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Lord Borrie: My Lords, there is some objection to Schedule 1 to the 1994 Act being incorporated into this Bill, largely because it does not sit at all well with the several provisions that begin in Clause 9. Schedule 1 to the 1994 Act was an all-purpose, prescriptive set of requirements for enforcement officers in all circumstances. When looked at individually one sees that they are not unreasonable in the way in which they are set out. However, as I have had occasion to recall to your Lordships at previous stages of this Bill, when the previous government conducted their consultation in December 1996, they found that trading standards officers and other enforcement officers had discovered that some of the requirements--I shall not elaborate on them again--resulted in illegitimate trading being continued more easily because of the requirements of Schedule 1.
Moreover, on the other side, businesses, including small businesses, found elements of confusion in the requirements of Schedule 1. If issued with a notice saying that enforcement officers were considering taking action against them, many felt that they were being sued or prosecuted. The degree of confusion and the fact that rogue traders were perhaps getting away with it led the previous government in 1996 to question that particular approach of Schedule 1.
The approach of this Bill, which I believe has a lot going for it in terms of widespread agreement across the political parties and outside among businesses and enforcement officers, is that one starts with a voluntary concordat. Remarks have been made about it by the noble Baroness, Lady Buscombe, but that concordat, set out in Annex C to the Explanatory Notes to the Bill, comprises some of the best practice that was also in Schedule 1 to the previous Act. Underpinning that concordat is Clause 9 and successive clauses that are meant to be brought into operation if, in some way, there is a failure in the application of the concordat.
The code of practice within Clause 9 is intended to be tailored to address the enforcement problem which emerges. There will be consultation about the legislation, regulation and problems before another code is developed. Simply importing into the Bill, holus-bolus, mandatory requirements in Schedule 1 of the 1994 Act, which for good reason has had much criticism levelled at it by both enforcement officers and business, is not suitable.
Amendment No. 7 would be apt only if the government of the day took a wholly different view from the government of today. The noble Baroness, Lady Buscombe, and the noble Lord, Lord Kingsland, recalled the Minister stating earlier that there will be no regulatory reform orders relating to politically controversial matters. The noble Baroness, Lady Buscombe, may satisfy my curiosity in replying to the debate. Does her party share the view expressed by the Minister that the Bill should not be used to put forward a regulatory reform order which is
I do not believe that the amendment is appropriate. It does not sit well with the provisions of the Bill, or with the idea that they are reserve provisions, if what we all hope does not happen in fact happens; that is, the concordat, which is widely accepted by business, consumer groups and the enforcement officers, is a failure.
Lord Freeman: My Lords, the noble Lord, Lord Borrie, tried to argue his case but I do not find his arguments convincing. My noble friend's amendment does not take Schedule 1 lock, stock and barrel and set it into Clause 9. It requires that the code which is drawn up by Ministers and consulted upon, and which is then subject to negative resolution procedure in both Houses, incorporates the procedures, not the detailed language and words.
I have one simple request to make to Ministers in support of my noble friend's amendment. Will the Minister replying to this brief debate deal with the particular problem? Let us take a local authority somewhere in England--it could be Haringey or Kettering--in which a small businessman feels aggrieved because fire regulations, food safety regulations, planning and environmental health laws have been enforced upon him by the appropriate local authority. It may be that because the enforcement was rushed he did not become aware of his right to make representations and of his right of appeal.
Let us suppose that the local authority--perhaps Kettering and Haringey are bad examples--had not signed the concordat and were not bound by the voluntary good practice. The code, which the Minister may or may not introduce in due course but which provides the back-up to the concordat, does not require written notices. It is consistent with the unfair enforcement action taken against the small businessman. What does the small businessman do? He goes to the tribunal, which is not obliged to take into account the fact that the behaviour is not in accordance with the code, let alone the concordat, and he is bereft of any redress.
I believe that by accepting the amendment the Government, in promoting the Bill, will be saying, "Okay, we are obliged to consult on the code and we will have to include the procedures in Schedule 1 to the 1994 Act. It is a fresh consultation in the light of the operation of the concordat. Let us see what happens." I do not believe that the Government have made out a case that the consultation procedures have taken into account the views of small businessmen. The Tories introduced the measure in order to protect small businessmen and the Government are removing it.
Lord Vinson: My Lords, we are all agreed that the way in which the regulation is enforced is as important as the regulation itself. Tonight's debate goes to the heart of that matter. I have had the fortune, or misfortune, to be regulated as a small businessman. I can speak from bitter experience of an official coming in and unreasonably and disproportionately throwing the book at me.
