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Further, the amendments do not make clear to what the burdens imposed or maintained by the LBRO are to be deemed to be disproportionate. If the amendments were to be accepted, we fear that they may cause confusion and significantly increase the risk of unnecessary litigation. Clause 13, as drafted, places a clear and appropriate duty on the LBRO—one that will ensure that it carries out its functions in a way consistent with the better regulation agenda, which we all hope succeeds. The mention of the word “disproportionate” in Clause 13(2) and “proportionate” in Clause 13(3) captures that expression for the purposes of the clause, but we think that the better word here is “unnecessary”.
Baroness Hamwee: Better that I be confused than those who have to comply with the Bill when enacted. I am still not clear how the LBRO can comply with Clause 13(3), exercising its functions in a way that is proportionate, and how that lies with Clause 13(1) and (2). If it exercises its functions in a proportionate way, there is no need to say that it must not impose unnecessary burdens. That is my understanding. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45 to 49 not moved.]
Clause 15 [Guidance or directions by the Secretary of State]:
Viscount Eccles moved Amendment No. 49A:
The noble Viscount said: I apologise to the Minister—in his reply on Clause 7 he reminded me that the letter to the noble Lord, Lord Goodhart, contained a paragraph about the missing list, if may call it that. I notice that I had overlooked it, but previously I had pencilled a triangle against the clause, which is my sign for “two’s company, three’s a crowd”. That was my hidden comment on that provision.
In the amendment and Amendment No. 52A, along with Amendments Nos. 50 and 53, which seek further clarification of consultation, I am probing. I suggest that “general or” should be left out and only specifics be left in in relation to directions. The obvious question is: what do the Government have in mind when they say “general”. That is very wide and it could be used to cover a great deal of matters. Some clarification and certainty would be of great assistance.
I want to comment on the order-making power being introduced into the clause as Amendment No. 52. Its effect is to reduce the simple power to give directions to cover only one local authority in relation to the LBRO’s functions, but that does not prevent a direction being made that covers many more than one authority—or, indeed, all authorities—because an
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Baroness Hamwee: I have Amendments Nos. 50 and 53 in this group and they pretty much speak for themselves. We have come to clauses that put the Secretary of State and Welsh Ministers at the top of the triangle, although I hesitate to use that word, considering the image given us by the noble Viscount—perhaps I should say, “at the top of this tree”. The Secretary of State and Welsh Ministers can require the LBRO to comply with their directions. My amendments are to get on to the record—because I am sure that we will be given assurances—details of the consultation that will be undertaken before guidance or directions are given on this clause and Clause 16.
6.30 pm
Lord Cope of Berkeley: I have a very short question. I notice that on page 15 the guide that we have been given says that,
and the first priorities will be air quality and so on, in order of priority. My noble friend Lord Colville referred to that earlier. Presumably, they will be given statutory force by general guidance under this clause. Is that right?
Lord Bach: I am grateful for the opportunity presented by these amendments to give assurances regarding the use of ministerial guidance and directions to the LBRO. The Bill has deliberately given the LBRO extensive freedom to work on its own initiative with local authorities and other partners to meet its objectives. As we discussed on Monday, its directors have been drawn from across the range of the LBRO’s stakeholder groups—notably business, local authorities and regulators—and we think that it has the expertise and practical knowledge to be left to get on with the job. That is particularly important in its advisory capacity, where we expect the LBRO to give robust and independent advice to Ministers on the way in which regulatory policy impacts, or might impact, on local authorities and businesses alike.
However, the Secretary of State and Welsh Ministers remain ultimately accountable for the body’s actions, and it is right that there should be a reserve power of this sort. However, I recognise the concerns that the powers might be used improperly by some future Secretary of State or even by some future Welsh Ministers, given the need for the LBRO’s operational independence. Clauses 13(2) and 14(2) already require publication of any guidance.
Noble Lords will know—indeed, it has just been mentioned by the noble Viscount—that the Government, in response to comments by the Delegated Powers and Regulatory Reform Committee, have tabled an amendment that would require parliamentary scrutiny for any direction which would oblige the LBRO to make directions to more than one local authority.
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I am happy to say—I hope that noble Lords will also be pleased—that we want to consider all the amendments that have been moved and spoken to in this group before committing ourselves to any course of action. There might be urgent cases, for example, where very prescriptive guidance requirements would be counter-productive. However, I invite the noble Viscount to withdraw his amendment today and we will consider its import and the import of the amendments of the noble Baroness.
I believe that the noble Lord, Lord Cope, is to move an amendment in the next group to the same effect and on the same subject matter. I can tell him in advance that we will ask whether we can go away and consider his amendments in due course, too.
