Deregulation Bill

Lord Rooker Excerpts

Tuesday 28th October 2014 Grand Committee

[Viscount Trenchard (Con)]

My Lords, I have not participated in any of the stages of the Bill until now. Nevertheless, with your Lordships’ leave, I want to support the amendment proposed by my noble friend Lord Borwick.

I agree with him that Sunday trading restrictions no longer protect small shops to any material extent. Even if large stores were open for longer hours, it would not have a material effect on the prosperity of many small shops. There will always be people who prefer the ease, the intimacy, the convenience and the speed of shopping at the corner shop, even if the prices are a touch higher.

I respect the opinion of those who think differently, such as the noble Lord, Lord Christopher, but this amendment does not seek to remove or alter the current Sunday trading restrictions other than in respect of garden centres. As my noble friend points out, garden centres are completely different. Of course, a proper definition of a garden centre needs to be formulated. However, my experience of shopping at or, rather, visiting a garden centre is that it is good for mind and body. One often walks a considerable distance from the car park to the centre, providing a good opportunity for much needed exercise. A visit to a garden centre can be rewarding and educational. Furthermore, having purchased equipment or plants in the centre, many people hasten home to work in their garden, which, again, is a very healthy and beneficial activity to engage in on a Sunday. I cannot think of any good reason why garden centres, properly defined, should not be exempt from the Sunday trading restrictions. I strongly support the amendment in the name of my noble friend.

[Lord Rooker (Lab)]

My Lords, I have no axe to grind on this but I am not clear about why six hours is not sufficient for garden centres to open. How many extra opening hours are needed? That is the implication of this amendment. I have not quite got my head around it. Should it be eight hours, 10 hours or a free for all and 24 hours? Garden centres have changed. I do not say this very often but I would very much counsel against your Lordships’ House sticking this in when the other House has not. I was a Member of the other place when the Sunday trading legislation was going through. I remember that it was the only time a government Bill was defeated at Second Reading. In the middle of Second Reading, the Home Secretary, Douglas Hurd, now the noble Lord, Lord Hurd, was asked: do you promise to put a guillotine on the proceedings of this Bill? He said no. With that, everyone realised that we would be there 24 hours a day, seven days a week, because this one was not going to pass easily. The easy way to get around that was to get rid of the Bill at Second Reading. Later, there was a more sensible Bill. I remember the look on the noble Lord’s face when he said that because I was in the Chamber.

I am not sure that I agree with the noble Lord, Lord Borwick, about the Association of Convenience Stores. I do not think that the big stores have opened their smaller shops to get around Sunday trading laws. They have opened the small shops to put the small person out of business. Tesco is a classic example, with its One Stop shops. I did a survey a year ago. I live in Ludlow. I shopped for 25 identical items in Tesco, One Stop and the Co-op. One Stop was 10% more expensive than Tesco. However, you have to look really hard in the Tesco annual report to find that it owns One Stop. Tesco also owns Dobbies, a garden chain, but what is there to prevent Tesco converting Dobbies? Most garden centres have land around them that can be purchased, so they could be extended. I am not clear about the real consequences of this proposal.

Finally, I declare an interest. I live in the middle of Ludlow and I have a garden centre on the other side of my back garden. It is the finest privately owned do-it-yourself chain. It sells white goods and has a kitchen shop. It also sells decorating and cleaning materials, furniture, tools and small electrical items. I have not worked it out but the garden centre part of the shop is probably 50%. To give it a plug, it’s called Homecare and is used by everyone.

I have not been lobbied as a Member of your Lordships’ House and, as far as I remember, there was no lobbying during the pre-legislative scrutiny of the Bill as it relates to the relaxation of Sunday trading legislation. I therefore counsel the Committee against going down this route, because it is so controversial. If there is to be a relaxation—and I make no case one way or the other—it is highly controversial in respect of the other place. There must be a proper prior consultation with everybody, including customers and the employees concerned.

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We acknowledge the excellent work done by insolvency practitioners. I think that the noble Baroness mentioned the high ranking accorded to insolvency practitioners in the United Kingdom. They do valuable work to facilitate business rescue and they ensure that businesses with viable futures are allowed to go forward and grow despite short-term financial difficulties. Insolvency practitioners go about their work with huge skill and care and they make a significant contribution to the economy. Nothing in this clause detracts from that. The clause opens up greater choice, which I believe will bring greater benefit. I therefore ask the noble Baroness to withdraw her amendment and not press her opposition to Clause 18 standing part of the Bill.

