Regulatory Enforcement and Sanctions Bill [Lords]
Mr. Prisk: I am interested to hear some of the quotations. There are other quotations from other similar organisations, not specifically on the sunset clause, but on the measures that the Bill represents. The CBI says that the Bill represents for business a leap of faith. We need to be careful, therefore, about how we selectively quote what different organisations think.
Mr. McFadden: Would the hon. Gentleman accept that the quotes that I read out are specifically related to the sunset clause, and the quote that he has read out is not?
Mr. Prisk: Absolutely. Equally, in the end we have to decide whether what we do in this House is right. I am always happy to listen to the business audience and ensure that their concerns are accurately represented, as I have done in the past two days, but in the end we must make sure that this House reserves its right to consider these matters without due prejudice. I want to ensure that we do that properly.
The point about a sunset clause is not the presumption that we will remove the Bill; it is to provide a point when it can be replaced, removed or renewed. I suspect that the good elements, which businesses clearly wish to see maintained, would be renewed. A sunset clause is not final: it may be the end for the Bill, but it may not. It allows Parliament to consider whether what is on the statute book is working.
I accept that it is difficult to strike the right balance, and have said on a number of occasions that parts of the Bill have considerable merit. I welcome many of them, but I am sceptical whether others will achieve what the Government hope. I suspect that we share the hope for a better regulatory environment, but should the regime be permanent or, after reviewing particular elements of the Billbut not all, because we do not have that opportunityshould we have the option of annulling it on 1 January 2014, which after all is some distance off?
With respect to the organisations that the Minister mentionedI know them wellI do not buy the argument that the fact that there might be a review in Parliament of the Bill means that no one will make a deal or memorandum of understanding with a primary authority for the next six years. Neither do I buy the Ministers argument that the LBRO will struggle to survive or fulfil its functions, if on 1 January 2014 Parliament has the opportunity to reconsider how the legislation is operating. I fully accept that we will want to consider that carefully, and it might well be that a future Government at that point would wish to enhance, or even improve,
Question put, That the clause be read a Second time.
The Committee divided: Ayes 5, Noes 8.
Division No. 5]
Question accordingly negatived.
New Clause 3
Duty to secure observance of Code of Practice
Where any local authority has been granted powers under Part 3 of this Act, the LBRO shall have the duty or reviewing and, if appropriate, certifying every three years whether local authorities are compliant with the provisions of any Code issued under Section 22 of the Legislative and Regulatory Reform Act 2006..[Mr. Prisk.]
Brought up, and read the First time.
Motion made, and Question put, That the clause be read a Second time:
The Committee divided: Ayes 4, Noes 9.
Division No. 6]
Question accordingly negatived.
Lorely Burt: On a point of order, Mr. Chope. I seek your guidance before we proceed. I was somewhat surprised to see new clauses 4 and 5 on todays selection list. They were not originally chosen, but were both intended to be included with my amendments Nos. 58, 59 and 60, which would have replaced clauses 28, 29 and 30. I am ready, willing and able to go ahead with this discussion,
The Chairman: I am in the hon. Ladys hands. The new clauses are hers, so she can decide not to move them if she wants. The reason why they were not on the selection list for debate on the last occasion was that they were effectively starred. They were ruled out because sufficient notice of them had not been given before the Committee met. Now they are in order and in time. If she wants to discuss them, we can propose them and deal with them accordingly after she moves them. If she does not want to move them, that is her decision. I hope that that is helpful.
Lorely Burt: I am grateful for your guidance, Mr. Chope. I would therefore like to introduce the new clauses and explain why I wanted them included.
The Chairman: Order. The hon. Lady must realise that new clauses are separate items. One cannot discuss them together. They are not grouped for debate, so they must be discussed seriatim.
New Clause 4
(1) A local authority other than the primary authority (an enforcing authority) must inform the primary authority of any breaches of legislation of which it becomes aware.
(2) An enforcing authority wishing to take any enforcement action through the courts against the regulated person must seek a statement from the primary authority.
(3) Any statement issued under subsection (2) shall include
(a) Such information on the history of the relationship between the primary authority and the regulated person as the primary authority feels is relevant to the case; and
(b) any specific written advice that has been issued by the primary authority on the matter in question.
