Regulatory Enforcement and Sanctions Bill [HL]

moved Amendment No. 88A: 88A: Clause 65, page 30, line 26, leave out from ““place”” to ““beginning”” in line 27 and insert ““every third year,”” The noble Lord said: The amendment would help to ensure that the exercise of business penalty powers under the Bill would continue, over time, to be approached on the basis of the better regulation principles outlined in Clause 5(2). The Government have already accepted that in awarding the powers to a regulator, the relevant authority—the relevant Minister—must satisfy himself that they will be exercised in accordance with Clause 5(2) and we are grateful for the amendment to that effect, which is good as far as it goes. The Bill already proposes that there should be a review of the operation of these powers after three years. That, too, is good as far as it goes. However, it leaves a void about what should happen beyond three years, which is long after those who were involved in the preparation and passage of the Bill have moved on. By tabling Amendment No. 164 in Committee, the Government acknowledged in legislative form, as they have consistently done in non-legislative form, the importance that they attach to the regulators with Macrory-style penalty powers acting along Hampton or better regulation lines. That was a view expressed by Professor Macrory himself and both he and business have regarded it as an essential safeguard against the new penalty system becoming a revenue-raising, tick-box system of penalties. We therefore believe that it is reasonable that at the very least there should be some sort of ongoing monitoring of how regulators are exercising these powers. More than that, regulators will be more likely to monitor their own performance if they know that they are to be reviewed. The very fact of the review process will go some way to ensuring compliance. In this, we are particularly concerned about the situation in which hundreds of local authorities may have been granted these powers en bloc. That is why we tabled our Amendment No. 26 in Committee that would have required the LBRO to ensure ongoing compliance with the requirements of Clause 5(2) in the case of local authorities with Macrory-style powers. The Minister thought that this might place excessive demands on the LBRO, and that might be the case if this were interpreted as a day-to-day monitoring requirement. The amendment now under discussion attempts to achieve a similar end in a different way. We envisage that under the powers granted to the relevant Minister in the Bill, he could ask or direct the LBRO to undertake this review on his behalf and we would welcome that. But the current amendment should have a reduced impact on the Minister or the LBRO in that it will happen only every three years. Moreover, we have not added any further obligations once the review is completed. We have not, for example, added a requirement, which was perhaps implicit in our original amendment, that any authority found to be wanting should have its powers revoked—that is already provided for to some extent in a more draconian fashion in Clause 64 of the Bill. So the review will only have a persuasive impact on the enforcers and on the Minister who might be minded to issue a direction to the enforcer to change its approach where it is found wanting. Acceptance of this amendment would go a long way to reassuring the business community that the whole basis of business penalties, about which they have many reservations and concerns, will be that of a better regulation approach to enforcement. I beg to move.