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“so far as is reasonably practicable”
makes it clear that regulatory decisions are made with reference to practical constraints, such as the expenditure incurred in meeting the objectives.
The hon. Member for Somerton and Frome (Mr. Heath), who will be pleased that, for once, I have managed to get his constituency right—
Mr. Heath: It is pronounced “Froom”.
Bridget Prentice: I shall keep practising; if I work hard enough, I might even end up with a west country accent.
I understand the sentiment behind the hon. Gentleman’s amendment No. 144. It is important that the board should have regard to the principle of best regulatory practice in all that it does; I cannot see why anyone would resile from that. That is why we have clearly set out in clause 3(3) that the board, as the hon. Gentleman rightly pointed out,
“must have regard to...the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and any other principle appearing to it to represent the best regulatory practice.”
However, as the hon. Gentleman also pointed out, those same principles are already set out in section 2 of the Legislative and Regulatory Reform Act 2006, so I consider it unnecessary to duplicate the provision in the Bill.
I turn to amendment No. 83, a minor amendment to ensure that the board is not prevented from exercising its functions for the purpose of ensuring that the exercise of an approved regulator’s regulatory functions is not prejudiced by its representative functions or that the decision relating to the exercise of an approved regulator’s regulatory functions is taken independently from the representative ones. I do not know whether anyone can understand that gobbledegook; I hope that Hansard will be able to translate it into normal English. In the past, both things had to apply; amendment No. 83 would effect a minor change so that the board would not be prevented from exercising its functions in that way.
Amendments Nos. 10, 11 and 12 ask for the seven-day requirement. The Bill already provides for a 28-day period before which the board can take action, and I do not believe that an additional seven days would achieve anything. It is also important that the board and approved regulators should remain in close contact throughout the period; the board, of course, is under a duty to be transparent. The approved regulator will be able to challenge the board, but obviously the board must be able to act swiftly and appropriately. When considering amendments Nos. 11 and 12, it is important that we remember that an appeal is available.
Amendment No. 11 would simply duplicate the appeals process, which could ultimately waste valuable time and resources to arrive at what would inevitably be the same conclusion. The current provisions do not prevent the case from proceeding to the Court of Appeal, in the event that that is appropriate.
Amendment No. 12 would remove an important provision and could produce the unwelcome effect of allowing for the possibility of two separate challenges being brought by the same applicant against the same decision on essentially the same grounds.
On amendment No. 66, it is clearly right that the board should act only where an approved regulator is “clearly failing”. However, that is a very imprecise term that does not translate well into legislation. There is the potential for creating confusion and contradicting the thresholds that already apply to the exercise of the board’s regulatory powers. Instead, I believe that the combination of the existing thresholds, the clause 3 duties and the amended clause 49 provisions should ensure that the board exercises its powers only where it is right to do so. I continue to believe that the Bill as currently drafted properly addresses all the concerns that hon. Members have raised.
Government amendment No. 84 will put it beyond doubt, in the Bill, that the legal services board may, if acting as an approved regulator and if set out in an order modifying the board’s functions, provide the
people whom it regulates with an appeal to the High Court against any decision that it makes. The effect of the amendment is that those bodies whose functions are modified under section 69 or paragraph 2 of schedule 22 can also receive a similar power.
For those reasons, I ask the hon. Gentleman to withdraw his amendments and ask the House to approve amendments Nos. 83 and 84.
Mr. Bellingham: I am grateful to the Minister for her explanation of Government amendments Nos. 83 and 84. She has made a strong case. Having listened to what she said, I can tell her that we support the Government on both those amendments.
I am also grateful to the Minister for explaining and clarifying some of the points that I made in proposing new clause 2 and the other amendments in my name and those of my hon. Friends. She made it clear that there is already sufficient protection for approved regulators who are censured or heavily fined.
I am glad that we had a debate on the very important matter of judicial review. That is a fairly specialised and arcane procedure but, on the other hand, it is a very important ultimate protection for people who feel that they have a grievance that needs to be righted in the courts. I am grateful to the Minister for clearly spelling out exactly what its scope is and how far it can go. That will be considered carefully in another place.
