| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Amendment, by leave, withdrawn.
[Amendment No. 100 had been withdrawn from the Marshalled List.]
On Question, Whether Clause 29 shall stand part of the Bill?
Lord De Mauley: Leaving out the clause would avoid the situation where a business that has in good faith paid all its taxes and rates, which are supposed to cover the cost of regulatory supervision, is forced to pay a second time for the same thing. While a
28 Jan 2008 : Column GC265
Lord Hodgson of Astley Abbotts: I, too, am concerned about this clause. The noble Lord, Lord Jones, described the emergence of new attitudes and new approaches, but I can think of few things that are more likely to cause the hardening of attitudes than the stark nature of the statements in Clause 29; for example, the power to,
- “charge the regulated person such fees as [the primary authority] considers to represent the costs reasonably incurred”.
There is no provision for appeal or for being able to challenge that.
I accept entirely what the noble Lord said. His speech in response to the earlier stand part debate was encouraging to a major degree and a very welcome, different approach from what we have heard in the past. I think that he should look at finding a way to reassure the regulated person—whoever that may be—that the fees charged are reasonable and are not dreamt up in a way that may be seen to be unreasonable and unnecessary. Of course, the large companies will be able to make a fuss but, once again, it will be the smaller companies that find it is not worth proceeding because of the effort, administrative cost and regulatory burden involved. I am with the Minister all the way with regard to attitudinal change but this is where we could ensure that the underlying attitudinal change was reinforced.
Lord Borrie: The merits of the primary authority scheme are that it will be in the public interest and in the interests of business, as we discussed on a number of occasions today and last week. If we want the system to be a success, the primary authority must be adequately resourced.
There is no doubt that, if we came back to this discussion in two or three years’ time, we would find that some authorities, still called “local authorities”, would have the tremendous burden of having to find resources to carry out their primary authority functions whereas others would not. The county of Hertfordshire happens to have a large number of company headquarters, and there are a number of other reasons why it should be the chosen business
28 Jan 2008 : Column GC266
There is nothing terribly new or novel about local authorities being able to charge for the services they provide. In an earlier discussion, we talked about authorities being nominated to be primary authorities, either by way of agreement or, contrary to the views of some in this Committee, possibly through nomination by the LBRO because the business has not been able to find a local authority partner. If there is no ability to charge, as provided for under Clause 29, then many local authorities will be much less willing to take on the responsibilities which we—if we agree with the main principle of this part of the Bill—want for all sorts of perfectly good reasons. Worse still, it may be that a local authority would take on the role and then not fulfil the requirements of the job as well as it should. Primary authorities must be adequately resourced.
7 pm
Lord De Mauley: How does the noble Lord suppose that home and lead authorities have managed to carry out this function up to now for no charge?
Lord Borrie: I am aware that they have been able to do that, but I do not think that it has been very satisfactory. Some of them—I mentioned one example earlier—grumble that there is a particular burden on them which neighbouring authorities do not bear. That could not go on indefinitely, but it was a voluntary scheme and there was no other way of doing it.
Lord Bach: I am extremely grateful to my noble friend because he is right. Indeed, I am tempted to ask the noble Lord, Lord De Mauley, whether he is really suggesting that it is wrong to ask local businesses to charge, or whether he is not going quite that far—it would be a long way—and is asking only how local businesses will pay. If he is really against this charging structure, what does he have in mind to put in its place? It is a legitimate question and I put it to the noble Lord. As I understand it, some businesses currently pay for home and lead partnerships.
In agreeing to be a primary authority, a local authority is agreeing to take on a host of new functions and responsibilities for the benefit of a specific company. Carrying out these functions effectively may be costly, and in their responses to the
28 Jan 2008 : Column GC267
Clause 29 makes it absolutely clear that all local authorities may charge for their services as a primary authority if they wish to do so, regardless of whether they have volunteered or have been nominated by the LBRO. It is a carefully drafted clause to ensure that a local authority cannot derive any profit from its work as a primary authority. It may charge fees that represent only,
Further, if it were completely unreasonable in its charges, for a start I do not think that the business would pay, but if it did, it would have a potential remedy—the noble Lord, Lord Hodgson, is looking at me carefully because I think he knows what is coming—in terms of judicial review. As a further safeguard, local authorities must have regard to any guidance issued by the LBRO under Clause 31 in relation to costs recovery. That particular safeguard is important.
In putting his case, the noble Lord, Lord De Mauley, argued that the provisions in Clause 29 amount to a kind of double taxation as businesses already pay for regulatory services through business rates. However, partnerships in the primary authority scheme will give multi-site businesses access to a range of services over and above those available to businesses in general. If a business has a primary authority, it will benefit, first, from the advice and guidance the authority can offer as the first point of contact on regulatory issues; secondly, it will have the right to a review of all significant enforcement action by the primary authority before such action is taken against it; and, thirdly, a right to refer proposed enforcement actions to the LBRO where it thinks that the actions are inconsistent with the advice it has been given. Not surprisingly, these benefits come at a cost. However, I do not believe it would be appropriate for these costs to be met through general rates on business, including those that do not enjoy access to the primary authority scheme, or charges on local council taxpayers.
