Supplementary memorandum submitted by
LACORS
INTRODUCTION
1. The Local Authorities Co-ordinators of
Regulatory Services (LACORS) along with the local Government Association
(LGA) and Welsh Local Government Association (WLGA) have oral
evidence to the committee on 20 May 2008.
2. LACORS is an established local government
body working with and on behalf of local authority associations
across the UK. We aim to facilitate best practice and consistency
in the enforcement of regulatory services provided by local councils.
LACORS is committed to the improvement agenda in this area. LACORS
also works to influence legislation to ensure that the requirements
of local councils are understood, and Government policy can be
practically enforced.
3. LACORS works with all councils across
the UK in a number of key regulatory areas, including environmental
protection, animal health and welfare, trading standards, food,
health and safety, licensing, gambling and private sector housing.
4. At that hearing we were asked to provide
supplementary detail about our concerns about new legislation
coming through the system and the RES Bill. This document outlines
that additional evidence.
NEW LEGISLATION
5. Despite the focus on better regulation
and simplification of regulation we do continue to be asked to
participate in discussions about new legislation or regulatory
initiatives where we seriously question the need and enforceability
and thus the additional burdens to both business and local councils
in having to enforce the legislation.
6. As requested by the Committee I have
outlined in paragraphs 7-12 below some recent examples. These
specific examples relate to legislation that applies in England
and Wales.
7. There is a proposal from Defra/BERR for
a suggested retail ban on products made from illegally sourced
wood. This was also proposed in a recent Private Members Bill
which I understand was unsuccessful but the government are now
looking at proposed regulation. LACORS is clear that the only
realistic way to control this is at point of import where it is
possible to trace documentation showing the source of the wood.
We also feel it is questionable as to what actual impact this
type of regulation would have on the very real problem of illegal
logging which it would seem needs regulating and controlling at
the point of the logging activity not so much further down the
supply chain where enforceability becomes almost impossible.
8. There are similar proposals from BERR
regarding the ban of the sale of products that include cat and
dog fur. Again it is our position that the only logical way to
regulate this market is at point of slaughter and at point of
product import. Nevertheless we have been advised by BERR that
the Government has already given a commitment in Europe to take
forward the ban and will be putting the enforcement responsibility
on local councils trading standards authorities to carry out the
work.
9. The Violent Crime and Reduction Act will
bring into force, on 5/6/08, Alcohol Disorder Zones. The licensed
trade, police and local councils are all against the introduction
of these zones as the processes are in our view very bureaucratic
and it adds additional burdens to both enforcers and businesses.
Businesses can be levied additional charges if these zones are
deemed necessary in their area. Indeed the Merits of Statutory
Instruments Committee also raised serious concerns. They rejected
the first draft of the regulations and the second version elicited
the following comments:
"We are still left without a clear idea
of.how ADZs offer benefits additional to the other methods for
combating alcohol-fuelled disorder that are already available
to the local authorities. The RIA is that provided for the Bill
in 2005, and we question how robust the Home Office's estimates
of the anticipated benefits can be if extrapolated from these
figures."
"The Home Office estimate in the RIA that
30 areas will commence the ADZ process in the first year, but
only six will move to the charging regime. The Home Office have
not supplied projections for subsequent years, which they say
will be reviewed after the first year of implementation. The Local
Government Association (LGA), which wrote to us about the original
draft of the Regulations expressed `serious misgivings about this
policy', questioning in particular how they are to recover set-up
costs in the anticipated 80% of cases where the issues are resolved
before the charging regime can be initiated, and whether they
will be liable for the costs incurred by other agencies if the
income from ADZ charges is inadequate. The Explanatory Memorandum
shows that other significant consultees hold the same view".
"We are left with the impression that the
system will be unduly bureaucratic and without a clear idea of
how ADZs will fit in with the other items in the local authorities'
toolkit for combating alcohol-fuelled disorder. We were not clear
why this policy was required in addition to voluntary measures
such as Business Improvement Districts, or enforcement action
such as suspending the licences of delinquent bars, or charging
delinquent individuals under existing legislation".
"Our concern is about the transparency and
practicality of this proposal: we suspect that, if implemented
as set out, this charging structure could result in a large number
of individual premises contesting the level of their charge in
comparison with that of their competitors, which would result
in a significant diversion of local authority resources from addressing
the alcohol disorder problem".
"We wonder how many local authorities will
make use of this policy given its complexity, and we draw the
Regulations to the special attention of the House on the ground
that they may imperfectly achieve their policy objectives".
