Regulatory Reform Bill [Lords]

Public Bill Committee, 27 March 2001.

Standing Committee A

Regulatory Reform Bill [Lords]

Graham Stringer (Labour, Manchester, Blackley)

I beg to move,

That—

(1) in addition to the first sitting at half-past Ten o'clock on Tuesday 27th March, three further sittings shall be allotted to the consideration of the Regulatory Reform Bill [Lords],

(2) the second sitting shall be held on that day at half-past Four o'clock,

(3) the third sitting shall be held on Thursday 29th March at five minutes to Ten o'clock,

(4) the fourth sitting shall be held on that day at half-past Two o'clock, and

(5) proceedings on the Bill shall be brought to a conclusion at Five o'clock at that sitting (unless concluded earlier).

I welcome you to the Chair, Mr. Cook. I hope that the proceedings are as smooth and good humoured as those of yesterday afternoon's Programming Sub-Committee. The debates on the Bill so far have been well informed, good humoured and listened to by both sides.

This is my first appearance in a Standing Committee as a Minister, and I look forward to the forthcoming debate. I am especially pleased that you are in the Chair, Mr. Cook, because you precipitated my maiden speech in the Chamber. You tabled an amendment to the handguns Bill that provoked me into rushing into the Chamber to talk about handguns and the Commonwealth games, which had not been my prior intention.

Four sittings will be sufficient to give this important Bill serious and thorough scrutiny. It has already had what is probably the most intense pre-legislative scrutiny of any Bill. Before it was introduced in the other place, it had been discussed by the two Deregulation Committees—the House of Lords Delegated Powers and Deregulation Committee and the House of Commons Select Committee on Deregulation—for 21 months. The Government listened to both Committees, and made amendments before the draft Bill was introduced in the House of Lords. Both Committees commented on that in their final reports.

We have also listened to comments made when the Bill was introduced in the House of Lords, and have made major amendments. One is that no order will be able solely to impose burdens. There are several consequent amendments with that. In response to the repeated comments of the Select Committee on Deregulation, the Government have also accepted amendments on subordinate provisions clauses, so that both negative and positive resolutions can be put forward.

As I stated on Second Reading—although I think that I was slightly misunderstood—and in the Programming Sub-Committee, the Government have no intention of tabling any further amendments apart from one regular procedural amendment. We want the entire time to be spent debating amendments already tabled by Committee members. I commend the programme resolution to the Committee. The Bill has been thoroughly debated and has received much pre-legislative scrutiny. The four sittings delineated in the programme resolution should give us plenty of time to scrutinise it further.

Andrew Lansley (Conservative, South Cambridgeshire)

I join the Minister in expressing appreciation that you, Mr. Cook, are chairing the Committee. I recall—I may be misremembering—that you chaired a committee that considered trade and industry issues on which I served earlier in this Parliament, and that you have an understanding of and sympathy for business issues. That will help you to appreciate the context in which we set our discussion, although the debate is not intended to be a detailed discussion of the purposes of specific orders that may be introduced.

I share the Minister's belief that our discussions should be constructive. It should not simply be an opportunity for the Government to listen to debates on amendments and then simply reject them out of hand. The Government should not believe that a Bill is perfect when it arrives in Committee simply because it has received substantial pre-legislative scrutiny—although we may have understood them to have assumed that that was the case on Second Reading. It was found that pre-legislative scrutiny had not delivered a perfect Bill to the other place, where amendments were tabled. I understand that it is not the Government's intention to table amendments in Committee. Some of my colleagues in other Committees have been rightly critical of the Government tabling a great number of amendments because of the lack of preparedness of the legislation. Although the Minister is right to say that it is not the Government's intention to amend the Bill, I hope that it is not their intention to stand against amendments that are needed or those which should be reported to the House.

The Programming Sub-Committee's resolution has a tight time scale, but if we are constructive and purposeful, I hope that we can deliver a satisfactory report on the amendments so far tabled, and those yet to come. The Minister will have observed that we have not tabled any amendments in respect of the codes of practice on enforcement, but I hope that we will discuss that on Thursday.

As in the House of Lords, we have just short of 10 hours of Committee time for the debate. Judging by the House of Lords debate, we will be hard pressed satisfactorily to deal with the entire Bill and amendments. However, we are happy to concur with the programme resolution and hope to have constructive debates.

James Gray (Conservative, North Wiltshire)

As a son of Dunblane, I too made a speech during the handgun debate. I was on your side, Mr. Cook, on that occasion and against the notion of banning handguns. I am sorry that my career since then has not been as glittering as the Minister's because had it been I would be sitting in his place rather than in this lowly position.

As the Opposition Whip, I would like to make some short points about the programming procedure. I have sat on a number of pre-legislative scrutiny Committees and it has been made clear that the fact that a Bill goes through such Committees should not in any way shorten proper consideration of the legislation. I am glad that the Minister has not overdone that argument. I merely flag it up as something that we should not allow to occur. Pre-legislative scrutiny should not lead ultimately to a reduction in the amount of proper scrutiny that takes place in Committee.

Conservative Members are opposed to the entire notion of programme resolutions. From that point of view, I welcome the proceedings in yesterday's Programming Sub-Committee in that nothing happened that would not have happened prior to the introduction of the procedure. It was agreed informally that the Bill would be out of Committee by this Thursday, and that we would sit twice on Tuesday and twice on Thursday. Both those matters have always been resolved through the usual channels. The Programming Sub-Committee did not involve any detailed programming of which clauses have to be completed by a certain time. Everything that happened would normally have been arranged through the usual channels.

The Committee took place in secret: no record was taken. Although that would be the case with the usual channels, it is wrong in a properly constituted Committee of the House. The Minister should not need to have to reiterate what he said yesterday about not intending to table large numbers of Government amendments. He needs to do so during this short debate only because no record was taken. Equally, if a record had been taken, it would be unnecessary for me to make several of the points that I am making.

What happened on this occasion has reconfirmed our general view of programme resolutions. The matter could have been sensibly handled through the usual channels without that unnecessary meeting yesterday, where it was even agreed that the usual channels should discuss the Bill's passage through the Committee in the normal way—in the Corridor outside the Committee Room. We welcome that.

I am happy to join my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) in saying that I hope that four sittings of the Committee will be sufficient to enable us to discuss the Bill in detail. The fact that it is relatively uncontroversial and that there is a relatively large degree of cross-party consensus should help us in that process. However, the fact that there is cross-party consensus makes it terribly important that the Committee should consider and discuss the Bill in detail. That is why we have been so unhappy about the conduct of several other Committees that have taken place recently—especially the Committee that considered the Criminal Justice and Police Bill, on which the Government Whip and I served.