At Second Reading the noble Baroness, Lady Wilcox, asked what might be done to ensure that the primary authority scheme does not divert valuable local authority resources away from small businesses. We argue that the inclusion of the power to charge will provide clarity and be an important safeguard for the interests of small businesses; for example, those that carry out their business in only one local authority area. Clause 29 will ensure that small businesses can confidently expect that where a local
28 Jan 2008 : Column GC268
I am delighted to say that Clause 29 has been welcomed by small business representatives for just that reason. Representatives of some of the bigger, multi-site businesses have put it to us that charging would not be unwelcome so long as the scheme delivers the real consistency that they need. There is, of course, a cost to the inconsistency that has taken place until now.
That is the argument on the other side. Unless there is a serious alternative to this system—I look forward to hearing about it if there is—I invite the noble Lord to withdraw his opposition to the clause. I hope he will feel satisfied with my explanation of why we have taken the course we have.
Lord De Mauley: I am grateful to the Minister for his response. I would make the point that while some local authorities will incur additional cost as a result of this system, others will presumably save because they will not have to repeat the work all across the country. The fact that there is not what I might call an equalisation procedure as between local authorities ought not really to be the problem of business. Having said that, I am attracted to the idea of the noble Lord, Lord Hodgson, of a right of appeal. I will read the Minister’s words carefully and, on the understanding that we can come back to this, I shall withdraw my opposition to the clause.
[Amendment No. 100A not moved.]
[Amendments Nos. 101 and 101A not moved.]
[Amendment No. 102 not moved.]
[Amendment No. 103 not moved.]
Lord Selsdon moved Amendment No. 103A:
“PART 2APowers of entry“authorised person” means a person authorised by the Minister responsible for the enforcement of an Act or instrument containing powers, and
The noble Lord said: I apologise to the Committee that one-third of the pages of amendments are related to my own. I apologise, too, that I have not been able to be here throughout but, for the first time in my life, I am meant to be divided between human embryology and something more practical like this.
28 Jan 2008 : Column GC269
The Committee may like to know some of the background to this. I have provided a brief which goes back to one year before the noble Lord, Lord Jones of Birmingham, went into business—1975. The concern at that time was related to “powers of entry”, as we called it then. I intend to speak to Amendments Nos. 103A to 103K, 109A, 109B, 192A and 192B.
I draw the Committee’s attention in particular to Amendment No. 103K, which states:
“Nothing in this Part shall apply to the powers exercised by police officers, members of the security or intelligence services or officers of HM Revenue and Customs”.
I do not need to rehearse all of this but if I had a chance of saying, “I wanted to go to Birmingham and I ended up at Crewe”, I really wanted to go to Crewe. In the research that we undertook we found that of all the powers of entry related to government, no government department knew what its powers of entry, search or seizure were. I therefore introduced a Private Member’s Bill in 2006 which was tabled simply in order to list those powers of entry that existed. The noble Lord, Lord Bach, was the only Minister at that time who gave a proper answer; he said, “Refer to the Library and to the research on the powers of entry written by Professor Stone, which I had put in the Library myself.
I have tried over time with numerous Parliamentary Questions, at considerable cost, to get government departments to advise what powers they have under which legislation. The problem, as usual, particularly in a leap year, is that you have a moveable feast. As Governments change departments, departments within departments and departmental names, no one has a clue what their powers are. The noble Lord, Lord Jones, will probably remember in some of the earlier days—although I think it was before he was there—we consulted the Committee on Invisible Exports, the CBI ad nauseam, every chamber of commerce in the country and all the local authorities to see what their concern was. It was simply this: that there were an enormous number of people who had the power to go into other people’s houses without permission or a court order. Recently, the Committee may be aware, the Prime Minister made a statement on an appropriate day to the Independent that he was going to get someone to look at 250 powers of entry and see what could be done about it.
There is no point having a Private Member’s Bill that does not become law. Officials in this great Palace of Westminster and others suggested that my Bill should be grafted or tacked on to suitable government legislation. The various bodies pointed out that the Bill before us today was extraordinarily suitable government legislation because it dealt with local authority powers, as well as with a whole range of other things. One of the advisers to the noble Lord, Lord Jones, who is not here, might like to know that the McDonald’s “Hamburger University” has provided guidance in the past about food safety and matters of that sort.
