I remind the Committee that if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Clause 24 [Primary authorities]:
68: Clause 24, page 10, line 15, leave out paragraph (b)
The noble Baroness said: I shall speak also to Amendment No. 69. I apologise to the Committee—I now realise that Amendment No. 70 is covered a few lines down in the Bill and so I shall not speak to it. That may give us an extra 90 seconds or so today.
When we adjourned the Committee last Wednesday, the Minister said that he thought we might have a good half-hour’s debate on this group of amendments and I found that slightly disconcerting. I do not have my 15 minutes’ worth.
No criticism is intended. Nevertheless, this is not unimportant.
The amendment seeks to strike out Clause 24(1)(b) which would allow the local authority to be overridden. Under Clause 24(1) the LBRO may nominate a local authority as the primary authority if the authority and the regulated person have agreed it, or if the regulated person has requested it. In the position anticipated by Clause 24(1)(b), the local authority would be consulted under a provision further on in the clause, and it must be “suitable”. The issue there is one of resources. There is an imbalance and the amendment seeks an explanation of that from the Government.
We have spoken, both at Second Reading and at previous sittings in Committee, about the tensions between achieving good regulation—or, at any rate, better regulation—and democratic interests, the autonomy of local authorities, and so on. We think the Bill is weighted too much towards centralisation and that this provision is not necessary. I am not seeking to block the primary authority but to ensure that the authority in question consents. I wonder whether the primary authority relationship will work unless both parties wish to participate. I shall not go as far as the analogy of a forced marriage as distinct from an arranged marriage, but in an enforced marriage parties often tend not to be too happy.
The second amendment relates to consultation and I hope that the suggested additional paragraphs speak for themselves. I have not taken anything like half of half an hour. I beg to move.
Where a business has a presence in more than one local authority, be it a supermarket of the kind which we have discussed previously, with retail outlets in many parts of the country, or a manufacturer which has factories or depots on different sites in different parts of the country, there is tremendous benefit to the business and to the public interest in enforcing regulations fairly and reasonably and in having the primary authority scheme. It may normally be that Clause 24(1)(a) is complied with and a business is able to find a local authority which will agree to be the primary authority, but it would be a pity if the benefits to the public and business of the primary authority scheme were lost if it so happened that the business could not find a local authority that was willing to make a partnership agreement under Clause 24(1)(a)—hence the value of paragraph (b). Only if businesses have access to a primary authority partnership can we ensure that the consistency and co-ordination for which the various provisions in this part of the Bill are designed are achieved. Safeguards exist. The noble Baroness, Lady Hamwee, will notice that Clause 24(3) states that consultation with the authority and the regulating person must take place. Bearing that in mind, I think that it would be undesirable to lose Clause 24(1)(b).
The noble Baroness’s Amendment No. 69, on consultation, seems moderate, because it requires consultation with the local authority only where the regulated person principally carries out or administers their activities. However, many other local authorities, in whose areas also the regulated person carries out their business, will be affected. They are not defined in this part of the Bill, but if I call them “secondary authorities”, I think that Members of the Committee will know what I mean. There may be a large number of them. Their authority will to some extent be overruled. Not only will they not be consulted, but also it is not clear how they will hear about it until after the deal has been done. Many of their powers will be superseded and made more complicated. In some cases, we are talking about very large businesses. Some manufacturing companies in my part of the county have very large facilities there which employ thousands of people, but which are nevertheless not their principal manufacturing facilities—they have other facilities elsewhere. The local authority will suddenly find itself superseded, or being bossed about at any rate, in how it supervises many of the largest businesses in its area. It would be very difficult to require all of them to be consulted—that is why I have not put down an amendment to that effect—because supermarkets or clothes shops often have a very large number of branches all over the country. However, they are most affected by these clauses. That is why it is a very moderate amendment.
If a multi-branch business has a primary authority, and one of its branches in another authority, the butchery department, puts the wrong things down the drain, would the matter be dealt with by going to the primary authority and coming back again, or would it be dealt with locally?
I am grateful to the noble Baroness, Lady Hamwee, for raising this important issue with her amendments, particularly Amendment No. 68. It takes us to one of the critical issues at the heart of the Bill. I shall do my best to present our reasons for a provision that has caused concern.
When the Government took the decision to put the home/lead authority schemes on to a statutory footing, we had two considerations in mind, much the same as those my noble friend Lord Borrie mentioned. First, it is unfair that only some multi-site businesses have access to the existing schemes; and secondly, just as importantly, it is unfair that certain local authorities choose not to host them, meaning that there are clear benefits for the citizens of the authorities that do—at no cost to themselves. We think all local authorities benefit where a particular local authority chooses to work with a business in this way. Hampton himself noted the inequity of the situation where certain local authorities shoulder a disproportionate element of what is essentially a national role. He noted, for example, that Hertfordshire hosts a large number of major schemes while others host none.
Businesses have every right to look to a local authority’s regulatory services for a professional service that reflects the importance of better regulation to their competitiveness and to our national prosperity. It is critical that all relevant businesses have access to the scheme. An LBRO’s power of nomination is a vital guarantee that that will be the case.
There may be cases where a partnership would just not be appropriate. Perhaps particular businesses have misused the scheme in the past, or doubt has been thrown on their good faith in starting a new one. An LBRO may therefore decline to nominate an authority for a particular business. However, in the interests of our competitiveness as a country and of fairness among local authorities, businesses should have a right to a partnership unless there are good reasons to the contrary. As a backstop, that can be delivered only through a process of compulsory nomination.
We have listened carefully to representations made about the potential resource implications of acting as a primary authority. Accordingly, the Bill makes it clear that the relevant local authority will have the right to recover any costs incurred by it when carrying out the primary authority role. As well as the costs involved there are important benefits, given the possibility for a strategic relationship with a major firm.
As my noble friend Lord Borrie made clear—and this is an assurance we think we can give—it is intended that in the vast majority of cases the primary authority scheme will be consensual. The LBRO will make nominations only after careful consideration. It will take into account the fact that if a local authority is firmly against taking on such a role, it is unlikely in practice to provide an effective service to the business. In doing so, however, the local authority would have set its face against playing its part in a scheme that we think will be of substantial benefit to the citizens of all local authorities.
Amendments Nos. 69 and 70 offer helpful perspectives on the procedural issues that will need to be taken into account. We believe, however, that the issues they raise can be dealt with administratively without the need for explicit statutory provision.
The noble Lord, Lord Cope, talked about the need to consult local authorities where the business operates. We would expect the LBRO to take sensible soundings before a nomination, but routine consultation with 400-plus local authorities would be too onerous a requirement.
The Bill formally requires the LBRO to consult any local authority that it is contemplating nominating for a primary authority partnership—one of the safeguards my noble friend mentioned. This is designed to protect the authority’s interests, in particular ensuring that the LBRO does not impose a role on an authority where it lacks the resources to carry it out effectively. It would be sensible in practice for the LBRO to consult other local authorities, which is the issue raised by the noble Baroness in Amendment No. 69, including those with an understanding of the business. However, we believe that there is no need for comparable statutory protection of their interests.
Amendment No. 70 raises the sensible point that the revocation of a partnership may also have resource implications for a local authority, so the Bill requires the LBRO to take particular account of the resources issues that the primary authority role might present for a local authority before nominating it, as set out in Clause 24(4). Where the LBRO revokes a particular partnership, this too may have resource implications for a local authority. As it may charge for the service, the revocation could involve the loss of a significant source of revenue. We do not believe that there is any need for comparable statutory protections here, however, as there is no question of the LBRO requiring the authority to adopt a role which may not fit the priorities of the local authority itself. But clearly, the LBRO will be under a duty not to revoke a partnership without good reason, and would lay itself open to legal challenge if it did so unreasonably.
In response to the question asked by the noble Viscount, Lord Eccles, I am advised that in principle there would be a requirement to consult, but that a range of exemptions might well capture the particular case he referred to. We shall examine those exemptions later today. It depends on a number of factors, and as I say, we shall come to the exemptions and to the need to have a primary authority in due course.
I am grateful for that response. On Amendment No. 70, to which I have not spoken, the noble Lord says that it is not necessary to have statutory protection. I have decided that, given the way the clause is drafted, there already is statutory protection. Clause 24(5) provides that subsection (4) applies on a revocation as well as on a nomination. I thought that that was my error.
You knew you had done it, but you just could not find it; I am often in that situation myself.
Two expressions used by noble Lords were interesting, the first of which was the “right to a partnership”. I have always regarded partnership as something consensual, organic and not something to which one has a right. The other expression was the phrase used by the noble Lord, Lord Borrie, at the start of his contribution, about forcing “fairly and reasonably”. I wrote the phrase down as it was said, but perhaps Hansard will show that I misheard the noble Lord since he appears to be denying it. But that is what this clause tries to say. In any event, I think that there will be an imbalance in which the burdens lie on local authorities that are called on to become primary authorities simply because of the geographical distribution of businesses. The noble Lord said that this could be dealt with administratively, but I am not sure whether that is so. To that end, I am grateful to the noble Lord, Lord Cope of Berkeley, for his very good point that it would be difficult to deal with either administratively or legislatively. The Minister asserts that there is no need for this to be in the Bill, but the need to address the matter has been demonstrated. However, I am not sure whether we have come up with the right way of dealing with it.
I am grateful to the Minister for his explanation. Since we have taken almost 20 minutes of the anticipated 30 minutes, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 69 to 71 not moved.]
Clause 24 agreed to.
Clause 25 [Advice and guidance]:
72: Clause 25, page 11, line 6, after “authorities” insert “when requested”
The noble Lord said: We pop on to Clause 25, which relates to advice and guidance and the methodology that primary authorities will use in carrying out their role. I seek to ascertain from the Minister how these provisions will operate when they come into force. I understand why under Clause 25(1)(a) advice has to be given to the regulated persons, but in paragraph (b) “other local authorities” is a very wide phrase. I seek the Minister’s thoughts on how this will work in reality. For example, does he see the primary authority sending its advice and guidance to every local authority everywhere, willy-nilly, without regard, in order to cover the waterfront? Or does he see the primary authority selecting carefully the local authorities concerned for the advice and guidance to be more targeted?
I have referred several times in the Committee to my non-executive directorship of Masters Brewery. We might select Wolverhampton as our primary authority, but our 2,500 pubs all over the country would be in a lot of local authority areas although not in every one. How will guidance given by Wolverhampton be distributed to the relevant local authorities? How will the primary authority know which local authorities are involved? I can imagine a tremendous waste of paper whereby the primary authority, to be certain, sends the guidance to every local authority; each then has to check whether the guidance is relevant to it. An awful lot of unwanted paperwork will fly back and forth.
Therefore, the amendment seeks to insert “when requested”—in other words, the local authority affected will ask the primary authority for guidance. This would mean that the paperwork would be sent only when required, avoiding the risk of another flood of paper that had to be checked by the issuing authority and the authority that received it. Can the Minister explain how he thinks this system will work and why we should not try to target the transmission of information to the relevant local authorities? I beg to move.
It goes without saying that of course we would expect the primary authority to give advice to other local authorities when requested to do so. Our fear is that the amendment would limit too much the primary authority’s role or ability to be proactive in its role as adviser to other local authorities on the treatment of particular businesses.
For instance, where a business has acknowledged a problem in a particular area and is doing its best to put it right, the Bill allows the primary authority on its own initiative to bring this to the attention of other local authorities, or other relevant local authorities, and recommend, for example, a lighter-touch approach to enforcement in particular areas. The primary authority’s right to direct an authority not to proceed with an action could be founded on advice of this sort. The noble Lord’s amendment is too limiting. Limiting the primary authority’s advisory role with other local authorities to an “on request” basis may substantially reduce the potential benefits of the scheme for business.
Local authorities will have expertise in a wide range of enforcement issues associated with the business. The authority may bring any relevant matters, including advice to the business, to the attention of other local authorities. The register to be held by the LBRO, its database of primary authorities, will be sufficient as a means of bringing that to the attention of other local authorities.
The noble Lord asked a good question: will a primary authority as a matter of course give advice across the board to all other local authorities about all matters, even where it is not relevant to those authorities? The answer to that is, clearly not. It will have to make its choice as to which local authorities are relevant for those purposes. I am pretty convinced that that is what will happen. The danger of the noble Lord’s amendment—I recognise it as a probing amendment at heart—is that if it is just done on request, some advice that would be very useful to enforcing authorities will never get there.
I am grateful to the Minister for the consideration that he has given to the amendment. I hope that he is right that primary authorities will adopt a selective mailing policy, as he described it—that is, they will mail only in cases where it is needed. I have an awful fear that, over time, in order to avoid risk, they will mail everything because that will be an easier way of covering all the points. Therefore, receiving local authorities will be faced with a deluge of information coming from primary authorities around the country seeking to be risk-averse. I wish that I could be as confident as he is that they will do it on a lean and mean basis.
As for the Minister's second point about the “on request” nature of my amendment, I accept that, but you can bet your bottom dollar that the business in the subordinate local authority, faced with the fact that it is not getting the guidance from the primary authority through to it, will go to the relevant local authority and say, “Listen to me. There is this stuff from the primary authority. I want to hear about it”. I would prefer to see a more causative, interactive process, rather than what I fear will become a blanket flood of irrelevant and duplicative information flowing between primary authorities and local authorities across the country. I hope that before we reach the next stage, the Minister can give some further thought to the practical operation of that. In the mean time, I am grateful to the Minister for the thought that he has given to the amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
73: Clause 25, page 11, line 8, at end insert—
“( ) providing general advice to other local authorities with regard to enforcement action in relation to relevant functions including liaising between local authorities and regulated persons.”
The noble Baroness said: I shall speak also to Amendment No. 74 and, as under the previous amendment, to Clause 25. Both amendments are probing; the first would establish the exact scope of the proposed primary authority principle. The Bill is quite wide. Both the Trading Standards Institute and the Chartered Institute of Environmental Health have asked me to raise the amendments to establish whether the primary authority principle will cover all matters covered by the current voluntary principle.
I do not need to go through the background of how the home authority principle has worked, but it has been regarded as successful, allowing business to seek advice and guidance from one source. The home authority has also been able to act as a conduit for complaints from other local authorities about the business. That has the efficiency that results from cutting down the number of communications, as the Committee will well understand. The home authority can advise other authorities of action agreed with the business and confine the amount of toing and froing. The business is then able to concentrate on putting steps in place to deal with the position.
The second amendment is intended to clarify the intention for the future as regards the relationship between the statutory and the voluntary principle. I know that there has been a great deal of consultation on constructing the proposals but there is a little lack of clarity as to whether the primary authority is intended to take over the voluntary arrangements immediately or over time. I do not suggest that the Bill sets out to stop organisations, businesses and authorities entering into voluntary arrangements if that is what they want—heaven forbid that we should ever get to that stage—but a little more clarity would be welcome. I beg to move.
The amendments, proposed by the Trading Standards Institute, would ensure that the primary authority principle built on the current voluntary arrangements. At this stage, it may be fit for me to say that I am a vice-president of the Institute of Trading Standards Administration, as is the noble Lord, Lord Borrie. The noble Lord, Lord Jones, has not been present at these Committee sittings so far and I should like him to know that we have both declared that interest.
As I have complained before, there is so little written in the Bill that it is difficult to see exactly how the new Local Better Regulation Office will sit within the existing system. To my eyes, there is potential for some of the LBRO’s work to replicate the existing work of the home and lead authorities, but nowhere is it written that the LBRO will replace them. The amendments suggest that the statutory primary authority principle supersedes the current voluntary arrangements in order to rationalise business relationships into one consistent principle across the United Kingdom. Such an outcome would synchronise well with the ostensible aims of the Bill.
Through this amendment, therefore, I ask the Minister to clarify further how the Local Better Regulation Office will exist within the current regulatory system, as duplication of work can lead to confusion and inefficiency, not better regulation, which is what I understand the Government are looking for. As it stands, the Bill is confusing and bureaucratic. As the Minister must know, we on these Benches are committed to ironing out some of the confusion and removing some of the bureaucracy to create a result that will be workable in practice.
