Debates — Regulatory Enforcement and Sanctions Act 2008

Report stage in the Lords

19 Mar 200884 speechesView in Hansard ↗

Lord Cope of Berkeleymoved Amendment No. 1:
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Lord Cope of BerkeleyConservative
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moved Amendment No. 1:
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Baroness HamweeMy Lords, this was indeed an idea that came to me during the debate in Committee. What can I say? I am a pedant.
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Baroness HamweeLiberal Democrat
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My Lords, this was indeed an idea that came to me during the debate in Committee. What can I say? I am a pedant.
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Lord BorrieMy Lords, the noble Lord, Lord Cope of Berkeley, has made a good case for his amendment. It is certainly a much better…
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Lord BorrieLabour
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My Lords, the noble Lord, Lord Cope of Berkeley, has made a good case for his amendment. It is certainly a much better case than that made by the noble Baroness, Lady Wilcox, on behalf of the Opposition, when she wanted to change “regulation” to “deregulation”. That seemed to me nonsense. We all know that regulation is necessary, whether we are talking about food safety, health and safety of workers, consumer protection or whatever. What is needed is better regulation—or better administered regulation—which is fairly and adequately enforced. The noble Lord, Lord Cope of Berkeley, makes a good case for altering the name. What are we about? We are about better regulation and he wants to say “Better Local Regulation Office” instead of “Local Better Regulation Office”. Of course, he is quite right that it is a national body and the existing name could confuse people in the way that he described. MY only qualification is that we are where we are. The name “Local Better Regulation Office” has been with us for some time; the noble Lord admitted that it was there as a corporate body before it was suggested that it become a statutory body. The name is familiar—the LBRO has advertised posts under that name—so what is the case for changing it now? I very much doubt that that case has been made, as distinct from the case that could have been made if we were starting from scratch.
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Baroness WilcoxMy Lords, I support my noble friend Lord Cope on both amendments. As he has extensively argued, the appellation “Local…
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Baroness WilcoxConservative
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My Lords, I support my noble friend Lord Cope on both amendments. As he has extensively argued, the appellation “Local Better Regulation Office” is an obvious misnomer, as the office is an attempt at central, national co-ordination. What is currently regulated by local authorities will come under the jurisdiction of this new national body. Names of bodies should indicate the functions of those bodies and, while the Minister might pick at our argument for being pedantic or irrelevant, I argue that it is important to have clarity of intention from the start. Misinterpretation can lead to mistakes and the regulatory system cannot afford to suffer mistakes—nor should it. We are rather spoilt on this Bill and in the Department for Business, Enterprise and Regulatory Reform by having the noble Lord, Lord Jones, as our Minister of State as well as the noble Baroness, Lady Vadera, as our Parliamentary Under-Secretary of State, with the whole thing backed up by the noble Lord, Lord Bach, who is one of the most experienced members of the Government’s Front-Bench team. We are being spoilt rotten—and I am only too delighted to welcome the noble Baroness, Lady Vadera, to the Bill, which she has now taken over and on which, I presume, she will be with us to the end.
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The Parliamentary Under-Secretary of State, Department for Business, Enterprise and Regulatory Reform (Baroness Vadera)My Lords, I thank the noble Lord, Lord Cope, for tabling Amendments Nos. 1 and 2. I take this opportunity also to thank…
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The Parliamentary Under-Secretary of State, Department for Business, Enterprise and Regulatory Reform (Baroness Vadera)Non-affiliated
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My Lords, I thank the noble Lord, Lord Cope, for tabling Amendments Nos. 1 and 2. I take this opportunity also to thank noble Lords for the time and attention that they have accorded to this important Bill. We have listened and considered carefully all the amendments proposed. We have made numerous concessions which we believe will improve the Bill, please noble Lords and enable us to complete our consideration of the Bill today. However, the first amendment is not one that we can accept. I shall explain to the House why we chose the name “Local Better Regulation Office”. We completely accept that the office is not a local but a national body. However, the phrase “Better Regulation”, which appears in the middle of the LBRO’s name, refers to a well recognised concept in policy-making. The Better Regulation Executive, which leads across government on regulatory reform, is a part of my own department; indeed, I am the Minister for Better Regulation. The LBRO is about better regulation at a local level, which is local better regulation. I would not dream of suggesting that anyone is being pedantic, but we could have quite a long debate on semantics. The key issue is that the LBRO will promote better regulation locally. That could be phrased as local better regulation or better local regulation, but the former name maintains the better regulation brand and is therefore, I believe, the correct sequence of words in this case. As my noble friend Lord Borrie suggests, the LBRO has been in existence since last year. It already has brand recognition. It has written to every local authority in England and Wales. It has a draft strategy that has been consulted on in its name. Changing its name now without good reason would lose the value of that brand recognition and require the office to spend time rebuilding its reputation. In addition, there would be administrative and legal costs associated with any change of name, which we estimate would be about £35,000. These would include the cost of rebranding stationery, user guides and websites, as well as legal fees on, for example, company documentation, pensions and payrolls et cetera. I understand that £35,000 may not seem much but, coming from the Treasury, I should point out that it is the annual salary of an average teacher or policeman. I understand the point that the noble Lord makes, but I hope that in the light of what I have said he will feel able to withdraw the amendment.
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Lord Cope of BerkeleyMy Lords, that was an interesting short debate. I am grateful for the support for my proposal not only from the noble B…
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Lord Cope of BerkeleyConservative
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My Lords, that was an interesting short debate. I am grateful for the support for my proposal not only from the noble Baroness, Lady Hamwee, from whom I got the idea in the first place and whose support was therefore to be expected, but from the noble Lord, Lord Borrie. However, the noble Lord, Lord Borrie, also argued, as did the Minister for Better Regulation, that it would be a mistake to alter the name now. I am mildly shocked by that suggestion. What is being said is that, because the Executive decided something a few months ago off their own bat, Parliament is going to be ignored and whatever we say should not be taken seriously. What is being said is, “We have already decided that. It was all settled. We cleared that up in government”. If we accept that sort of argument in Parliament, we will, if we are not careful, waste our time discussing legislation at all. There is a considerable danger in that. I am not sure what the Government are doing presuming to lay all these things down and then saying, “Sorry, we have decided that already. Forget it. Do not bother even discussing it”. The Minister herself accepted that this body is not a local body, which is what its title suggests. She also advanced the idea that the cost of changing the name was too great. Frankly, coming from this Government, that is rather amusing. This Government have changed the names of departments of state more frequently than any Government I have known. They have mucked about with the titles of Ministers, sometimes very frequently, reshuffled departments, rewritten everything and moved departments about, sometimes in large ways and at enormous expense. Yet they say that they cannot possibly afford a little money to change this name, which they decided—wrongly in my opinion—a few months ago. I am not happy with the answers that have been given to me and I urge the Government to think again. This Bill started in your Lordships’ House. It has not yet been to another place, so there is plenty of time for the Government to think again when it is passed down the Corridor. As a matter of fact, they have taken a lot of time between Committee and Report. The Bill has not been overpressed through this House. I make no complaint about that, but the Government have time to rethink this matter, as I think they should, for the reasons that I have advanced. I have made the case and I have been supported around the House, at least on the basis of the case. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 2 not moved.]
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Baroness Wilcoxmoved Amendment No. 3:
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Baroness WilcoxConservative
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moved Amendment No. 3:
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Baroness VaderaMy Lords, I thank the noble Baroness, Lady Wilcox, for giving way so early in her remarks. I intervene with a view to a…
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Baroness VaderaNon-affiliated
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My Lords, I thank the noble Baroness, Lady Wilcox, for giving way so early in her remarks. I intervene with a view to assisting the House on this matter. It may help the House to know that, when I respond, I will propose making a statutory provision for a review of the LBRO’s effectiveness in three years—two years before the proposed date in the sunset clause. This provision would be similar to that in Part 3 of the Bill. We believe that it would be a more tailored approach, which would achieve the aims intended by the noble Baroness and noble Lords but without the uncertainties and unintended consequences that the sunset clause would bring.
