Deregulation Bill

Lord Wallace of Saltaire Excerpts

Thursday 20th November 2014 Grand Committee

[Lord Tunnicliffe (Lab)]

My Lords, in moving Amendment 92C, I will also speak to Amendment 92D, and—this may sound peculiar—I will specifically not speak to Amendment 93. What arguments I shall make in speaking to these two amendments should not be read across to our position on Amendment 93, which stands up on its own, and which will be well presented by the noble Lord, Lord McNally, and supported by my noble friend Lady Thornton.

Essentially, the amendments probe Clauses 83 to 86. Once again, we have degrouped from the proposed original grouping the question that Clause 83 stand part of the Bill. We did that because we want to make it clear that we are not against the underlying concept of this group of amendments, providing that they are benign in intent, and that the Government are willing to accept either our amendment or appropriate other amendments which secure the benign nature of the intent.

It is interesting to look at just how important these clauses are. The Minister, Oliver Letwin, who has the wonderful title of Minister for Government Policy, said in another place:

“In that context, clause 61”—

which is now Clause 83—

“which is probably the single most important clause in the Bill, creates a growth duty”.—[Official Report, Commons, 3/2/14; col. 37.]

Therefore the Minister for Government Policy thinks that it is the most important clause in the Bill.

In Second Reading in the House of Lords, the noble Lord, Lord Wallace of Saltaire, was a little more careful. He said:

“Clauses 83 to 86 create a statutory duty for non-economic regulators to consider economic growth when carrying out their functions. This duty will be supplementary to”—

we may come back to those words, perhaps not today, but in the course of the passage of the Bill—

“and will not supplant, the regulators’ other statutory obligations. It will make them take economic growth into account as they exercise their regulatory functions. Guidance on this has just been published”.—[Official Report, 7/7/14; col. 16.]

I will come on to that guidance.

The importance of this clause is a matter for appraisal. It rates the positive value of this set of clauses between zero—which is pretty low—and £240 million per annum. I am reminded of Tesco’s “Every little helps”. However, it is a little. Some £90 million may be a big figure, but it is stretched across the whole gross domestic product of something over £1.5 trillion, and I ran out of noughts while trying to find out what percentage it is of that. A more down-to-earth figure is that it represents £3 per annum, per worker. Therefore this is a push in the right direction, if you believe in all the benefits, but not that significant a push. If it is the most important clause in the Bill, as the Minister said in the other place, it does not say a lot for the other clauses.

The reason I stress the size of the impact is that when we make a piece of law, we have to consider the unintended consequences. This set of clauses could have serious unintended consequences, because they go to the root of the concept of regulation. To quote Oliver Letwin, a right-wing Tory Minister:

“I will begin by saying something that several in the House might find mildly surprising in the context of this debate: regulation is often sensible and necessary. It is no part of the Government’s plans or our view of life to suggest that regulation is never useful. Indeed, like previous Governments, this Government are presiding over an immense amount of regulation, much of which is constructive and helpful”.—[Official Report, Commons, 3/2/14; col. 35.]

I passionately believe in regulation. I believe that it is the essence of what creates a society. It is the process by which individuals are protected from abuse by persons—I draw the distinction in the sense that “persons” includes firms, the state and all different collections and interests—while enabling the flourishing of society in general. It is essential to civilisation and for most people, it is barely noticed. That is one of the problems with regulation: there is little appreciation of how important it is in society. It is as old as history, of course. The first regulations that we tend to learn about are the Ten Commandments, and they go on and on. We call them laws but, in many ways, criminal laws are just as much regulations as regulations which are not criminal laws, and they overlap.

In this House, due to our longevity, one can pray in aid the Clean Air Acts. One has to be fairly old, but the noble Lord, Lord McNally, will remember the 1962-63 smog in London, which brought the city to a halt, a phenomenon which was common.

[Lord Wallace of Saltaire (LD)]

My noble friend is not old enough.

[Lord Tunnicliffe]

We were there together. The regulations that cleaned up the atmosphere totally changed the city of London. It was worth cleaning the buildings afterwards. Nobody knows about the Clean Air Acts, but they are central to our lives.

When I was young, aeroplanes used to crash quite frequently. Being an airline pilot was a dangerous pastime. People used to go on to aeroplanes wondering whether they would get to their destination. People do not think about that now. They assume that it is safe. What makes it safe is a great feast of regulations that governs every bit of that activity to make it incredibly safe. We do not think about regulation when we go into a restaurant; we go in assuming we are not going to be poisoned. Why can we make that assumption? Because there is a raft of regulation that makes sure food is safe; everything from what varieties are allowed into this country in the first place to how it is handled, how it is checked and so on. Regulation is a crucial part of our lives but most people do not notice it.

