Mr.
McFadden: The hon. Member for Hertford and Stortford posed
two questions in moving his amendment. One was why the Government had
changed their position somewhat on the issue since the draft Bill was
published and the other related to the relevant time, so I shall try to
cover both points. He is right that there was something of a change in
the position and that the amendment he proposed would take us back
closer to where the process started in the original consultation. I
will explain why the Government changed their view on that during the
consultation. Subsection (2) is clear about what the grounds are. It
states: “If
the primary authority determines within the relevant period that the
proposed enforcement action is inconsistent with advice or guidance
previously given...it may within that period direct the enforcing
authority not to take the enforcement action.”
The test, therefore, is
inconsistency with advice or guidance previously given, and that test
is narrower than the one we originally proposed and the one outlined in
the hon. Gentleman’s amendment, which would be whether it was
inappropriate.
When we
consulted on that issue before the final version of the Bill was
published, a number of stakeholders and local authorities told us that
they were concerned about that because it would give the primary
authority a role that was more akin to a free-ranging right of review,
rather than asking it to answer what is a clearer and more narrowly
defined question on whether the enforcing authority had acted in a
manner consistent with the advice that was given. We took those
representations on board and narrowed them down somewhat. In doing so,
I believe that we have, to some extent, eased the burden on primary
authorities with regard to what they are required to look at in those
circumstances. Some primary authorities—even very experienced
ones—have a number of headquarters in their areas. We are
concerned that a wide test, such as the test of inappropriateness,
would leave them having to play a much more interventionist role,
rather than judging enforcement action on the basis of consistency of
advice.
Judy
Mallaber (Amber Valley) (Lab): I can see that my hon.
Friend is saying that it gives a narrower power of discretion and
judgment to the primary authority. However, there could still be
circumstances in which the enforcing authority felt that it had a good,
specific, local reason to take different action from that in the
original guidance. Will my hon. Friend tell me what the situation will
be? Will there be a right of appeal to the LBRO and whose view would
ultimately prevail in that
circumstance?
Mr.
McFadden: That is where LBRO’s arbitration role
comes in. My hon. Friend is right to say that. If the test was the
original, wider appropriateness test, rather than the consistency test
that we have now written into the Bill, there would probably be many
more appeals to
LBRO. I
hope that helps the hon. Member for Hertford and Stortford in relation
to his amendment. I understand what he is driving at, as it is pretty
close to the position where the Government began on this. However, we
have listened to the representations about the burden that would be put
on primary authorities. As I said, significant concerns were raised by
people charged with enforcement. They said that giving primary
authorities such a general right to block enforcement action would be
wide-ranging—much more so than the consistency test—and
that it would put a substantial burden of liability on the primary
authority, which would find itself required to make a thorough
investigation of every aspect of a particular enforcement
action. This
morning, we discussed the concerns of the hon. Gentleman’s local
authority about the burdens that will potentially be imposed on it by
the Bill. My fear is that, compared with the consistency test, the
amendment would increase those burdens. That is why we have made the
change. Before
I turn to a further point made by the hon. Gentleman, I will mention a
couple of the stakeholders who have commented on this. Representatives
of the professions involved, such as the Trading Standards Institute
and the Chartered Institute of Environmental Health, have welcomed the
change we will make in this regard. The consistency test gives the
primary authority more of an objective role, which is founded on
judging the action against the advice that it has given. That is why we
have narrowed the power in that respect.
On the point
about the extension to the normal deadline of five working days, the
hon. Gentleman is right that the normal deadline would be five working
days. However, subsection (9)(b)
states, “such
longer period beginning with that day as LBRO may
direct.” In
the conversations that we have had with local authorities, including
Hertfordshire council, five working days is thought to be sufficient in
the vast majority of cases and is normally enough to give the enforcing
authority time to judge the consistency test, about which we are
talking in relation to the clause.
