Lord Wallace of Saltaire
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Deregulation Bill
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Lord Wallace of Saltaire (LD)
My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Deregulation Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 1: Health and safety at work: general duty of self-employed persons
Amendment 1
“( ) After subsection (2) insert—
“(2A) A description of undertaking included in regulations under subsection (2) may be framed by reference to—
(a) the type of activities carried out by the undertaking, where those activities are carried out or any other feature of the undertaking;(b) whether persons who may be affected by the conduct of the undertaking, other than the self-employed person (or his employees), may thereby be exposed to risks to their health or safety.””
Lord Wallace of Saltaire
My Lords, Section 3(2) of the Health and Safety at Work etc. Act 1974 imposes a general duty on all self-employed persons to protect themselves and others from risks to their health and safety, regardless of the type of activity they are undertaking. Clause 1 limits the scope of Section 3(2) so that only those self-employed people who conduct an,
“undertaking of a prescribed description”,
will continue to have a duty under this provision.
A public consultation was conducted by the Health and Safety Executive during July and August 2014. A common concern was that regulations which prescribed only self-employed persons who conducted specified high-risk activities would not be fit for purpose. One of the key concerns expressed by respondents to the consultation was that this would lead to some self-employed persons who pose a risk to the health and safety of others falling exempt from the law. Following the commitment I provided to the House on Report, the Government have now given careful further consideration to the consultation responses and Amendment 1 addresses these concerns.
The amendment sets out the ways in which undertakings may be described in regulations made under Section 3(2) of the 1974 Act to retain duties on self-employed persons. New subsection (2A)(a) covers descriptions based on the type of activities carried out by the undertaking. These descriptions could include a reference to the economic activities that the undertaking engages in, work activities involving a specific hazard, work activities conducted in a specific capacity, or a combination of these things. New subsection (2A)(b) ensures that the regulations could also include a general description covering any undertaking the conduct of which may expose others to risks to their health and safety.
This amendment will therefore enable the Secretary of State to make regulations which not only retain Section 3(2) duties on all self-employed persons who conduct specified high-risk work activities but also retain duties on those self-employed persons who may expose others to risks to their health and safety. This, it is considered, more closely aligns with Professor Ragnar Löfstedt’s recommendation in respect of this provision. Regulations made under this clause will continue to be subject to the affirmative procedure. They will therefore be scrutinised by Parliament at the time of laying to ensure they are fit for purpose before the regulations are brought into force.
The Government acknowledge that assistance will need to be provided to the self-employed to assist with their understanding of this legislative amendment and to limit the possibility of incorrectly assessing whether their work activities may expose other persons to risks to their health and safety. Further to aid this amendment, the HSE will therefore produce guidance targeted at self-employed persons and others to address these issues. It will also signpost them to existing guidance which explains in practical terms what self-employed persons need to do to comply with the relevant law.
Amendment 2 seeks to make it mandatory for the regulations to prescribe all self-employed persons who may pose a risk to the health and safety of others, thereby ensuring that they do not fall exempt from the law. I can provide the noble Lord, Lord McKenzie, with the assurance now that the Government intend to produce a set of regulations that will retain a duty on all self-employed persons who may pose a risk to the health and safety of others under Section 3(2) of the Act. I understand what the noble Lord wants to achieve with his amendment. However, in the light of the assurances I have now provided, and given the safeguards in place for the regulations to be scrutinised further by Parliament before they are brought into force, I hope the noble Lord will not seek to change what the Government have brought forward. I think the differences between us have narrowed considerably although I realise that some very small differences remain about the assessment of potential risk.
Amendment 3 seeks to impose various conditions on the making of regulations before undertakings can be prescribed for the purposes of retaining duties on the self-employed under Section 3(2) of the Health and Safety at Work etc. Act 1974. This amendment requires an independent review to be conducted and considered by both Houses before the regulations can be brought into force.
