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Regulatory Reform Bill Hl

Volume 622: debated on Monday 19 February 2001

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3.49 p.m.

Read a third time.

Clause 1 [ Power by order to make provision reforming law which imposes burdens]:

moved Amendment No. 1:

Page 1, line 14, leave out ("its retention") and insert ("the re-enactment").

The noble and learned Lord said: My Lords, I am sure that the vast majority of noble Lords will recognise the amendment as virtually identical to Amendment No. 5 proposed on Report by the noble Lord, Lord Phillips of Sudbury. The noble Lord gave me notice that he would not be present in the Chamber today.

When I sought to respond to the amendment on Report, I got the wrong end of the stick completely. I undertook to consider it further. I did so, and found it well thought-out and sensible. It sought to place at the end of Clause 1(1)(b) the same word in principle as occurs elsewhere in the clause. It was a sensible drafting amendment.

The amendment that we propose differs from that tabled by the noble Lord, Lord Phillips of Sudbury, only in so far as it substitutes "the re-enactment" for "its retention", thus making clear that "re-enactment" refers to the provision, not to the "burden". After all, one cannot "re-enact" a burden, only the provision that gives rise to it. Inspired by the noble Lord, Lord Phillips of Sudbury, we proposed this amendment. I beg to move.

My Lords, in my noble friend's absence, I am grateful to the Minister. I am happy to support the amendment.

On Question, Amendment agreed to.

The noble Viscount said: My Lords, throughout our consideration of the Bill, we have referred to the wide-ranging, and in some circumstances ill defined, nature of its provisions. These are the very provisions that are designed to give Parliament comfort as regards the Bill's wide-ranging powers, which enable the parliamentary processes that we normally expect to apply to changes to primary legislation to be avoided by means of an order.

My amendment is simple. It seeks to remove paragraph (d) in subsection (1). The paragraph gives Ministers powers to bring forward orders under circumstances where they are aimed at,

"the removal of inconsistencies and anomalies".

If the provision in paragraph (d) were designed purely to get at tiny technical drafting errors, there could be some argument for its retention. However, that is not what the Bill states; it simply spells out "inconsistencies and anomalies". I would argue strongly that these terms are far too wide, allowing Ministers to bring forward orders to amend primary legislation and bypass the standards and procedures of this House and another place merely on the basis that the Minister believes that he has spotted an anomaly or an inconsistency.

"Inconsistent" must be a comparative term. "Inconsistent" with what? Inconsistent with other pieces of legislation? Inconsistent perhaps with provisions within the Act that is to be amended. The Bill is silent on the definition of the word.

"Anomaly" and "inconsistency" are reasonably close in meaning. But what does "anomaly" mean in law? There is no further definition within the Bill. Ministers could use the fact that they believed they had spotted an anomaly to bring forward orders to amend primary legislation which do not affect burdens. That would not happen under the provision in paragraphs (a), (b) and (c), which are all aimed at circumstances which the House knows and understands.

All noble Lords who participated in earlier debates on the Bill will clearly understand the aims of those paragraphs. They are designed to address circumstances where burdens should either be removed or where they should perhaps be transferred in the interest of making legislation clearer and better.

That is not the case with paragraph (d). "Anomaly" can mean almost anything one wants it to mean. There is no place for such a provision in a Bill which gives unprecedented powers to the executive, tipping the balance of power in favour of the executive and away from Parliament.

This House has itself been described as an "anomaly". We heard the noble and learned Lord, Lord Falconer, referring during the passage of what is now the Disqualifications Act to an "anomaly" which led to the bringing forward of that piece of legislation. Perhaps "inconsistency" would be a better term to describe the way in which the treatment of Commonwealth citizens was different from that of citizens of the Republic of Ireland.

The Minister furnished the House with a list of 51 examples of potential circumstances in which regulatory reform orders could be brought forward to the benefit of those who were regulating: bringing forward clearer legislation and all the other aims in which this House believes. But how many of those listed rely on the provision in paragraph (d),

"the removal of inconsistencies and anomalies";

and how many can be dealt with under the provision in paragraphs (a), (b) and (c)?

Unless it involves the removal, reduction or modification of a burden, there is no place within the Bill for giving Ministers catch-all, "get out of gaol free" powers to amend legislation whenever they feel like it. The Government argue that to become the subject of such an order legislation must be concerned with imposing burdens. But show me the piece of legislation that does not impose a burden on someone somewhere, even if that person is not the Minister. The burden must be on the Government to prove that there is a strong argument for using these unprecedented powers. That must depend on the removal or modification of serious burdens; the power should not be used merely where the Government identify some anomaly.

There are a number of anomalies within legislation. Some should be there, and some should not. We propose giving the Government the widest of powers to deal with what could be quite small problems. I suggest that the balance between protections given to Parliament and opportunities given to Ministers will not be met unless we remove paragraph (d). I beg to move.

My Lords, perhaps my noble friend will forgive my intervention. I shall not detain the House for long. When I first saw the amendment, I thought that my noble friend was being rather unkind to the Government, who were showing a becoming modesty and humility. It is not often that administrations come to Parliament and say that they admit the possibility that a Bill may contain a whole mass of inconsistencies and anomalies. I thought that the Government deserved a note of praise for that.

However, my noble friend has succeeded in causing me to have second thoughts. If the Government are admitting that Bills can be strewn with inconsistencies and anomalies they ought, first, to take an early opportunity humbly to express regret that that is so and to explain the inconsistencies that need to be removed, and then to remove them with at least some ceremony, not merely with a stroke of the pen saying, "We don't like this". On second thoughts, I agree with my noble friend that the Government are making their own lives a bit too easy instead of, as I thought originally, making a humble admission of the fact that they can be wrong, welcome though that is.

My Lords, I rise to speak in support of my noble friend Lord Goschen. I do so, not because I disagree with the purpose envisaged by the words "inconsistencies and anomalies", but because it seems to me that this is yet another example in the Bill of an attempt to adopt the same legislative approach to matters of a fundamentally different character.

Paragraphs (a), (b) and (c) of Clause 1(1) are concerned with burdens: their removal, their reduction, their introduction and their reintroduction. However, that does not apply to paragraph (d); it is concerned with inconsistencies and anomalies. Burdens are not mentioned, save that the legislation, which is to be the subject of a regulatory reform order (the purpose of which is to remove inconsistencies and anomalies), must be such as to impose burdens. That is all. There is not even any need for there to be a casual link between, on the one hand, the burdensome nature of the legislation and, on the other hand, the inconsistencies and anomalies. They should merely appear in the same legislation.

Legislation is rarely internally inconsistent. What is to happen if the burden is created by one Act, but the inconsistency by another Act that does not create a burden at all? I fear that I shall be told by the Minister that, of course, the Government will not use this procedure other than to strike down bad regulation, or regulation in need of reform where inconsistencies and anomalies are found. However, I have to say that that is not an acceptable answer for it is circular in its nature.

Paragraph (d) of Clause 1(1) has every appearance of being a provision that has been added to this clause, not because that is where it belongs but because that is the least inconvenient place to put it. So it seems that, yet again, if we are to have any sort of threshold test for the exercise of this wide-ranging ministerial power, we are to be driven back upon the elephant test. Indeed, I must express my concern that the power contained in the Bill is too widely drawn and too ill defined to provide adequate safeguards against abuse.

4 p.m.

My Lords, I support this amendment. I apologise to the Ministers on the Front Bench opposite because I promised both of them that I would not speak at all. Indeed, there did not seem much object in doing so. I was unaware that my noble friend Lord Goschen was going to table this amendment. I shall take very little time in what I have to say.

We are talking about a sort of indefinable catch-all phrase that really enhances the unprecedented powers of the executive. It is wholly without any form of judicial control. For the reasons that have bored your Lordships in the past, I am bound to support the amendment. If my noble friend divides the House, I shall support him in the Lobby.

