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Baroness Gibson of Market Rasen: My Lords, I oppose this group of amendments. I am a firm believer in codes of practice: they are universally accepted, and they are a way of explaining legislation. I accept that a code must be clear and well written. Then, it can be of great help to those who have to comply with the regulatory requirements. I fall back once more on the knowledge I gained from my work on the Health and Safety Commission. In many cases we issued codes of practice. Ironically, the response was that they were helpful and gave comfort to those trying to understand new legislation. They were particularly popular with smaller and medium-sized enterprises which did not have their own legal departments to consider legislation . They therefore fell back on guidance from bodies which helped the Health and Safety Commission to draw up the codes of practice it brought forward. To remove references to codes of practice from this particular Bill would be counter-productive. I urge that the codes remain.
Lord Skelmersdale: My Lords, I certainly join the noble Baroness, Lady Gibson, in her belief in codes of practice, but they should be guaranteed codes of practice. As my noble friends have said, the trouble with this Bill is that it is a permissive code of practice. The Government may well respond and say, "Well, this was consulted upon and these are the arrangements that were ultimately decided upon". But I have a cartoon on the wall of my office at home which depicts one man answering the telephone, who is very red in the face and becoming more and more flustered. On the shelf above his head there are five hats, each of which has a name on it--for example, Sales Manager, Personnel Manager, Accountant, telephone answerer and Order Clerk. Noble Lords will recognise the scenario of a very small business.
The point that my noble friend Lord Freeman made was that a very small business is not a member of any organisation. The person concerned is on his own. Therefore, by definition, he cannot have been consulted--but even if he were consulted, he certainly would not have answered. So the people for whom these codes of practice are meant to be useful have not been involved in their creation. Indeed, I wonder whether the Minister can guarantee that we shall have such a code of practice.
Lord Borrie: My Lords, when we discussed Clause 9 of the Bill in Committee on 25th January, the noble
Lord, Lord Vinson, made what I thought was a remarkable statement at col. 407 of Hansard. Indeed, he said something rather similar this evening; namely, that the enforcement procedures enshrined in the 1994 Act were responsible for improvements in the previously over-zealous behaviour of enforcement officers.However, Section 5 of that Act, which deals with enforcement, was in fact applied only once. I should point out to the noble Lord, Lord Freeman, that I have gained this information from paragraph 16 of the Explanatory Notes on the Bill which states that the section,
- "has been applied directly only once, in the Deregulation (Improvement of Enforcement Procedures) (Food Safety Act 1990) Order 1996".
The noble Lord, Lord Goodhart, who has had to leave the Chamber for the moment, said that Clauses 9, 10 and 11 of the Bill, which are meant to replace Section 5 of the Act, are a considerable improvement on the previous legislation, whether or not they are amended as proposed. The noble Lord, Lord Vinson, is quite right to say that enforcement procedures have been improving and that it is now commonplace for discussion and negotiation to take place between enforcement officers and businesses, whether small or big, before an enforcement officer rushes in, so to speak, to take court action. But that may be because enforcement officers themselves have realised the sense of that approach as, indeed, have the local authorities who often employ them.
The enforcement concordat has been somewhat belittled by the noble Lord, Lord Vinson. However, it incorporates best practice as it exists in enforcement and underpins the new clauses of the Bill; indeed, it is fully in line with it. I give way.
Lord Vinson: My Lords, I thank the noble Lord for giving way. One cannot measure the number of burglaries that have not happened as a consequence of a piece of legislation stating that burglars would be hanged. When the 1994 Act was introduced, the whole of the regulatory world was "abuzz", not least thanks to the excellent work of Christopher Booker, because it realised that the reason for the Government introducing these clauses in 1994 was that things had gone seriously wrong in terms of the fair application of regulation. Therefore, to state that the power has been used only once is to miss the entire point that the whole atmosphere was changed as a result of the 1994 Act. The concordat had not even been thought of at that time. So we can say with all honesty that the Act has done a great deal of good, but we cannot measure it by the specific times that the conditions were used. If I may say so, I believe that the noble Lord is barking up the wrong tree.
