In the event of a national regulator working in partnership with local authorities, such as on food safety, we would expect the regulator to prepare the guidance in consultation with the LBRO and local authorities, and then for the local authorities to publish the guidance. Where there is no national regulator, the LBRO would prepare the guidance, working with the relevant government department and the local authorities. The local authorities, as regulators, would then publish the guidance. This approach should help reduce the workload for local authorities and ensure the consistency which we agree with the noble Baroness is critical. We have set out on pages 44 and 45 of the guide to the Bill exactly how the approach will operate, so that local authorities will not be left exposed. I hope that, in light of what I have said and of the fact that the head of LACORS is now satisfied, the noble Baroness will feel able to withdraw her amendment.

Baroness Wilcox: My Lords, I thank the Minister for that most helpful answer. I will not delay the House any longer. I shall read what the Minister said and speak with LACORS. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 80 to 82 not moved.]

Baroness Vadera moved Amendment No. 83:

“(c) the amount of the penalty,(d) how liability for the penalty may be discharged and the effect of discharge, and(e) rights to make representations and objections and rights of appeal.”

On Question, amendment agreed to.

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Clause 63 [Guidance as to enforcement of relevant offences]:

Baroness Vadera moved Amendment No. 84:

On Question, amendment agreed to.

Baroness Vadera moved Amendment No. 85:

(a) the cases in which the civil sanction has been imposed,(b) where the civil sanction is a fixed monetary penalty, the cases in which liability to the penalty has been discharged pursuant to section 39(2)(b), and(c) where the civil sanction is a discretionary requirement, the cases in which an undertaking referred to in section 42(5) is accepted from a person.

The noble Baroness said: My Lords, the amendment would require regulators to publicise on a regular basis details of their completed enforcement actions imposed under the powers in Part 3 of the Bill; that is, when a civil sanction is imposed or an undertaking accepted. The amendment is similar to Amendment No. 179A tabled by the noble Lord, Lord Razzall, in Grand Committee. As we said at the time, publicising enforcement activity is an accepted government policy and was a key recommendation of the Macrory review. While we had originally intended that this issue should be dealt with through guidance, we understand the concerns that have been raised and are happy to place the requirement on a statutory footing. The new clause also excludes decisions by the regulator that are overturned on appeal, which takes account of the concerns raised in Committee by the noble Lord, Lord Hodgson of Astley Abbotts.

Amendment No. 85 contains one important difference from the amendment tabled by the noble Lord, Lord Razzall. New subsection (4) allows the Minister to exempt certain cases from the publicity requirement. This captures cases where there may be data protection implications or other important grounds for not publishing some details of a case; for example, exempting enforcement action that has been taken under the Animals (Scientific Procedures) Act 1986, since this would disclose the fact that certain individuals or companies are involved in animal research. For security and safety reasons, it is not Home Office practice to publish such information. I beg to move.

Lord Razzall: My Lords, nothwithstanding the lateness of the hour, it would be churlish of me not to thank the Minister for the Government’s concession.
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As she rightly said, I moved a similar amendment in Committee, and I am grateful that it has been taken on board.

Lord Neill of Bladen: My Lords, I hope that something can be done about the language of new subsection (1). It reads like a translation from German. It states:

Could it not be written in straightforward English? If one exercises a power, one has to publish reports that say A, B and C—but the subsection is drafted in the most extraordinary manner.

On new subsection (3), I take the point that the sanction imposed might have been overturned on appeal, but I do not see why the report should not state that fact. It would be quite an interesting fact for people to know—“sanctions imposed 1,000 times and half of those overturned on appeal” or whatever.

Baroness Vadera: My Lords, I am grateful for the noble Lord’s drafting suggestions, which we will consider.

On Question, amendment agreed to.

Clause 64 [Compliance with regulatory principles]:

Baroness Vadera moved Amendments Nos. 86 and 87:

On Question, amendments agreed to.

Clause 65 [Review]:

Baroness Vadera moved Amendment No. 88:

On Question, amendment agreed to.

Lord De Mauley moved Amendment No. 88A:

The noble Lord said: The amendment would help to ensure that the exercise of business penalty powers under the Bill would continue, over time, to be approached on the basis of the better regulation principles outlined in Clause 5(2). The Government have already accepted that in awarding the powers to a regulator, the relevant authority—the relevant Minister—must satisfy himself that they will be exercised in accordance with Clause 5(2) and we are grateful for the amendment to that effect, which is good as far as it goes.

The Bill already proposes that there should be a review of the operation of these powers after three years. That, too, is good as far as it goes. However, it leaves a void about what should happen beyond three years, which is long after those who were involved in
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the preparation and passage of the Bill have moved on. By tabling Amendment No. 164 in Committee, the Government acknowledged in legislative form, as they have consistently done in non-legislative form, the importance that they attach to the regulators with Macrory-style penalty powers acting along Hampton or better regulation lines. That was a view expressed by Professor Macrory himself and both he and business have regarded it as an essential safeguard against the new penalty system becoming a revenue-raising, tick-box system of penalties.

We therefore believe that it is reasonable that at the very least there should be some sort of ongoing monitoring of how regulators are exercising these powers. More than that, regulators will be more likely to monitor their own performance if they know that they are to be reviewed. The very fact of the review process will go some way to ensuring compliance.

In this, we are particularly concerned about the situation in which hundreds of local authorities may have been granted these powers en bloc. That is why we tabled our Amendment No. 26 in Committee that would have required the LBRO to ensure ongoing compliance with the requirements of Clause 5(2) in the case of local authorities with Macrory-style powers. The Minister thought that this might place excessive demands on the LBRO, and that might be the case if this were interpreted as a day-to-day monitoring requirement.

