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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: My Lords, Amendment No. 1 is grouped with Amendments Nos. 11 and 13, in my name and that of my noble friend Lord Maclennan of Rogart. Clause 1(1) provides that: "““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””." The amendment would remove from Clause 1(1) the words ““he considers””, so that Clause 1(1) would read: "““A Minister of the Crown may by order under this section make any provision which would serve the purpose in subsection (2)””." In other words, this turns the test for the validity of the order from a subjective test to an objective one. Under the subjective test in the Bill, the order, which is of course secondary legislation and therefore subject to review by the courts, can be quashed by a court on judicial review if, but only if, the Minister is acting irrationally, so that no reasonable Minister, who would properly consider the relevant information, could have concluded that the order would serve the purpose in subsection (2). Under an objective test, the order could be quashed if the court was satisfied that, on the balance of probabilities, the order would not serve that purpose, even though the contrary view may be arguable. The Bill gives Ministers a wide power to legislate by order, with a restricted parliamentary process and no opportunity to amend the draft order apart from forcing the Government to withdraw a draft order and produce a revised order. The Bill, in its initial stages, was extremely controversial, and I accept that the Government have introduced new checks into the Bill to help to prevent abuses of powers. Owing, however, to the unusual nature of the powers conferred by the Bill, the further check that Amendment No. 1 would provide is needed. The test should not be whether the Minister’s view is daft, but whether, when looked at dispassionately, it is predictable that the order will more likely than not satisfy the purposes in Clause 1(2). That seems to be the proper test. Amendment No. 11 applies the same principle to the order made under Clause 2, which is in a very similar form, and the same reasoning applies. Amendment No. 13 applies similar provisions in relation to Clause 3, which contains five provisions at present that have to be satisfied before the procedure under the Bill can be used. Those conditions are plainly essential to prevent an abuse of powers under this Bill. For that reason, I believe that having an objective test is even more important in relation to Clause 3 than it is to Clauses 1 and 2. I note that Section 3 of the Regulatory Reform Act 2001, which provides similar conditions to the conditions under Clause 3(2)(c), (d) and (e), contained a subjective test, but the powers under the 2001 Act were considerably more limited than the powers under this Bill. Further, the Government intend to introduce Amendment No. 14, which will add a further condition that, "““the provision is not of constitutional significance””." I will strongly support Amendment No. 14, but I believe that what is of constitutional significance is plainly a matter for the decision of judges rather than for the opinion of Ministers. It will not be an easy question to decide with a constitution as flexible and as uncertain as ours. Decisions on what constitutes matters of constitutional significance will need to be consistent, based on full argument by experts and with written judgments to which access can be had. It is inappropriate to leave this matter to the decisions of Ministers who may have different views. I believe that the case for all three of these amendments is strong. I beg to move.