My Lords, one of the odd elements of the speech of the noble Viscount, Lord Goschen, was the fact that twice in the early part of his remarks he said that this provision would enable the Minister responsible to deal with what he would call "inconsistencies" and "anomalies" just because they would be considered so to be, "in the opinion of the Minister". Noble Lords will recall that during certain stages of the Bill I drew attention to Clauses 3 and 5 where phrases like, "in the opinion of the Minister", or, "if it appears to the Minister", appear. We debated those matters and the Bill stands in its present form for very good reason; namely, that it should be dependent on the opinion of the Minister.

However, it seems to me that there must be some objective test applicable in the case of Clause 1 which does not leave the matter to a Minister's opinion. The clause states that a Minister may make an order for the purpose of reforming legislation which has the effect of imposing burdens, but that he must do so with a view to several following considerations—one being,
"the removal of inconsistencies and anomalies".
I am sure that the Conservative Party does not wish to go down as the party that favours inconsistencies and anomalies. I suggest that it may not be desirable just to remove anomalies and inconsistencies within one piece of legislation, but that—

My Lords, I am grateful to the noble Lord for giving way. He is quite right on the point regarding the opinion of the Minister. I do not dispute that for a moment. However, it does apply as regards tiny inconsistencies. Indeed, it is like the point raised by my noble friend Lord Ferrers on a previous occasion regarding "an" versus "a" hereditary Peer. This might, perhaps, be ideally suited for such an argument. It could, for example, be said to be inconsistent for football supporters to be banned from travelling overseas to watch their team play, but not rugby or cricket supporters. Those are the sort of circumstances where a Minister could say, "This is an anomaly and, therefore, I am bringing forward an order". It goes rather wider than the type of "micro, micro" issue, as the noble Lord, Lord Borrie, quite rightly pointed out in his remarks.

My Lords, my noble friend the Minister will correct me if I am wrong, but I believe that one of the purposes of the Bill was outlined on Second Reading as follows. When you have a whole range of primary or secondary legislation that has grown up over the years leaving a whole lot of inconsistencies and/or anomalies that necessitate the making of a regulatory reform order, that action may be justified simply because those inconsistencies cause confusion. That confusion among businessmen and other people, who are subjected to a range of regulations on a particular subject, calls for the removal of the difficulty by removing not just burdens but also inconsistencies. When those businessmen are legally advised, and so on, they are told, "Well, this regulation says this, but that somewhat later regulation says the opposite". It is almost impossible for a lawyer to tell which of the two is correct. Getting rid of anomalies and inconsistencies is surely wholly desirable. Given the fact that the noble Lord kindly agreed to my first point—namely, that it is not simply dependent on the view of the Minister—there must, objectively speaking, be an anomaly.

My Lords, I am surprised that, for someone as distinguished as he is, the noble Lord seems to be labouring under a misapprehension. I believe that the point that my noble friend is quite rightly putting to the House is not that inconsistencies and anomalies should remain on the statute book—none of us is opposed to the removal of inconsistencies and anomalies but—the question of the proper way to do this. There is a real danger under this legislation that matters that should not just be passed without any parliamentary scrutiny will be able to be so passed under the umbrella of the words, "inconsistencies and anomalies". This House must be jealous in that respect, remembering, as always, that there is no written constitution and no constitutional court to which we can appeal. Of course, there is judicial review, but that involves a whole lot of extra, elaborate apparatus and, indeed, imposes more burdens on individuals than applies to the present position without this innovation.

My Lords, I am not sure whether than was an intervention or a speech. However, if I take it as an intervention, there is a great deal of what the noble Lord, Lord Lawson, said with which I entirely agree. At several stages during the passage of this Bill both in Committee and on Report Ministers were asked to explain where the parameters are for a Bill which, on the face of it, looks very broad. Important statements have been made that it is not intended, for example, to use the Bill for controversial political matters. It is a Bill that is, in a sense, a very technical piece of legislation. However, it will greatly help in removing such difficulties experienced by businessmen and others who are subject, as we all know, to regulation of which they either disapprove or which they regard as overburdensome. Surely it is worth while to get rid of inconsistencies and anomalies. I give way.

My Lords, I am obliged. Does the noble Lord accept that that is wholly beside the point? The intentions of government are not a way in which one approaches a Bill. The undertakings of government as to how to use precision are totally immaterial. We have to look at what use might be made of the provision, not by this Government but by any government. Does not the noble Lord accept that?

My Lords, I accept a great deal of what the noble Lord has said. But I hope that he also accepts that many statements made by Ministers in the course of discussion on a Bill, and many questions asked by the Opposition so as to obtain such statements, are made for so-called "Pepper v Hart" purposes in order to pin down the Government as regards stating what a particular clause means.

My Lords, the noble Lord does not seem to accept that Pepper v Hart has nothing to do with this; we are concerned with what may happen under any government.

My Lords, I suppose to a limited extent this debate is my fault. What now appears to be an important constitutional principle—that we should not deal with inconsistencies and anomalies—was not thought by anyone to be significant in Committee when no amendments were put down to that effect. It was not thought by anyone to be significant on Report when no amendments were put down to that effect. However, the noble Viscount, Lord Goschen, in debating an entirely different amendment of the noble Lord, Lord Campbell of Alloway, on Report thought that the matter was a jolly wheeze and that he would throw it into the argument. That is my fault as I rather brushed him to one side and said that I would deal with the amendment before the House rather than with his intervention. I virtually invited him to put down an amendment to this effect. He has done so and I cannot complain, even if I feel a little like Lord Randolph Churchill.

The amendment cannot be taken entirely seriously. There is no dark secret behind the term "inconsistencies and anomalies". Clause 1(1)(d) makes it clear that we want the power to be able to encompass reform aimed at eliminating anomalies and inconsistencies as part of the reform of legislation. That will be useful in larger reforms of overlapping legislation where regulatory regimes rub up against each other. Of course, most inconsistencies and anomalies would already be covered under paragraphs (a) to (c) as removing them would entail the levelling up or down of some burden or another.

But some instances do not fit in with the concept of burden. If one statute requires a notice to be given on a Tuesday and another, for no good reason, on a Wednesday, even though both refer to the same category of information, it is not increasing or decreasing the burden to bring them into line, but it removes an inconsistency or anomaly.

The two words are closely linked. However, it is sensible to include them both. An inconsistency may occur where one provision tells you to do one thing and another tells you to do another. If one piece of legislation states that all London cabs must be black while another states that all London cabs must be blue, that is an inconsistency. An anomaly occurs not so much where two pieces of legislation clash, but where they fail to make the proper provision intended. If a licensing regime treated all businesses registered before 19th February in one way and all businesses registered after 19th February in another, what is the status of those businesses registered on 19th February itself?

The provision to deal with inconsistencies and anomalies will be helpful to Ministers in bringing forward any proposals resulting from the recommendations made by either or both of the Law Commissions which specifically refer to the removal of anomalies. Of course, any such proposal would have to fit in with all the other requirements of the Bill, including the removal or reduction of a burden, but could be used to iron out those inconsistencies and anomalies that grow up over time in any body of legislation.

The ante has been raised on this to some extent by the noble Viscount, Lord Goschen, who says that the measure is far too wide. He asked me which of the 51 examples it applies to. I am not sure that it applies to any of the 51 examples that we have so far, although I think that inconsistencies and anomalies might well appear if we went into the detail of the legislation that would have to be changed. The noble Viscount, Lord Goschen, in intervening on my noble friend Lord Borrie, said that such measures could apply to football supporters as opposed to rugby supporters or cricket supporters. Such provisions would never get through any of the other tests applied to regulatory reform orders.

Noble Lords opposite forget that not only have we had safeguards in the Bill from the beginning against widening the scope of the legislation in dealing with burdens but that the safeguards that we have against the wide use of the powers were enhanced by the amendments tabled by the noble Lord, Lord Goodhart, on Report which the Government accepted.

The measures we are discussing simply do not bear the construction put upon them by noble Lords opposite. They constitute no more than a small completion of the task which may well be necessary to tackle significant burdens. To remove them may cause difficulties and the Government could not do other than resist such a step.

4.15 p.m.