I hope I can provide some assurances also to demonstrate that this amendment is not necessary. In Committee, the Government amended Clause 1 so that regulations made under the power it creates are subject to the affirmative resolution procedure before they come into force. This provides Parliament with an adequate opportunity to scrutinise and debate the regulations to ensure that they are fit for purpose. The conditions that the noble Lord seeks to impose on the regulations can already be considered by the Houses as part of the affirmative resolution procedure if, indeed, Parliament considers these factors to be relevant. Additionally, the proposed prescribing regulations will contain a commitment for their review and for a report to be published after five years of making these regulations. The report will seek to assess the extent to which the objectives intended to be achieved by the proposed policy have been met.
Given the safeguards already in place, and the consultations undertaken by the HSE, the Government do not consider that a further independent review of the regulations would be of any benefit. Furthermore, the Government have now changed the policy to ensure that all self-employed people who expose others to risks to their health or safety will remain subject to the law. This, I think, is also what the noble Lord seeks to achieve. We have considerably narrowed the differences in the course of our consultations. I thank the noble Lord and other opposition Peers for the conversations we have had with officials in the intervals between the various stages of this Bill. I hope we have provided sufficient assurance. I beg to move that Amendment 1 is made and urge the noble Lord not to press Amendments 2 and 3.
Amendment 2 (to Amendment 1)
Lord Wallace of Saltaire
My Lords, I thank the noble Lord for his constructive comments, and I recognise that the timing creates some difficulties. I have consulted on whether draft regulations can be finalised, approved and laid before the general election, but I have to say that with the best will in the world that will not, at this stage, be possible. I cannot give the noble Lord a guarantee on the structure, nature and composition of the next Government—I am not sure that any of us can at present. That, of course, has to remain a matter of good will and of the commitment of those who have been involved from all sides in these consultations.
The duties and the question of the employees of the self-employed are covered by the general duty that the self-employed have to consider the interests of others and the risks involved. That seems to me to be fully covered here. We have moved as far as we can and the draft guidance was intended to provide an indication of where this coalition Government would be moving and where we would trust any successor Government to continue in assessing this very delicate balance between where Professor Löfstedt started, which was with the sense that we should try,
“to exempt from health and safety law those self employed people whose work activities pose no potential risk of harm to others”,
and, as he also said in his original review, to,
“help reduce the perception that health and safety law is inappropriately applied”.
That is what we on both sides are attempting to do. I felt that the Government had now moved sufficiently far to assure the Opposition that we were very much pursuing this role and that our proposals would bring Britain into line with other European countries and remove health and safety burdens from the self-employed in low-risk occupations. I hope that that does provide sufficient assurance, but I will see how far we have been able to do so.
Lord McKenzie of Luton
My Lords, I am grateful to the Minister for his response, and I entirely accept his assurance about what he sees as the way forward in circumstances where he and his colleagues were in a position to determine that. It is a great pity that the Government have come a significant way on this but we are just a smidgeon away from locking it down and making it mandatory. I really do not see the problem with doing that. If the Government are happy to provide for that in the draft regulations and happy to take those factors into account as part of their amendment, simply always making it mandatory to feature that provision in regulations seems to me to be quite a small additional step and one that could make a real difference. It is a pity that having come so far the Government cannot just close that gap.
Incidentally, in terms of the employees of self-employed people, I understand that Section 2 of the 1974 Act creates a general duty on all employers, whether they are employees, self-employed, or whatever their status is, so I am not quite sure why they are being excluded here when these arrangements are considered. Perhaps we might reflect on that. This is difficult, because I would like to test the opinion of the House, but I think that the Minister has done his utmost to provide reassurance on the record. That is where we are, and it is probably the best way to leave it today. I beg leave to withdraw the amendment.
“( ) In section 43 (remand centres and young offender institutions), as it has effect on and after the day on which section 38 of the Criminal Justice and Courts Act 2015 comes into force, in the Table in subsection (4)—
(a) in the entry for “Young offender institutions”, in the second column, for “Sections 28 and 37(2)” substitute “Section 28”;(b) in the entry for “Secure training centres or secure colleges”, in the second column, for “, 28 and 37(2)” substitute “and 28”.”