The Programming Sub-Committee is a bit of a waste of time. It needs to do nothing in particular, leaving the usual channels to do their historic and worthwhile work.

Frank Cook (Labour, Stockton North)

Order. I have allowed the hon. Gentleman to say his piece. However, I should state clearly and emphatically for the record that what transpired in the course of the Programming Sub-Committee yesterday evening was entirely in keeping with the due procedures laid down and agreed by the House of Commons. As such, everyone who participated in those exchanges did so as required by the House. The fact that we must return to the matter today is also in accordance with procedure. I do not have to agree with that, but the House has laid down the procedures and it is my duty to see that they are followed to the letter. I shall continue to do so, as I hope that the record will show.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

I welcome you to the Chair, Mr. Cook. I was pleased to hear from other hon. Members who know about such matters that you have business interests arising from your background—[Interruption.] Oh, I thought that you had previously conducted Committees concerned with business matters.

Frank Cook (Labour, Stockton North)

Order. I should perhaps clarify that point. I have some experience in business, but I have no vested interest in it. My sole purpose in being here is to ensure that members of the Committee behave themselves.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

I have obviously started off on a bad footing, Mr. Cook. I did not wish to imply that you had any interest. Indeed, I should declare my interest as managing director of a small manufacturing company. I have no specific interest in terms of the issues that will be raised in Committee, but I share the general interest of all those in the business community in ensuring that the House safeguards their interests and does not goldplate matters or take other nasty measures that are unhelpful to business.

We had a useful discussion yesterday, when the Government told us that they did not plan to table a large number of additional amendments. As a result, I am satisfied with the amount of time allotted for discussing the Bill. It is perfectly in tune with the need for hon. Members to give a lead by being business-like, rather than waffling on indefinitely. When I was a member of the Committee that considered the National Minimum Wage Bill, certain Opposition Members who are now sitting to my right waffled on indefinitely, unnecessarily and, as it turned out, erroneously about irrelevant matters. However, we have a clear picture of the time available to us, so I am sure that we shall have none of that nonsense. Indeed, you would not allow it, Mr. Cook, and on that basis I look forward to getting to the meat of matters.

Question put and agreed to.

Frank Cook (Labour, Stockton North)

I must remind hon. Members that adequate notice of amendments should be given. As a general rule, I do not intend to call starred amendments. Clause 1 Power by order to make provision reforming law which imposes burdens

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

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

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

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

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).'.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

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.

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.''

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.

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.

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.

Brian White (Labour, North East Milton Keynes)

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?

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.

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?

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.

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?

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.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

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.

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

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?

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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?

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Ian Stewart (Labour, Eccles)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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

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''.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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''—

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

I am sorry to interrupt the Minister.

Ian Stewart (Labour, Eccles)

Is it necessary?

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

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.

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?

Graham Stringer (Labour, Manchester, Blackley)

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''.

Andrew Lansley (Conservative, South Cambridgeshire)

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?

Graham Stringer (Labour, Manchester, Blackley)

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—

Graham Stringer (Labour, Manchester, Blackley)

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''.

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Brian White (Labour, North East Milton Keynes)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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?

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?

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

Including your own?

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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

Gerry Sutcliffe (Labour, Bradford South)

Any Government.

Graham Stringer (Labour, Manchester, Blackley)

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.

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.'.

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.'.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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).''

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

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

You referred earlier to Jesuitical education, Mr. Cook.

Frank Cook (Labour, Stockton North)

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

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

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.

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.

Ian Stewart (Labour, Eccles)

Draftsmen?

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.

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.

Ian Stewart (Labour, Eccles)

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.

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.

Andrew Lansley (Conservative, South Cambridgeshire)

It was a polished diamond.

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.

Graham Stringer (Labour, Manchester, Blackley)

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--

Ian Bruce (Conservative, South Dorset)

They will sue.

Graham Stringer (Labour, Manchester, Blackley)

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.

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?

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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—

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Clause 2 - Meaning of ``burden'' and related expressions

Andrew Lansley (Conservative, South Cambridgeshire)

There are not too many points to make on clause 2, but I want to consider one issue, which was discussed in another place. I do not expect to divide the Committee, but it is important to raise the matter. The definition of ``burden'' in clause 2 includes

``a restriction, requirement or condition (including one requiring the payment of fees or preventing the incurring of expenditure)''.

Members of the Committee may recall that the Deregulation and Contracting Out Act 1994 used similar words. In that case, ``burden'' includes

``a restriction, requirement or condition (including one requiring the payment of fees).

It does not—

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.

Standing Committee A

Clause 2 - Meaning of ``burden'' and related expressions

Andrew Lansley (Conservative, South Cambridgeshire)

I am sure, knowing the attention that members of the Committee have paid to our debates, that they do not need me to reiterate what was said immediately prior to our adjournment.

As I was saying, the definition of ``burden'' in the Deregulation and Contracting Out Act 1994 does not include the Bill's new definition. In the Government's view, preventing the Government from incurring expenditure—for the benefit, presumably, of other persons—constitutes a burden. This is a matter of semantics into which I shall not delve too far, but to regard preventing the Government from incurring expenditure as a burden on the population at large is, to put it mildly, stretching a point. Indeed, some might think that so preventing the Government would be of considerable benefit to the public.

I fully understand why the Government want to phrase the provision in that way, and I am afraid that yet again I regard them as somewhat untrustworthy. They are trying to define as burdens matters that are not, on the ground that it will be convenient for them subsequently to make regulatory reform orders to achieve a specific objective.

In another place, Lord Falconer of Thoroton referred to the type of regulatory reform order that he had in mind. He said that the vaccine damage payments scheme might prompt the Government to introduce an order to lift the burden that currently prevents them from paying those whom they wish to pay. We need not detain ourselves discussing the merits of extending the scheme, because both Government and Opposition Members have acknowledged them. Prior to its inclusion in the possible uses to which such orders will be put, my right hon. Friend the Member for Richmond, Yorks (Mr. Hague) made it clear that he regarded the scheme as a suitable subject for legislation, but he also pointed out that this mechanism should not be used.