My Lords, I am grateful to all noble Lords who have spoken in the context of the amendment. However, if I may say so, the Minister's response to my amendment was typical of a theme which has run throughout the Bill; that is, to contrast the assurances of Ministers with what is actually written on the face of the Bill.

My Lords, the noble Viscount does not listen to me. I said that even if we had been accused of giving assurances that were not on the face of the Bill, the fact that we accepted the amendments of the noble Lord, Lord Goodhart—the noble Viscount must recognise this point as his party did not oppose them—means that the assurances are now on the face of the Bill.

My Lords, the amendments of the noble Lord, Lord Goodhart, closed the door a little. They were extremely helpful. We supported the approach taken by the noble Lord, Lord Goodhart.

However, that does not mean that all the ministerial assurances are now written on the face of the Bill; the absolute opposite is the case. The noble Lord, Lord McIntosh, said that the provision would be used for minor clearing up. However, that is not stated in the Bill. The Bill uses two words, "anomalies" and "inconsistencies".

I return to a point that was much better made by my noble friend Lord Lawson. The issue concerns the use that is made of the powers. The powers are wide. They could be used to clear up small anomalies. I recognise that by removing the provision one would remove the power to clear up anomalies, but only anomalies that do not impose a burden on anyone. I suggest that that kind of anomaly should go to the bottom of the queue.

If I may say so, that is proved by the fact that of the 51 measures that the Government have produced as examples, the noble Lord was unable to quote even one which would impose no burden and would constitute just an anomaly. The noble Lord, Lord Borrie, was quite right. It would indeed be a minor shame not to be able to tidy up these small points. However, that is not what the Bill is about. The noble Lord, Lord McIntosh, made no attempt whatsoever to explain how the measure on the face of the Bill would prevent legislation as regards the examples that I mentioned.

It could be said that to ban one field sport but not others could be inconsistent and therefore, according to what is written on the face of the Bill, that approach could be said to be an anomaly. The normal procedures for primary legislation could be bypassed. The noble Lord, Lord McIntosh, was reduced to relying on imaginary examples of black cabs and blue cabs. I have not seen the legislation that states that all cabs must be blue. The noble Lord has not tried hard to address the serious criticisms that have been raised by my noble friends and by myself. I wish to test the opinion of the House.

4.19 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 86; Not-Contents, 152.

Division No. 1


Anelay of St Johns, B.Courtown, E.
Astor of Hever, L.Cox, B.
Attlee, E.Craigavon, V.
Blaker, L.Crickhowell, L.
Boardman, L.Dean of Harptree, L.
Bowness, L.Denham, L.
Brougham and Vaux, L.Dixon-Smith, L.
Burnham, L.Eden of Winton, L.
Buscombe, B.Elles, B.
Caithness, E.Elliott of Morpeth, L.
Campbell of Alloway, L.Elton, L.
Carnegy of Lour, B.Fookes, B.
Cavendish of Furness, L.Freeman, L.
Chilver, L.Gardner of Parkes, B.
Cope of Berkeley, L.Garel-Jones, L.

Geddes, L.Mowbray and Stourton, L.
Gilmour of Craigmillar, L.Murton of Lindisfarne, L.
Glentoran, L.Naseby, L.
Goschen, V. [Teller]Noakes, B.
Gray of Contin, L.Northesk, E.
Griffiths of Fforestfach, L.Oxfuird, V.
Hanham, B.Palmer, L.
Hayhoe, L.Park of Monmouth,
Henley, L. [Teller]Peel, E.
Higgins, L.Peyton of Yeovil, L.
Hogg, B.Plummer of St. Marylebone, L.
Holderness, L.Rawlings, B.
Home, E.Rawlinson of Ewell, L.
Hooper, B.Renton, L.
Howe, E.Roberts of Conwy, L.
Howe of Aberavon, L.Ryder of Wensum, L.
Jenkin of Roding, L.Seccombe, B.
Kingsland, L.Selborne, E.
Kirkham, L.Simon of Glaisdale, L.
Laing of Dunphail, L.Strathclyde, L.
Lawson of Blaby, L.Swinfen, L.
Lucas, L.Taylor of Warwick, L.
Luke, L.Tebbit, L.
Lyell, L.Thomas of Gwydir, L.
Macfarlane of Bearsden, L.Trumpington, B.
Mayhew of Twysden, L.Vinson, L.
Miller of Hendon, B.Vivian, L.
Monson, L.Wilcox, B.


Acton, L.Farrington of Ribbleton,
Addington, L.Faulkner of Worcester, L.
Ahmed, L.Fitt, L.
Alexander of Weedon, L.Fyfe of Fairfield, L.
Allenby of Megiddo, V.Gale, B.
Alli, L.Gibson of Market Rasen, B.
Amos, B.Gladwin of Clee, L.
Andrews, B.Goldsmith, L.
Archer of Sandwell, L.Goodhart, L.
Avebury, L.Gordon of Strathblane, L.
Bach, L.Goudie, B.
Barnett, L.Gould of Potternewton, B.
Bassam of Brighton, L.Graham of Edmonton, L.
Bernstein of Craigweil, L.Grenfell, L.
Blackstone, B.Hardy of Wath, L.
Blood, B.Harris of Greenwich, L
Borrie, L.Harris of Richmond, B.
Bradshaw, L.Haskel, L.
Bragg, L.Hayman, B.
Brett, L.Hilton of Eggardon, B.
Bristol, Bp.Hogg of Cumbernauld, L.
Brooke of Alverthorpe, L.Hollis of Heigham, B.
Brookman, L.Hooson, L.
Bruce of Donington, L.Howells of St. Davids, B.
Burlison, L.Hughes of Woodside, L.
Carter, L. [Teller]Hunt of Chesterton, L.
Christopher, L.Hunt of Kings Heath, L.
Clarke of Hampstead, L.Irvine of Lairg, L. (Lord Chancellor)
Clement-Jones, L.
Clinton-Davis, L.Islwyn, L.
Cocks of Hartcliffe, L.Jacobs, L.
Crawley, B.Jay of Paddington, B. (Lord Privy Seal)
Dahrendorf, L.
David, B.Jeger, B.
Davies of Coity, L.Jenkins of Putney, L.
Davies of Oldham, L.Judd, L.
Dean of Thornton-le-Fylde, B.King of West Bromwich, L.
Dearing, L.Kirkhill, L.
Dholakia, L.Laming, L.
Dixon, L.Layard, L.
Dubs, L.Lea of Crondall, L.
Elis-Thomas, L.Lester of Herne Hill, L.
Evans of Watford, L.Lipsey, L.
Ezra, L.Lockwood, B.
Falconer of Thoroton, L.Lofthouse of Pontefract, L.

Macdonald of Tradeston, L.Sawyer, L.
McIntosh of Haringey, L. [Teller]Scotland of Asthal, B.
Serota, B.
McIntosh of Hudnall, B.Sharp of Guildford, B.
MacKenzie of Culkein, L.Shepherd, L.
Mackenzie of Framwellgate, L.Shore of Stepney, L.
Maddock, B.Simon, V.
Mallalieu, B.Slim, V.
Mason of Barnsley, L.Smith of Clifton, L.
Massey of Darwen, B.Stallard, L.
Merlyn-Rees, L.Stoddart of Swindon, L.
Mishcon, L.Stone of Blackheath, L.
Molloy, L.Strange, B.
Morgan, L.Symons of Vernham Dean, B.
Morris of Castle Morris, L.Taverne, L.
Morris of Manchester, L.Tenby, V.
Nicol, B.Thomas of Walliswood, B.
Tomlinson, L.
Northover, B.Tordoff, L.
Orme, L.Turner of Camden, B.
Patel of Blackburn, L.Uddin, B.
Paul, L.Wallace of Saltaire, L.
Peston, L.Walmsley, B.
Plant of Highfield, L.Weatherill, L.
Ponsonby of Shulbrede, L.Wedderburn of Charlton, L.
Prys-Davies, L.Whitaker, B.
Puttnam, L.Whitty, L.
Ramsay of Cartvale, B.Wilkins, B.
Redesdale, L.Williams of Crosby, B.
Rendell of Babergh, B.Williams of Elvel, L.
Rennard, L.Williams of Mostyn, L.
Rodgers of Quarry Bank, L.Williamson of Horton, L.
Sandberg, L.Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.30 p.m.

moved Amendment No. 3:

Page 1, line 23, leave out paragraph (a) and insert—
("( ) any Act (whether or not in force) which was passed before this Act is passed and at least two years before the day on which the order is made,
( ) any Act (whether or not in force) which was passed after this Act is passed and at least two years before the day on which the order is made and which contains a provision that it shall be deemed "legislation" within the meaning of this subsection, or").

