Enterprise and Regulatory Reform Bill

Lord Gardiner of Kimble Excerpts

Wednesday 9th January 2013 Grand Committee

[Lord Stevenson of Balmacara]

My Lords, I hope it will be thought appropriate that before discussing the first amendment, we should take note of the resignation announced today of the Minister formerly in charge of this Bill, the noble Lord, Lord Marland. Most people would agree that the noble Lord added a certain amount of colour and indeed, candour when he was on the Front Bench, and I thank him for his friendliness and assistance in the short period we worked together on this Bill. We wish him well in his continuing role as trade ambassador.

Although he is not in his place, I should also like to welcome the noble Viscount, Lord Younger, to his new brief. I hope that he will enjoy his role on this Bill and, more generally, in relation to the department. We are, as it happens, near neighbours in Buckinghamshire. We sing tenor together in the parliamentary choir, and we also deal with the DCMS brief, although I am not sure whether he is continuing with that. We have plenty of reasons for wanting to keep in harmony and to support each other over the fraught times that we will undoubtedly face over this Bill and on other matters. If he is continuing with the DCMS brief, we will have only a short pause after today because we will be facing each other at the Dispatch Box on the Leveson report. It will not have escaped notice that the noble Viscount is the third person to occupy the position of Minister at BIS this Session, and I hope that he has a tenure more akin to that of his predecessor but one, the noble Baroness, Lady Wilcox, than the noble Lord, Lord Marland, and that we will get though the remaining stages of this legislation without further changes.

Going through Hansard for the first four Committee days I counted 10 issues on which the noble Lord, the former Minister, suggested that a meeting or further discussion with officials might resolve a point raised in debate. Clearly little was going to happen during the Recess, but time moves on and I hope that the change in leadership of the Bill will not derail discussions which have been promised. Therefore, I wonder whether, in the spirit of working together on the Bill and to ensure that we have a successful resolution of the remaining stages, we can have an early meeting of the respective Bill teams. I should be grateful if the Minister will consider that.

Moving on to the amendment, in December 2010, the Government published a policy document entitled Reducing Regulation Made Simple in which they announced their intention that all new domestic legislation imposing a regulatory burden on businesses or civil society organisations would be required to include a review clause and a sunset clause. This reflected a commitment made in the coalition agreement to,

“impose sunset clauses on regulations and regulators to ensure that the need for each regulation is regularly reviewed”.

In March 2011, they announced the publication of Sunsetting Regulations: Guidance, intended to,

“assist Departments in implementing the Government’s commitment to introduce sunset clauses in new regulations”.

The guidance covers the application of sunsetting and reviewing to new domestic regulations that impose burdens on business or civil society, including legislation implementing international regulatory obligations.

The aim of this policy is to remove regulatory burdens on businesses and civil society by ensuring that regulations are: subject to regular review, to determine whether the policy objectives that led to the introduction of the regulations still apply and whether regulation is still necessary in achieving those objectives; and that regulations which are unnecessary or burdensome are removed. We agree with that approach. However, we think that it should go further.

Amendment 26EA deals with the need for stakeholders to be given a statutory role. For example, the British Retail Consortium stated in its written submission to the Committee on the Bill in another place:

“We welcome the intention of the introduction of sunset clauses and other deregulatory measures in the Bill ... However, we are not optimistic that these will all deliver their potential, given our experience with the Red Tape Challenge and One in, One out. We need to see genuine sunset reviews when the term is up, with a formal role for stakeholders”.—[Official Report, Commons, Enterprise and Regulatory Reform Bill Committee, 12/7/12; col. 562.]

Businesses and other relevant stakeholders should surely be able to shape the Government’s thinking on business policy in general and sunset provisions in particular. It is of little help to businesses and the wider economy if somebody in Whitehall decides, unilaterally and without consultation, to apply sunset provisions when businesses or other groups might consider them to be successful or not in need of termination. We need to ensure that business policy is not dictated to businesses, but is produced in full consultation with them. In particular, we need to ensure that SMEs are heard: after all, in many respects, large organisations have the ear of the Government because they can employ public relations or lobby organisations.