7.15 p.m.
Lord Borrie: My Lords, I do not believe that there is that much between us. If the noble Lord is saying that the 1994 Act contributed to a change of climate and of culture whereby enforcement officers became accustomed to discussing and negotiating instead of rushing in immediately with an enforcement order, I entirely agree with him. But we are now in the year 2001; we are living at a time when the culture that prevailed nine or 10 years ago has changed enormously. The present position is surely such that it emphasises the case for the Government's determination today to secure best practice results in an enforcement concordat, which can be readily changed from time to time as desired, and--as I was about to say before the noble Lord intervened--to back it up with a statutory reserve position in Clause 9. That seems to me to be perfectly satisfactory.
I expressed concern at Second Reading on a point that the noble Lord, Lord Freeman, mentioned this evening; namely, the proportion of local authorities that have signed up to the concordat. At that time, November 2000, the figure stood at only 75 per cent. However, I was reassured in that respect because the Minister said in Committee that the figure had risen to 84 per cent and that it is expected to reach 100 per cent by July. Therefore, it does not seem to me to matter very much if there is some slippage and one does not achieve that 100 per cent. The Government have made out their case for the voluntary approach backed by a reserve statutory power that can be brought into effect if anything should go wrong. That is both the best and the correct way to go forward.
I turn finally to Amendment No. 52, which I believe would make the position of the previous legislation worse. In reply to the consultation that the previous government conducted in December 1996, businesses said that they were puzzled when they received a "minded to" enforcement notice. They were confused between that notice and enforcement action. If we changed the wording from "minded to" to "intends to", I should have thought that the risk of confusion would be even more likely to occur. I see no value at all in that amendment. Unless the Government have suddenly changed their mind as a result of this afternoon's debate, I believe that their view is the correct one.
Baroness Buscombe: My Lords, I shall speak briefly and entirely in support of my noble friends Lord Vinson and Lord Freeman. I also support what my noble friend Lord Skelmersdale said in this respect. I should emphasise the fact that we are trying to make some progress on these issues. I trust that the Government will accept that we are deeply concerned about these clauses as they stand. I hope that the Minister will carefully consider the suggestion put forward by my noble friend Lord Freeman in relation to Clause 9. As the Bill is currently drafted, we are talking about codes of practice that do not have statutory force.
It would be otiose to repeat the arguments put forward this evening by my noble friends. However, it is important for us to reiterate the fact that, as we see it, there is currently no reserve statutory power in Clause 9. We are in favour of codes of practice but the present code of practice is something that could be entirely ignored; indeed, it does not have to exist at all. All we are doing in suggesting that the word "may" be changed to "shall" is emphasise the need to include in the Bill this reserve statutory power to give the code of practice some statutory force.
Also I would stress that it is regrettable that the noble Lord, Lord Haskins, is not in his place at this time when we are debating important issues which are highly relevant to his role as chairman of the Better Regulation Task Force.
Lord McIntosh of Haringey: My Lords, this debate has followed very closely that which we had at Committee stage. In addition there was the suggestion made by the noble Lord, Lord Freeman, which was followed up by the noble Baroness, Lady Buscombe, that we should change "may" into "shall" in Clause 9(1) in line 24. I shall deal with that point later.
In general, I do not think that the arguments have differed significantly from those which were advanced in Committee. The amendments seek to remove the new enforcement provisions in the Bill. They would retain the old Section 5 of the 1994 Act, including the "minded to" provisions, and modify the old "minded to" provision. However, the objectives behind our provisions in Clauses 9, 10 and 11 are very similar to those behind Section 5. Here we are all together; we are intending to counter bureaucratic, inflexible and over-zealous enforcement. I do not think there is any difference between us on that.
However, it is the case that the old Section 5 procedures were hardly used--I would go so far as to say that they were never used--and that is why the previous government launched a consultation exercise on using Section 5 in respect of legislation in the field of trading standards, care services and environmental health in December 1996. The noble Lord, Lord Freeman, was the Minister in the Cabinet Office--I guess he was Chancellor of the Duchy of Lancaster--and he referred to Section 5 of the DCOA 1994 because he had responsibility for it.