The mechanism, which is defined as a regulatory measure, will allow the Government to lift restrictions imposed through primary legislation on the circumstances in which they may make payments and incur expenditure. However, in the public's view, allowing the Government to spend more money is not a deregulatory measure, but precisely the sort of activity that should be subject to normal scrutiny by the House. The incurring of expenditure should be consequential only on measures in a regulatory reform order that are designed to achieve a substantive deregulatory purpose. Incurring expenditure and removing constraints on the Government is not a deregulatory measure, but the Government are trying to define it as such by including it in the definitions of ``burden''.

I shall not seek to divide the Committee on clause 2, but I seek reassurance from the Minister that the vaccine damage payments scheme, although wholly beneficial, is an exceptional example. Will the use of regulatory reform orders to allow the Government to incur expenditure, or to extend the terms on which it is incurred, occur in only the most exceptional circumstances?

Graham Stringer (Labour, Manchester, Blackley)

There are two changes to the definition of a burden in the 1994 Act. The hon. Member for South Cambridgeshire (Mr. Lansley) has concentrated on the inclusion of a restriction on incurring expenditure in the definition of a burden. That definition clearly applies to vaccine-damaged children and to their families, who, under the definition in previous Acts, would have been paid nothing if their children were less than 80 per cent. damaged.

I can give the hon. Gentleman three assurances. First—and we are yet to reach this part of the debate—the normal consultation and deep consideration by two Committees will ensure that the process is not abused in the way in which he imagines. Secondly, this is not a blank cheque. The definition is concerned with an ability to spend in a particular area, and Parliament's processes for checking expenditure must be adhered to. One cannot agree to spend money through a regulatory reform order because Parliament and the Government must go through their normal procedures. Thirdly—this is admittedly an incomplete reassurance—we trawled for examples of cases in which the Bill could be used, but we found only a few. I do not envisage that the definitions will be used on many occasions, and I hope that he will be content with my two major reassurances.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Clause 3 - Limitations on order-making power

Andrew Lansley (Conservative, South Cambridgeshire)

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

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

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'.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Richard Page (Conservative, South West Hertfordshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Richard Page (Conservative, South West Hertfordshire)

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

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

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.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

At the end of the day, Lord Goodhart considered that the amendment was not practical.

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.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

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

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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?

Graham Stringer (Labour, Manchester, Blackley)

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.

Andrew Lansley (Conservative, South Cambridgeshire)

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.

Graham Stringer (Labour, Manchester, Blackley)

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.

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.

Clause 4 - Statutory instrument procedure

Andrew Lansley (Conservative, South Cambridgeshire)

I am sorry to cause delay over clause 4, because there was a considerable amount of debate on it in another place, largely relating to the proper scrutiny of the subordinate provisions order. It is proper to recognise that the Government have made changes that will make it easier for the subordinate provisions order to be passed in the form determined by the originating order—whether affirmative or negative. Those changes are helpful.

I have one small question. Subsection (7) states that subsection (2), which refers to orders being laid before, and approved by a resolution of, each House,

``does not apply to a subordinate provisions order, if—

(a) it is not made by a Minister of the Crown''.

Does that mean the National Assembly for Wales acting alone, without a Minister of the Crown, or does it refer to somebody else, or other circumstances of which I am unaware?

Graham Stringer (Labour, Manchester, Blackley)

It means the Welsh Assembly.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.

Clause 5 - Preliminary consultation

Richard Page (Conservative, South West Hertfordshire)

I beg to move amendment No. 16, in page 4, line 40, leave out

`appear to him to be'

and insert `are'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following amendments: No. 17, in page 4, line 43, leave out

`appear to him to be'

and insert `are'.

No. 20, in page 5, line 3, at end insert

`and—

(h) publish an invitation to other bodies to make submissions.'.

Richard Page (Conservative, South West Hertfordshire)

The amendments are all of a piece. Clause 5 allows Ministers wide discretion in the preliminary stages of the consultation process. The amendments make the consultation procedures more specific. Amendment No. 16 requires a consultation of organisations that have interests substantially affected by proposals. Amendment No. 17 refers to statutory bodies that might be affected, and amendment No. 20 refers to the consultation of other persons, as appropriate.

As currently drafted, clause 5 gives the Minister control in each case, as it appears to him. I find that a shade arrogant. The amendments are part of a pattern: the determination of Opposition Members to loosen the tight grip of the Executive's fingers from around the throat of regulation. Controls should not be placed back into the hands of the Executive. The purpose of the Bill is to ensure that there is regulatory reform, not to tell the people who created the regulation in the first place that they can still control the process.

There must be a letting-go and an opening-up. I therefore ask the Committee to look at the reality. What is actually going to happen when this part of the process takes place? Who will put forward the names of the various individuals and bodies that are to be asked for their views? It will be Department officials. Who created the regulations that will be scrutinised in the first place? It will be those same officials. I appeal for a more democratic approach to the consultation process.

If the Minister is minded to accept amendment No. 20, I suggest that he considers whether he and the Government will be protected against challenges from bodies that he may have decided not to consult. They may have been missed from the list; civil servants and officials may not have wanted the Minister to draw them forward for their views. If he were to accept the amendment, will he and the Government be free of any challenges from those bodies that had not been drawn forward?

I find it slightly disappointing that the Government are using their massive majority every time to sweep aside any amendments that are tabled. We are trying to improve the Bill. Our amendments were tabled not for party political gain or to promote dogma, but to try to reduce the burdens on the poor, struggling people—

Helen Clark (Labour, Peterborough)

I feel that the hon. Gentleman has made a facetious and erroneous point about the conduct of Government Members. This is the seventh Standing Committee on which I have served since the beginning of this Parliament. Ministers have often been prepared to consider sensible points made by Opposition Members, and have sometimes even accepted amendments. For all I know, my hon. Friend the Minister may be prepared to do likewise.

Richard Page (Conservative, South West Hertfordshire)

The hon. Lady brings a touching innocence to the Committee, which I find refreshing. As my hon. Friend the Member for South Cambridgeshire said, sotto voce, ``Don't hold your breath for the acceptance of any amendments.''

The amendments aim to create a better balance and to give people the freedom to bring forward views and make representations. At the moment, those people will be restricted to lists that appear to the Minister to be representative of the various bodies that are affected by the proposals. Those lists were produced by the officials who were responsible for the problems of regulatory burdens in the first place and are the reason why the whole matter is being considered.

Can the Minister give me two assurances? First, especially in respect of individual representatives, are the Government leaving themselves open to challenges under human rights legislation by anyone who feels that they are being denied an opportunity because the Minister is not minded to include them on the list? Secondly, is an organisation or body that has not managed to catch the ministerial eye so as to get on the list able to mount a legal challenge in order to do so, or will it be frozen out for ever?

