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The noble Lord said: My Lords, this is a simple amendment, which I hope the Government will accept, because they were in favour of the principle of the thing when we discussed it in Committee.
Lord Bach: My Lords, the noble Lord hopes that we will accept it. We certainly intend to consider it, if that will help him.
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Lord Cope of Berkeley: My Lords, in that case, I need not go on for very long. The point is whether the LBRO will consider prospective as well as existing legislation. The noble Lord said in Grand Committee that that might be included under the words “any other matter” in subsection (1)(d). As legislation is specifically referred to in subsection (1)(b), we should include the words that I suggest. I beg to move.
Baroness Hamwee: My Lords, I have Amendments Nos. 25, 26 and 27 in this group. I pause hopefully, but no one is leaping to intervene.
Clause 11 provides for LBRO to publish,
- “a list specifying matters to which a local authority should give priority when allocating resources to its relevant functions”.
My concern is that LBRO’s powers should not extend to allocating to the regulatory functions from the whole of a local authority’s budget. Rather, they should be limited to the priorities within what a local authority itself allocates to the functions. I hope that the Government can reassure me that that is what is intended. If the Government take the view that LBRO should have the greater power of saying to a local authority, “Thou shalt devote X million out of your Y hundreds of millions to the relevant functions”, that is too much power on the part of LBRO. I therefore hope that the Government can assure me that this is intended to be a more limited intervention.
Lord Hodgson of Astley Abbotts: My Lords, I have tabled Amendment No. 28 in this group. This is an issue that we covered in Committee. It concerns publishing the details of representations made to LBRO and the identity of those making the representations. The background to this was that I felt it important that, if you wish to influence public policy by lobbying LBRO, you should at least be prepared to be identified as having done so. The compulsive litigant or compulsive complainant should at least be identified as such.
The Minister suggested on 28 January at col. GC 132 that this would fall foul of the Data Protection Act as he understood it. Between Committee stage and tonight, I have taken the trouble to ask, at a fairly unofficial level, a data protection lawyer about this. I am advised—I am sure that the serried ranks of the Bill team and its huge legal battery will have much better advice than I have—that where people put themselves forward and make direct representations, they would not be afforded the protection of the Data Protection Act, but that they would be if their support was implied. That is to say that, if the chamber of commerce had done something, you could mention the chamber of commerce but not the firms that were part of it. If you said that a company had made a representation, you could name the company but not individual directors.
I hope that the Minister will take the opportunity to think about this. Transparency is important in these areas. If you wish to influence public policy, you should have the courage of your convictions and be prepared to stand up and say what you are standing for. The dangers of allowing this to be done without disclosure are considerable.
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6.45 pm
Lord Bach: My Lords, these amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Hodgson, give me an opportunity to remind the House briefly of the intentions behind Clause 11. Before that, I should refer to Amendment No. 24 in the name of the noble Lord, Lord Cope. His amendment gives me an opportunity to give further assurances about how the Government expect the advisory role of LBRO to operate in practice. The noble Lord raised an important point in Committee in relation to its ability to offer advice to the Government, not only on the existing legislation enforced by local authorities but on proposals in the pipeline. Clearly, LBRO will have considerable expertise to offer and the Government could get just as much benefit, if not more, from advice on legislation in development. We share the noble Lord’s view that LBRO should be able to advise on this. We consider the provision in Clause 9(1)(d), that LBRO may give advice on,
- “any other matter relating to the exercise by local authorities in England and Wales of their relevant functions”,
would be sufficient legal basis for LBRO to offer advice on legislative proposals. To put the matter beyond doubt, let me say that the amendment of the noble Lord is helpful and that, if he will withdraw it tonight, we will come back on Third Reading with words that I suspect will be very similar to what he has proposed—they might be a little different. We are grateful to him and will certainly consider his amendment.