The ability
to extend the deadline has been included to provide some flexibility in
situations where, for one reason or another, it might not be possible
for the primary authority to respond in five days. For example, a
particular event in the primary authority area might mean that staff
are diverted on a short-term basis and that the primary authority is
unable to commit resources to considering such a referral. A case might
be particularly complicated and occasionally might take longer than
five days. The Local Authorities Coordinators of Regulatory
Services—the local authority regulation body—has
commented on the Bill and has recommended that we extend the term from
28 days as a matter of course. We do not want to do that because we
agree with the hon. Gentleman: time is money and we do not want
unnecessary extensions. Five days should be the norm in most cases.
However, we do think that the provision for some flexibility makes
sense. I hope that on that basis, the hon. Gentleman will not choose to
press the
amendment.
Mr.
Prisk: The debate has been helpful. I understand that it
was slightly ironic to propose what the Government were originally
proposing and then to watch the Minister explain why they have changed
their mind. It is very good to
see—
Mr.
McFadden: It is all part of the
consultation.
Mr.
Prisk: The listening Government. I am sure that that is
all part of the process and we just hope that it is more successful
than it has been elsewhere in Government business. It is entirely right
that the Minister should reflect that consultation and that is
welcome.
With regard
to amendment No. 31, I confess that the moment the phrase “28
days” loomed I suddenly thought that we were in another place,
discussing other matters. Thankfully, I do not feel so passionately
about it that I feel the need to leave the room, but the debate is
important.
It was
particularly helpful that the Minister made it clear that the
Government’s wish and the LBRO’s wish is that five days
is the norm and that there has to be a jolly good reason for going
beyond that. That is an assurance that I know small businesses will
want. The idea that 28 days should be the norm is nonsense; it might be
convenient for the local authorities, but in the end the paying
customer is the small business. Small businesses are the ones who all
of us in the public sector rely on to generate the wealth to pay for
our incomes and we should not forget that. Although I understand that
there will be exceptional cases, as long as that is the case and as
long as we recognise that five days is the
normality, it would seem that we have made a gain today. On that basis,
I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 28
ordered to stand part of the
Bill. Schedule
4 agreed
to.
Clause
29Enforcement
action:
exclusions Question
proposed, That the clause stand part of the
Bill.
Mr.
Prisk: I should like to raise some short questions,
principally with regard to subsections (1) and (2). I am sure that the
Minister will want to provide clarity to us. First, subsection (1)
states: “The
Secretary of State shall by order with the consent of the Welsh
Ministers prescribe circumstances in which section 28(1) to (4) shall
not
apply.” It
would be helpful if he described the circumstances in which
consultation would not take place as it is not clear what that would
extend to.
Secondly,
subsection (2)
states: “Where
a local authority other than the primary authority takes enforcement
action against the regulated person in circumstances prescribed under
subsection (1), the authority must inform the primary authority of the
enforcement action it has taken as soon as it reasonably
can.” When
informing a primary authority of enforcement action, given that people
are waiting to know the sanction that may or may not be imposed on
them, what would the Minister regard as unreasonable?
Thirdly, can
the Minister tell us when it would be impractical to contact the
primary authority? That is clearly a concern and it would be useful to
know what exactly the Government have in
mind.
Mr.
McFadden: I hope I can shed some light on the hon.
Gentleman’s questions. As he rightly said, clause 29 allows the
Secretary of State to prescribe the circumstances in which the
procedure requiring an enforcing authority to notify a primary
authority of proposed enforcement action shall not apply. I shall
provide some examples later, but I think that we can all probably think
of examples where action needs to be taken then and there, where it may
not be practical to do what is proposed, but I shall come on to that in
a moment.
