Clause
9Advice
to Ministers of the
Crown Question
proposed, That the clause stand part of the
Bill.
Mr.
McFadden: I do not want to delay the Committee
unnecessarily. We have been talking all morning about the job that LBRO
is set up to do and whether it fills gaps in the current regulatory
market. One such gap is regarding advice to Ministers, which is covered
by clause 9. The Hampton review recognises that many of the
difficulties that regulatory enforcement poses for business, arise not
from any failing by the local authorities, but from the complexity of
the system that they sit at the centre of.
We expect
that LBRO will work to bring better co-ordination and intelligence to
the way that Government Departments and the national regulators work
together in setting the framework for local authority enforcement. LBRO
will have an insight into how regulation is enforced by local
authorities from the perspective both of those local authorities and
the businesses subject to the regulation. It is important that the body
has the power to advise Government on such matters, and perhaps to
challenge the various players in the field in order to make the system
more coherent and streamlined. Clause 9 provides such a power and makes
provision for LBRO to
“give advice or
make proposals to a Minister of the
Crown” regarding
the way that local authorities exercise such functions, the
effectiveness of the legislation, whether it would be appropriate for
other regulatory functions to be exercised by local authorities and
other matters relating to that. That is part of LBRO’s job, and
its advice function will be an important
one.
Judy
Mallaber: This is potentially an extremely useful part of
the Bill. Will my hon. Friend advise us on how open it would be for
local authorities to use this measure to express their concerns about
regulatory functions? For example, will they be able to talk about the
way that other Government agencies, besides those with which they are
directly involved, exercise their regulatory functions, or will they be
able only to comment and pass advice via LBRO back to Ministers
specifically in relation to their own regulatory functions?
Potentially, it could be an extremely useful mechanism that provides a
sounding board and guidance to Ministers across a broad range of issues
in relation to a regulatory regime that impinges on a local
authority’s constituents.
Mr.
McFadden: My hon. Friend is absolutely right. The local
authority voice is very important. As I have tried to explain, in LBRO
we seek something that sits at the centre of the regulatory system,
which involves central Government, local government, regulators and
business. Sitting at the centre of the system, LBRO will have an
important advice function. The local authorities that LBRO will deal
with on a day to day basis will be able to raise any relevant
issue—as in fact they already do in LBRO’s current form
of a company, and I am sure that that role will continue. The advice
function is important, which is why I wanted to draw it to the
attention of the Committee.
Question
put and agreed to.
Clause 9
ordered to stand part of the Bill.
Clause 10
ordered to stand part of the Bill.
Clause
11Enforcement
priorities Question
proposed, That the clause stand part of the
Bill.
Mr.
McFadden: This clause is also important because it deals
with the priorities for regulation at a local level. Over the years,
different priorities have been given to local authorities to enforce.
Local authorities have said to us in the past, quite fairly, “We
are being asked to do a lot of different things. A list of things that
we are asked to do by all the different Departments would be
long.” With that in mind, the Government recently asked
Mr. Peter Rogers to conduct a review of the different local
authority enforcement priorities, and to give some sense of priority to
the priorities, if I may put it that way. He produced an extremely
valuable list, and the clause will ensure that it is updated over
time. It
states: “LBRO
must...publish...a list specifying matters to which a local
authority...should give priority when allocating
resources” and
that local authorities
“must have
regard to the appropriate
list”. Of
course, rightly, subsections (5) and (6)
state: “LBRO
may not
publish” such
a list
“without the
consent of the Secretary of
State” or,
when relevant,
“without the
consent of the Welsh Ministers”.
I do think that this is
an extremely—
Mr.
Prisk: On a point of order, Mr. Chope. The
Minister is referring to a list of lists. It sounds fascinating, but I
am not privy to it, and I do not know whether other Members are,
including the hon. Member for Solihull. We are not aware of what is on
the list of lists, and it would helpful if it could be made available
to the
Committee.
