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Moved by Lord Griffiths of Burry Port
25: Clause 30, page 19, line 3, leave out subsection (3) and insert—“(3) A statutory instrument containing regulations under—(a) section 12,(b) section 15, or(c) paragraph 16 of Schedule 2,may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.(4) Any other statutory instrument containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.”
My Lords, I have been most interested in hearing “person” taken to mean “body corporate”. I have long experience of textual criticism and exegesis, and that would be a long stretch. There is a shaking of the head; it will have to be explained to me.
In respect of this proposal, we are in the other three parts of the Delegated Powers and Regulatory Reform Committee’s report, not the part already discussed. All I really need to say is that if it was “person” and “body corporate” in the part we have already discussed, it is “in the vicinity of” that is contentious here. I think I know what “in the vicinity of” means, but I can see that two people might have quite different understandings of what constituted “vicinity”, so it has been decided that the powers recommended are too broad. The report states that,
“we recommend that any exercise of powers under clause 12 should be subject to the affirmative procedure, unless the Secretary of State certifies that by reason of urgency the negative procedure should apply instead”.
The same goes for Clause 15, only this time it is “Games location trading”. Again, I think I know what “location” means, but that may not be what other people think it means; consequently, a similar conclusion is reached.
Finally, on paragraph 16 of Schedule 2, the committee’s report states:
“Given the wide scope of the powers, and the fact that they affect the determination of the rights of individuals to compensation”.
All I am doing is reading what other people have thought over and digested well. In line with all that thinking, I shall move the amendment and invite the consideration recommended in the wording of the proposal. I beg to move.
My Lords, this is a case of great minds thinking a somebody-else thought. I have an amendment in this group to which the noble Lord, Lord Moynihan, has added his name and it was inspired by exactly the same desire for information and reports. Primarily, there is a need for regulations to be approved by the affirmative procedure. We have done something similar before, so why do we not do it now? If a precedent has been set, we should follow it. We are all in favour of this legislation going through and going through well, and I refer back to the arguments about making sure that people know what is going on. The affirmative procedure was appropriate when something very similar was done in the past, so let us use it again. The hour is getting late. The noble Lord, Lord Moynihan—my noble friend in sport—wants to contribute. As he was on the committee, he might have more insight into this matter but, as far as I can see, there is an open and shut case here.
My Lords, I just add that similar provisions were included in the London Olympics Act and the Glasgow Commonwealth Games Act. Speaking personally, the affirmative procedure is applicable because the range of matters caught both in trading and advertising is very broad; it is not limited to activities connected to the Games. This is exactly the sort of parliamentary process that should require the affirmative resolution, and that is why we used it for the London Olympic Games and the Glasgow Commonwealth Games.
Paragraph 16 of Schedule 2—the third paragraph that has been spoken to—is of equal significance. It is about property damaged during the exercise of the lawful function under the Bill. There is a right to be compensated and provision for consequential loss, but these are not administrative details. There will be important issues such as who is responsible for payment of compensation, what the appeal route is—does it go to court?—and what the grounds for appeal are, on law or on fact. These are really important issues for people living in the vicinity of the Games, who will be impacted by the use of these powers. Therefore, the question for the Committee is whether the affirmative procedure is applicable and appropriate. Having studied it at length both on the Delegated Powers Committee and subsequently, I firmly believe that this is a classic case where the affirmative procedure should be followed. We are talking about the rights of individuals and the impact of the Games on those individuals.
My Lords, as we come to the last group, I do not think we will have a massive falling out on this subject—it would destroy the overall very satisfactory progress that we have all made in this Committee. I thank noble Lords for their contributions during the afternoon. They were admirably succinct and provide an excellent example for the noble Lord, Lord Hunt, who will join us on Report.
We have listened with interest to the points that noble Lords have made in debating the parliamentary procedure for the regulation-making powers for advertising and trading, and in debating the amendments tabled by noble Lords. The noble Lord, Lord Griffiths, has requested that the draft affirmative procedure should apply to the regulations concerning advertising and trading. The noble Lord, Lord Addington, and my noble friend Lord Moynihan seek the same, unless the Secretary of State considers that, due to urgency, it is necessary for the negative procedure to apply. The regulations will specify the Games locations and the periods when restrictions will be in place and will make provision about the “vicinity” of Games locations.