The primary
authorities scheme is intended to provide consistency and certainty for
businesses operating in a number of local authority areas, but it is
also important that that should not be allowed to delay essential and
routine action by local authorities where it is appropriate. Our
extensive discussions with local authority enforcement officers and
their representatives have demonstrated that although it is important
that exemptions are made, the complexity and diversity of the
underlying regulations dealt with in the Bill mean that secondary
legislation is probably the most appropriate way of doing
so. 4.30
pm The
order-making power of clause 29 will allow for exemptions to be drawn
up. That would include exemptions where the enforcement action was
required urgently, for
example to avoid a significant risk of serious harm to human health or
the environment. I am sure that if we found somewhere serving unsafe
food we would not want to wait five days, 28 days or whatever may be
determined. Other cases might involve the financial interests of
consumers—if there is a serious fraud going on, or financial
interests are under threat—or where referring the case to the
relevant primary authority might be wholly
disproportionate. The
order may include, therefore, exemptions where delay would inhibit
effective evidence-gathering or investigation of a breach, or where it
would be impractical to seek the view of a primary authority when
exercising powers—for example, under the Noise Act 1996. If
speakers were blaring at 4 am, I do not think that we would want to
wait five days. The underlying regulations are deliberately local in
nature, and that could be another reason, as for example with many
aspects of the Licensing Act 2003, or where the enforcing authority
already has to seek approval for its proposed enforcement action from
another force—that would meet the purpose of the notification
requirement. We
have committed to laying an order under clause 29 as soon as
possible after the Bill has come into force. I am happy to repeat that
commitment to the hon. Gentleman today. I would also like to take the
opportunity to clarify that the primary authorities scheme will not
become operational until the exemptions have been drawn up and come
into force. That is the context and content of clause
29. Question
put and agreed
to. Clause
29 ordered to stand part of the
Bill.
Clause
30Inspection
plans Question
proposed, That the clause stand part of the
Bill.
Mr.
Prisk: I thought that the Minister was about to rise
gracefully to his feet and I hesitated, then he hesitated. I have only
one brief
question.
Mr.
McFadden: I apologise to you and the Committee for being
too slow off the blocks, Mr.
Chope. The
clause makes provision for a primary authority to draw up an inspection
plan containing recommendations as to how other local authorities
should inspect a business for which it is the primary authority. That
is important. It takes us back to the point made by the hon. Member for
Solihull about risk-based inspection. The clause is intended to bring
about greater consistency and co-ordination of regulatory enforcement
for businesses that adopt the primary authorities scheme. That is one
of the prizes in the regulatory regime—there can be an agreed
inspection plan, which gives local authorities and businesses some
clarity about what is inspected and what is appropriate in those
circumstances. Where
another authority departed from the recommendations of the inspection
plan, it would be required to notify the primary authority of that
before carrying out the inspection, giving its reasons. That would help
to support the sharing of strategic information between authorities. It
would be important for the
primary authority to learn why an enforcement authority might want to do
that. It also might give the primary authority a better picture of how
the business is operating throughout the
country. Subsection
(3) lists examples of issues that can be addressed in an inspection
plan, such as paragraph
(a): “the
frequency at which, or circumstances in which, inspections should be
carried
out” and “what
an inspection should consist
of”. The
list is not exhaustive. The Government’s expectation is that
inspection plans might address a number of other issues, including
those areas where a business is dedicating resource to raise compliance
itself, where that is an ongoing problem to which enforcement
authorities should pay particular
attention. There
are constraints on the content of an inspection plan. A primary
authority must consult with the business before making such a plan and
it must take into account any relevant recommendations relating to the
frequency of inspection when drawing up an inspection plan. Again, that
is an important part of the overall regulatory regime to encourage a
more co-ordinated and strategic approach. I am sure that all of us in
our constituencies regularly meet businesses that are asking for that
kind of consistency. Any reasonable business expects, and does not
mind, that it will occasionally be inspected. I recall visiting a
business in my constituency a couple of weeks ago, when the owner said,
“The trouble with inspections is that they are a bit like buses,
you get none for a long time and then four turn up at once. We are not
sure why, we have not been inspected for years”. An inspection
plan, agreed between the primary authority and the enforcing
authorities, would give businesses and the enforcing authorities
clarity about what was expected.
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