10. We are also aware that the Secretary
of State for Culture Media and Sport announced on 4/3/08 that
there was going to be a new regulatory regime for businesses selling
alcohol to children involving a yellow card/red card system. Local
councils had not been consulted on this and to our knowledge neither
had the police or industry. We are unclear as to how this regime
is anticipated to work. Further discussions are now taking place
but this is after the Ministerial commitment to implementing the
proposal.
11. The Animal Welfare Act came into force
last year. This was a much welcomed modernisation of very old
animal welfare laws. However there is a raft of secondary legislation
due under the act some of which we have serious questions about.
The government however is proposing regulating a range of new
businesses (such as bringing in licensing requirements for livery
yards) which local councils have never been convinced of the need
for but would add new burdens and costs to the businesses involved
and to the councils who would have to administer licensing.
REGULATORY AND
ENFORCEMENT SANCTIONS
BILL
12. I attach as Annex 1, the recent briefing
we provided for MPs on the RES Bill for its second reading in
the House of Commons on 21/5/08.1 hope this will provide Committee
members with the detail of our position on the Bill and LBRO.
Annex 1
REGULATORY ENFORCEMENT
AND SANCTIONS
BILL
House of Commons Second Reading, 21 May 2008
LACORS/LGA/WLGA Key Messages on the Regulatory
Enforcement and Sanctions Bill
— LACORS, the LGA and the WLGA want
to ensure that the bill facilitates efficient, less burdensome
regulation for councils and businesses, and are supportive of
the role of the Local Better Regulation Office (LBRO) in delivering
this.
— We are very concerned about proposals
to introduce a statutory role for Primary Authorities. Businesses
operating in the area of more than one council would have a "light"
to a primary authority partnership arrangement with one of those
councils.
— We strongly believe that the proposed
power for LBRO to "nominate" a council to act as a Primary
Authority interferes with a council's right to decide on its own
service provision.
— We support powers which would allow
councils to use a broader range of sanctions, but these should
be simple and cost effective to use. There must also be provision
to allow councils to retain their existing civil and criminal
sanctions, which are necessary for public safety and protection.
— We strongly oppose any further measures
to allow the LBRO to impose prescriptive controls on councils
as to how they deliver their local regulatory services.
Your contacts at LACORS: For further information
on this briefing, please contact Abigail Mahony, Policy Officer
on 020 7665 3865 or email abigail.mahony@lacors.gov.uk or Charles
Loft, Policy Officer on 020 7665 3874 or email charles.loft@lacors.gov.uk
KEY PROPOSALS
Part 1—The local better regulation office
— Clause 5 sets out the objectives
of the LBRO which are to ensure that local authorities exercise
their regulatory functions (namely trading standards, environmental
health and alcohol licensing) effectively, in a manner which does
not give rise to unnecessary burdens, adheres to the principles
of transparency, accountability, proportionality and consistency
and is targeted only at cases where action is needed.
— Clauses 6 and 7 allow LBRO to produce
guidance for councils as to how to exercise their regulatory service
functions, and give LBRO the power to direct councils to comply
with this and other guidance.
— The bill gives LBRO the power to
prepare and publish a list of priorities which councils should
have regard to when allocating resources to various functions.
— The bill requires that the Secretary
of State must carry out a review of the effectiveness and efficiency
of LBRO's function after three years.
LACORS/LGA/WLGA VIEW
— Whilst accepting that improvements
can always be made, it is felt that in general councils already
deliver their regulatory services in a targeted, transparent,
accountable and proportionate way.
— In England the National Improvement
and Efficiency Strategy, which was published in December 2007,
commits central and local government to developing a new, joint
approach to supporting improvement that is owned and driven forward
by local authorities and their partners. It includes the strong
message that the arrangements for offering improvement and efficiency
support from both central and local government need to be effective,
simplified and rationalised. Local government and partners recognise
that they must take increasing responsibility for eliminating
poor performance where it remains. It is therefore felt that the
power for LBRO to direct that a council comply with guidance is
an unnecessary addition to centralised powers, and it is at odds
with the Government's commitment to devolution and local choice.
— We welcome the commitment to review
the function of the LBRO. However, we would like clarification
that the Secretary of State will consult LACORS and councils when
conducting the review.
Part 2—Co-ordination of regulatory enforcement
— Clauses 25 and 26 allow for the nomination
of Primary Authorities. Clause 26(1 )(b) allows LBRO to nominate
a council as a Primary Authority if a business ("regulated
person") has requested such a partnership. A business can
ask for a Primary Authority partnership if it carries on an activity
in the area of more than one council and each of these councils
is responsible for enforcing the same type of legislation.
— A Primary Authority will give a business
advice and guidance in relation to trading standards and/or environmental
health matters. This function is set out in Clause 27.
