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Regulatory Enforcement and Sanctions Bill [HL]

My Lords, the purpose of my amendments is twofold: first, to look for clarification on the Government’s expectations which follow from the LBRO’s power to issue directions on its own behalf and on behalf of Clause 12 regulators; and, secondly, to set out a rule of engagement for the process leading up to a decision to direct or not to direct by including the period of one year between LBRO publication and direction. As background, two arguments have been made by the Government for this LBRO power. The first is that it has been done before in Chapter 16 of the Food Act. It is true that the Food Standards Agency has the power to issue directions to local authorities about the implementation of food law. The 400-page code-of-practice documents are all about how to apply EU and domestic food law—not about guidance LBRO style. No direction has yet been issued and none is expected, despite the frequent enforcement of law. Law is often enforced, but guidance, in this way, never before. Secondly, the Government have said that others want them to introduce this power of enforcement. One in five said something along those lines during consultation; four in five said, ““No, thank you””; so the one in five is winning the day—some consultation. The Bill is the Government’s responsibility—not the responsibility of others—and so my first question is: what do the Government expect to happen under Clause 7 as it relates to Clauses 5, 6 and 11? How will the LBRO be expected to progress from its objectives, guidance and priorities to enforcement? In asking those questions, I rely on the assurances given that directions are a reserve power, which will be in prospect only when there is identifiable recalcitrance and/or a persistent disregard of guidance. Recalcitrance and disregard are clearly against the public interest. May we be assured that that definition is in all essentials correct? Perhaps I may say a few words about recalcitrance. It does not seem likely that just one authority will stick it out when 399 agree. It seems much more like that when and if recalcitrance is encountered it will be by a group of local authorities—safety in numbers. My amendment sets a period of a year as the time between the LBRO publishing guidance and the enforcement of that guidance by direction. It thus deals with Clause 7(1)(a) and Clause 6(5). It does not deal with Clause 7(1)(b). I shall explain why. Clause 7(1)(b) reads: "““(1) LBRO may at any time, … direct one or more local authorities … to comply with— …""““(b) any guidance given under an enactment by another person which relates to the exercise of a relevant function””." Therefore, Clause 7(1)(b) refers to regulators. It is that subsection which so exercises the Delegated Powers and Regulatory Reform Committee. It involves many parties: the local authorities concerned, the relevant regulator seeking enforcement, the LBRO, the Secretary of State and such others as the LBRO considers appropriate—LACORS or the Cabinet Office, for example. Is there a demand from Clause 12 regulators for enforcement action to be taken by the LBRO because they do not have the relevant powers in existing legislation? If there is a demand, what is it? How detailed have discussions been to date between regulators and the LBRO? Of course, if there is no demand, so much the better. One example of Clause 7(1)(b) in operation might be as follows. Let us suppose that the Food Standards Agency goes, as it could, to the LBRO and, considering it to be the appropriate body, asks that it issues a direction under Section 40 of the Food Act 1984 to 20 local authorities. Then the LBRO will look for evidence of recalcitrance and/or persistent disregard on their part. Consultation and negotiation will take place and 10 local authorities may satisfy the LBRO that they are back in line, and 10 not so. Indeed, these 10 may be preparing legal action because of the legislative nature of the Food Standards Agency using the LBRO powers as a supplement to its own. Meanwhile, the Secretary of State is preparing an order which needs a 12-week consultation period and to follow the 21-day rule for parliamentary scrutiny. Due diligence and reasonableness is required of one and all. From past experience of being the chief executive of one non-departmental public body and the chairman of another, this hopelessly wasteful and bureaucratic exercise about guidance is bound to take at least a year; the multitude of variables will ensure it. We do at least have track records for the regulators. The position with the LBRO’s own guidance is very different. It has, as yet, produced no drafts of guidance. Consulting the LBRO’s website is not much help. A 21-page strategy paper went out to stakeholders in November; its comments on guidance were very general. Answers were due on 14 March. The website was last updated on 12 February. What has been the stakeholders’ response? As yet, we know very little about the LBRO’s intentions, but we know that it is to be a small organisation which leads us to speculate about what its priorities will be. What will its guidance policy be? I suspect that the arrangements set out for primary authorities in Clauses 24 and 25 will be an LBRO priority, which will itself be a large, nation-wide task. As to its duty to set priorities for local authorities, included in Clause 11, I expect that it will follow Rogers. However, what do the Government expect its work programme priorities to be when matching resources to its statutory duties? Where is guidance in all this? We have no idea how the LBRO will approach this task, or of how its consultations have gone to date. Will the LBRO go down the philosophical, readily disputable, route and try to define ““transparency”” for all 400 local authorities, set out to decide for all time how to calculate whether or not an unnecessary burden is being created and determine how to be sure that targeting leads only to necessary action? All are subjects for the prolonged discussion of differing views, rather than for ““must comply””. Or will the LBRO go down another less complicated route? Will it determine its preferred allocation of local authority resources of regulation money and staff leading to solutions fit for all 400 and to local authority league tables of bureaucratic compliance? There are worrying hints of that mechanistic approach between the lines of the strategy document. At one end of the guidance scale, it could be thought to be good public policy to bring a supposedly recalcitrant authority into line as quickly as possible by direction as a result of perceived disregard of Hampton to date. Is there such an authority to be used as example, as per Admiral Byng? At the other end of the scale, it could be good public policy if a direction were never issued—taking a leaf, so far, out of the Food Standards Agency’s book—instead, pursuing co-operation and continuous improvement, thus building public confidence in the achievement of better regulation while lessening burdens. What is the Government’s position? Is it that there are local authorities that need to be brought into line as quickly as possible or that a true measure of the LBRO’s success would be that no direction was ever issued? The Government have decided to give this untried temporary body the draconian, centralising and authoritarian power of direction. Surely a year to find out whether such a power should be used is only to be expected. It is realistic and should be accepted. I beg to move.