Regulatory Enforcement and Sanctions Bill [HL]

Again, we are grateful for the opportunity that this probing amendment presents to give some assurances on the detailed operation of the scheme. During consultation on the Bill, the Committee will not be surprised to hear that we received an overwhelming message from businesses and local authorities that the primary authority scheme must not—I emphasise that—inhibit local authority regulatory services from providing routine advice to a business. The example used throughout our consultation was that of one broken egg on the floor of a supermarket. Ordinarily a local authority enforcer would simply advise the supermarket that the egg should be cleaned up to avoid it being a slips and trips hazard. This would surely be the most appropriate response. To require the enforcer to contact the primary authority before giving this advice would not just be counterproductive, but absurd. It would create unnecessary delay and be in nobody’s best interests. I assure the Committee that it has never been our intention that this type of informal advice should be captured by the definition of enforcement action in Clause 26(5). However, it is not easy to get the definitions right and defining these cases with sufficient precision was quite an intractable problem encountered in the consultation and, frankly, in drafting the Bill, because ““informal”” is a subjective concept, especially given the wide range of actions a local authority may take when enforcing regulations. This ranges from face-to-face advice at one end of the spectrum to prosecution at the other. While everyone agrees that oral advice should be allowed to go ahead without the need to contact the primary authority and that prosecution should be captured by the scheme at the other end, a huge number of potential enforcement actions fall inconveniently between these two extremes. I need hardly tell the Committee that the difficulty is to draw a line where informal enforcement action ends and formal enforcement action begins. Much depends on perception here; a letter that ““advises”” a business how to comply with a particular regulation, but states that any failure to comply will result in court action, may be perceived by the business to be formal enforcement action and will result in behaviour change and potentially cost, while the local authority may well regard the letter to be merely informal advice. If following the enforcing authority’s informal advice requires, for example, removing a product line, potentially at significant expense, while not following it will result in prosecution, it seems fair to us that this type of informal advice should be referred to the primary authority and that the informal advice should be captured by the definition of ““enforcement action””. Absolute clarity is needed regarding the exemptions from the definition of ““enforcement action””. Having thought about this a considerable amount, we strongly believe that the best way to achieve this is through secondary legislation. Clause 27 makes provision for the Secretary of State, by order, to prescribe the circumstances in which an enforcing authority will not need to contact a primary authority before taking enforcement action. The guide to the Bill, which was referred to a lot on Wednesday, gives examples of the type of exemptions that we intend to propose and makes it absolutely clear that routine advice will be excluded from the definition of ““enforcement action””. To quote the guide, the main factor taken into account in drafting the order will be: "““whether the enforcement action is purely informal (like advice and routine discussion between the authority and the business), which might make a check for consistency unnecessary””." That is on pages 21 and 22. Making the exemptions in that way will allow for the detailed technical explanations that will be needed to address those areas where a different perception could create confusion regarding what should and what should not be considered informal advice. I am sure that the Committee will join me in looking forward very much to debating the order when it arrives in this House; that should be a very pleasant couple of hours, at least. I want to make a point that I hope will seriously reassure the Committee. The first primary authority partnership will not be registered until all the relevant exemptions have been agreed by Parliament, and we will consult closely with local authorities, professional bodies, regulators and businesses when drawing those up. I am again conscious that I have gone on at some length, but, again, an important point has been raised. I hope that that helps the noble Baroness to decide to withdraw her amendment.