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28 Jan 2008 : Column GC229
Viscount Eccles: Is there any hope that we will see a draft statutory instrument before Report?
Lord Bach: In our briefing this morning, I asked that very question of my officials. Truthfully, no; it is not likely. There is still quite a long way to go, but I will press and we will see if there is anything that we can do justifiably to get before Members of the Committee some more information about how that may look. I do not want to make a false and easy promise here that it will be ready by Report; we do not think that it will.
Viscount Eccles: If I may press the point, does that mean another period of consultation of 12 weeks?
Viscount Eccles: Is there any idea by when it might have been prepared? There has been a lot of consultation and responses to consultation; the Minister keeps telling us about that. One wonders how well this part of the Bill in particular is going to work. Until the rules of this game are set out, it will be extremely difficult for Parliament to make any sort of judgment.
Lord Bach: I am grateful to the noble Viscount. We will need to consult fully on the content of this and the other Clause 27 exemptions that we are coming to shortly. He asks whether it would be ready for Report; the answer is that it will not. We will try to be as helpful as possible to Members of the Committee by informing them of what we are thinking of at this stage. The Bill has to finish its course in this House and then go through another place before it can become law, but I take very much to heart what he has had to say.
4.30 pm
Baroness Hamwee: I see the problem. I am grateful for that explanation. I thought that either guidance or secondary legislation would be forthcoming. I had not quite thought of it as a delight in store but I will now try to do so. The Minister said that secondary legislation was needed to provide for the technicalities, as he described the problem. We are entirely with him in that commonsense explanation and we must not lose sight of that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee moved Amendment No. 77:
Clause 26, page 11, line 35, leave out “with the consent of” and insert “following consultations with”
The noble Baroness said: This is an entirely different point. I notice that the noble Lord, Lord Jones, will answer for the Secretary of State.
and a similar phrase is used in the provision to which Amendment No. 92 relates. As I read that, it would allow the Welsh Ministers to veto an action which the
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Lord Cope of Berkeley: I think the amendment is wrong. Given devolution, Welsh Ministers ought to be able to contribute to the decision and ought to have to agree to it. After all, it is a decision which is going to apply in Wales as well as in England on a matter which is devolved to Wales. If devolution is to mean anything, the consent of the Welsh Ministers, as opposed to merely consulting them, is essential. I apologise for being rather direct but the amendment is not a good idea; it is inconsistent with devolution.
The Minister of State, Foreign and Commonwealth Office & Department for Business, Enterprise and Regulatory Reform (Lord Jones of Birmingham): I preface my comments with a recognition of the Government’s gratitude to the Welsh Assembly for its pragmatism in working with us on the Bill. I hope this will promote consistency in the treatment of businesses in England and in Wales, in both reserved and devolved matters alike. I am sure the Committee will recognise that the constitutional implications are far from simple in practice.
The primary authority provisions in part 2 apply in exactly the same way to Welsh local authorities as they do to those in England. All relevant regulatory functions, be they devolved or reserved matters, fall within the scope of this scheme and within the LBRO’s oversight. This means in practice that businesses in England and Wales can depend on the consistency and certainty that the scheme will bring in important areas such as food standard regulations, where responsibility is fully devolved to Cardiff. That means that Welsh businesses will get as much from this scheme as their English counterparts; it is a two-way street.
The scheme will depend on a single set of rules applying to local authorities in both countries. The relevant clauses are designed to ensure that the workings of the scheme rest upon a simple set of unified statutory instruments passed in Westminster, but does so in a way that still guarantees Welsh legitimate interests in matters which are the full responsibility of Welsh Ministers.
The Bill therefore allows Welsh Ministers to withhold consent if they are not content with the shape that the scheme is taking in practice regarding matters for which—this is the point that the noble Lord was making—they are personally accountable to the Welsh Assembly and the electorate. It is not only a two-way street in terms of implementation on both sides, but a question of ensuring that Welsh Ministers can be personally accountable in some degree of comfort. A requirement merely to consult them would not give them that guarantee and would effectively mean an erosion of that aspect of the devolution settlement.
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Baroness Hamwee: I tabled an amendment to ensure that I entirely understood the provision—I said that, had I wanted to go down the devolutionary street equitably, I could have done the two-stage thing—because I do not think that this reflects absolute equality. The Secretary of State requires the consent of Welsh Ministers, but there is no reverse position, and there is no provision that allows England and Wales each to do their own thing. I have made the point and heard the explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hodgson of Astley Abbotts moved Amendment No. 78:
The noble Lord said: The amendment is concerned with the definition of “relevant period” in Clause 26(4) as regards restrictions on the power of the enforcing authority to take enforcement action. The “relevant period” is described in subsection (9)(a) as, primarily, five days or, in subsection (9)(b),
I wanted to probe the Government’s thinking on this. I quite understand the arguments for flexibility and that five working days is a short period, but, equally, a longstop with no end date at all seems to present dangers of an opposing sort. Some degree of speed is important in any better regulatory environment. That is particularly true when dealing with smaller or small firms.
