Regulatory Enforcement and Sanctions Bill [HL]

There would be a duty to consult any relevant regulator. That would clearly be a regulator who was being directed to do something and other persons whom the LBRO considered appropriate. I say with the greatest respect that the noble Viscount, Lord Eccles, who is a sturdy champion of local government and is rightly always conscious of the dangers of central government becoming overbearing, has gone too far so far as concerns this clause. He used the analogy of his daddy or granddaddy giving him ““guidance”” and said that, as far as he was concerned, that certainly did not mean that they were insistent. However, if his daddy or granddaddy had given him guidance and he wilfully refused to accept it—not once or twice but wilfully refused to accept it—I fear that his daddy or granddaddy might have insisted on that guidance being implemented. That is not a bad analogy with what we are discussing. To continue the analogy, I say that only a naughty authority or series of local authorities which continued unreasonably not to follow that guidance and to take no notice of it at all would be subject to Clause 7. That would be justified. The noble Viscount mentioned Mr Rogers’ report, and I was grateful for the praise that he heaped on it. However, that report deals only with Clause 11 and the list of priorities. I hope that I have never prayed Mr Rogers in aid when debating Clause 7. The noble Viscount quite rightly reminded me that the committee on which he sits with distinction—the Delegated Powers and Regulatory Reform Committee—asked my department for a list of the guidance that might be involved in the LBRO’s powers of direction at Clause 7(1)(b). The Bill restricts this power to guidance that is issued to local authorities, "““under an enactment … which relates to the exercise of a relevant function””." We replied: "““In effect this will mean guidance issued by other bodies with statutory powers to issue guidance relating to the exercise by local authorities of the functions that fall within LBRO’s scope””." The noble Viscount also asked whether there were any precedents to this specific approach. In the letter that I wrote to him a few days ago, I said: "““I can only answer in relation to the Bill, which is specifically geared to the particular issues associated with regulatory services, and the difficulties of inconsistency and service which impacts adversely on the interests of businesses and consumers alike. Here as elsewhere in the Bill we have sought to find a means of creating a body charged with setting the best possible regulatory framework for UK businesses, without impacting adversely on local authorities’ operational requirements””." I shall say a little more about the fact that there is no precedent for these powers. We have not found a direct precedent but there are powers that we would argue are equivalent. For example, the Food Standards Agency can, under legislation, take over the food safety regulatory functions of a local authority where it considers that authority to be failing in its duties. Whether that is a precedent or not, I would argue that it is not a bad equivalent example. The noble Viscount and the noble Lord, Lord De Mauley, also mentioned that under Clause 15 the Secretary of State’s powers of direction seem to be unencumbered. However, they are encumbered, and we will eventually come to my Amendment No. 52, which I mentioned in passing a few minutes ago. That amendment states that the Secretary of State cannot give the LBRO directions relating to its functions under Clause 7 in relation to two or more local authorities. That is exactly what the Delegated Powers and Regulatory Reform Committee recommended. If the Secretary of State wants to direct the LBRO, he can do so only by order, subject to parliamentary oversight by the negative procedure. Therefore, the Secretary of State will also be encumbered in his powers. I hope that that goes a small way towards satisfying noble Lords. If businesses require a tough Clause 7, as the noble Lord, Lord Cope, suggested, I do not think that implies that that will not be in the interests of anyone else. I argue that it will also be in the interests of consumers. Perhaps I may quote briefly from the National Consumer Council. It is a very distinguished body and has been chaired by equally distinguished Members of this Committee, including my noble friend Lord Whitty, who is not in his place now but was here and spoke the other day. On Clause 7—I argue that this is relevant—it said: "““Although we recognise the concerns of local authorities, we consider this measure is necessary to ensure that consumers do not experience a postcode lottery. The LBRO cannot secure ""consistency of practice if [local authority regulatory services] are free to choose to ignore its guidance””." The council goes further than us, adding: "““Indeed, we are concerned that the requirements on LARS to consult and obtain the consent of the Secretary of State before issuing a direction are too onerous and might work to dissuade LBRO from legitimately exercising this power. The requirement on LBRO to conform to the better regulation principles should be sufficient to ensure LBRO uses this power appropriately””." Our contention is that the National Consumer Council is absolutely right on this issue. I rely heavily on what my noble friend Lord Borrie said when, early in this debate, he argued that Clause 7 was just a sensible course to take in the Bill. My noble friend Lord Desai agreed with him. Unlike my noble friend Lord Desai, I am a great fan of local government, and I am grateful to the noble Lord, Lord Cope, for reminding me that he served on two different authorities some time ago. I have the greatest respect for its independence. I cannot for a moment accept what my noble friend said about how, when they come to power, Governments change their mind about the independence of local authorities. That certainly does not apply to my own Government. I hope that noble Lords will bear in mind what I have had to say when they consider this clause, and I am conscious that I have gone on for some time. But this power will be used sparingly; it is a backstop provision and brings with it considerable safeguards. I do not think that noble Lords on the other side who have spoken have explained how this particular structure, one which is there to assist us in better regulation by local authorities, can possibly succeed without it.