The objective of my amendments is to introduce, to some extent, what was called the Powers of Entry
28 Jan 2008 : Column GC270
I wanted to leave in the reference to Customs and Excise, but they have quickly merged with the Inland Revenue and you should not interfere with the powers of the Revenue. Some of the powers of the VAT men and others are outrageous. It all goes back, as Members will know, to the differential price of brandy during the Napoleonic wars. That has been superseded by the fact that every spirit produced in the United Kingdom is cheaper on the Continent than ever before, but it was the power of the VAT man that still worried people. Then we came to the question of the security and intelligence services. They, of course, must be left out.
In the Schedule we have 155 Acts that give people the power to go into other people’s houses without authority and without a court order. When these were all government departments and we had nationalised industries such as gas, no one minded, because in a way you trusted government officials. But as we privatise and sell things off, so the same powers are transferred to private sector enterprises; in many cases, foreign-owned. That does not mean that the people who seek to search and enter are foreigners, but our legislation in the United Kingdom gives greater freedom to search and enter than in any other country in the European Union. I am not fully advised on all this, but it is one of the worries.
7.15 pm
The purpose of these amendments was, effectively, to take a concept and introduce it into government legislation, knowing that government officials and others would probably find a way to object, but knowing that the argument is absolutely flawless, because the first question is: surely it is right and proper that Ministers should know that the powers of entry are of officials in departments or institutions for which they are responsible. That is the principle behind all of this.
The amendments are simply to say, “Look, let’s have a code of conduct”. I would prefer a code of conduct to a code of practice, but in general you need a code that everyone is aware of. You need all the principles whereby people should identify themselves when they enter and if they take documents away, they should not lose them and should provide receipts. All of these are little details. So the purpose of my amendments was simply to introduce this activity into a Bill and to hope that the Government, who are sometimes logical and reasonable, will realise that there is nothing wrong about this—it is a cross-party matter. Should the Government wish to know how many more Acts or pieces of legislation were introduced by Conservative Governments that permitted powers of entry, often without clear thought, I can tell them—even those introduced by the Liberals in ancient times. Of course, this is very much a liberal Bill.
28 Jan 2008 : Column GC271
Therefore, the question is, if my Powers of Entry etc. Bill went ahead to Committee stage, it would then stand there—and what would I do with it next? I would probably introduce it next year or the year after, or maybe introduce it to my friendly officials in Brussels and make it law in another way. So the background to this is that I know that the noble Lord, Lord Bach, knows more about this than any other Minister. He is the noble Lord who gave the most satisfactory answers. I shall sit down and ask the Government please to consider whether they might accept these amendments, either in their present form or in amended form. I have plenty more amendments that I could table at an appropriate time, but the hour is late and I do not wish to disturb or distress anyone here. I beg to move.
Lord Hodgson of Astley Abbotts: Briefly, I support my noble friend who has done us a great service by raising this issue. Before he introduced his Bill in December last year, I had come across Mr Snook’s book, Crossing the Threshold, which is a chilling read, in the sense that not only are the actions described there very wide-ranging, but they are difficult to regulate and define. I do not want to repeat what my noble friend said, other than to express general support for his approach and to draw the Government’s attention to his Amendments Nos. 103H and 103J on the issue of information gateways. This will have some relevance to the operation of the LBRO, because Acts are being passed with increasing numbers of powers that permit the passing on of information, often of a highly confidential and personal nature, from one government department to another. That is not right.
The Government’s response to date has primarily been along the lines of, “If you’ve got nothing to hide, you’ve got nothing to fear”. That has been the oldest argument for every bit of illiberal and restrictive legislation since time immemorial. In a lot of cases, though, having been gathered by one government department on certain grounds, information is passed to another government department without the person it concerns knowing what is going on. We came across this issue in the Companies Bill, now the Companies Act. That now permits the Takeover Panel to pass information to overseas bodies carrying out similar tasks. There is no restriction on what they do with that information after they have got it.
I hope that when the Minister replies to my noble friend, he will address this issue of information that the LBRO may pick up, which may be important to a business, and ensure that it cannot be passed on and, most importantly, that it is treated in proper confidence. I am not sure that that is tackled anywhere in the Bill, but it is an important subset of the points made by my noble friend. I thoroughly support his strategic point.
Lord Lyell of Markyate: I rise briefly to support my noble friend, who has done us a great service by working in such detail on a long-forgotten subject. It happens that the Select Committee on the Constitution is now making a study of the surveillance society.
28 Jan 2008 : Column GC272
Baroness Wilcox: We on these Benches support the amendments tabled by my noble friend Lord Selsdon to include in this Bill the provisions of his Private Member’s Bill, the Powers of Entry etc. Bill 2007. When she spoke at that Bill’s Second Reading, my noble friend Lady Hanham said that it was alarming that such a Bill had not been produced before, and that it had to come from a Member of the House rather than from the Government. The amendments before us bring together all the legislation under which various government departments can require or force entry to private or commercial premises. As my noble friend has said, these amendments testify to more than 100 Acts of Parliament which allow officials from various departments and agencies to demand entry to premises.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |