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Legislative and Regulatory Reform Bill

Amendment No. 74B seeks to restrict the power of an order to make provision authorising forcible entry, search or seizure or the compelling of the giving of evidence, except where an order is merely restating an existing provision in an enactment that does one of those things. This amendment removes the ability of an order to extend existing powers for purposes similar to those to which they already apply. The noble Lord, Lord Henley, has carefully set that out. I understand the noble Lord’s concern about the scope of the power in Clause 8(2). However, the provision, as he has noted, is not new; it is a carryover from the 2001 Act. The Government believe that that is correct, to retain the flexibility that Clause 8(2) provides. I shall describe why that is the case. I ought to add in parenthesis that I am not aware that the provision in the 2001 Act has ever been used, and it would only ever be our intention to ensure that the provision would be used sparingly. There may be occasions when both the Government and Parliament agree it is appropriate for an order to extend existing powers for purposes similar to those to which they already apply. I give an example: where an existing statutory power is conferred on a particular body authorising it to search and seize certain types of goods from cars and vans. Extending it for a similar purpose could mean so that trains could be searched by that body. In the case of an order under Clause 1, the order would of course need to remove or reduce burdens. Where an order reformed a particular inspection regime and replaced it with a less burdensome one, the changes to the regime might require an existing power authorising forcible entry, search or seizure to be extended slightly to fit better with the new regime. Amendment No. 74A lists additional restrictions on the powers an order may authorise. The restrictions given are unnecessary and, without listing specific activities, it is unclear what effect the third condition would have. There are existing protections against the misuse of the order-making power in Clause 1, both within and outside the extent of the Bill. The effect of the Human Rights Act 1998 is that it is unlawful, for instance, for a Minister to make secondary legislation that includes orders under Part 1 which are incompatible with the convention rights. For example, the right in Article 1 of Protocol 1 to the European Convention on Human Rights already protects property rights. Regarding both Amendments Nos. 74A and 74B,I reiterate that orders must also satisfy the preconditions in Clause 4. In particular, provisions must not remove any necessary protection or prevent any person continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise. Ultimately, though, Parliament may veto an order it considers inappropriate on any grounds, so the power of veto is a powerful tool indeed. I have already made clear on a number of occasions that we have given an undertaking not to deliver highly controversial proposals by order, and not to force orders through in the face of Committee opposition. I also stress the importance of viewing the powers in Clause 8 in the context of better regulation. Investigative powers should not have a negative impact on good businesses. Rather, they should be used only in a targeted way; for example, against rogue traders. For those reasons, I cannot support the amendment, and I hope the noble Lord will feel able to withdraw it. The noble Lord asked who decides if the purposes are similar, which is a fair point. It is the Minister making the order, subject to the decision of both committees, which have the power of veto, and subject to the views of the court in the case of a judicial review—perhaps one arising from a criminal prosecution. That fairly settles the question that he reasonably asked.