The noble Lord said: My Lords, the noble Lord, Lord McIntosh of Haringey, helpfully pointed out a difficulty in our earlier amendment to this paragraph, which we have sought to resolve at Third Reading. The amendment would help to define what the elephant test cannot define—the type of legislation to which the power granted by the Bill applies.

We believe that all future legislation that contains what is regarded as regulatory content should identify itself as such. The Government have repeatedly stressed that the Bill will not be used for politically controversial measures. It must follow that the inclusion of such a provision in primary legislation would be non-controversial. I beg to move.

My Lords, I am glad that I finally persuaded the noble Lord, Lord Kingsland, that taking out seven years of legislation between 1994 and 2001 was not a particularly good idea. However, I am afraid that the issue is not as simple as he seems to think.

Throughout the passage of the Bill, we have discussed at great length the procedures and safeguards surrounding the order-making power, including public consultation, parliamentary scrutiny, the objective of proportionality and the tests contained in Clause 3. Those are substantial hurdles, which go considerably further than those in the Deregulation and Contracting Out Act 1994. They are the best gatekeepers for the power.

I am sure that the noble Lord recognises that it is rare for a Bill to be prepared with the express intention of being reformed in some years. The amendment would result in the danger of many Acts for which the order-making power would be suitable being omitted from the definition of eligible legislation. A valuable and universally welcomed reform could become impossible because one—and only one—of a large number of Acts concerned did not contain the magic formula in the amendment, even if the changes required to that Act were small and uncontroversial.

If Parliament feels strongly about an issue, there is nothing to stop it saying that a particular Act should not be subject to the order-making process. There would be no need to amend the Bill for that. However, I see no case for contracting in, as the amendment would do.

As things stand, Parliament can decide whether an area is suitable for reform each time a regulatory reform proposal comes before it. Surely that is the most sensible route. The Bill will be able to make substantial legislative reform, while still providing stringent and transparent safeguards. I am sorry to say that the amendment would add nothing to those provisions.

My Lords, on the one hand the Government have asserted that the Bill is not intended to deal with controversial matters, but on the other hand they have consistently refused to accept concrete controls that would ensure that it did not affect controversial matters. In those circumstances, I wish to test the opinion of the House.

4.34 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 80; Not-Contents, 149.

Division No. 2


Anelay of St Johns, B.Cavendish of Furness, L.
Astor of Hever, L.Cope of Berkeley, L.
Attlee, E.Courtown, E.
Blaker, L.Cox, B.
Boardman, L.Crickhowell, L.
Bowness, L.Dean of Harptree, L.
Brougham and Vaux, L.Denham, L.
Burnham, L. [Teller]Dixon-Smith, L.
Buscombe, B.Eden of Winton, L.
Caithness, E.Elles, B.
Campbell of Alloway, L.Elliott of Morpeth, L.
Carnegy of Lour, B.Elton, L.

Fookes, B.Mowbray and Stourton, L.
Freeman, L.Murton of Lindisfarne, L.
Gardner of Parkes, B.Naseby, L.
Garel-Jones, L.Noakes, B.
Geddes, L.Northesk, E.
Gilmour of Craigmillar, L.Oxfuird, V.
Glentoran, L.Palmer, L.
Goschen, V.Park of Monmouth, B.
Gray of Contin, L.Peel, E.
Hanham, B.Peyton of Yeovil, L.
Hayhoe, L.Pilkington of Oxenford, L.
Henley, L.[Teller]Plummer of St. Marylebone, L.
Higgins, L.Rawlings, B.
Hogg, B.Rawlinson of Ewell, L.
Home, E.Renton, L.
Hooper, B.Roberts of Conwy, L.
Howe, E.Seccombe, B.
Howe of Aberavon, L.Selborne, E.
Jenkin of Roding, L.Strathclyde, L.
Kingsland, L.Swinfen, L.
Kirkham, L.Tebbit, L.
Lawson of Blaby, L.Thomas of Gwydir, L.
Lucas, L.Trumpington, B.
Luke, L.Vinson, L.
Lyell, L.Vivian, L.
Macfarlane of Bearsden, L.Wade of Chorlton, L.
Mayhew of Twysden, L.Wilcox, B.
Miller of Hendon, B.Young, B.


Acton, L.Fitt, L.
Addington, L.Fyfe of Fairfield, L.
Ahmed, L.Gale, B.
Allen by of Megiddo, V.Gibson of Market Rasen, B.
Alli, L.Gladwin of Clee, L.
Amos, B.Goldsmith, L.
Andrews, B.Goodhart, L.
Archer of Sandwell, L.Gordon of Strathblane, L.
Avebury, L.Goudie, B.
Bach, L.Gould of Potternewton, B.
Barnett, L.Graham of Edmonton, L.
Bassam of Brighton, L.Grenfell, L.
Beaumont of Whitley, L.Hardy of Wath, L.
Bernstein of Craigweil, L.Harris of Greenwich, L.
Borrie, L.Harris of Richmond, B.
Bradshaw, L.Haskel, L.
Bragg, L.Hayman, B.
Brett, L.
Brooke of Alverthorpe, L.Hilton of Eggardon, B.
Brookman, L.Hogg of Cumbernauld, L.
Bruce of Donington, L.Hollis of Heigham, B.
Burlison, L.Holme of Cheltenham, L.
Carter, L. [Teller]Hooson, L.
Christopher, L.Howells of St. Davids, B.
Clarke of Hampstead, L.Hughes of Woodside, L.
Clement-Jones, L.Hunt of Chesterton, L.
Clinton-Davis, L.Hunt of Kings Heath, L.
Cocks of Hartcliffe, L.Irvine of Lairg, L. (Lord Chancellor)
Crawley, B.
Dahrendorf, L.Islwyn, L.
David, B.Jay of Paddington, B. (Lord Privy Seal)
Davies of Coity, L.
Davies of Oldham, L.Jeger, B.
Dean of Thornton-le-Fylde, B.Jenkins of Putney, L.
Dholakia, L.Judd, L.
Dixon, L.King of West Bromwich, L.
Dubs, L.Kirkhill, L.
Elder, L.Laming, L.
Elis-Thomas, L.Layard, L.
Evans of Watford, L.Lea of Crondall, L.
Ezra, L.Lester of Herne Hill, L.
Falconer of Thoroton, L.Lipsey, L.
Farrington of Ribbleton, B.Lockwood, B.
Faulkner of Worcester, L.Lofthouse of Pontefract, L.
Filkin, L.Macdonald of Tradeston, L.

McIntosh of Haringey, L. [Teller]Sawyer, L.
Scotland of Asthal, B.
McIntosh of Hudnall, B.Serota, B.
MacKenzie of Culkein, L.Sharp of Guildford, B.
Mackenzie of Framwellgate, L.Shepherd, L.
Maddock, B.Shore of Stepney, L.
Mason of Barnsley, L.Simon, V.
Massey of Darwen, B.Simon of Glaisdale, L.
Merlyn-Rees, L.Smith of Clifton, L.
Mishcon, L.Smith of Gilmorehill, B.
Molloy, L.Stoddart of Swindon, L.
Morgan, L.Stone of Blackheath, L.
Morris of Castle Morris, L.Symons of Vernham Dean, B.
Morris of Manchester, L.Taverne, L.
Nicol, B.Thomas of Gresford, L
Northover, B.Thomas of Walliswood, B.
Orme, L.Tomlinson, L.
Tordoff, L.
Patel of Blackburn, L.Turner of Camden, B.
Paul, L.Uddin, B.
Peston, L.Walker of Doncaster, L.
Plant of Highfield, L.Wallace of Saltaire, L.
Ponsonby of Shulbrede, L.Walmsley, B.
Prys-Davies, L.Wedderburn of Charlton, L.
Puttnam, L.Whitaker, B.
Ramsay of Cartvale, B.Whitty, L.
Rea, L.Wilkins, B.
Redesdale, L.Williams of Crosby, B.
Rendell of Babergh, B.Williams of Elvel, L.
Rennard, L.Williams of Mostyn, L.
Rodgers of Quarry Bank, L.Williamson of Horton L.
Sandberg, L.Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.45 p.m.