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Baroness WilcoxWell, my Lords, I have a wonderful speech here. It took my researcher Violet and me ages to write. Where did I stop? I…
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Baroness WilcoxConservative
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Well, my Lords, I have a wonderful speech here. It took my researcher Violet and me ages to write. Where did I stop? I said that once again I bring for us to debate a sunset clause to ensure that the provisions of the Bill cannot continue past 1 January 2014 without parliamentary scrutiny. If I heard the Minister correctly, she will propose an undertaking to review the Local Better Regulation Office in three years. If that is what I heard—I would like to think that that was what I heard, and she is not interrupting me again to tell me that I am wrong—I do not need to continue with this speech.
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Baroness WilcoxMy Lords, I would prefer to say that that would be a welcome and reassuring measure. I look forward to what she will sa…
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Baroness WilcoxConservative
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My Lords, I would prefer to say that that would be a welcome and reassuring measure. I look forward to what she will say. It is not for us to prevent the Government from getting their business through; it is our job to improve the Bill where we can. If that is what we are about to do, that would be very helpful. I beg to move.
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The Chairman of Committees (Lord Brabazon of Tara)My Lords, the amendment should refer to Section 74(3), not Section 73(3).
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The Chairman of Committees (Lord Brabazon of Tara)Conservative
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My Lords, the amendment should refer to Section 74(3), not Section 73(3).
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Lord RazzallMy Lords, I entirely endorse the remarks of the noble Baroness welcoming the noble Baroness, Lady Vadera, to the Front…
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Lord RazzallLiberal Democrat
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My Lords, I entirely endorse the remarks of the noble Baroness welcoming the noble Baroness, Lady Vadera, to the Front Bench. I am slightly disappointed, because I was about to place a bet of £10 for every time a Tory Peer stood up and made a slightly childish comment about the actions of the noble Lord, Lord Jones. At the rate they were going, I would probably have had £1,000 by Easter. However, I endorse the noble Baroness’s remarks and welcome the Government’s concession. As the Minister will be aware, sunset clauses are a topic dear to the heart of our party and this is a satisfactory compromise, which I welcome on behalf of these Benches.
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Lord BorrieMy Lords, I just make the point that Clause 17 already provides for the possibility of a government order to be made to…
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Lord BorrieLabour
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My Lords, I just make the point that Clause 17 already provides for the possibility of a government order to be made to dissolve the Local Better Regulation Office when its purpose has been achieved. That is surely much better than an arbitrary date chosen by this amendment. We also have my noble friend’s point about the review, so that, well before the date chosen by the Opposition for a complete but arbitrary cut-off point, there will be a review. No doubt there would have been one anyway because of the power in Clause 17 to dissolve the office at some future date.
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Baroness VaderaMy Lords, the House already knows what the Government intend to do and I do not believe that I should detain noble Lord…
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Baroness VaderaNon-affiliated
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My Lords, the House already knows what the Government intend to do and I do not believe that I should detain noble Lords any longer on this issue. I hope that the noble Baroness will feel able to withdraw her amendment.
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Baroness WilcoxMy Lords, I thank the Minister. I am grateful for what she said and for the gracious way in which the noble Lord, Lord…
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Baroness WilcoxConservative
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My Lords, I thank the Minister. I am grateful for what she said and for the gracious way in which the noble Lord, Lord Razzall, spoke. He always says nasty things about us. I do not know why he goes on like that. I will give him £10 if he wants £10: he does not have to gamble on how many times we mention the noble Lord, Lord Jones. I say to the noble Lord, Lord Borrie, that politics is a messy old business. “Perhaps” is not good enough for us, so I am much happier to have the Minister’s reassurance today. I am now happy to beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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Lord Bachmoved Amendment No. 4:
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Lord BachLabour
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moved Amendment No. 4:
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Lord Hodgson of Astley AbbottsMy Lords, I briefly thank the Minister for his kind comments and, indeed, for his amendment. When we discussed this in…
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Lord Hodgson of Astley AbbottsConservative
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My Lords, I briefly thank the Minister for his kind comments and, indeed, for his amendment. When we discussed this in Grand Committee, the noble Baroness, Lady Hamwee, suggested the idea of half less one. I tabled an amendment to this effect but when I played around with the practical implications for the structure of the board, it was clear that the original idea was better. Therefore, I shall not move my amendment and I am grateful to the Minister for adopting the proposal. On Question, amendment agreed to. [Amendment No. 5 not moved.]
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Lord Hodgson of Astley Abbottsmoved Amendment No. 6:
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Lord Hodgson of Astley AbbottsConservative
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moved Amendment No. 6:
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Lord BorrieMy Lords, I hope that I have never said, either in Committee or elsewhere, that it is necessary to be on a body for fiv…
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Lord BorrieLabour
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My Lords, I hope that I have never said, either in Committee or elsewhere, that it is necessary to be on a body for five years to get to know the ropes. I expressed my view that five years should be the maximum period, because it takes a year or two—especially for a part-timer—to be useful and to get to know the ropes. Then one needs a reasonable time to be useful, rather than thinking, “In a few months’ time, I have to leave”. That was all I was saying. I hope that I did not go as far as the extreme statement attributed to me by the noble Lord.
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Lord BachMy Lords, paragraph 6 of Schedule 1 makes provision for the tenure of board membership, and paragraph 6(2) limits board…
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Lord BachLabour
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My Lords, paragraph 6 of Schedule 1 makes provision for the tenure of board membership, and paragraph 6(2) limits board members to terms of no more than five years; paragraph 6(5) limits board members to a total period of appointment of no more than 10 years. The noble Lord, Lord Hodgson, returns to a theme discussed in Committee, and I am sorry that, on this occasion, I will not be able to agree with him. As my noble friend has just said, these are maximum periods for a term and for the total period of appointment respectively. It should be noted that within the Bill it is quite possible to appoint a board member for a term of only three years. The noble Lord, Lord Hodgson, has already mentioned what my noble friend Lord Borrie said in Committee—that, unlike board members in the world of business and commerce, the LBRO’s board will be taking on part-time posts and it will take them some time to learn the ropes. We take the same view. While of course there are arguments for and against limiting the terms of the LBRO’s board members to three years, on balance we believe that it is preferable to include flexibility in the Bill and to allow for the possibility of a five-year term for a board member. That addresses the point made by my noble friend on the previous occasion, and now on Report. That is the Government’s view and I hope that the noble Lord—although I am sure he is not persuaded—will not press his amendments.
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Lord Hodgson of Astley AbbottsMy Lords, I am grateful, as ever, to the Minister for his courteous response to my amendments. I am not persuaded that…
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Lord Hodgson of Astley AbbottsConservative
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My Lords, I am grateful, as ever, to the Minister for his courteous response to my amendments. I am not persuaded that his case is right for achieving the best governance in this organisation. All non-executive directors are part-time, and if you are to be a non-executive director of a major international company, you have to get to know and become familiar with the company in three years, and you can be reappointed. I understand the Minister’s viewpoint; it is not an open-and-shut case. I accept that there are arguments on the other side that he and the noble Lord, Lord Borrie, have advanced. In the circumstances, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 7 not moved.] Clause 4 [“Relevant function”]:
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Lord Bachmoved Amendment No. 8:
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Lord BachLabour
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moved Amendment No. 8:
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Baroness HamweeMy Lords, I welcome these amendments. The letter on Amendment No. 8, sent to noble Lords following Committee by the nob…
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Baroness HamweeLiberal Democrat
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My Lords, I welcome these amendments. The letter on Amendment No. 8, sent to noble Lords following Committee by the noble Lord, Lord Bach, was particularly helpful. It certainly prepared me for this amendment and persuaded me. I also welcome Amendment No. 12 and am grateful to the Government for taking up the point. On Question, amendment agreed to. Clause 5 [Objective relating to general functions]:
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Lord Hodgson of Astley Abbottsmoved Amendment No. 9:
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Lord Hodgson of Astley AbbottsConservative
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moved Amendment No. 9:
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Lord BorrieMy Lords, I have a lot of sympathy with what has been said by the mover of the amendment, the noble Lord, Lord Hodgson.…
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Lord BorrieLabour
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My Lords, I have a lot of sympathy with what has been said by the mover of the amendment, the noble Lord, Lord Hodgson. I recalled that in Committee my noble friend Lord Desai indicated that it was rather difficult to think of saying that a local authority had been effective in its job without also considering whether it had been efficient. The two seem to go together like twins and that led me to think that the proposal in the amendment of the noble Lord, Lord Hodgson, is redundant because “effective” covers the same area. However, to be on the safe side and make it clearer to local authorities, businesspeople, consumers and whoever is concerned with the provision in the Bill, it may well be a good idea to have “efficient” added to “effective”. The noble Lord has done his homework in studying a selection of Audit Commission reports and has made some important points. I was not terribly convinced of the explanation given in Committee by my noble friend Lord Bach when in rejecting “efficient” he said that that was a matter for the Audit Commission. I fully accept that detailed assessment of local government management and its efficiency is indeed a matter for the Audit Commission, but I do not see a clash between that assessment that the Audit Commission pursues and the idea in the amendment that the LBRO should consider the effectiveness and efficiency of local authorities. Therefore, I still have sympathy with the amendment proposed by the noble Lord.