I notice it because I have been involved in regulation for 50 years. My initial training was as a pilot, and you immediately realise how regulation contributes to the safety of the operation. Over those 50 years I have been a pilot, an air operator, a railway operator, chairman of the United Kingdom Atomic Energy Authority, chairman of the Rail Safety and Standards Board and involved in safety in the MoD. Finally, as a Whip, I had to explain the failure of regulation that caused the Nimrod crash in Afghanistan and killed servicemen unnecessarily. I am a passionate believer in regulation and its protection.

Let us turn to what the clauses do. One of the most useful documents when looking at legislation is the impact assessment. The reason it is useful is that it is usually written by reasonably junior people and they are, putting it nicely, less nuanced than some of the more superior documents. You frequently get to what people are thinking about when they have the legislation in mind. The relevant part of the impact assessment is pages 16 and 17. It is all relevant, but pages 16 and 17 set out the areas of advantage that the impact assessment envisages these clauses will bring about. They include: reduction in duplication costs for information, £28.17 million; reduction of information requirement costs, best estimate, £41.43 million; reduction in time required for inspections, £7.21 million; reduction in unexplained duplication of inspection, £1.01 million; reduced reliance on external contractors, £12.4 million. I remind the Committee that the range is nought to £240 million and the best estimate is £90 million. Those impacts of these clauses are benign. They are about the process of implementing regulations. They are about being sensible with the regulator and making sure there is no duplication, that regulators talk to each other and that processes are efficient. If all these clauses have impacts like those, they are benign, and we support them.

The problem is the clauses themselves. Clause 83(2) states that,

“the person must … consider the importance for the promotion of economic growth of exercising the regulatory function in a way which ensures that … regulatory action is taken only when it is needed, and … any action is proportionate”.

Those words by themselves seem a pretty high test for a regulator. As I tried to illustrate, our lives are made acceptable and benign by regulators acting pretty well as they do at the moment to protect us. So are these new clauses a licence for regulators to approve regulations that kill people to save money? When you put it like that, I am sure everybody will say, “Of course not”. Nobody could believe that the intention of these regulations is to kill people to save money. The trouble is that in my very long career in regulation I have heard discussions about killing people to save money. Nobody uses terms like that. They will say: “The risk of this event is so low and the costs we are having to put in to prevent it happening are so high that it is unreasonable. Why are you forcing us to spend this money for this mitigating measure?”. These conversations go on. They go on in more complex circumstances. They go on in situations where a new regulation is being introduced which, as a consequence, mitigates most of the risk in a particular area as well as mitigating other risks. Other people can then say, “The residual risk is now so small, surely you do not want that regulation to continue in place, costing money, when people only kill other people very occasionally”. In other words, the risk is small enough to be put to one side. Do we intend praying in aid quite strong words such as necessary and proportionate for those sort of circumstances to be envisaged?

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Am I right in assuming that this actually applies only to England? A very large number of matters that we are talking about today are indeed devolved or not reserved, as the wording would have it, to these respective bodies. That means that certain regulators that have a UK-wide remit will have an even more difficult job in interpreting the Government’s wishes in this most important clause if at the same time they are required not to exercise these functions in Scotland, Wales and Northern Ireland, but only in England. If they wish to have them exercised they will presumably have to negotiate separately with the respective Parliaments in those places. That sounds fun.

[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.

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[Lord Rosser]

The Minister has accepted that Clause 83 may lead to additional legal action. I appreciate that he attempted to dismiss it by saying that it would not happen very often but, if we are talking about businesses, the pockets of some of them that might think about taking legal proceedings in relation to Clause 83 may be somewhat deeper than those of the regulatory bodies. First, how would the Government intend to address that situation to ensure that a regulatory body did not feel that it could not contest proceedings for fear that it might lose them and find itself paying quite considerable bills? Secondly, as I understood it, the Minister said that the provisions of Clause 83 should not carry any greater weight than any other requirements on a regulatory authority or any other issues that it should take into account. Is it the Government’s intention to write that into the Bill?

[Lord Wallace of Saltaire]

The Government’s position is that the guidance plus the statutory instruments, which Clauses 84 and 85 deal with—I recognise that we are in effect discussing all four of these clauses on the basis of this amendment—will be sufficient. However, that is also a matter which we are prepared to discuss between Committee and Report to make sure that we can agree a satisfactory level of what needs to be in the Bill, in guidance and in further regulations or statutory instruments as we go through.