Viscount Colville of Culross: My noble friend Lord Cope mentioned that the guide says that the list of priorities will be given statutory force. There is no power that I can see in this part of the Bill to make statutory instruments. Is the guidance to have statutory force? If so, how is it to be enforced in the courts?
Lord Bach: I need to respond to both the noble Viscount and the noble Lord, Lord Cope. The noble Lord asked about page 15 of the guidance document. I am advised that the answer is: no; the priorities will be given force by Clause 11. I do not know whether that is the answer that he was looking for.
I shall do my best to answer the noble Viscount. I understand that the guidance will be statutory on the basis that it is in legislation, but I do not believe that there will be any orders to go with it. The noble Viscount, who has listened patiently today to all the proceedings, will know that I have moved amendments to ensure that there is some parliamentary scrutiny when directions are given, but that does not apply to the guidance per se.
Viscount Eccles: I am grateful to the Minister for his thoughtful—I think that is the right word—reply. I am no parliamentary draftsman. It struck me that if the direction is specific it presumably means that it must be pretty directly related to something already in the Bill; it cannot be something unrelated, it must be close. I have no doubt that a general direction must still be related to the Bill but is much wider. I was concerned with that width. Would it be a back-stop power when the word “general” is used? If it is not a back-stop power, when would it be used? However, I am grateful for the Minister’s undertaking to consider all these matters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley moved Amendment No. 51:
The noble Lord said: I also speak to Amendments Nos. 54 and 167. I have already had some encouragement on this group of amendments. All
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Amendment No. 167 is the most important. It refers to something we have not yet got to—it is much further forward in the Bill, in Clause 63. The relevant authority—the Government or Welsh Minister—must review after three years the power to impose fixed monetary penalties and so on: served stop notices and that sort of thing. Given the importance of fixed monetary penalties and stop notices, the result of that review should be presented to Parliament. That is even more important than the general guidance, which is dealt with in Amendments Nos. 51 and 54, but all three amendments are important. I beg to move.
Lord De Mauley: I support my noble friend Lord Cope in these amendments. They seem a reasonable and considered way of dealing with the matter. I know the Minister has said that he will consider them and we will come back to it.
Baroness Hamwee: Assuming the Minister does so—and I dare say there will be a number of letters as a result of this Committee—it would be helpful to understand the likely use of Clauses 15 and 16 as opposed to Clause 7. Looking at them both, I see Clause 15 as the converse of Clause 7. For example, the LBRO can give a direction with the consent of the Secretary of State on certain specific matters. It may be that, under Clause 15, the Secretary of State wants to require the LBRO to do something. Can we get an explanation of which directions are specific and which are general? “Specific” is certainly intended to be left in, in any event. Clarity on that relationship would be useful.
Lord Bach: We do not see any relationship between this clause and Clause 7, on which we have rightly spent so much time today. On the amendments in the name of the noble Lord, Lord Cope, I have already said that we would like to consider them. We want to see transparency through publication of the directions to the LBRO made under these clauses and the post-implementation review to be conducted under Clause 63, further on. The Bill requires the Minister to publish the directions and the results of the review in a manner that the Minister decides, but we have some sympathy with the suggestion of the noble Lord that copies should be laid before Parliament. I hope that he will be kind enough to let us take these amendments away and consider them.
Lord Cope of Berkeley: In the light of that sympathy, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bach moved Amendment No. 52:
“(5) The Secretary of State may not under subsection (1)(b) give LBRO directions relating to the exercise of its functions under section 7 in relation to two or more local authorities in England and Wales.
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(6) The Secretary of State may by order require LBRO to exercise its functions under section 7 in relation to two or more local authorities in England and Wales in such manner as may be specified in the order.”
On Question, amendment agreed to.
Clause 15, as amended, agreed to.
Clause 16 [Guidance or directions by Welsh Ministers]:
[Amendments Nos.52A to 54 not moved.]
Lord Bach moved Amendment No. 55:
“(5) The Welsh Ministers may not under subsection (1)(b) give LBRO directions relating to the exercise of its functions under section 7 in relation to two or more local authorities in Wales.
(6) The Welsh Ministers may by order require LBRO to exercise its functions under section 7 in relation to two or more local authorities in Wales, so far as relating to a Welsh ministerial matter, in such manner as may be specified in the order.”
On Question, amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17 [Power to dissolve LBRO]:
Lord Cope of Berkeley moved Amendment No. 56:
Clause 17, page 7, line 30, leave out “may” and insert “shall, when the objective of LBRO has been achieved,”
The noble Lord said: Clause 17 brings us on to the power to dissolve the LBRO. At Second Reading the noble Lord, Lord Jones of Birmingham, claimed correctly that the LBRO was different from a quango because he had never known a quango, at its inception, to allow for its own dissolution when the objectives have been achieved. That is an interesting point. I do not know of a quango that has been dissolved in this way. I think he is correct that it is an unprecedented clause, and no less welcome for that. However, the phrase “when the objectives have been achieved” interests me. It turns up on page 8 of the guide to the Bill:
“LBRO will achieve its objectives and at such a point it should be dissolved. Provision is made in the Bill for this eventuality”.