Clause 2 [ Meaning of "burden" and related expressions]:

moved Amendment No. 4:

Page 2, line 32, leave out ("or preventing the incurring of expenditure").

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 5 and 6. Many of us will have read with considerable interest articles in our newspapers this weekend concerning a Bill currently "working its way through Parliament" which is being hailed by the Government as the Bill that will get rid of all unwanted red tape. I must confess that I find it difficult to believe that the Bill referred to is this one.

What does not surprise me is that there is no mention by government Ministers and noble Lords opposite in the press of the considerable increase in executive power afforded by the Bill, including an enabling power which will allow Ministers, government departments and local authorities to incur further expenditure.

The Minister made it very clear on Report that there would be,

"occasions when we would want to remove conditions which prevent expenditure".—[Official Report, 13/2/01; col. 184.]

and the example used was the condition attached to the granting of vaccine damage compensation, such that it would be easier for Ministers to incur that expenditure for the benefit of the parents of a vaccine-damaged child.

That is an example with which we should have no argument. While we support extra spending on things that matter such as schools, hospitals and police officers, this clause raises serious alarm bells at the possibility of Ministers using the Bill as a quietly convenient way to waste taxpayers' money—spending by stealth on matters which are not deemed by Ministers to be of a politically controversial nature and therefore ripe for a regulatory reform order.

For example, is it politically controversial for the Government to have spent £300,000 of hard-earned taxes on a poetry competition designed to make people more aware of the provisions of the European Convention on Human Rights? It is our view that while the competition may be a tame idea, the degree of expenditure is clearly controversial.

Perhaps it matters not to the Government how much money is wasted so long as the Minister deems the initiative to be of a politically non-controversial nature and, therefore, appropriate for a regulatory reform order.

Will the Minister concede that as currently drafted the Bill could easily be used by the executive as a licence to spend? If the Government are not minded to accept our amendments, will the Minister agree with me that there should be some clearly defined parameters on the face of the Bill for the use of that power? I beg to move.

My Lords, I am amazed by this. The process of scrutiny which the Front Bench opposite is now seeking to adopt in relation to the Bill is confusing. This amendment was raised on Report. An answer was given and if one looks at col. 184 of Hansard, our explanation was accepted. I believe that the noble Baroness accepts, although I am not sure, that if her amendment were agreed to by this House, it would not be possible to reduce the conditions which the parents of vaccine-damaged children presently have to undergo before they receive compensation for vaccine damage.

Therefore, I understand two matters from the return to this amendment: first, that the Conservatives have retreated from their acceptance of our position; and secondly, they would not wish a regulatory reform order to be used as a means of relieving the conditions for the obtaining of vaccine damage.

If that is the position, first, I am amazed that there has been such a reversal. Secondly, I am surprised that no notice was given of such reversal.

My Lords, before the Minister concludes his remarks, I point out that we did not accept the amendment to which he referred and that we did not move it on Report. Moreover, there are many other ways in which to deal with the question of compensation for vaccine damage. In turn, I find it rather strange that we on this side are being ticked off for raising matters that were not fully debated during the Bill's earlier stages, and for raising matters about which we were not content during those earlier stages.

My Lords, on the noble Baroness's first point, when the noble Lord, Lord Kingsland, discussed Amendments Nos. 16 and 17 on Report, he said:

"My Lords, I am grateful to the Minister for his response … and for the particular example he gave"—
that is, of vaccine damage. The noble Lord went on to discuss another amendment that was grouped with those amendments and with which we are not concerned. He said:
"He will not be surprised to hear that I remain unhappy with his explanation in respect of Amendment No. 15".—[Official Report, 13/2/01; col. 184.]
Any reasonable reader of those comments would assume that the noble Lord accepted our explanation in relation to Amendments Nos. 16 and 17.

The noble Baroness, Lady Buscombe, did not answer my second point. I asked whether she accepted that the effect of her amendment would be to deprive the Government of the opportunity to reduce the conditions for vaccine-damaged children and, if so, what she suggested we should do about that, if her amendment were agreed to. Perhaps she will answer that point later.

It would be our intention—we have always made this clear—that we should introduce an RRO in relation to that provision. That is why the phrase,
"preventing the incurring of expenditure",
appears in the Bill. I am sure that we all agree that the definition of the word "burden" is key to the Bill's success, and we have sought to define the term very broadly so that we can implement the Bill's important and worthwhile reforms. That extends to the ability of orders to incur expenditure. The noble Baroness knows as well as I do that it is often said that the reduction in the burden of paperwork is an aim that is sought by the voluntary, private and public sectors.

Let me stress again that the power is surrounded by rigorous safeguards to guarantee against possible misuse. There is therefore no possibility of the power being used to allow spending willy-nilly without passing through the rigorous parliamentary scrutiny that is provided for in the Bill. If Parliament were not to approve expenditure, save on the imposition of conditions, it could ensure that those conditions remained.

Of course, there are other stringent procedures in place surrounding the incurring of expenditure which it is the right of another place to discuss. Any order requiring expenditure would have to go through the usual procedures. In administrative terms, prior Treasury approval, for instance, would be needed in each case.

I repeat: the power is broad but I make no apology for seeking to introduce a power that will be used to make such worthwhile changes to legislation while ensuring that the most stringent safeguards are met. Our arguments on this issue remain the same as they were in Committee and on Report. I urge the noble Baroness to think again and to consider the people who will be affected.

My Lords, I thank the Minister for that response. I make it absolutely clear that my noble friend Lord Kingsland did not accept the amendment on Report. I believe that he was implying that he accepted that the example could be used if the Bill was implemented in that way. The point is that there are many ways in which to resolve problems such as that relating to vaccine-damage compensation. In relation to such an important matter, we should consider the use of primary legislation. It is wrong to use that as an example—

My Lords, is the noble Baroness arguing that in that context we should use not an RRO but primary legislation?

My Lords, it is wrong to decide whether or not the Bill should give such a broad, blanket power to the executive by referring to such an emotive example. I made it absolutely clear in my speech that we have no argument with the use of this power by a government who are seeking to find some way to provide compensation to vaccine-damaged children. However, there are other ways to do so, including the use of primary legislation. Our concern is that the Bill contains such a broad power. It refers to removing the conditions that prevent the "incurring of expenditure" by the executive. There is no question of degree when draft orders are being scrutinised, albeit by a super-affirmative order. Will the amounts of expenditure be made clear in the draft order? I suspect not, in many cases.

Once again, we have shown our deep concern about the broad powers that remain in the Bill. I have made my point clear. It is wrong to use one small but important example—I agree about its importance—to try to twist what I have said. We are not happy about there being no parameters, as it were, in the Bill. I am sorry that the Minister offered no suggestions about the ways in which to limit the amount of expenditure that can be incurred by the executive through a regulatory reform order in relation to the Bill.

We are not making any progress in this regard, but I do not want to test the opinion of the House. I suspect that the matter will be argued vigorously in another place. On that basis, and with some regret, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendments Nos. 5 and 6 not moved.]