[Lord Rosser]

What about the question of financing any legal action taken against a regulator or authority, bearing in mind that it could involve some quite large businesses whose pockets would certainly be deeper than those of the regulator?

[Lord Wallace of Saltaire]

I shall take that back, too, and we will discuss it between Committee and Report. I hope that I have managed to answer a number of questions. I recognise the concerns that have been expressed. We have a well operating system of regulation in the United Kingdom. The question of balance between good regulation, better regulation, sufficient regulation and efficient regulation is something around which a great deal of hard politics revolves. All of us who read the Daily Mail as loyally as the noble Lord, Lord McKenzie, and I do know that its constant campaign against all health and safety regulations is one end of the spectrum, but the other end of the spectrum is the overregulation that we all also have to be concerned about. That is going to be a continuing basis of politics, and this clause aims to strike the right balance.

[Lord McKenzie of Luton]

Does the Minister accept that his Prime Minister is also at the Daily Mail end of the spectrum?

[Lord Wallace of Saltaire]

I could not possibly comment. I do not begin to think that the Prime Minister accepts the Daily Mail approach to health and safety. He knows as well as everyone else that there is always a difficult balance to be struck in this area. I am well aware that there are a number of things, from his own personal experience, that the Prime Minister feels very strongly about in terms of proper provision of public services and proper regulation.

[Lord Deben (Con)]

On that point, surely it is not right to say that everyone else knows that. The Daily Mail does not know that and, unfortunately, it tends to say to a lot of other people that they should not know that either. I just think that we ought to remind ourselves that the common sense that he and the Prime Minister put forward is rather important.

[Lord Wallace of Saltaire]

Writing common sense into law is one of the most difficult things that we all spend our time on, however.

[Baroness Thornton]

I was not particularly surprised at the Minister’s response on the CQC. Given that we know that the CQC cannot answer the Opposition’s questions about this, why would we be surprised to hear that the CQC said that it is fine? The Department of Health has said that it has to say that it is fine. We now know that it is being told what to do by the department, which is worrying. As for the questions I asked, which are those that need to be asked in order to test this legislation, the Minister cannot tell me that those questions have been asked and what the answers were, and we therefore need to pursue that further.

[Lord Wallace of Saltaire]

My Lords, we are all very conscious that we are talking about a range of regulatory bodies which, as has already been said, have different relationships with Governments. Some are entirely independent, some are agencies of departments, and that is part of the universe with which we need to deal. I have already offered to discuss this between Committee and Report and I recognise, as I have already said, the concerns which have been expressed in this debate.

[Lord McKenzie of Luton]

The Minister has said that there is a possibility of further discussion between now and Report, but will he nevertheless undertake to arrange for written answers to be available to each of those questions in advance of that meeting? In order to make sure that nothing slips from people’s view, it would be very helpful if he would commit to getting us written answers where we have asked for them.

[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 Tunnicliffe]

My Lords, I thank all who have participated in this debate. I can respond immediately to the point that has just been made. Our concern about these clauses is not about their existence but about their unintended consequences. The general view is that regulators should do their business in a way that aids society. The vehicle here for society is growth, but forget that—what we are talking about is getting regulators to have a wider concern for society. That is not contested; what is contested is whether the wording is safe and does not have grave unintended consequences. As I said at the beginning, and as the debate has proved in its sheer volume, depth and complexity, these clauses go to the essence of regulation, which is so important.

I very much thank the Minister for his offer to have discussions off the Floor. I think we will probably have to have discussions about discussions first, because we would have to try to bring some focus to those discussions. Clearly, with the CQC, we would particularly like its representatives in one form or another to try to explain how these growth clauses might affect it.

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[Lord Wallace of Saltaire]

My Lords, when I first stood up today, I realised that I should have apologised to the Committee. I unintentionally misled the Committee the other day when I said that industry interests had not lobbied on the question of liqueur chocolates. I apologise because, on checking back, I discovered that there had indeed been some conversations in that regard. I trust that that corrects the record.

I am impressed by the youth of my noble friend Lord McNally and the noble Lord, Lord Tunnicliffe. I first met my noble friend Lord Deben in the winter of 1959-60 when we were undergraduates. The noble Lord is a mere stripling compared with my noble friend Lord Deben and me.