The amendment now under discussion attempts to achieve a similar end in a different way. We envisage that under the powers granted to the relevant Minister in the Bill, he could ask or direct the LBRO to undertake this review on his behalf and we would welcome that. But the current amendment should have a reduced impact on the Minister or the LBRO in that the review will happen only every three years. Moreover, we have not added any further obligations once the review is completed. We have not, for example, added a requirement, which was perhaps implicit in our original amendment, that any authority found to be wanting should have its powers revoked—that is already provided for to some extent in a more draconian fashion in Clause 64 of the Bill. So the review will only have a persuasive impact on the enforcers and on the Minister who might be minded to issue a direction to the enforcer to change its approach where it is found wanting.

Acceptance of this amendment would go a long way to reassuring the business community that the whole basis of business penalties, about which it has many reservations and concerns, will be that of a better regulation approach to enforcement. I beg to move.

Baroness Vadera: My Lords, I thank the noble Lord for raising this issue. Clause 65 requires the Minister who made the order giving a regulator access to the new civil sanctions to review whether that order has implemented its objectives. In conducting the review, the Minister will have regard to such issues as whether there are any obstacles to the use of the new sanctioning powers, whether the drafting of the order has caused any unintended consequences, or whether
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the way the sanctions have been implemented has created incentives to use particular sanctions. The review will be focusing on the design and implementation of the sanctioning regime in the legislative order.

Like other post-implementation reviews, however, this is a one-off review. Amendment No. 88A would go further and require the Minister to review the order every three years.

10.30 pm

We do not expect a tick-box revenue-raising exercise given that it will be the Treasury and not the regulators which will keep the revenue. I question the value of a rolling three-year review relative to the ongoing bureacucracy and constant review process that it will engender, in particular given that we would expect any failings in the design of the sanctioning regime to have been identified within the first three years of operation and as needs may arise on an ongoing basis. There is nothing, of course, which prevents the Minister and the regulator from conducting further reviews on an ad hoc basis. This is a much more flexible approach to this issue than an inflexible and onerous requirement to conduct a review every three years.

There are other safeguards, some of which the noble Lord alluded to. The Minister has the power to suspend a regulator’s sanctioning powers in the event of persistent misuse of the sanctions. There will also be other checks and balances. For example, if a regulator’s decisions are consistently overturned on appeal, we would expect the Senior President of Tribunals to bring such matters to the Government’s attention as part of his duty to make an annual report under Section 43 of the Tribunals, Courts and Enforcement Act 2007. Regulators are already obliged to have regard to the better regulation principles contained in the compliance code. Regulators are already subject to regular Hampton implementation reviews. As noble Lords may know, the first five such reviews were published on 20 March. Ministers also have the right to monitor a regulator’s performance as part of existing governance arrangements. These mechanisms will be effective in discovering problems in the culture and performance of regulators. I hope that in the light of the comprehensive set of checks that already exist on regulators the noble Lord will feel able to withdraw the amendment.

Lord De Mauley: My Lords, I am most grateful to the Minister. I am particularly interested that ad hoc reviews are contemplated—

Baroness Vadera: My Lords, I also wish to speak to Amendment No. 89. This amendment covers the same ground as Amendment No. 167 that the noble Lord, Lord Cope of Berkeley, moved in Grand Committee on 23 January.

The Government are keen to see transparency through the publication of post-implementation reviews. While the regulator is already required by Clause 65 to publish the results of the review, we are happy to strengthen this provision further. Amendment No. 89 would therefore require a Minister to lay before Parliament or the National Assembly for Wales, where appropriate,
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a copy of the post-implementation review that he is required to conduct under Clause 65.

Lord De Mauley: My Lords, I am most grateful to the Minister. I am particularly interested that ad hoc reviews are contemplated, which I think is helpful. I shall read her words carefully. For the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Vadera moved Amendments Nos. 89 and 90:

(a) before Parliament (where the relevant authority is a Minister of the Crown), or(b) before the National Assembly for Wales (where the relevant authority is the Welsh Ministers).”

On Question, amendments agreed to.

Clause 66 [Suspension]:

Baroness Vadera moved Amendments Nos. 91 to 94:

On Question, amendments agreed to.

Clause 67 [Payment of penalties into Consolidated Fund etc]:

Baroness Vadera moved Amendment No. 95:

(c) a sum paid in discharge of liability to a fixed monetary penalty pursuant to section 39(2)(b),”

On Question, amendment agreed to.

Clause 69 [Interpretation of Part 3]:

Baroness Vadera moved Amendments Nos. 96 and 97:

(a) in relation to provision made under or by virtue of this Part by a Minister of the Crown, that Minister, and(b) in relation to provision made under or by virtue of this Part by the Welsh Ministers, the Welsh Ministers;”

On Question, amendments agreed to.

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Clause 70 [Duty not to impose or maintain unnecessary burdens]:

Baroness Vadera moved Amendment No. 98:

The noble Baroness said: My Lords, in moving Amendment No. 98 I wish to speak also to government Amendments Nos. 99, 100, 102, 103 and 104. The noble Lord, Lord Razzall, was particularly keen that we should address the points raised by my noble friend Lord Borrie in Committee. We are very grateful to my noble friend for the clarity that he brought to this part of the Bill. The government amendments reflect his insight. I hope that in the light of what I say, the noble Lord, Lord Razzall, and the noble Baroness, Lady Wilcox, will feel able to support the inclusion of Part 4 in the Bill.