[Lord Rooker]

My Lords, having listened to the Minister, I should like to raise a couple of minor issues. Before Report, it would be extremely helpful for the House to have a list of insolvency practitioners who support this proposal. Paragraph 214 of the Joint Committee on the Draft Deregulation Bill’s report states that it was told,

“that there was ‘broad support’ for the clause from a range of stakeholders, including some practitioners themselves”.

We did not receive evidence to reflect that view. In a way, part of our problem was that we had only one side of the story. I am not out to cause trouble by saying that it is clear that this clause started life under the previous Labour Government. No one ever says that, but it is true. In March 2010, before the general election, the Insolvency Service sent a consultation letter to all key stakeholders inviting views on the specialist authorisation proposals. Indeed, there was a consultation meeting in April 2010. We did not explore this in the committee and it is a big issue. We had information from the Law Society and I think that we had information from Scotland as well, but the fact is that we did not delve too deeply into where this came from. The minute I see red tape challenged these days I dismiss it because I think it is a farce. However, given that this started life under the previous Labour Government, it might have had some merit. While the papers are not available to the present Administration, it would be useful to ask the then Ministers—I do not know who they were—why they started on this journey before 2010. There must have been a reason to trigger this thing so long ago. It has not just turned up in the Bill after trawling around Whitehall; it started life before the general election. We failed to ask why in the Joint Committee but I am asking that question now.

[Lord Sharkey (LD)]

My Lords, to take up some of the points made by the noble Lord, Lord Rooker, the Joint Committee noted that there appeared to be some confusion about the extent of consultation on this clause. We recommended that there be further consultation on what was then Clause 9. In their response to the Joint Committee’s report in January this year, the Government took the opportunity to repeat the arguments in favour of the clause in some detail. They also stated in paragraph 116 that,

“following the Committee’s recommendation, the Government is inviting any further views on this Clause during the passage of the Bill”.

How did the Government go about soliciting these further views? Who did they invite to give those views and what was the general burden of any of those responses that were made after the Government’s response?

As things stood when the Joint Committee reported, we did not feel that there had been sufficient consultation, as the noble Lord, Lord Rooker, was saying, to enable us to express a firm view on the merits of the clause. I note what the Government have said, but I also note the case put forward by R3. In particular, I note R3’s view that partial licences are not being introduced to fix a problem. It claims that there is insufficient evidence of undercapacity in the market and no evidence that the current regime causes concerns about the quality of the advice given. Essentially, it asserts that the system is not broken and asks why the Government are trying to fix it.

The Government, in their turn, advance two reasons for reform. The first is that the partial licences will benefit insolvency practices of all sizes and the personal insolvency market as a whole. R3 has advanced survey data that it says refutes these claims. Secondly, the Government say that partial licences will increase competition, decrease training costs, lower fees and deregulate access to the IP profession. R3 maintains that there is no evidence of the need for more IPs; in fact, it claims that the market is oversupplied. It also challenges the Government’s other assertions.

All this illustrates the position that the Joint Committee found itself in during December. There are competing claims, somewhat unevidenced, and a narrow consultation base, while the Government have not provided an impact assessment on this clause. It would be easier to make a judgment on the merits of the clause if we knew more and had more evidence. There is a strong case for the Government to agree to further substantive consultation on this issue before we reach a conclusion.

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[Baroness Byford (Con)]

My Lords, I welcome the opportunity to speak to my amendments, which are linked with that proposed by my noble friend Lord Skelmersdale. I support his amendment, but it focuses on a narrower base than mine. I must first record my family farming interests and my membership of the CLA, and the fact that we have paths across our farm. The CLA still has concerns about the Bill.

I was sorry not to be available for Second Reading, although I read Hansard with great interest. I will not make a Second Reading speech, but wish to record my support for the aims of the Bill, which brings forward sensible and proportionate measures for improving the regulatory regime in the UK.

My Amendment 17 would require councils in England to have regard to any guidance given by the Secretary of State as to the exercise of their powers. Amendment 18 would replace existing Clause 25 and define the purposes in greater detail; namely, “preventing or reducing crime”, to which my noble friend referred, and,

“ensuring the safety of any persons … preventing damage to property … preventing the ingress or egress of animals; or … protecting the natural environment”.