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Lord DesaiMy Lords, I spoke in Grand Committee and I continue to be astonished that, in a Bill designed to reduce red tape, all t…
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Lord DesaiCrossbench
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My Lords, I spoke in Grand Committee and I continue to be astonished that, in a Bill designed to reduce red tape, all that we have been doing is adding words, phrases, requirements and tasks. Therefore, whenever we cut red tape, we make sure that another nice bouquet of it is handed on to whoever has to abolish it. Why have two words when one will do? The whole principle of business is “save money, save costs and save time” and I do not think anything is gained by having two words where one will do.
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Baroness HamweeMy Lords, the point that the noble Lord, Lord Desai, has just made about reducing or adding to the burden provoked a sm…
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Baroness HamweeLiberal Democrat
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My Lords, the point that the noble Lord, Lord Desai, has just made about reducing or adding to the burden provoked a smile from the Government Front Bench. It is a view that I share, but the Minister may be about to tell us why we are both wrong. I tabled an amendment in Committee that referred to what I think the noble Lord, Lord Bach, called the mantra of “efficiency, effectiveness and economy”—with which the Audit Commission is concerned. I tabled that amendment because I wanted to understand how the work of the LBRO interfaced with that of the Audit Commission. I was then persuaded to withdraw it. It seems to me that to add one extra limb in this clause would be inappropriate. I can see that the LBRO’s business is to support and to encourage effectiveness among local authorities, which is entirely within its remit. Efficiency on the part of local authorities is not its business. I would be unhappy if the provision were extended in this way.
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Baroness WilcoxMy Lords, I support my noble friend Lord Hodgson of Astley Abbotts in his Amendment No. 9. It seems to me to be a sensi…
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Baroness WilcoxConservative
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My Lords, I support my noble friend Lord Hodgson of Astley Abbotts in his Amendment No. 9. It seems to me to be a sensible idea to ensure that the LBRO is tied to good practice through the Government’s own regulators’ Compliance Code. It makes a qualitative requirement that the LBRO fulfils its duties with adequate success. In these debates on regulation, we need to ensure that the LBRO is a body fulfilling a purpose. When the regulatory system is so hideously complex, the last thing we need is another body that will further complicate the system, let alone an extra word. We need to find solutions and clarity and, unless we stipulate that, I believe we are in danger of missing an opportunity here.
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Lord BachMy Lords, I thank the noble Lord, Lord Hodgson, for raising this issue. In our view, the noble Baroness, Lady Hamwee, h…
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Lord BachLabour
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My Lords, I thank the noble Lord, Lord Hodgson, for raising this issue. In our view, the noble Baroness, Lady Hamwee, had it absolutely right. She speaks with a lot of experience of local government—some of us have some experience of local government but not to the extent that she has. The point she makes is right. Efficiency is very much about the internal workings of a local authority. I will not say that it has a specific meaning, but it has a pretty clear meaning in local authority terms. Efficiency is about the internal workings of local authority regulatory services. The LBRO is looking at the external manifestation of regulation: the effects or effectiveness of regulation. The efficiency of local government is a matter that is looked at by the Audit Commission. We are not afraid of clashes with the Audit Commission—the noble Lord is wrong about that—but he is aware of our belief that the Audit Commission already performs the role of seeing that a local authority is performing efficiently and it has performed that role perfectly well. It would be ironic to have two public bodies performing the same function in the name of efficiency and, in the process, to put local authorities under a duty to account to both at the same time. To have to account to the Audit Commission is a responsibility on each and every local authority. We are just confusing issues if we say that there should also be an obligation under this Bill to the LBRO. The word “effective” in the LBRO’s objective seeks to capture maintaining what can only be described as regulatory outcomes, which sounds rather clichéd; for example, consumer protection, which is key to the policy behind the LBRO. We do not think that the use of the word “effective” in the context of the Audit Commission has the same meaning. For that reason, we see no clash with regard to the term “effective” from the quotes given to us by the noble Lord when moving his amendment. It is not because it adds an extra word to the Bill—although in general terms my noble friend Lord Desai is right that we will add the words “in writing” later this afternoon—but because there is a confusing of roles. Efficiency is a matter for the Audit Commission and effectiveness is very much a matter for the LBRO. I am sorry that I cannot accept the amendment.
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Lord Hodgson of Astley AbbottsMy Lords, I am very disappointed with the Minister's response, as he will understand. I am grateful to the noble Lord,…
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Lord Hodgson of Astley AbbottsConservative
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My Lords, I am very disappointed with the Minister's response, as he will understand. I am grateful to the noble Lord, Lord Borrie, for his qualified support for what we are trying to achieve. I understand what the Minister is driving at, but I do not think that that meets the point, which is that the Audit Commission reports comment on effectiveness as well as efficiency. So if you wish to avoid having the same ground climbed twice, you should strike out “effective” as well as “efficient”.
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Lord Hodgson of Astley Abbottsmoved Amendment No. 10:
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Lord Hodgson of Astley AbbottsConservative
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moved Amendment No. 10:
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Baroness HamweeMy Lords, I have a problem with this amendment too. Local authorities have powers in regard to the three limbs of susta…
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Baroness HamweeLiberal Democrat
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My Lords, I have a problem with this amendment too. Local authorities have powers in regard to the three limbs of sustainable development—economic, environmental and social—and to extract one and put it in the Bill would distort the picture. I have written a note to myself that this goes too far. The remit of the LBRO is quite specific and clear, and this is outside the way in which the Government have designed it. It also goes too far for local authorities. That is not to say that economic progress should not be encouraged but it would distort the responsibilities of local authorities to have this provision in the Bill, both by specifically separating it from the other roles and duties which are spelt out, and from the constraints and criteria on how they exercise their regulatory functions. I am sorry to disappoint the noble Lord again.
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Lord BachMy Lords, I am also sorry that I am going to disappoint the noble Lord again. As was said in Committee, the phrase the…
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Lord BachLabour
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My Lords, I am also sorry that I am going to disappoint the noble Lord again. As was said in Committee, the phrase the noble Lord seeks to get into the Bill is echoed in the regulator’s compliance code, which comes into force in April this year. The code states: “Good regulation and its enforcement act as an enabler to economic activity”, and should, “allow or encourage economic progress”. However, the code also includes a number of other obligations based on the Hampton principles to which local authorities must have regard. These are: carrying out comprehensive and effective risk assessments; improving compliance through support and advice; not inspecting without a reason; balancing the need for information with the burdens presented by information requests; targeting those who deliberately or persistently breach the law; and establishing structures to ensure accountability and transparency. It is essential for local authorities to have regard to all these obligations and it would be odd and invidious to include only one in the LBRO’s objective, thereby giving that one undue weight over the others. I know that the noble Lord, Lord Hodgson, is keen to ensure that we acknowledge in the Bill the importance of economic activity to the prosperity of this country. The Bill recognises the importance of economic activity and it is designed to ensure that the UK regulatory environment is world class. Where a local authority exercises its relevant functions effectively and in a way that does not give rise to unnecessary burdens, is transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, economic progress will follow. I accept that we may not have made it as clear as possible how the work of the LBRO will relate to the code and that this will have to be addressed. If the noble Lord has done nothing else, he has made that point. The most appropriate place to do this is in the guide that accompanies the Bill. I do not agree with him that this should be included in the Bill and I invite him to withdraw the amendment.