When I hear the noble Lord, Lord Borrie, and the noble Baroness, Lady Gibson, speak about such matters I have no doubt about their experience as members of local authority boards and regulatory authorities. However, when they talk about small businesses and how they will be part of a concordat I believe that I am listening to eagles talking about the habits of moles. They would not know a small business if they saw one.
We are agreed that fair and better regulation is at the heart of regulation. All that lies between us is the question of whether that should be statutory or non-statutory. My experience tells me that unless we introduce statutory protection on enforcement procedures we shall again have slippage. There will be nothing to halt the reversion to the previous unfair levels of playing between the regulated and the regulator.
Lord McIntosh of Haringey: My Lords, I am on the side of the moles, not on the side of the eagles. As I am sure the noble Lord, Lord Vinson, knows, I ran a small business for 30 years. I am only too sorry that it was a small business when I stopped running it; I would rather it had been a big business after that time. Therefore, I do not believe that I can be accused of not understanding the problems of small businesses.
This is an entirely proper Third Reading debate. During the Committee and Report stages, amendments were tabled to remove the entire enforcement section of the Bill and replace it with the enforcement provisions of the 1994 Act. That argument has not been repeated from the Benches opposite tonight, although the argument against such a change was effectively and forcefully made by my noble friend Lord Borrie.
The basis of our argument against the 1994 Act provisions, which consist of Schedule 4 to that Act as opposed to Clauses 9, 10 and 11 in this Bill which provide for a voluntary concordat, backed up if necessary by a code of practice, was twofold. First, the Schedule 1 provisions of the 1994 Act were not used. I said that they were hardly used and the noble Lord, Lord Vinson, said that they were never used.
Secondly, when in 1996 the previous government consulted on the provisions of Schedule 1 the result was that enforcement officers believed that the "minded to" procedures were bureaucratic and could be manipulated by illegitimate businesses, and businesses themselves were, to say the least, unenthusiastic about the provisions. On that basis we believed that we responded correctly to the consultation that the previous government had carried out in 1996 and the consultation that we carried out in
What are we talking about today? Despite the very grand speech of the noble Baroness, Lady Buscombe, which was full of fundamental constitutional principles, we have before us an amendment which retains the voluntary concordat in Clause 9 and simply says that if there is to be a back-up code of practice it should incorporate the mandatory procedures set out in Schedule 1, but that the "minded to" procedures in Schedule 1, which were objected to in consultation, should be changed to "intends to". Certainly, that is a worthwhile change. But none of that can justify the kind of attack on the motives and conduct of the Government in bringing forward these changes that we have heard from the Benches opposite.
All that is proposed in Amendment No. 7 is a re-establishment of the mandatory procedures set out in Schedule 1 as part of the code of practice, rather than in the form it appeared in Schedule 1 to the previous Bill. There is a difficulty, in that the reference to Schedule 1 is purely a dictionary reference (as I believe it is called) because Clause 12 of the Bill, which we shall pass in due course--no amendments to it have been tabled--repeals Schedule 1. Therefore, it is not there and cannot be referred to in the way intended.
Nevertheless, I acknowledge that this is a sincere attempt to rectify a fault in the previous procedures--the "minded to" which was so objected to--and make a minor alteration to the code of practice provisions; namely, to change "minded to" to "intends to". But it does not work. We are now at Third Reading and we must have something that works. The prescriptive procedures in Schedule 1 to the 1994 Act would have to apply whenever a code of practice was made and that would result in inflexibility and unnecessary bureaucratic burdens.
I remind the House of the principles of good regulation of the Better Regulation Task Force under the chairmanship of the noble Lord, Lord Haskins. Those principles provide a framework against which good regulations and their enforcement should be measured. One of those principles is targeting, which means ensuring that the approach taken to regulation is aimed at the problem. This amendment adds procedures to the Bill that are not targeted but universal. The result is that the Minister would have to include the "intends to" procedures in every code of practice that he issued regardless of whether those procedures resolved the particular problem that had arisen. The amendment would provide no extra protection to small businesses. Rather than pursue a semi-mandatory, semi-statutory objective, it is far better that enforcement officers spend time helping small businesses comply with regulations in the first place so that enforcement action, or threatened enforcement action, is not necessary. Any code of
Surely, what is proposed here not only has the same objectives, which I believe noble Lords opposite have at heart, but is a more flexible and effective way to do it. Perhaps I may point out to the noble Lord, Lord Freeman, that Haringey has accepted the concordat but Kettering has not.
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