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Legislative and Regulatory Reform Bill

moved Amendment No. 1: Page 1, line 6, leave out ““he considers”” The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 50. This is, at last—after a slightly unexpected interval—the beginning of the Committee stage of this Bill. The Bill was undoubtedly improved by government amendments in the House of Commons and will be improved by further amendments from the Marshalled List and certain further amendments beyond that, which have not yet been tabled but which will be introduced in your Lordships’ House. I note with particular interest the Government’s acceptance of the need to remove Clause 3, which was the subject of considerable debate at Second Reading. I understand that the Government are now considering bringing forward alternative provisions for dealing with Law Commission Bills, although those are unlikely to be available until Report, when it may be necessary to ask for a Recommitment. I welcome those proposals in principle. However, while I am a strong supporter of the Law Commission and I am anxious to see more of its draft Bills on the statute book, I am afraid that Clause 3 is not the way to deal with that problem. The purpose of Amendment No. 1 is to alter the test in Clause 1 from the subjective to the objective. Clause 1(1) states: "““A Minister of the Crown may by order under this section make any provision which he considers would serve the purpose in subsection (2)””." Subsection (2) says: "““That purpose is removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation””." I have described the present position as a subjective test. The Government will say that the test as it stands is not subjective, and to some extent I accept that they will be correct because the Minister's decision is subject to judicial review. It is well established law that a Minister's decision can be quashed if it is irrational, although in this case, again as the Bill now stands, it would be a matter not of quashing that decision but of declaring incompatibility. It is well established law that a Minister's decision can be quashed when no reasonable Minister could have reached that conclusion if he or she had taken all relevant considerations into account. But there is still a significant subjective element here. It is rather like the difference between proof beyond doubt in a criminal case and proof on the balance of probabilities. As the Bill now stands, anyone seeking judicial review would have to show that the Minister's decision that the order would serve the purpose set out in subsection (2) was wrong beyond reasonable doubt. It is not enough to show that that decision was probably wrong. Of course, there are times when the subjective approach in drafting is appropriate but there are also times when the objective approach is appropriate. The Bill confers exceptional and very unusual powers, including a general power to amend much primary legislation by secondary legislation. I recognise that that is not unique, but the Bill considerably extends the powers in the 2001 Act and I believe that it falls into a class where a fully objective test is needed in Clause 1. Amendment No. 50 applies the same principle to whether the conditions in Clause 4(2), which limit the powers of a Minister, are satisfied. The test here, we believe, should also be objective and not semi-subjective. I recognise that in that respect we go further than the tests in the 2001 Act, where the semi-objective test was applied, but, again, I believe that that is justified by the extension of the circumstances in which this power can be used. Amendments Nos. 27 and 39, which are in a separate group, raise a very similar issue. As they stand in my name and that of my noble friend Lord Maclennan, it may be convenient to deal with them here and not speak to them separately. Amendment No. 27 applies the fully objective test to the power under Clause 1(8) to make consequential, supplementary, incidental or transitional provisions, including a power to amend or repeal primary legislation. I believe that such legislation should be appropriate and not just appropriate in the opinion of the Minister, at least if and in so far as it applies to primary legislation. Amendment No. 39 contains a similar provision in relation to consequential orders made under Clause 2. I believe that these four amendments are important and that it is desirable that, in all the cases covered by the amendments, the test should be the fully objective one and not the hybrid—semi-subjective, semi-objective—test that the Bill now contains. I beg to move.