The
Chairman: That must be a matter for the
Minister.
Mr.
McFadden: Absolutely. This is a public document, so I am
happy to furnish the hon. Gentleman and other members of the Committee
with the fruits of Mr. Peter Rogers’s work.
The clause is
important because it was a valuable piece of work. Local authorities
will welcome some sense of what they are expected to concentrate on.
The clause gives LBRO the job of ensuring that the list is kept up to
date, but I am happy to furnish the hon. Gentleman with a copy of
Mr. Rogers’s
report.
Mr.
Prisk: I am grateful to the Minister for agreeing to
provide us with that report, not least because one of my questions was
how prescriptive such a list would be. Clearly, the Minister is ahead
of the legislation.
I agree that
clause 11 is important, but will the Minister say where there could be
dilemmas? In particular, if a local authority has chosen to focus on a
particular problem in its area, why should the LBRO interfere, and how
would it do so? That question would certainly be asked by some of our
constituents. Let
us take, for example, Wolverhampton, given that it is familiar to the
Minister. If the good burghers of Wolverhampton felt that sorting out
bad licensees was their No. 1 priority, how would the requirement to
“have regard to” a national list work? Who resolves
whether or not Wolverhampton is completely ignoring the aforementioned
list of lists because it is determined to resolve bad licensees? How
does Wolverhampton allocate its resources to square the circle that the
Minister described? On the one hand, it must be able to deal with the
problems that it faces in its own area and, on the other, to
“have regard to” what would clearly be national
priorities. Who resolves such a
conflict?
Mr.
McFadden: The phrase “have regard to” is the
key to the problem. The measure is not a power of direction like the
one we discussed in our debate on clause 7. It says to local
authorities, “The Government understand that you are often asked
to do many different things by different Departments. We hope it will
be helpful if we publish a list of all the things that we want you to
have particular regard to, to give you some sense of
priority.” 12.15
pm
The hon.
Gentleman used the example of the fine city of Wolverhampton and
circumstances when a Wolverhampton council would wish to prioritise
licensing. As coincidence has it, licensing is one of the areas
highlighted by Peter Rogers. The others were air quality, hygiene of
food businesses, improving health in the workplace, fair trading, and
animal and public health. I do not wish to rest the case just by saying
that the example that he cited happened to be on the list. Let us
say that Wolverhampton wished to do something that was not one of those
six
priorities. We
are not talking about the power of prohibition, but the list is a
welcome guide to Wolverhampton city council and other local authorities
saying, “Of all the different things that central Government ask
us to do, what do they really think that we should be spending our time
on in enforcement?” It does not prohibit a local authority from
looking beyond the list and saying that the six areas are fine, but
they have a problem with area No. 7. The list is not a prohibition. It
is something that may change and evolve over time, which is why clause
11 is part of the
Bill.
Mr.
Prisk: I am grateful to the Minister. When focusing on the
delightful city of Wolverhampton, it is such a pleasure to hear the
gentle lilt of the Wolverhampton
accent. As
for Wolverhampton’s priorities, one of the issues that we looked
at under clause 7 was the power of direction. Can the hon. Gentleman
confirm that that power does not relate to anything under clause
11?
Mr.
McFadden: The hon. Gentleman will be aware that the local
football team in Wolverhampton is called the Wanderers, so perhaps I am
not the first wanderer to have arrived in the
city. Clause
7 does not apply to the Rogers list. It is not a power of direction. It
does not apply in that way. I shall not go over the ground again. The
Rogers list and that sort of exercise is valuable to local authorities,
and the provision is about making sure that that value is maintained as
time goes
on. Question
put and agreed
to. Clause
11 agreed
to.
Clause
12Relationship
with other
regulators Question
proposed, That the clause stand part of the
Bill.
Mr.
