the imposition of punishment in excess of the standard scale. It would apply when one offence is replaced by another. The purpose of the amendment is not to open the door to harsher penalties, but to limit the potential of the order-making power to impose harsh penalties where they do not now exist.

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

I trust the hon. Gentleman's intention, but if existing offences, of which there are many, are changed, how can we relate those offences to what is proposed in the regulatory reform orders? That is in the nature of changing whole regulatory regimes and is why the hon. Gentleman would create a gateway.

Having had time to read the advice that I have received, I acknowledge the hon. Gentleman's point, but under his amendment a seven-year penalty could be imposed. We decided that no regulation offence justifies such a penalty. If it did, it should be covered by primary legislation.

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

I heard what the Minister said and I confess that I am slightly concerned that he believes that this simple amendment, which is easy to understand, would open the gateway to longer sentences. He bids up the process each time he mentions it, ending up by saying that it would open the gateway to seven-year sentences. I should hate him to go further, because he might say that it opens the gateway to a nine-year penalty. Having heard what he said, I should welcome a written explanation of his argument in a slightly calmer and more formal response. If we are satisfied, that will be fine, but if not, we may return to the matter on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.