Is it envisaged that some of the voluntary arrangements will continue indefinitely alongside the new arrangements and not just temporarily while the new arrangements are worked out? Obviously, it will take a little while for everything to be up and running in every possible business. Some businesses and local authorities may find it convenient to continue with the existing arrangements, which they know, rather than swapping to the new arrangements set out in the Bill. I presume that they would be able to do that and, indeed, they may wish to.
We understand that some concern has been expressed that operating the primary authority scheme—which I am beginning to think the noble Baroness supports, although I am still waiting to hear that from her—alongside the voluntary home and lead authority schemes could result in a lack of clarity and unnecessary confusion. Further, it has been suggested that the likelihood of that happening will be greater if the primary authority scheme does not offer all the services currently available as part of the voluntary schemes, including those relating to guidance.
The provisions of Part 2, which we are debating at the moment, have deliberately been drafted to ensure that all the functions currently carried out by a home or lead authority can also be carried out by a primary authority. Therefore, although we understand the intention behind Amendment No. 73, we do not believe that it is necessary.
Under Clause 25, the primary authority already has the function of giving advice and guidance to other local authorities with the relevant function on how they should exercise those functions in relation to a regulated person. That captures all the advice that Amendment No. 74 would include within the scope of Clause 25.
It is not appropriate to make provision in the Bill for the abolition of current voluntary schemes. It has never been our intention that the primary authority scheme should simply replace the home and lead authority schemes, but that it should build on their successes while addressing their limitations.
The noble Lord, Lord Cope, asked a very good question in regard to the eventual intention of the two schemes. If the business and the local authority want the voluntary partnership to continue, it will do so. If it is too bureaucratic, we believe that they will not want to maintain it in its present state.
We are fairly confident—I choose my words fairly carefully—that the operation of the primary authority scheme alongside the home and lead authority schemes will not result in confusion. I assure the Committee that the LBRO will work closely with LACORS and the HSE to ensure clarity in the relationship between these schemes.
The home and lead authority schemes have been pretty successful, but they have not achieved everything that we wanted. We therefore think that putting the primary authority scheme on a statutory basis will help, but that is not to say that we want to discard all the good things that have happened under the home and lead authority schemes. I hope that, in light of what I have said, the noble Baroness, Lady Hamwee, will feel able to withdraw the amendment.
I am grateful for that answer. The Minister said that all functions currently carried out by the home authority can be carried out by the primary authority, which is not the same. I am temperamentally inclined to see how things grow rather than to impose provisions. Those who understand the practical implications more than me may want to pick up later on some of the things that the Minister said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 74 not moved.]
Clause 25 agreed to.
Clause 26 [Enforcement action]:
75: Clause 26, page 11, line 16, leave out from “is” to “it” in line 17 and insert “in all circumstances inappropriate and that compliance could be secured by a different, more appropriate, enforcement action,”
The noble Lord said: As I understand it, the capacity of the primary authority to intervene to deter overenthusiastic enforcement action is limited to cases where that proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority. The amendment probes whether it is possible to open up the options available to the primary authority and to introduce an element of flexibility, while still ensuring that the objective of securing compliance is met.
The Government gave a commitment in their manifesto for business that multi-site businesses would in future have to deal only with a single enforcement authority. That was one of the basic justifications for the proposed CTSA and the LBRO proposal that succeeded it. The Hampton review found that one of the biggest problems facing businesses was inconsistent advice and enforcement by difficult local authorities. National businesses operate on national plans, while local authorities operate on a local basis. The voluntary home and lead authority system was developed to mitigate that problem, but I understand that the Government felt that there were instances where local authorities ignored the advice of the home or lead authority for no valid reason, hence the decision to place the arrangement on a statutory basis, with the primary authority taking the lead role.
At its best, the home and lead authority system works well because it is flexible and based on a wide range of advice, both formal and informal. By strictly limiting the capacity of the primary authority under the proposed statutory system to cases where the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority, we feel that the Government are restricting its ability to act in order to lighten the touch of enforcement. This essentially requires the primary authority to provide formal advice, to ignore informal advice and contacts, to ignore other factors such as its knowledge of the company and its procedures, and the likelihood that in the future it would act on informal enforcement. I suggest that this will confuse the relationship and increase the administrative burden because businesses will be more likely to require all advice and guidance to be written down so that it can be relied upon, and in turn primary authorities will be less willing to provide informal advice without going through a formal process. The amendment would open up the options available to the primary authority and introduce flexibility, while still ensuring that the objective of securing compliance is met. This would return the character of the relationship to that which was originally promised and intended. I beg to move.
When the Minister replies, could he explain again how this is to operate because it seems to me that the primary authority is talking to itself: the enforcing authority is the primary authority. Is that not right? My noble friend’s amendment is well worth considering because, as I say, the primary authority and the enforcing authority are the same. We are referring here to an internal discussion.
I shall come to the point raised by the noble Lord, Lord Hodgson, a little later. The noble Lord, Lord De Mauley, has it just right about the home and lead scheme, which as I said when we debated the previous amendment, had been a success. However, the failing with it was that sometimes what had been decided was ignored. That is why a statutory scheme is supported by the Government and, I hope, by all Members of the Committee.
We are sympathetic to the intentions behind the amendment. Indeed, as the noble Lord hinted towards the end of his remarks, the basis this provides for the primary authority’s decision-making role when reviewing enforcement actions by other authorities is very close to the formula we consulted on in the draft Bill. I think the word “promise” may be a little over the top, but it was certainly consulted on and considered. Perhaps I may talk through some of the issues raised by the amendment, which of course were raised during the consultation process, and the reasons for adopting the more focused formula in the present Bill.
Some Members of the Committee will have seen that in the original draft Bill, we proposed giving the primary authority a right to withhold consent from an enforcement action if it was not satisfied that the action was appropriate in all the circumstances—in line with the amendment. Very significant concerns were raised by representatives of the enforcement sector that giving primary authorities and the LBRO such a general right to block an enforcement action would present serious practical problems. More importantly, it would put a substantial burden of liability on the primary authority, which would frankly be required to make a thorough investigation of every aspect of a particular enforcement action before it would be prepared to block an action proposed by an enforcing authority. This would turn the primary authority into a statutory reviewer of every aspect of every enforcement action taken against a business with which it had a partnership.
Representatives of a number of major local authorities, including some of those which are most likely to act as primary authorities to major businesses, told us that in practice they would not feel able to block proposed action on this basis. We therefore considered that there was a risk, perhaps a significant one, that the scheme upon which we had consulted, and which this amendment seeks to resurrect, would not be workable and would have the unintended consequence that local authorities that were primary authorities would simply be unwilling to withhold consent to proposed enforcement actions. It is worth pointing out that representatives of the professions involved, including those from the Trading Standards Institute and the Charted Institute of Environmental Health—who have every interest in securing a practical scheme, one that actually works—have welcomed the change we have made to the scheme, and our view is that we should not reject their views lightly.
The Bill more closely reflects what we think is the real expertise of the primary authority: the expertise and advice that it has given the business and the familiarity with the business’s management systems and the best way to secure compliance in working with its staff. The Bill also gives an objective role to the primary authority that is founded squarely on its advice-giving function. It does not give businesses a general right to appeal against enforcement actions on the ground that it is somehow inappropriate.
In practice, the scheme will give enforcing authorities a strong incentive to contact the primary authority about issues arising in its work at a very early stage of the enforcement process. Inevitably, in a small number of cases where disputes between, for example, the enforcing authority and the primary authority are taken to the LBRO, there will need to be a formal check on the advice that has been given. We will need to ensure that this does not mean that the provision of routine informal advice is undermined.
There is scope in Clause 25(1)(b) for the primary authority to be more proactive in particular areas of regulatory enforcement, given its role as adviser to other local authorities about the treatment of particular businesses. For example, where a business has acknowledged a problem in a particular area and is doing its best to put it right, the primary authority could bring that to the attention of other local authorities and recommend a lighter-touch approach to enforcement in particular areas. The primary authority’s right to direct an authority not to proceed with an action could be founded on advice of that sort.
The noble Lord, Lord Hodgson, suggested that “primary authority” and “enforcing authority” in the Bill might be the same. In the Bill—I hope this is not too obvious—the “enforcing authority” means any local authority other than the primary authority that regulates the business in practice.
I am grateful to the noble Lord, Lord De Mauley, for raising this issue. I have spoken at some length about it because it is important, and I hope my answer has gone some way towards satisfying him.
76: Clause 26, page 11, line 34, at end insert—
“( ) In this Part “enforcement action” does not include informal advice given to a regulated person notwithstanding that such advice may be followed by enforcement action as defined by subsection (5).”
The noble Baroness said: This is a probing amendment. I seek to understand what “enforcement action” is, and to make the point that much of what is done in taking action and giving advice should not fall within that term. The informal advice and guidance, often not written, given by officers in the field is to be welcomed, and heads off rather tougher action. We would all agree that compliance secured without a heavy hand is much the best.
I am sure that the Government do not intend to constrain inspectors from giving advice without first notifying the primary authority. Perhaps inevitably, formal—I shall use that less pejorative term, rather than “bureaucratic”—procedures attached to enforcement action are provided for, which would not be appropriate to the sort of advice and assistance given on a day-to-day basis by many authorities to many businesses up and down the country. I beg to move.
We agree that it is insufficiently clear whether enforcement action includes informal advice and guidance that officers regularly provide to businesses. If it did, that could disadvantage small and medium-sized businesses; they particularly value this informal, sometimes oral, advice and guidance, and that usually leads them to compliance. Not allowing the enforcement authority to give an informal warning might create a system that was all stick and no carrot, and might well incur hostility between the regulators and the regulated. It would also increase bureaucracy—the very opposite of the Hampton principles and the declared deregulatory intentions of the Bill.
Again, we are grateful for the opportunity that this probing amendment presents to give some assurances on the detailed operation of the scheme. During consultation on the Bill, the Committee will not be surprised to hear that we received an overwhelming message from businesses and local authorities that the primary authority scheme must not—I emphasise that—inhibit local authority regulatory services from providing routine advice to a business.
The example used throughout our consultation was that of one broken egg on the floor of a supermarket. Ordinarily a local authority enforcer would simply advise the supermarket that the egg should be cleaned up to avoid it being a slips and trips hazard. This would surely be the most appropriate response. To require the enforcer to contact the primary authority before giving this advice would not just be counterproductive, but absurd. It would create unnecessary delay and be in nobody’s best interests.
I assure the Committee that it has never been our intention that this type of informal advice should be captured by the definition of enforcement action in Clause 26(5). However, it is not easy to get the definitions right and defining these cases with sufficient precision was quite an intractable problem encountered in the consultation and, frankly, in drafting the Bill, because “informal” is a subjective concept, especially given the wide range of actions a local authority may take when enforcing regulations. This ranges from face-to-face advice at one end of the spectrum to prosecution at the other.
While everyone agrees that oral advice should be allowed to go ahead without the need to contact the primary authority and that prosecution should be captured by the scheme at the other end, a huge number of potential enforcement actions fall inconveniently between these two extremes. I need hardly tell the Committee that the difficulty is to draw a line where informal enforcement action ends and formal enforcement action begins. Much depends on perception here; a letter that “advises” a business how to comply with a particular regulation, but states that any failure to comply will result in court action, may be perceived by the business to be formal enforcement action and will result in behaviour change and potentially cost, while the local authority may well regard the letter to be merely informal advice. If following the enforcing authority’s informal advice requires, for example, removing a product line, potentially at significant expense, while not following it will result in prosecution, it seems fair to us that this type of informal advice should be referred to the primary authority and that the informal advice should be captured by the definition of “enforcement action”.
Absolute clarity is needed regarding the exemptions from the definition of “enforcement action”. Having thought about this a considerable amount, we strongly believe that the best way to achieve this is through secondary legislation. Clause 27 makes provision for the Secretary of State, by order, to prescribe the circumstances in which an enforcing authority will not need to contact a primary authority before taking enforcement action.
The guide to the Bill, which was referred to a lot on Wednesday, gives examples of the type of exemptions that we intend to propose and makes it absolutely clear that routine advice will be excluded from the definition of “enforcement action”. To quote the guide, the main factor taken into account in drafting the order will be:
“whether the enforcement action is purely informal (like advice and routine discussion between the authority and the business), which might make a check for consistency unnecessary”.
That is on pages 21 and 22. Making the exemptions in that way will allow for the detailed technical explanations that will be needed to address those areas where a different perception could create confusion regarding what should and what should not be considered informal advice.
I am sure that the Committee will join me in looking forward very much to debating the order when it arrives in this House; that should be a very pleasant couple of hours, at least. I want to make a point that I hope will seriously reassure the Committee. The first primary authority partnership will not be registered until all the relevant exemptions have been agreed by Parliament, and we will consult closely with local authorities, professional bodies, regulators and businesses when drawing those up.
I am again conscious that I have gone on at some length, but, again, an important point has been raised. I hope that that helps the noble Baroness to decide to withdraw her amendment.
In our briefing this morning, I asked that very question of my officials. Truthfully, no; it is not likely. There is still quite a long way to go, but I will press and we will see if there is anything that we can do justifiably to get before Members of the Committee some more information about how that may look. I do not want to make a false and easy promise here that it will be ready by Report; we do not think that it will.
Is there any idea by when it might have been prepared? There has been a lot of consultation and responses to consultation; the Minister keeps telling us about that. One wonders how well this part of the Bill in particular is going to work. Until the rules of this game are set out, it will be extremely difficult for Parliament to make any sort of judgment.
I am grateful to the noble Viscount. We will need to consult fully on the content of this and the other Clause 27 exemptions that we are coming to shortly. He asks whether it would be ready for Report; the answer is that it will not. We will try to be as helpful as possible to Members of the Committee by informing them of what we are thinking of at this stage. The Bill has to finish its course in this House and then go through another place before it can become law, but I take very much to heart what he has had to say.
I see the problem. I am grateful for that explanation. I thought that either guidance or secondary legislation would be forthcoming. I had not quite thought of it as a delight in store but I will now try to do so. The Minister said that secondary legislation was needed to provide for the technicalities, as he described the problem. We are entirely with him in that commonsense explanation and we must not lose sight of that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
77: Clause 26, page 11, line 35, leave out “with the consent of” and insert “following consultations with”
The noble Baroness said: This is an entirely different point. I notice that the noble Lord, Lord Jones, will answer for the Secretary of State.
Clause 26(6) provides:
“The Secretary of State may by order with the consent of the Welsh Ministers specify action”—
and a similar phrase is used in the provision to which Amendment No. 92 relates. As I read that, it would allow the Welsh Ministers to veto an action which the Secretary of State wished to take; I do not read it as relating only to Wales. My amendment provides for consultation with Welsh Ministers. Given devolution, I could have expanded it into a two-part provision—one for England, one for Wales—but I first wanted to explore the point of principle, which seems quite interesting. I beg to move.
I think the amendment is wrong. Given devolution, Welsh Ministers ought to be able to contribute to the decision and ought to have to agree to it. After all, it is a decision which is going to apply in Wales as well as in England on a matter which is devolved to Wales. If devolution is to mean anything, the consent of the Welsh Ministers, as opposed to merely consulting them, is essential. I apologise for being rather direct but the amendment is not a good idea; it is inconsistent with devolution.
I preface my comments with a recognition of the Government’s gratitude to the Welsh Assembly for its pragmatism in working with us on the Bill. I hope this will promote consistency in the treatment of businesses in England and in Wales, in both reserved and devolved matters alike. I am sure the Committee will recognise that the constitutional implications are far from simple in practice.
The primary authority provisions in part 2 apply in exactly the same way to Welsh local authorities as they do to those in England. All relevant regulatory functions, be they devolved or reserved matters, fall within the scope of this scheme and within the LBRO’s oversight. This means in practice that businesses in England and Wales can depend on the consistency and certainty that the scheme will bring in important areas such as food standard regulations, where responsibility is fully devolved to Cardiff. That means that Welsh businesses will get as much from this scheme as their English counterparts; it is a two-way street.