(4) Any statement issued under subsection (2) must be disclosed to the regulated person..[Lorely Burt.]
Brought up, and read the First time.
New clause 4 would remove primary authorities blanket power to prevent local authorities from taking enforcement action in their own area, while ensuring that the courts have the evidence that they need to treat business fairly and that primary authorities have intelligence on regulatory issues affecting the businesses that they work with.
Clause 28, which we have discussed, bestows on one local authority the power of veto over another local authoritys enforcement decisions. Not only is that undemocratic, but it gives the primary authority de facto powers of legal interpretation, which are the
Mr. McFadden: I ask colleagues to oppose the new clause if it is pressed to a vote. The Bill is about tackling inconsistency in local regulatory enforcement. I fear that passing the new clause would change fundamentally the balance of authority between the enforcing authority and the primary authority, therefore militating against the removal of that inconsistency, which is a central premise of the Bill. As the hon. Lady said, we are in the slightly odd position, technically, of discussing a new clause that, if passed now, would leave us with two parallel regimes. On Tuesday we discussed the primary authority scheme fully. However, I will leave that aside and deal with the new clause on its merits.
The new clause seeks to table an alternative approach to the primary authority partnership, whereby the enforcing authority would simply have to inform the primary authority if it was going to act, without the primary authority being able to take a view on that, as set out in the Bill. I understand that the original intention was to protect local authorities discretion to pursue any enforcement action that they choose by replacing the primary authority principle with an information-sharing provision. As I said, that is a very different relationship and, from the point of view of the regulated, would introduce much more uncertainty into the system. It would pose a serious question mark over why they should go to the trouble of constructing a primary authority relationship if the primary authority had no say over how the local enforcement authority was going about matters.
Businesses have asked us to provide access to a scheme that will provide them with more dependable advice and much quicker resolution of disputes between authorities, giving them the certainty and clarity that they seek. The Government start from the principle, enshrined in the Bill, that where a business and a local authority have gone to the trouble of establishing that primary authority relationship, there should be a presumption that the advice given by one professional should be respected by other professionals across the country, unless there areagain as set down in the Billemergency situations or other good reasons for an exception, particularly for local situations and so on. We do not want to undermine that relationship as a whole, as the new clause would do by removing the primary authoritys ability to intervene. In our scheme the primary authoritys right to direct that a particular action should not take place is only operative when the primary authority concludes that the enforcement action conflicts with advice.
The hon. Lady may remember that we had a discussion about the consistency of advice previously given to a business. The new clause would water down the provisions
The hon. Lady also talked about who interprets the law. I understand that concerns remain among some in enforcement about the primary authority or LBRO effectively having jurisdiction over enforcement actions that a particular authority may wish to pursue. She also raised a concern on Tuesday that the scheme gives the primary authority and LBROI think she used the phrase a moment or two agode facto powers of legal interpretation, which are the proper function of the courts.
Let me make it clear that the new provisions will not undermine the courts, nor take over the legitimate role of legal interpretation. The idea behind the scheme is that, where a local authority has given advice to a business and a business has followed that advice in good faith, businesses should, unless there are good reasons to the contrary, be able to expect that they will not have serious action taken against them by another local authority. Neither LBRO nor the primary authority can give a once-and-for-all answer about the legality of a particular approach. Rightly, that decision must lie with the courts.
One of the issues on which LBRO, in determining whether consistency can be upheld, can take a view is on whether the advice or guidance from the primary authority was correct. LBRO will not be giving the opinion that there is only one correct piece of advice or guidance, but will be giving the opinion that the advice or guidance is not inconsistent with its understanding of the law as it stands at the time of arbitration. It will not therefore be usurping the role of the courts over legal interpretation. If it is not satisfied on those points, the enforcement action may go ahead and that might, in turn, mean that the matter could go to the courts. The main purpose of the primary authority scheme is to provide the consistency of enforcement to which I have referred. That is a change from existing practice, but it is important. The proposed scheme would not deliver the same, and would maintain the inconsistency that the Bill is attempting to answer.
People have raised issues about the primary authority scheme, but I hope that I have outlined how it is circumscribed. I also hope that I have clarified what it will do, and what it will not do. In the light of that, I hope that the hon. Lady does not press the new clause to a Division.
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