Lord Rooker
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(10 years ago)
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Lord Rooker (Lab)
My Lords, I had not intended to speak in this debate but, given that my noble friend raised the Food Standards Agency, I want to put a couple of points on the record.
I had the privilege of serving as chair of the Food Standards Agency between 2009 and 2013—that is, during the genesis of this issue. The list of non-economic regulators on pages 21 and 22 of the guidance—I have not counted them; there are about 50—vary between executive agencies of government departments, non-departmental public bodies and free-standing, non-ministerial government departments. The staff of these regulators are either civil servants or non-civil servants, so there is a variety there. For example, the staff of the Environment Agency are not civil servants.
I make it clear that the Food Standards Agency is a non-ministerial department. Ministers have no role whatever in food safety regulation in this country. The legislation relating to food safety is entirely a matter for the board of the Food Standards Agency. The best thing about the board is that it meets in an open and transparent way and it transmits its meetings on a webcast. That is the only time that the board discusses policy. Of course, that is not the case with the rest, which are political departments operating behind closed doors.
My point is that the doubts about food safety do not hold water. That is not to say, of course, that people do not come with a try-on. During my time at the agency, at one point we were ordered—and Star Chamber’d more than once—over this Red Tape Challenge nonsense, which I keep coming back to because it is the Achilles heel here, not to inspect kitchens in village halls or the kitchens at paid childminder services. I told Ministers, as my successor has done, “Dirty kitchens kill and we’re going to carry on doing it. It’s as simple as that”. However, there was no problem whatever in embracing the growth duty. For example, the meat industry in this country is a £6 billion industry and exports are a big part of that. Exports to new markets such as China and Russia are crucial. You cannot export meat out of this country unless the premises in which it is prepared are signed off by the regulator—in this case, the Food Standards Agency, not Defra or the Department of Health. The certificates given to the Russians and the Chinese come from the FSA.
We saw that as our contribution to part of the growth duty. When we were asked to act, we got on and did it pretty quickly. Sometimes the requirements of the Russians in respect of food safety in the meat industry are greater than those of the European Union. Therefore, we came across companies which had to up their game in order to fulfil the export market. We needed to get in there quickly so that there was no delay. We once had a Member of Parliament churlishly complaining at Prime Minister’s Question Time on behalf of a company, but the abattoir in question was not up to Russian standards. I will not name it but it is on the record in Hansard. The fact was that it had to up its game, and we saw that as our positive contribution. We made sure that, when we got a request, we dealt with it pretty smartly and arranged early inspections.
The other part of the growth duty concerns retail. Anybody preparing food can get, free of charge, a Safer Food, Better Business pack. It almost tells people how to run a business, whether it is a care home kitchen, a retail kitchen or a restaurant, and it is provided free of charge by the FSA. It tells them how to run a better business by providing safer food. That is part of the growth agenda: making sure it is clear and applicable to small businesses. We did one especially for small and medium-sized businesses because we realised it does not always apply. Then the FSA was able to say to Ministers, who were actually asking us not to inspect kitchens used by vulnerable groups in village halls and childminders, that dirty kitchens kill. In other words, off you go. However, our contribution to the growth agenda was the two examples I have just given, so it is a balance.
Lord Wallace of Saltaire
My Lords, I thank the many noble Lords who have contributed to this debate. When I was on the opposition Benches I did on one occasion attempt to challenge the extent clause of the Bill at about 9.45 in the evening, to the deep discontent of those on all Benches. My particular concern was with how far the legislation applied to the Crown dependencies—the Isle of Man, Jersey and Guernsey. It is clearly something that, at some point—as I said a good five years ago—the House of Lords could usefully devote some time to because of the extent to which UK law extends to the Crown dependencies, and how far they can cherry pick what they accept from UK law is a matter of considerable interest to us all. Perhaps that is something that the noble Lord and I could explore further off the Floor of the House. Part of the problem with extent clauses is that one almost always reaches them when everyone is exhausted by the Committee stage of the Bill and does not want to have another long debate.
However, this has been a long, serious and useful debate. We are of course ready to discuss further off the Floor to provide what assurance we can and to discuss whether the current drafting and guidance is adequate or whether it could usefully be strengthened. We have some time before Report to set that process in train.
The aims of the Bill are to reduce duplication. The consultation on this clause, as with others, produced a number of examples of duplication of different bodies attempting to regulate the same thing or requiring information from businesses for different purposes. If possible, we wish to reduce that and provide simplification. This is not an attempt to destroy vast areas of regulation. We all recognise that an effective and efficient market is a well regulated market. Our aim is better regulation. Efficient regulation also means no more regulation than is needed, but that is where many of the most difficult issues come up. How much regulation does one need? How efficiently and effectively is it maintained? That is the area that we clearly need to discuss further.