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Lord Hodgson of Astley AbbottsMy Lords, the importance of economic activity and success is hard to overestimate. I accept entirely the Minister’s poi…
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Lord Hodgson of Astley AbbottsConservative
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My Lords, the importance of economic activity and success is hard to overestimate. I accept entirely the Minister’s point about other matters referred to in the Hampton report. The economic prosperity of this country is so critical that its position vis-à-vis our regulatory framework is central, in a way that some of the other headings that he referred to, while important, are not. Having said that, if the Government are clearly not minded to accept that point of view, I do not propose to ask the House to troop through the Lobbies, as I did a few minutes ago. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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Baroness Hamweemoved Amendment No. 11:
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Baroness HamweeLiberal Democrat
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moved Amendment No. 11:
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Lord BachMy Lords, we spent some time in Committee discussing the principles of good regulation, which feature prominently in th…
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Lord BachLabour
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My Lords, we spent some time in Committee discussing the principles of good regulation, which feature prominently in the LBRO’s objective. Local authorities are already required to have regard to the principles of good regulation, under the provisions in the legislative and regulatory reform order. That order applies the principles as listed in Section 21 of the Legislative and Regulatory Reform Act 2006. The fifth of the principles, which we are talking about here, states that, “regulatory activity should be targeted only at cases in which action is needed”. Clause 5(2)(a) follows that wording precisely. The word “only” is what the noble Baroness complains of. A change in wording here would send somewhat contradictory messages to the LBRO and to local authorities, and would clearly be undesirable. However, I acknowledge that concerns were raised in Committee that “only”, which here is attached to the fifth principle of targeting, could cast a cloud over some important work performed by local authorities. The clause specifies that regulatory activities should be targeted only at cases where “action is needed”. That does not mean that local authorities may only act where there is a specific problem. It means that they should target their activities where they are needed more generally. There is no doubt that local authorities will need to do some investigative work to determine if there is a specific problem in the first place. I give an example: a fire authority may want to do random inspections of high-risk premises in its area or a food authority may need to take random samples of food to test for contamination. Clearly those are both cases where action is needed. Local authorities could not do their work in protecting the public adequately without that action. It would not, therefore, be excluded by the principle. However, the principle of targeting suggests that purely routine inspections, with no such meaningful rationale, should not go ahead, and that is obviously right. Consistency with the existing legislation is critical, but I acknowledge the concerns expressed on this point. Reluctantly, we disagree with the noble Baroness. “Only” should remain in the clause.
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Baroness HamweeMy Lords, the Government seem to be hung up on the fact that they have used this phrase in previous legislation. The Mi…
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Baroness HamweeLiberal Democrat
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My Lords, the Government seem to be hung up on the fact that they have used this phrase in previous legislation. The Minister’s argument seemed apart from that to support not only everything that I said—I said it quite quickly—but everything that I thought. I have not looked at the 2006 Act in this context, but if the phrase is wrong here, it would not be right to compound what is perhaps not quite right in that Act. I shall withdraw the amendment, but urge the Government to take another look at the matter. I understand the need to be consistent with previous legislation, because there can be confusion if exactly the same point is dealt with in different ways in different Acts of Parliament. I have made that point on a number of occasions over the years. However, the phrase is not right here. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 6 [Guidance to local authorities]:
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Lord Bachmoved Amendment No. 12:
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Lord BachLabour
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moved Amendment No. 12:
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Viscount Ecclesmoved Amendment No. 13:
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Viscount EcclesConservative
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moved Amendment No. 13:
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Baroness HamweeMy Lords, I wholeheartedly support what the noble Viscount has said, his reasons for saying it and the way that he put…
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Baroness HamweeLiberal Democrat
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My Lords, I wholeheartedly support what the noble Viscount has said, his reasons for saying it and the way that he put it. When I first read the Bill, Clause 7 was perhaps the clause that startled me most. It is headed “Guidance to local authorities: enforcement”, which seems relatively innocent. Yet in the first line one comes to the power of direction. This is an important constitutional point. I do not want to take up the time of the House by repeating what the noble Viscount has said. By not repeating it, I hope it is not thought that I do not entirely go along with him. We support him fully from these Benches.
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Lord BorrieMy Lords, I oppose the amendment proposed by the noble Viscount, Lord Eccles. We know—he showed us—that Clause 6 gives…
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Lord BorrieLabour
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My Lords, I oppose the amendment proposed by the noble Viscount, Lord Eccles. We know—he showed us—that Clause 6 gives the LBRO power to issue guidance to local authorities on their so-called relevant functions. In the main, no doubt, that guidance will be accepted and followed by local authorities. As the noble Viscount pointed out, Clause 6(3) says that local authorities “must have regard” to the guidance. From time to time there is bound to be a recalcitrant local authority and the question is how the guidance can be enforced. Should it be by the LBRO itself or by a relevant Minister? The Government’s answer in the Bill as it stands is the right one. The LBRO needs some sort of backup power for the recalcitrant local authority which, let us say, persistently ignores or declines to follow the guidance that the LBRO has given. Without that, there is a risk of the LBRO being impotent. The amendment asks for ministerial involvement but, as the noble Viscount fairly pointed out, Clause 7(2) requires the LBRO to have the consent of the Secretary of State. So there is a ministerial dimension and the potential for parliamentary accountability connected in that way in the Bill already. The Minister can always be asked, in this House or in the other place, why consent was given—and the Minister will have to respond. We have here the independence of the LBRO and its power to issue guidance and enforce it directly, but we also have ministerial accountability, which is the key constitutional point with which the noble Viscount has been concerned. The Bill as it stands achieves the right amount of LBRO independence and ministerial accountability for what is done.
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Baroness Butler-SlossMy Lords, bearing in mind what the noble Lord, Lord Borrie, said about not having something that is impotent, I wonder…
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Baroness Butler-SlossCrossbench
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My Lords, bearing in mind what the noble Lord, Lord Borrie, said about not having something that is impotent, I wonder what effective enforcement the LBRO can achieve. Is it financial against a local authority? In what other way can the LBRO ensure that the recalcitrant local authority actually complies? Clearly, a Secretary of State has a financial ability. Does the LBRO have that financial ability?
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Baroness WilcoxMy Lords, along with the noble Baroness, Lady Hamwee, I am in full support of the raft of amendments proposed by my nob…
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Baroness WilcoxConservative
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My Lords, along with the noble Baroness, Lady Hamwee, I am in full support of the raft of amendments proposed by my noble friend Lord Eccles. The amendments would move the powers of direction from the LBRO to the Secretary of State. Crucially, the amendments do not diminish the power that stands behind the instruction for compliance. I follow my noble friend Lord Eccles in his concern that the Bill gives the non-departmental body, the LBRO, an unprecedented power to turn guidance to local authorities subject to the “must have regard to” instruction into enforcement—and thus the instruction “must comply”. I would also very much like to hear the Minister’s justification for conferring such a great and significant power, given that the LBRO is a new body and an untested novice in its regulatory role. A regulatory body should never have the power to be both judge and jury over the regulated. I do not need to point out to your Lordships that such a situation risks losing the trust of British businesses in the regulatory system. I find it hard to believe that the Minister will not agree that optimum regulation occurs when the system is seen to work for business and the consumer, and not isolated in a separate superiority. Therefore, I would be very much more reassured if the Minister could put the reserve power of direction into the properly accountable hand of the Secretary of State.
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Lord BachMy Lords, I am grateful for the opportunity that the amendments give to discuss our reason for the inclusion of the mea…
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Lord BachLabour
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My Lords, I am grateful for the opportunity that the amendments give to discuss our reason for the inclusion of the measures in Clause 7. I am doubly grateful to the noble Viscount for his thanks particularly to the Bill team for the help that he says that it has given him. It is very good of him to say so because Bill teams do not often receive that kind of plaudit, although they do extraordinarily hard work—one hopes for all Members of the House. I acknowledge, too, that the noble Viscount has moved his position to some extent from the one he held in Committee. The amendment would no longer remove the power that the LBRO has to direct compliance with guidance; it would retain the approach adopted in Clause 7 but would put the power to give directions into the hands of the Secretary of State. I understand why the noble Viscount is testing the provisions in the clause further, but I shall try to explain to the House why we do not feel that this particular change would be helpful. We have already set out the thinking behind the inclusion of the LBRO’s power to direct. It has its origins in the Hampton report, which recommended the creation of a public body with significant powers, along the lines of those which are already held by the Food Standards Agency, to which the noble Viscount referred. It is important that the LBRO should have a backstop power to be used when, for example, as my noble friend Lord Borrie argued, one or more local authorities persistently act with disregard for a particular piece of guidance, and this disregard is detrimental to business or the public.