The scheme will depend on a single set of rules applying to local authorities in both countries. The relevant clauses are designed to ensure that the workings of the scheme rest upon a simple set of unified statutory instruments passed in Westminster, but does so in a way that still guarantees Welsh legitimate interests in matters which are the full responsibility of Welsh Ministers.
The Bill therefore allows Welsh Ministers to withhold consent if they are not content with the shape that the scheme is taking in practice regarding matters for which—this is the point that the noble Lord was making—they are personally accountable to the Welsh Assembly and the electorate. It is not only a two-way street in terms of implementation on both sides, but a question of ensuring that Welsh Ministers can be personally accountable in some degree of comfort. A requirement merely to consult them would not give them that guarantee and would effectively mean an erosion of that aspect of the devolution settlement.
I tabled an amendment to ensure that I entirely understood the provision—I said that, had I wanted to go down the devolutionary street equitably, I could have done the two-stage thing—because I do not think that this reflects absolute equality. The Secretary of State requires the consent of Welsh Ministers, but there is no reverse position, and there is no provision that allows England and Wales each to do their own thing. I have made the point and heard the explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
78: Clause 26, page 12, line 3, leave out paragraph (b)
The noble Lord said: The amendment is concerned with the definition of “relevant period” in Clause 26(4) as regards restrictions on the power of the enforcing authority to take enforcement action. The “relevant period” is described in subsection (9)(a) as, primarily, five days or, in subsection (9)(b),
“such longer period beginning with that day as LBRO may direct”.
I wanted to probe the Government’s thinking on this. I quite understand the arguments for flexibility and that five working days is a short period, but, equally, a longstop with no end date at all seems to present dangers of an opposing sort. Some degree of speed is important in any better regulatory environment. That is particularly true when dealing with smaller or small firms.
Such firms may know of an impending case hanging over them. The enforcing authority may not be ready to proceed and asks for a time delay, which it is given. This could go on for a long time. Local authorities are not always crisp and brisk in how they proceed and a smaller firm could be at a severe disadvantage in commercial terms, because it may become known that enforcement action is pending. That may have cash-flow impacts on the operation of the business and, in an extreme case, on its commercial viability.
We could have a situation in which the local authority does not move forward and holds its horses, saying, “We are not ready yet, we need a few more days or weeks” and the LBRO says, “That’s reasonable; carry on”. The threat hangs like the sword of Damocles over the firm. The purpose of my amendment is to strike out paragraph (b). I would fully accept and would feel happier with a longstop of a greater period, but allowing the LBRO to suspend the sword of Damocles for ever is unattractive, unhelpful and does not lead to a better regulatory climate. I beg to move.
First, I assure the noble Lord, Lord Hodgson, that in the vast majority of cases—we talked in detail to many of the authorities and their staff—five working days will be sufficient. That is quick enough to give the enforcement authority the right to get on with its work as soon as possible. We are all talking about a small minority of cases here. However, the amendment would remove the ability of a primary authority to apply to the LBRO for an extension to the deadline of five working days, which normally applies to a decision.
The LBRO’s ability to extend the deadline has been included for a number of reasons, but I assure the noble Lord that it is not in the LBRO’s interests to hold such a sword of Damocles over the head of both business and the authority or to allow it to happen. I think that the public outcry—indeed, the outcry from many places—would ensure that that did not happen. There may be cases where the primary authority’s decision requires complex analysis or there may be a temporary local crisis calling on the attention of all qualified staff. Indeed, there may be a problem that is so local that the LBRO needs longer.
For all those reasons, we think that a time limit of 28 days, as LACORS has recommended, rather than five working days, would be too long. We need to ensure that the enforcing authority is not kept waiting for a decision for such a long time. However, some flexibility is needed, and, although they are only a small minority, the unusual and difficult cases will have to be accommodated. Subsection (9)(b) allows for that.
I am grateful to the Minister for the fact that the case has been considered. The road to hell is paved with good intentions. I am sure that he wishes, and sincerely intends, that this requirement will be used only on the rarest of occasions. However, we all know that those rare occasions will be damaging—possibly fatal—to an individual business. I should be much happier if the Government were able to put a date beyond which the LBRO could not extend the deadline so that at least everyone would know that there was a point beyond which it could not go. I hope that the Minister may be able to give some thought to that before we come to the next stage of the Bill. In the mean time, having at least put it on the agenda with the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 26 shall stand part of the Bill?
I rise to oppose Clause 26 and to speak to my Amendment No. 95 in the same group. I seek to replace Clauses 26 and 27 with the new clause proposed in Amendment No. 95.
I have received a number of letters about this part of the Bill from the Local Government Association, the Welsh Local Government Association, LACORS, the local government co-ordinating body, and also from the Food Standards Agency. They seem to have legitimate concerns and, for that reason, I undertook to table Amendment No. 95. They have serious worries about creating statutory primary authorities. They do not like the LBRO’s power to nominate a council as a primary authority without that council’s agreement and they do not see how a forced relationship could work or deliver positive outcomes. It is felt that that would interfere with a council’s right to decide on the service that it wished to provide for its electorate.
They believe that the regime set out in Clause 26 and Schedule 4 for taking enforcement action would amount to a fettering of a council’s right to take any action that it felt appropriate against someone believed to have committed an offence in its area. In their view, for one council or an LBRO to direct another council not to take enforcement action would be undemocratic. In the case of an LBRO directing a council not to take action, it would amount to a centralisation of power. That is rather surprising, as many of the Government’s recent pronouncements on a variety of issues indicate that their policies are against a centralisation of power. More power to local people—that has been the political stance adopted by the Government and it is one with which many of us totally agree.
LACORS is also concerned about the time limit of five working days for a primary authority to determine whether it wishes to direct an enforcing authority not to take action. It thinks that it is unrealistic. The LBRO has 28 days to make a decision in cases referred to it, and it is suggested that primary authorities should also be allowed 28 days.
The Food Standards Agency also has concerns about this section of the Bill. It says that the Government have not been clear about the circumstances in which a local authority should consult a primary authority before taking enforcement action. The guidance on the Bill suggests that an exemption might be made where consultation would seriously jeopardise public health, the environment or consumer protection. The Minister made some reference to that.
Those bodies believe that it is essential that public health should not be put at risk at all by the new procedures that the Government want to put in place. They think that it would be desirable for the Government to make a statement that if there should be an imminent risk to public health, the environment or consumer protection, a local authority will not have to consult the primary authority. Incidentally, the FSA also has some concern about the clause. I have received a briefing from the FSA. It makes it quite clear that although it is, in general, strongly in support of the Government’s better regulation agenda, it has some concerns. It states:
“Whilst we are reasonably clear on the process by which the FSA and other regulators will be given access to the new sanctions, the Government has been less clear about how local authorities will gain access to them. Local authorities are key partners in enforcing food regulations and protecting the public. Further clarity would be useful to ensure that councils do not miss out on the new powers”.
It is therefore very much a probing amendment. It will be seen from what I have said that there are reservations about the Bill from organisations which otherwise have a strong commitment to the Government's agenda. Therefore, it would be useful to have a statement to put some of those worries at rest. The LACORS draft in Amendment No. 95 was deliberately drafted as a way to give voice to those concerns. I will therefore welcome hearing the Government's response.
I have a great deal of sympathy with the amendment tabled by the noble Baroness, Lady Turner of Camden. Looking at Clauses 26 and 27, I find it very difficult to understand—this may be my fault—how they would work. There seem to me to be too many players. You could call the system the price that you pay for consistency; the price could be too high.
If someone is in breach of a statute that is the responsibility of a regulator and the local authority has to take some action, the local authority is taking action against one person. That is quite simple. Another local authority may have to take action against another person, and those two persons may be related; but under this statutory system, you have LACORS, the primary authority and 32 pubs, let us assume, set up in 32 different authorities. It may be deemed that 16 of the pubs are in breach of something and the other 16 are not. The managers may be looking for their Christmas bonus and arguing whether they are in breach of the regulations. The whole system can be intervened on by the LBRO at some point.
You have to take Schedule 4, to which we are coming, to understand the two clauses. I start to think about alcohol disorder zones, on which some secondary legislation is going through at present. The whole thing is so complicated that the chances of people getting their mind around it and achieving consistency without paying far too high a price are very low.
I, too, have some sympathy with the general remarks made by the noble Baroness. I was worried about the phrase in the guide about Clause 27 that immediate enforcement action can in effect be taken when the delay of consultation would seriously jeopardise public health, the environment or consumer protection. I am surprised at the inclusion of the word “seriously”. There are occasions when an inspector goes into premises, especially if food is involved, and wants to shut the place down immediately because there is a risk to public health. Sometimes it may not be a big risk—it may be quite a small one—but the inspector wants to have the threat of being able to close the premises down even for a small risk. That is extremely important. To have to argue that something is a serious risk to public health and could spread all over the place is not a good thing. To a degree, the question of serious risk may be more appropriate in cases such as the environment or consumer protection, but so far as public health is concerned, it is not.
Further, all this is to be dealt with by order because it is not part of the Bill and the guide only suggests the way in which the order might be drafted. Given that, it would be very helpful if we could see the order before we reach Report so as to be reassured about it. When we discuss the order itself, we shall not be able simply to delete the word “seriously” because there will be no provision for amendments. That is why we need to discuss the detail at this point.
I am grateful to my noble friend for raising this point and speaking to her Amendment No. 95. She has invited me to rehearse the Government’s intentions in proposing our approach to the Bill, which I agree would be useful. I have to say, however, that were this clause to be replaced with the proposed new provision, it would significantly undermine the primary authority scheme we have set out by putting it on a different and, more importantly, less rigorous basis. Let me try to explain why.
The approach as demonstrated in Amendment No. 95 sets out an alternative to the primary authority partnership. I accept absolutely what my noble friend says about this being a helpful attempt to make the primary authority scheme better, and not a gesture from those who object to it in principle. It is therefore hardly surprising that it is an approach very similar to one proposed by LACORS during the public consultation process. LACORS was a significant stakeholder in that process, and has helped to mould and set out the provisions in the Bill. The Government thank the organisation for that. Having said that, we do not think that the amendment provides the assurances that businesses need to be prepared to enter into a primary authority partnership.
The intention behind the amendment, of course, is to minimise bureaucracy and to protect the absolute discretion of local authorities to perform any enforcement action they choose. We are not convinced, however, that it would deliver the benefits that are expected. As we have debated already, local authorities have worked informally to promote better co-ordination among themselves through the home and lead authority schemes. They have encouraged open and systematic communication between local authorities when handling regulatory issues affecting a firm that operates across local authority boundaries. Yet, as we have heard, in practice conflicts and inconsistencies continue to arise. These result in significant and unnecessary costs to business as well as significant and unnecessary work for local authorities.
Businesses have asked us to provide access to a scheme which will provide more dependable advice and much quicker resolution of disputes between authorities, thus giving greater certainty and clarity and providing an effective basis for planning their operations across the country. We start from the principle that where a business and a local authority have gone to the trouble of establishing a regulatory partnership, there should be a presumption that the advice given by one professional is respected by other professionals across the country unless there are good reasons for local variation. One of our criticisms of Amendment No. 95 is that it would not provide such a presumption. Its approach would effectively put existing practices, as recognised in the voluntary home-lead schemes, on to a statutory footing. Our view is that that is not enough to deliver the certainty that businesses have a right to expect.
If local authorities adhere strictly to the current scheme, consultation in this way, without any suggestion of a right to block an action, would deal with the inconsistencies that businesses face. Yet cases occur where authorities proceed to prosecution without any attempt to contact the primary authority to determine its advice; and where they do contact the primary authority, cases of persistent disagreement still arise, creating costs for businesses and local authorities alike.
The benefit of the Government’s scheme is that the primary authority’s right to direct that a particular action should not take place is operative only where the primary authority concludes that the enforcement action conflicts with advice it has previously given to the business. We do not want it broader than that. We debated earlier about “appropriateness”. It has been argued that where a primary authority has publicly expressed the advice it has given to the business, this will make it harder for other authorities to initiate enforcement actions that run counter to that advice. However, the argument only works on the basis that the cases will end up in court, either as criminal prosecutions or as litigation that challenges the enforcement action.
The mere existence of a primary authority’s advice will not deter enforcement actions or the threat of enforcement actions which do not end in court proceedings. This approach would also deny the enforcing authority the right to take the matter to arbitration if it disagreed with the primary authority’s advice. So the enforcing authority is effectively stuck with the primary authority’s advice and any disagreement will be harder and more expensive to test through the courts rather than the LBRO if the enforcing authority is convinced that the primary authority has it wrong.
The approach in Amendment No. 95 is less systematic than the one in the Bill and will give local authorities and businesses alike less effective protection. We understand the concerns that remain among those in the enforcement section about the primary authority or LBRO effectively having jurisdiction over the enforcement actions that a local authority may wish to pursue. We recognise that this is a significant change from the existing practice but it is essential. As I have said, it is narrowly circumscribed.
Our arguments against Amendment No. 95—again, we are grateful to my noble friend for raising the issue—is that, first, the disincentive to taking action in Amendment No. 95 is not strong enough; secondly, it denies the enforcing authority the right to arbitration if it disagrees with the primary authority’s advice; and, thirdly, it is less systematic.
My noble friend asked about exemptions for harm to health, harm to the environment and harm to consumer protection. Exemptions will be made along these lines by order and we will have an opportunity to consider them later today. I assure the Committee that the primary authority scheme will not be made operational, as I have already said, until these exemptions are accepted by Parliament.
In his robust way, the noble Viscount referred to how the price of consistency may be too high. I will put it the other way: the price of inconsistency may be fairly high for both major and small businesses which have outlets in two different local authorities. We are seeking to find the right balance in the Bill—we may or may not succeed in the noble Viscount’s eyes— between the flexibility that local authorities need in practice and the legitimate demands of business for consistency where necessary. The balance is slightly tilted towards local variation.
There will of course be cases where local issues are paramount—a business with excellent health and safety standards may have a negligent manager in a particular store, for instance—but enforcement action, if the scheme works, can go ahead in any such case after a pretty quick check with the primary authority. However, there are areas where consistency should be protected. For example, a label for a line of clothing should be valid from a trading standards point of view wherever in the country it is sold, or a particular type of sink should be just as safe in whichever store or warehouse it is sold anywhere in the country. We are attempting to achieve the right balance and, we hope, to take the Committee along with us.
The noble Lord, Lord Cope, asked to see the exemption order before Report. It did not surprise me that he should do so. Page 22 of the guide to the Bill—the noble Lord was right that we should not put too much on it—seeks to give a full outline of the likely content of any order. We want to continue to consult fully with local authorities, after which the order will be laid. Without making any firm promises, I have already told the Committee that my noble friend and I will try to get as much information as possible to Members of the Committee by Report.
I apologise again—I seem to be apologising a lot today—for having spoken for a long time, but my noble friend’s amendment is important and I wanted to answer it for the Committee’s benefit.
I thank the Minister for that detailed explanation, which I hope will satisfy some of those who have conveyed worries to me in correspondence. I shall consider in detail what he said. As he rightly said, it was a lengthy statement, but he tried to deal with the worries of people who have written to me. As I said earlier, they are not against what the Government intend; they—for example, the FSA—support the agenda of the Government in this respect. I shall not press the Question.
Clause 26 agreed to.
Schedule 4 [Enforcement action: references to LBRO]:
79: Schedule 4, page 44, line 25, leave out “with the consent of LBRO”
The noble Baroness said: I shall speak also to Amendments Nos. 80 and 81 and 83 to 86, but there are fewer points to be made than that list might indicate. Amendments Nos. 79, 83 and 85 are on the same point. We are told that if the primary authority directs the enforcing authority, the latter may, with the consent of the LBRO, refer the proposed enforcement action to the LBRO. That seems to add an unnecessary stage. One can cut out the stage of the enforcing authority having to go to the LBRO to ask, “Do you consent to our doing something?”, because either the enforcing authority can check informally or the LBRO will simply say, when the enforcing authority goes to it, “We don’t want to deal with it”, and it will not. The provision seems to add a bit of extra bureaucracy. It is not a great point, but it intrigued me.
