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Lord Falconer of Thoroton: My Lords, I am amazed by this. The process of scrutiny which the Front Bench opposite is now seeking to adopt in relation to the Bill is confusing. This amendment was raised on Report. An answer was given and if one looks at col. 184 of Hansard, our explanation was accepted. I believe that the noble Baroness accepts, although I am not sure, that if her amendment were agreed to by this House, it would not be possible to reduce the conditions which the parents of vaccine-damaged children presently have to undergo before they receive compensation for vaccine damage.

Therefore, I understand two matters from the return to this amendment: first, that the Conservatives have retreated from their acceptance of our position; and secondly, they would not wish a regulatory reform order to be used as a means of relieving the conditions for the obtaining of vaccine damage.

If that is the position, first, I am amazed that there has been such a reversal. Secondly, I am surprised that no notice was given of such reversal.

Baroness Buscombe: My Lords, before the Minister concludes his remarks, I point out that we did not accept the amendment to which he referred and that we did not move it on Report. Moreover, there are many other ways in which to deal with the question of compensation for vaccine damage. In turn, I find it rather strange that we on this side are being ticked off for raising matters that were not fully debated during the Bill's earlier stages, and for raising matters about which we were not content during those earlier stages.

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Lord Falconer of Thoroton: My Lords, on the noble Baroness's first point, when the noble Lord, Lord Kingsland, discussed Amendments Nos. 16 and 17 on Report, he said:

    "My Lords, I am grateful to the Minister for his response ... and for the particular example he gave"--

that is, of vaccine damage. The noble Lord went on to discuss another amendment that was grouped with those amendments and with which we are not concerned. He said:

    "He will not be surprised to hear that I remain unhappy with his explanation in respect of Amendment No. 15".--[Official Report, 13/2/01; col. 184.]

Any reasonable reader of those comments would assume that the noble Lord accepted our explanation in relation to Amendments Nos. 16 and 17.

The noble Baroness, Lady Buscombe, did not answer my second point. I asked whether she accepted that the effect of her amendment would be to deprive the Government of the opportunity to reduce the conditions for vaccine-damaged children and, if so, what she suggested we should do about that, if her amendment were agreed to. Perhaps she will answer that point later.

It would be our intention--we have always made this clear--that we should introduce an RRO in relation to that provision. That is why the phrase,

    "preventing the incurring of expenditure",

appears in the Bill. I am sure that we all agree that the definition of the word "burden" is key to the Bill's success, and we have sought to define the term very broadly so that we can implement the Bill's important and worthwhile reforms. That extends to the ability of orders to incur expenditure. The noble Baroness knows as well as I do that it is often said that the reduction in the burden of paperwork is an aim that is sought by the voluntary, private and public sectors.

Let me stress again that the power is surrounded by rigorous safeguards to guarantee against possible misuse. There is therefore no possibility of the power being used to allow spending willy-nilly without passing through the rigorous parliamentary scrutiny that is provided for in the Bill. If Parliament were not to approve expenditure, save on the imposition of conditions, it could ensure that those conditions remained.

Of course, there are other stringent procedures in place surrounding the incurring of expenditure which it is the right of another place to discuss. Any order requiring expenditure would have to go through the usual procedures. In administrative terms, prior Treasury approval, for instance, would be needed in each case.

I repeat: the power is broad but I make no apology for seeking to introduce a power that will be used to make such worthwhile changes to legislation while ensuring that the most stringent safeguards are met. Our arguments on this issue remain the same as they

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were in Committee and on Report. I urge the noble Baroness to think again and to consider the people who will be affected.

Baroness Buscombe: My Lords, I thank the Minister for that response. I make it absolutely clear that my noble friend Lord Kingsland did not accept the amendment on Report. I believe that he was implying that he accepted that the example could be used if the Bill was implemented in that way. The point is that there are many ways in which to resolve problems such as that relating to vaccine-damage compensation. In relation to such an important matter, we should consider the use of primary legislation. It is wrong to use that as an example--

Lord Falconer of Thoroton: My Lords, is the noble Baroness arguing that in that context we should use not an RRO but primary legislation?