The issue at stake is simply whether one need include this body in an exceptional way in the Bill or whether this can be dealt with under secondary legislation. The noble Lord will be well aware that listing inclusions and exemptions in a Bill is not generally regarded as appropriate because primary legislation would then need to be amended each time a regulatory function were changed or created.

No specific regulatory functions of any other named body are listed in the Bill and the Government’s argument is that it is not necessary to do so in relation to the regulatory functions of the EHRC. The regulatory functions to which the growth duty is to apply will be set out in secondary legislation subject to the affirmative procedure to enable proper parliamentary scrutiny. Before any secondary legislation is made bringing the non-economic regulatory functions into the scope of the growth duty, the Minister must consult any person exercising functions to be specified in the order and such other persons whom the Minister considers appropriate. This consultation should provide enough opportunity for scrutiny, making it unnecessary to include this in the Bill. Naming a particular regulator or function in the Bill would also not allow the necessary flexibility for any new functions to be included.

I have some experience and some past expertise on the operations of international organisations. I know the speed at which they move, and I do not think that the delay between the passage of this Bill and the passage of the secondary legislation would jeopardise the position of the EHRC. I assure my noble friend Lord McNally and the noble Baroness that it is absolutely the Government’s intention that this will not be included in the Bill. I hope that that assurance is sufficient to reassure my noble friend and on that basis I hope that he will withdraw the amendment.

[Lord McNally]

My Lords, at this stage, I certainly will withdraw the amendment. I fear sometimes that my noble friend, rather like the noble Lord, Lord Rooker, takes responsibility for so long that the iron enters his soul. The truth is that on the international stage, people do not read the fine print. The rumours get about and a status can be undermined. I will discuss with my co-sponsor and will consult with the commission and others in your Lordships’ House who are not here today who have this concern. Although I will withdraw the amendment now, unless I get some good advice to the contrary this amendment will come back on Report with a great deal of support on the Floor of the House.

I say to the noble Baroness that I fully acknowledge the origins of the commission. I hope that when the history of events around 2010 comes to be written, my role in the commission’s survival will not be considered ignoble. I beg leave to withdraw the amendment.

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[Baroness Andrews (Lab)]

I never thought that I would be taking issue with my noble friend Lord Rooker. I followed him as a Minister and found that we sometimes contradicted each other in minor ways, but having arrived in time for this amendment I want to make some cautionary statements about putting a growth duty on the inspectorate. There is a growth duty on the inspectorate, in effect, in the sense that there is a presumption for development in the planning system. That presumption for development is really important because planning inspectors have to arrive at a balance in their decisions. That is why we invest them with such authority. They are the arbiters of various pressures that go into deciding what is a good and sustainable development and what is harmful development.

There are ways of determining what is harmful development, for example, in relation to the financial, physical and historical environment. What worries me about my noble friend’s amendment is that if we were to put a growth duty specifically on to the planning inspectorate, we might disturb the ecology of the ability of the planning inspector to make such a balanced judgment. In the National Planning Policy Framework, we worked very hard to get the balance right. I could not agree more with my noble friend about the need for housing—my goodness, it is an open and shut case—but the presumption for development needs to be balanced against those protections that are absolutely essential to maintaining the other things that we need in this country, which is a care for open spaces; he is a great advocate of that. From my point of view, it is also about care for the historic fabric of this country, and we have the historic protections that are there explicitly to be taken into account to protect against significant harm.

I know that my noble friend says it is a probing amendment but we need to be really careful about putting explicit duties on to the planning inspectorate, which could damage its ability to make balanced judgments. Decisions do have to be made.

[Lord Wallace of Saltaire]

I congratulate the noble Lord, Lord Rooker, on getting this within the scope of the Bill. I recognise exactly the motivation as we are facing more delays in getting our housing industry going again than we ever anticipated. It is deeply frustrating for all parties, and anything that one can do to give an extra push in the right direction is desirable.

My speaking note points out, however, that the majority of the planning inspectorate’s functions do not fall within the definition of “regulatory functions” in the Bill. Further work would be required to establish whether the functions of the planning inspectorate which do fall within that definition are non-economic in nature and could be brought into scope. If the Government consider in the future that the planning inspectorate regulatory functions could be subject to the duty they will consult on the proposal to include those functions before a final decision is made. That is a rather po-faced answer to a very determined intervention. I think that the answer to the noble Lord is that we should all encourage him to keep pushing in this direction on all occasions. We all share his view to get housing construction going again, but this may not be the most appropriate Bill in which to give it that particular push. On that basis I hope that the noble Lord will withdraw his amendment.