The hon. Member for Peterborough (Mrs. Brinton) has given the Minister a lead-in to show that he can be flexible in terms of accepting amendments, and I look forward to his reply.

Graham Stringer (Labour, Manchester, Blackley)

Again, we are dealing with a well-established process—the super-affirmative process. The wording is taken directly from the Deregulation and Contracting Out Act, which was supported by the previous Conservative Government. All parties in both places have found that the Act works when it comes to consultation. The hon. Member for South-West Hertfordshire is mistaken when he says that the Government are using their majority to force legislation through; we are doing exactly the opposite.

The super-affirmative process works by consensus because the Committees give unanimous reports. Is there a problem concerning consultation? No there is not, because a Minister will say, ``I shall consult those bodies that I believe to be affected or representative in this case.'' Can a Minister be 100 per cent. certain that he or she is right? No he cannot, because no Minister will have absolute knowledge. However, there are two safeguards against that. First, a Minister leaves the Room and a Committee questions whether he or she has been reasonable in his or her consultation. It considers whether other people have relevant views or would be affected by the proposals, in which case such extra people can be consulted. Secondly, the Cabinet Office publishes the regulatory reform orders on its website, as does the Department sponsoring the regulatory reform order. There is openness in the process. Even someone who is not thought to be representative or to have a relevant view can participate.

Brian White (Labour, North East Milton Keynes)

Is my hon. Friend aware that this morning's Select Committee on Deregulation, which was considering an existing order, took the view that there was insufficient consultation on the restaurants licensing order and has decided that other people need to be consulted? That gives the lie to the Opposition's argument that there is insufficient consultation. The system has built-in safeguards.

Graham Stringer (Labour, Manchester, Blackley)

I thank my hon. Friend. I did not know that, but his example beautifully makes the point that safeguards are built-in by openness on the website and two Committees considering whether a Minister has consulted well enough. That is a better process than pretending that a Minister could know everything about whether a body was representative or not; it is impossible to have that knowledge. That returns us to the question of whether we pass power from Parliament and to the courts if we replace subjective tests with objective tests.

Ian Stewart (Labour, Eccles)

My hon. Friend rightly rejects the argument of the hon. Member for South-West Hertfordshire. The Select Committee on Deregulation has the most rigorous consultative programme of any statutory body of which I am aware. The consultative programme is excellent and has been seen as the model for good practice in other areas of government. If Opposition Members of the Deregulation Committee had turned up, they would have been able to explain that to the hon. Gentleman.

Graham Stringer (Labour, Manchester, Blackley)

I will finish—

Andrew Lansley (Conservative, South Cambridgeshire)

Before the Minister finishes, does he agree that discussing consultation processes that occur in Parliament does not answer the question with regard to preliminary consultation under clause 5? If he is content with what is proposed, which is the same as the provision in the Deregulation and Contracting Out Act, that will be one argument. However, will the Minister go further, consider amendment No. 20 and suggest whether the publication of orders on the Cabinet Office and departmental websites meets the need to publish an invitation for submissions in the preliminary consultation, as opposed to giving an opportunity to those affected to influence parliamentary consideration?

Graham Stringer (Labour, Manchester, Blackley)

I understand the hon. Gentleman's argument. The Government are always trying to improve the flow of information and the consultation process. Putting regulatory reform orders on websites is a new innovation and allows people to participate in the initial consultation. The consultation information explains the super-affirmative process. Later, if people want to write to the Committee and to be consulted by it, they can influence the parliamentary process and have their views taken into account. The process is well tested and getting better, so I hope that the hon. Gentleman will withdraw his amendment.

Ian Stewart (Labour, Eccles)

If it appears that some Labour Members are becoming exasperated, it is because we understand the rigorous nature of the processes of the Deregulation Committee, which will continue. The Committee has even called outside organisations to give evidence during the consultative process. The powers already exist and will continue.

Graham Stringer (Labour, Manchester, Blackley)

I thank my hon. Friend for that information and hope that the hon. Gentleman will withdraw his amendment.

Ian Bruce (Conservative, South Dorset)

One of my worries, which the amendment tabled by my hon. Friend the Member for South-West Hertfordshire would help to alleviate, is that under clause 5 the Minister will talk to people who are merely representative of interests. Companies or individuals who represent only themselves might not be invited by the Minister to send in representations. One often hears representations from a group on certain interests and then one person sends in a letter which wipes out the other representations. Does the Minister agree that asking individuals to send in representations would be better?

Graham Stringer (Labour, Manchester, Blackley)

That is covered by subsection (1)(e), which states that the Minister will

``consult such other persons as he considers appropriate.''

That meets the hon. Gentleman's point.

Richard Page (Conservative, South West Hertfordshire)

Before I comment specifically on the Minister's response, I want to draw the Committee's attention to the fact that, although the comments of the hon. Member for Eccles (Mr. Stewart) were pleasing and helpful, he referred to the process when it has travelled on a little and not when the Minister is constructing the order to bring before the Committee. That is what we want to deal with.

Phraseology such as ``the Minister considers'' does not show a broad spread of democracy, nor does asking someone to respond to a website. The Minister has given us no idea of the process for considering comments, which is one reason why we want to open up the process. However, he is adamant and is maintaining a position contrary to the hopes and expectations of the hon. Member for Peterborough. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

I beg to move amendment No. 31, in line 41, at end insert

`allowing such organisations a minimum of 12 weeks to respond.'

Frank Cook (Labour, Stockton North)

With this it will be convenient to take the following amendments: No. 19, in page 5, line 3, at end insert

`and—

(g) allow a minimum of eight weeks for the consultation described in sub-paragraphs (a), (b), (c), (d) and (e) above.'.

No. 32, in clause 6, page 6, line 3, at end insert—

`(ja) the manner and timetable of any such consultation.'.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

The amendment would ensure that the consultation period lasts a minimum of 12 weeks. It would be wise to put that on a statutory footing, because it is widely felt that businesses do not receive sufficient consultation on regulation. For example, I refer the Minister to a survey for 2000 by NatWest bank of more than 5,000 employers and personnel officers. More than 68 per cent. of respondents believed that the Government had not given adequate time for businesses to respond during public consultation. Many small firms cited the haste with which legislation had been pushed through the consultation period as the main reason for their inability to implement parts of it.