Amendments Nos. 80, 84 and 86 relate to paragraph 1(2) of Schedule 4, which states that, when a reference to the LBRO is made, it can confirm or revoke the direction. I wondered whether something had been left out here. The use of the word “revoke” is rather curious when it is not its own direction, but if the LBRO says, “Sort it out between you”, for example, and declines to deal with the matter, is that catered for?
My last point, which relates to Amendment No. 81, is one that I have been over several times, and I am grateful to the Bill team, to whom I went for advice. I see some smiles from behind the Minister. Under paragraph 1(2)(a) of Schedule 4, the LBRO must be satisfied with the matters set out in sub-paragraph (3) in order to confirm the direction. This is a direction by the primary authority directing an enforcing authority. I believe that the direction is not necessary if the enforcing authority agrees with the primary authority. That is the basis on which I have worked.
Under sub-paragraph (3), the conditions are that the advice or guidance given by the primary authority must be correct and properly given but—or perhaps “and”—the enforcement action must be inconsistent with the advice or guidance. The Bill team’s answer is that the essential question before the LBRO is: should the enforcement action be stopped? However, I read paragraph 1(2)(a) as being about the enforcement action proceeding and not being blocked.
The same terminology is used in paragraphs 2 and 3 but in different situations. I am genuinely puzzled by this provision and am not carried along by the arguments that I have heard on this. Drafting can often be very difficult but that is what we are here for. I beg to move.
This group of amendments covers two separate issues relating to LBRO arbitration. Perhaps I may leave the noble Baroness’s comments on Amendment No. 81 to one side for a moment. The first set of amendments restates the way in which the Bill allows the LBRO to filter applications for arbitration. These can be made by all three parties to an enforcement action under the primary authority scheme—by businesses, by the primary authority or by the enforcing authority. There is a serious risk that the LBRO could be overloaded with arbitration cases—some of which could well be vexatious—if the right to arbitration was unconditional. The Bill has therefore specified that all three parties may refer the matter to LBRO only “with its consent”.
I can confirm that the amendments would merely restate what is in the Bill and, with respect, they are therefore deemed to be unnecessary. All three parties would have the right to apply to the LBRO stating the grounds for their case for arbitration. The LBRO would then screen those applications and, where appropriate, give consent. Those applications would then proceed to a formal referral process. That would amount to the same process set out in the amendments. I think that we are probably talking about two routes to exactly the same result.
Amendment No. 81 makes a point of logic. I understand that the noble Baroness’s concern is to ensure that the approach taken in the Bill here is correct. The primary authority provisions revolve around checking whether enforcement actions proposed by local authorities are consistent with the advice that a business has been given. Where the primary authority thinks that it is inconsistent under Clause 26, then it may effectively block the action going ahead.
Schedule 4 sets out the LBRO’s ability to arbitrate where the primary authority, the enforcing authority or the relevant business refers the matter to the LBRO. The essential question before the LBRO in that case is whether the enforcement action should then be stopped. It has three issues to consider, which are set out in paragraph 1(3)(b). First, LBRO needs to verify whether the enforcement action is inconsistent with any advice given by the primary authority. Secondly, the LBRO needs to verify whether the advice was correct to start with—that is, to make sure that the primary authority has not got the law wrong, making inconsistency irrelevant. Thirdly, the LBRO needs to verify whether the primary authority has given advice properly. It has to make sure that it has not been unreasonable in the advice it has given—for example, that it has not disregarded cases where there might be a need for a different local approach.
If the answer to all three questions is yes—the action is inconsistent with advice and the advice was given both correctly and properly—the enforcement action should be stopped. I can confirm that inconsistency is the appropriate concept here. Consistency would reverse the outcome of LBRO arbitration with the effect that it would block actions where they are consistent and let them go ahead when they are inconsistent. Clearly that is not what we are after.
I apologise for the need to take the debate back to the first principle. I am grateful for the noble Baroness’s vigilance in raising this matter. I hope that I have clarified the issue.
82: Schedule 4, page 45, line 3, leave out paragraph 2
The noble Baroness said: I shall speak also to Amendment No. 87. I am prepared for teasing because there is inconsistency in some of the amendments that I have tabled.
The National Consumer Council asked me to bring forward Amendment No. 82. It wants paragraph 2 omitted because it gives business a pre-emptive right of appeal against proposed enforcement actions by enforcing authorities. I understand that the provision was not in the draft Bill and has not been consulted on. The council describe it as giving a vulnerability to abuse by wealthy companies using lawyers to delay legitimate enforcement action. I have never understood why lawyers should not be used, but they seem to be denigrated in some circumstances. It is not reassured by the safeguard that the LBRO must consent to the reference. The provision does not set out the circumstances in which the LBRO may refuse its consent, and the LBRO may be reluctant to refuse consent if judicial review is threatened.
If a company consistently challenges proposed enforcement actions or the authorities have to deal with a series of challenges from many companies, the prospect of protracted legal wrangling is a real deterrent. This is not a point from the NCC, but I add that we must all be familiar with local authorities quite properly having to have regard to the use of their resources when they take any action, or respond to any action by a third party. Sometimes, the costs to be met, rather than the subject, become the main issue. The LBRO may require a regulated person to pay reasonable costs, but that is only permissive. I presume that, if it did not happen, the enforcing authority would be liable for the costs.
I turn to Amendment No. 87. The amendment which I thought I had tabled made reference to the period provided for in Clause 26(9), but the amendment which appears in the Marshalled List would insert,
“the relevant period provided for in Section 26(9)(a)’”.
That was not my point, but it is interesting. I do not know who thought of it and whether it is a heavy hint from the Public Bill Office. Clause 26(9) provides—we have already touched on the alternatives—for a,
“period of five working days”,
“such longer period … as LBRO may direct”,
as the relevant period for the purposes of the clause. My amendment was tabled to understand whether I am on the right clause. If the period is not known in advance—I have in mind Clause 26(9)(b), about which the noble Lord, Lord Hodgson, spoke earlier and which provides for the longer period that the LBRO directs—it has a knock-on effect in the schedule. Even though it is not the amendment which I thought I had tabled, it has become quite interesting. I beg to move.
I was not sure what was happening here, but now that the noble Baroness, Lady Hamwee, has explained about the second amendment in the group, I feel safer to speak to the first.
I support the amendment, which would leave out paragraph 2 of Schedule 4. As noble Lords will be aware, paragraph 1 allows the enforcing authority to appeal to the LBRO if it is directed by the primary authority not to take enforcement action. That allows the LBRO effectively to arbitrate if there is a disagreement. Paragraph 3 allows the primary authority to ask the LBRO to decide on a proposed enforcement action if it feels unable to do so. This is appropriate if there is uncertainty.
Paragraph 2 is not appropriate. It allows the regulated person to ask the LBRO to intervene when the enforcing authority and the primary authority agree on a course of action but the regulated person does not. This would seem to frustrate the normal mechanism of enforcement by allowing an opportunity to appeal to the LBRO prior to other opportunities that are dependent on the sanction; for example, a court hearing that determines the right or wrong. The danger is that the LBRO can decide not to decide, but in coming to that decision, it will have had to consider the facts of a given situation, which would use up resources best employed on other aspects.
Removing this paragraph from the Bill would remove the ability of a regulated person to make a pre-emptive appeal to the LBRO against a decision on which the enforcing authority and primary authority agreed and therefore to frustrate the enforcement process. Such an amendment would be crucial to the effective and efficient implementation of the overall design of the Bill.
I first assure the noble Baroness, Lady Hamwee, that the business’s right to appeal to the LBRO was in the draft Bill. For future reference, the provision was set out in Clause 11(5).
These grouped amendments all relate to Schedule 4(2) on the right of businesses to refer an enforcement action to the LBRO if a business believes that its primary authority has failed properly to check for the consistency of a particular enforcement action with advice previously given to the business. I can assure the noble Baroness, Lady Hamwee, that my noble friend and I have no problem with businesses going through lawyers, given what we both did in our former lives.
The LBRO’s arbitration role is central to the Bill and is designed to protect the interests of businesses and local authorities as the primary authority scheme takes effect. I know that there are concerns among enforcement officers that this might be abused by particular businesses appealing every decision vexatiously. That is exactly the point made by the noble Baroness, Lady Wilcox. I am pleased that the Bill has a number of safeguards against this. Schedule 4 makes it clear that referrals to the LBRO may be made only with its consent. In practice, we expect that to mean that the LBRO will have a right to screen potential referrals to ensure that any frivolous or vexatious appeals are turned down at an early stage—that they are weeded out. The LBRO may also charge the business for any referral.
In addition, the Secretary of State may under Clause 26(2) specify a period within which any referral to be made to the LBRO by the business must be made. If a business is prepared to pay and passes the hurdle that establishes that it is not vexatious, would it then just play for time, as the noble Baroness, Lady Wilcox, said? In those circumstances there is a period in which the referral must be continued or come to an end. This will prevent the business using the appeal to play for time indefinitely and will obviate the need for Amendment No. 87, which would permit the enforcing authority to proceed with an enforcement action while the business decides whether to appeal.
So there are three parties to any decision under the primary authority scheme—the primary authority, the enforcing local authority and the business. It would be odd, would it not, to give protection to both local authorities concerned, but not to afford it to the business as well? I hope that the noble Baroness, Lady Wilcox, especially, would agree with that. Perhaps both noble Baronesses will not press their amendments.
I am grateful for the explanation. I apologise for my suggestion that the provision was not in the draft Bill; I have not lived with this Bill in the way that other noble Lords and organisations have. I should not call them outside organisations, because they are at the centre of this matter. I feel just as defensive of lawyers as both Ministers on the Government Front Bench do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 83 and 84 not moved.]
84A: Schedule 4, page 45, line 27, at end insert—
“Reference by regulated person with activities in only one local authority enforcement area2 (1) The regulated person may with the consent of LBRO refer the action described in section (Single enforcement authority business: appeal to LBRO) to LBRO.
(2) On a reference under this paragraph—
(a) if LBRO is satisfied as to the matters in sub-paragraph (3), it must direct the enforcing authority not to take the proposed enforcement action;(b) in any other case, it must confirm the proposed action.(3) The matters referred to in sub-paragraph (2) are that—
(a) the proposed enforcement action is consistent with advice or guidance previously given by the enforcing authority (generally or specifically);(b) the advice or guidance was correct; and(c) the advice or guidance was properly given by the enforcing authority.(4) The enforcing authority may not take the proposed enforcement action if it is directed as specified in sub-paragraph (2)(a).
(5) Where LBRO gives a direction under sub-paragraph (2)(a), it may direct the enforcing authority to take some other enforcement action (and section (Single enforcement authority business: appeal to LBRO) does not apply in relation to that action).
(6) The enforcing authority must comply with any direction under sub-paragraph (5).
(7) LBRO may require a regulated person who makes a reference under this paragraph to pay such reasonable costs incurred by LBRO as a result of the reference under this paragraph to pay such reasonable costs incurred by LBRO as a result of the reference as LBRO may specify.”
The noble Lord said: Under the Bill, a multi-site business is free to select as its primary authority one which is relatively sympathetic to its cause. Smaller, single-site businesses which operate within a single local authority area will not by definition have that flexibility. So there is a risk that they are disadvantaged as against larger businesses. The purpose of Amendment No. 101A and this amendment is to provide some balance for those smaller businesses by giving them some rights of appeal against the enforcement decisions of their respective enforcing authorities. These would be on the same grounds as an appeal to the LBRO against a decision of a primary authority by a business that operates on a multi-site basis.
The noble Lord, Lord Jones, has kindly written to me to explain that small businesses can appeal to a tribunal. I prefer my solution for two reasons: first, it would give the regulated party the opportunity of appeal before conviction, which the Bill as drafted would not; and, secondly, the conditions as drafted in the amendment mirror those in the Bill for multi-site businesses, thereby placing small businesses on a more equal footing with larger businesses. I beg to move.
These amendments would give businesses operating in, and regulated by, only one local authority access to some of the benefits of the primary authority scheme—in particular, access to arbitration by the LBRO.
I understand that the intention behind the amendments is to defend the interests of small businesses, but this is not a large versus small business issue. The benefits of the primary authority scheme can be enjoyed by a small business that operates across two local authorities in the same way as they can be enjoyed by large retailers that operate in every local authority in the country. However, the primary authority scheme has been designed to address a specific problem that affects only businesses regulated by more than one local authority—that is, that advice, guidance and enforcement can vary from one local authority to another.
The primary authority scheme does not give a business a general right of appeal. The scheme has been created purely to promote consistency of advice and enforcement among local authorities. It is not clear that single-site businesses experience similar inconsistency where they are regulated by only one local authority; nor was this a concern raised in the responses received to the consultation on the Bill.
We believe that the inclusion of the amendments would create a significant disincentive for local authorities to give advice to the single-site businesses that operate within their boundaries. With the threat that such advice could be challenged hanging over its head, a local authority might well cut its losses, cease to provide advice and, rather, use formal enforcement as a means of securing compliance. That would be to the great detriment of small businesses that rely on the advice they receive from local authorities.
We listened very carefully to small businesses throughout the consultation period. Their main concern with the primary authority scheme is to ensure that, where a local authority is nominated for the statutory scheme with a particular business, that will not drain resources away from the support and advice that local authority enforcement officers routinely give them. The noble Baroness, Lady Wilcox, mentioned that point at Second Reading. Our inclusion of a charging provision provides much-needed clarity and will allow local authorities to recover their primary authority costs, should they wish to do so.
A number of noble Lords were eager to explore the benefits that the LBRO would bring for small businesses more generally, and perhaps I may discuss these briefly. First, the LBRO’s general functions will seek to minimise burdens on all businesses. Its guidance to local authorities is likely to address issues such as the best way to support businesses to compliance where they have limited time and resources for finding out the law. Secondly, the LBRO’s role in setting a short and strategic list of national enforcement priorities will create greater certainty and security for everyone. Lastly, but not least, there is nothing to stop a small business bringing a particular issue to the LBRO’s attention for action through guidance and, if appropriate, direction.
Noble Lords will naturally expect assurances that, in carrying out its general duties, the LBRO will not neglect the particular interests of small businesses. I am happy to give that assurance, but the relevant functions are those set out under Part 1, which we debated earlier.
I hope that, on the basis of what I have said, the noble Lord will feel able to withdraw the amendment and, further, that he will feel satisfied that the concerns of small businesses are being looked after.
I thank the Minister for his answer. His summary of what the amendments do seems right to me. However, I am concerned about this matter and should like to give it further thought. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 85 to 87 not moved.]
88: Schedule 4, page 46, line 28, leave out “or directions”
The noble Baroness said: My note says nothing more than, “Oppose LBRO’s direction-making power”. I will put the point in the same way, knowing that there is a great deal more business to be got through before we get to the end of this Committee stage. Having debated the principle, albeit in a different part of the Bill, I was simply going to ask whether the Minister had more to say than was said when we came to the point in Part 1. However, as we have the noble Lord, Lord Jones, here, I shall ask him whether he has more to say. It will be a delight to hear him defend the direction-making power with which some of us feel distinctly uncomfortable. I beg to move.
The Committee will not be surprised to hear that I fully support the amendments of the noble Baroness, Lady Hamwee. I do so because I strongly believe that if you give these powers to direct to the LBRO, everyone else in the process will conclude that it is absolutely clear who is in charge. My noble friend Lord Cope mentioned the cane behind the back, but the cane could be behind the curtain or anywhere. The power to give directions is recognised by everyone as significant, and we must pay attention to the fact that this body has that power. In those circumstances, local authorities will say to themselves: “It is not sensible for us to prolong this discussion or argument. Why don’t we leave it to the LBRO to decide?”.