Noble Lords also seek to apply the draft affirmative procedure to the regulations, under paragraph 16 of Schedule 2, concerning the payment of compensation in certain circumstances following enforcement action. We have carefully considered the recommendations of the Delegated Powers and Regulatory Reform Committee. We are very grateful to the members of that committee, including my noble friend Lord Moynihan, and will respond to them in writing before Report.
Although it is right that the regulations should be placed before Parliament—I appreciate noble Lords’ interest in debating these regulations, and my noble friend Lord Moynihan explained why they are important —there are a number of reasons, which some noble Lords might not have appreciated, why the negative procedure provides a suitable level of scrutiny.
I appreciate the consideration of the noble Lord, Lord Addington, and my noble friend Lord Moynihan that there might be certain circumstances where regulations may need to be made as a matter of urgency due to operational requirements and therefore the negative procedure may be more suitable, but we still consider that all the regulations, whether urgent or not, should be subject to the negative procedure.
Noble Lords will be aware that the affirmative procedure was, as my noble friend Lord Moynihan said, used for the regulation-making powers for the Olympics and the Glasgow Games, but it is also true that the delegated powers in the Bill are not as broad as their predecessors and there is more detail in the Bill. For example, we have included definitions of trading and advertising in the Bill, whereas in London this was specified in the regulations. Unlike for London, we have defined “Games location” in the Bill. The advertising and trading offences will be able to apply only in, and in the vicinity of, a Games location. In contrast, the London Act 2006 provided that the regulations shall specify or provide criteria for determining the places in respect of which the regulations will apply. London did not stipulate any trading exceptions, whereas in this Bill we have included a number of exceptions and a power to provide more exceptions in the regulations. Existing exceptions cannot be removed, so there will be no broadening of the offence.
I assure noble Lords that a proportionate approach will be taken to these delegated powers, and it is in all our interests that advertising and trading restrictions apply only when and where necessary. This is not about imposing a blanket advertising ban or restricting all outdoor trading across Birmingham or the West Midlands. A Games location will be specified in regulations only where it is necessary for the advertising and/or trading restrictions to apply in, or in the vicinity of, that Games location to deliver a successful Games.
Defining “vicinity” is not as simple as providing a set distance from a Games location in relation to which the offence applies, as location-specific consideration needs to be given to spectator routes and nearby transport hubs. We have also sought to ensure that the periods for restrictions will be in place only when necessary. However, as a—dare I say it?—backstop, we have specified a maximum of 38 days for such restrictions, and we expect this to be much less in many cases; for example, for Games locations in use for only a few days.
In relation to paragraph 16 of Schedule 2, the schedule includes a power to bring forward regulations about compensation to supplement paragraph 15, which makes provision about a person’s entitlement to compensation in certain circumstances. Here, we consider that the negative procedure is appropriate. I would argue to my noble friend Lord Moynihan that these regulations will set out the administrative processes that need to be followed—for example, to whom a claim for compensation should be made, the timeframes for claims, the appeal processes and so on. This type of procedural detail is well suited to regulations and will enable government to ensure further discussion with relevant enforcement agencies in advance. In the London Act, how much compensation could be paid was included in regulations, but we have included it in this Bill.
I have listened carefully to the points raised and I respect the recommendations of the DPRRC, on which I will reflect further over the coming days. However, given the extra detail in the Bill, the maximum time limit of 38 days—come what may—and the lack of any Henry VIII powers at all, we believe that the negative power is not unreasonable. I respectfully ask the noble Lord to reflect on my arguments and, in the meantime, to withdraw his amendment.
My Lords, the Minister knows that that is precisely what I shall do. However, I will not do so without saying that, on this occasion, I have put forward an argument that was not dependent only on whatever degree of wisdom I might have attained; it posited itself on the brains and care of the extraordinary bunch of people who make up this Committee. I look forward to seeing the argument in writing; I have heard a compelling case made verbally. At this stage, I am happy to withdraw the amendment and look forward to the next instalment of this thrilling piece of drama.
Amendment 25 withdrawn.
Amendment 26 not moved.
Clause 30 agreed.
Clauses 31 to 33 agreed.
Schedules 1 and 2 agreed.
Bill reported without amendment.