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The noble Lord said: My Lords, I have tabled this amendment in the light of the discussion that took place in Committee. It seeks to provide some flexibility in terms of the time taken by the Select Committee on Delegated Powers and Deregulation to complete its consideration of the draft documents laid before it. As was acknowledged in Committee, the burden on the
The amendment also seeks to meet the objection raised in Committee by the noble Lord, Lord McIntosh, to my amendment allowing a shorter period. The noble Lord said that the people who want to make representations should have priority and need to know what period would be involved. My amendment retains the 60-day period. Therefore, people will know that there is a 60-day period. The amendment allows for that period to be extended if a committee considering the document decides that it needs the extra time. No one will be in a position to claim disadvantage as a result of the 60-day period being shortened, because there is no provision for that.
I appreciate that the 60-day provision may have been sufficient for documents considered under the provisions of the 1994 Act. I appreciate the point made by the noble Lord, Lord Borrie--referred to by the Minister at col. 400 on 25th January--that the procedures under the Bill may provide for a greater level of scrutiny than that afforded to most Bills. However, neither point argues against this particular amendment. We are dealing with a new situation in which the burden on the Select Committee on Delegated Powers and Deregulation may be extensive and in which a greater level of scrutiny is desirable. To say that the super-affirmative procedure provides better scrutiny than that undertaken on primary legislation is no reason for suggesting that the scrutiny should not be even further improved. I beg to move.
Lord Skelmersdale: My Lords, my noble friend Lord Norton of Louth is absolutely right. The noble Lord, Lord McIntosh, earlier told me that it was not unlikely that the committee would want to have more resources. I put it no higher than that. He quite rightly framed his words very carefully because, as I understood it, he was not speaking as a Government Minister but in a personal capacity.
The extra resources involved may well mean an extra 20 days for consideration of a vast consolidation measure such as fire safety--I hate to mention it again after the criticisms earlier--or, indeed, weights and measures. I have not done an exhaustive study of how many statutes and regulations there are involved with weights and measures, but there might be almost as many. It seems to me that the extra resources could be of time rather than of money or personnel. I think that my noble friend is absolutely right.
Lord McIntosh of Haringey: My Lords, the reason why I then refused to express an opinion on the resources of the House as a member of the Government is exactly the reason why I refuse to do so now. The resourcing and structure of the committee is a matter for the House, not for the Government. My noble and learned friend Lord Falconer and I have
The argument for resourcing--which is not the only argument being put forward with this amendment--is not one which we can accept. It would involve the Government usurping the privilege of the House. We are not in a position to dictate to the House how it should run its own affairs. If the resourcing argument is being pursued, I shall have to recall what I said before: that exactly the same fears were expressed about the 1994 Act; it was thought that the committee would be overwhelmed by orders under the DCOA--and it was not.
If the thing is wildly possible, as Lewis Carroll said, if there were to be a risk of that, then, quite apart from the resourcing possibilities, there is a relatively easy remedy--and that is for the committee to insist on a queue. It could say "We have not got time for this. You cannot present it until next month or the month after", or whatever. The issue of resourcing is not a strong argument for this amendment.
The argument against this amendment concerns transparency. We have a 60-day period, which is well recognised; everyone understands it; everyone who has to respond to any invitation from the committee knows the time-scale. If we suddenly introduce the possibility of an extension of 20 days--even setting on one side the difficulty which might arise if the committee of one House stuck to 60 days and the committee of another House went to 80 days, which is a serious problem--you lose transparency. I do not think that there is anything to be gained by this amendment.
Lord Norton of Louth: My Lords, I am extremely disappointed by the Minister's response. I take his point about resourcing of the committees in general terms, but in terms of providing extra time I do not accept his argument. This is not limiting Parliament, it is strengthening it. It is not usurping it because there is already a 60 day provision in the Bill. I do not accept the argument that for transparency people must be clear about the 60 days because, as I said, they will still get 60 days. This is just adding on.
Furthermore, to repeat a point that I mentioned in an earlier amendment, the Government are saying "We must have 60 days--no more, no less--so that people know that there are 60 days"; but, when it comes to consultation by Ministers, the norm should be 12 weeks, but it can be reduced to eight weeks. Where is the transparency in that? It is one rule for the Government and one rule for Parliament.
I do not intend to press the amendment today. I only wish to put on record that the arguments against it have no weight at all. I shall rest on the transparency of my argument in response to what the Minister said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Codes of practice relating to enforcement of regulatory requirements]:
Lord Vinson moved Amendment No. 46:
The noble Lord said: My Lords, in moving the amendment, I make no apology for returning to the amendments that were brought forward by myself and others in Committee. For those who were not present then, the 1994 Act recognised the problem that there were occasions when the regulator was over-zealous in the application of regulation; that the regulatee had no simple remedies and that many an injustice was done. Many of these instances had been recorded in the past; they are now happening much less. I believe that the 1994 Act is working rather well. The Bill as it stands reverses that and changes what was a statutory right of the regulatee to certain appeal procedures and to know where he stood to a voluntary code that may or may not be incorporated.
The 1994 Act effectively gave the regulatee the right to know, in the broadest terms, under which law or statute he was being regulated. If this was contentious, there was a right to discuss the problem with the regulator's immediate superior; and if and when he was to be prosecuted, he was to be told the rights of appeal. To repeat what I said in Committee, this brought a fair balance between the regulator and the regulatee in that those applying the regulation had to be certain that they had got it right. They had to think twice as they applied it and they had to be fair in its application knowing that the matter could ultimately be taken to appeal.