It is said that the LBRO will be a small organisation and will not cost much money. Presumably, therefore, it will not have a very big staff and its legal department will not be very large. At that point I get a sense of incompatibility. The scheme is set out in the Bill in a way that is wrong. It would be one thing for the LBRO to be advisory and to give guidance, but to have the power to direct would be another. That would completely change the LBRO’s position in relation to all the regulators and the businesses we have been talking about.
Incidentally, we should not forget middle-sized businesses. Generally speaking, they are under the most pressure. The large businesses can look after themselves—as can the small ones, usually. It is the ones in the middle that have the trouble. There needs to be a serious rethink about the reserve powers of the LBRO.
I am sorry that the noble Baroness, Lady Hamwee, has pursued this matter, except for one fact: we have the pleasure today of my noble friend Lord Jones being with us. He will know, either from his briefing or from reading Hansard, that we have discussed guidance and directions by the LBRO. Some of us took the view that there have to be directions—in exceptional circumstances, at any rate—otherwise the whole system, which is designed for the public interest and for business to achieve greater consistency and co-ordination through the creation of the LBRO, would fall down. It is essential to have that backup or reserve power. I do not know why we have to argue it again today. I thought my noble friend Lord Bach dealt adequately with the matter the other day. Of course, reserving the point, it will be a delight to hear what my noble friend Lord Jones says.
I thank my noble friend Lord Borrie for his confidence in what I have to say. As an aside, I wish to take on the point made by the noble Viscount, Lord Eccles, about medium-sized businesses. During my time as director-general of the CBI I tried so often to reach out to them, thinking they had specific issues that were not covered by other big businesses—which I also thought looked after themselves, and I was wrong about that—or by small businesses, which everyone, every agency and parliamentarian, is usually all over like a rash. After a series of initiatives, I found that I was wrong: such businesses do not have different issues. They do not feel that they are medium-sized; they see themselves as either a small big company or a big small company. We ought not to concentrate too much on looking at medium-sized businesses. I agree with the noble Viscount that we ought to think about taking them into account separately, but when I did that at the CBI it met with a stony silence.
The amendments relate to a relatively restricted direction-issuing power for the LBRO. I recognise the anxieties of the noble Baroness and the noble Viscount about conferring any powers of direction on to the new body. I am going to repeat quite a bit of what my noble friend said last time and I shall clarify the reason for the inclusion of these specific powers in the context of LBRO arbitration.
The primary authority scheme gives particular multi-site businesses the right to an advisory partnership with a local authority, the core of what we are trying to achieve, and the right to a process whereby that local authority should screen actions by other local authorities for consistency with the advice it has given. Businesses across the land badly want consistency. That is their main complaint. The lack of it is a waste of the implementation of regulation—as opposed to regulation itself—because of the effect on multi-site businesses, the harm that does to productivity and the frustration it causes in so many parts of the country.
Schedule 4 allows for arbitration on request by all three parties. The results of that arbitration will be binding. In many cases the outcome of a referral to the LBRO will be of interest to other businesses and local authorities; indeed, it will be another route to ensuring that we have lack of failure in the implementation of regulation on multi-site businesses.
At Second Reading, a number of noble Lords questioned what benefits the scheme would bring to smaller businesses or to those that operate on one site only and would have no need for access to the primary authority scheme. The latter could be a very big business operating on one site; although there are very few of those around, it is not about the size of the business. The powers of direction in paragraph 7 deal with precisely that issue. They permit the LBRO, if appropriate, to give other businesses the benefit of the same certainty that the business which is relevant to the case can rely on, by extending the implications of a decision to local authorities across the country. This is being done not to add obfuscation, nor to give someone enormous power, but to make business more productive and to make the implementation of the regulatory regime more efficient.
The powers will also help deal with one of the risks of the primary authority scheme: that when the advice given by different primary authorities diverges, multi-site businesses will find themselves subject to increasingly different regulatory standards in practice. The powers of direction are limited by the requirement that they should relate to a specific enforcement action submitted to referral to the LBRO. They cannot be used more widely or arbitrarily. Paragraph 7 provides an essential part of the LBRO’s continuing responsibility to promote a consistent regulatory framework for all businesses. This goes to the core of what we are trying to achieve: not only consistency, but ensuring that the whole implementation process is more productive and efficient.
In response to the noble Lord, Lord Borrie, I began by saying I wanted to know whether the Government had anything to add to the comments they made last week. I am interested to hear how the noble Lord, Lord Jones, addresses the point and I will read what he said; it seemed to be more a general defence of the whole approach rather than of this specific point, but that may be unkind. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 89 and 90 not moved.]
91: Schedule 4, page 47, line 1, leave out paragraph 9
The noble Baroness said: The amendment would delete the delegation provision from the schedule. It aims to understand what the Government envisage. Delegation of functions can be made to any person; presumably that will include a corporate person as well as an individual. Decisions will be taken by officials of the LBRO. Does the paragraph anticipate that a board decision will be carried out by the individuals who are working for the LBRO—obviously there will be internal schemes of delegation, and one understands that—or is it, as I think it might be, to allow for delegation to a completely different organisation; in other words, requiring another organisation to carry out some of its functions? I beg to move.
I was surprised to see this paragraph in the schedule. I support the noble Baroness in wondering what it is intended to do. After all, the way it is phrased:
“LBRO may delegate its functions under this Schedule to such other person as it considers appropriate”
means that anyone can be given by the LBRO the power to direct that enforcement action should be taken or not. It can direct local authorities about any enforcement action. The LBRO has tremendous powers in this schedule, any of which can be delegated to anyone else. Who is that? Which powers will be delegated? To whom is it thought even slightly appropriate that the powers of direction, for example, should be granted? I have not so far been able to find any guidance on that in what has been published, and I would be grateful to know what is intended.
I, too, support the noble Baroness. We have set out a long and elaborate set of regulations, running to two and a half pages, and then in the last line we shoot the fox. We have spent a long time discussing the fox, what shape it is and how it should work, but then the fox is suddenly dispatched in a short line and a half. The noble Baroness has raised an interesting point, and I look forward to hearing the Minister’s reassurance about how these powers will be used and why they are necessary.
The LBRO’s ability to delegate its arbitration functions under paragraph 9 of Schedule 4 is critical to the success of the scheme. The LBRO will be a relatively small public body with a wide-ranging scope. I am sure that Members of the Committee will have had a quick glance at Schedule 3 and will have seen the range of regulatory issues that its work will cover: if I take the simple A to Z approach, from accommodation agencies to zoo licensing. Arbitration cases may be referred to it under any of these headings, and it is unlikely that the LBRO will have the right in-house expertise to deal with all such matters.
For example, a chemicals firm may refer a matter to the LBRO that calls for a highly specialised knowledge of environmental science or of the particular issues raised by a pollutant in a very specific ecosystem. In such cases, the LBRO may wish to delegate the arbitration function to persons or bodies with the appropriate expertise—in the case I have given, perhaps to the Environment Agency.
The Committee can be sure that the LBRO will be under a public law duty not to delegate its functions irrationally. We can consider the points the noble Baroness has raised to ensure that she and the public get that assurance, but, if we removed the delegation power at paragraph 9, that would have serious implications for the viability of the scheme and how it works in practice. I will ask for the noble Baroness’s points to be considered in order to give her that comfort, but removing delegation would, frankly, render the scheme unworkable.
So far, I am not reassured. I hope I may be at a future stage. Not having the right in-house experience does not mean you have to delegate to those who have the experience; you take advice from them. The LBRO should be responsible for the decisions and actions, and should remain so. Delegation is a step a good deal further than the Minister describes as being necessary. Of course the LBRO will take advice from others—I entirely accept that—but taking advice is not the same as handing over responsibility.
Delegating the ability to get on with the job does not mean you delegate responsibility at the same time; you might do so, but you might not. If the noble Baroness’s point is about the delegation of responsibility rather than about bringing in specialists, I will certainly take it back to consider.
Before the noble Baroness withdraws her amendment, I suggest that the difficulty may be in the use of the word “functions”. That is an extremely wide word. After all, the functions in the schedule include the powers of direction, and so on—quite fierce powers, ordering things to happen. The Bill does not say that they have to be delegated to another quango—or rather, to another agency of government. The Minister mentioned the Environment Agency, for example, which will be relevant in cases such as the one he mentioned. This paragraph, however, would allow the powers to be delegated to absolutely anyone—to me, for instance. I am not for a moment supposing that the LBRO would think that appropriate, although you never know, but it could delegate those powers to all sort of bodies, trade bodies or whatever.
We know that the LBRO is not a quango; the Minister said at Second Reading that it was not, because it was temporary and would be wound up. Does that make it a “tango”?
The power to delegate enforcement functions, including the power to direct, is very wide. Perhaps the Minister should think about the word “functions” and see whether that needs limiting a little.
I want to assure the noble Lord, Lord Cope, and Members generally. As I listened to that, I was thinking that there are three words here that need clarity of definition and of extent: “delegation”, “responsibility” and “function”. As the noble Baroness, Lady Wilcox, reminded me earlier, this is my first time, and I did not know whether I was going to be able to do what I want, which is to say, “I think we should take this back and look at the definitions of those three words”. I think the LBRO has to have the ability to go to specialists, otherwise it will fail, but that does not mean we do not have to deal with the legitimate points that Members have raised. I was wondering whether I would be able to make that promise to the Committee, and I am grateful that my officials have just said exactly the same thing. On that basis, we will take that back. I make it clear that the provision has to work, but the Committee deserves to have those three words clarified.
The Opposition will never object to a Minister saying, “We will take that back”. I can think of many people to whom delegation of the functions would be inappropriate—although the noble Lord, Lord Cope, is not one of them; nor is anyone else in this Room. One can think of situations that would appear to be allowed by paragraph 9 and would be extremely undesirable. The paragraph may need some expansion to deal with some different circumstances. It is right to focus on the term “functions” and on others. One may need to disaggregate all the thoughts that are encompassed in one and a half lines. I have written down “R” for Report, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 agreed to.
Clause 27 [Enforcement action: exclusions]:
[Amendment No. 92 not moved.]
93: Clause 27, page 12, line 15, after “which” insert “enforcement action is regarded as so urgent that”
The noble Baroness said: The amendment is concerned with the enforcement actions and what can be excluded by way of order. In this set of amendments we are dealing particularly with matters of urgency. My Amendment No. 93 was my rather amateurish attempt to raise the issue of urgency and to seek to understand how the Government will approach it. The noble Viscount, Lord Colville of Culross, has an amendment on the same point, which he will speak to with his great experience of these matters. Amendment No. 93A came to me from the National Consumer Council and spells out certain “circumstances”, as the term is. I do not think it matters whether that is the right term at this stage when we are dealing with the principle of the issue. The items the NCC has highlighted include human health, the environment and financial interests. Financial interests could be a major or minor item, I must say—although human health issues could also be major or minor. They are a little different in character from the others. It is important to understand the minimum circumstances in this case. Simply saying, “I am introducing this to seek to understand how the Government will be approaching the issue of urgency” is probably all I need to do. I do not need to argue the case for it being addressed. I beg to move.
My Amendment No. 94 has been grouped with this, and I want to come at it from two different backgrounds. I hope I shall not repeat a lot of what has been said already today; I shall try not to. I have a different concept about the whole issue.
The Government are placing an undue emphasis on businesses. I was a founder member of the Select Committee on the Merits of Statutory Instruments, which is still adorned by the noble Viscount, Lord Eccles. We took evidence about regulatory reform, and it was all about making life easier for businesses. There was an occasional mention of voluntary organisations, but not very often.
On reflection, the purpose of regulation is not to make life difficult or easy for businesses; it is to protect the public. That is why local authorities have been given regulatory powers. They are not given them for fun, but for the protection of the public—yet the public are almost never consulted. I know it is not easy to consult the public, but we have already had mention today of the consumer council. The noble Baroness, Lady Wilcox, knows all about that. There is also Citizens Advice, along with other organisations.
Have the Government actually grasped that this is all about protecting the public? Are they going to make an effort to ensure that the Bill will be drafted in order to deal with that issue? It is why the exceptions to going to the primary authority are so extraordinarily important. At Second Reading I gave an example—and I hoped this would be familiar territory to the noble Lord, Lord Jones, in view of the suffix to his title—of some West Midlands pizza parlours. Incidentally, Culross is nowhere near there; it is in Fife, but never mind. The point was to show that there needed to be powers to deal urgently with matters that required attention, like public health. That is in the Explanatory Notes to the Bill.
There are another four examples of exceptions in the Explanatory Notes. In the recent guide that has grown to seven, so things are improving. We have been told today, however, that the Government will not be able to produce a draft of any of these statutory instruments before further stages of the Bill. When I sat on the Merits of Statutory Instruments Committee, one realised that a confetti cloud of statutory instruments always follows legislation these days. It is all very well the noble Lord, Lord Bach, saying he thinks we will all have a lovely time discussing this when the statutory instruments come before the House, but he failed to remark upon the fact that you cannot amend statutory instruments. The only thing you can do to correct any mistakes or failures in them is to consult beforehand, which must include in these instances consultation with people who represent members of the public, who are meant to be protected. That does not always happen, but I hope it will this time.
I shall take another couple of examples, the sort of cases that trading standards departments have to deal with. The first is doorstep salesmen of dodgy insurance policies. The moment they step across a local authority boundary, they are a regulated person under Clause 20(1). They therefore come within the Bill. Are we going to make certain that the trading standards department that discovers that this is going on, and that old-age pensioners are being defrauded by such people, does not have to go to the primary authority to take enforcement action? It probably is so, if you look at the exemptions that are listed in the guide. I expect that the delay involved in consultation might inhibit effective evidence-gathering or investigation of a breach. That is new; it was not in the original Explanatory Notes. It is, of course, absolutely correct.
What about the people who come around—I am sure they are a business—who always have a leftover part of a tarmac job that has been done for a public authority, and who will put it upon your drive, usually for cash? They go away and then the tarmac does not set very hard. Enormous sums are involved, which is usually not explained beforehand. This is the sort of thing that the public need to be protected from, and trading standards departments are there for that purpose. Are we sure that the exemptions that will be produced by statutory instrument will cover the full range of such circumstances? I am reasonably content with what is set out in the guide, but I am not sure that it has been consulted on fully and that it is agreed by everyone that it is adequate.
In particular, I cannot see why there is no provision in the Bill to deal at least with what we all know is going to be required. A health and safety provision, which I discussed at Second Reading, is bound to be included. If the matter is urgent, something will have to be done and there will be no time to consult the primary authority. There will be other circumstances of that sort as well. The less we have to set out in statutory instruments, which cannot then be amended, the better. Why not put it all on the face of the Bill? We are beginning to crystallise the sort of circumstances where consultation with the primary authority will not be necessary, so let us proceed as fast as we can with setting out as many of these circumstances as possible in the Bill. We can then discuss them in Parliament, where it will be possible to amend them. Let us not leave them to statutory instruments which cannot be amended.
I suggest to the noble Lord, Lord Bach, that this needs to be considered. The provision at the moment leaves everything to completely vague and undefined statutory instruments. That will lead only to the usual arguments about whether they are adequate and whether they ought to have included something else. I hope that he and his advisors will think again about making these provisions a little more firm and concise, thus making sure that we really have covered the ground.
The amendment in my name is of course only inclusive; it does not say that there cannot be a power to produce a statutory instrument to add more things. However, I am asking that we do not produce statutory instruments to deal with all the things we know we are going to have to deal with in this context; they can go in the Bill. If necessary, powers can then be taken to add to them. We ought increasingly to take this approach because of the flurry of statutory instruments with which Parliament is constantly beset, and about which the noble Viscount, Lord Eccles, and I know all too well. I hope that there may be a little more progress on this than simply to say, “We will know what is in the orders before the end of the Bill”.