Turning to the amendments in the name of the noble Baroness, Lady Hamwee, I can give her the agreement that she wanted. That is not to accept the amendments but to agree that, in her phrase, “more limited intervention” is what we are trying to achieve here, rather than what she fears. I want to make it clear that the provisions in Clause 11 will not prevent councils from giving due regard to their own priorities. These can be given equal—or even greater—weight than the national priorities when it comes to planning their operations and how resources are allocated. The clause is intended purely to give some order and discipline to the way in which the centre sets priorities for local authorities. I would have quoted the Rogers report in more detail to answer the noble Baroness, but I can give her what I hope she wanted to hear from me, which is that she is right in thinking that we are in favour of more limited intervention and that this would not somehow undermine local authorities’ rights.
The noble Lord, Lord Hodgson, wants us to agree that LBRO should publish the names of anyone who makes representations, pursuant to its preparation of a list of regulatory priorities. I am going to argue again that LBRO should have the flexibility to, where appropriate, withhold the details of those who made representations, not least because the publication of personal data may—and I use that word advisedly—in some circumstances fall foul of the Data Protection Act principles. This duty would require disclosure of the names of anybody making representation in all
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Representations may not simply be formal lobbying activities. LBRO is likely, in practice, to follow the example of Peter Rogers when he conducted the first review of regulatory priorities last year and to hold a number of workshops and focus groups with the public, regulators and businesses. Under this amendment, the names of all those involved would need to be published. That would not be appropriate. In practice, LBRO is likely to want to publish the names in many cases. This is good practice, as when the Government published most of the names and responses of those who responded to the consultation on the Bill, but we do not believe that it should be a requirement. The same rules should apply as to any other consultation that might impact on government policy.
We understand the noble Lord’s concern that undue influence might be brought to bear on LBRO’s activity and that the light of publicity might help to eradicate this. Let me give what further reassurance I can. LBRO alone cannot and will not take the final decision that will put the priorities into effect. Under Clause 11(7), the consent of the Secretary of State is needed before the priorities become statutory priorities. The Secretary of State will expect to see a logically argued case based on clear evidence before LBRO’s recommendations are accepted. This is what the representation requirement is meant to capture. The hidden influence of individual bodies alone would not be sufficient to sway the final decision. Therefore, I am afraid that we cannot accept the noble Lord’s amendment.
Lord Cope of Berkeley: My Lords, I am delighted with the response from the Minister on my Amendment No. 24, because he has accepted the point, and I am happy with the drafting. As a matter of fact, I support the other amendments in the group, in the names of my noble friend Lord Hodgson and the noble Baroness, Lady Hamwee. I am glad that the points behind the amendments of the noble Baroness will also be considered further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Enforcement priorities]:
[Amendments Nos. 25 to 28 not moved.]
Lord Hodgson of Astley Abbotts moved Amendment No. 29:
LBRO must enter into a memorandum of understanding with the devolved authorities in Scotland and Northern Ireland as to how they will work together in the exercise of their respective functions.”
The noble Lord said: My Lords, we return to an issue that has concerned me regarding the different treatment emerging in the United Kingdom as a result of the devolved nature of Scotland and Northern Ireland. That is a serious weakness in the planned
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I shall briefly readdress my arguments. Paragraph 4 of the Explanatory Notes states:
“The Hampton Review set out a vision for a risk-based approach to regulation and included a set of principles for regulatory inspection and enforcement, based around risk and proportionality”.
Nowhere does that paragraph mention the episodic nature of this approach, whereby it may or may not apply to Scotland or Northern Ireland. Furthermore, in the debate on Second Reading, the noble Lord, Lord Jones of Birmingham, said:
“The UK’s better regulation agenda is widely regarded across the world as being the most ambitious anywhere”.—[Official Report, 28/11/07; col. 1238.]
