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Lord McIntosh of Haringey: I do not want to re-open the debate. On behalf of the Government, I acknowledge what the noble Lord, Lord Dahrendorf, has just said. In so far as there are unreasonable demands on the Delegated Powers and Deregulation Committee, they are because of amendments--the noble Lord means government amendments--brought forward at a late stage to primary legislation. We have to do something about that. We have to do better than we have done in the past.

The second point I wish to make concerns the issue of workload. First, the powers provided in Clause 8 are simply a re-enactment of the powers in the Deregulation and Contracting Out Act 1994. No change has been made to those powers. Furthermore, I am not suggesting that the noble Baroness, Lady Buscombe, said that that was the case. The perfectly legitimate point that she made was that a new flush--it might or might not be called a deluge--of new orders might result, just as there was a flush of new orders after the 1994 Act. Although only 42 orders were finally laid, when that happened the workload of the Delegated Powers and Deregulation Committee increased. However, it managed well. Ways must be found to manage this because removing and decreasing burdens on business and on individuals is a worthwhile goal. Parliamentary scrutiny is essential to achieving that.

Clause 8 agreed to.

Clause 9 [Codes of practice relating to enforcement of regulatory requirements]:

[Amendments Nos. 68 to 73 not moved.]

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On Question, Whether Clause 9 shall stand part of the Bill?

6.30 p.m.

Lord Vinson: I am grateful for this opportunity to speak also to Amendments Nos. 75 and 78A standing in my name on the Marshalled List. In order to help the Committee to follow my argument, I should explain that Amendment No. 78A corrects a fault--with the wisdom of hindsight, it probably was a fault--in the enforcement procedures laid down in the 1994 Act. Amendment No. 75 preserves that part of the Act which would otherwise be abolished. Thus, Clauses 9, 10 and 11 of this Bill are unnecessary because we would retain the relevant parts of the previous Act, along with the enforcement procedures which accompanied them.

Perhaps it would be useful to the Committee if I gave some background to my amendments. Noble Lords will recall that, prior to the 1994 Act, we would read repeatedly in the newspapers accounts of the misapplication of enforcement orders where over-zealous officials--perfectly reasonably in that they were trying to do their jobs--got out of bed the wrong side, did not bother to do their homework correctly as regards the correct interpretation of the statutes they were enforcing and bulldozed in, thus unfairly generating a great deal of unreasonable and incorrect enforcement. At the time, the practice was strongly highlighted by that champion of the underdog, Christopher Booker. Indeed, today's "Christopher Booker index" of such unfortunate practices has dropped back. Huge improvements have taken place.

The enforcement procedures enshrined in the 1994 Act were responsible for those improvements. Prior to the Act, the regulated party felt that it was being regulated unjustly, the appeals procedures were arcane, tortuous and, in most cases, extremely lengthy. Ultimately, the only hope lay in judicial review. By that time, so much water had gone under the bridge, so much economic harm was done and such high costs were involved that a great many incorrect applications of the law were never put right. The revised enforcement procedures in the 1994 Act were designed to correct a situation which manifestly was causing public harm.

However, I suggest that the clever element in the Act was to recognise that the appropriate place to put right a misapplication of the law would be before it took place rather than to conduct endless subsequent appeals, with lawyers earning giant fees in their efforts to correct what should not have happened in the first place. The Act aimed to achieve a better and more sensible balance when working out precautions and so forth between the regulator and the party being regulated at the point of application, in readiness for the day when the regulation was to be enforced.

The consequence was that schedules were introduced which statutorily, as codes of practice were adopted, forced the regulator--at the point at which he was to apply the law--first to state clearly the

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relevant statute under which he was applying a regulation; secondly, to invite the regulated party to speak to his superior officer in order to establish a fallback in case someone got it wrong; and, thirdly, once he had decided to apply the law, to make clear to the regulated party the routes of appeal. The objective was that any official who wished to do his job fairly and properly could then be confident that, if taken to appeal, he would have a good case. He would not think twice about explaining the route to such an appeal at that point.

Although that was admirable, unfortunately, it was overdone and the law was, I believe, overly prescriptive. Amendment No. 78A seeks to correct what was an imbalance. The relevant clause in the original Act stated that the officer,

    "is considering taking the action and the reasons why he is considering it".

I do not think that that was what was intended. I believe that, from the first, the clause should have read, "when he intends to". I believe that the words "is considering" cause problems. The noble Lord, Lord Borrie, touched on this at Second Reading when he mentioned that enforcement officers were worried about the "minded to" clause, as they referred to it; namely, that when they were considering or "minded to" take action, at that point the regulations force them to explain the appeal procedures. Clearly that pulls the rug from underneath their argument because the threat of enforcement is their most powerful weapon. At the point when officers are only considering taking action, the strength of their position is unreasonably undermined. I accept that.

This amendment is designed to put the matter right by substituting the word "intends" rather than "is considering" so that when an officer is only considering taking action--which is the case most of the time--and thus only threatening his intentions, he will not have to make clear the full appeal procedures. However, at the point at which he intends to or does apply the law as regards any regulations, then he will do so. This would put right a previous wrong.

Because many regulatory authorities rightly did not like the "considering" and "minded to" procedures, they have in effect asked for the baby to be thrown out with the bath water. Thus all the sensible elements which were built into the enforcement procedures under Schedule 1 to the 1994 Act are to be thrown out by the legislation before us. I put it to the Committee that it would be far better to correct and then to continue to use the previous legislation. That is the burden of my proposal.

Baroness Gibson of Market Rasen: I rise to speak against Amendment No. 78A in particular. It is more restrictive than the Bill as currently drafted.

At present, the Bill is drafted with a view to avoiding formal action being taken whenever possible. It should allow for discussions and negotiations to take place, during which time it is hoped that agreement will be reached over any difficulties between those who must enforce the regulations and those who have to follow

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the regulations. The amendment would change this process and, in my view, that would not be for the better. Rather than the concept that enforcers "may" take action, the Bill would state that the enforcers "intend" to take action and therefore would give much less room for any negotiations or changing of positions to take place.

While serving on the Health and Safety Commission, I became very aware of how bureaucratic and confusing for everyone were the "minded to" provisions in health and safety legislation. It was a concept which was universally unpopular, not least with the officials who had to implement it. This contrasted with the proposals set out in the enforcement concordat which the Government have drawn up after considerable consultation with interested parties.

I am assuming that under the proposed new code a similar approach would be taken. It would give a chance for officials to talk over any particular area, with a view to resolving issues before any formal enforcement action is taken. This seems to me to be the most realistic and practical way to resolve difficulties whenever possible. Amendment No. 78A would appear to curtail this approach. I hope that the Minister will not accept it.

Lord Vinson: There is nothing between the noble Baroness and myself in recognising that the "minded to" proposals were harmful. But, contrary to what she is suggesting, my proposals meet that point. It depends on the way one reads them. Perhaps I have not drafted them very well. As it stands at the moment, when the enforcer is "considering", that is the point at which he is negotiating. Under my amendment, he can do what he likes when he is considering; he has the full powers to consider and to threaten without having to give the full route to appeal. It is only when he "intends"--when he has utterly made up his mind--that he has to give the appeal procedures. I think that that seems to meet the point of the noble Baroness, Lady Gibson, rather than going in the opposite direction.

Baroness Gibson of Market Rasen: It seems to me that the word "considering" is less positive than "he intends to take action". The word "intends" is the difficulty.

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