It may well be argued that this amendment is unnecessary, as Ministers responsible for legislation and regulation will get the views of businesses, civic leaders and so on continuously. But it is interesting that paragraph 39 of the sunsetting guidance states:

“In carrying out reviews, departments will need to consider how best to gather information and views from businesses, civil society organisations, and others affected by the regulation”.

It goes on to note that, “a formal consultation may”— I emphasise “may”—

“form a valuable part of this process”.

Surely, this should be a duty on government and not left as a question of,

“how best to gather information and views from businesses, civil society … and others”.

It may well be appropriate for a proportionate approach to be adopted but certain minimum standards should certainly be present. We think it is important for businesses, business organisations, trade unions and other stakeholders to be assured that they will be consulted on sunsetting proposals. Business policymaking together, between the Government and relevant stakeholders, will always make for better legislation, regulation and policy.

I shall also speak briefly to Amendment 26EB. Like the other amendment to which I have just spoken, this is pro-business. In my role as a shadow Minister, I speak with businesses regularly and one common thing that businesses say is that, more than anything else, they require certainty from government. Provide businesses with a stable and certain policy environment in which government decisions are made—in consultation, obviously, with businesses and other stakeholders—adhered to and announced with sufficient time for businesses to plan and adapt, and businesses will have the ingenuity, entrepreneurial skill and flair to do their bit to boost the economy, create growth and provide employment opportunities.

Conversely, if there is an uncertain environment in which businesses are unsure of the general policy direction of the Government—if the Government lack a “compelling vision” for the economy, for instance, as the Secretary of State for Business, Innovation and Skills recently stated—and there are ad hoc, knee-jerk and ill thought-through policies announced without due consultation with businesses or sufficient time for them to adapt, investment and confidence will undoubtedly plummet.

In a nutshell, the purpose of the amendment is to ensure that changes to non-urgent regulations, particularly the sunset provisions outlined in the clause, come into force or end their period in force on one of only two dates in a year. We have chosen 6 April and 1 October because these dates are already familiar to businesses from the regulatory environment.

The amendment is needed because the Government are not complying with their own principles. I gather that the April 2011 statement on new regulation did not give three months’ notice for any changes to regulations and that it even included changes which had occurred three months previously. As I understand it, the September 2011 statement of new regulation was backward-looking, hardly giving business time to prepare and providing no prior warning of regulation changes. There was hardly any progress with the April 2012 statement of new regulation, which again included no changes to regulations three months prior to their coming into effect but included some changes that had occurred four months earlier. This means that businesses do not have adequate time to plan, adapt and make use of what is coming along. Statutory muscle is needed here; that is the purpose behind this amendment.

[Lord Gardiner of Kimble]

My Lords, first, I thank the noble Lord, Lord Stevenson of Balmacara, for his generous and thoughtful opening remarks about colleagues. If I may take the recently appointed Minister’s opinions before the noble Lord knows of them, I am absolutely certain that, knowing his style, he will be very keen to continue meetings and dialogue with all interested Members of your Lordships’ House. I am sure that that will be uppermost in his mind as all Members of this House seek to improve legislation as we go forward.

Turning to the noble Lord’s amendment, I say from the outset that the Government are fully committed to the principle of engagement with stakeholders as part of a statutory review, as set out in the published sunsetting guidance. Reviews should draw on a range of evidence, including from those who are being regulated, the regulators, and those affected. It is already the case that the Minister responsible for the review is, under administrative law, obliged to consider any submissions made to him or her in relation to the review. In the view of the Government, a formal statutory requirement to receive views as proposed in the amendment would not change that position but would risk introducing additional and unnecessary administrative burdens.

For practical reasons, there needs to be sufficient flexibility for departments in deciding how to carry out the review, what evidence to use, and how to engage with those affected by the regulation. That could be inhibited if an additional statutory requirement were introduced. Effective engagement with stakeholders as part of the review can be delivered without additional statutory prescription, in a way that allows for an approach tailored to the circumstances of each review.