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Viscount EcclesMy Lords, before I try to reply as best I can, may I refer to the Food Safety Act which the Minister mentioned? There a…
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Viscount EcclesConservative
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My Lords, before I try to reply as best I can, may I refer to the Food Safety Act which the Minister mentioned? There are two things. Under Section 40 the Secretary of State can issue a code of practice, giving food authorities guidance on how they should enforce food law, and under Section 41A the Food Standards Agency can direct a food authority. Even if a food authority is also a local authority, that power is much narrower than anything proposed in this Bill because it is specifically about the single subject of food. I wonder if the Minister would agree that we are looking at a precedent. It is not right to use the Food Standards Agency as a sufficient precedent for what is in this Bill.
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Lord BachMy Lords, I accept the enormous amount of work that the noble Viscount has put into researching this, no doubt more wor…
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Lord BachLabour
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My Lords, I accept the enormous amount of work that the noble Viscount has put into researching this, no doubt more work than I have put in. The advice that I have received is that the Food Standards Agency is a good precedent for what we are intending here. It may not be absolutely on all fours, precedents rarely are, but it gives that agency the power to direct local authorities. That is precisely what we are seeking for the LBRO here. It is a backup power with all that that is intended to mean. One difference the other way is that the Food Standards Agency only needs to consult the Secretary of State. Here if the LBRO is to direct any local authority, it has to have the prior consent of the Secretary of State himself or herself.
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Viscount EcclesMy Lords, I thank the Minister for that reply. I think that in substance we are in very close agreement. I am not in an…
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Viscount EcclesConservative
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My Lords, I thank the Minister for that reply. I think that in substance we are in very close agreement. I am not in any way contesting the need to be able to bring a recalcitrant local authority into line. Nothing in my amendment takes away the power to do just that. My argument is: why have a dog when you can bark yourself? Also, no non-departmental government body has, even if it has the power of direction, ever exercised it. Why is it sensible to set a precedent on this occasion? It seems to me that what I have proposed meets everything in substance that the Minister wishes to see. I have effectively two choices—three really. I could hope that down the other end the argument will be read with sufficient care, the Government will come to see the force of it and an amendment will be introduced. I am not entirely optimistic that that will be the case. So, in thanking all those who have taken part in this relatively short debate and noting particularly what the noble Baroness, Lady Hamwee, said, I wish to test the opinion of the House.
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Baroness Hamweemoved Amendment No. 19:
Speaker
Baroness HamweeLiberal Democrat
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moved Amendment No. 19:
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Lord BachMy Lords, I thank the noble Baroness, Lady Hamwee, for her amendment, which we suspect is designed to complete the job…
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Lord BachLabour
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My Lords, I thank the noble Baroness, Lady Hamwee, for her amendment, which we suspect is designed to complete the job that she began in Grand Committee by tabling an amendment that required LBRO to consult local authorities prior to issuing guidance under Clause 6. We considered that amendment and made an amendment of our own to include that requirement in the Bill. We are delighted to say that we will consider this new amendment as well. I hope to return with our form of words at Third Reading.
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Baroness HamweeMy Lords, I happily beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 20 to 23 not…
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Baroness HamweeLiberal Democrat
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My Lords, I happily beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 20 to 23 not moved.] Clause 9 [Advice to Ministers of the Crown]:
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Lord Cope of Berkeleymoved Amendment No. 24:
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Lord Cope of BerkeleyConservative
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moved Amendment No. 24:
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Lord BachMy Lords, the noble Lord hopes that we will accept it. We certainly intend to consider it, if that will help him.
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Lord BachLabour
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My Lords, the noble Lord hopes that we will accept it. We certainly intend to consider it, if that will help him.
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Lord Cope of BerkeleyMy Lords, in that case, I need not go on for very long. The point is whether the LBRO will consider prospective as well…
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Lord Cope of BerkeleyConservative
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My Lords, in that case, I need not go on for very long. The point is whether the LBRO will consider prospective as well as existing legislation. The noble Lord said in Grand Committee that that might be included under the words “any other matter” in subsection (1)(d). As legislation is specifically referred to in subsection (1)(b), we should include the words that I suggest. I beg to move.
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Baroness HamweeMy Lords, I have Amendments Nos. 25, 26 and 27 in this group. I pause hopefully, but no one is leaping to intervene. Cl…
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Baroness HamweeLiberal Democrat
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My Lords, I have Amendments Nos. 25, 26 and 27 in this group. I pause hopefully, but no one is leaping to intervene. Clause 11 provides for LBRO to publish, “a list specifying matters to which a local authority should give priority when allocating resources to its relevant functions”. My concern is that LBRO’s powers should not extend to allocating to the regulatory functions from the whole of a local authority’s budget. Rather, they should be limited to the priorities within what a local authority itself allocates to the functions. I hope that the Government can reassure me that that is what is intended. If the Government take the view that LBRO should have the greater power of saying to a local authority, “Thou shalt devote X million out of your Y hundreds of millions to the relevant functions”, that is too much power on the part of LBRO. I therefore hope that the Government can assure me that this is intended to be a more limited intervention.
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Lord Hodgson of Astley AbbottsMy Lords, I have tabled Amendment No. 28 in this group. This is an issue that we covered in Committee. It concerns publ…
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Lord Hodgson of Astley AbbottsConservative
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My Lords, I have tabled Amendment No. 28 in this group. This is an issue that we covered in Committee. It concerns publishing the details of representations made to LBRO and the identity of those making the representations. The background to this was that I felt it important that, if you wish to influence public policy by lobbying LBRO, you should at least be prepared to be identified as having done so. The compulsive litigant or compulsive complainant should at least be identified as such. The Minister suggested on 28 January at col. GC 132 that this would fall foul of the Data Protection Act as he understood it. Between Committee stage and tonight, I have taken the trouble to ask, at a fairly unofficial level, a data protection lawyer about this. I am advised—I am sure that the serried ranks of the Bill team and its huge legal battery will have much better advice than I have—that where people put themselves forward and make direct representations, they would not be afforded the protection of the Data Protection Act, but that they would be if their support was implied. That is to say that, if the chamber of commerce had done something, you could mention the chamber of commerce but not the firms that were part of it. If you said that a company had made a representation, you could name the company but not individual directors. I hope that the Minister will take the opportunity to think about this. Transparency is important in these areas. If you wish to influence public policy, you should have the courage of your convictions and be prepared to stand up and say what you are standing for. The dangers of allowing this to be done without disclosure are considerable.
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Lord BachMy Lords, these amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Hodgson, give me a…
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Lord BachLabour
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My Lords, these amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Hodgson, give me an opportunity to remind the House briefly of the intentions behind Clause 11. Before that, I should refer to Amendment No. 24 in the name of the noble Lord, Lord Cope. His amendment gives me an opportunity to give further assurances about how the Government expect the advisory role of LBRO to operate in practice. The noble Lord raised an important point in Committee in relation to its ability to offer advice to the Government, not only on the existing legislation enforced by local authorities but on proposals in the pipeline. Clearly, LBRO will have considerable expertise to offer and the Government could get just as much benefit, if not more, from advice on legislation in development. We share the noble Lord’s view that LBRO should be able to advise on this. We consider the provision in Clause 9(1)(d), that LBRO may give advice on, “any other matter relating to the exercise by local authorities in England and Wales of their relevant functions”, would be sufficient legal basis for LBRO to offer advice on legislative proposals. To put the matter beyond doubt, let me say that the amendment of the noble Lord is helpful and that, if he will withdraw it tonight, we will come back on Third Reading with words that I suspect will be very similar to what he has proposed—they might be a little different. We are grateful to him and will certainly consider his amendment. Turning to the amendments in the name of the noble Baroness, Lady Hamwee, I can give her the agreement that she wanted. That is not to accept the amendments but to agree that, in her phrase, “more limited intervention” is what we are trying to achieve here, rather than what she fears. I want to make it clear that the provisions in Clause 11 will not prevent councils from giving due regard to their own priorities. These can be given equal—or even greater—weight than the national priorities when it comes to planning their operations and how resources are allocated. The clause is intended purely to give some order and discipline to the way in which the centre sets priorities for local authorities. I would have quoted the Rogers report in more detail to answer the noble Baroness, but I can give her what I hope she wanted to hear from me, which is that she is right in thinking that we are in favour of more limited intervention and that this would not somehow undermine local authorities’ rights. The noble Lord, Lord Hodgson, wants us to agree that LBRO should publish the names of anyone who makes representations, pursuant to its preparation of a list of regulatory priorities. I am going to argue again that LBRO should have the flexibility to, where appropriate, withhold the details of those who made representations, not least because the publication of personal data may—and I use that word advisedly—in some circumstances fall foul of the Data Protection Act principles. This duty would require disclosure of the names of anybody making representation in all cases and could give rise, if it fell foul of that Act, to actionable breaches where there is a duty of confidentiality in any particular case. Representations may not simply be formal lobbying activities. LBRO is likely, in practice, to follow the example of Peter Rogers when he conducted the first review of regulatory priorities last year and to hold a number of workshops and focus groups with the public, regulators and businesses. Under this amendment, the names of all those involved would need to be published. That would not be appropriate. In practice, LBRO is likely to want to publish the names in many cases. This is good practice, as when the Government published most of the names and responses of those who responded to the consultation on the Bill, but we do not believe that it should be a requirement. The same rules should apply as to any other consultation that might impact on government policy. We understand the noble Lord’s concern that undue influence might be brought to bear on LBRO’s activity and that the light of publicity might help to eradicate this. Let me give what further reassurance I can. LBRO alone cannot and will not take the final decision that will put the priorities into effect. Under Clause 11(7), the consent of the Secretary of State is needed before the priorities become statutory priorities. The Secretary of State will expect to see a logically argued case based on clear evidence before LBRO’s recommendations are accepted. This is what the representation requirement is meant to capture. The hidden influence of individual bodies alone would not be sufficient to sway the final decision. Therefore, I am afraid that we cannot accept the noble Lord’s amendment.