Baroness Buscombe: My Lords, it is wrong to decide whether or not the Bill should give such a broad, blanket power to the executive by referring to such an emotive example. I made it absolutely clear in my speech that we have no argument with the use of this power by a government who are seeking to find some way to provide compensation to vaccine-damaged children. However, there are other ways to do so, including the use of primary legislation. Our concern is that the Bill contains such a broad power. It refers to removing the conditions that prevent the "incurring of expenditure" by the executive. There is no question of degree when draft orders are being scrutinised, albeit by a super-affirmative order. Will the amounts of expenditure be made clear in the draft order? I suspect not, in many cases.

Once again, we have shown our deep concern about the broad powers that remain in the Bill. I have made my point clear. It is wrong to use one small but important example--I agree about its importance--to try to twist what I have said. We are not happy about there being no parameters, as it were, in the Bill. I am sorry that the Minister offered no suggestions about the ways in which to limit the amount of expenditure that can be incurred by the executive through a regulatory reform order in relation to the Bill.

We are not making any progress in this regard, but I do not want to test the opinion of the House. I suspect that the matter will be argued vigorously in another place. On that basis, and with some regret, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 5 and 6 not moved.]

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

5 p.m.

Baroness Buscombe moved Amendment No. 7:

    Page 7, line 42, at end insert--

("( ) A code of practice under this section shall incorporate the mandatory procedures set out in Schedule 1 to the 1994 Act, but that Schedule shall be interpreted as if in paragraph 3(a)(i) for the

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words "that he is considering taking the action and the reasons why he is considering it," there is substituted "that he intends to take action and the reasons why;".").

The noble Baroness said: My Lords, I shall deal with Amendment No. 7 and then discuss Amendment No. 8 separately. I wish to make two points: one is relatively narrow and the other involves a point of principle that highlights the difference in the respective approaches to fair and effective enforcement between those of us on this side of your Lordships' House and those on the other side.

The narrow point is this. The greater part of the Bill is concerned with parliamentary procedure and the power of the executive. Those are important constitutional matters, but only rarely do they have an immediately discernible impact upon the daily lives of ordinary people. It is only when we arrive at Clause 9 that we come to that part of the Bill that is likely to have an immediate and profound effect upon ordinary people in their everyday lives.

The amendment seeks to ensure the continuation in statutory form of those fundamental rules of best practice that were set out in Schedule 1 to the 1994 Act and which I shall refer to as "the schedule". The schedule contains four major provisions, each granting a power to the Minister concerned to impose rules regarding enforcement procedures. In the amendment, we seek to ensure that those provisions continue to have statutory effect and that their inclusion in any code of practice created pursuant to Clause 9 is mandatory.

The first provision will require an enforcement officer, before he takes enforcement proceedings, to serve notice explaining what remedial action he requires and why, and to give time for remedial action to be taken. The second is similar in nature, but it is tailored to circumstances in which immediate enforcement action is necessary. The third requires an enforcement officer to hearken to representations made to him by the person against whom enforcement action is contemplated, before enforcement action is taken. The fourth requires an enforcement officer to explain the relevant appeals procedures, once enforcement action has been taken.

I have listened with care during the passage of this Bill to the points made against the substance of the schedule. The only argument that I have heard is that there has been a misunderstanding with regard to the operation of the third provision, which requires an enforcement officer to listen to what it is the person against whom action may be taken has to say about it. The objection is not that it is undesirable that the enforcement officer should have to listen to what is being said; it is that enforcement officers have found it difficult to get across the point that no final decision on enforcement has been taken at this stage and that misunderstandings have arisen as a result.

The intention of that part of the amendment that refers to paragraph 3(a)(i) is to make the position clearer. If the words proposed are not yet sufficiently polished, I hope that the Government will at least say

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that they regard the problem as being a very minor one indeed and that it does not amount to a difference of principle between us.