The Government are fully committed to the principle of common commencement dates for new domestic regulation affecting business. Where the regulation comes into effect on a common commencement date, the sunset date will, in accordance with the Government’s policy on sunsetting, also fall on a common commencement date. In the Government’s view, there is no need to prescribe this in legislation, as proposed in the amendment. Indeed, in some cases, there may be good reasons for temporary legislation to cease to have effect on a date other than 6 April or 1 October. That would be prevented by the amendment. The Government do not believe that there is a need to recast the statement of new regulation as a formal statutory requirement. There is also a risk that this would act as an unwelcome constraint, and make the statement less responsive to developing needs and priorities.

The most recent statement was published on 17 December, a full three months in advance of the April 2013 common commencement date. It provides a comprehensive summary of all the regulations affecting business that are to come into force in the first half of 2013. Regulations that will cease to have effect as a result of a sunset provision will be included in future statements.

The Government are a deregulatory government. Over the past two years, the Government have reduced the annual burden of domestic regulation on business by more than £800 million. By June 2013, a further reduction to more than £900 million is expected.

Based on the assurances that I have provided concerning the Government’s policy on the use of sunset and review provisions and related matters, I would be most grateful if the noble Lord would consider withdrawing his amendment.

[Lord Stevenson of Balmacara]

My Lords, I thank the Minister for his comments. I note in respect of the first amendment that, while professing that the Government are fully committed to engagement, he still adheres to the idea that somehow by keeping flexibility in whether departments are required to carry out consultation the door is left open to maintaining a lesser standard than is required by the aspirations that he has expressed. We will need to keep this under review. Although I take the point that including a more formal structure for when regulatory statements start and stop might make it more difficult, there is still genuine feeling among businesses that it would be better if the Government would think more closely about the impact of how regulations apply and are started and stopped. We may need to come back to that, but, given what the Minister has said, I am happy to withdraw the amendment.

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Moved by

[Lord Gardiner of Kimble]

26F: Clause 52, page 47, leave out lines 25 and 26 and insert—
“( ) providing for any of the following, as they apply for the purposes of provisions mentioned in paragraph (f), to apply with any modifications consequential on provision made under that paragraph—(i) sections 30 to 37;(ii) sections 62 and 63;(iii) Parts 3 and 4;(iv) Schedule 3.”

[Lord Gardiner of Kimble]

My Lords, government Amendment 26F addresses a recommendation made by the Delegated Powers and Regulatory Reform Committee in its report published on 15 November last year.

The committee recommended that the scope of the power in new Section 26B(2)(g) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which is inserted by Clause 52, should be narrowed. This power enables the Secretary of State to modify any provision of the 1990 Act as it applies in relation to heritage partnership agreements.

Heritage partnership agreements are voluntary agreements between owners and local planning authorities designed to help them to manage listed buildings more effectively and reduce the need for individual consent applications for minor or repetitive works. In response to the committee’s recommendation, Amendment 26F narrows the scope of this power to focus on specific provisions and parts of the 1990 Act which will need to be applied, as modified, in relation to heritage partnership agreements.

Heritage partnership agreements are voluntary agreements between owners and local planning authorities designed to help them manage listed buildings more effectively and reduce the need for individual consent applications for minor or repetitive works. In response to the committee’s recommendation, Amendment 26F narrows the scope of this power to focus on specific provisions and parts of the 1990 Act which will need to be applied, as modified, in relation to heritage partnership agreements.

While on the subject of heritage partnership agreements, I should like to place on record the Government’s response to concerns expressed at Second Reading by the noble Baroness, Lady Andrews, about the application of Section 16(2) of the 1990 Act. Section 16(2) ensures that, in considering applications for listed building consent, special regard must be given to the desirability of preserving the listed building and its setting. Under new Section 26B(2)(f), the Secretary of State has a power to apply or reproduce any provision of Sections 10 to 26 and 28 of the 1990 Act, including Section 16(2), for the purposes of heritage partnership agreements.

I therefore assure noble Lords that we fully intend to reproduce Section 16(2) in the regulations we will be making in relation to heritage partnership agreements. We also undertake to consult on those regulations before they are made. I very much hope that this will reassure the noble Baroness about the points she made at Second Reading. For those reasons, I hope that noble Lords will be in a position to support Amendment 26F. I beg to move.