I support Amendment No. 94, which of course I would, given the examples already set out by the noble Viscount, Lord Colville. I will not waste the time of the Committee by trying to articulate the arguments again, but we hear again and again that there is so little on the face of the Bill; it would be a great comfort to have something. This is a perfect example of the issue. Let us have the provisions in the Bill so that we can debate them both in this House and the other place.
Statutory instruments are becoming the enemy of the people. It is quite worrying that the Government have got themselves into a position whereby they are afraid to put things into a Bill. That is not the way this Minister works because it is not in his nature to do so, and that is why the Prime Minister brought him to this House. He can bring fresh air to these issues and say to the Government, “Don’t let’s be so afraid”. We do not need statutory instruments for everything and we do not need the very long meetings that go with them. Moreover, we cannot do anything about them once they have been passed. If I hear the words “appropriate” or “statutory instrument” one more time, I shall begin to think that the Bill is being conducted by the people sitting behind the Ministers rather than by the two noble Lords sitting on the Front Bench.
These are important amendments and I am grateful for the opportunity they provide for me to give what I hope will seem like assurances about the detailed operation of the scheme. We are sympathetic to the intentions behind all the amendments that have been spoken to. The noble Viscount has put his case robustly and extremely well. This is the first time I have ever been allowed to praise a judge or an ex-judge. Normally they did not praise me, but they were quite open to say things about me. The noble Viscount put his case extremely strongly. He and others will have read the guide which accompanies the Bill and I hope they find it useful.
We have made clear our intention to propose exemptions by statutory instrument to the requirement to contact the primary authority covering all the issues that have been raised. My officials worked very closely with representatives of the sector on the basis of the draft Bill over the summer to settle those cases where the primary authority scheme could get in the way of effective enforcement. Consultation revealed a number of distinct issues which the noble Viscount and the noble Baroness raised that needed to be dealt with. The guide lists these exhaustively but I shall refer only to a couple.
We have no intention of inhibiting officers from seizing evidence where there is a need to do so quickly if it would be crucial to a prosecution at a later stage. We have no intention of preventing emergency action to deal with imminent and serious risk to human health. We have no intention of stopping officers from taking sensible steps where there is a practical issue to be dealt with—a faulty alarm, for example, in the early hours—and where a cumbersome process of consultation would be against reason and in no one’s interests.
We have not sought to put these issues on the face of the Bill as we believe that that would be likely to undermine the effectiveness of the scheme. Clause 26 allows for an order which would exclude certain categories of action all together from the definition of enforcement action. It will address the issue of routine exchanges and informal advice. Clause 27 enables an order to specify enforcement actions which should be allowed to proceed without the requirement to notify the primary authority beforehand.
Three main considerations have led us to take this approach to these exemptions. First, many of the terms involved in catching such actions can be subjective—“regulations that are local in character”; “insignificant burdens for the business”; “financial interests of consumers”. These may require substantial, detailed, technical explanation of a kind that is not suitable for primary legislation if they are not to create significant loopholes that enforcing authorities and businesses may be able to exploit.
Secondly, the legislation underlying the regulations is very diverse in character and scope. Exemptions will be detailed and are likely to need detailed and tailored treatment of the kind that an order allows for better than legislation. Finally, while we believe the list of exemptions in the guide is comprehensive, issues may arise in particular regulatory areas and the orders will, by their very nature, have more flexibility at a later date. It will be critical to the success of the scheme to ensure these exemptions are in place before the first primary authority partnership is registered. I can assure the Committee that those orders will be laid in good time. We will consult on them as they are drawn up.
The principle behind the noble Viscount’s amendment, which would still allow for some exemptions to be made by order—an important factor—and specify some of the grounds on which it should be made, is sensible. He may or may not be surprised by my saying this but, in spite of his great drafting experience over many years, the precise wording will need to be considered and therefore I hope he will understand if we need to take the matter away. Without making any promises at all—the noble Viscount has heard that phrase before—I invite the noble Baroness to withdraw her amendment and the noble Viscount not to press his so that we can return to the matter on Report. We want to give more thought to this matter. The speeches that we have heard today have strengthened us in the view that we will need to consider the issue more carefully before rushing into something that may have weaknesses.
The noble Viscount asked about the need to consult on all the exemptions, which were all suggested through the consultation process. Of course, we will consult fully on the draft order with enforcers and consumers, who are an important part of this issue. I hope that noble Lords who have spoken in the debate will be pleased that we are to take the matter away for consideration.
Perhaps the noble Baroness will forgive me if I say one word by way of thanks. I have no particular pride in my drafting; I simply put down some issues to raise the point and see what happened. The noble Lord has been very generous in saying that he will take away and consider the matter, but I urge him to put in as many provisions as he can, properly drafted, and, if necessary, to leave the rest to be added by further statutory instrument. That is not an uncommon system for dealing with things and at least everyone will know to some extent what will not have to be consulted on.
I say that at this stage only because I think that when the Bill comes back on Report I shall be engaged in other parliamentary business, which will make it impossible for me to attend the debates on this Bill. Therefore, I am reliant on what the noble Lord, Lord Bach, has said and I very much look forward to the result of his further consideration.
I very much regret that the noble Viscount may not be present on Report but I hope that the words I have chosen will be remembered. I repeat that I make no promises of any kind. However, I know that the noble Viscount has allies on this issue in the Committee and that will no doubt be the case on Report.
I, too, am grateful. I am reassured by the noble Lord’s example of an alarm ringing night or day. The neighbour of one my friends was on one occasion found up a ladder taking a hammer to an alarm and saying, “I know this is illegal”. He was a High Court judge. It would be nice to know whether he would be allowed to do that.
This is an important issue, and I take the noble Viscount’s point that it will be extremely helpful to address as much as we can in primary legislation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 93A and 94 not moved.]
Clause 27 agreed to.
[Amendment No. 95 not moved.]
Clause 28 [Inspection plans]:
96: Clause 28, page 12, line 34, at end insert “LBRO or”
The noble Baroness said: I shall speak to the whole group of amendments, the first and last of which are mine. Amendment No. 96 refers to Clause 28(5), which states that,
“the primary authority must take into account any relevant recommendations relating to inspections which are published by any person (other than a local authority) pursuant to a regulatory function”.
My amendment seeks to insert the word “LBRO” to probe whether it has a regulatory function. I do not think that that is defined and it is thus excluded from subsection (5).
Amendment No. 98 is another amendment suggested by LACORS. It would insert a new clause providing for a compliance plan to broaden the scope of the suggested inspection plans. The promoters of the amendment feel that the clause as drafted has limited value in helping local authorities effectively to co-ordinate and target their enforcement activities because planned inspections, which are focused on here, form only a small part of the regulatory work that they carry out. The amendment would allow for the publication of information which was of more use to councils and would enable the regulated person to get information to all councils about their safeguard systems and, indeed, planned improvements to their operations.
According to LACORS, the clause as drafted fetters the ability of authorities to be able to respond at the local level to local issues and it adds a level of bureaucracy with no ultimate impact. I beg to move.
I rise to speak to Amendments Nos. 97 and 98. The purpose of these probing amendments is to cater for a situation in which what I might call a rogue authority disregards an inspection plan which is properly set up by a primary authority and registered with the LBRO. Clause 28 deals with one of the key functions of the primary authority, which is to agree a plan of inspections with the business. The plan will reflect the nature of the business, a careful assessment of the risks, an understanding by the primary authority of the due diligence and other company procedures, and its overall assessment of the business. The inspection plan is then to be registered with the LBRO.
The objective is to overcome problems that have been identified with local enforcing authorities ignoring agreements made with home and lead authorities and insisting on local arrangements that are unique to their area, without any specific justification. If businesses and primary authorities are to go to the expense of drawing up agreed inspection plans, it is not reasonable for local enforcing authorities to be able to disregard those plans without having to justify that to the primary authority and the LBRO and those bodies being able to overrule the enforcing authority. As the Bill stands, the enforcing authority merely has to advise the primary authority under Clause 28(8) and (9), and that seems to be the end of the matter. One would hope that that would never happen but, if it did, I cannot see how the primary authority concept would survive without amendment along these lines.
If the amendments proposed by the noble Lord, Lord De Mauley, are accepted, in effect an enforcing authority will have to get the consent of the primary authority before carrying out any inspection which falls outside the scope of the inspection plan, although there is what might loosely be called some sort of appeal to the LBRO. The outcome of the amendments would be an additional burden on primary authorities, which would have to deal with requests from enforcing authorities to inspect outside the scope of the inspection plans, and they would impose an additional restriction on the autonomy of enforcing authorities to respond to local concerns.
Noble Lords—certainly those on the Liberal Democrat Benches—have recognised that on many of the matters we have discussed it is a question of balance: local autonomy versus central agency and so on. The noble Lord said that under the Bill as it stands the enforcement authority does not have to justify itself. However, it does have to justify itself because it has to inform the primary authority if it wants to go against the inspection plan and it has to give reasons. That is set out in Clause 28(9), which states that a notification has to be made and that it,
“must include reasons for exercising the function otherwise than in accordance with the plan”.
As the noble Lord, Lord de Mauley, quite rightly said, any scope to enforce the view of the primary authority is missing. What is in the Bill is sufficient and, because justification has to be given, there is no need for the amendment.
I am sympathetic to the intentions behind Amendments Nos. 97 and 98. The noble Baroness, Lady Wilcox, was kind enough to say that one of the reasons I came into government was to try to sort out some of this regulatory nightmare, and I have taken a personal interest in Amendments Nos. 96, 97, 98 and 98A.
I have always compared regulatory environments and, indeed, the implementation of regulations. In countries such as France, there seems to be more regulation on the books than in Britain and yet, somehow, businesses seem to operate in a far more laissez-faire way. In the past, those implementing regulation in Britain have put themselves up in opposition to those who operate business. I disagree with the noble Lord in that I do not think regulation is there just to protect the public; it is also there to protect law-abiding businesses. I often see officials here implementing regulation in opposition to business, whereas on the Continent they often seem to work in the same groove, going the same way, and they see themselves as partners. In one way, Clause 28 will play an essential role in encouraging a much more co-ordinated and strategic approach, especially in relation to multi-site businesses, and implementing their problems at a local level.
Businesses rightly resent the time and cost involved in unjustifiable and meaningless inspections. One of the Hampton principles is that there should be no inspection without a reason. That has been put on a statutory footing with the recent publication of the statutory regulator’s compliance code. It will save time and money for local authorities and businesses alike. Once a primary authority and a business have developed and published an inspection plan and a notice that that inspection plan will be developed together—working in the same groove for once—then other local authorities will be required, first, to have regard to the plan when carrying out an inspection of the business concerned; secondly, to notify the primary authority when they depart from the plan—this is important because a multi-site business headquarters and a primary authority may have settled something and then another local authority somewhere else may wish to depart from it because it has always done it its own way and no one else understands its issues—and, thirdly, to give reasons for doing so in their notification. That will ensure that inspections are not undertaken lightly and without due consideration having been given to the inspection plan which has been agreed.
Inspections can be triggered by a wide range of factors, including a complaint that needs to be followed up quickly or a recurring problem with management in a particular outlet of a multi-site business. An inspection plan agreed with a primary authority cannot take account of all these factors—who knows which ones will apply?—and, if the inspection authority had to seek the consent of the primary authority before undertaking an inspection, especially if one was needed urgently, the result would be a deluge of notifications to the primary authority, bogging down the system on a large scale and preventing quick inspections when these needed to take place. You would get very swift disengagement and the whole system would not work.
To avoid that outcome, primary authorities would be likely never, or very rarely, to contest proposed inspections and would draw up meaningless low-level, low-hurdle inspection plans. It is likely that any agreed plan would be extremely general and so hedged with caveats as to be practically meaningless. That would help no one—certainly not local authorities and least of all business and, by implication, members of the public, whom, in part, these regulations are there to protect. Clause 28 seeks to allow for the preparation of robust and meaningful inspection plans.
Businesses will rightly expect that, having gone to the trouble of drawing up an inspection plan with their primary authority partner, they should not be subject to arbitrary inspections on spurious grounds. I was considering this very recently and came to the conclusion that the biggest problem would be where a primary authority was faced with a notification from the inspecting authority after the event. That notification, while factually accurate, would be of no benefit to this system and would cause problems to the business. It strikes me that a more effective approach would be to require notification, not consent, because with consent the primary authority would have to invest a great deal of money, time, effort, people and, therefore, delay in doing it all beforehand. As is so often the case, for there to be credibility in the system, things have to be done quickly. Notification before the inspection took place would mean that many inspecting authorities would have to consider whether it was necessary and whether it was going along the lines of what we all intend. At the end of the day, I would hope to get rid of that old bête noir of, “Well, we do it this way because we have always done it this way”.
I encourage the noble Lord and the noble Baroness not to press this amendment because I should like to consider the matter further and return to it on Report.
I move on to Amendments Nos. 96 and 98A. Clause 28 has also been deliberately drafted to minimise the likelihood of an inspection plan contradicting any recommendations made by a national regulator or the LBRO regarding inspections. Subsection (5) requires a primary authority to,
“take into account any relevant recommendations relating to inspections which are published by any person (other than a local authority)”.
I can confirm that “any person” captures both national regulators and the LBRO. Therefore, although I understand the intention behind Amendment No. 96, I do not believe that it is necessary. The protection that is needed is already there.
I am grateful to the noble Baroness for tabling Amendment No. 98A and for allowing me an opportunity to clarify what the Government expect regarding the content of inspection plans. Clause 28(3) lists examples of what can be included in an inspection plan as,
“the frequency at which, or circumstances in which, inspections should be carried out”,
“what an inspection should consist of”.
This list is not exhaustive and the Government expect inspection plans to include recommendations and information on a wide range of issues relating to a business with which a primary authority has a partnership. The most important thing here is that that inspection plan will have been developed in partnership between the primary authority and the business. At last, we will have a situation where the business cannot complain afterwards if it has had “skin in the game” on the inception of the plan.
The guide to the Bill lists some examples of the content of these inspection plans, including details of improvements that a business undertakes to improve its health and safety procedures. There, the inspection will presumably be about how those improvements are coming along—whether people are doing what they said they would do. The inspection would be specifically relevant and not just general. The guide also includes details of ongoing problems relating to compliance to which other local authorities should pay particular regard. From my experience, an example would be where one store was having a problem, perhaps through bad management, when other stores in the same group were “doing fine, thank you”.
I believe that all the issues included in Amendment No. 98A can be addressed in an inspection plan under Clause 28. It is certainly the Government’s intention that that should be the case. However, the amendment would also remove the key requirement that local authorities should have regard to a registered inspection plan and notify the primary authority when departing from it. As I said, giving notification beforehand does not mean that consent is being sought but at least it means that one is forced to write down the reasons.
The Government expect inspection plans to help to reduce unnecessary inspections of businesses and to facilitate knowledge-sharing between the primary authorities and the enforcers. Achieving those aims rests on an enforcing authority having regard to an inspection plan and informing the primary authority of its reasons for departing from it. Amendment No. 98A would remove that requirement and significantly undermine the effectiveness of having an approved inspection plan. It would undermine the fact that business can at last work in a groove to ensure that primary authorities, enforcers and business form a partnership to make regulatory compliance productive and not destroy value. Therefore, I hope that Amendment No. 98A, alongside Amendments Nos. 97 and 98, will not be pressed and that Amendment No. 96 will be withdrawn.
I thank the Minister for his helpful response, particularly on Amendments Nos. 97 and 98. I said that they were probing amendments. I very much take the point made by the noble Lord, Lord Borrie, that there needs to be a balance between all the parties involved and, on that basis, I am very happy not to press my amendments.
My Amendment No. 96 was introduced as a probing amendment and I am grateful for the clarification. Anticipating the point that the Minister made on Amendment No. 98A in relation to what I think he described as the essential—certainly significant—provision regarding notification, LACORS says that it does not see that that adds value as the primary authority cannot stop another local authority acting outside the plan. In addition, a regulated person has a right to complain via a local authority’s complaints procedure, together with other, more extreme, steps. However, we will all consider what the Minister said in that connection and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 97 and 98 not moved.]