That said, I now pass to those matters about which there are fundamental differences between us and to differences which are clearly differences of principle. I have referred to the four provisions in the schedule to the 1994 Act. By this amendment, those provisions would be mandatory in two senses: first, they would be required to be part of any code of conduct; and, secondly, they would themselves be mandatory provisions within any code. Compliance by enforcement officers would be compulsory. I see nothing wrong with that. I regard such provisions as providing an essential and fundamental degree of protection to the small businessman who, nowadays, is overwhelmed by a never-ending series of regulatory initiatives.

By way of contrast I turn to the concordat. The opening pages emphasise the maintenance of proper standards; they speak of openness and helpfulness, of a complaints procedure and of how enforcement will be proportionate and consistent. All of those are worthy sentiments and each is admirable in its purpose. However, they are voluntary. There is no basis upon which any can be said to be legally enforceable, but they are none the worse for that.

On the final page of the concordat we come to the part that will prove of real interest to those against whom enforcement action is taken. It is headed "Principles of Good Enforcement: Procedures". Here are set out four provisions, each of which demonstrates a different and a fundamental aspect of sound enforcement procedure. They represent best practice. Each is aimed at ensuring that enforcement operates in a way that is fair, balanced and even-handed. Each is intended to ensure that any person who is the subject of enforcement procedure knows what is happening to him and why, and that he has the right to be heard.

What are those provisions? Do they herald a radical new approach? Do they bring new benefits? Do they throw fresh light upon the enforcement of regulations and rules? No, they do not. The language may be different, the provisions may appear in a slightly different form and in a different order, but they are none other than the four provisions contained in Schedule 1 to the 1994 Act. The difference is that in the concordat compliance is voluntary. That is the difference of principle between us and I believe that it is the only difference.

There is no difference in what amounts to fair and even-handed treatment; there is only a difference as to whether the person against whom enforcement action is taken has the legal right to require that appropriate procedures be followed. I am unable to discern any reason why compliance with those rules should not be compulsory. If the concordat is to work in the way we are told that it will, no doubt those tasked with the enforcement of regulations will welcome the provisions with open arms and will do everything they

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can to ensure that the "Principles of Good Enforcement" are followed. After all, they are best practice.

I would require much persuading that a general desire for a voluntary code did other than mask a wish in certain quarters to be rid of what may be regarded as rules of an irksome and burdensome nature. That seems to me to be the difference between noble Lords on this side of the House and noble Lords opposite.

One man's rules are another man's rights, or at least they should be. That being so, I should be surprised to hear any argument against making the principle of compliance with Schedule 1 compulsory. Such will give statutory effect to fundamental rules of best practice while at the same time ensuring a proper level of protection for those who are affected by enforcement procedures.

Amendment No. 8 would require any tribunal tasked with passing judgment on an enforcement matter to take into account a breach of the rules of enforcement procedure. The amendment is not intended to provide a procedural escape route for the wrong-doer, but it is a logical extension of the introduction of a degree of procedural compliance into matters of regulatory enforcement.

Earlier I said that the concordat contained a number of admirable sentiments but that it was voluntary. In so far as helpfulness, openness and the like are concerned, the fact that the concordat is voluntary is not my present concern. However, enforcement is another matter. It is essential that those against whom enforcement proceedings are taken, or against whom proceedings are being contemplated, or who are required to comply with an enforcement officer's demands under pain of enforcement action, should have rights. Reliance upon a voluntary code is simply not enough. Such matters are too important. Nor, in such circumstances, is it enough that the tribunal may--the important word is "may"--take non-compliance into account.

In this context we are concerned with matters that are fundamental to fair enforcement procedure. If the procedure has not been followed, it must follow that prosecution--that is what it is perceived to be--is unfair and it should be the duty of the tribunal to take appropriate action. That is the only means whereby the rights of the individual can be protected.

This clause grants to the tribunal a degree of discretion in the matter. The purpose of the amendment is not to remove that discretion but to place a limit on it. There is no reason why the code of practice envisaged in the clause should not make it clear which are those rules of practice upon which the provisions of this clause are intended to bite.

Unhelpfulness, or a lack of proportionality, could be dealt with as the tribunal saw fit, but a denial of fundamental rights, such as those contained in the "Principles of Good Enforcement", to which I referred earlier, is a different matter entirely and should be treated as such. This amendment should be used to make that clear. I beg to move.

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