Regulatory Enforcement and Sanctions Bill [HL]

I first assure the noble Baroness, Lady Hamwee, that the business’s right to appeal to the LBRO was in the draft Bill. For future reference, the provision was set out in Clause 11(5). These grouped amendments all relate to Schedule 4(2) on the right of businesses to refer an enforcement action to the LBRO if a business believes that its primary authority has failed properly to check for the consistency of a particular enforcement action with advice previously given to the business. I can assure the noble Baroness, Lady Hamwee, that my noble friend and I have no problem with businesses going through lawyers, given what we both did in our former lives. The LBRO’s arbitration role is central to the Bill and is designed to protect the interests of businesses and local authorities as the primary authority scheme takes effect. I know that there are concerns among enforcement officers that this might be abused by particular businesses appealing every decision vexatiously. That is exactly the point made by the noble Baroness, Lady Wilcox. I am pleased that the Bill has a number of safeguards against this. Schedule 4 makes it clear that referrals to the LBRO may be made only with its consent. In practice, we expect that to mean that the LBRO will have a right to screen potential referrals to ensure that any frivolous or vexatious appeals are turned down at an early stage—that they are weeded out. The LBRO may also charge the business for any referral. In addition, the Secretary of State may under Clause 26(2) specify a period within which any referral to be made to LBRO by the business must be made. If a business is prepared to pay and passes the hurdle that establishes that it is not vexatious, would they then just play for time, as the noble Baroness, Lady Wilcox, said? In those circumstances there is a period in which the referral must be continued or come to an end. This will prevent the business using the appeal to play for time indefinitely and will obviate the need for Amendment No. 87, which would permit the enforcing authority to proceed with an enforcement action while the business decides whether or not to appeal. So there are three parties to any decision under the primary authority scheme—the primary authority, the enforcing local authority and the business. It would be odd, would it not, to give protection to both local authorities concerned, but not to afford it to the business as well? I hope that the noble Baroness, Lady Wilcox, especially, would agree with that. Perhaps both noble Baronesses will not press their amendments.