I was interested that the noble Lord, Lord Tunnicliffe, regarded the Ten Commandments as regulation. I rather regarded them as commandments, which is a stronger term. Leviticus and Deuteronomy, where one gets into dietary laws and cleanliness, are where one gets into the regulatory parts of the Old Testament. Again, that is a matter that we might discuss further.
I was interested that the noble Lord sees the Clean Air Act as being in the very distant past. When I was in my first job as a junior lecturer at the University of Manchester in 1967, if I left my papers on my desk on a Friday, I had to blow the smuts off on the Monday. It is not that long ago that we were still cleaning up the air, particularly in northern cities. I think it was probably in the late 1980s that I got off the train in Leeds and realised that I could actually see the hills in the distance. That was a mark that the air in Leeds had at last started to become clean again after probably about 150 years.
The constant message from all those who have spoken is that we have to be concerned about unanticipated consequences. I recognise that that is where we have to provide the best reassurance that we can and, in particular, to provide reassurance that those involved in the consultations that have already taken place have done their very best to consider what those consequences could be.
To start with, and before I answer any of the questions, perhaps I may set out as clearly as I can my understanding of the purposes of this clause. The purpose of the duty for non-economic regulators to have regard to economic growth—or the “growth duty”, which we have all been discussing—is to give regulators a statutory obligation to carry out their primary duty of protection in a way which does not undermine economic growth but is supportive of it, if possible.
The draft guidance, published in January, makes it clear that the growth duty will not override, undermine or cut across powers of protection; nor does it compromise the independence of regulators. It provides examples of ways in which regulators can have regard to growth without compromising protections. For example, they can: first, keep administrative burdens to a minimum; secondly, be proportionate in their decision-making; and, thirdly, understand the business environment and tailor regulatory activities accordingly.
This guidance is subject to the approval of each House of Parliament, and those who are subject to the growth duty are under a requirement to have regard to it. The growth duty does not permit regulators to ignore illegal behaviour—with particular reference to the Gambling Commission—nor does it diminish the responsibilities of businesses to comply with the law. The Government recognise that an environment where legitimate business is trusted and where protections are in place is a key factor in facilitating economic growth, as the noble Lord, Lord Collins, particularly made clear.
It is not appropriate for government to dictate how the growth duty should rank in relation to other duties and factors which regulators also need to consider. Some regulators will rank it higher than others for unavoidable reasons. Regulators are best placed to weigh up the desirability of economic growth against each of the other factors that they must consider and to tailor their approach accordingly. It will be for each regulator to use their expertise in deciding how much weight to afford to each factor in their decision-making. I hope that that makes it clear that we do not intend to compromise the independence of regulators.
A third of the regulatory bodies that were consulted replied that they already considered that they did take account of the need to promote and to have regard to economic growth in their interpretation of their duties, so we are talking about a tweaking of the range of functions concerned, not a revolution.
Listening to the debate, I was thinking that I might have a conversation with the noble Lord, Lord Rooker, as a former head of the Food Standards Agency, about the effect of tightening up the control of slaughterhouses some years ago in north Yorkshire on the reduction in the number of slaughterhouses. I know the area well because I walk there a lot and have done quite a lot of politics there. There was a much larger reduction in the number of slaughterhouses than I am told had been intended, and it had a very adverse effect on what one might call the home production of quality food by specialist producers. That is a good example of where, if they had thought about the importance of food exporting from farm industries in north Yorkshire, they might have paid attention to a slightly different interpretation of the regulation. I am not an expert on this and perhaps I might come for a tutorial with the noble Lord, Lord Rooker, at a later stage, but that is the sort of thing that we are looking at.
Lord Rooker
There is no need for that, because the story is that those slaughterhouses were not paying their proper costs. The fact is that the taxpayer subsidises the meat industry because neither Government have allowed the Food Standards Agency to reclaim its costs for checking the abattoirs. In that case, the smaller ones were paying a disproportionate amount for regulation—which is governed by Europe, by the way, as most of our food is—so it is probably to do with collecting the fees that they were required to pay for inspections. In that part of the sector there are charges and the FSA is not allowed to collect its full costs. Full cost recovery does not apply because Governments of both parties have not wanted to challenge the meat industry.