It has been said that the consultation could not have covered small businesses, and indeed I acknowledge it is difficult to cover individual small businesses--I say that as somebody who ran a small business for 30 years myself and I really know about the problems of small businesses. I am not saying I was the only one, but I have done that. The responses to the consultation included the Better Regulation Task Force, which itself certainly has excellent contacts with small businesses, and a whole range of other people involved in small business. These included the Dorset Local Business Partnership, the National Association of Funeral Directors, the National Federation of Residential Landowners, the National Market Traders Federation, the Office of Fair Trading, which is in constant contact with small businesses, the
Restaurants Association, the Royal Institution of Chartered Surveyors, the Scottish Licensed Trade Association and so on. A serious effort was made by the department of the noble Lord, Lord Freeman, to contact small businesses; and it had a degree of success.The feedback showed, first, that local authority enforcers felt the "minded to" provisions were too bureaucratic and could be manipulated by illegitimate businesses. It also showed that businesses were not entirely convinced, and sometimes confused the "minded to" notice with total enforcement action. The noble Lord, Lord Borrie, reminded us of that.
That is why we decided not to pursue the Section 5 procedures, but to draw up the enforcement concordat. The noble Lord, Lord Haskins, apologises for not being here tonight because of another engagement. He did want to take the opportunity to express his support for the Government's proposals and the enforcement concordat. The noble Lord, Lord Vinson, has a copy of his speech and will, I am sure, acknowledge that.
The enforcement concordat has now been adopted by over 84 per cent of local authorities and 80 per cent of central government enforcement agencies. We expect the rate to be virtually 100 per cent, and I can assure the House that if there are central government enforcement agencies that have not signed up by next July we have ways of making them talk and we will undoubtedly do so.
There was a further consultation exercise in September 1999 on the specific issue of the "minded to" provisions, with the reserve power to issue a code of practice. Most businesses and enforcement organisations which responded to the consultation supported the proposal: they welcomed the extra protection that good enforcement practice would provide against over-zealous and inflexible enforcement.
The noble Lord, Lord Freeman, said that the code is permissive. Signing up to the code is permissive--although we shall make sure that it is not very permissive--but once the code has been signed up to, it is not permissive. You have signed up to it and you have to abide by it: you can expect to come under fire if you do not abide by it. It is a more flexible tool to counter bureaucratic, inflexible and over-zealous enforcement than either the old Section 5 or any amended Section 5.
Let me say why this is more flexible and more effective. First, the new power is not limited to specific pieces of legislation. It could be applied where necessary by geographic area or by type of enforcer. Incidentally, I am told that the list I read out in relation to Section 5 of the DCOA 1994 referred to our consultation in September 1999 and not that carried out by the noble Lord, Lord Freeman. I am sorry about that but I do not have information about the previous government directly to hand.
Section 5 can be applied only by specifying each individual piece of legislation to which it should apply. It cannot target intervention on specific problems without imposing unnecessary bureaucratic burdens on other organisations where intervention is not necessary.
Secondly, the new power does not specify the procedures in advance. They could be tailored to address the circumstances in any code of practice, and they could be consulted on. So we can develop the code with a particular problem in mind where difficulty has been proved. That is a good deal more flexible and effective.
Thirdly, any code of practice on enforcement set out in the Bill, once enacted, would almost certainly include procedures like those in the concordat, because the concordat includes procedures similar to those in the Act, but less cumbersome and bureaucratic. For example, the concordat says:
- "Before official formal 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."
So the concordat provides for enforcement officers to explain what action is necessary and over what timescale. They can also give an explanation of the right to appeal. We could have other "best practice" from the concordat, if we had a code under the Bill, which would go further than the provisions of the 1994 Act. We could require enforcement officers to distinguish legal requirements from best practice advice and we could require enforcement officers to provide suitable opportunities for discussion. We could require them to provide useful information to the business, or to work with businesses to assist in compliance. None of these is possible under Section 5, and they seriously weaken a provision which was made but never actually enforced.