Lord Wallace of Saltaire
My Lords this group of amendments makes minor and technical changes that clarify and improve the drafting of the Bill. Amendments 21 and 22 relate to Clause 83 which will remove the requirement that prison closures are made by order. It does this, in part, by amending Section 43 of the Prison Act 1952. The Criminal Justice and Courts Act 2015, which received Royal Assent on 12 February, at Section 38 substitutes Section 43 of the Prison Act with a new Section 43 which permits the Secretary of State to make provision for the detention of young persons in young offender institutions, secure training centres and, additionally, secure colleges. These minor amendments provide for the removal of the requirement that prison closures are made by order both in respect of Section 43 as it is now, and in its revised form once the provisions in Section 38 of the Criminal Justice and Courts Act 2015 are commenced.
Amendment 27 relates to Clause 88, which will remove the current requirement that providers carrying out children’s social care functions on behalf of local authorities should register with Ofsted. In consequence of the removal of that registration requirement, subsection (2) provides for various references to providers of social work services in the Care Standards Act 2000 and in the Children and Young Persons Act 2008 to be omitted. This amendment would provide for the omission of a further reference in Section 30A(6)(f) of the Care Standards Act 2000 which had previously been overlooked.
Schedule 13, Part 3, will repeal Part 11 of the Local Government and Public Involvement in Health Act 2007 and allow joint waste authorities to be established by secondary legislation. The schedule outlines a number of consequential amendments needed to be made in other legislation as a result of these changes. Amendments 37 to 40 are merely further consequential amendments that take account of legislative changes made since the Bill was introduced, including removing references to the joint waste authorities in other legislation.
Schedule 19 makes significant amendment to the Poisons Act 1972. In particular, it creates new offences. Amendment 43 corrects the form of words for the maximum fine that can be applied to offences in the new Section 8 of the Poisons Act 1972 inserted by paragraph 10. In subsection (1)(b)(ii), the reference to,
“level 5 on the standard scale”,
should instead be a reference to “the statutory maximum”. This brings the penalty in line with the usual practice for financial penalties for more serious offences.
Amendments 29, 30, 44 and 45 change the extent of two provisions in Schedule 21. The provisions relate to the repeal of the Mining Industry Act 1920, the Fisheries Act 1891, which I think was probably before all Members of this House were taking part in its business, and the British Fishing Boats Act 1983. The changes are required due to timing and resource problems with getting a legislative consent Motion in place in Scotland during the passage of this Bill. I beg to move.
“CLC practitioner services bodies
(1) Section 32 of the Administration of Justice Act 1985 (provision of conveyancing services by recognised bodies) is amended as follows.
(2) In the heading, after “conveyancing” insert “or other”.
(3) In subsection (1)—
(a) in paragraph (a), after “bodies” insert “or CLC practitioner services bodies”;(b) in paragraph (b), for “such bodies” substitute “conveyancing services bodies”;(c) in paragraph (b), for the words from “undertake” to the end substitute “undertake—(i) the provision of conveyancing services,(ii) the exercise of a right of audience,(iii) the conduct of litigation,(iv) probate activities,(v) the administration of oaths, or(vi) the provision of relevant legal services not covered by sub-paragraphs (i) to (v);”;(d) after paragraph (b) insert—“(bza) prescribing the circumstances in which CLC practitioner services bodies may be recognised by the Council as being suitable bodies to undertake—(i) the exercise of a right of audience,(ii) the conduct of litigation,(iii) probate activities,(iv) the administration of oaths, or(v) the provision of relevant legal services not covered by sub-paragraphs (i) to (iv);”;(e) in paragraph (ba), for the words from “bodies” to the end substitute “bodies to carry on—(i) the exercise of a right of audience,(ii) the conduct of litigation,(iii) reserved instrument activities, where the recognised body is a conveyancing services body, (iv) probate activities, or(v) the administration of oaths;”; (f) in paragraph (c), after “requirements” insert “, including requirements about the carrying on of activities which are not reserved legal activities,”.(4) In subsection (3)(e), after “those bodies” insert “(including information about disciplinary measures taken)”.