Lord Wallace of Saltaire
I thank the noble Lord for that clarification; I was sure he would know the answer. I thank him for his extremely helpful contribution.
The duty will, I stress, complement existing duties and will not override or cut across regulators’ other powers of protection. The growth duty requires regulators to consider growth when carrying out their regulatory functions, so environmental and other issues that I mentioned will not be overruled by this. I should say in passing that when I saw the noble Lord’s amendment I was immensely impressed. My first instinct was to wonder whether we could add a government amendment to the amendment to add four or five additional things that people should take into account.
Those who have been regulators, such as the noble Lord, Lord Rooker, would probably say that a good regulator takes into account a wide range of issues and then attempts to strike the best balance among them. We also accept that, as the noble Lord, Lord Tunnicliffe, said in moving the amendment, the issue of how much risk, if any, one is prepared to accept in regulation is one of the most difficult issues in regulatory powers. You cannot guarantee that you can ever provide a situation of nil risk, but the question of how far away from nil you are prepared to move is one of the most difficult issues.
I am not sure that I can answer absolutely all the questions that have been asked about specific agencies, but again I am very happy to discuss this further off the Floor. However, on the question of responses to the consultation, a wide variety of respondents welcomed the growth duty. Many businesses and trade associations said that the first priority of regulators should be protection and that the growth duty should be added but should not take precedence over others, and we have taken that into account. I have already remarked that over one-third said they considered that regulators already had regard to growth. Respondents cited a variety of ways in which regulators could support growth. These include co-ordinating, providing more targeted advice, being generally risk-based and proportionate, and helping businesses to achieve compliance. I also mentioned that a care to avoid duplication of regulation—particularly the sort of regulation that asks businesses for information—is one of the areas that we wish to look at. The growth duty should make a difference in precisely those areas where there is duplication and where regulators have not thought about the growth dimension, but again we are not suggesting that this is a revolution—this is a modest change of balance.
The noble Lord, Lord Tunnicliffe, asked whether the growth duty would have teeth. The answer is that, as with all other aspects that regulators take into account, businesses will have the chance to challenge a regulator which has not had regard to one of the dimensions of their task. They can challenge them though the regulator’s own internal mechanisms or statutory appeal mechanisms. They can, if necessary, challenge the enforcement decisions in court and, in the last resort, they can pursue judicial review if a regulator has failed to apply the duty, or applied it in a way that is clearly unreasonable. Again, we do not expect or anticipate that that would be a frequent dimension.
Lord Wallace of Saltaire
My Lords, I shall do my best to ensure that written answers are provided to the very large number of questions that have been posed in this debate about a substantial number of different agencies. On that basis, I hope that the noble Lord will be willing to withdraw his amendment.
Lord Rooker
Before my noble friend gets up, as we are in Committee, and as the Minister has been very open in wanting to discuss issues that my noble friends have raised, I shall raise another for him, which I failed to do when I was at the FSA. Let us take all these regulators here. They are all a pinprick on the main department by which they either get funded or are attached to. They are not really the big player; they are a very small part of each function of a government department. As such, they never really get any parliamentary scrutiny. The issue arose when I arrived at the FSA in 2009, because at no time since 2000 had it ever been called before a Select Committee to look at what it does on the tin—the business plan or the forward plan, the strategic plan or the general plan. The Health Committee deals with doctors, nurses and hospitals, the sexy political bit of policy. I raised the issue with the Leaders of both Houses of Parliament. Because it is the non-politically sexy part that is ignored by MPs, it is ideal for this House.
I suggested after talking to people that this House should have a Select Committee on regulators; maybe every three years, every regulator would get in front of a Select Committee, not because something has gone wrong, in which case the regulator would certainly come before the departmental committee, but to check that it is doing what it says on the tin, to be asked about function, finance, forward and business and plans, and for some of them the science base. It would give them a raison d’être to know that they are actually accountable to Parliament—because that is the reality; at the end of the day, they are. But I was told, “Oh, we don’t want any more Select Committees”. As I say, I raised it with the Leaders of both Houses, the noble Lord, Lord Strathclyde, and Sir George Young, who was Leader and then retired and came back as Chief Whip.
I still think that there is a missing function for this House, in that regard, because it does not compete with the other place; all the big issues are dealt with by the departmental Select Committees, but they will never run the rule over the regulators, particularly when there are no problems, when they are carrying out their normal regulatory function. But once in a while—say, every three years—it would be quite useful for them to come for a couple of hours or an hour and a half before a committee to explain what they are doing and why and how they are doing it. In going back to have a think about things with the powers that be, perhaps this should be thought about, because it is a genuine issue of parliamentary accountability.
