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Proposal 5 of the Government’s response to the consultation was that:
“Should a stronger requirement be placed on local authorities to comply with LBRO guidance? If so, what is your argument?”.
Some 79 per cent of the respondents answered that there was no need for a stronger requirement, while 21 per cent answered yes. Among the yeses was the National Consumer Council, which answered to the second question:
“However if outcomes suffer because guidance is being consistently ignored then LBRO should have appropriate reserve powers to deal with this”.
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The Trading Standards Institute—incidentally, these two bodies were discussed in Committee—answered the same question by saying:
“If LBRO determines that there is a limited take up of guidance and yet clear benefits from adherence then LBRO should be able to be instructive to authorities on implementation of any such guidance”.
It is clear that Ministers have allowed the 21 per cent—mainly business respondents—to prevail. By including Clause 7 they have gone further than anyone consulted could have expected. One can question the purpose of consultation if its results are not then accepted but, being where we are, we need to make the best of it. It is also now said that, having seen the clause, both the National Consumer Council and the Trading Standards Institute are content with it. Yet do they fully understand the constitutional issue involved? What about the 79 per cent?
Defending the late entrance of Clause 7, it is argued that the Secretary of State is an adequate safeguard because he has to be consulted before a direction can be made. Why have a safeguard when you do not need it? It is much better to put the responsibility where it truly lies, with the Secretary of State. This is not only normal practice but also improves accountability to Parliament, particularly if the Secretary of State was to lay an order rather than proceeding straight to a direction. All the detriments associated with the LBRO having the power are removed. Its relationships in pursuit of its core aim—
would be that much easier to manage productively.
In summary, Clause 7 would remain in place if my amendments were accepted. The Secretary of State would have the power to direct when he was satisfied that there was persistent disregard of sound guidance. The Government thus retain all the substance they want. There is only a change in the form. We can all hope with some confidence that the power would never in fact turn out to be necessary. I beg to move.
Baroness Hamwee: My Lords, I wholeheartedly support what the noble Viscount has said, his reasons for saying it and the way that he put it. When I first read the Bill, Clause 7 was perhaps the clause that startled me most. It is headed “Guidance to local authorities: enforcement”, which seems relatively innocent. Yet in the first line one comes to the power of direction. This is an important constitutional point. I do not want to take up the time of the House by repeating what the noble Viscount has said. By not repeating it, I hope it is not thought that I do not entirely go along with him. We support him fully from these Benches.
Lord Borrie: My Lords, I oppose the amendment proposed by the noble Viscount, Lord Eccles. We know—he showed us—that Clause 6 gives the LBRO power to issue guidance to local authorities on their so-called relevant functions. In the main, no doubt, that guidance will be accepted and followed by local authorities. As the noble Viscount pointed out, Clause 6(3) says that local authorities “must have regard” to the guidance.
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From time to time there is bound to be a recalcitrant local authority and the question is how the guidance can be enforced. Should it be by the LBRO itself or by a relevant Minister? The Government’s answer in the Bill as it stands is the right one. The LBRO needs some sort of backup power for the recalcitrant local authority which, let us say, persistently ignores or declines to follow the guidance that the LBRO has given. Without that, there is a risk of the LBRO being impotent. The amendment asks for ministerial involvement but, as the noble Viscount fairly pointed out, Clause 7(2) requires the LBRO to have the consent of the Secretary of State. So there is a ministerial dimension and the potential for parliamentary accountability connected in that way in the Bill already. The Minister can always be asked, in this House or in the other place, why consent was given—and the Minister will have to respond.
We have here the independence of the LBRO and its power to issue guidance and enforce it directly, but we also have ministerial accountability, which is the key constitutional point with which the noble Viscount has been concerned. The Bill as it stands achieves the right amount of LBRO independence and ministerial accountability for what is done.
Baroness Butler-Sloss: My Lords, bearing in mind what the noble Lord, Lord Borrie, said about not having something that is impotent, I wonder what effective enforcement the LBRO can achieve. Is it financial against a local authority? In what other way can the LBRO ensure that the recalcitrant local authority actually complies? Clearly, a Secretary of State has a financial ability. Does the LBRO have that financial ability?
Baroness Wilcox: My Lords, along with the noble Baroness, Lady Hamwee, I am in full support of the raft of amendments proposed by my noble friend Lord Eccles. The amendments would move the powers of direction from the LBRO to the Secretary of State. Crucially, the amendments do not diminish the power that stands behind the instruction for compliance. I follow my noble friend Lord Eccles in his concern that the Bill gives the non-departmental body, the LBRO, an unprecedented power to turn guidance to local authorities subject to the “must have regard to” instruction into enforcement—and thus the instruction “must comply”.
I would also very much like to hear the Minister’s justification for conferring such a great and significant power, given that the LBRO is a new body and an untested novice in its regulatory role. A regulatory body should never have the power to be both judge and jury over the regulated. I do not need to point out to your Lordships that such a situation risks losing the trust of British businesses in the regulatory system. I find it hard to believe that the Minister will not agree that optimum regulation occurs when the system is seen to work for business and the consumer, and not isolated in a separate superiority. Therefore, I would be very much more reassured if the Minister could put the reserve power of direction into the properly accountable hand of the Secretary of State.