Brian White (Labour, North East Milton Keynes)

Is the hon. Gentleman aware of the point that was made to the Deregulation Committee when it took evidence on the Bill that, even if the consultation period were substantially extended, there would be some businesses for which that period would not be long enough?

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

I accept that point, which is well made. However, we must agree to some reasonable period of time, and I think that 12 weeks would be reasonable. According to the Better Regulation Task Force, the views of small business are insufficiently taken into account by policy makers. The Minister would be the first to acknowledge that that task force is a powerful organisation that we should listen to, and it also said:

``there is concern about inadequate consultation with small firms about the detailed arrangements for implementation and enforcement.''

Those examples show that there is great concern that many measures are pushed through without adequate consultation. I have encountered that concern frequently at different times during my time in Parliament, and it is necessary to highlight that point strongly because the amendment would be particularly beneficial to small businesses that do not have in-house experts to consider legislation on their behalf. It would also ensure an adequate period to formalise any response that they might want to make. It is self-evident that a longer consultation period would also mean that responses would come from a wider cross-section of organisations, thus representing a variety of different views. That would surely result in better legislation.

A minimum period of consultation would mean that legislation and regulations would be properly examined by the many external organisations on which they would impact. Once again, there would be less opportunity for a Minister to try to slip through legislation that went against the spirit of an Act—although I am sure that this Minister would not do that. In view of the comments of the Better Regulation Task Force, he will agree that consultation is extremely important. Although we cannot conduct consultation indefinitely, setting the figure at 12 weeks would provide a reasonable balance between carrying on ad nauseam and giving small businesses enough time to know what is coming down the line and to influence and respond to the policy, which is what consultation is all about. I hope that the Minister will consider the point seriously and I look forward to hearing his response.

Andrew Lansley (Conservative, South Cambridgeshire)

I am grateful for the opportunity briefly to say a word about amendment No. 31. Amendment No. 19, which is grouped with it, takes a slightly different view. I would not dissent from what the hon. Member for Weston-super-Mare said about the desirability of consultation and the necessity of providing sufficient scope for it. I would certainly hope that Ministers and Departments would allow sufficient time for consultation. My recollection is that it is standard practice to allow 12 weeks for substantive responses to consultation. However, we are dealing with a slightly different process and with preliminary consultation rather than a formal process.

The purpose of the amendments is to specify not the standard time for consultation, which is often done in relation to regulations made under other enactments, but a minimum period for consultation. We sought to set a lower minimum period in amendment No. 19, simply because we are dealing with a period of preliminary consultation which will normally be consultation with, as the clause provides, bodies representative of interests or statutory bodies affected which are often much better geared to consultation. The substantive consultation that would follow and would involve the Deregulation Committee, might draw in interests or persons who rarely have contact with Government Departments and who could not reasonably be expected to be aware of the prospect of such legislation coming forward.

At the preliminary consultation stage I assume that we are dealing with substantive bodies that represent interests and have the capacity to deal with consultation and amendments that are designed to set just a cautionary minimum upon Departments and Ministers so that they are never tempted to go for a preliminary consultation that is unduly abbreviated. I wonder whether the Minister might at least respond positively to that thought.

Graham Stringer (Labour, Manchester, Blackley)

The Prime Minister launched a Cabinet Office document improving the process of consultation at the end of November last year—

Mr. Lansley rose—

Graham Stringer (Labour, Manchester, Blackley)

I suspect I know what is coming. The basis of that consultation document was a standard three-month period. That could apply to consultations on regulatory reform orders with all the protections that exist later in the process. As everyone would acknowledge, there are times when initial consultation must be short for urgent or special reasons. Those reasons must be stated. The nature of the consultation process in that consultation document is three months, apart from in exceptional circumstances and, as under the Bill, reasons must be given for why the Government are responding in a particular way to the consultation document. My basic point is that the amendments are not necessary.

Andrew Lansley (Conservative, South Cambridgeshire)

The Minister might think me tedious as I raised this point on Second Reading, but if the Prime Minister was so keen on consultation, why at the Labour party's Glasgow conference did he leap into announcing parental leave changes on the day on which the consultation was due to end and before he could have received all the responses? I was reminded of that when I heard Mr. Digby Jones of the Confederation of British Industry on the radio last night. He complained about precisely that fact, which heightens the need for consultation provisions to be squarely represented to Ministers in the legislation, so that they cannot be unduly abbreviated.

Graham Stringer (Labour, Manchester, Blackley)

The Prime Minister was right. His announcement was in line with the vast majority of the consultations that had been received on the matter. We may be in the run-up to a general election, and the big consultation on many of the fundamental issues that affect people's rights at work will take place then. Conservative Members will be able to set their views, beliefs and intentions against those of the Labour party. I suspect that we know what the outcome will be.

On the basis of the consultation document and the fact that this is a three-stage process, the amendments to clause 5 are unnecessary. I therefore ask the hon. Gentleman to withdraw the amendment.

Amendment No. 32 would add to clause 6 a requirement for details of

``the manner and timetable of any such consultation''

to be incorporated in the document. If the hon. Gentleman thinks about the existing obligation under clause 6(2)(j), which relates to clause 5(1) or (3), that information will already be present as part of the information that the Minister would reasonably be expected to provide. Even if it were not available, the Committees would have it and it would therefore be publicly available. The amendment is unnecessary, and I ask the hon. Gentleman not to press it.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

The consultation for the general election seems to be a rather moveable feast. We do not know how long the run-up period will be, but we shall no doubt learn that shortly. It may be three weeks. It is not usually 12 weeks, but we shall have to see.

I thank the Minister for his response. It was important to raise this very significant issue on behalf of small businesses and the fact that it has been discussed is now in black and white. I take it that the fact that it has been raised and that the Minister and the Better Regulation Task Force accept the importance of consulting small businesses will mean that that is taken on board in future. On that understanding, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Andrew Lansley (Conservative, South Cambridgeshire)

I beg to move amendment No. 18, in page 5, line 3, at end insert

`and—

(f) in relation to the consultation described in sub-paragraphs (a), (b), (c), (d) and (e) above send to each person consulted a draft copy of the document the Minister intends to lay before Parliament as described in section 6 below.'.