I hope I have convinced the House that what we are proposing here is more effective and enforceable in the issue of "may" versus "shall". I have assumed that was in line 24, but it could be line 40 on page 7. I am not sure if that is what the noble Baroness, Lady Buscombe, meant. If she meant to alter line 40, that would not give any greater legal force to the code; the code would be statutory anyway. There is a statutory right to take breaches into account. If that is thought to be material, it will be taken into account. If that is not thought to be material, introducing the word "shall" will not give the provision any greater weight. If line 24 were meant to be altered, I repeat that we shall pursue non-compliance with vigour. We use the word "may" to allow the Minister to exhaust all other non-statutory avenues to improve the practice being followed by enforcement officers in the field.
Earlier this afternoon the noble Lord, Lord Haskins, on behalf of the Better Regulation Task Force, welcomed the non-legislative approach. The Minister could ask the enforcement organisation voluntarily to commit itself to adopt and implement the enforcement concordat. That would involve the enforcement organisation producing an implementation plan, monitoring reports and
explaining progress. That voluntary approach would not be possible if the wording were changed from "may" to "shall".The arguments for the provisions in the Bill and against retaining or restoring the provisions of the 1994 Act are overwhelming. They are practical, principled and very much in support of the small businesses whose interests are represented by those on the other side of the House. I acknowledge their sincerity in producing them, but I hope that they will not pursue the amendments.
7.30 p.m.
Lord Vinson: My Lords, I think that the only thing between us is means rather than ends. I shall deal with one or two of the points that were raised. As regards the so-called "minded to" provisions, as far as I can see in the original Act the words "minded to" were not used at all. The word "considering" was used and it metamorphosed into the term "minded to" which has a more subtle meaning but misses the point.
I accept that that Act was over-prescriptive and overdone, but, undoubtedly--I think that we can perhaps all acknowledge this--its very presence led to a marked improvement in the fair application of regulation. That is what we all want to see preserved. By suggesting in our Amendment No. 52 that the word "considering"--which is in the original measure--be changed to "intends" you have to consider the point at which the provision was to be used. By changing the wording to "intends", the regulating officer does not at that point have to spell out the appeal procedures. What I think bugged the regulating officer--I can see the problem--was that at the point when he was just threatening (a threat is an important part of his armoury and a perfectly fair one) he had to spell out the appeal procedures and it rather pulled the rug from underneath his threat. If he was considering bringing the full weight of the law against someone who had probably done something seriously wrong, he had to spell out the appeal procedures. By changing the wording to "intends" he can threaten without weakening his position. That measure is designed to help. It has possibly been misinterpreted by noble Lords on the other side of the House. I am not a lawyer and perhaps we did not express the measure as well as we should have done, but the change of wording seeks to strengthen the position of the regulating officer.
That said, I hope that we can agree that there has been a marked improvement in the application of regulation thanks to the schedules to the 1994 Act. We on this side of the House want to see that position preserved. We do not want to see any slippage. We believe that that position is best preserved either by maintaining the provisions of that Act, or by changing "may" to "shall" in the relevant places so that the procedures introduced in the earlier legislation are consistently incorporated into any new voluntary concordats or any new voluntary codes. We do not think that it is satisfactory for them to be voluntary; they should be mandatory. This section of the Bill removes the statutory protection that small firms had against aggressive, unfair and unreasonable practice in
this regard. We think that that protection can only be preserved by inserting "shall" instead of "may" in the relevant parts of Clause 9. I hope that the Minister will reconsider the matter.We on this side shall not press the amendments at this hour, but we will certainly return to the matter at Third Reading. To repeat myself, although we are all trying to achieve the same ends, the means suggested to achieve those ends by the noble Lord opposite are inadequate and are not sufficiently strong. We wish to make a better job of them. I shall withdraw the amendment but intend to return to the whole subject at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Making of codes of practice by Ministers of the Crown]:
Clause 11 [Making of codes of practice by National Assembly for Wales]:
Clause 12 [Repeals and savings]:
[Amendment No. 49 not moved.]
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