Lord Wallace of Saltaire
That is a very interesting point but very wide of the amendment under discussion. I am very happy to discuss that also with the noble Lord off the Floor. Perhaps I could add that the pre-legislative scrutiny committee thought that the clause was a useful part of the Bill. So in recognising all the critical comments that have been made by the opposite side, we are pleased that the committee examined this and thought that it was a valuable addition to a Deregulation Bill. Having made all those comments, and looking forward to further discussions, I hope that the noble Lord, Lord Tunnicliffe, will be willing to withdraw his amendment.
Lord McNally (LD)
My Lords, I do not think I have ever seen such a galaxy of talent on the Opposition Benches. I counted eight Front-Benchers in that debate. It was extremely interesting and I do not envy my noble friend in his further discussions.
I did not find it entirely helpful of the noble Lord, Lord Tunnicliffe, to remind us that it was 52 years since he and I first met at University College London in that fierce, harsh winter of 1962-63. He and I think the noble Lord, Lord Rooker, also mentioned arm’s-length bodies. I am the chair of an arm’s-length body at the Ministry of Justice—the Youth Justice Board—but it is not in this capacity or due to anything related to that responsibility that I put this amendment down. It relates instead to my experience as an MoJ Minister responsible for human rights. With my right honourable friend Maria Miller, who was then Secretary of State for Culture, Media and Sport, I conducted a very vigorous campaign to help the Equality and Human Rights Commission gain UN accreditation.
I may be able to shorten the Committee’s debate on the basis of a letter that has been sent to the chairman of the ECHR by the Secretary of State for Business, Innovation and Skills, Vince Cable. Before I touch on that, I shall explain that at the moment, thanks to that exercise we conducted, the commission has the highest possible UN accreditation—A status—as a national human rights institution rated against the UN Paris principles which clearly and unequivocally require NHRIs to be independent of government. In addition, as a national equality body under EU equality directives, the body must be able to provide independent assistance to victims of discrimination. This need to operate independently is reflected in domestic legislation.
In the commission’s analysis, subjecting the commission to the growth duty presents a real risk of the UN NHRI A status being downgraded for non-compliance with the Paris principles because the growth duty is or could be perceived to be a constraint on the independent exercise of the body’s core functions. The growth duty also has the potential to compromise the ability to fulfil the requirement under EU law to provide independent assistance to victims of discrimination.
I hope that we are dealing with what the noble Lord, Lord Tunnicliffe, referred to as unintended consequences and that it was never the Government’s intention to compromise the EHRC in this way and that they wish to clarify the matter. Just to be clear, the Equality and Human Rights Commission believes that it needs to protect its ability to operate independently in order to preserve its a status as a United Nations-accredited national human rights institution and the UK’s compliance with European Union law, and to ensure that it can exercise that function and powers in accordance with clear and foreseeable legal limits. That is the objective of the amendment.
I was very pleased that, with his usual courtesy, Vince Cable, the Secretary of State for Business, Innovation and Skills, copied me in on a letter that he sent to the noble Baroness, Lady O’Neill, the chair of the Equality and Human Rights Commission, in which he writes:
“I would like to take this opportunity to state that the Government has taken the decision to fully exclude the EHRC from the growth duty. This decision was taken to ensure that the Government mitigated the risk of this policy unintentionally triggering a review of the important ‘A’ status that EHRC holds as a National Human Rights Institution”.
At that point, I said “Yippee! I’ll be in and out in two minutes”. However, I thought it was worth checking with the commission what its reaction was. It said:
“While we welcome this undertaking we understand that this doesn’t mean that we’ll be removed on the face of the Bill”.
All I can say to my noble friend in the usual constructive way that I try to approach these matters is: get this out of the way clearly and now. If he is going to tell me that the letter is sufficient, or that somehow it will all be dealt with in the washing, he is inviting further grief and pain.
Lord Rooker
My Lords, as chair of the Joint Committee that scrutinised the Bill, to the best of my knowledge none of the regulators is mentioned in the Bill. The only time they are mentioned is in the guidance notes in preparatory work for the statutory instruments. If that is the noble Baroness’s worry—Ministers can confirm this—to the best of my knowledge, none of these regulators is mentioned in the Bill.