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Moved by

[Lord Gardiner of Kimble]

26G: Clause 53, page 52, line 14, leave out “the application for” and insert “issue of”

[Lord Gardiner of Kimble]

My Lords, first, I am sorry to hear that the noble Baroness, Lady Andrews, is indisposed. I very much hope that she will make a speedy recovery because there will be continuing amendments to which I would like to speak and which would involve the noble Baroness. Government Amendments 26G and 26H improve the operation of certificates of lawfulness of proposed works to listed buildings. This again was a matter raised by the noble Baroness, Lady Andrews, at Second Reading. These amendments reflect the Government’s positive response. Indeed, my noble friend Lord Marland and the noble Baroness, Lady Andrews, have been in correspondence about these matters.

The certificates of lawfulness will provide a simple, light-touch mechanism for local planning authorities to confirm that listed building consent is not required in cases where proposed works would have no impact on the building’s special interest. As currently drafted, certificates could potentially last for ever but, at the same time, they do not offer the owner of the listed building absolute certainty that the works are lawful. This is not the result that the Government intended, which is why we have tabled Amendments 26G and 26H. These amendments provide that certificates last for a period of 10 years, during which time the lawfulness of any works for which a certificate is in force will be conclusively presumed. A new certificate may be applied for at the end of the 10-year period if required and, if the application is for a new certificate on effectively the same terms as an existing certificate, we envisage there being a light-touch reapplication process.

Amendments 26G and 26H will ensure both certainty for owners of listed buildings and flexibility to respond to changes over time in understanding about heritage significance. Amendments 26J, 26K and 26L make minor and technical amendments to Clause 53. They correct an anomaly in the current drafting by providing that the Secretary of State’s powers to prescribe the procedure for appeals in connection with certificates of lawfulness are exercisable by regulations rather than order. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, I shall be brief about this. My notes from the noble Baroness, Lady Andrews, confirm that the two issues raised here are in accordance with those requested by English Heritage. The change from an indefinite period to 10 years, and the change to ensure that the certificates are lawful, will help considerably in trying to manage the properties with which the body is concerned. The changes allow a long enough period to be useful to the owner but will obviously reflect the fact that our views of heritage and our attitudes to it change over time and that, therefore, after about a 10-year period, it is appropriate for there to be a new application.

The noble Baroness also wanted a number of points to be made in relation to an exchange of letters that I mentioned in the earlier discussion, and I am happy that they have been mentioned here.

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Moved by

[Lord Gardiner of Kimble]

26H: Clause 53, page 52, leave out lines 15 to 18 and insert—
“( ) Works for which a certificate is issued under this section are to be conclusively presumed to be lawful, provided that—
(a) they are carried out within 10 years beginning with the date of issue of the certificate, and(b) the certificate is not revoked under section 26I.”

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Moved by

[Lord Gardiner of Kimble]

26M: Schedule 17, page 239, line 38, at end insert—
“ In section 108 (compensation for refusal or conditional grant of planning permission formerly granted by order) after subsection (3E) insert—
“(3F) This section does not apply to the extent that the development referred to in subsection (1)(b) would, while permitted by a development order, have required conservation area consent under the Planning (Listed Buildings and Conservation Areas) Act 1990.””

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[Lord Gardiner of Kimble]

My Lords, government Amendments 26M and 26N make minor and technical changes to Schedule 17 to the Bill. Amendment 26M relates to the policy given effect in the Bill to abolish conservation area consent. At the moment, the demolition of a building, subject to certain conditions, is a permitted development right under the Town and Country Planning (General Permitted Development) Order 1995. In order to implement the policy to abolish conservation area consent and instead require planning permission, we will have to amend this permitted development right so that the demolition of certain unlisted buildings in a conservation area will require planning permission.

However, the withdrawal of a permitted development right can in certain circumstances trigger a right to compensation under Section 108 of the Town and Country Planning Act 1990. The Government’s view is that compensation for withdrawal of the permitted development right should not apply in these circumstances, as owners would have previously needed to obtain conservation area consent and so, in that sense, did not benefit from the permitted development right.