Clause 9 [ Code of practice relating to enforcement of regulatory requirements]:

5 p.m.

moved Amendment No. 7:

Page 7, line 42, at end insert—
("( ) A code of practice under this section shall incorporate the mandatory procedures set out in Schedule 1 to the 1994 Act, but that Schedule shall be interpreted as if in paragraph 3(a)(i) for the words "that he is considering taking the action and the reasons why he is considering it," there is substituted "that he intends to take action and the reasons why;".").

The noble Baroness said: My Lords, I shall deal with Amendment No. 7 and then discuss Amendment No. 8 separately. I wish to make two points: one is relatively narrow and the other involves a point of principle that highlights the difference in the respective approaches to fair and effective enforcement between those of us on this side of your Lordships' House and those on the other side.

The narrow point is this. The greater part of the Bill is concerned with parliamentary procedure and the power of the executive. Those are important constitutional matters, but only rarely do they have an immediately discernible impact upon the daily lives of ordinary people. It is only when we arrive at Clause 9 that we come to that part of the Bill that is likely to have an immediate and profound effect upon ordinary people in their everyday lives.

The amendment seeks to ensure the continuation in statutory form of those fundamental rules of best practice that were set out in Schedule 1 to the 1994 Act and which I shall refer to as "the schedule". The schedule contains four major provisions, each granting a power to the Minister concerned to impose rules regarding enforcement procedures. In the amendment, we seek to ensure that those provisions continue to have statutory effect and that their inclusion in any code of practice created pursuant to Clause 9 is mandatory.

The first provision will require an enforcement officer, before he takes enforcement proceedings, to serve notice explaining what remedial action he requires and why, and to give time for remedial action to be taken. The second is similar in nature, but it is tailored to circumstances in which immediate enforcement action is necessary. The third requires an enforcement officer to hearken to representations made to him by the person against whom enforcement action is contemplated, before enforcement action is taken. The fourth requires an enforcement officer to explain the relevant appeals procedures, once enforcement action has been taken.

I have listened with care during the passage of this Bill to the points made against the substance of the schedule. The only argument that I have heard is that there has been a misunderstanding with regard to the operation of the third provision, which requires an enforcement officer to listen to what it is the person against whom action may be taken has to say about it. The objection is not that it is undesirable that the enforcement officer should have to listen to what is being said; it is that enforcement officers have found it difficult to get across the point that no final decision on enforcement has been taken at this stage and that misunderstandings have arisen as a result.

The intention of that part of the amendment that refers to paragraph 3(a)(i) is to make the position clearer. If the words proposed are not yet sufficiently polished, I hope that the Government will at least say that they regard the problem as being a very minor one indeed and that it does not amount to a difference of principle between us.

That said, I now pass to those matters about which there are fundamental differences between us and to differences which are clearly differences of principle. I have referred to the four provisions in the schedule to the 1994 Act. By this amendment, those provisions would be mandatory in two senses: first, they would be required to be part of any code of conduct; and, secondly, they would themselves be mandatory provisions within any code. Compliance by enforcement officers would be compulsory. I see nothing wrong with that. I regard such provisions as providing an essential and fundamental degree of protection to the small businessman who, nowadays, is overwhelmed by a never-ending series of regulatory initiatives.

By way of contrast I turn to the concordat. The opening pages emphasise the maintenance of proper standards; they speak of openness and helpfulness, of a complaints procedure and of how enforcement will be proportionate and consistent. All of those are worthy sentiments and each is admirable in its purpose. However, they are voluntary. There is no basis upon which any can be said to be legally enforceable, but they are none the worse for that.

On the final page of the concordat we come to the part that will prove of real interest to those against whom enforcement action is taken. It is headed "Principles of Good Enforcement: Procedures". Here are set out four provisions, each of which demonstrates a different and a fundamental aspect of sound enforcement procedure. They represent best practice. Each is aimed at ensuring that enforcement operates in a way that is fair, balanced and evenhanded. Each is intended to ensure that any person who is the subject of enforcement procedure knows what is happening to him and why, and that he has the right to be heard.

What are those provisions? Do they herald a radical new approach? Do they bring new benefits? Do they throw fresh light upon the enforcement of regulations and rules? No, they do not. The language may be different, the provisions may appear in a slightly different form and in a different order, but they are none other than the four provisions contained in Schedule 1 to the 1994 Act. The difference is that in the concordat compliance is voluntary. That is the difference of principle between us and I believe that it is the only difference.

There is no difference in what amounts to fair and even-handed treatment; there is only a difference as to whether the person against whom enforcement action is taken has the legal right to require that appropriate procedures be followed. I am unable to discern any reason why compliance with those rules should not be compulsory. If the concordat is to work in the way we are told that it will, no doubt those tasked with the enforcement of regulations will welcome the provisions with open arms and will do everything they can to ensure that the "Principles of Good Enforcement" are followed. After all, they are best practice.

I would require much persuading that a general desire for a voluntary code did other than mask a wish in certain quarters to be rid of what may be regarded as rules of an irksome and burdensome nature. That seems to me to be the difference between noble Lords on this side of the House and noble Lords opposite.

One man's rules are another man's rights, or at least they should be. That being so, I should be surprised to hear any argument against making the principle of compliance with Schedule 1 compulsory. Such will give statutory effect to fundamental rules of best practice while at the same time ensuring a proper level of protection for those who are affected by enforcement procedures.

Amendment No. 8 would require any tribunal tasked with passing judgment on an enforcement matter to take into account a breach of the rules of enforcement procedure. The amendment is not intended to provide a procedural escape route for the wrong-doer, but it is a logical extension of the introduction of a degree of procedural compliance into matters of regulatory enforcement.

Earlier I said that the concordat contained a number of admirable sentiments but that it was voluntary. In so far as helpfulness, openness and the like are concerned, the fact that the concordat is voluntary is not my present concern. However, enforcement is another matter. It is essential that those against whom enforcement proceedings are taken, or against whom proceedings are being contemplated, or who are required to comply with an enforcement officer's demands under pain of enforcement action, should have rights. Reliance upon a voluntary code is simply not enough. Such matters are too important. Nor, in such circumstances, is it enough that the tribunal may—the important word is "may"—take noncompliance into account.

In this context we are concerned with matters that are fundamental to fair enforcement procedure. If the procedure has not been followed, it must follow that prosecution—that is what it is perceived to be—is unfair and it should be the duty of the tribunal to take appropriate action. That is the only means whereby the rights of the individual can be protected.

This clause grants to the tribunal a degree of discretion in the matter. The purpose of the amendment is not to remove that discretion but to place a limit on it. There is no reason why the code of practice envisaged in the clause should not make it clear which are those rules of practice upon which the provisions of this clause are intended to bite.

Unhelpfulness, or a lack of proportionality, could be dealt with as the tribunal saw fit, but a denial of fundamental rights, such as those contained in the "Principles of Good Enforcement", to which I referred earlier, is a different matter entirely and should be treated as such. This amendment should be used to make that clear. I beg to move.

My Lords, there is some objection to Schedule 1 to the 1994 Act being incorporated into this Bill, largely because it does not sit at all well with the several provisions that begin in Clause 9. Schedule I to the 1994 Act was an all-purpose, prescriptive set of requirements for enforcement officers in all circumstances. When looked at individually one sees that they are not unreasonable in the way in which they are set out. However, as I have had occasion to recall to your Lordships at previous stages of this Bill, when the previous government conducted their consultation in December 1996, they found that trading standards officers and other enforcement officers had discovered that some of the requirements—I shall not elaborate on them again—resulted in illegitimate trading being continued more easily because of the requirements of Schedule 1.

Moreover, on the other side, businesses, including small businesses, found elements of confusion in the requirements of Schedule 1. If issued with a notice saying that enforcement officers were considering taking action against them, many felt that they were being sued or prosecuted. The degree of confusion and the fact that rogue traders were perhaps getting away with it led the previous government in 1996 to question that particular approach of Schedule 1.

The approach of this Bill, which I believe has a lot going for it in terms of widespread agreement across the political parties and outside among businesses and enforcement officers, is that one starts with a voluntary concordat. Remarks have been made about it by the noble Baroness, Lady Buscombe, but that concordat, set out in Annex C to the Explanatory Notes to the Bill, comprises some of the best practice that was also in Schedule 1 to the previous Act. Underpinning that concordat is Clause 9 and successive clauses that are meant to be brought into operation if, in some way, there is a failure in the application of the concordat.