The word “eventuality” has a rather distant feel to it, but nevertheless I want to press the Minister a little on what is meant by when the LBRO’s objectives have been achieved.
We would all love to reach the position where the regulations we are referring to in the Bill are being perfectly implemented in an even manner and in line with best practice all over the country so that the LBRO has worked itself out of a job in that respect. But what about the “primary authority” business that we have not yet reached in Part 2? Is that going to fold up at some point because regulation is so even across the country that it can be abolished? I am glad that the Minister thinks that this objective is within sight and therefore can be provided for, but what did the noble Lord, Lord Jones, have in mind when he said that the objective was about to be achieved and we can dissolve all this? I beg to move.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): I should tell the Committee that if Amendment No. 56 is agreed to, I cannot call Amendment No. 57 by reason of pre-emption.
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Baroness Hamwee: It may be sensible for me to speak to whether Clause 17 should stand part of the Bill because one of my thoughts is one that the noble Lord, Lord Cope, has touched on, that is, if there is to be a provision for dissolution, one might want to see it linked to some sort of sunset provision. To have it unattached, as it were, leads me to my second point, which is simply to say that it is a little odd that a body created by primary legislation can be dissolved without further primary legislation. That is especially unusual since the LBRO will be able to make transfers, which presumably will include things like the enforcement of proceedings, to another body. I therefore support the points made by the noble Lord, Lord Cope.
6.45 pm
Lord Cope of Berkeley: I apologise. I forgot to speak to Amendment No. 57 which is also in the group. I was not trying to put words into the mouth of the noble Lord, Lord Jones, but to suggest that if he had a period of five years in mind, we should put it into the Bill.
Lord Borrie: I am delighted that the noble Lord, Lord Cope, has now spoken to both amendments. He rightly quoted from the guide the clear reference to the Government’s intention, as of now, that at some point the LBRO should be dissolved. I share the noble Lord’s surprise or scepticism as to that coming about, but for different reasons. I see value in the LBRO, particularly on matters relating to consistency and the role of the primary authority.
I am sorry that my noble friend Lord Sainsbury is not in his place today because he could speak from personal experience of the different ways in which firms such as his are treated in different parts of the country by different local authorities. He has grumbled for years about the lack of consistency in the attitudes of trading standards officers, environmental health officers and others, and would perhaps welcome a number of the powers in the Bill.
The Government want us to speculate that one day it will not be necessary for the LBRO to continue. However, I do not like either of the noble Lord’s amendments. On Amendment No. 56 and the phrase found in the guidance and the Explanatory Notes about the intention to dissolve the LBRO when it has achieved its objective, I am not sure how that can sensibly be put into legislative form. At some point someone might say, “We consider its objective has been fulfilled”, but someone else might think the contrary. Can he then take the matter to court and say, objectively, that the objective of the LBRO has not yet been fully achieved? I am a little worried about that.
I certainly do not like the noble Lord’s second amendment because it is entirely arbitrary; it may be five years, 10 years, or who knows. I am all in favour of the Government reviewing the matter from time to time to see whether from the point of view of consumers, business and consistency—I gave the example of Sainsbury’s—it has achieved its objective or whether there are still business and public interest
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Viscount Eccles: It would be a pity if the Government did not maintain their ability to change and modernise things and dissolve bodies to do with better regulation. After all, we had the Better Regulation Task Force and we are losing the Better Regulation Commission into another body, as was announced on 16 January. The Better Regulation Executive is a powerful body within the department and I can visualise a time when that body will take over nearly all the role of a national better regulation body called the LBRO. I do not see any reason to quarrel with the Government’s wish for this body to have a limited life and then disappear. It would be entirely in accordance with policy.
Lord Desai: The best way to deal with these two amendments is to combine them and say, “when the objective of the LBRO has been achieved, or five years, whichever is later”.
Baroness Wilcox: The Minister is spoilt for choice.
Lord Bach: Yes. Every possibility is before me but I commend the noble Lord, Lord Cope, for his almost religious reading of the Second Reading speeches and using them in the amendments. I do not think many of us would be capable of such diligence.
Lord Cope of Berkeley: It was not reading; it was listening to the Second Reading speeches.
Lord Bach: I am sure the noble Lord remembered them word for word when he came to write his amendments. I apologise for suggesting that he did not.
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