The amendment would require the Minister to provide those persons whom he consults in the preliminary consultation—my hon. Friend the Member for South-West Hertfordshire would say those whom the Minister in his wisdom and at his discretion chooses to consult—with a draft copy of the document that he is required to lay before Parliament under clause 6. We shall go on to discuss what should be in such a document, so you will not expect me to dwell on that at any length, Mr. Cook. Suffice it to say that it will be a substantive document. Subject to what we go on to decide, it will set out many of the issues on which the consultees in the preliminary consultation want to know the Government's views, because we are dealing with a relatively complex set of orders compared with what occurred previously under deregulation and contracting out provisions.

We are dealing with a series of tests. As we have learned, we are talking not just about whether there is the necessary protection, but about whether there are reasonable expectations that need to be retained, whether a public interest will have to be balanced against the interests of persons affected and what the Government think that public interest might be. We will need to know whether the Government propose to impose burdens and whether it is desirable to proceed with an order that balances those additional burdens with the benefits that might flow from them.

On the basis of the Bill as drafted, we shall have estimates of the savings or increases in costs that will result from proposals. Obviously, those who are consulted will focus on that quantitatively. If we have our way, we might also end up with a process that is more akin to a genuine, comprehensive regulatory impact assessment.

All those questions would be of interest to preliminary consultees, but which comes first, the chicken or the egg? Will we have the document that is to be laid before Parliament, with all the details that must be presented in it, before the preliminary consultation, or will we have all the details only after the preliminary consultation? We should not expect Government to have answers to all the questions before the end of the preliminary consultation. Many facts and views—particularly concerning impacts, effects on persons and increases in savings and costs—will be derived from responses to the consultation.

The purpose of the amendment is not to pretend that the Government would know, before the preliminary consultation, all the facts necessary to complete the document referred to in clause 6. It is to suggest that it would be helpful to the preliminary consultation if the Government were to structure the consultation not simply around a presentation of the proposals but around the document that is subsequently to be laid before Parliament. That would help to focus the minds of consultees, especially in the early stages when regulatory reform orders are to be presented, on the considerations that must be decided by Ministers and on the issues that must be judged by the Deregulation Committees and the House. It is especially important in the early stages that the preliminary consultation should be structured around a draft copy of the document that will subsequently be laid before Parliament.

Ministers should not allow the consultation under clause 6 to carry too great a burden for the interests outside Parliament. In my experience, by the time Ministers lay a document before Parliament, they have become progressively more attached to it. Therefore, the earlier that we can expose the document to the outside world, the better. Consultation is free and open if Ministers have not committed themselves. The draft document might include various formulations or caveats and leave empty brackets, as it were, in which to fill in the precise detail. The consultation would be real in the sense that those bodies that are making representations would feel that they are feeding their material directly into the document that is to be presented to the Deregulation Committees and to Parliament. It is important that Ministers do not become too fixed on the document that is to be laid before Parliament, as if it were the final word. If Ministers and officials are relatively open to consultation at an early stage, it will be more effective.

If we were to adopt the amendment, we would forestall the risk that Ministers, in presenting their proposals, might tend to present the benefits of the regulatory reform rather than focusing on the costs. I hope that one specific purpose of the document to be laid before Parliament under clause 6 is to force Ministers to disclose their cost estimates. Therefore, by extension, those who are consulted under clause 5 would be clear about the costs that Ministers anticipate will be associated with the proposals. I hope that the Minister will not only continue to be constructive in his response, but be positive about the amendment.

Graham Stringer (Labour, Manchester, Blackley)

I thank the hon. Gentleman for tabling the amendment; I understand what he is trying to do. However, some of the information that will be required for the document and under clause 6(2) will come from the consultation, and some of the costs will be elicited from the people affected by the measure. The hon. Gentleman is suggesting that, as the process develops, the Minister will become increasingly firm in his views and that it will be easier for him to place the structure of the document in the context of clause 6(2).

The process is open. The consultees can state their costs, an issue to which the hon. Gentleman referred repeatedly. To pretend to know at the start things that are not known would be to put the cart before the horse. It would be more sensible to have open consultation, find the information and present it to the Committee. That process would show how one complied with the conditions in the Bill. Attempting that before consultation would lay one open to the accusation that one had decided what to do before consulting people thoroughly.

Andrew Lansley (Conservative, South Cambridgeshire)

I regret that the Minister had precisely the answer to my points that I feared he would.

The Minister is unwilling to contemplate the creation of structures under clause 6. If we want the parliamentary process to be constructed around such issues—I can see that much care has gone into the structure of the Bill—it is unhelpful to those who are the subject of preliminary consultation to receive something that is less specific than the document. It will be helpful to have that document structure even if, as the Minister said, there are omissions and gaps in knowledge when trying to complete the document later.

If consultation is to be open, Ministers should acknowledge that it will be open from the beginning, even when all the information is not available. That may highlight something that Ministers find embarrassing, but they should take it on the chin. They propose to go down the path of regulatory change, but they are unaware of the burdens—their impacts and costs, and where they fall. It would be more honest to present that information and make it clear that the balances have not yet been struck, and show consultees the initial proposals and how they can be justified in the document.

The proposals should not be presented as if a hidden agenda of knowledge existed; otherwise, there is a risk that the document put out for consultation would rehearse the criteria for a regulatory reform order and the tests that had to be applied in the legislation, which would suggest that Ministers had undertaken those tests before they had done so. In truth, the preliminary consultation should often state, ``These tests must be passed, but in some respects we do not yet know whether we have passed them.''

We therefore need the various forms of information. As someone who has been both the originator and, in a former life, the recipient of such documents, I know that it is helpful to have a clear steer on information held by the Government about which they feel confident, as opposed to information that they do not hold and on which they need advice. The Minister should at least contemplate allowing the form of consultation to follow some of the precise tests laid out in clause 6(2), even if such a provision is not to be included in the Bill.

Graham Stringer (Labour, Manchester, Blackley)

I have tried to be helpful. The precise wording of the amendment puts the cart before the horse, but good consultation and the essence of the Cabinet Office's consultation policy document are precisely as the hon. Gentleman described. Consultees should know what information the Government want, and what it is possible and impossible to do under the proposals. That is the nature of good consultation, so I can give the hon. Gentleman some comfort in that regard without pretending that we can draw up a document under clause 6(2) before the appropriate point. That would be a confusing process, but I am happy to accept the principle behind what he is saying—in fact, it is Government policy.

It is worth emphasising that consultation does not stop when the statement under clause 6(2) reaches the Committee. The Committee itself may take extra information, deem the consultation inadequate and ask the Government to reconsider. That is very different from the normal Government consultation process that precedes primary legislation. In fact, the Committee's relationship with the Government differs greatly from that which normally applies in a straightforward consultation exercise preceding primary legislation. On that basis, I ask the hon. Gentleman to withdraw his amendment.