(5) In subsection (3C), after paragraph (a) insert—
“(aa) conditions restricting the kinds of CLC practitioner services that may be provided by the body;”.(6) For subsection (8) substitute—
“(8) In this section—
“administration of oaths” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“CLC practitioner services” has the meaning given by section 32B;“CLC practitioner services body” has the meaning given by section 32B;“conduct of litigation” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“conveyancing services body” has the meaning given by section 32A;“probate activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“relevant legal services”—(a) in relation to a conveyancing services body, has the meaning given by section 32A; and(b) in relation to a CLC practitioner services body, has the meaning given by section 32B;“reserved instrument activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“right of audience” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act).”(7) After subsection (8) insert—
“(8A) Nothing in this section affects section 13 of the Legal Services Act 2007 (entitlement to carry on a reserved legal activity).”
(8) After section 32A (definition of “conveyancing services body”) insert—
“32B CLC practitioner services bodies
(1) For the purposes of section 32 a “CLC practitioner services body” means a body (corporate or unincorporate) in respect of which—
(a) the management and control condition,(b) the services condition, and(c) the authorised person condition,are satisfied.(2) The management and control condition is satisfied in the case of a partnership if at least one of the partners is a licensed conveyancer or a licensed CLC practitioner.
(3) The management and control condition is satisfied in the case of an unincorporated body (other than a partnership), or a body corporate which is managed by its members, if at least one of those members is a licensed conveyancer or a licensed CLC practitioner.
(4) The management and control condition is satisfied in the case of any other body corporate if at least one director of the body is a licensed conveyancer or a licensed CLC practitioner.
(5) The services condition is satisfied in respect of a body if—
(a) the body is carrying on a business consisting of the provision of—(i) CLC practitioner services; or (ii) CLC practitioner services and other relevant legal services; and (b) the body does not provide conveyancing services.(6) The authorised person condition is satisfied if the licensed conveyancer or licensed CLC practitioner by reference to whom the management and control condition is satisfied, or one of the persons by reference to whom that condition is satisfied, is an authorised person in relation to any reserved legal activity involved in the CLC practitioner services that are provided by the body.
(7) For the purposes of this section—
(a) a reference to CLC practitioner services is a reference to services involving the carrying on of such of the following as are reserved legal activities in relation to which the Council is designated as an approved regulator—(i) the exercise of a right of audience;(ii) the conduct of litigation;(iii) probate activities;(iv) the administration of oaths;(b) a reference to designation as an approved regulator is a reference to designation as an approved regulator—(i) by Part 1 of Schedule 4 to the Legal Services Act 2007, or(ii) under Part 2 of Schedule 4 to that Act;(c) a person has an interest in a body if the person has an interest in the body within the meaning of Part 5 of the Legal Services Act 2007 (see sections 72 and 109 of that Act).(8) In this section—
“administration of oaths” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“authorised person” means an authorised person in relation to an activity which is a reserved legal activity (within the meaning of the Legal Services Act 2007);“conduct of litigation” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“probate activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“relevant legal services”, in relation to a body, means—(a) CLC practitioner services, and(b) where authorised persons are managers or employees of, or have an interest in, the body, services such as are provided by individuals practising as such authorised persons (whether or not those services involve the carrying on of reserved legal activities), except for conveyancing services;“reserved legal activity” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“right of audience” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act).””
Lord Wallace of Saltaire
My Lords, these new clauses fulfil the commitment made by the Government on Report on 5 February in response to a series of amendments tabled by the noble Baroness, Lady Hayter.
Provisions in the Administration of Justice Act 1985 and the Courts and Legal Services Act 1990 place a restriction on the Council for Licensed Conveyancers, which effectively means that it can authorise a body or person only if that body or person is licensed to provide conveyancing services. This is a restriction that none of the other legal services approved regulators has. The purpose of the amendments is to remove this restriction. This is being done by amending Section 32 of the Administration of Justice Act 1985 and Section 53 of the Courts and Legal Services Act 1990.
The amendments also include amendments to Section 32 of the Administration of Justice Act 1985 to cover the full range of reserved legal activities for which the council is an approved regulator or for which the council may in the future be an approved regulator, if it were to be further designated. Any such further designation would require a recommendation of the Legal Services Board and an order under the Legal Services Act 2007. I remark in passing that I think that when my noble friend Lord Smith of Clifton asked his Question this afternoon, I do not think he had in mind the idea of private but approved regulators as part of his universe of regulating agencies.