As our amendments indicate, I totally accept that the previous law was over-prescriptive. The reason for bringing the matter back on Report is that I had hoped to see a scintilla of a recognition of the problem from the noble Lord, Lord McIntosh. I am sure that he believes that small businesses should be given some protection. The difference between us is that he would leave it to a voluntary approach, whereas many of us on this side of the House feel that the protection should be statutory.
I was unfortunately not in the Chamber when the noble Lord, Lord Haskins, was here. I understand that he cannot be here this evening. He has had the great courtesy to let me see his speech. I am sure that he will not mind if I quote a couple of paragraphs from it. He said:
The object of these amendments--I am grateful to the House for allowing me to take them together--is to maintain a statutory approach to the problem so that a fair application of the law can be made. The approach on offer from the Government is the reverse of that; they favour an entirely voluntary approach. I accept that there are instances when the voluntary approach is good, but I see no reason why the essence of Schedule 1 to the 1994 Act should not be repeated in the new Bill and made mandatory. The whole issue should be reflected in the new codes as a right. I beg to move.
Lord Freeman: My Lords, I begin with an apology to the noble Lord, Lord McIntosh of Haringey, for being absent at the Committee stage. I hope that he will indulge me, as I hope your Lordships will, if I try to outline arguments in support of my noble friend Lord Vinson as regards this set of amendments. They are arguments which I could have deployed at an earlier stage.
I was the Minister responsible for the implementation of the 1994 Act in the period 1995 to 1997, principally concentrating effort on the number of orders brought forward. In retrospect, I admit that there was some delay in seeking to bring forward the orders under the enforcement provisions of Section 5. The noble Lord, Lord McIntosh, indicated that there had been very few examples of Section 5 being used. In fact, those matters were incorporated in the food standards legislation. I do not believe that there were any direct examples.
The essence of my argument in support of my noble friend Lord Vinson is as follows. First, the Government say that Schedule 1 to and Section 5 of the Act have not worked. But the truth is that it has never been tried. There are reasons for that. The consultation that was under way when the previous administration left office related to the extension to different areas, such as home care and environmental health, the provisions of Section 5 of the 1994 Act. The election intervened and the new Administration, the present Government, considered the results of the consultation exercise that had been set in train and reached the conclusion that a new approach was needed.
Secondly, to a certain extent the wrong people were questioned in the consultation exercise. There is an impressive list of some 550 organisations and individuals. But I believe that the point my noble friend Lord Vinson is making is that the very person whom Section 5 of the 1994 Act was designed to protect was the small businessman, who, by definition, is very difficult to consult. If the Minister would glance down the consultation list--I am sure he is already familiar with it--he will see that it is very difficult to
At that stage the person affected had the right to ask, in writing, for the justification and explanation of the reasons. There were two other mandatory processes to which my noble friend has referred; namely, the right of the person affected to have the regulator spell out his rights of representation and also the right of appeal when the enforcement notice was delivered.
I grant that all these are referred to in the concordat and, I assume, in the proposed code of practice. But the two fundamental concerns that I share with my noble friend Lord Vinson are, first, that a concordat can never, by definition, be accepted by 100 per cent of the universe affected. No voluntary code ever has been. Even if we reached 95 per cent or 99 per cent, I would argue with the Minister that the voluntary code is not as secure or protective of the individual small businessman as a statutory code. That is the first reason.
The second reason is that the code itself, referred to in Clauses 9 to 11, is a permissive code. I grant that its operation is certainly more flexible and universally applicable than the more constrained procedure in Section 5, where the Minister has to pick specific pieces of legislation in order to trigger the application of the statutory protection. But the code is permissive. To say to the affected small businessman, "If the regulator has not proceeded in accordance with the code, you have the right, when you appeal to the tribunal, to draw its attention to the fact that the procedures have not been followed", is simply not as protective as a statutory code.
Therefore, I believe that the solution that I commend to the Minister for reflection is reasonable in that it suggests minor word changes to the provisions in Clause 9 relating to the code; namely, it would change "may" to "shall". I shall not specify which particular lines are appropriate because goodwill is needed in terms of the expertise of the Civil Service and the Minister in deciding, if he is persuaded by the argument, that a mandatory code is right. It should be ensured, either by a commitment made by the Minister or on the face of the Bill, that the code itself will include the steps that were included by Parliament in the 1994 Act They are very clear steps. I know that there was controversy over the expression "minded to". My noble friend has proposed an amendment in an attempt to clarify that. The noble Baroness on the Benches opposite was concerned about precisely what that meant. There may have been ambiguity in the
I commend this approach to the Government. We do not propose these amendments lightly. In essence, they are designed to protect the small businessman, even if only once. An amendment to the Bill to provide a statutory mechanism of controlling enforcement will be justified if only one small businessman believes that he is not aggrieved and that the correct methods have been followed. Therefore, I intend to lend my support to my noble friend.
("( ) The period for parliamentary consultation may be extended by a period not exceeding twenty days if a committee of either House, vested with responsibility for considering the document, resolves prior to the expiration of the sixty days specified in subsection (2) that such an extension is necessary.").
Leave out Clause 9.
"Those being regulated constantly complain that they do not understand their obligations; that they are not given enough time and help to comply; and that enforcers have too much of an inclination towards retribution".
Exactly. He continued:
"However, we also recognise that voluntary agreements need legislative support where things go wrong. That is where the enforcement provisions in the Bill should help. They are intended to assure business that the Government can bring pressure to bear on enforcers who fail to apply best practice as agreed in the concordat".
There is nothing between us--but the concordat is voluntary, the code is voluntary, and what goes into it is voluntary. Although the Minister can press ultimately for certain provisions to go into the code, if
we have not got in place the enforcement procedures that we would like to see, it will probably not be until something goes wrong that the Minister will press for those provisions to be included, by which time the harm will be done.
7 p.m.
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