My Lords, I thank my noble friend Lady Hayter for her remarks and the Minister for her responses. Perhaps I may deal first with some of the issues that have been raised in those responses. Reference was made to private enforcers having access to the
primary authority’s advice, but the issue is that the Bill refers to all advice or guidance given by the primary authority. That is very broad and the parameters are not defined. I cannot ascertain from the Minister’s response the position as regards what happens when the advice is incomplete, what is the status of the advice in terms of whether it has to be formally documented, and the quality of the advice. It is a question of understanding. Will there be a definition of “primary authority advice” that is designed and designated to be fit for purpose as a consequence of the Bill? At the moment there is a great deal of ambiguity around what comes under the phrase “advice or guidance”, what will be “fit for purpose” and what will entail “records”, because these are pretty broad in the Bill and going against them would be pretty wide in its impact. There is still a lack of clarity around that point.
Given that extending of these civil powers to private enforcers will not come about until the Government have satisfied themselves on how the civil powers for the public enforcers bed in, it would have been helpful to have been given greater clarity on the timetable. While something is desirable, if it is very far away, one must begin to question its desirability. It would be helpful if the noble Baroness felt able to elaborate a little more on this, at least in writing.
I turn to the amendment spoken to by the noble Lord, Lord Best, and the arguments deployed by my noble friend Lady Hayter. Of course they are reflective in some ways, although not in all, of the concern about the problems public enforcers will face, as well as private enforcers, in that exposure to costs under the terms of these safeguards will make them reluctant to use their civil powers. There is a question around whether the deterrent effect can be reinforced using the restricted resources that we know trading standards will face. Equally, private enforcement bodies have limited resources so they cannot willy-nilly avoid the consequences of what is in the Bill. Yet we all know that consumer bodies make a significant contribution to consumer protection by challenging dysfunctional markets. The Government must have accepted that because they put these provisions in the Bill in the first place. However, if the safeguards become such a disincentive, and the implementation of these powers is so far into the future, one begins to question the progress that the Bill offers in extending the civil powers measures.
Finally, on the point about exposure to costs, I conceded in speaking to my amendment that nothing in it would prevent a court from, as now, deciding that a private enforcer’s action should fail because it was inconsistent with previous advice and that exposure to costs would remain. My amendment would remove the automaticity of a case failing and exposure to costs existing because something, for whatever reason, was inconsistent with advice given when, as I said earlier, I have no sense of the nature of the primary advice as it will be defined for the purposes of the schedule in the Bill.
I have rehearsed my points. If the noble Baroness can elaborate further in writing, certainly on the timetable, it would be helpful. I beg leave to withdraw the amendment.