The code of practice within Clause 9 is intended to be tailored to address the enforcement problem which emerges. There will be consultation about the legislation, regulation and problems before another code is developed. Simply importing into the Bill, holus-bolus, mandatory requirements in Schedule 1 of the 1994 Act, which for good reason has had much criticism levelled at it by both enforcement officers and business, is not suitable.

Amendment No. 7 would be apt only if the government of the day took a wholly different view from the government of today. The noble Baroness, Lady Buscombe, and the noble Lord, Lord Kingsland, recalled the Minister stating earlier that there will be no regulatory reform orders relating to politically controversial matters. The noble Baroness, Lady Buscombe, may satisfy my curiosity in replying to the debate. Does her party share the view expressed by the Minister that the Bill should not be used to put forward a regulatory reform order which is
"significant and controversial in political terms"?—[Official Report, 23/1/01; col. 173.]
I do not believe that the amendment is appropriate. It does not sit well with the provisions of the Bill, or with the idea that they are reserve provisions, if what we all hope does not happen in fact happens; that is, the concordat, which is widely accepted by business, consumer groups and the enforcement officers, is a failure.

My Lords, the noble Lord, Lord Borrie, tried to argue his case but I do not find his arguments convincing. My noble friend's amendment does not take Schedule 1 lock, stock and barrel and set it into Clause 9. It requires that the code which is drawn up by Ministers and consulted upon, and which is then subject to negative resolution procedure in both Houses, incorporates the procedures, not the de tailed language and words.

I have one simple request to make to Ministers in support of my noble friend's amendment. Will the Minister replying to this brief debate deal with the particular problem? Let us take a local authority somewhere in England—it could be Haringey or Kettering—in which a small businessman feels aggrieved because fire regulations, food safety regulations, planning and environmental health laws have been enforced upon him by the appropriate local authority. It may be that because the enforcement was rushed he did not become aware of his right to make representations and of his right of appeal.

Let us suppose that the local authority—perhaps Kettering and Haringey are bad examples—had not signed the concordat and were not bound by the voluntary good practice. The code, which the Minister may or may not introduce in due course but which provides the back-up to the concordat, does not require written notices. It is consistent with the unfair enforcement action taken against the small businessman. What does the small businessman do? He goes to the tribunal, which is not obliged to take into account the fact that the behaviour is not in accordance with the code, let alone the concordat, and he is bereft of any redress.

I believe that by accepting the amendment the Government, in promoting the Bill, will be saying, "Okay, we are obliged to consult on the code and we will have to include the procedures in Schedule 1 to the 1994 Act. It is a fresh consultation in the light of the operation of the concordat. Let us see what happens." I do not believe that the Government have made out a case that the consultation procedures have taken into account the views of small businessmen. The Tories introduced the measure in order to protect small businessmen and the Government are removing it.

5.15 p.m.

My Lords, we are all agreed that the way in which the regulation is enforced is as important as the regulation itself. Tonight's debate goes to the heart of that matter. I have had the fortune, or misfortune, to be regulated as a small businessman. I can speak from bitter experience of an official coming in and unreasonably and disproportionately throwing the book at me.

When I hear the noble Lord, Lord Borrie, and the noble Baroness, Lady Gibson, speak about such matters I have no doubt about their experience as members of local authority boards and regulatory authorities. However, when they talk about small businesses and how they will be part of a concordat I believe that I am listening to eagles talking about the habits of moles. They would not know a small business if they saw one.

We are agreed that fair and better regulation is at the heart of regulation. All that lies between us is the question of whether that should be statutory or non-statutory. My experience tells me that unless we introduce statutory protection on enforcement procedures we shall again have slippage. There will be nothing to halt the reversion to the previous unfair levels of playing between the regulated and the regulator.

I hope that the Government will adopt the measure. I hope that they will not go down in history as the Government who removed statutory protection on enforcement from small businesses.

My Lords, I am on the side of the moles, not on the side of the eagles. As I am sure the noble Lord, Lord Vinson, knows, I ran a small business for 30 years. I am only too sorry that it was a small business when I stopped running it; I would rather it had been a big business after that time. Therefore, I do not believe that I can be accused of not understanding the problems of small businesses.

This is an entirely proper Third Reading debate. During the Committee and Report stages, amendments were tabled to remove the entire enforcement section of the Bill and replace it with the enforcement provisions of the 1994 Act. That argument has not been repeated from the Benches opposite tonight, although the argument against such a change was effectively and forcefully made by my noble friend Lord Borrie.

The basis of our argument against the 1994 Act provisions, which consist of Schedule 4 to that Act as opposed to Clauses 9, 10 and 11 in this Bill which provide for a voluntary concordat, backed up if necessary by a code of practice, was twofold. First, the Schedule 1 provisions of the 1994 Act were not used. I said that they were hardly used and the noble Lord, Lord Vinson, said that they were never used.

Secondly, when in 1996 the previous government consulted on the provisions of Schedule 1 the result was that enforcement officers believed that the "minded to" procedures were bureaucratic and could be manipulated by illegitimate businesses, and businesses themselves were, to say the least, unenthusiastic about the provisions. On that basis we believed that we responded correctly to the consultation that the previous government had carried out in 1996 and the consultation that we carried out in 1999. We resisted the suggestion that we should move away from a voluntary procedure, which could be backed up if necessary and had been approved in consultation, in favour of something which had been tried and basically failed.

What are we talking about today? Despite the very grand speech of the noble Baroness, Lady Buscombe, which was full of fundamental constitutional principles, we have before us an amendment which retains the voluntary concordat in Clause 9 and simply says that if there is to be a back-up code of practice it should incorporate the mandatory procedures set out in Schedule 1, but that the "minded to" procedures in Schedule 1, which were objected to in consultation, should be changed to "intends to". Certainly, that is a worthwhile change. But none of that can justify the kind of attack on the motives and conduct of the Government in bringing forward these changes that we have heard from the Benches opposite.

All that is proposed in Amendment No. 7 is a reestablishment of the mandatory procedures set out in Schedule 1 as part of the code of practice, rather than in the form it appeared in Schedule 1 to the previous Bill. There is a difficulty, in that the reference to Schedule 1 is purely a dictionary reference (as I believe it is called) because Clause 12 of the Bill, which we shall pass in due course—no amendments to it have been tabled—repeals Schedule 1. Therefore, it is not there and cannot be referred to in the way intended.

Nevertheless, I acknowledge that this is a sincere attempt to rectify a fault in the previous procedures—the "minded to" which was so objected to—and make a minor alteration to the code of practice provisions; namely, to change "minded to" to "intends to". But it does not work. We are now at Third Reading and we must have something that works. The prescriptive procedures in Schedule 1 to the 1994 Act would have to apply whenever a code of practice was made and that would result in inflexibility and unnecessary bureaucratic burdens.

I remind the House of the principles of good regulation of the Better Regulation Task Force under the chairmanship of the noble Lord, Lord Haskins. Those principles provide a framework against which good regulations and their enforcement should be measured. One of those principles is targeting, which means ensuring that the approach taken to regulation is aimed at the problem. This amendment adds procedures to the Bill that are not targeted but universal. The result is that the Minister would have to include the "intends to" procedures in every code of practice that he issued regardless of whether those procedures resolved the particular problem that had arisen. The amendment would provide no extra protection to small businesses. Rather than pursue a semi-mandatory, semi-statutory objective, it is far better that enforcement officers spend time helping small businesses comply with regulations in the first place so that enforcement action, or threatened enforcement action, is not necessary. Any code of practice is likely to contain provisions similar to those in the enforcement concordat, because they require that,
"Before formal enforcement action is taken, officers will provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference, unless immediate action is required".
Surely, what is proposed here not only has the same objectives, which I believe noble Lords opposite have at heart, but is a more flexible and effective way to do it. Perhaps I may point out to the noble Lord, Lord Freeman, that Haringey has accepted the concordat but Kettering has not.