On Question, Whether Clause 28 shall stand part of the Bill?
I was much reassured by what the noble Lord, Lord Jones, said about this clause and the issues behind it. He placed great emphasis on what I might call the protection of businesses against arbitrary inspection by a town hall on spurious grounds. He ended, quite properly, on the subject of spurious grounds. That attitude may help to explain why he is not a member of the Labour Party, although he is a member of the Government—a point referred to earlier. However, I shall not press him on what he obviously regards as a very personal matter, judging by his response this afternoon.
I gave notice of my intention to oppose Clause 28 because I think that it could lead to a different set of difficulties. As has been made clear, its purpose is to ensure that inspection of different branches of the same business is conducted on the same basis. That will be very good for the business. That is the purpose of this whole part of the Bill, which concerns inspection.
However, in future, when this is all up and running, inspection will vary not between the different branches of the same business but between adjacent shops along the high street. More so nowadays than perhaps used to be the case, on the average high street quite a proportion will be the branches of multiple shops. Interspersed with them will be independent stores and local businesses with perhaps only one or two outlets, and other concerns such as education providers like McDonald’s, a company which now seems to have moved into that field. However, I am referring to franchisees. We had a little difficulty over franchisees the other day because it appears that they will be half involved in this and half not, depending on the detail of their business arrangements. I do not want to get involved in all that again.
Outlets belonging to the multiple chains will each be part of an inspection plan agreed with a local authority, and most probably a different one for each. Some local authorities may become primary authorities for large numbers of retail outlets, but others will only be the primary authority for an outlet where the headquarters of a concern happens to be located in its area. Many inspection plans will be agreed with different local authorities for the multiple shops; there will be partial inspection plans for the franchisees and the local authority—the secondary authority—will only be in complete charge of individual shops which do not have the advantage of an inspection plan. So the patchwork will be spread along the high street instead of across the branches of a large company.
I am concerned about how to protect smaller businesses within a single authority that are not grand enough to have an inspection plan. Such businesses might cut across several local authorities but would still not be of sufficient size to warrant a plan. How are they to be protected from the arbitrary power against which the noble Lord, Lord Jones, is going to protect those involved in inspection plans? It may be that an awkward local authority inspector will have to concentrate his efforts on small businesses, which worries me.
Certain other aspects of drawing up the inspection plans worry me because of my original qualification as a chartered accountant. I still am a chartered accountant, but now a rusty one because it is a long time since I was last actively involved in the profession. However, I started my professional life as an auditor. The idea that one’s audit plan is drawn up in consultation with the person being audited is not one that springs to mind. Of course you must talk to the person you are auditing, but the plan is the auditor’s plan or the inspector’s plan, and it must be followed. You need a measure of co-operation, but authority over how the plan is drawn up must not be given away. Given that, the extent of the consultation provided for in subsection (4) also worries me slightly.
Subsection (6) provides that the other local authorities which will make the inspections will only be told about it after it has all been agreed. Only after it has been signed up to by the primary authority, the LBRO and the company being inspected will the people actually doing the inspections be told. Here we go back to the difficulty that if all the secondary authorities have to be consulted, and in some cases that could amount to hundreds of organisations, it will be very difficult to reach any sort of agreement. As I say, it is not necessarily satisfactory that the bodies actually making the inspections are to be told only after everything has been settled.
These are my hesitations about Clause 28 and the way it is constructed generally. In some respects I am reassured by what the Minister said in answering the previous group of amendments. I am not arguing that there should be no replacement of Clause 28, but there are still difficulties and I would like to know the Government’s reflections on them.
I also have concerns about the way in which Clause 28 has been drafted. The Minister tried to reassure us in part in his response to the previous group of amendments. He gave us a halcyon picture of local authorities and businesses working closely together to create a wonderful set of inspection plans. The lion may lie down with the lamb, but I do not think it will be because of Clause 28. The problem here is cultural and historical and the solution will be by attitudinal change rather than legislative change. Trying to bring that about with the prescriptive provisions in Clause 28 carries with it many dangers, some of which my noble friend has mentioned.
This kind of government approach is usually breached rather than observed. The boxes are ticked, the procedure is gone through and no one changes their mind. It becomes a matter of, “We have fulfilled what we have got to do. We have been told to do it and it has been done”. There is no spirit attached to it and it will take a different approach to achieve that spirit. Whether life in France is quite as good as the Minister makes out, I do not know, but we need to find a way of altering behaviour patterns. I doubt whether this legislation will do it.
I am sorry that the noble Lord, Lord Desai, is not in his place. He is keen on reducing words—he keeps telling us that we have to cut back the Bill—and when he spoke in an earlier debate he said:
“The more I listen to this debate, the more astonished I am at how local authorities carry on. Noble Lords opposite are business-like, and it is business-like to use as few words as possible, to get on with the job and to do it well”.—[Official Report, 21/1/08; col. GC 41.]
That is why I am unhappy about Clause 28.
I address my first remarks to the reference that the noble Lord, Lord Cope of Berkeley, made to McDonald’s. I am aware that this is on the record and I want it to be. In my previous existence, after the CBI, one of my jobs was as the United Kingdom’s skills envoy. Train to Gain, which involves the essence of getting young people an entry into the labour market, getting them to read, write and count, getting them to learn the ethic of turning up to work on time—or turning up to work at all, frankly—is hugely important. Getting the private sector to be the delivery agent for that is a big task and McDonald’s is a leader in it. It was one of the first organisations to sign up to Train to Gain and has worked with its young people to get them up the skills ladder. I like the sense of humour but I would not want this opportunity to pass without saying that McDonald’s is a company which takes its social responsibilities very seriously.
I did not wish to cast any aspersions on McDonald’s. On the contrary, I, too, congratulate the company on its training schemes over the years—although I have not had much to do with them—and on its project, which my grandchildren like very much indeed.
I shall address the two points raised by the noble Lord, Lord Cope. The first was about the “patchwork” concept on the high street, which I thought he put extremely clearly. I developed a picture in my mind of exactly what he was trying to get at. Yes, the patchwork has changed; instead of it being across multi-site businesses, we are now going to have a different approach, perhaps in one locale. It does not necessarily follow, however, that the single-site small shop will get a bad deal. It might be that the inspecting authority is inspecting only the one shop and is not part of any inspection plan. If good or bad deals are to be had—and I doubt that we will get that much movement from consistency, but if we did—it does not necessarily follow that small businesses would get a poor rub of the green.
The other point I want to address, which one or two Members have raised, is that it is important that we take the hostility out of the implementation of regulation. The media, local authorities, politicians, and indeed so many vested interests in this country start from the view that business is “at it”; that it is wrong, it is in the bad box, it is on the naughty step, and for some reason we have to be here as saviours of the nation. It is important that we get business into the whole regulatory formulation framework. That is what this is about. I am reminded of when I was at the CBI and I went to see a business in Yorkshire. They said that the day before they had had an inspection officer from a certain government agency, a young lady sitting in reception who said, “I’m behind on my targets this month—I’m going to do you today”. And her department duly did. I said that I would take up the matter, and the businessman said, “Don’t do that, please, because she’d be back next week and she’d do it again”. We are trying to achieve an end to that. It destroys value and productivity. The implementation of regulation as opposed to regulation itself is something that France and Germany do better than us.
Clause 28 makes provision for a primary authority to draw up an inspection plan containing recommendations for how other local authorities should inspect a business for which it is the primary authority. That is intended to bring greater consistency; co-ordination for the first time of regulatory enforcement for businesses that adopt a primary authority scheme and, I hope, greater compliance with the recommendations given by the primary authority in its role. Where a primary authority has made a plan and the LBRO consents to it, the primary authority will be required to bring it to the notice of other local authorities. We hope that we will develop consistency in that way.
On the point made by the noble Lord, Lord Hodgson, about whether legislation is the way to go because what we need is attitudinal change, I completely agree with him. We need cultural and attitudinal change. However, as long as I have been in business, which is nearly 30 years, I have seen many people talk about needing such a change but I have rarely seen people come up with ideas that work. This is constructive and trying to achieve something. At least this is trying to take us down the right path. Perhaps for once we will see legislation leading our social mores rather than the other way around.
I hope that this system will support the sharing of strategic information between authorities, and that it effectively means a lighter touch by local authorities across the country in areas where businesses are known to be compliant. I said earlier that regulation is there to protect business as much as the public, because it is there to protect the businesses that behave themselves and are good businesses against those that are not. I hope it will bring better information sharing about the real regulatory issues that need to be dealt with.
Inspection plans will play an essential role in all this. It will encourage a more co-ordinated and strategic approach to regulating multi-site businesses at a local level. I move that Clause 28 stands part of the Bill, and I commend it to the Committee on the basis that at last something positive is going on to effect that attitudinal and cultural change that is, at the end of the day, the only solution.
Clause 28 agreed to.
[Amendment No. 98A not moved.]
Clause 29 [Power to charge]:
99: Clause 29, page 13, line 9, after “may” insert “following consultation with LBRO”
The noble Baroness said: I shall speak also to Amendment No. 100A. Amendment No. 100 has been withdrawn: I apologise for it having been tabled in the wrong place. The amendments relate to fees. The first would require the primary authority to consult the LBRO before charging. I can see that having to consult on a case by case basis would not be reasonable. The second would allow the LBRO to give advice to a primary authority about fees. Under Clause 31(2), it can give guidance. I do not know whether we should regard “guidance” as being advice or a direction. The amendment is probably covered by that subsection, but I do not know whether Amendment No. 99 is. If the LBRO has not given guidance about fees, will the Minister confirm that the primary authority can proceed without consulting it? I beg to move.
The inclusion of a charging clause in the Bill has been welcomed by local authorities. Some stakeholders have asked for further clarification of the clause. It is quite simple: all the costs incurred by a local authority, given its responsibilities under Part 2, may be recovered from the business partner. We recognise, however, that local authorities are likely to want more clarity about the operation of the scheme in practice, and that they will need support in interpreting their responsibilities and how to charge for them in practice. A specific requirement for them to seek advice from the LBRO on the approach that they should follow, as is proposed, is unnecessary. The Bill creates a provision for the LBRO to give guidance on the matter at Clause 31(2)(c). Guidance will tackle many of the issues associated with charging in practice, and local authorities must have regard to it when charging. Local authorities may also consult the LBRO, but the guidance clause takes away the need for any specific requirement for them to do so. I hope that that clarifies the position and will allow the noble Baroness to withdraw her amendment.
Leaving out the clause would avoid the situation where a business that has in good faith paid all its taxes and rates, which are supposed to cover the cost of regulatory supervision, is forced to pay a second time for the same thing. While a business may benefit from the appointment of a primary authority, it must be recognised that the role of the primary authority as outlined in the Bill is weaker than that of the home or lead authority service, which is already provided at no cost. Co-ordination systems such as this save local authorities across the country considerable sums by relieving them of the need to agree local inspection plans and to provide advice and guidance to multi-site businesses locally. One might reasonably ask how and why home and lead authorities have been able to perform this function until now for no charge. The answer, I suspect, is that the benefits are two-way for business and local government. That is why local authorities have been prepared to engage in the current voluntary schemes. It would be unfortunate if business concluded that the cost of paying a supplementary amount for these services outweighed the benefits of continuing with these arrangements.
I, too, am concerned about this clause. The noble Lord, Lord Jones, described the emergence of new attitudes and new approaches, but I can think of few things that are more likely to cause the hardening of attitudes than the stark nature of the statements in Clause 29; for example, the power to,
“charge the regulated person such fees as [the primary authority] considers to represent the costs reasonably incurred”.
There is no provision for appeal or for being able to challenge that.
I accept entirely what the noble Lord said. His speech in response to the earlier stand part debate was encouraging to a major degree and a very welcome, different approach from what we have heard in the past. I think that he should look at finding a way to reassure the regulated person—whoever that may be—that the fees charged are reasonable and are not dreamt up in a way that may be seen to be unreasonable and unnecessary. Of course, the large companies will be able to make a fuss but, once again, it will be the smaller companies that find it is not worth proceeding because of the effort, administrative cost and regulatory burden involved. I am with the Minister all the way with regard to attitudinal change but this is where we could ensure that the underlying attitudinal change was reinforced.
The merits of the primary authority scheme are that it will be in the public interest and in the interests of business, as we discussed on a number of occasions today and last week. If we want the system to be a success, the primary authority must be adequately resourced.
There is no doubt that, if we came back to this discussion in two or three years’ time, we would find that some authorities, still called “local authorities”, would have the tremendous burden of having to find resources to carry out their primary authority functions whereas others would not. The county of Hertfordshire happens to have a large number of company headquarters, and there are a number of other reasons why it should be the chosen business partner of many major companies which operate across several local authority boundaries. No doubt there are other such examples and other local authorities which would hardly ever be primary authorities for one reason or another. In two or three years’ time, we will see nothing other than a patchwork quilt involving a great variety of burdensome responsibilities and less burdensome responsibilities on local authorities. To enable the primary authority adequately to resource its new responsibilities as a primary authority and to enable it to continue to do its normal job in this field and others, there is a need for it to be able to charge as the Bill proposes.
There is nothing terribly new or novel about local authorities being able to charge for the services they provide. In an earlier discussion, we talked about authorities being nominated to be primary authorities, either by way of agreement or, contrary to the views of some in this Committee, possibly through nomination by the LBRO because the business has not been able to find a local authority partner. If there is no ability to charge, as provided for under Clause 29, then many local authorities will be much less willing to take on the responsibilities which we—if we agree with the main principle of this part of the Bill—want for all sorts of perfectly good reasons. Worse still, it may be that a local authority would take on the role and then not fulfil the requirements of the job as well as it should. Primary authorities must be adequately resourced.
I am aware that they have been able to do that, but I do not think that it has been very satisfactory. Some of them—I mentioned one example earlier—grumble that there is a particular burden on them which neighbouring authorities do not bear. That could not go on indefinitely, but it was a voluntary scheme and there was no other way of doing it.
I am extremely grateful to my noble friend because he is right. Indeed, I am tempted to ask the noble Lord, Lord De Mauley, whether he is really suggesting that it is wrong to ask local businesses to charge, or whether he is not going quite that far—it would be a long way—and is asking only how local businesses will pay. If he is really against this charging structure, what does he have in mind to put in its place? It is a legitimate question and I put it to the noble Lord. As I understand it, some businesses currently pay for home and lead partnerships.
In agreeing to be a primary authority, a local authority is agreeing to take on a host of new functions and responsibilities for the benefit of a specific company. Carrying out these functions effectively may be costly, and in their responses to the consultation on the Bill, many local authorities expressed concern that they would not have sufficient resources to enable them to carry out the role of a primary authority effectively. The provisions in Clause 29 address these concerns by allowing a local authority to recover the costs it incurs when carrying out its functions as a primary authority. Moreover, regardless of that provision, it is likely that local authorities that volunteer to become primary authorities would have the right to charge under general local government legislation, a point made by my noble friend.
Clause 29 makes it absolutely clear that all local authorities may charge for their services as a primary authority if they wish to do so, regardless of whether they have volunteered or have been nominated by the LBRO. It is a carefully drafted clause to ensure that a local authority cannot derive any profit from its work as a primary authority. It may charge fees that represent only,
“the costs reasonably incurred by it in the exercise of its functions”.
Further, if it were completely unreasonable in its charges, for a start I do not think that the business would pay, but if it did, it would have a potential remedy—the noble Lord, Lord Hodgson, is looking at me carefully because I think he knows what is coming—in terms of judicial review. As a further safeguard, local authorities must have regard to any guidance issued by the LBRO under Clause 31 in relation to costs recovery. That particular safeguard is important.