Lord McNally
Of course it is not mentioned in the Bill. Only one of the regulators is in fact part of an international scrutiny and accreditation process. The longer the noble Lord, Lord Rooker, stayed in office and had responsibility, the more a stickler he became for the rules. I am saying that this is an exception. I have already heard one argument that this would open the floodgates, but this is an exception, and a very important one. My amendment makes it very clear that it may be the only organisation mentioned in the Bill, but I assure the Committee that it is the only organisation where a great deal of work was done to get its A status accreditation with the UN. That A status accreditation is very important for the status of the organisation.
The letter from BIS is very welcome and very timely. I urge the Minister to consider accepting the amendment, although it concerns the exception that the noble Lord, Lord Rooker, referred to. Indeed, it is almost the kind of declaration that I want: that we are determined to declare beyond peradventure that this important international body, with its A status in the UN, is not part of this domestic legislation. That would most certainly remove any unintended consequences. I fully accept from conversations with my noble friend that these are unintended consequences, but those who are involved in this area believe that it is a real threat and could cause real damage, and I believe that my amendment is a very simple, quick, clean way of handling the situation. I beg to move.
Lord Rooker
“( ) The first time the Minister consults under subsection (2), the Minister must consult on specifying the regulatory functions of the Planning Inspectorate in the first order to be made under subsection (1), but only to the extent consistent with subsection (3).”
Lord Rooker
My Lords, I am really just probing. I flagged this up in October, when there was a debate on construction in the House, in which I spoke. I am pro-growth. There are bags of land for building in this country—we have more land than we know what to do with. While I was preparing for that debate it struck me that there is a lethargy among local government and the planners—they all get the blame, sometimes unfairly. I went back to the list on the growth duty and thought, “Hmm, planning inspectorates aren’t there”. I have to say that I did not personally draft this clause. I knew what I wanted to do, but I could not find a way of doing it in the Bill, so I pay massive tribute to the clerks of this House, who facilitated a form of wording that would get it on the Order Paper. I am incredibly grateful to them.
It is very simple. I support the planning process—I have no problem with it. If I could have done, I would have had an amendment put in a growth duty on planning departments of local government. That is probably where the real problem lies. I chose the Planning Inspectorate because it is the national body. The role of the Planning Inspectorate is obviously a very important one, as a referee—an impartial one in some ways—which would not be compromised by a growth duty. I suspect that parts of its functions are not in any way remotely applicable to a growth duty, but I suspect that it might have some functions that could be.
At the moment, planning is in chaos because it takes too long to prepare local plans. A duty to co-operate was put in the Localism Act, which, frankly, is not working, so nobody takes any responsibility for fixing housing numbers in this country at present. If we had a clear growth duty involved in the planning process somewhere, which would reinforce the report of the noble Lord, Lord Heseltine, because that is what is missing, we would stand a fighting chance of getting to build our 4,000 houses a week, which is what we need.
There is no shortage of land; if you read the Financial Times yesterday, you will have seen that Savills has produced a report which found that the Government own enough land to build 2 million houses. That is basically enough land for 10 years’ building, which is what we want. I do not share the hysterical view of those who, every time somebody talks about having more building, say, “You’re attacking the countryside”. The fact is, 54% of the land of England is not covered by green belt, national park, areas of outstanding natural beauty, or currently built on. That has got to be official, because it is in a PQ back on 15 July, in Written Answer 114-115. Therefore, when you add up green belt, areas of outstanding natural beauty, national parks and existing built-up land in this country—in England—it comes to only 46% of the land. Therefore there are bags of land, and we are dead short of housing.
More pressure needs to be put on the planning system. I fully accept that I am completely misusing this debate but there must be growth and more pressure to build those homes. I currently cannot see the magic bullet for releasing the logjam but I thought that maybe if there was a bit of growth duty somewhere in the planning system that might help. A growth duty could make a difference. It could send a signal, which is the point. If some aspect of the planning inspectorate function would be amenable to a growth duty, and that was said, it would be a message well received outside. I beg to move.
Lord Rooker
I shall certainly do that. I was astonished at my noble friend’s hysterical outburst, though. I deliberately avoided going down the road of the hysterical stuff from the former chair of the National Trust, because that is not what it is about. There is bags of land to build on in this country. As Savills identified, the Government own enough land to build 2 million houses. That is 10 years’ worth of work. Yes, I will gladly withdraw the amendment, but I have a parting shot, because I did not raise this. If there is a real inability to get going, my other suggestion, which I made in the construction debate, is that, if I were responsible for the machinery of government—which heaven forbid, I shall never be—I would moving planning policy to BIS. I would get it away from the mafia of local government and put it in BIS. That might be the ultimate solution to this.
I beg leave to withdraw the amendment.