He then prayed in aid this legislation as part of that work. That is all very well, but the Bill is not about the UK; for the most part, it is about England and Wales, with some references to Scotland and Northern Ireland coming along behind. When the Minister talked about the UK, that showed how far he is adrift from what the Bill seeks to achieve. Paragraph 6 of the Explanatory Notes states:
“The Hampton Review found that the diffuse structure of local authority regulatory enforcement increases uncertainty and administrative burdens for business”.
We are not tackling this issue as regards Scotland and Northern Ireland. The Bill is flawed in respect of firms that operate on a UK-wide basis. Only when one reaches paragraph 17 of the Explanatory Notes does it become clear what the Bill’s remit is in different parts of the UK.
I tried to think about how we could move this game forward. My thought was that Clause 12 might be relevant, as it requires the establishment of memorandums of understanding with certain key regulators—those with which LBRO and local authorities are expected to have the greatest amount of day-to-day contact. I hope that the noble Lord, Lord Borrie, will forgive me if I quote what he said in Grand Committee. He said:
“There is of course a problem of local authorities receiving mixed messages from central government ... Having some memoranda of understanding is vitally important: it helps to improve the consistency of messages coming through to local authorities from central government”.—[Official Report, 23/1/08; col. GC 136.]
What I am trying to achieve in the amendment is a memorandum of understanding between LBRO within England and Wales and the appropriate authorities in Scotland and Northern Ireland, with a view to avoiding mixed messages. That is what my new clause is all about.
My proposal would not infringe anyone’s sovereignty. I am sure that the Minister will say—the Bill team pointed this out at our meeting on Monday—that we cannot require the devolved Administration in Scotland or Northern Ireland to enter into memoranda of understanding. I am not clear how we will require one of their regulators to enter into any meaningful MoU. I can understand that there is a requirement to force
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In Grand Committee, we discussed an amendment similar to my second amendment in the group, Amendment No. 106 to Clause 73. I am extremely grateful to the Minister for the long and detailed letter that he sent me by hand today, no less. I had the benefit of it ahead of this debate. He states that the clause,
- “is not designed to specify what provision we are making about the law in each jurisdiction. That is done in the main body of the Bill itself”.
I accept that, but if you are going to have to work through this legislation, you will find it quite difficult, when you reach subsections (1), (3) and (4) of Clause 23, to work out that this is the part of the Bill that tells you that Part 2 does not apply to Scotland and Northern Ireland. If, as I suspect, his speaking notes state that this amendment is not acceptable and will break every constitutional precept, I hope that he will find ways to make it absolutely clear in this legislation where and what it applies to. This Bill is meant to ensure better regulation. Better regulation is clear regulation and we have failed to achieve proper clarity in this significant area.
I understand that this is a difficult and tricky issue, but we must find a way, if we are trying to help UK plc to have a level playing field. Finding some way of tackling the issues implicit for the devolved Administrations is critical. I beg to move.
7 pm
Lord Bach: My Lords, we sympathise with the spirit of the amendment, which certainly captures how the Government expect LBRO to behave in practice. However, as the noble Lord anticipated, the amendment brings us into territory which risks falling foul of the devolution settlements. Of course it will be crucial for LBRO to work with relevant parties in Scotland and Northern Ireland if we are to secure the greatest possible benefits for businesses operating across the United Kingdom. That has always been behind the noble Lord’s thoughts on the Bill and on other legislation.
We are grateful to Welsh Ministers for their interest in the Bill and for their commitment to its full application in Wales. Ministers in Scotland and Northern Ireland have made it clear that they do not want the Bill and LBRO to apply to devolved matters. The noble Lord is welcome to take up the issue with them, but responsibility for devolved matters lies ultimately with the devolved Administrations and their electorates. As one would expect from the noble Lord, the amendment has been carefully phrased in
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Of course, businesses will want to see as much joint working as possible between LBRO and the devolved Administrations. The guide accompanying the Bill makes it clear that we expect LBRO to work with the devolved Administrations in so far as it is authorised to do so. I am glad to say that LBRO, in its present company form, has already begun to establish productive relationships with Scotland and Northern Ireland, both at the governing level and with professional bodies such as the Convention of Scottish Local Authorities and representative organisations. It is on track to form strong working relationships. Here, as elsewhere, we believe that LBRO can be trusted to get on with the job using common sense; certainly businesses will look to it to do so.