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Lord Cope of BerkeleyMy Lords, I am delighted with the response from the Minister on my Amendment No. 24, because he has accepted the point,…
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Lord Cope of BerkeleyConservative
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My Lords, I am delighted with the response from the Minister on my Amendment No. 24, because he has accepted the point, and I am happy with the drafting. As a matter of fact, I support the other amendments in the group, in the names of my noble friend Lord Hodgson and the noble Baroness, Lady Hamwee. I am glad that the points behind the amendments of the noble Baroness will also be considered further. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 11 [Enforcement priorities]: [Amendments Nos. 25 to 28 not moved.]
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Lord Hodgson of Astley Abbottsmoved Amendment No. 29:
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Lord Hodgson of Astley AbbottsConservative
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moved Amendment No. 29:
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Lord BachMy Lords, we sympathise with the spirit of the amendment, which certainly captures how the Government expect LBRO to be…
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Lord BachLabour
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My Lords, we sympathise with the spirit of the amendment, which certainly captures how the Government expect LBRO to behave in practice. However, as the noble Lord anticipated, the amendment brings us into territory which risks falling foul of the devolution settlements. Of course it will be crucial for LBRO to work with relevant parties in Scotland and Northern Ireland if we are to secure the greatest possible benefits for businesses operating across the United Kingdom. That has always been behind the noble Lord’s thoughts on the Bill and on other legislation. We are grateful to Welsh Ministers for their interest in the Bill and for their commitment to its full application in Wales. Ministers in Scotland and Northern Ireland have made it clear that they do not want the Bill and LBRO to apply to devolved matters. The noble Lord is welcome to take up the issue with them, but responsibility for devolved matters lies ultimately with the devolved Administrations and their electorates. As one would expect from the noble Lord, the amendment has been carefully phrased in terms of the requirement on LBRO. Nevertheless, I am afraid that the amendment would by implication place a requirement on the devolved Administrations to enter into a memorandum of understanding with LBRO. The requirement on LBRO to enter into the memorandum would be meaningless without that corollary. That is just not possible without the consent of the Northern Ireland Assembly and the Scottish Parliament. Of course, businesses will want to see as much joint working as possible between LBRO and the devolved Administrations. The guide accompanying the Bill makes it clear that we expect LBRO to work with the devolved Administrations in so far as it is authorised to do so. I am glad to say that LBRO, in its present company form, has already begun to establish productive relationships with Scotland and Northern Ireland, both at the governing level and with professional bodies such as the Convention of Scottish Local Authorities and representative organisations. It is on track to form strong working relationships. Here, as elsewhere, we believe that LBRO can be trusted to get on with the job using common sense; certainly businesses will look to it to do so. I am afraid that we cannot accept the noble Lord’s amendment, because it could not be put into operation. I am grateful for what he said about the letter that I gave him today on Amendment No. 106. In order to make sure that this is as clear as possible to those interested in the Bill, the guide that will be published on the Bill will set out clearly what parts apply where. That information can, of course, be found in the Bill, as the noble Lord has acknowledged, but we will make sure, as best we can, that one part of the guide will set that out, so that anyone using the Bill will be able to find out whether it applies in various parts of the United Kingdom. I invite the noble Lord to withdraw his amendment.
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Lord Hodgson of Astley AbbottsMy Lords, I am grateful for the Minister’s reassurance that he will ensure that clarity on this issue is prevalent and…
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Lord Hodgson of Astley AbbottsConservative
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My Lords, I am grateful for the Minister’s reassurance that he will ensure that clarity on this issue is prevalent and pre-eminent when we publish the guide to the Bill. This issue could have significant implications for UK-wide businesses. I hope that we can continue to think about ways to develop it, because, as the Minister and I have discussed, this is not the only area where there is a mismatch. We have to find a way of making sure that the pieces of legislation join up as far as possible if we are not to impose considerable and unnecessary burdens on businesses operating UK-wide. I am grateful for the Minister’s reassurance and correspondence and for the efforts of the Bill team to address this point. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 14 [Ancillary powers]:
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Lord Cope of Berkeleymoved Amendment No. 30:
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Lord Cope of BerkeleyConservative
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moved Amendment No. 30:
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Lord BachMy Lords, this gives me an opportunity to clarify that the LBRO will be subject to all the usual rules for the manageme…
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Lord BachLabour
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My Lords, this gives me an opportunity to clarify that the LBRO will be subject to all the usual rules for the management of public money. The noble Lord, Lord Cope, raised the question of the LBRO’s money. Provided the LBRO is acting within its remit and objectives, Her Majesty’s Government would have to stand behind it financially, as they do with every other non-departmental public body. It has been created as an NDPB with operational independence and freedom from day-to-day interference by Ministers. I am sure that the House will think that a good thing. The government amendments in this group seek to limit the scope for inappropriate micromanagement by Ministers. This clause is essential to provide sufficient legal certainty that the LBRO will be able to engage in activities that are helpful or necessary to the discharge of its functions and the achievement of its objectives. The clause provides specific examples of what will be covered by the ancillary powers provision—some financial, many not. There are many precedents for such provisions. Natural England was established by the Natural Environment and Rural Communities Act 2006. Section 13 of that Act specifies that Natural England may, “do anything that appears to it to be conducive or incidental to the discharge of its functions”. The section then sets out a list of examples, which includes all the actions included in the LBRO list, as well as some additional ones. There are good reasons why detailed ministerial control, which would be accorded if Treasury approval was needed, is unnecessary. The first is that reliance on ancillary powers is circumscribed by the requirement that anything done must be, “necessary or expedient for the purpose of, or in connection with, the exercise of … its functions”. Secondly, the LBRO will be subject to all the normal rules of public spending. Thirdly, it will be financially accountable to Parliament in the normal way through the Comptroller and Auditor-General. Fourthly, it must provide the Secretary of State and the Comptroller and Auditor-General with a copy of its accounts on an annual basis. We argue that this is a routine provision for independent public bodies, with a good recent precedent. The clause is essential in ensuring that the LBRO can function effectively in day-to-day business matters. We do not think that adding a new level of control would do anything other than significantly hamper the organisation in its routine work. That takes me to government Amendments Nos. 31 to 36. They place a number of important controls on the right of Ministers to give directions to the LBRO. At Second Reading and in Committee, noble Lords were concerned about the precise uses to which Ministers’ powers of direction would be put. I repeat that it is the Government’s intention that these powers of direction should be used as nothing more than a backstop. The LBRO will be operating as an independent body, and it is intended that Ministers will use the power only in cases where the organisation acts against the public interest. Naturally, we hope that that situation will not arise, but Ministers will be accountable to Parliament for the performance and conduct of the LBRO and there has to be a power of direction to ensure that accountability is assured. We accept that the powers in Clauses 15 and 16 were too broadly drawn for this purpose, and we have already accepted the recommendation of the Delegated Powers and Regulatory Reform Committee in relation to directions over the LBRO’s own direction-giving power. In Committee, noble Lords suggested a number of additional changes, which we agreed in principle to consider. First, the noble Viscount, Lord Eccles, argued that the reference to “general or specific” directions was too broad; secondly, the noble Baroness, Lady Hamwee, suggested that a formal consultation process should be required before directions are issued; and, thirdly, the noble Lord, Lord Cope, suggested that there should be a requirement that any directions should be laid before Parliament or the Welsh Assembly where appropriate. We have decided to make the appropriate changes and we are grateful to the various noble Lords for their suggestions. Our amendments, which I hope to move in due course, will implement them.