Andrew Lansley (Conservative, South Cambridgeshire)

I have pressed the Minister on this subject as far as is decent. Even if it is Government policy to consult in the manner described, I hope that the Minister will ensure—in fact, the task might fall to us—that subsequent implementation is indeed undertaken in the manner suggested, so that those who are the subject of consultation can be sure of what is required of them. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

I beg to move amendment No. 33, in page 5, line 3, at end insert—

`(1A)The consultation required by subsection (1) above will include details of whether any savings or increases in cost are estimated to result from the proposals and, if so,—

(a) the reasons why savings or increases in cost should be expected, and

(b) if it is practicable to make an estimate of the amount, that amount and how it is calculated.'.

As is clear from the amendment, it is somewhat disturbing that under the Bill the consultation need not include details on

``the reasons why savings or increases in cost should be expected'',

``an estimate of the amount . . . and how it is calculated''.

If the amendment were accepted, the Minister would have to disclose, where appropriate, any costs or savings likely to be incurred in the consultation process as a result of an order. Under the Bill as drafted, the Minister is obliged to do that only under clause 6—when the document is presented to Parliament.

I thought that, in keeping with the general direction of legislation and the European small business charter, the Government were saying that they wanted to do all that they could to ensure proper assessment of new regulations and Bills. That should apply equally to consultation on orders. It seems bizarre that the proposal for an order should be put out to consultation without the inclusion of such information. How can a business or organisation come to a reasoned conclusion about the impact that an order might have on them, when it is not aware of its possible financial impact?

The point is especially relevant to small businesses, which have been much discussed here, as in many other Committees. Small businesses have a high profile now, because people realise their importance to the country's economy. The cost of regulation often has a disproportionate impact on small businesses, especially micro-businesses. The devil might be in the cost details of an order that seems reasonable in principle, and therefore acceptable to the relevant organisations. If it were found to place significant financial burdens on organisations, an entirely different conclusion might be reached.

To be really effective, a cost analysis must be provided during the consultation process. Great emphasis is now placed on impact assessments when Bills come before Parliament. I hope that the same emphasis will be given to the consultation process for orders. The point is a key one for small businesses and organisations, and I shall be interested to hear the Minister's comments.

Andrew Lansley (Conservative, South Cambridgeshire)

I am grateful for the opportunity to speak on amendment No. 33. It would achieve a small part of what amendment No. 18 set out to do—bring part of the reasoning behind a proposed order into the preliminary consultation process. I hope that the hon. Member for Weston-super-Mare will forgive me, but I find it slightly curious to think that one could be clear about the costs and savings if other information were not made available. Some of that information would be more qualitative; the better advanced it was, the better the quantitative information, and savings in cost, might be.

Nevertheless, the hon. Gentleman makes a good point, and I do not want to be uncharitable to him. Later, we are likely to debate regulatory impact assessments, which I know were debated in another place. They are not just about the narrow issue of the cost of adapting to regulations. We have moved to them from compliance cost assessments, and the distinction between the two is important. The purpose of a regulatory impact assessment is to understand all the effects of a regulatory change.

Brian White (Labour, North East Milton Keynes)

If what the hon. Gentleman says is true, why does his party oppose the use of regulatory impact assessments in the public sector? Conservative Members have said that they should be used only in business.

Andrew Lansley (Conservative, South Cambridgeshire)

Perhaps the hon. Gentleman will quote where that was said chapter and verse. If there is a difference, however, it is because of the point that I was about to make. Compliance cost assessments measure the direct cost of changes in regulations. In the public sector, such costs are often direct and can be quantified. That is often precisely the method that the public sector uses to quantify costs when they are expressed to the private sector. The larger changes in costs and impacts are the commercial consequences of changes in regulations that might create different comparative advantages between businesses in terms of prices, sales, overheads or whatever. Perhaps I can gather the information together for our debate on Thursday, but from memory, I believe that the regulatory impact assessment on the Regulation Investigatory Powers Act 2000 was specific as to some of the costs that would flow directly from those changes. The regulatory impacts properly should have reflected some of the commercial consequences, which were measured in tens of billions, rather than tens of millions, of pounds. That was the consequence of examining direct costs on businesses.

I shall not digress further so as not to prolong the debate, but the purpose of the amendment of the hon. Member for Weston-super-Mare might be to focus the minds of those who are the subject of consultation on some of the direct savings and increases in costs, which will then have precisely the kind of commercial consequences on a broader range of prices, sales, overheads, competitiveness and so on that will give rise to regulatory impacts. That ought to be borne in mind in the preparation of documents and be well understood by businesses before they consult on the parliamentary stages of the process. I shall not say that there is no value in amendment No. 33, because there is. I wish that it were amendment No. 18, but amendment No. 33 is good as far as it goes.

Graham Stringer (Labour, Manchester, Blackley)

I do not believe that the amendment adds anything to what is already in the Bill. The hon. Gentleman knows, because we have discussed it many times, that every regulatory reform order has to have with it a regulatory impact assessment. As the hon. Member for South Cambridgeshire said, the RIA is about rather more than costs and benefits. It is an analysis of the best way forward, as we improve the process. We have to assess the impact of any new regulations on different parts of the economy, as opposed to just on businesses.

That RIA will accompany RROs and will present more information than is asked for in the amendment. Therefore, the amendment would add nothing to the Bill. I agree with the comments made by the hon. Member for Weston-super-Mare about small businesses. We introduced the Bill to balance regulatory regimes, which may benefit small businesses. I ask the hon. Gentleman to withdraw the amendment.

Brian Cotter (Liberal Democrat, Weston-Super-Mare)

This has been a useful debate. It has highlighted the concerns of all businesses. There should be serious assessments in these matters. We have long rehearsed the importance of regulating impact assessments generally—I am sure that the hon. Member for South Cambridgeshire agrees. Even in the short time that I have been in Parliament, I have noted that some Bills do not adequately address that aspect. I know that the Prime Minister has privately expressed great concern about the effectiveness of RIAs.

Our debate has been part and parcel of the concern expressed about the impact of Bills and regulations. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Richard Page (Conservative, South West Hertfordshire)

I beg to move amendment No. 21, in page 5, line 8, leave out

`it appears to the Minister,'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to take the following amendments: No. 22, in page 5, line 9, leave out `that'.