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Lord Bach: My Lords, I am grateful for the opportunity that the amendments give to discuss our reason for the inclusion of the measures in Clause 7. I am doubly grateful to the noble Viscount for his thanks particularly to the Bill team for the help that he says that it has given him. It is very good of him to say so because Bill teams do not often receive that kind of plaudit, although they do extraordinarily hard work—one hopes for all Members of the House.
I acknowledge, too, that the noble Viscount has moved his position to some extent from the one he held in Committee. The amendment would no longer remove the power that the LBRO has to direct compliance with guidance; it would retain the approach adopted in Clause 7 but would put the power to give directions into the hands of the Secretary of State. I understand why the noble Viscount is testing the provisions in the clause further, but I shall try to explain to the House why we do not feel that this particular change would be helpful.
We have already set out the thinking behind the inclusion of the LBRO’s power to direct. It has its origins in the Hampton report, which recommended the creation of a public body with significant powers, along the lines of those which are already held by the Food Standards Agency, to which the noble Viscount referred. It is important that the LBRO should have a backstop power to be used when, for example, as my noble friend Lord Borrie argued, one or more local authorities persistently act with disregard for a particular piece of guidance, and this disregard is detrimental to business or the public.
6.15 pm
The use of the power will be subject to important controls. The most important of these is that any use of the powers of direction is subject to the consent of the Secretary of State. One question that has been raised has been the one of precedents for the Clause 7 power. As we discussed in Committee, the Hampton report recommended the creation of a body with powers broadly comparable to the Food Standards Agency. We believe that it is relevant, despite what the noble Viscount has said, that the closest precedent is the power exercised by the Food Standards Agency under the Food Safety Act 1990 in Section 40, where the agency may give directions to a local authority to take steps to comply with a code of practice, much as the LBRO may require that a local authority complies with guidance. The FSA only has to consult the Secretary of State, however—that Act does not contain the stricter requirement of consent from the Secretary of State that Clause 7 sets out.
Not only does this power have a clear precedent therefore, but the measures before the House have rather more stringent controls than does the precedent. The noble Viscount is concerned to ensure that appropriate democratic accountability is brought to the way in which the LBRO gives directions to a local authority. We believe that the ministerial consent requirement will have a similar effect in practice as the approach set out in the amendment. The LBRO will propose directions, but Ministers will be accountable for consenting to their use. The
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The noble and learned Baroness, Lady Butler-Sloss, asked how the LBRO could enforce its directions. Of course, local authorities, as she will know probably better than anyone else in the House this evening, are required to comply with directions. Failure to do so would be a breach of their statutory duty. The LBRO can seek to enforce the breach and third parties can sue if they are harmed by that breach of statutory duty. So it puts the local authority at risk of being sued by third parties.
We mentioned in Committee—and the noble Viscount dealt to some extent with this argument in moving his amendment—that the inclusion of this power has the support of business, notably the British Retail Consortium. It certainly does. The CBI has written this week to the Government, saying that it would welcome moves to maintain the powers of the Local Better Regulation Office. It said:
“Business has been promised a better regulatory environment if regulators are awarded new powers. But this requires regulators to deliver on this, and we think it important that the LBRO is given the appropriate powers to ensure that local authorities do just this. Maintaining Clause 7 as currently drafted, which gives the LBRO powers of direction, would help achieve this”.
Noble Lords may have seen the briefing notes from the major stakeholders, but I remind them of the position of other bodies that by no stretch of the imagination could be described as businesses. The Trading Standards Institute said that it believes that,
- “it is necessary that LBRO has the power to direct local authorities that are at odds with central guidance in order to ensure a consistent regulatory environment”.
The National Consumer Council said:
“The LBRO cannot secure consistency of practice if local authority regulatory services are free to choose to ignore its guidance. Indeed, we are concerned that the requirements on LBRO to consult and obtain the consent of the Secretary of State before issuing a direction are too onerous and might work to dissuade LBRO from legitimately exercising this power”.
They go further than the Government do. Clearly, it would be unhappy with this specific amendment which would put the use of the power even further from LBRO’s hands.
I will just sum up our case on this. We believe LBRO’s powers in Clause 7 are precedented; based squarely on Hampton; have the support of business, and not just business but also consumers and the professions, particularly the Trading Standards Institute; are subject to controls recommended by the Delegated Powers and Regulatory Reform Committee which we have accepted in full; and are designed in such a way as to ensure the appropriate accountability to Parliament. For those reasons, I am afraid that we stick with our view that Clause 7, as drafted, is appropriate in this case. These are intended as backup powers and it is in that context that we suggest that they are appropriate for this Bill.