I am afraid that we cannot accept the noble Lord’s amendment, because it could not be put into operation. I am grateful for what he said about the letter that I gave him today on Amendment No. 106. In order to make sure that this is as clear as possible to those interested in the Bill, the guide that will be published on the Bill will set out clearly what parts apply where. That information can, of course, be found in the Bill, as the noble Lord has acknowledged, but we will make sure, as best we can, that one part of the guide will set that out, so that anyone using the Bill will be able to find out whether it applies in various parts of the United Kingdom. I invite the noble Lord to withdraw his amendment.
Lord Hodgson of Astley Abbotts: My Lords, I am grateful for the Minister’s reassurance that he will ensure that clarity on this issue is prevalent and pre-eminent when we publish the guide to the Bill. This issue could have significant implications for UK-wide businesses. I hope that we can continue to think about ways to develop it, because, as the Minister and I have discussed, this is not the only area where there is a mismatch. We have to find a way of making sure that the pieces of legislation join up as far as possible if we are not to impose considerable and unnecessary burdens on businesses operating UK-wide. I am grateful for the Minister’s reassurance and correspondence and for the efforts of the Bill team to address this point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley moved Amendment No. 30:
The noble Lord said: My Lords, Amendment No. 30 inserts the ominous words,
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As your Lordships know, I was a Treasury Minister and am, in a sense, reverting to that part of my history. The subsection in question allows the LBRO, for instance, to acquire and dispose of property and to borrow and invest money, although it is not said what the LBRO would invest it in. There appears to be no control over what it does. If it borrows money, I am not sure whether that will have either an express or an implied government guarantee. Let us suppose that the LBRO acquired some office property, perhaps for its own use, with the aid of a mortgage or loan of some sort, and the value of the office block went down, so that it was unable to cover the loan and found itself in negative equity. I am sure that before long some people will find themselves in negative equity. We hope that they will not, but if they did, would the Government stand behind it? That is the question. If they do not, they will have to pay more to borrow the money, which is the way these things work. It is an important and relevant question. The sums of money will be small in terms of the Government’s accounts, but where will they appear in the Government’s accounts, if at all? Is it a completely freestanding body? These are the thoughts that lie behind my amendment to insert the requirement for the consent of the Treasury to significant financial transactions that are potentially permitted by this clause.
I am interested that the Government have grouped my Amendment No. 30 with their Amendments Nos. 31 to 36, which all deal, in Clauses 15 and 16, with the giving of guidance by the Secretary of State and by Welsh Ministers respectively. It may be that the reason for grouping those amendments with my amendment on finance is that some of the guidance will be financial. I would not think that in the least improper. On the contrary, I would think it wise, particularly if there were going to be express or implied guarantees behind any money borrowed by the body in question. Amendments Nos. 33 and 36 take up points that I made in Committee about guidance. I am grateful to the Minister and his colleagues for agreeing to those amendments. I think there are some potentially important financial considerations with regard to Amendment No. 30. I beg to move.
Lord Bach: My Lords, this gives me an opportunity to clarify that the LBRO will be subject to all the usual rules for the management of public money. The noble Lord, Lord Cope, raised the question of the LBRO’s money. Provided the LBRO is acting within its remit and objectives, Her Majesty’s Government would have to stand behind it financially, as they do with every other non-departmental public body. It has been created as an NDPB with operational independence and freedom from day-to-day interference by Ministers. I am sure that the House will think that a good thing. The government amendments in this group seek to limit the scope for inappropriate micromanagement by Ministers.
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