To prevent compensation being claimed in these circumstances, Amendment 26M amends the Town and Country Planning Act 1990 to exclude development that would have required conservation area consent from the compensation provisions. I hope that noble Lords will support that amendment.

Amendment 26N ensures that all the heritage provisions in the Bill will be capable of applying to the Isles of Scilly as if they were a separate county. While the Bill will apply to the Isles of Scilly as part of England, we also need to ensure that all the heritage provisions will be able to apply to the isles as if they were a separate county, as is the case with existing planning legislation. I beg to move.

Amendment 26M agreed.

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Moved by

[Lord Gardiner of Kimble]

26N: Schedule 17, page 242, line 36, at end insert—
“ In section 92(2)(b) (application to Isles of Scilly), after “Schedules 1, 2” insert “, 2A”.”

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Moved by

[Lord Gardiner of Kimble]

26P: Schedule 17, page 242, line 37, leave out paragraph 16 and insert—
“ In section 93(5) (orders subject to affirmative procedure), after “section” insert “26C,”.”

[Lord Gardiner of Kimble]

My Lords, government Amendment 26P changes the procedure for making a national class consent order. Class consent orders will grant listed building consent for certain categories of work or buildings where the extent of the building’s special interest is well understood, without any need to make an application. The Secretary of State will have the power to make national class consent orders that will apply across England. The Delegated Powers and Regulatory Reform Committee recommended that this power should be subject to the affirmative rather than the negative procedure. Amendment 26P gives effect to this recommendation. It will apply the affirmative resolution procedure and ensure that national class consent orders will be subject to full parliamentary scrutiny.

Perhaps I may respond to the concerns raised at Second Reading by the noble Baroness, Lady Andrews, about the scope of national class consent orders. It is our expectation that national class consent orders will be used to describe specific works carried out by specific organisations in specific locations—for example, works to listed structures by the Canal & River Trust for the functioning of a canal. The Government do not envisage that a more generic national class consent will apply to broad categories of work across the board. We recognise the difficulties of identifying wider categories of work that could safely be carried out across the wide variety of listed buildings without causing some unintended damaging consequence. The provisions already contain the safeguard that requires the Secretary of State to consult English Heritage before making a national class consent order. Amendment 26P will provide additional assurance about the use of such orders.

Perhaps I may also address concerns expressed by the noble Baroness, Lady Andrews, that the minimum annual review period for local class consent orders might prove so onerous that it would inhibit their use. The requirements in the Bill are broadly equivalent to those in force for local development orders, and there is no evidence to suggest that an annual review will be burdensome. The form of review will be prescribed by regulations. We intend to make the review a light-touch but important way of ensuring transparency and accountability. We will consult on the regulations before they are made. I hope that the noble Baroness, in her absence, and noble Lords will be reassured. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, we are pleased with the amendment and grateful to the Minister for his contextual words. The recommendation brings into play a recommendation from the Delegated Powers Committee. It is important because these national class consent orders were very broad. Although the committee recognised that there was a case for using secondary legislation for this, it was concerned that it needed a slightly higher level of consent. The amendment also fits in with the feelings of English Heritage on the matter, so we are in a good place and it was helpful to have the wider context laid out.

In his speech the Minister mentioned local class consent orders, which are not touched on in the amendment. Here we will register our disappointment that the proposal is not to revise or review the regularity of reporting, which will remain annual.

The Minister says that the request would be a light touch, but he did not give us much explanation of what that was. Can he explain in a bit more detail what “light touch” means? Will it perhaps be to report only if there are changes, which need to be brought to the attention of the authorities? Is it going to be a tick-box exercise? Is it too radical a suggestion to make that it will be electronic? I do not necessarily need a response today, but if he could write to me I could pass it on quickly to the noble Baroness, Lady Andrews, and that would be sufficient.

[Lord Gardiner of Kimble]

Of course I will write to the noble Lord along the lines that he suggests.

Amendment 26P agreed.