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Regulatory Enforcement and Sanctions Bill [HL]

My Lords, the noble Lord, Lord Bach, and I occupy such different ground that it is difficult to know how we can meet in the middle. However, I am grateful to the noble Lord, Lord Borrie, for his persistence in scrutinising this aspect of the Bill. First, no one is against the words ““must have regard to””. I think that there is general agreement that that is a perfectly reasonable phrase to use in relation to guidance given by a body entrusted with the statutory duty of knowing how to achieve better regulation under Hampton principles and putting out guidance on how that is to be done. The contributions of the Minister and the noble Lord, Lord Borrie, would lead one to conclude that one could not test whether the local authority has had ““regard to”” the guidance. However, one can do that by going to court and asking whether or not the authority has given proper regard to the guidance and whether it has acted reasonably. According to the Minister and the noble Lord, Lord Borrie, one would assume that no such remedy was available. It is indeed the case that directions take a matter out of the purview of the courts, which is at the root of our worries about the provisions in this part of the Bill. Secondly, no evidence has been produced to show that there is out there a recalcitrant local authority getting ready to thumb its nose at the LBRO. In fact, no evidence has been produced to show that any authority is now persistently disregarding Hampton, and the Hampton principles have been in existence for quite a while. Moreover, what constitutes persistent disregard? How do you judge such behaviour on the part of an authority and for how long does it have to go on? Is it for only a week? I have suggested a year. The break, as the noble Baroness, Lady Hamwee, pointed out—I am grateful for her contributions—and as my noble friend Lord De Mauley, said, is a modest one. It is not draconian, unlike directions. It offers time to pause for thought. Here I refer to my experience of non-departmental public bodies—I did not mention the then Monopolies and Mergers Commission, about which the noble Lord, Lord Borrie, knows a great deal. We did not get a great deal done between the OFT and the commission in a year, as I remember it. It usually took rather longer to come to a judgment about what was and was not in the public interest. On the technical matters, luckily the Bill still has a long way to go. It is going to another place and, if there are technical problems, they can easily be put right, so that is not an argument against my amendment. I wish to test the opinion of the House. On Question, Whether the said amendment (No. 1) shall be agreed to? Their Lordships divided: Contents, 115; Not-Contents, 133.