The proposed second new schedule in these amendments will make amendments to the Administration of Justice Act 1985, which will enable the council to carry out its role as an approved regulator and licensing authority more effectively and efficiently. For example, amendments are made to change the venue for appeals from the High Court to the First-tier Tribunal. I beg to move.
“Licensed CLC practitioners
(1) Section 53 of the Courts and Legal Services Act 1990 (the Council for Licensed Conveyancers: authorisation of individuals to carry on reserved legal activities) is amended as follows.
(2) In subsection (2), omit “only if the person is a licensed conveyancer”.
(3) In subsection (3)—
(a) for “a licensed conveyancer” substitute “a person”;(b) for “the licensed conveyancer” substitute “the person in respect of that activity”.(4) In subsection (4), for “Any such” substitute “If the person granted a licence under this section is a licensed conveyancer, the”.
(5) After subsection (4) insert—
“(4A) If the person granted a licence under this section is not a licensed conveyancer, the licence may be granted as a separate licence or as part of a composite licence comprising that and any other licence under this section which the Council may grant to the person.
(4B) A licence under this section granted to a person who is not a licensed conveyancer ceases to have effect if the person becomes a licensed conveyancer.”
(6) In subsection (9)—
(a) in the opening words, after “respect to” insert “persons who apply for, or hold, an advocacy, litigation or probate licence and”;(b) in paragraph (c), for “licensed conveyancer” substitute “person”;(c) after paragraph (d) insert—“(da) any case of an individual who describes himself or herself, or holds himself or herself out, as a licensed CLC practitioner without holding a licence in force under this section;”;(d) in the words following paragraph (f), after “respect to” insert “persons who apply for, or hold, a licence under Part 2 of the Act of 1985 and”.(7) After subsection (9) insert—
“(9A) The modifications mentioned in subsection (9) may differ depending on whether the person applying for, or holding, an advocacy, litigation or probate licence is or is not a licensed conveyancer.
(9B) Subsection (9) does not apply to section 34 of the Act of 1985 (modification of existing enactments relating to conveyancing etc).”
(8) After subsection (10) insert—
“(11) In this section—
“advocacy licence” means a licence issued under this section by which the Council authorises the person concerned to exercise a right of audience;“CLC practitioner services” has the same meaning as in section 32B of the Act of 1985;“licensed CLC practitioner” means a person, other than a licensed conveyancer, who holds a licence under this section;“litigation licence” means a licence issued under this section by which the Council authorises the person concerned to carry on activities which constitute the conduct of litigation;“the practice of a licensed CLC practitioner” means the provision by a person, as the holder of a licence under this section, of CLC practitioner services in accordance with the licence; and“probate licence” means a licence issued under this section by which the Council authorises the person concerned to carry on activities that constitute probate activities.” (9) In the italic heading preceding section 53, after “conveyancers” insert “and licensed CLC practitioners”.”
“section 30A(6)(f);”
Lord Wallace of Saltaire
My Lords, on Report I committed to giving further consideration to whether the Professional Standards Authority, the PSA, and the Human Fertilisation and Embryology Authority, the HFEA, should be within the scope of the growth duty—that is, whether they should be required, in the exercise of their regulatory functions, to have regard to the desirability of promoting economic growth.
Since Report, officials from the Department for Business, Innovation and Skills have met with the Department of Health and the PSA to explore whether the functions carried out by the PSA meet the definition of “regulatory function” at Clause 106 of the Deregulation Bill. Officials have also considered the nature of the PSA’s regulatory role as oversight body for the nine statutory regulators of health and social care professionals.
Following those discussions, the Government have concluded that, while the PSA exercises functions that fall within the definition of “regulatory function” as per the Deregulation Bill, its specific role means that the PSA’s regulatory functions are far removed from individual businesses. The PSA would have limited economic impact on business even if it were to apply the growth duty. In the course of taking this Bill through the House and on a number of other occasions, I have learnt to respect the immense diversity of regulatory functions and regulatory bodies, and that is one of the things that the very helpful and positive speech of the noble Earl, Lord Lindsay, took us a little further into. Anything that attempts to apply an overview to the vast mass of regulatory bodies is likely to be wrong. The Government therefore do not currently propose to bring the PSA in scope of the duty but will review this decision in the future should the PSA’s regulatory role change.