My Lords, this is not a grand amendment but an amendment which must be dealt with entirely on practical grounds, and I suggest that noble Lords should not accept it.

I deal briefly with Amendment No. 8. That amendment would make it mandatory for the courts to take into account whether the enforcement officer had complied with any code of practice issued in accordance with the Bill before deciding how to deal with the regulatory breach. It may be that there is no accusation that the enforcer has failed to comply with the code but the court will still be required to establish it. Under the Bill as drafted the court is not automatically required to consider any failure to comply with the code; it has discretion to do so. Surely, that is the right way round. If the court believed for some reason that it needed to establish whether the enforcement officer had complied with the code it would be free to do so, but it would not be required to do so as a matter of course. I believe that the "shall" instead of "may" is in the wrong place in the Bill, but if it is placed in the right position it has no useful effect whatever.

My Lords, I thank the Minister for his response. To answer the last point, we are content that "shall" versus "may" is in the right place in the Bill. All this afternoon we have tried in both short and long speeches to convey to noble Lords opposite that there is a wealth of difference between ministerial assurances and what is on the face of the Bill. The noble Lord, Lord Borrie, may regard this as a little debate, but it addresses a very serious issue which directly affects the interests of small businessmen. In relation to these amendments, we on this side of the House are more interested in rights than rules. We wholly disagree with the response of the Minister to points that we believe have been made with great strength. On that basis we should like to test the opinion of the House.

5.28 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 84; Not-Contents. 154.

Division No. 3


Anelay of St Johns, B.Howe of Aberavon, L.
Astor of Hever, L.Jenkin of Roding, L.
Attlee, E.Kingsland, L.
Blaker, L.Kirkham, L.
Boardman, L.Lamont of Lerwick, L.
Bowness, L.Lawson of Blaby, L.
Brougham and Vaux, L.Liverpool, E.
Burnham, L. [Teller]Lucas, L.
Buscombe, B.Luke, L.
Caithness, E.Lyell, L.
Campbell of Croy, L.McColl of Dulwich, L.
Carnegy of Lour, B.Macfarlane of Bearsden, L.
Cavendish of Furness, L.Monson, L.
Chadlington, L.Montrose, D.
Colwyn, L.Mowbray and Stourton, L.
Cope of Berkeley, L.Murton of Lindisfarne, L.
Courtown, E.Noakes, B.
Cox, B.Northesk, E.
Craigavon, V.Onslow, E.
Crickhowell, L.Palmer, L.
Dean of Harptree, L.Park of Monmouth, B.
Dixon-Smith, L.Pilkington of Oxenford, L.
Eden of Winton, L.Plummer of St. Marylebone, L.
Elles, B.Rawlings, B.
Elliott of Morpeth, L.Renton, L.
Elton, L.Roberts of Conwy, L.
Feldman, L.St John of Fawsley, L.
Fookes, B.Seccombe, B.
Freeman, L.Selborne, E.
Gardner of Parkes, B.Skelmersdale, L.
Geddes, L.Stewartby, L.
Gilmour of Craigmillar, L.Strathclyde, L.
Glentoran, L.Swinfen, L.
Goschen, V.Tebbit, L.
Gray of Contin, L.Thomas of Gwydir, L.
Griffiths of Fforestfach, L.Trumpington, B.
Hanham, B.Vinson, L.
Hayhoe, L.Vivian, L.
Henley, L. [Teller]Wade of Chorlton, L.
Higgins, L.Walker of Worcester, L.
Hooper, B.Wilcox, B.
Howe, E.Young, B.


Acton, L.Christopher, L.
Addington, L.Clarke of Hampstead, L.
Ahmed, L.Clinton-Davis, L.
Alli, L.Cocks of Hartcliffe, L.
Amos, B.Cohen of Pimlico, B.
Andrews, B.Crawley, B.
Archer of Sandwell, L.Currie of Marylebone, L.
Avebury, L.Dahrendorf, L.
Bach, L.David, B.
Barnett, L.Davies of Coity, L.
Bassam of Brighton, L.Davies of Oldham, L.
Bernstein of Craigweil, L.Dean of Thornton-le-Fylde, B.
Blackstone, B.Dholakia, L.
Borrie, L.Dixon, L.
Bradshaw, L.Donoughue, L.
Bragg, L.Dubs, L.
Brennan, L.Elder, L.
Brett, L.Elis-Thomas, L.
Brooke of Alverthorpe, L.Evans of Parkside, L.
Brookman, L.Evans of Watford, L.
Brooks of Tremorfa, L.Falconer of Thoroton, L.
Burlison, L.Falkland, V.
Carter, L. [Teller]Farrington of Ribbleton, B.

Faulkner of Worcester, L.Merlyn-Rees, L.
Filkin, L.Molloy, L.
Fitt, L.Morgan, L.
Fyfe of Fairfield, L.Morris of Castle Morris, L.
Gale, B.Morris of Manchester, L.
Gibson of Market Rasen, B.Nicol, B.
Gladwin of Gee, L.Orme, L.
Goldsmith, L.Parekh, L.
Goodhart, L.Patel of Blackburn, L.
Gordon of Strathblane, L.Paul, L.
Goudie, B.Peston, L.
Gould of Potternewton, B.Plant of Highfield, L.
Graham of Edmonton, L.Ponsonby of Shulbrede, L.
Grenfell, L.Prys-Davies, L.
Hardy of Wath, L.Puttnam, L.
Harris of Greenwich, L.Ramsay of Cartvale, B.
Harris of Richmond, B.Rea, L.
Haskel, L.Rendell of Babergh, B.
Hayman, B.Rennard, L.
Hilton of Eggardon, B.Rodgers of Quarry Bank, L.
Hogg of Cumbernauld, L.Sandberg, L.
Hollis of Heigham, B.Sawyer, L.
Hooson, L.Scotland of Asthal, B.
Howells of St. Davids, B.Scott of Needham Market, B.
Serota, B.
Hughes of Woodside, L.Sharp of Guildford, B.
Hunt of Chesterton, L.Shepherd, L.
Hunt of Kings Heath, L.Shore of Stepney, L.
Irvine of Lairg, L. (Lord Chancellor)Simon, V.
Smith of Clifton, L.
Islwyn, L.Smith of Gilmorehill, B.
Jay of Paddington, B. (Lord Privy Seal)Stoddart of Swindon, L.
Stone of Blackheath, L.
Jeger, B.Symons of Vernham Dean, B.
Jenkins of Putney, L.Taverne, L.
Judd, L.Thomas of Gresford, L.
Kirkhill, L.Thomas of Walliswood, B.
Laming, L.Tomlinson, L.
Layard, L.Tordoff, L.
Lea of Crondall, L.Turner of Camden, B.
Lester of Herne Hill, L.Uddin, B.
Lipsey, L.Walker of Doncaster, L.
Lockwood, B.Wallace of Saltaire, L.
Lofthouse of Pontefract, L.Walmsley, B.
Longford, E.Warner, L.
McIntosh of Haringey, L. [Teller]Warwick of Undercliffe, B.
Watson of Richmond, L.
McIntosh of Hudnall, B.Weatherill, L.
MacKenzie of Culkein, L.Wedderburn of Charlton, L.
Mackenzie of Framwellgate, L.Whitaker, B.
McNally, L.Wilkins, B.
Maddock, B.Williams of Crosby, B.
Mallalieu, B.Williams of Elvel, L.
Marsh, L.Williams of Mostyn, L.
Mason of Barnsley, L.Williamson of Horton, L.
Massey of Darwen, B.Woolmer of Leeds, L.

[* The Tellers for the Not-Contents reported 154 votes. The Clerks recorded 153 names.]

Resolved in the negative, and amendment disagreed to accordingly.

5.39 p.m.

[ Amendment No. 8 not moved.]

Moved, That the Bill do now pass.—( Lord Falconer of Thoroton.)

On Question, Bill passed, and sent to the Commons.