In putting his case, the noble Lord, Lord De Mauley, argued that the provisions in Clause 29 amount to a kind of double taxation as businesses already pay for regulatory services through business rates. However, partnerships in the primary authority scheme will give multi-site businesses access to a range of services over and above those available to businesses in general. If a business has a primary authority, it will benefit, first, from the advice and guidance the authority can offer as the first point of contact on regulatory issues; secondly, it will have the right to a review of all significant enforcement action by the primary authority before such action is taken against it; and, thirdly, a right to refer proposed enforcement actions to the LBRO where it thinks that the actions are inconsistent with the advice it has been given. Not surprisingly, these benefits come at a cost. However, I do not believe it would be appropriate for these costs to be met through general rates on business, including those that do not enjoy access to the primary authority scheme, or charges on local council taxpayers.
At Second Reading the noble Baroness, Lady Wilcox, asked what might be done to ensure that the primary authority scheme does not divert valuable local authority resources away from small businesses. We argue that the inclusion of the power to charge will provide clarity and be an important safeguard for the interests of small businesses; for example, those that carry out their business in only one local authority area. Clause 29 will ensure that small businesses can confidently expect that where a local authority becomes a primary authority, it will not divert resources away from the advice and support that they are entitled to look to their local authority to provide.
I am delighted to say that Clause 29 has been welcomed by small business representatives for just that reason. Representatives of some of the bigger, multi-site businesses have put it to us that charging would not be unwelcome so long as the scheme delivers the real consistency that they need. There is, of course, a cost to the inconsistency that has taken place until now.
That is the argument on the other side. Unless there is a serious alternative to this system—I look forward to hearing about it if there is—I invite the noble Lord to withdraw his opposition to the clause. I hope he will feel satisfied with my explanation of why we have taken the course we have.
I am grateful to the Minister for his response. I would make the point that while some local authorities will incur additional cost as a result of this system, others will presumably save because they will not have to repeat the work all across the country. The fact that there is not what I might call an equalisation procedure as between local authorities ought not really to be the problem of business. Having said that, I am attracted to the idea of the noble Lord, Lord Hodgson, of a right of appeal. I will read the Minister’s words carefully and, on the understanding that we can come back to this, I shall withdraw my opposition to the clause.
Clause 29 agreed to.
Clause 30 [LBRO support]:
[Amendment No. 100A not moved.]
Clause 30 agreed to.
[Amendments Nos. 101 and 101A not moved.]
Clause 31 [LBRO guidance]:
[Amendment No. 102 not moved.]
Clause 31 agreed to.
[Amendment No. 103 not moved.]
Clauses 32 and 33 agreed to.
103A: After Clause 33, insert the following new Clause—
“PART 2APowers of entryInterpretation of Part 2A
In this Part—
“authorised person” means a person authorised by the Minister responsible for the enforcement of an Act or instrument containing powers, and
“powers” means the powers listed in section (Powers regulated by this Part)”
The noble Lord said: I apologise to the Committee that one-third of the pages of amendments are related to my own. I apologise, too, that I have not been able to be here throughout but, for the first time in my life, I am meant to be divided between human embryology and something more practical like this.
The Committee may like to know some of the background to this. I have provided a brief which goes back to one year before the noble Lord, Lord Jones of Birmingham, went into business—1975. The concern at that time was related to “powers of entry”, as we called it then. I intend to speak to Amendments Nos. 103A to 103K, 109A, 109B, 192A and 192B.
I draw the Committee’s attention in particular to Amendment No. 103K, which states:
“Nothing in this Part shall apply to the powers exercised by police officers, members of the security or intelligence services or officers of HM Revenue and Customs”.
I do not need to rehearse all of this but if I had a chance of saying, “I wanted to go to Birmingham and I ended up at Crewe”, I really wanted to go to Crewe. In the research that we undertook we found that of all the powers of entry related to government, no government department knew what its powers of entry, search or seizure were. I therefore introduced a Private Member’s Bill in 2006 which was tabled simply in order to list those powers of entry that existed. The noble Lord, Lord Bach, was the only Minister at that time who gave a proper answer; he said, “Refer to the Library and to the research on the powers of entry written by Professor Stone, which I had put in the Library myself.
I have tried over time with numerous Parliamentary Questions, at considerable cost, to get government departments to advise what powers they have under which legislation. The problem, as usual, particularly in a leap year, is that you have a moveable feast. As Governments change departments, departments within departments and departmental names, no one has a clue what their powers are. The noble Lord, Lord Jones, will probably remember in some of the earlier days—although I think it was before he was there—we consulted the Committee on Invisible Exports, the CBI ad nauseam, every chamber of commerce in the country and all the local authorities to see what their concern was. It was simply this: that there were an enormous number of people who had the power to go into other people’s houses without permission or a court order. Recently, the Committee may be aware, the Prime Minister made a statement on an appropriate day to the Independent that he was going to get someone to look at 250 powers of entry and see what could be done about it.
There is no point having a Private Member’s Bill that does not become law. Officials in this great Palace of Westminster and others suggested that my Bill should be grafted or tacked on to suitable government legislation. The various bodies pointed out that the Bill before us today was extraordinarily suitable government legislation because it dealt with local authority powers, as well as with a whole range of other things. One of the advisers to the noble Lord, Lord Jones, who is not here, might like to know that the McDonald’s “Hamburger University” has provided guidance in the past about food safety and matters of that sort.
The objective of my amendments is to introduce, to some extent, what was called the Powers of Entry etc. Bill in an appropriate place at an appropriate time. Having had a Second Reading and rather hoping that some people might get up and object, I found that no one objected; everyone I have consulted thinks it is a good idea that we should know what the powers of entry are.
I wanted to leave in the reference to Customs and Excise, but they have quickly merged with the Inland Revenue and you should not interfere with the powers of the Revenue. Some of the powers of the VAT men and others are outrageous. It all goes back, as Members will know, to the differential price of brandy during the Napoleonic wars. That has been superseded by the fact that every spirit produced in the United Kingdom is cheaper on the Continent than ever before, but it was the power of the VAT man that still worried people. Then we came to the question of the security and intelligence services. They, of course, must be left out.
In the Schedule we have 155 Acts that give people the power to go into other people’s houses without authority and without a court order. When these were all government departments and we had nationalised industries such as gas, no one minded, because in a way you trusted government officials. But as we privatise and sell things off, so the same powers are transferred to private sector enterprises; in many cases, foreign-owned. That does not mean that the people who seek to search and enter are foreigners, but our legislation in the United Kingdom gives greater freedom to search and enter than in any other country in the European Union. I am not fully advised on all this, but it is one of the worries.
The purpose of these amendments was, effectively, to take a concept and introduce it into government legislation, knowing that government officials and others would probably find a way to object, but knowing that the argument is absolutely flawless, because the first question is: surely it is right and proper that Ministers should know that the powers of entry are of officials in departments or institutions for which they are responsible. That is the principle behind all of this.
The amendments are simply to say, “Look, let’s have a code of conduct”. I would prefer a code of conduct to a code of practice, but in general you need a code that everyone is aware of. You need all the principles whereby people should identify themselves when they enter and if they take documents away, they should not lose them and should provide receipts. All of these are little details. So the purpose of my amendments was simply to introduce this activity into a Bill and to hope that the Government, who are sometimes logical and reasonable, will realise that there is nothing wrong about this—it is a cross-party matter. Should the Government wish to know how many more Acts or pieces of legislation were introduced by Conservative Governments that permitted powers of entry, often without clear thought, I can tell them—even those introduced by the Liberals in ancient times. Of course, this is very much a liberal Bill.
Therefore, the question is, if my Powers of Entry etc. Bill went ahead to Committee stage, it would then stand there—and what would I do with it next? I would probably introduce it next year or the year after, or maybe introduce it to my friendly officials in Brussels and make it law in another way. So the background to this is that I know that the noble Lord, Lord Bach, knows more about this than any other Minister. He is the noble Lord who gave the most satisfactory answers. I shall sit down and ask the Government please to consider whether they might accept these amendments, either in their present form or in amended form. I have plenty more amendments that I could table at an appropriate time, but the hour is late and I do not wish to disturb or distress anyone here. I beg to move.
Briefly, I support my noble friend who has done us a great service by raising this issue. Before he introduced his Bill in December last year, I had come across Mr Snook’s book, Crossing the Threshold, which is a chilling read, in the sense that not only are the actions described there very wide-ranging, but they are difficult to regulate and define. I do not want to repeat what my noble friend said, other than to express general support for his approach and to draw the Government’s attention to his Amendments Nos. 103H and 103J on the issue of information gateways. This will have some relevance to the operation of the LBRO, because Acts are being passed with increasing numbers of powers that permit the passing on of information, often of a highly confidential and personal nature, from one government department to another. That is not right.
The Government’s response to date has primarily been along the lines of, “If you’ve got nothing to hide, you’ve got nothing to fear”. That has been the oldest argument for every bit of illiberal and restrictive legislation since time immemorial. In a lot of cases, though, having been gathered by one government department on certain grounds, information is passed to another government department without the person it concerns knowing what is going on. We came across this issue in the Companies Bill, now the Companies Act. That now permits the Takeover Panel to pass information to overseas bodies carrying out similar tasks. There is no restriction on what they do with that information after they have got it.
I hope that when the Minister replies to my noble friend, he will address this issue of information that the LBRO may pick up, which may be important to a business, and ensure that it cannot be passed on and, most importantly, that it is treated in proper confidence. I am not sure that that is tackled anywhere in the Bill, but it is an important subset of the points made by my noble friend. I thoroughly support his strategic point.
I rise briefly to support my noble friend, who has done us a great service by working in such detail on a long-forgotten subject. It happens that the Select Committee on the Constitution is now making a study of the surveillance society. While this is not exactly the surveillance society, it is not very far from it. My noble friend said that this is not a party political issue because all parties have passed Bills which allow people to enter premises. However, it is highly desirable that some order is brought to the matter. Any help that the Minister can give in steering this provision to that desirable conclusion would be genuinely welcomed.
We on these Benches support the amendments tabled by my noble friend Lord Selsdon to include in this Bill the provisions of his Private Member’s Bill, the Powers of Entry etc. Bill 2007. When she spoke at that Bill’s Second Reading, my noble friend Lady Hanham said that it was alarming that such a Bill had not been produced before, and that it had to come from a Member of the House rather than from the Government. The amendments before us bring together all the legislation under which various government departments can require or force entry to private or commercial premises. As my noble friend has said, these amendments testify to more than 100 Acts of Parliament which allow officials from various departments and agencies to demand entry to premises.
I particularly want to support Amendments Nos. 103H and 103J. My noble friend Lord Hodgson referred to the information gateway, and I agree with him that this is one of those wonderful new things that is creeping insidiously into our daily lives. Too much information is being exchanged too easily. For that matter, too many regulatory bodies and, indeed, far too many Acts of Parliament provide powers of entry. The dangerous consequence of all this is that in the muddle and complexity of it, holding the Government to account becomes far more difficult, so transgressions that affect business, the consumer and the regulator alike can occur.
We are grateful to the noble Lord, Lord Selsdon, for his initiative in tabling these amendments at a time when his Private Member’s Bill has successfully completed its Second Reading in this House and is awaiting its consideration in Committee. He was kind enough to say that my reply to him some time ago was the only satisfactory response he has had. I think that it owed more to my department then than it did to me personally, and I have to refute what he says about my knowing more about this subject than any other Minister. It is a nice thought, but I do not think that I am in that position.
I believe that on the 23rd of this month the noble Lord met with my noble friend Lord West of Spithead, the Parliamentary Under-Secretary of State at the Home Office, to discuss the Government’s programme of work on the issues dealt with in his Bill on powers of entry, and that that relates to the substance of the amendments before the Committee today. I am able to confirm and put on the record that the Home Office is engaged in conducting a full review of all powers of entry for the police and for non-police agencies. As the noble Lord mentioned, this was announced by the Prime Minister in a speech made on 29 October last year.
The review is looking at three distinct elements: first, an examination of all the existing powers, how they are operated and by whom, and what are the associated safeguards and protections; and secondly, an assessment of the continuing need for the powers, and whether the powers provided in individual statutes remain not just necessary, but proportionate too.
The final stage will consider what individual powers should remain on the statute book and, importantly, provide an options paper for public consultation on the future legislative requirements for consolidating all powers of entry; and how we can raise public understanding; and awareness and avenues of redress. I think that the noble Lord and the Committee will agree that that is a fairly comprehensive review.
I know that the noble Lord has indicated his willingness to share his knowledge of these matters in this area; we are very grateful to him for that. I confirm that this is absolutely a non-party issue and one where it is important to get it right. His positive approach is much appreciated. I hope that he will acknowledge that the programme of work that I have outlined pretty briefly tonight is planned to result in a public consultation paper in the autumn. The programme of work itself is significantly beyond the proposals in his amendment, well drafted though it obviously is. I ask the noble Lord to withdraw his amendment today. He has made his point extremely clearly to the Committee today and on the record in Hansard; I know that he made it very effectively to my noble friend Lord West when he met him the other day. There is obviously still much work to be done here by the Home Office. If he is going to tell me that that work must not be allowed to continue endlessly without action, I agree.
The noble Lord, Lord Hodgson, talked about the information gateway. It is my fault, but that took me slightly by surprise. Let me say what I can on that issue. The exchange of information, as he and the noble Baroness will know, is governed by the Data Protection Act. Arrangements for the exchange and use of information are set out in statute and working protocols agreed by the Information Commissioner. In the context of the Bill, those arrangements apply to the LBRO as to other areas of government.
Returning to the noble Lord, Lord Selsdon, I realise that my answer to him is not as full as it might be, but I hope that he will take away with him the knowledge that his amendments have some support in the Committee and that the Government are conscious of the need to put all this, eventually, after public consultation, on the future legislative bandwagon. In other words, I repeat: we will provide an option paper for public consultation on the future legislative requirements for consolidating all powers of entry. I cannot say when that will be, but his amendments today are another step on bringing that to the attention of both the public and Parliament, and I am grateful to him for that.
It says “05” on my brief; I am so sorry about that. I think that the oldest Act on my list is from 1874. I just wanted to get this on the record, because it shows how difficult it is for government. The Answer stated:
“A record of all powers of entry is not maintained centrally. In July 1983 the Prime Minister agreed that the Home Office, together with the then Scottish Home and Health Department and Northern Ireland Office should take responsibility for scrutinising proposals to create or re-enact powers of entry their home jurisdiction. Any new proposed power of entry is required to be submitted to the respective home department for consideration. Appendix A to the Guide to Legislative Procedure published by the Cabinet Office in June 2001 sets out the criteria for scrutiny of powers of entry. That guidance applies to both public and private legislation for which departments are responsible, including subordinate legislation. In England and Wales, those exercising a power of entry must have regard to Code of Practice B issued under the Police and Criminal Evidence Act 1984 in addition to any requirements set out in the primary legislation granting the power.—[Official Report; 23/11/05; col. WA 219.]
The Minister said that everything will be done by November. Would it not be a good idea to have legislation in the Queen’s Speech? As nowadays that is normally written in July, we will have two or three months to get things together. I confirm, as I have said to the noble Lord, Lord West, that I and everyone with whom I am associated will help in any way. Much of this information originated from the Committee of London Clearing Banks, when every clearing bank had approximately 3,000 branches in the United Kingdom. We all consulted together at a time when only 30 per cent of people had bank accounts.
The point that the noble Lord, Lord Hodgson, made about people’s fear over the transfer of their information to third parties is very real. While the suggestion that the Government are looking at the matter is right and proper, we should separate out the powers of the police, the security services and the Revenue and Customs and concentrate all the other powers. Every day people are entering other people’s houses without the necessary authorisation, as the noble Lord will know from press articles. It is a serious issue and I would be grateful if speedy action could be taken.
I shall withdraw all the amendments I have mentioned. I cannot remember which ones they are; they go all the way through the Marshalled List.
Amendment, by leave, withdrawn.
[Amendments Nos. 103B to 103K not moved.]
The Committee stands adjourned until Wednesday.
The Committee adjourned at 7.31 pm.