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,
this legislation. I suspect that that would be well within the reach of
future Governments upon consideration. At the moment, the House will
have no means of considering it after Third Reading. That will be the
end of the matter. There will be a reviewthat is
finebut only on specific elements and orders. That is why this
new clause is so important. I am not convinced by his comments, so I
wish to press the new clause to a
Division. 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
3Duty
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,
but in view of the fact that we have already discussed clauses 28, 29
and 30, I ask your guidance. Do you consider this to be an appropriate
time to discuss the new clauses, or do you feel that we should leave it
to a subsequent stage of the
Bill?
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.
Lorely
Burt: I apologise if I was misleading in describing
them.
New Clause
4Enforcement
action (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.
Lorely
Burt: I beg to move, That the clause be read a Second
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
proper function of the courts. New clause 4 proposes to remove that veto
and leave it to the courts, rather than the primary authority, to
decide whether enforcement action is unjustified in the light of advice
given to a company by the primary authority. It would protect the
Bills intention to promote consistency and deter unjustified
enforcement action without the attendant objectionable transfers of
power involved in clause 28. Subsection (1) of the proposed new clause
would improve the primary authoritys ability to focus its work
on the area of greatest need by ensuring that it has the fullest
possible picture of the companys health and safety
performance.
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. 2.15
pm 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
in the Bill by removing the primary authoritys right to
intervene and the enforcing authoritys right to take the matter
to arbitration through LBRO. That would give businesses less effective
protection. 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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