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Viscount Eccles: My Lords, before I try to reply as best I can, may I refer to the Food Safety Act which the Minister mentioned? There are two things. Under Section 40 the Secretary of State can issue a code of practice, giving food authorities guidance on how they should enforce food law, and under Section 41A the Food Standards Agency can direct a food authority. Even if a food authority is also a local authority, that power is much narrower than anything proposed in this Bill because it is specifically about the single subject of food. I wonder if the Minister would agree that we are looking at a precedent. It is not right to use the Food Standards Agency as a sufficient precedent for what is in this Bill.
Lord Bach: My Lords, I accept the enormous amount of work that the noble Viscount has put into researching this, no doubt more work than I have put in. The advice that I have received is that the Food Standards Agency is a good precedent for what we are intending here. It may not be absolutely on all fours, precedents rarely are, but it gives that agency the power to direct local authorities. That is precisely what we are seeking for the LBRO here. It is a backup power with all that that is intended to mean. One difference the other way is that the Food Standards Agency only needs to consult the Secretary of State. Here if the LBRO is to direct any local authority, it has to have the prior consent of the Secretary of State himself or herself.
Viscount Eccles: My Lords, I thank the Minister for that reply. I think that in substance we are in very close agreement. I am not in any way contesting the need to be able to bring a recalcitrant local authority into line. Nothing in my amendment takes away the power to do just that. My argument is: why have a dog when you can bark yourself? Also, no non-departmental government body has, even if it has the power of direction, ever exercised it. Why is it sensible to set a precedent on this occasion? It seems to me that what I have proposed meets everything in substance that the Minister wishes to see. I have effectively two choices—three really. I could hope that down the other end the argument will be read with sufficient care, the Government will come to see the force of it and an amendment will be introduced. I am not entirely optimistic that that will be the case. So, in thanking all those who have taken part in this relatively short debate and noting particularly what the noble Baroness, Lady Hamwee, said, I wish to test the opinion of the House.
6.25 pm
On Question, Whether the said amendment (No. 13) shall be agreed to?
Their Lordships divided: Contents, 52; Not-Contents, 109.
Addington, L.
Barker, B.
Bridgeman, V.
Burnett, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Chidgey, L.
Colwyn, L.
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Cotter, L.
Craig of Radley, L.
Cumberlege, B.
De Mauley, L. [Teller]
Dholakia, L.
Eccles, V. [Teller]
Eccles of Moulton, B.
Elton, L.
Falkner of Margravine, B.
Ferrers, E.
Fookes, B.
Goodlad, L.
Hamilton of Epsom, L.
Hamwee, B.
Harris of Richmond, B.
Hodgson of Astley Abbotts, L.
Inglewood, L.
Kingsland, L.
Livsey of Talgarth, L.
Lyell, L.
Lyell of Markyate, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Mayhew of Twysden, L.
Neuberger, B.
Newby, L.
Perry of Southwark, B.
Razzall, L.
Roberts of Llandudno, L.
Roper, L.
Russell-Johnston, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shrewsbury, E.
Teverson, L.
Tonge, B.
Tordoff, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walpole, L.
Wilcox, B.
Adams of Craigielea, B.
Adonis, L.
Alli, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Best, L.
Bilston, L.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Brennan, L.
Brookman, L.
Brooks of Tremorfa, L.
Butler-Sloss, B.
Campbell-Savours, L.
Clark of Windermere, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Crisp, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Deech, B.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Golding, B.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kingsmill, B.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Morgan of Drefelin, B.
Patel of Blackburn, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Prosser, B.
Quin, B.
Ramsay of Cartvale, B.
Richard, L.
Rogan, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
19 Mar 2008 : Column 304
Vadera, B.
Warner, L.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Resolved in the negative, and amendment disagreed to accordingly.
6.35 pm
[Amendments Nos. 14 to 18 not moved.]
Baroness Hamwee moved Amendment No. 19:
“( ) such local authorities in England and Wales, or such persons representative of local authorities in England and Wales, as LBRO considers appropriate,”The noble Baroness said: My Lords, in Committee, we sought to delete the whole of Clause 7. I did not at that point argue a matter that I argued elsewhere in relation to the Bill, which is the special position of local authorities with regard to consultation—in this case, consultation by LBRO for giving a direction. Under Clause 7(5),
it considers appropriate. My amendment would make it entirely clear, as I am sure must be the case, that local authorities have a particular position. I have used wording that the Government have used in similar amendments to the Bill and, although I never expect that my drafting will be accepted in terms by the Government, I hope that the point will be taken. I beg to move.
Lord Bach: My Lords, I thank the noble Baroness, Lady Hamwee, for her amendment, which we suspect is designed to complete the job that she began in Grand Committee by tabling an amendment that required LBRO to consult local authorities prior to issuing guidance under Clause 6. We considered that amendment and made an amendment of our own to include that requirement in the Bill. We are delighted to say that we will consider this new amendment as well. I hope to return with our form of words at Third Reading.
Baroness Hamwee: My Lords, I happily beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 20 to 23 not moved.]
Clause 9 [Advice to Ministers of the Crown]:
Lord Cope of Berkeley moved Amendment No. 24:
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