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Lord Hodgson of Astley AbbottsMy Lords, perhaps I may ask the Minister to clarify one point in relation to my noble friend’s amendment. He referred t…
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Lord Hodgson of Astley AbbottsConservative
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My Lords, perhaps I may ask the Minister to clarify one point in relation to my noble friend’s amendment. He referred to the support that the Treasury would give to the LBRO. Was that de facto or de jure? Will it actually happen or is it bound to happen by law? Reading the “Status” paragraph in Schedule 1, I was struck that it was as close to saying that the LBRO is flying on its own as it could be without those words being used. The paragraph states: “LBRO is not to be regarded as a servant or agent of the Crown … The property of LBRO is not to be regarded as the property of, or property held on behalf of, the Crown”. I understand that the Government may be forced to stand behind the LBRO but I should like to know whether they are bound to do so by law.
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Lord BachMy Lords, I am advised that the organisation will be treated like any other NDPB in this instance. However, I think tha…
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Lord BachLabour
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My Lords, I am advised that the organisation will be treated like any other NDPB in this instance. However, I think that the points raised in this debate are worthy of a letter setting out how we intend the finances to work here; that is, setting out the relationship between the Treasury and this body. I hope that noble Lords will allow me to write to them about that.
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Lord Cope of BerkeleyMy Lords, that would be most helpful. I am somewhat reassured by what the Minister said on the financial provisions and…
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Lord Cope of BerkeleyConservative
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My Lords, that would be most helpful. I am somewhat reassured by what the Minister said on the financial provisions and I am grateful to him for accepting the suggestions that I and others made in Committee on Clauses 15 and 16. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 15 [Guidance or directions by the Secretary of State]:
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Lord Bachmoved Amendments Nos. 31 to 33:
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Lord BachLabour
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moved Amendments Nos. 31 to 33:
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Lord Bachmoved Amendments Nos. 34 to 36:
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Lord BachLabour
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moved Amendments Nos. 34 to 36:
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Lord Bachmoved Amendment No. 37:
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Lord BachLabour
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moved Amendment No. 37:
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Lord Bachmoved Amendment No. 38:
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Lord BachLabour
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moved Amendment No. 38:
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Lord Cope of BerkeleyMy Lords, I am most grateful for the noble Lord’s agreement to the amendment by putting it in writing in the form of an…
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Lord Cope of BerkeleyConservative
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My Lords, I am most grateful for the noble Lord’s agreement to the amendment by putting it in writing in the form of an amendment. He has taken on board not only the point that I made but also the drafting, simple as it was. In Amendment No. 39, I am concerned about a quite separate point. At present, when a primary authority lays down how a series of local authorities are to carry out their responsibilities in respect of, say, a chain of shops, the local authorities in which the shops are situated all over the country have no certainty of being told whether their authority will be controlled by the agreement made between the primary authority and the headquarters of the business concerned. When I moved a similar amendment in Committee, I was told, “It’s all right because it will all be on a website, so they can look it up quite easily if they are thinking of going to have a look at a shop”. However, in a high street, some shops will be owned by national chains—we all know that any high street has a lot of shops owned by national chains. Others will be independent—I hope that as many as possible of them will be because I like to see independent shops in high streets—and some will be franchises. As we know from Committee, it will be extremely difficult to know whether franchises will be controlled through a primary authority or whether they will be treated as independents. Therefore, the local authority regulator will have to go through the website looking at all the shops in the high street before he sets out to see whether they are complying with the regulations. That is why I am saying that the LBRO should let the junior authorities know whether an agreement is in place. I have also provided in the amendment that they should be told when it is proposed that a primary authority will be appointed so that, if they want to, they can object to it. It is not particularly easy to tell who owns the shops in a high street. Some will be trading under names which are not the names of the companies that own them but trade names, and that will add to the complication for the local authority regulators. I do not want the regulators to be placed in the position where they go into a shop—for example, with a view to enforcing some food regulations—only to be told, “Push off. There’s an agreement with our headquarters that you are not supposed to do this. You’re supposed to do it another way”. That would be bad for the local authority regulators. Therefore, it is important that the junior authorities, as I call them, know when such agreements are either proposed or enforced. That is the intention behind Amendment No. 39. However, I am grateful for Amendment No. 38.
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Lord De MauleyMy Lords, I shall support—very briefly, your Lordships will be pleased to hear—my noble friend Lord Cope in his Amendme…
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Lord De MauleyConservative
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My Lords, I shall support—very briefly, your Lordships will be pleased to hear—my noble friend Lord Cope in his Amendment No. 39, which will make sure that the regulated party and, crucially, the regulators will be completely clear who is responsible for enforcement.
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Lord BachMy Lords, Amendment No. 39 gives me an opportunity to discuss how we envisage primary authority partnerships will be pu…
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Lord BachLabour
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My Lords, Amendment No. 39 gives me an opportunity to discuss how we envisage primary authority partnerships will be publicised in practice. We understand the concerns of the noble Lord about how the existence of primary authority partnerships will be brought to the attention of local authorities. I like to think that we can put his mind to rest. The critical issue is the register of partnerships that the LBRO will be required to maintain under Clause 25(6). The primary authority provisions are, deliberately, closely built on the basis of tried and tested voluntary arrangements which local authorities have maintained. There are a large number of such partnerships and they are listed on databases maintained by LACORS and the Health and Safety Executive. When a serious regulatory issue arises relating to a multi-site business, all that local authority enforcers have to do is simply look the company up on LACORS’s or the HSE’s database and consult the authority which has taken on that role. In practice, there is no difficulty in finding out whether a partnership exists and which areas of regulatory activity are relevant. As with the existing voluntary schemes, the LBRO database will make this very clear. The process we are proposing is no more complicated than what authorities already require of themselves under voluntary arrangements at present, but it will be more rigorous and give businesses the certainty that they need. We feel that the amendment may rest on the assumption that local authorities will need to keep tabs on each partnership just in case something untoward emerges. That is not the case. Local authorities will only need to refer to it if there is a specific problem to be dealt with where an enforcement action is necessary. Local authorities that already participate in the voluntary guidance on home lead schemes will find that it is simply an extension of existing practice—but, of course, the database will be the responsibility of the LBRO rather than other bodies. It may be helpful to go through a hypothetical series of events. Say an enforcing officer in local authority A establishes that there is a trading standards problem with a business that needs attention. It is not an emergency, so the exemptions created by Clause 28 do not apply, and the requirement to contact the primary authority takes effect. All the officer needs to do is look up the company’s name on the database. If there is a partnership—there may not be, but if there is one—three pieces of information will be listed against it: the name of the primary authority, the field of regulation within which it has effect, and the contact details for notification of the issues. It will be very clear if there is a trading standards partnership in existence and about the appropriate steps for getting in touch with it. It is important to think through the practicalities of the scheme. We think that the scheme that we are intending to set up, which relies a lot on what has existed before, is practical and can work. For that reason we are not persuaded that the amendment is necessary.
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Lord Lyell of MarkyateMy Lords, I had not intended to intervene here but, as the Minister will realise when we come to the groups of amendmen…
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Lord Lyell of MarkyateConservative
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My Lords, I had not intended to intervene here but, as the Minister will realise when we come to the groups of amendments with which I am involved, the question of numbers of prosecutions, and therefore numbers of regulated bodies or individuals that might be prosecuted, will become important. Can he give the House any idea of what proportion there is now, and what proportion is anticipated, of enforcement actions likely to be covered by instructions from primary authorities or the requirement to consult them?
