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Baroness Buscombe: I fully support my noble friend's amendment. As to the point made by the noble Baroness, Lady Gibson, Amendment No. 78A does not deny consultation or negotiation--far from it. The whole point of the amendment is to address what we believe to be the Government's concern in relation to that part of the 1994 Act--that it was overprescriptive; that it sent out the wrong signals to those on the other end of the enforcement process.
This is a straightforward point. It is absolutely to do with timing. The whole interpretation of the use of the words which are, in a sense, being exchanged here could make a real difference to the way in which the enforcement process would be carried out. At the risk of a repetition of my noble friend's words, we feel that
throwing the baby out with the bath water--which is what the Bill intends--would be a great pity; there was a lot that was good in Section 5 of the 1994 Act. We would much rather see an amendment to that Act. We believe that that would send out the right signals, allowing all possible opportunities for negotiations and consultations to take place, after which it may then be decided that enforcement should proceed.One of the enormous advantages of the amendment is that it would respond positively to a point made by the Minister earlier in our debates on the Bill in relation to what the noble Lord, Lord Renton, would say. If the amendment were approved and accepted, we feel that it would, first, entirely meet the Government's concerns; secondly, it would do away with a lot of unnecessary words in the Bill.
Lord McIntosh of Haringey: We would lose three clauses of this Bill but we would retain Section 5 and Schedule 1 to the 1994 Act.
Baroness Buscombe: We would retain an amended and improved 1994 Act.
Lord Borrie: Perhaps I may draw the Committee's attention to paragraph 17 of the Explanatory Notes to the Bill. When there was consultation by the then government at the end of 1996 on proposals to apply Section 5 of the 1994 Act to the fields of trading standards, care services and environmental health, businesses themselves, according to the Explanatory Note, felt that sometimes businesses were confused between a "minded to" notice and formal enforcement action. I should have thought the same objection applied, indeed, perhaps even more strongly, that businesses would feel that a statement that it was "intended" to--not merely "minded to"--bring enforcement action would also be confused with formal enforcement action.
The same paragraph of the Explanatory Notes refers to the fear of local authority enforcement officers--particularly trading standards officers--of the proposal to apply Section 5 of the 1994 Act to trading standards. They felt that it could so easily be manipulated by what they call "illegitimate businesses"--"rogue traders", if you like. I feel that that objection, too, applies to the noble Lord's suggested amendment.
Baroness Buscombe: Looking at the Minister, I have a feeling that we shall not get much movement on this issue at this stage. Perhaps I may suggest that discussion on this point with the noble Lord, Lord Haskins, in his role as the head of the Better Regulation Unit, may be able to help us. We should perhaps ask him whether in his view this would be a sensible amendment.
Lord Goodhart: Perhaps I should make it clear that we on these Benches regard Clauses 9, 10 and 11 as a considerable improvement on the provisions in the 1994 Act, whether amended as proposed or not.
Lord Vinson: Did I hear the Minister, who is always so courteous in these matters, suggest that Schedule 1
could be amended to make the difference between "considering" and "intends" quite clear? It is a very substantial difference. I believe that, on consideration, the noble Lord, Lord Borrie, would feel that this would meet his enforcement officers' fears. They are only fears; examples have not been given of where they have met corrupt traders who have exploited them through these procedures.Perhaps the Minister will look at Amendment No. 78A. If he does not like the wording, perhaps he will come up with something that will put right what was obviously wrong or overprescribed in the previous Bill, and incorporate these schedules, as modified, in any guidelines for future procedures or codes of conduct.
Lord McIntosh of Haringey: So far, I have hardly said a word. Everyone is acting as if I have made a speech and they are putting words into my mouth. All I commented on was the suggestion by the noble Baroness, Lady Buscombe, that if we removed Clauses 9, 10 and 11 we would reduce the volume of the statute book. I contested that by reminding her that a large part of the 1994 Act would remain on the statute book.
I have difficulty with these amendments. History shows that there are difficulties which go back a long way--and that includes Amendment No. 78A, which I take seriously. I pay tribute to the noble Lord, Lord Vinson, for his active role in the passage of the 1994 Act. He expressed concerns--which the government of the day took very seriously--that it would be difficult if businesses, in particular, were suddenly leapt upon and told "For reasons you did not understand before, this is now illegal".
The noble Lord persuaded the previous government to put in a whole series of procedures in Schedule 1 to the Act which provided that they would, to begin with, have to go along to businesses and say, "We are minded to take action", thus providing the opportunity for discussion. However, it did not work. Having paid tribute to the noble Lord for his diligence in that respect, I have to say that it did not work.