Prisk: I want to pursue the relationship between the LBRO
and other regulators. The clause does not deal with local authorities,
but other regulators such as the Environment Agency, the Food Standards
Agency, the Gambling Commission, the Health and Safety Executive and
the Office of Fair Trading. We all know that those bodies all have
other duties beyond the specific regulatory matters dealt with under
the Bill. To put it briefly, what happens when the LBRO’s
priority or guidance is perceived by those regulators as being contrary
to their work or in danger of being in conflict with other duties? A
classic example could be the Environment Agency, which clearly has
other duties under law beyond the immediate regulatory issues that are
before
us.
Mr.
McFadden: There are two main points to make about the
clause. Subsection (1)
states: “LBRO
and a regulator to which this section applies must enter into a
memorandum of understanding with each other as to how they will work
together”. The
clause then lists the regulators under subsection (2).
Organisations such as the Environment Agency and the
Food Standards Agency are major national regulators. They were keen to
establish that, when LBRO was set up, there was an understanding of how
they should work together. It is envisaged that the documents will set
out the ground rules for mutual consultation and so
on. My
second point is that the clause is permissive in the sense that other
MOUs could be conducted with other organisations. The hon. Gentleman
also asked what would happen if a conflict arose, the bone of his
question. I stress that the organisations listed would retain their
statutory independence. They will have to discuss matters maturely. I
do not want the hon. Gentleman to feel that there will be some kind of
takeover of these organisations by the LBRO. We are talking about
memorandums of understanding, and the organisations concerned will
retain their statutory independence under the clause.
Question
put and agreed to.
Clause 12
ordered to stand part of the Bill.
Clauses 13
and 14 ordered to stand part of the
Bill.
Clause
15Guidance
or directions by the Secretary of
State
Mr.
Prisk: I beg to move amendment No. 27, in
clause 15, page 7, line 38, leave
out subsection
(6).
The
Chairman: With this it will be convenient to discuss the
following amendments: No. 28, in clause 15,
page 8, line 1, leave out subsection
(7). No.
29, in
clause 16, page 8, line 25, leave
out subsection
(6). No.
30, in
clause 16, page 8, line 28, leave
out subsection
(7).
Mr.
Prisk: These are merely probing amendments, and I do not
intend to press them further, but I do want to ensure that there is a
degree of clarity.
On clause 7,
with regard to guidance, we debated the precedent of a non-departmental
body being able to use directional powers. Clause 15 prohibits the
Secretary of State from directing the LBRO with regard to
its clause 7 powers. I wanted briefly to explore with the Minister the
thinking behind that exclusion.
Mr.
McFadden: Part 1 specifies two distinct direction-giving
powers. The first, which we have discussed, is LBRO’s right to
give local authorities directions to comply with guidance under clause
7. The amendments deal with the second power, which relates to a
Minister’s right to give directions to LBRO. It is intended as a
reserve power. LBRO needs to be independent, but as the hon. Gentleman
rightly said on an earlier point, Ministers remain accountable to
Parliament for its work. If we found ourselves in a situation where
LBRO was acting against the public interest, we would need to exercise
such a power. It is unlikely that the power will be used, but it is
perhaps prudent to have it in case it is needed.
The issue was
included in response to a recommendation by the Delegated Powers and
Regulatory Reform Committee. The Committee drew attention to the
potential uses to which the two directional powers could be put in
combination. It was concerned that Ministers could direct LBRO to
direct multiple local authorities and that that would give the power a
quasi-legislative character.
It felt that the issue needed to be dealt with and recommended that
parliamentary scrutiny be applied where LBRO used its directions for
more than one local authority and where Ministers had
instructed it to do so. Following amendments to implement those
recommendations, both can be done only with parliamentary approval.
Ministers are unlikely to use their direction-giving power in the sense
that I have set out, but a safeguard should be in place. I hope that
clarifies that, in phrasing the clause in the way that we have, we are
responding to concerns raised by the Delegated Powers and Regulatory
Reform Committee.
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