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Lord BachMy Lords, I am grateful to the noble and learned Lord, but it is extremely hard to answer his question because it will…
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Lord BachLabour
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My Lords, I am grateful to the noble and learned Lord, but it is extremely hard to answer his question because it will need the development of the primary authority principle to know from experience how widespread the effect will be. Perhaps he will let me consider what he has said and maybe on a later amendment we can come back with a better answer. On Question, amendment agreed to.
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Lord Cope of Berkeleyhad given notice of his intention to move Amendment No. 39:
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Lord Cope of BerkeleyConservative
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had given notice of his intention to move Amendment No. 39:
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Lord Bachmoved Amendment No. 40:
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Lord BachLabour
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moved Amendment No. 40:
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Baroness HamweeMy Lords, Amendment No. 43 stands in my name. I pause to see whether the Government will accept it. I see the Minister…
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Baroness HamweeLiberal Democrat
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My Lords, Amendment No. 43 stands in my name. I pause to see whether the Government will accept it. I see the Minister shakes his head. It is similar to points that the Government have accepted, acknowledging the position of local authorities and providing for consultation with them. That explains the amendment. I hope that the explanation carries some force. I do not want to spend a long time on it. I welcome the matters that the Government are putting into the Bill regarding exemptions. An acknowledgement of consultation would be an appropriate step. I welcome the government amendments in the group. On delegation, the Government are absolutely right. I raise a concern which has been expressed to me and I believe to the noble Baroness, Lady Wilcox, by the Chartered Institute of Environmental Health, which is worried that, “the effect of this amendment could be considerable for the resources of the LBRO and may bring into doubt their ability to meet the demand for adjudications and/or dealing with the (potentially large) number of references it might get under this process”. I would welcome comment from the Minister on the resources point. On Amendment No. 42, I cannot restrain myself from noting that we now have a provision that the Secretary of State “shall” do something. Amendments to change “may” to “shall” normally come from the Opposition Benches. The Government may find it is quoted back at them on other occasions. Paragraph (b) in Amendment No. 44 states that the application of a section would be “wholly disproportionate”. I stumbled slightly over “wholly”; it is not something I would have expected to see in legislation. That seems to be more the language of conversation or rhetoric. Given that there is reference to proportionality elsewhere in the Bill, I wonder whether there is a particular significance in this.
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Baroness WilcoxMy Lords, I speak against government Amendment No. 41. That amendment removes the ability of the Local Better Regulatio…
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Baroness WilcoxConservative
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My Lords, I speak against government Amendment No. 41. That amendment removes the ability of the Local Better Regulation Office to delegate its functions under Schedule 4 to another person as it considers appropriate. Perhaps I may jog your Lordships’ memories back to day three of Committee. Noble Lords will remember that that aspect of the Bill was debated by the noble Lord, Lord Cope, and by the noble Baroness, Lady Hamwee. The noble Lord, Lord Jones, answered the debate at col. GC 249 and, in his usual sympathetic style, agreed to review this part further and to look at “delegation”, “responsibility” and “function”. The Government’s proposed solution is to remove that paragraph from Schedule 4. It is an unsatisfactory solution as, while it addresses the point made that the Local Better Regulation Office should not be able to delegate or discharge its responsibility to another, at the same time it now makes the reverse possible, as the Local Better Regulation Office could now not delegate at all. The noble Lord, Lord Jones, said that this provision is, “critical to the success of the scheme”.—[Official Report, 28/1/08; col. GC 248.] The Local Better Regulation Office is a small body and the arbitration role that it undertakes under Schedule 4 has the potential to become burdensome, to skew the resources away from other tasks and not take advantage of expertise in other organisations capable of ably assisting. The Trading Standards Institute and the Chartered Institute of Environmental Health, as mentioned by the noble Baroness, Lady Hamwee, have expressed their concerns about this amendment and the impact it could have on the Local Better Regulation Office to engage with organisations such as themselves and the Local Authorities Co-ordinating Office on Regulatory Services to fulfil its obligations and responsibilities under the Bill. No one is suggesting here that the Local Better Regulation Office should be able to discharge its responsibilities to another, as could be interpreted from the original text, but the pendulum seems to have swung the other way to force this new body to be much more insular and not to take advantage of the expertise that exists within these other organisations. My question to the Minister is: are the Government able to reconsider and to provide an amendment that addresses the concerns that were communicated in Committee without removing this paragraph completely and frustrating the clear intention that the Government had here?
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Viscount Colville of CulrossMy Lords, I do not want to make any criticisms. On Amendment No. 44, I just want to say a word of gratitude to the Mini…
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Viscount Colville of CulrossCrossbench
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My Lords, I do not want to make any criticisms. On Amendment No. 44, I just want to say a word of gratitude to the Minister. There are two lessons to be learnt from this amendment, which the Government, at my suggestion, have been good enough to accept. If one knows the criteria in advance, whereby some particular function will be used, one does not need delegated legislation. We have far too much of it. Just look how easy it is to put it in the Bill. I am very grateful to the noble Lord for ensuring that this will be in the Bill and that we do not have to endure even more subordinate legislation. My other point relates to what the noble Baroness, Lady Hamwee, said. Paragraph (b) in the amendment is quite important. I do not mind whether it is “wholly disproportionate” or just plain “disproportionate”. If it does not matter, there is no point in involving massive bureaucracy. There is a great advantage in the noble Lord bringing forward an amendment that ensures that there will not be an imposition of bureaucracy on local authorities for quite minor matters, so I want to say thank you.
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Lord BachMy Lords, I am very grateful to the noble Viscount, although I am not sure that I am quite so grateful to the noble Bar…
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Lord BachLabour
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My Lords, I am very grateful to the noble Viscount, although I am not sure that I am quite so grateful to the noble Baroness opposite or to the noble Baroness, Lady Hamwee. Amendment No. 43 in the name of the noble Baroness, Lady Hamwee, would require the Secretary of State to consult local authorities before laying an order that would set out the exemptions to the primary authority requirements in Clause 27. We are sympathetic to the intentions behind the amendment. As the House will know, the Government’s code of practice sets a high standard for consultation relating to any new area of policy development. This is important not least in the interests of better regulation, which is the subject of this Bill. Noble Lords will be aware that, as was said in Committee, the Government have recently reviewed their processes of consultation and will revise their code of practice shortly. I assure noble Lords that any use of the order-making powers in Clause 28 will be subject to consultation and will clearly need the input of the experts working with practitioners from local authorities as well as from businesses to get the details right. However, an explicit statutory requirement to that effect is unnecessary. The spirit of the noble Baroness’s amendment is agreed to, but it does not need to be in the Bill in this instance. The noble Baroness invited me to refer to the phrase “wholly disproportionate”. That relates to orders that the Secretary of State is required to make. Proportionality is a fine balancing test and often it is not crystal clear whether contact will be proportionate. Where contacting the primary authority is wholly disproportionate—a stronger test than merely disproportionate—there must be an exemption. That is what the provision does. The noble Baroness also asked about resources. Under Clause 12 and the memorandums of understanding, we expect LBRO to make arrangements for sharing resource and expertise on arbitration issues. The answer to the noble Baroness, Lady Wilcox, is that, although we have taken out that part from the schedule, there is under Clause 14 the right for LBRO to do anything that, “it thinks necessary or expedient for the purpose of, or in connection with, the exercise of its functions”. That can include seeking advice from a national regulator when arbitrating. I also point out that, under paragraph 5 of Schedule 4, LBRO must consult the relevant national regulator and may consult other persons it considers to be appropriate when arbitrating. By removing part of the schedule, we have not made it impossible—in fact, it is still very possible—for LBRO to consult. On Question, amendment agreed to. Schedule 4 [Enforcement action: references to LBRO]:
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Lord Bachmoved Amendment No. 41:
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Lord BachLabour
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moved Amendment No. 41:
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Lord Bachmoved Amendment No. 42:
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Lord BachLabour
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moved Amendment No. 42:
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Lord Bachmoved Amendment No. 44:
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Lord BachLabour
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moved Amendment No. 44:
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Lord BachMy Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that Report begi…
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Lord BachLabour
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My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that Report begin again not before 8.44 pm. Moved accordingly, and, on Question, Motion agreed to.
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EnactedRegulatory Enforcement and Sanctions Act 2008