New Clause 4

Regulatory Enforcement and Sanctions Bill [Lords] – in a Public Bill Committee at 2:00 pm on 19 June 2008.

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Enforcement action

‘(1) A local authority other than the primary authority (‘an enforcing authority’) must inform the primary authority of any breaches of legislation of which it becomes aware.

(2) An enforcing authority wishing to take any enforcement action through the courts against the regulated person must seek a statement from the primary authority.

(3) Any statement issued under subsection (2) shall include—

(a) Such information on the history of the relationship between the primary authority and the regulated person as the primary authority feels is relevant to the case; and

(b) any specific written advice that has been issued by the primary authority on the matter in question.

(4) Any statement issued under subsection (2) must be disclosed to the regulated person.’.—[Lorely Burt.]

Brought up, and read the First time.

Photo of Lorely Burt Lorely Burt Shadow Minister (Business, Innovation and Skills), Chair of the Liberal Democrat Parliamentary Party

I beg to move, That the clause be read a Second time.

New clause 4 would remove primary authorities’ blanket power to prevent local authorities from taking enforcement action in their own area, while ensuring that the courts have the evidence that they need to treat business fairly and that primary authorities have intelligence on regulatory issues affecting the businesses that they work with.

Clause 28, which we have discussed, bestows on one local authority the power of veto over another local authority’s enforcement decisions. Not only is that undemocratic, but it gives the primary authority de facto powers of legal interpretation, which are the  proper function of the courts. New clause 4 proposes to remove that veto and leave it to the courts, rather than the primary authority, to decide whether enforcement action is unjustified in the light of advice given to a company by the primary authority. It would protect the Bill’s intention to promote consistency and deter unjustified enforcement action without the attendant objectionable transfers of power involved in clause 28. Subsection (1) of the proposed new clause would improve the primary authority’s ability to focus its work on the area of greatest need by ensuring that it has the fullest possible picture of the company’s health and safety performance.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

I ask colleagues to oppose the new clause if it is pressed to a vote. The Bill is about tackling inconsistency in local regulatory enforcement. I fear that passing the new clause would change fundamentally the balance of authority between the enforcing authority and the primary authority, therefore militating against the removal of that inconsistency, which is a central premise of the Bill. As the hon. Lady said, we are in the slightly odd position, technically, of discussing a new clause that, if passed now, would leave us with two parallel regimes. On Tuesday we discussed the primary authority scheme fully. However, I will leave that aside and deal with the new clause on its merits.

The new clause seeks to table an alternative approach to the primary authority partnership, whereby the enforcing authority would simply have to inform the primary authority if it was going to act, without the primary authority being able to take a view on that, as set out in the Bill. I understand that the original intention was to protect local authorities’ discretion to pursue any enforcement action that they choose by replacing the primary authority principle with an information-sharing provision. As I said, that is a very different relationship and, from the point of view of the regulated, would introduce much more uncertainty into the system. It would pose a serious question mark over why they should go to the trouble of constructing a primary authority relationship if the primary authority had no say over how the local enforcement authority was going about matters.

Businesses have asked us to provide access to a scheme that will provide them with more dependable advice and much quicker resolution of disputes between authorities, giving them the certainty and clarity that they seek. The Government start from the principle, enshrined in the Bill, that where a business and a local authority have gone to the trouble of establishing that primary authority relationship, there should be a presumption that the advice given by one professional should be respected by other professionals across the country, unless there are—again as set down in the Bill—emergency situations or other good reasons for an exception, particularly for local situations and so on. We do not want to undermine that relationship as a whole, as the new clause would do by removing the primary authority’s ability to intervene. In our scheme the primary authority’s right to direct that a particular action should not take place is only operative when the primary authority concludes that the enforcement action conflicts with advice.

The hon. Lady may remember that we had a discussion about the consistency of advice previously given to a business. The new clause would water down the provisions  in the Bill by removing the primary authority’s right to intervene and the enforcing authority’s right to take the matter to arbitration through LBRO. That would give businesses less effective protection.

The hon. Lady also talked about who interprets the law. I understand that concerns remain among some in enforcement about the primary authority or LBRO effectively having jurisdiction over enforcement actions that a particular authority may wish to pursue. She also raised a concern on Tuesday that the scheme gives the primary authority and LBRO—I think she used the phrase a moment or two ago—de facto powers of legal interpretation, which are the proper function of the courts.

Let me make it clear that the new provisions will not undermine the courts, nor take over the legitimate role of legal interpretation. The idea behind the scheme is that, where a local authority has given advice to a business and a business has followed that advice in good faith, businesses should, unless there are good reasons to the contrary, be able to expect that they will not have serious action taken against them by another local authority. Neither LBRO nor the primary authority can give a once-and-for-all answer about the legality of a particular approach. Rightly, that decision must lie with the courts.

One of the issues on which LBRO, in determining whether consistency can be upheld, can take a view is on whether the advice or guidance from the primary authority was correct. LBRO will not be giving the opinion that there is only one correct piece of advice or guidance, but will be giving the opinion that the advice or guidance is not inconsistent with its understanding of the law as it stands at the time of arbitration. It will not therefore be usurping the role of the courts over legal interpretation. If it is not satisfied on those points, the enforcement action may go ahead and that might, in turn, mean that the matter could go to the courts. The main purpose of the primary authority scheme is to provide the consistency of enforcement to which I have referred. That is a change from existing practice, but it is important. The proposed scheme would not deliver the same, and would maintain the inconsistency that the Bill is attempting to answer.

People have raised issues about the primary authority scheme, but I hope that I have outlined how it is circumscribed. I also hope that I have clarified what it will do, and what it will not do. In the light of that, I hope that the hon. Lady does not press the new clause to a Division.

Photo of Lorely Burt Lorely Burt Shadow Minister (Business, Innovation and Skills), Chair of the Liberal Democrat Parliamentary Party 2:15, 19 June 2008

I am grateful for the opportunity to discuss the new clause because important issues needed to be expressed, as did the concerns of local authorities, in particular. I am grateful to the Minister for his comments and, on occasion, the reassurances that he has given. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.