My Lords, I repeat my declaration of interest as chair of National Trading Standards. Will the Minister tell us what exactly is the problem that the clauses we are debating now are there to solve? What is the evidence that this has been a power that has been abused or misused by trading standards departments? If she can give us chapter and verse today, I would like her to do so but, if not, I ask her to lay in the Library all the complaints that the Department for Business has received on this specific point. It is not clear to me that this has ever been a significant problem or burden on anybody.
We have to recognise that, certainly as initially put forward, this proposal was a complete nonsense. It was essentially saying: if you were a rogue trader who had something to hide, you would have 48 hours to make sure that it really was hidden before the trading standards department came around to do an inspection. Since then, we have made some changes which are the
exclusions in paragraph 23(5) of Schedule 5. However, as the noble Lord, Lord Best, suggested, they pose a whole series of new potential problems. For example, the power of entry is to be exercised by an officer when,
“the officer reasonably suspects a breach of the enforcer’s legislation”.
What does “reasonably” amount to in this case? I have seen how litigious some of the people against whom enforcement action has been taken can be. They will string things out and argue abuse of process. The more serious the case, the more they argue. The litigious will say that there were no “reasonable” grounds. What is going to be the basis of the reasonable suspicion? All of this will have to be defined and the danger is that that will lead to litigation which takes up more time and generates more problems as a result.
If the officer reasonably—that word comes in again—suspects that there is an imminent risk to public health or safety, that is fine, but that is about public health and public safety. Other issues may arise where the evidence will disappear. What is it that is being gained by these changes? The whole point of having the power of random inspection is not just to find something on the occasions when a random inspection is made, it is also the deterrent implication for all those who the inspector may or may not visit. There is a chance that they will be inspected, something will be found and the consequences will flow. If that is taken away, frankly, one of the most effective deterrent mechanisms as far as these issues are concerned will be lost.
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We have to ask what this is all about. I rather suspect that at some point during the high noon of the deregulation zeal of this Government, some business organisation was asked to list all the things that might conceivably irritate businesses at some point. This, along with a number of other things, was on the list. It then trundled along as we went on. When it was initially proposed, there was quite properly an uproar of protest with people saying, “This is nonsensical”. Civil servants in BIS, being good civil servants, have come up with a way that tries to ameliorate the situation. They have come up with the exceptions as set out in this schedule. But the reality is that by creating these exceptions, they are raising the possibility of legal challenge. If they are so effective and so all-embracing, why do it in the first place? If in practice what we are being told is that when an officer,
“reasonably considers that to give notice in accordance with this paragraph would defeat the purpose of the entry”,
means that trading standards officers can inspect when they want to because if they gave notice it would defeat the purpose of a random inspection, all that we have created is a legal circle.
I am happy if the advice from BIS is that random inspections are therefore permissible because of paragraph (5)(c) because it would defeat the purpose of random inspections to give notice. But if that is the case, why was the power taken away in the first place, thus making the rather silly requirement of 48 hours’ notice necessary? Perhaps the Minister can give us the precise circumstances. In how many instances does she anticipate that these various exemptions will be triggered?
Does she in fact envisage that most inspections will be permitted without notice on the basis of paragraph (5)(c) or does she expect that most businesses will be given 48 hours’ notice? We need to understand what the rationale is behind this.
Much has been made of the fact that, thank goodness, this does not cover food. The reality is that in some local authorities it is the same officers who inspect for food safety as for electrical safety and other matters. You might visit a shop that sells a bit of food as well as all sorts of other goods, some of them perhaps dodgy imports of electrical goods and so on. The officers make the random inspection because there is a potential food safety issue; there is food in open cabinets. However, they are not allowed to look at anything else, so they have to come back on a separate occasion with 48 hours’ notice to inspect the same premises. I ask the Minister to defend the sense in this. It means that the business is disrupted twice and that the limited resources of the local authority officers have to be deployed twice. In addition, a notice has to be issued.
While the officers are inspecting the open tray of food, they notice on display or perhaps more significantly in a box behind the counter they have gone behind in order to make their inspection, food that is just as dangerous. They cannot take any action on that box because it would be an abuse of process. Does that make any logical sense? I suspect that it does not.
The Government are building in extra work for small businesses and for local authorities at a time when they are facing substantial cuts. The noble Lord, Lord Best, referred to the TSI survey and the fact that trading standards departments have faced reductions of between 40% and 50%. I met a regional group of trading standards officers last week. I have referred in passing to the Trading Standards Institute survey. One after another the officers said that they did not really like the survey because it presented an average figure across the country and it did not give the picture in their region. The reductions in their region were far worse than what was recorded in the survey.
We still have not seen the further impacts of another huge round of local government cuts that are coming in over the next two or three years. I was discussing cuts with a local council leader a few days ago. If any more cuts at all are made to the trading standards department there, there would be absolutely nothing left; there is no more to cut. Under those circumstances, how on earth can it be right to be imposing additional bureaucratic burdens on these departments to carry out a job to protect the public?
I hope that the Minister will cut her losses on this clause and on trying to have a 48-hour notice period. I hope she recognises that these things should be left to the sense of trading standards authorities. They will be so busy anyway that they will not randomly victimise people just for the sheer joie de vivre of saying, “Let’s harass a small trader”, because they have nothing better to do on a Tuesday afternoon. This is not what it is about. The reality is that the Government are imposing extra responsibilities and requirements that make no sense in practical terms. They will simply take up time and create an opportunity for legal challenge by people who should quite properly be
stopped from trading or fined for what they are doing, but who see an opportunity for wriggling out of it with a claim that the process was not right and that there was not enough evidence and intelligence for the trading standards officer to make a reasonable judgment of this nature.