On conflicts of interest, I am glad that the Minister confirmed that there is a double lock. She is clearly confident that the existing rules remove any need for amendment No. 1. People who are taking a close interest in the Bill will look at the debate underlying some of the clauses. In my experience as a lawyer, there are occasions when people look carefully at the intent of Parliament in terms of how matters are handled in future, and I think that that will apply to what the Minister has said.
We had a debate in Committee, and there was a debate in the other place, on the wording,
“so far as is reasonably practicable”.
We have given that sufficient attention again this afternoon. I am glad that the Minister has had the opportunity to put her view on the record. She is keen to ensure maximum flexibility and to honour the principles behind Clementi. On that basis, I can understand exactly where she is coming from. I should tell her, however, that this particular issue will probably be returned to in another place. I hope that the Government have not given up completely on what we have said. It is the view of both main Opposition parties that there is a problem which, although minor, could and should be corrected.
I take on board the Minister’s point that she feels that amendment No. 66 would not translate very well into legislation. I accept that, and perhaps in another place a new attempt could be made to improve the drafting. For the time being, I am grateful to the Minister for her reply, and on that basis I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Bridget Prentice: I beg to move amendment No. 78, in page 3, line 33, leave out subsection (2) and insert—
‘( ) The Consumer Panel is to consist of such consumers, or persons representing the interests of consumers, as the Board may appoint with the approval of the Lord Chancellor.’.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss the following:
Amendment No. 6, in page 3, line 36, at end insert—
‘( ) The approval of the Lord Chancellor is required for the appointment of a person to be the chairman or to be another member of the Panel.’.
Amendment No. 7, in page 4, line 25, after ‘appointed’, insert
‘by the Board following public advertisement and selection by the prevailing standards for selection of members of public bodies and’.
Government amendments Nos. 79 and 80.
Amendment No. 8, in page 5, line 19, clause 11, at end insert—
‘(4) It shall be the duty of the Board (subject to subsection (5))—
(a) to provide the Consumer Panel with all such information as, having regard, in particular, to the need to preserve commercial confidentiality, the Board considers appropriate to disclose to the Panel for the purpose of enabling the Panel to carry out their functions; and
(b) to provide the Panel with all such further information as the Panel may require.
(5) The Board is not required to provide information by virtue of subsection (4)(b) if, having regard to—
(a) the need to preserve commercial confidentiality, and
(b) any other matters that appear to the Board to be relevant,
it is reasonable for the Board to refuse to disclose it to the Panel.’.
Amendment No. 24, in page 120, line 6, schedule 1, at end insert
‘with the concurrence of the Lord Chief Justice’.
Amendment No. 147, in page 120, line 9, schedule 1, after ‘Chancellor’, insert
‘with the approval of the Lord Chief Justice’.
Amendment No. 25, in page 120, line 9, schedule 1, at end insert
‘with the concurrence of the Lord Chief Justice’.
Amendment No. 26, in page 120, line 15, schedule 1, after ‘Chancellor’, insert ‘and Lord Chief Justice’.
Amendment No. 75, in page 120, line 17, schedule 1, leave out ‘first’.
Government amendments Nos. 103 and 104.
Amendment No. 27, in page 121, line 17, schedule 1, after ‘Chancellor’, insert ‘and Lord Chief Justice’.
Amendment No. 28, in page 122, line 6, schedule 1, after ‘Chancellor’, insert
‘with the concurrence of the Lord Chief Justice’.
Amendment No. 29, in page 122, line 7, schedule 1, after ‘Chancellor’, insert ‘and Lord Chief Justice’.
Amendment No. 30, in page 122, line 9, schedule 1, leave out ‘is’ and insert ‘and Lord Chief Justice are’.
Amendment No. 31, in page 122, line 18, schedule 1, at end insert—
‘(4A) Before removing the chairman under sub-paragraph (1)(b), the Lord Chancellor must seek the approval of the Lord Chief Justice.’.
Amendment No. 32, in page 122, line 19, schedule 1, leave out ‘removing’ and insert
‘the Lord Chancellor and Lord Chief Justice remove’.
Amendment No. 33, in page 122, line 20, schedule 1, after ‘Chancellor’, insert ‘and the Lord Chief Justice’.
