---

Legislative and Regulatory Reform Bill

Amendments Nos. 5 and 53, as the noble Lord, Lord Maclennan of Rogart, explained, go in the same direction. The power to remove all the burdens resulting from legislation is, as noble Lords will understand, provided in Clause 1. As well as removing or reducing burdens, it could also introduce new burdens, so it may be helpful to explain some of the thinking behind Clause 1(2). As the noble Baroness said, I set some of that out in correspondence. First, Clause 1 permits the removal or reduction of any burden that results for any person from legislation. Removing or reducing a burden from one person may, however, as I think is now understood, increase burdens upon others. This reflects the situation under the 2001 Act and could allow, for example, a reduction of burdens on the regulated at the expense of an increase in burdens for regulators. Another example would be the introduction of more targeted, or proportionate, risk-based burdens; for example, a more efficient, risk-based inspection regime, where the burden of inspection is reduced on those judged to be low risk at the expense of more onerous inspections for those judged to be high risk. Secondly, Clause 1 also permits the removal or reduction of the overall burdens resulting for any person from legislation. This would permit an order to replace a scheme that imposes burdens on a person with another scheme that is less burdensome overall for that individual. New burdens could be imposed on a person if that was done in the context of reducing the overall burdens that result from legislation for that individual. As I said, that was possible under the 2001 Act. For example, the Regulatory Reform (Fire Safety) Order created one simple, risk-based fire safety regime applying to all buildings that the public might use. That reduced burdens on a large number of businesses, but the rationalisation also imposed new, proportionate burdens on some other businesses. Amendments Nos. 5 and 53 address the issue of whether orders should have to effect a net reduction in the level of burdens to which a person is subject. In calculating the net level of burdens, it is important to remember that the measurement of burdens is not an exact science. It is difficult to compare the relative impacts of burdens, given the definition of ““burden”” in Clause 1. These are issues of judgment based on evidence—evidence that, as we discussed, the Minister will weigh and which the parliamentary committees will rightly challenge and confirm where appropriate. For example, Amendment No. 53 seeks to impose an additional precondition stating that any new or increased burdens can be imposed on one person only to the extent necessary for the removal or reduction of burdens on others, and the new or increased burdens must be proportionate to that purpose. In any case, the precondition in Clause 4(2)(c) requires that the provisions of an order, taken as a whole, must strike, "““a fair balance between the public interest and the interests of any person adversely affected by it””." This would ensure that any new burdens imposed by an order were considered in terms of the wider public interest. Amendment No. 53 would require that an administrative inconvenience may have to be weighted against an obstacle to productivity or a sanction. In many cases we can calculate in monetary terms the impact that the removal or reduction of these burdens would have. But in some cases—for example, that of administrative inconvenience falling upon individuals—the administrative inconvenience may not impose a financial cost. In these cases, the different types of burdens being added and removed could be incommensurable, and it would therefore be impossible to compare the burdens imposed on one person with the burdens removed from another. Amendments Nos. 53 and 5, therefore, would in many cases dramatically increase the analytical work that would be needed to deliver an order, replicating one of the major problems with the 2001 Act about which there have been complaints, and slow down the pace of regulatory reform by order. In some cases, it would simply not be possible to calculate whether the level of burdens overall had been reduced. The task would be like trying to compare chalk and cheese, so it would not be possible to deliver a beneficial reform by order. I should make it clear that Clause 1(2) allows orders to remove or reduce a burden. The second purpose of removing or reducing overall burdens makes it explicit that new burdens can be imposed on a person where overall burdens for that person are reduced. Since the purpose of the Bill is regulatory reform and cutting bureaucracy, it would be wholly inappropriate for orders to be used to create unnecessary burdens. Clause 15 provides that, for orders made under Clause 1, the explanatory document laid before Parliament must include details of the consultation responses received, which could highlight the creation of any unnecessary burdens. The document must also explain why the Minister considers that the preconditions in Clause 4, which include proportionality, are met, and must include an assessment of the extent to which the provision made by the order would remove or reduce any burden or burdens. It is government policy that, where appropriate, measures should include full impact assessments. The amendments tabled by the Government provide the parliamentary scrutiny committees with the power to veto proposals that they consider inappropriate for delivery by order, and I would expect that proposals that significantly increased red tape would fall foul of that test. As I have explained, the Bill already provides Parliament with an opportunity to assess the impact of any new or increased burdens and to consider the views of those affected. Amendments Nos. 53 and 5 would slow down the order-making process and could prevent beneficial reforms from being delivered by order. In such instances, we would consider that the Bill, which is designed to speed things up and improve the process, had failed in one of its important objectives. The second type of failure might be the creation of powers that do not work in practice—for example, because sensible consolidation or the addition of new and better targeted burdens is not possible as part of wide-scale regulatory reform. We might also replicate the problems arising from the 2001 Act and make the powers so complex to use in practice that a prohibitive amount of analysis—as proposed by the amendment—would be required in order to create an order. It is vital to avoid this. None of us wants to be here in four or five years debating another reform Bill, while businesses and others are still waiting for what we think and they think is an effective vehicle to deliver sensible cuts in red tape. The third type of failure that we must avoid would be when orders could be used to deliver proposals that did not have better regulation benefits, including entirely new policies such as major education or health reforms or proposals that implemented burdensome regulatory regimes. The order-making powers in Clauses 1 and 2 are drafted to prevent that but, as the Parliamentary Under-Secretary of State for the Cabinet Office, Pat McFadden, said in another place, we must beware that our efforts to refine the order-making power do not lead us into the second pitfall that I mentioned, so that we end up with a beautiful parliamentary process but not one that has a beautiful, useful deregulatory outcome. In view of those comments, I hope that the noble Baroness and the noble Lord will feel able not to press their amendments and will reflect carefully on the points made in the debate.