The stakeholder working group on unrecorded public rights of way established by Natural England consisted of 15 people, representing path users, landowners, occupiers and, importantly, local authorities. Much consensus was achieved. The group’s work has been immensely important in the bringing forward of the proposals in the Bill, but one or two items on which there was agreement were not included.

As a result of this work, the Government produced guidance, which has been placed in the Library. However, the particular detail encompassed by my two amendments has not been included in the Bill. Why was this? I understand that the proposals were agreed by the stakeholder working group, which accepted that the guidance should be statutory so that authorities would have to take it into account in their decision-making process. However, I am not clear on that.

The view of the stakeholder working group was that rights of way are so complex that it is important to make them easier for everyone to understand. The complexity leads to different applications of the rules and different interpretations by local authorities. Guidance should be applied fairly, consistently and impartially, with the aim of making regulation less burdensome. Some might argue that my amendments increase burdens but I humbly suggest that a clearer direction should reduce costs and burdens. There would be less doubt because interpretation would be clearly stated in the Bill. I am also aware that some authorities are overwhelmed by the large number of outstanding claims with which they have to deal. We need to make it easier for their decision-making. I support my noble friend’s amendment.

[Lord Rooker]

My Lords, we did not spend a lot of time in the Joint Committee on this because we were not adding things to the Bill. We made recommendations relating to further clauses, which I will not go into. I have been a regular walker in the Lake District for the past 30 years. One of my greatest regrets is that I did not discover the Lake District until I was 45. However, I would never claim that enjoyment of the countryside and the open air, and walking in the Fells, entitles me to go through someone’s garden alongside their private home. There can be no justification for a walker, a person enjoying the country, making that claim. Because of the route that a path may take—sometimes they go through a private garden—you sometimes see a sign that asks walkers not to use a child’s swing and says that if they do, they do so at their own peril. There cannot be an argument to do that.

I was involved in a case about a path being moved. The cost of moving a path a small number of yards—or metres if we are in Europe—is enormous. I cannot see that that cost can justifiably be put on the owner. It is a public good to move a path. In some ways, I am sympathetic to the principle behind the amendment, although putting it in the Bill is asking for trouble. Perhaps we need another stakeholder working group. The one relating to this Bill was admirably chaired by Ray Anderson, who seems to have done an incredibly good job getting a consensus.

By and large, there is a case for change. The Government’s view should not be, “Oh well, this is on the landowner”. It is not quite like that, particularly when you are in the Fells, which is the only area I know in some detail but it may be different elsewhere. However, it does not alter the fact that things change as regards rights of way. A path can be diverted, and the joy of the countryside and the open air can be maintained. My view is that you cannot make a claim about the right to go through a person’s garden. I am not making that claim as a walker. My claim is to access to the countryside. Therefore, there should be movement on this issue but it would be best for it not to be in this Bill.

[Baroness Parminter (LD)]

My Lords, I apologise for not being able to attend Second Reading. I had to go to a school event with my children. This package of measures has been agreed, as referred to by the noble Lord, Lord Grantchester, and others. However, we need to reflect on the fact that it has been carefully agreed by a wide group of people over two years. If we start to unpick various elements, other issues might fall out as well. We need to bear that in mind very carefully. This has been a carefully agreed package and what might seem a small change, if introduced in one area, might undo the broad compromise and consensus secured on the wider agenda.

My second point is that, looking carefully at the amendment tabled by my noble friend Lord Skelmersdale, it seems that in this new legislation there will be a significant improvement—he alluded to this—in the process for owners and occupiers with their ability to apply to make orders to divert or extinguish public paths. I think that the authorities will have to consider such applications within four months. Combined with the draft guidance which I think has been agreed to by the stakeholder working group, and which spells out how order-making authorities must consider this issue as it moves forward, those two changes together—the draft guidance and the new rights that private landowners are being given in this legislation—should be tried and tested before we start making further amendments. For those two reasons, that it is a carefully considered package with broad consensus among a hugely divergent group of people and that there are already some new proposals in the legislation to address some of the issues that my noble friend Lord Skelmersdale has rightly raised, I do not feel able to support his amendment.