No. 23, in page 5, line 10, leave out `he' and insert `the Minister'.

Richard Page (Conservative, South West Hertfordshire)

I freely admit that it would have been much easier to speak to these amendments if the Minister had been generous and kind enough to accept amendments Nos. 16 and 17. Perhaps to satisfy the hon. Member for Peterborough, the Minister may be willing to accept amendment No. 21 and to show the generosity of spirit which was referred to and for which we are desperately, if vainly, looking.

These amendments are consistent with what we have been arguing for throughout the debate. There must be a reduction in the power of the Executive. We should not forget that the Bill has been introduced because the Executive are responsible for extra regulations and the difficulties that have made businesses groan and shudder under the weight of such regulations.

The principles lying behind amendments Nos. 21, 22 and 23 are the same as those lying behind amendments Nos. 16, 17 and 20. Under our amendments, it will be easier, if not automatic, for people who were originally consulted to be approached again and asked for further views on any variant of the proposals and their effect.

I am sure that I will touch a chord with every member of the Committee when I say that we have all passed legislation in good faith. We may think that we have done the right thing, but be appalled when we go out into the real world and realise the raft of rules, regulations and burdens that have resulted from such legislation. I have certainly said to myself, ``I did not intend to lumber business with that amount of legislation.''

May I take the Minister back to the consultation process and ask him what will be the custom and practice of that process? The amendment would remove from the Bill the slightly arrogant phrase

``it appears to the Minister''.

When the consultation takes place, will people be consulted about the new ideas, rules and methods? Will they be consulted about cost estimates that will flow from the changes and proposals? Unless we give them some idea of the costs and burdens, not everyone will be in a position to carry out the regulatory impact assessments that we have been discussing. I recommend that the Minister should move towards setting up an independent unit for regulatory impact assessments. Too often, having created the baby, a Department can find no flaw in it, as there appears to be little cost involved in its implementation and operation.

I bring the Minister all the way back to the start of the consultation process. I should like to think that those who have given their views on the proposals will be automatically consulted if there are variants to those proposals. At what point will they be informed about costings, so that they can make logical and sensible decisions?

Graham Stringer (Labour, Manchester, Blackley)

I hope to deal with the amendment quickly. The costings issue was dealt with in the debate on the previous amendment. All RROs and RIAs with the costings will be part of the process of consultation. Without repeating all that has been said about transferring responsibility from Parliament and the Government to the courts, this is one of the more unusual amendments that have been tabled. If the Minister has instigated consultation but realises that he must change his proposals and initiate further consultation, he will be a model consulter. He recognises that his original proposals were not quite apposite, so he consults again to obtain more information. The hon. Member for South-West Hertfordshire is suggesting that he should then be taken out of the equation.

The Opposition tabled a series of amendments to test us on removing ministerial judgment from the Bill, but they have reached the point of absurdity and I ask the hon. Gentleman to withdraw his amendment.

Richard Page (Conservative, South West Hertfordshire)

I thank the Minister for his positive and constructive response. We are starting to prod a nerve when he responds in that way. His officials must be bleeding quietly to provide him with those abrasive words to utter to young and inexperienced hon. Members such as me.

The point is not to take the Minister out of the equation, but to remove the Minister's choice to do this, that or the other.

Graham Stringer (Labour, Manchester, Blackley)

That is what Ministers are for.

Richard Page (Conservative, South West Hertfordshire)

When it comes to regulation, I sometimes wonder what they are for. They seem to be the mouthpiece of their officials and rubber stamp what their officials do. Ministers do not do their job and hold the line. I am looking the Minister straight in the eye when I say that I have been equally guilty. He is falling into the same trap. As the papers come through, they receive the ministerial rubber-stamp and go on down the conveyor belt. That is the reason for the amendments.

Helen Clark (Labour, Peterborough)

Will the hon. Gentleman give way?

Richard Page (Conservative, South West Hertfordshire)

I shall certainly give way to the hon. Lady, but I must tell her that the Minister is not going to accept my amendment.

Helen Clark (Labour, Peterborough)

Instead of taking the Minister out of the equation, perhaps we should bow to his superior judgment.

Does the hon. Gentleman really believe it apposite in Committee to criticise civil servants who cannot defend themselves?

Richard Page (Conservative, South West Hertfordshire)

I accept the hon. Lady's strictures, but something must be done to stop the sausage machine churning out regulations day after day. She was not in Committee this morning--I am delighted that she has joined us this afternoon--and I am more than willing to furnish her with a list of the regulations that has been put on to the statute book during the past four years. They have increased by more than 10 per cent. That is what I am objecting to. Somehow, we must remove those burdens from business.

The purpose of the amendment is to try to tease from the Minister the process whereby consultation will take place and the extent to which the matter will be fully and fairly examined. I asked about costs and the Minister responded to previous amendments, but he has not given as full a picture of costs as I want. However, he has a closed mind and will not accept that there should be a broader and more democratic basis. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Frank Cook (Labour, Stockton North)

We now come to the question that clause 5 stand part of the Bill.

Mr. Lansley rose—

Frank Cook (Labour, Stockton North)

I must say that, following the lengthy discussion on a range of amendments on the matter, I shall need to be persuaded, but not by brown envelopes. Very briefly, Mr. Lansley.

Question proposed, That the clause stand part of the Bill.

Andrew Lansley (Conservative, South Cambridgeshire)

Would I be anything else? I shall not repeat our discussions on previous amendments, but the Minister is in the business of telling us what it is all about. Clause 5(1)(d) provides for consultation with the National Assembly for Wales where the provision will extend to Wales, and I am sure that that is fine. However, I note—this is a genuine question about something that I do not understand—that the Bill extends to Northern Ireland. I cannot find a consequent provision for consultation with the Northern Ireland Assembly. The explanatory notes have not enlightened me, and I wonder whether the Minister might do so.

Frank Cook (Labour, Stockton North)

That sounds reasonable.

Graham Stringer (Labour, Manchester, Blackley)

The Bill represents the constitutional settlements with Wales, Scotland and Northern Ireland. In Scotland, the Deregulation and Contracting Out Act will continue. In Wales, where powers have been devolved, the Welsh Assembly must consult. In Northern Ireland, where many regulations have been taken by Orders in Council, the Bill will not apply, but it will apply where legislation has been passed for the whole of the United Kingdom.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Rooney.]

Adjourned accordingly at nine minutes to Seven o'clock till Thursday 29 March at five minutes to Ten o'clock.