Such firms may know of an impending case hanging over them. The enforcing authority may not be ready to proceed and asks for a time delay, which it is given. This could go on for a long time. Local authorities are not always crisp and brisk in how they proceed and a smaller firm could be at a severe disadvantage in commercial terms, because it may become known that enforcement action is pending. That may have cash-flow impacts on the operation of the business and, in an extreme case, on its commercial viability.
We could have a situation in which the local authority does not move forward and holds its horses, saying, “We are not ready yet, we need a few more days or weeks” and the LBRO says, “That’s reasonable; carry on”. The threat hangs like the sword of Damocles over the firm. The purpose of my amendment is to strike out paragraph (b). I would fully accept and would feel happier with a longstop of a greater period, but allowing the LBRO to suspend the sword of Damocles for ever is unattractive, unhelpful and does not lead to a better regulatory climate. I beg to move.
Lord Jones of Birmingham: First, I assure the noble Lord, Lord Hodgson, that in the vast majority of cases—we talked in detail to many of the authorities and their staff—five working days will be sufficient. That is quick enough to give the enforcement authority the right to get on with its work as soon as possible. We are all talking about a small minority of cases here. However, the amendment would remove
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The LBRO’s ability to extend the deadline has been included for a number of reasons, but I assure the noble Lord that it is not in the LBRO’s interests to hold such a sword of Damocles over the head of both business and the authority or to allow it to happen. I think that the public outcry—indeed, the outcry from many places—would ensure that that did not happen. There may be cases where the primary authority’s decision requires complex analysis or there may be a temporary local crisis calling on the attention of all qualified staff. Indeed, there may be a problem that is so local that the LBRO needs longer.
For all those reasons, we think that a time limit of 28 days, as LACORS has recommended, rather than five working days, would be too long. We need to ensure that the enforcing authority is not kept waiting for a decision for such a long time. However, some flexibility is needed, and, although they are only a small minority, the unusual and difficult cases will have to be accommodated. Subsection (9)(b) allows for that.
Lord Hodgson of Astley Abbotts: I am grateful to the Minister for the fact that the case has been considered. The road to hell is paved with good intentions. I am sure that he wishes, and sincerely intends, that this requirement will be used only on the rarest of occasions. However, we all know that those rare occasions will be damaging—possibly fatal—to an individual business. I should be much happier if the Government were able to put a date beyond which the LBRO could not extend the deadline so that at least everyone would know that there was a point beyond which it could not go. I hope that the Minister may be able to give some thought to that before we come to the next stage of the Bill. In the mean time, having at least put it on the agenda with the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 26 shall stand part of the Bill?
Baroness Turner of Camden: I rise to oppose Clause 26 and to speak to my Amendment No. 95 in the same group. I seek to replace Clauses 26 and 27 with the new clause proposed in Amendment No. 95.
I have received a number of letters about this part of the Bill from the Local Government Association, the Welsh Local Government Association, LACORS, the local government co-ordinating body, and also from the Food Standards Agency. They seem to have legitimate concerns and, for that reason, I undertook to table Amendment No. 95. They have serious worries about creating statutory primary authorities. They do not like the LBRO’s power to nominate a council as a primary authority without that council’s agreement and they do not see how a forced relationship could work or deliver positive outcomes. It is felt that that would interfere with a council’s right to decide on the service that it wished to provide for its electorate.
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They believe that the regime set out in Clause 26 and Schedule 4 for taking enforcement action would amount to a fettering of a council’s right to take any action that it felt appropriate against someone believed to have committed an offence in its area. In their view, for one council or an LBRO to direct another council not to take enforcement action would be undemocratic. In the case of an LBRO directing a council not to take action, it would amount to a centralisation of power. That is rather surprising, as many of the Government’s recent pronouncements on a variety of issues indicate that their policies are against a centralisation of power. More power to local people—that has been the political stance adopted by the Government and it is one with which many of us totally agree.
LACORS is also concerned about the time limit of five working days for a primary authority to determine whether it wishes to direct an enforcing authority not to take action. It thinks that it is unrealistic. The LBRO has 28 days to make a decision in cases referred to it, and it is suggested that primary authorities should also be allowed 28 days.
The Food Standards Agency also has concerns about this section of the Bill. It says that the Government have not been clear about the circumstances in which a local authority should consult a primary authority before taking enforcement action. The guidance on the Bill suggests that an exemption might be made where consultation would seriously jeopardise public health, the environment or consumer protection. The Minister made some reference to that.
Those bodies believe that it is essential that public health should not be put at risk at all by the new procedures that the Government want to put in place. They think that it would be desirable for the Government to make a statement that if there should be an imminent risk to public health, the environment or consumer protection, a local authority will not have to consult the primary authority. Incidentally, the FSA also has some concern about the clause. I have received a briefing from the FSA. It makes it quite clear that although it is, in general, strongly in support of the Government’s better regulation agenda, it has some concerns. It states:
“Whilst we are reasonably clear on the process by which the FSA and other regulators will be given access to the new sanctions, the Government has been less clear about how local authorities will gain access to them. Local authorities are key partners in enforcing food regulations and protecting the public. Further clarity would be useful to ensure that councils do not miss out on the new powers”.
