Regulatory Enforcement and Sanctions Bill [HL]

I shall come to the point raised by the noble Lord, Lord Hodgson, a little later. The noble Lord, Lord De Mauley, has it just right about the home and lead scheme, which as I said when we debated the previous amendment, had been a success. However, the failing with it was that sometimes what had been decided was ignored. That is why a statutory scheme is supported by the Government and, I hope, by all Members of the Committee. We are sympathetic to the intentions behind the amendment. Indeed, as the noble Lord hinted towards the end of his remarks, the basis this provides for the primary authority’s decision-making role when reviewing enforcement actions by other authorities is very close to the formula we consulted on in the draft Bill. I think the word ““promise”” may be a little over the top, but it was certainly consulted on and considered. Perhaps I may talk through some of the issues raised by the amendment, which of course were raised during the consultation process, and the reasons for adopting the more focused formula in the present Bill. Some Members of the Committee will have seen that in the original draft Bill, we proposed giving the primary authority a right to withhold consent from an enforcement action if it was not satisfied that the action was appropriate in all the circumstances—in line with the amendment. Very significant concerns were raised by representatives of the enforcement sector that giving primary authorities and the LBRO such a general right to block an enforcement action would present serious practical problems. More importantly, it would put a substantial burden of liability on the primary authority, which would frankly be required to make a thorough investigation of every aspect of a particular enforcement action before it would be prepared to block an action proposed by an enforcing authority. This would turn the primary authority into a statutory reviewer of every aspect of every enforcement action taken against a business with which it had a partnership. Representatives of a number of major local authorities, including some of those which are most likely to act as primary authorities to major businesses, told us that in practice they would not feel able to block proposed action on this basis. We therefore considered that there was a risk, perhaps a significant one, that the scheme upon which we had consulted, and which this amendment seeks to resurrect, would not be workable and would have the unintended consequence that local authorities that were primary authorities would simply be unwilling to withhold consent to proposed enforcement actions. It is worth pointing out that representatives of the professions involved, including those from the Trading Standards Institute and the Charted Institute of Environmental Health—who have every interest in securing a practical scheme, one that actually works—have welcomed the change we have made to the scheme, and our view is that we should not reject their views lightly. The Bill more closely reflects what we think is the real expertise of the primary authority: the expertise and advice that it has given the business and the familiarity with the business’s management systems and the best way to secure compliance in working with its staff. The Bill also gives an objective role to the primary authority that is founded squarely on its advice-giving function. It does not give businesses a general right to appeal against enforcement actions on the ground that it is somehow inappropriate. In practice, the scheme will give enforcing authorities a strong incentive to contact the primary authority about issues arising in its work at a very early stage of the enforcement process. Inevitably, in a small number of cases where disputes between, for example, the enforcing authority and the primary authority are taken to the LBRO, there will need to be a formal check on the advice that has been given. We will need to ensure that this does not mean that the provision of routine informal advice is undermined. There is scope in Clause 25(1)(b) for the primary authority to be more proactive in particular areas of regulatory enforcement, given its role as adviser to other local authorities about the treatment of particular businesses. For example, where a business has acknowledged a problem in a particular area and is doing its best to put it right, the primary authority could bring that to the attention of other local authorities and recommend a lighter-touch approach to enforcement in particular areas. The primary authority’s right to direct an authority not to proceed with an action could be founded on advice of that sort. The noble Lord, Lord Hodgson, suggested that ““primary authority”” and ““enforcing authority”” in the Bill might be the same. In the Bill—I hope this is not too obvious—the ““enforcing authority”” means any local authority other than the primary authority that regulates the business in practice. I am grateful to the noble Lord, Lord De Mauley, for raising this issue. I have spoken at some length about it because it is important, and I hope my answer has gone some way towards satisfying him.