Amendment No. 34, in page 122, line 21, schedule 1, after ‘Chancellor’, insert ‘and Lord Chief Justice’.
5.15 pm
Bridget Prentice: As you were reading out that list of amendments. Mr. Deputy Speaker, you reminded me of what the hon. Member for North-West Norfolk (Mr. Bellingham) said earlier about the debate and the number of amendments to be considered. I hope that hon. Members in all parties realise that the Government amendments are included because we have been listening to what Members have been saying in Committee and elsewhere. Hopefully, that should help us to speed through the debate, but I will not hold my breath.
A number of the points relating to the Government amendments and those tabled by others have been discussed at some length in Committee and in the other place, and the hon. Member for Huntingdon (Mr. Djanogly) made some valid points in Committee about the consumer panel and its appointments. Those should be independent and objective, and should be seen to be so. I said at the time that there was very little between us on that question of independence, and it is appropriate that the Lord Chancellor’s approval of appointments to the consumer panel should be obtained. That is why I have tabled Government amendments Nos. 78, 79 and 80. I hope that the hon. Gentleman can see that those amendments will achieve what is sought by amendment No. 6. Together the amendments not only ensure independence, but they add a level of parliamentary scrutiny and set out further detail on the terms and conditions under which appointments will be made, so that the process is absolutely transparent.
On amendment No. 7, hon. Members might be encouraged to know that as a consequence of the move to involve the Lord Chancellor in appointments to the consumer panel, there will be some degree of parliamentary accountability. Amendment No. 7 would set out requirements for the procedure for making appointments to the consumer panel, and I was concerned that setting out specific requirements in the Bill, such as a public advertisement, might reduce the flexibility of the appointments process, should it have to adapt to changing best practice. For example, the majority of the panel might already have been appointed and they may be looking for someone with particular skills or experience. In such a case, it might be unnecessary to have a widespread public advertisement when advertising in specialist publications or using
some other techniques might enable them to get to more appropriate people, more quickly and at lower cost.
Mr. Heath: I am listening carefully to the Minister. I hope that I am not understanding her to say that the Nolan principles should be set aside in certain circumstances.
Bridget Prentice: I absolutely reassure the hon. Gentleman that under no circumstances would that be the case. I am talking purely about the practicalities of where the best place might be to look for someone with specialist knowledge.
I know that consumer groups have been very supportive of amendment No. 8, and they are keen that the consumer panel should be properly equipped to fulfil its role effectively. However, I am not convinced that there should be an explicit duty on the board obliging it to provide the panel with any information that the panel regards as appropriate. Under clause 168, the board can already give the panel any information that will assist the board in exercising its statutory functions. We could get into a burdensome situation if it also had a duty to provide any information for which the panel might ask. There is a possibility of creating a knock-on effect, with the board having to defend itself with judicial review if it judged that it would be inappropriate to provide certain information, even if sound reasons underpinned that decision.
Let me deal with amendments Nos. 24 to 34 and 147, and Government amendments Nos. 102 and 106. I know that hon. Members appreciate the importance of independent appointment of members of the board—that has been debated at almost every stage in the Bill’s passage. We must all ensure that we achieve that. However, I explained at length in Committee why I cannot accept concurrence of the Lord Chief Justice in appointing the chair of the board.
The Bill is drafted to make it compatible with best practice, which, as the hon. Member for Somerton and Frome (Mr. Heath) said, means being compatible with the code of practice of the Commissioner for Public Appointments. The first principle of that code requires ultimate ministerial responsibility for appointments. That is essential to ensure that those who make appointments are properly accountable to Parliament.
Concurrence with the Lord Chief Justice would undermine that process because it gives someone other than a Minister a veto on appointments to the board. That runs contrary to the principle of ultimate ministerial responsibility. It removes the formal role of the Commissioner for Public Appointments in the oversight and regulation of public appointments and undermines parliamentary scrutiny and accountability in the process. I have therefore suggested that the Lord Chancellor should consult the Lord Chief Justice on appointments to and removals from the board. I have listened carefully to views in the House and I want to ensure that the board is not only independent but seen to be independent, without conflicting with the commissioner’s code at the same time as maintaining channels for proper parliamentary accountability.
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