It is therefore very much a probing amendment. It will be seen from what I have said that there are reservations about the Bill from organisations which otherwise have a strong commitment to the Government's agenda. Therefore, it would be useful to have a statement to put some of those worries at rest. The LACORS draft in Amendment No. 95 was deliberately drafted as a way to give voice to those concerns. I will therefore welcome hearing the Government's response.
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4.45 pm
Viscount Eccles: I have a great deal of sympathy with the amendment tabled by the noble Baroness, Lady Turner of Camden. Looking at Clauses 26 and 27, I find it very difficult to understand—this may be my fault—how they would work. There seem to me to be too many players. You could call the system the price that you pay for consistency; the price could be too high.
If someone is in breach of a statute that is the responsibility of a regulator and the local authority has to take some action, the local authority is taking action against one person. That is quite simple. Another local authority may have to take action against another person, and those two persons may be related; but under this statutory system, you have LACORS, the primary authority and 32 pubs, let us assume, set up in 32 different authorities. It may be deemed that 16 of the pubs are in breach of something and the other 16 are not. The managers may be looking for their Christmas bonus and arguing whether they are in breach of the regulations. The whole system can be intervened on by the LBRO at some point.
You have to take Schedule 4, to which we are coming, to understand the two clauses. I start to think about alcohol disorder zones, on which some secondary legislation is going through at present. The whole thing is so complicated that the chances of people getting their mind around it and achieving consistency without paying far too high a price are very low.
Lord Cope of Berkeley: I, too, have some sympathy with the general remarks made by the noble Baroness. I was worried about the phrase in the guide about Clause 27 that immediate enforcement action can in effect be taken when the delay of consultation would seriously jeopardise public health, the environment or consumer protection. I am surprised at the inclusion of the word “seriously”. There are occasions when an inspector goes into premises, especially if food is involved, and wants to shut the place down immediately because there is a risk to public health. Sometimes it may not be a big risk—it may be quite a small one—but the inspector wants to have the threat of being able to close the premises down even for a small risk. That is extremely important. To have to argue that something is a serious risk to public health and could spread all over the place is not a good thing. To a degree, the question of serious risk may be more appropriate in cases such as the environment or consumer protection, but so far as public health is concerned, it is not.
Further, all this is to be dealt with by order because it is not part of the Bill and the guide only suggests the way in which the order might be drafted. Given that, it would be very helpful if we could see the order before we reach Report so as to be reassured about it. When we discuss the order itself, we shall not be able simply to delete the word “seriously” because there will be no provision for amendments. That is why we need to discuss the detail at this point.
Lord Bach: I am grateful to my noble friend for raising this point and speaking to her Amendment No. 95. She has invited me to rehearse the
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The approach as demonstrated in Amendment No. 95 sets out an alternative to the primary authority partnership. I accept absolutely what my noble friend says about this being a helpful attempt to make the primary authority scheme better, and not a gesture from those who object to it in principle. It is therefore hardly surprising that it is an approach very similar to one proposed by LACORS during the public consultation process. LACORS was a significant stakeholder in that process, and has helped to mould and set out the provisions in the Bill. The Government thank the organisation for that. Having said that, we do not think that the amendment provides the assurances that businesses need to be prepared to enter into a primary authority partnership.
The intention behind the amendment, of course, is to minimise bureaucracy and to protect the absolute discretion of local authorities to perform any enforcement action they choose. We are not convinced, however, that it would deliver the benefits that are expected. As we have debated already, local authorities have worked informally to promote better co-ordination among themselves through the home and lead authority schemes. They have encouraged open and systematic communication between local authorities when handling regulatory issues affecting a firm that operates across local authority boundaries. Yet, as we have heard, in practice conflicts and inconsistencies continue to arise. These result in significant and unnecessary costs to business as well as significant and unnecessary work for local authorities.
Businesses have asked us to provide access to a scheme which will provide more dependable advice and much quicker resolution of disputes between authorities, thus giving greater certainty and clarity and providing an effective basis for planning their operations across the country. We start from the principle that where a business and a local authority have gone to the trouble of establishing a regulatory partnership, there should be a presumption that the advice given by one professional is respected by other professionals across the country unless there are good reasons for local variation. One of our criticisms of Amendment No. 95 is that it would not provide such a presumption. Its approach would effectively put existing practices, as recognised in the voluntary home-lead schemes, on to a statutory footing. Our view is that that is not enough to deliver the certainty that businesses have a right to expect.
If local authorities adhere strictly to the current scheme, consultation in this way, without any suggestion of a right to block an action, would deal with the inconsistencies that businesses face. Yet cases occur where authorities proceed to prosecution without any attempt to contact the primary authority to determine its advice; and where they do contact the
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