— By virtue of Clause 28(1) a council
wishing to take enforcement action against a business must notify
the Primary Authority. Clause 28(2) states that if the Primary
Authority determines that the proposed enforcement action is inconsistent
with advice or guidance issued by it then it may direct the enforcing
authority not to take the enforcement action. The Primary Authority
has five working days to determine if it wishes to direct an enforcing
authority not to take action (Clause 28(9)(a)).
— Schedule 4 allows the enforcing authority
to refer the matter to LBRO if the Primary Authority directs that
it cannot take the action, or the business to refer the matter
to LBRO if the Primary Authority has not directed that enforcing
authority cannot take the proposed action. The Primary Authority
may refer the matter to LBRO instead of making the determination
itself. This gives LBRO the power to direct a council not to take
enforcement action.
LACORS/LGA/WLGA VIEW
— LACORS, LGA and WLGA have serious
concerns about creating statutory Primary Authorities. We do not
agree with the power for LBRO to nominate a council as a Primary
Authority without its agreement, we do not see how such a forced
relationship could work or deliver positive outcomes for either
party or for consumers. It is also felt that this interferes with
a council's right to decide on the service it wishes to provide
for its own electorate.
— We have significant concerns that
the regime set out in Clause 28 and Schedule 4 for taking enforcement
action would amount to a fettering of a council's right to take
any action it feels is appropriate against someone it believes
has committed an offence in its area. For one council, or LBRO,
to direct another council not to take enforcement action is undemocratic,
and an interference in the principles of the judicial system.
In the case of LBRO directing a council not to take action this
also amounts to a centralisation of power.
— In relation to the five working days
time limit for a Primary Authority to determine whether it wishes
to direct an enforcing authority not to take action, we believe
this is wholly unrealistic. LBRO has 28 days to make a decision
in cases referred to it, and we propose that Primary Authorities
are also allowed 28 days.
— LACORS has supported and facilitated
the existing voluntary Home and Lead Authority arrangements for
many years and believes that they assist in delivering more effective
regulation. There are currently in excess of 9,000 entries listed
on the LACORS Home Authority Principle database. In a survey[14]
of the business perception of the Home Authority Principle, 69%
of all respondents were in agreement with a range of positive
statements made about Home Authority relationships. It is not
felt that the imposition of a statutory regime is necessary.
Part 3—Civil Sanctions
— Clauses 40 and 43 set out bureaucratic
and lengthy procedures for administering fixed monetary penalties
and discretionary requirements, namely variable monetary penalties,
stop notices and enforcement undertakings.
— Clause 65 requires regulators to
publish details of civil sanctions imposed.
LACORS/LGA/WLGA VIEW
— We are concerned about the overly
bureaucratic procedures for fixed penalty notices and discretionary
requirements. These require a notice of intent to be served in
advance of the final notice, and will make the whole process time
consuming and bureaucratic.
— We also feel that regulators should
be able to recover their enforcement costs for fixed monetary
penalties and enforcement undertakings in the same way that the
bill allows them to for discretionary requirements.
— We have no objection in principle
for the requirement to publish details of civil sanctions imposed,
however we would like to clarify that this requirement will be
simple, and will not impose undue burdens on councils.
Part 4—Regulatory burdens
Clause 72 places a duty on the regulator not
to impose unnecessary burdens, or to maintain burdens which have
become unnecessary. The regulator must also publish a statement
setting out what it is going to do in relation to not imposing
unnecessary burdens. Clause 73 allows Ministers/Welsh Ministers
to make an Order imposing this duty on specific regulatory functions.
LACORS/LGA/WLGA VIEW
It is felt that the provisions in Part 4 are
unnecessary in relation to local council regulatory services.
Most councils already adhere well to the principles of good regulation,
carrying out their regulatory functions in a manner that is transparent,
accountable, proportionate and consistent. In addition, m England
the National Improvement and Efficiency Strategy commits central
and local government to a joint approach to supporting improvement
that is owned and driven forward by local authorities and their
partners.
Councils are already subject to an extensive
regime of control, overview and scrutiny of their conduct, and
we do not feel that there should be any additional performance
monitoring and reporting burdens. Councils also now have to comply
with the Regulators Compliance Code which states that regulators,
including local authorities should review their regulatory activities
and interventions with a view to considering removing or reducing
the regulatory burdens they impose. Further, councils do not produce
new legislative burdens on businesses. We are of the view that
the provisions in Part 4 should apply to the national regulators
only.
May 2008
14 Business Perception Survey on the Home Authority
Principle. LACORS/DTI, June 2005. Back
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