Regulatory Reform Bill [H.L.]

Part of the debate – in the House of Lords at 7:00 pm on 13 February 2001.

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Photo of Lord Freeman Lord Freeman Vice-Chair, Conservative Party 7:00, 13 February 2001

My Lords, I begin with an apology to the noble Lord, Lord McIntosh of Haringey, for being absent at the Committee stage. I hope that he will indulge me, as I hope your Lordships will, if I try to outline arguments in support of my noble friend Lord Vinson as regards this set of amendments. They are arguments which I could have deployed at an earlier stage.

I was the Minister responsible for the implementation of the 1994 Act in the period 1995 to 1997, principally concentrating effort on the number of orders brought forward. In retrospect, I admit that there was some delay in seeking to bring forward the orders under the enforcement provisions of Section 5. The noble Lord, Lord McIntosh, indicated that there had been very few examples of Section 5 being used. In fact, those matters were incorporated in the food standards legislation. I do not believe that there were any direct examples.

The essence of my argument in support of my noble friend Lord Vinson is as follows. First, the Government say that Schedule 1 to and Section 5 of the Act have not worked. But the truth is that it has never been tried. There are reasons for that. The consultation that was under way when the previous administration left office related to the extension to different areas, such as home care and environmental health, the provisions of Section 5 of the 1994 Act. The election intervened and the new Administration, the present Government, considered the results of the consultation exercise that had been set in train and reached the conclusion that a new approach was needed.

Secondly, to a certain extent the wrong people were questioned in the consultation exercise. There is an impressive list of some 550 organisations and individuals. But I believe that the point my noble friend Lord Vinson is making is that the very person whom Section 5 of the 1994 Act was designed to protect was the small businessman, who, by definition, is very difficult to consult. If the Minister would glance down the consultation list--I am sure he is already familiar with it--he will see that it is very difficult to pick out all the organisations representing very small businesses that one would normally expect to find. It was a perfectly proper consultation exercise. However, it largely consulted the regulators and representatives of business, not the very people whom that section was designed to protect: the small businessman, who stood to be protected by a procedure under the Act involving a minimum of two written notices and a maximum of three. The first was at the request of the person who was to be regulated when the regulator said that he had concerns about a particular factory, restaurant or shop. I speculate, because the Act was never extended to those fields.

At that stage the person affected had the right to ask, in writing, for the justification and explanation of the reasons. There were two other mandatory processes to which my noble friend has referred; namely, the right of the person affected to have the regulator spell out his rights of representation and also the right of appeal when the enforcement notice was delivered.

I grant that all these are referred to in the concordat and, I assume, in the proposed code of practice. But the two fundamental concerns that I share with my noble friend Lord Vinson are, first, that a concordat can never, by definition, be accepted by 100 per cent of the universe affected. No voluntary code ever has been. Even if we reached 95 per cent or 99 per cent, I would argue with the Minister that the voluntary code is not as secure or protective of the individual small businessman as a statutory code. That is the first reason.

The second reason is that the code itself, referred to in Clauses 9 to 11, is a permissive code. I grant that its operation is certainly more flexible and universally applicable than the more constrained procedure in Section 5, where the Minister has to pick specific pieces of legislation in order to trigger the application of the statutory protection. But the code is permissive. To say to the affected small businessman, "If the regulator has not proceeded in accordance with the code, you have the right, when you appeal to the tribunal, to draw its attention to the fact that the procedures have not been followed", is simply not as protective as a statutory code.

Therefore, I believe that the solution that I commend to the Minister for reflection is reasonable in that it suggests minor word changes to the provisions in Clause 9 relating to the code; namely, it would change "may" to "shall". I shall not specify which particular lines are appropriate because goodwill is needed in terms of the expertise of the Civil Service and the Minister in deciding, if he is persuaded by the argument, that a mandatory code is right. It should be ensured, either by a commitment made by the Minister or on the face of the Bill, that the code itself will include the steps that were included by Parliament in the 1994 Act They are very clear steps. I know that there was controversy over the expression "minded to". My noble friend has proposed an amendment in an attempt to clarify that. The noble Baroness on the Benches opposite was concerned about precisely what that meant. There may have been ambiguity in the minds of some of those who were consulted. I believe that the matter can be dealt with by sensible amendment.

I commend this approach to the Government. We do not propose these amendments lightly. In essence, they are designed to protect the small businessman, even if only once. An amendment to the Bill to provide a statutory mechanism of controlling enforcement will be justified if only one small businessman believes that he is not aggrieved and that the correct methods have been followed. Therefore, I intend to lend my support to my noble friend.