Lord Vinson: I prefer to judge by results, not by the conjectural worries of the statutory bodies. I have in mind the rapid fall-off in complaints from businesses that felt that they had been unjustly regulated in the past. We live in a different world now; indeed, one has only to ask Christopher Booker to find out about that. Therefore, with the greatest respect, I believe that it did work. That is why I am so anxious to see these provisions preserved in the broadest sense.
Lord McIntosh of Haringey: I shall rephrase what I said and say that these provisions were hardly used, although that may not be quite the same thing.
In December 1996, the previous administration launched a consultation exercise on using Section 5 in respect of legislation in the field of trading standards, care services and environmental health. My noble friend Lord Borrie referred to that fact, and it is set out in the Explanatory Notes to the Bill. The feedback
from that consultation showed, first, that local authority enforcers felt the "minded to" provisions were excessively bureaucratic--and noble Lords can discount that if they wish--and that they could be manipulated by illegitimate businesses. I do not discount it. I believe that the views of those who have to enforce the legislation are of considerable importance. Secondly, that feedback showed that businesses were not entirely convinced and that they sometimes confused the "minded to" notice with formal enforcement action.Therefore, in line with the consultation exercise carried out by the previous government, we have decided not to pursue Section 5 procedures, which, as I said, were hardly used. We have instead drawn up the Enforcement Concordat, following extensive consultation with businesses, the voluntary sector, the enforcement community and consumer groups. It provides a blueprint for fair, practical and consistent enforcement. The new enforcement provisions are in keeping with the policy. They allow the voluntary approach to spreading best practice to continue, while providing a power to intervene if that runs into problems.
The proposal is a more flexible tool to improve enforcement than the old Section 5, which can be applied only by specifying each individual piece of legislation to which the enforcement procedures that it sets out should apply. The new power is not limited to application in that way; for example, it could be applied by geographic area or by type of enforcer. That will make it easier to target the intervention on a specific problem. Nor are the procedures to which it should apply specified in advance. The targeting of, and the procedures to be applied in, any code of enforcement practice will be the subject of prior consultation. This means that the code can be developed with the particular problem in mind and specific practices that have proved to be an unreasonable burden on business can be addressed.
Any code of practice on enforcement set out under the code will almost certainly include procedures which might cover requirements on enforcers to explain why remedial action is necessary and over what time-scale; clearly distinguish legal requirements from best practice advice; provide suitable opportunities for discussion; provide explanations of immediate action in writing within a given time-scale; and give an explanation of the rights of appeal. The concordat says that, before enforcement action is taken, officers will provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference, unless immediate action is required. It is expected that any code would contain similar provisions.
I gave a report on progress towards acceptance of the concordat on Second Reading, but the present position is that over 84 per cent of local authorities in England, Scotland and Wales have adopted the concordat. Similarly, 80 per cent of central government agencies have adopted the concordat for all of their regulatory enforcement activities. In implementing the concordat, those agencies have
rewritten their codes of practice and charters to reflect the content of the concordat. These codes of practice and charters are available to those who have been regulated. They set out the procedures that the regulatory body will adopt. The Government are continuing actively to promote the concordat to local authorities and central government agencies, along with other partners such as the Local Government Association, the Society of Local Authority Chief Executives, the Local Authority Co-ordinating Body on Food and Trading Standards and the Chartered Institute of Environmental Health. We expect that adoption of the concordat will be close to 100 per cent by this July.Under those circumstances, surely to abandon the voluntary approach, backed up if necessary by a code of practice, by re-instating Section 5 and Schedule 1 to the 1994 Act would be a retrograde step. Indeed, it would be a retrograde step, especially if Amendment No. 78A were to be agreed. The effect of that amendment would be to change the character of any notice that might be issued to conform with any order made under Section 5. It would make the notice more of a firm statement of the enforcer's threatened action, rather than a statement that the enforcer was considering taking action. Presumably, for that reason, it would be more difficult for the business being regulated to dissuade the enforcer from taking that formal action. I cannot see how there would be any advantage to business, or to anyone else, from this proposed change to retain Schedule 1 as part of statute law.
I appreciate the sincerity with which this matter has been approached by all noble Lords who have spoken in favour of the noble Lord's proposals. But I ask the Committee to listen to my noble friend Lady Gibson, who knows from her membership of the Health and Safety Commission what has actually been happening, to my noble friend Lord Borrie, who knows more than any of us about the effect of these matters, and also to bear in mind the consultation exercise that was carried out by the previous government, as well as that carried out during the preparation of this Bill. I urge noble Lords not to accept these very major amendments to the Bill.
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