Moving on to the HFEA, I start by saying that the Government understand that there are aspects of the HFEA’s role that are ethically sensitive and unique, as we have recently debated in this House. Therefore, perhaps I may offer a number of preliminary reassurances and commitments to noble Lords, which I hope will reassure the Opposition Front Bench. I should say that we had an extremely positive and constructive discussion with the noble Lord, Lord Hunt of Kings Heath, and others earlier in the week.
The growth duty is not a duty that would require the HFEA to drive the growth of one of the industries that it regulates—for example, the fertility sector—and it is not a duty to achieve or pursue economic growth at the expense of patient protections, such as those involved in the sensitive sectors regulated by the HFEA, as the noble Earl, Lord Lindsay, has already set out.
I take this opportunity to repeat once again that the growth duty will not impede the independence of regulators and will give them discretion in how to apply the duty. It is certainly not the Government’s intention that the growth duty should weaken the HFEA’s regulatory role. I also assure noble Lords—especially the noble Lord, Lord Tunnicliffe, who is not here at the moment but has had helpful meetings with a number of Ministers to discuss this policy—that the duty is about reducing, for example, the regulatory burden of bureaucracy on business. It is not a duty that loosens or undermines important duties of protection. Statutory duties concerning the protection of vulnerable women and men in seeking help in this sector remain of fundamental importance.
The duty requires regulators to have a regard to the desirability of promoting economic growth among those they regulate when they carry out regulatory processes and make regulatory decisions—for example, writing guidance, planning or changing intervention strategies, designing or revising processes, and carrying out inspections of those who are regulated.
The Government commit to continuing to work with regulators, including the HFEA, to ensure that the statutory guidance is fit for purpose, robust and principles-based to assist them in avoiding the risks of challenge. We are all aware of the problem of judicial review and that the HFEA has already been subject to a number of challenges via judicial review. We will therefore make particular efforts to ensure that the guidance is as clear as possible. It will be clear that regulators can have regard to the growth duty, balance it against their other statutory duties and decide not to afford any weight to growth where it is not appropriate or relevant.
I can also give noble Lords the commitment to publish a revised version of the guidance on GOV.UK before or at the time the guidance is laid in draft before Parliament. I should point out that the Government commit also to lay the draft guidance and the draft order, listing the functions to which the duty will apply, before Parliament at the same time for informed debate. Both these, as noble Lords are aware, will be subject to the affirmative resolution in both Houses. There will be continuing engagement with stakeholders to help regulators consider how the duty can be applied, which we hope will help regulators to decide what weight, if any, they should apportion to the growth duty when considering it alongside their protection duties.
Since the Report stage debate, BIS officials have met with the HFEA and the Department of Health to discuss how the growth duty might apply to their specific regulatory role. I am grateful to my noble friend Lord Howe for his commitment that the two departments should continue working together and with the HFEA to address any concerns on specific issues as we move forward. I know that some strong concerns were raised on Report about the HFEA’s role in regulating some of the extremely high fees being charged by some fertility clinics. The noble Lord, Lord Winston, talked of a lady, approaching her forties, who went to a clinic in London and was quoted the extremely large sum of £11,000 for three months of fertility treatment.
Having explored the powers that the HFEA has as a non-economic regulator, we found that it has no power to regulate the prices charged in IVF clinics. I understand that the HFEA does want to do more. It has recently decided to provide patients with a feedback mechanism on its website where patients can say whether the costs they actually paid were as originally advertised. I know from discussions with the HFEA that it recognises that costs are a key concern for many patients. However, at present it can only act within its powers. I want to assure the noble Lords, Lord Hunt and Lord Winston, and noble Lords here today, that the Government will work with the Department of Health to explore further the matters raised.
As I said, officials from BIS and the Department of Health have met with the HFEA to consider its statutory regulatory functions which are taken from the Human Fertilisation and Embryology Acts 1990 and 2008, and other legislation. It is the Government’s view that the HFEA could have regard to growth when exercising these regulatory functions in a way that would not weaken its regulatory role. It could apply to the HFEA in its general course of operation, such as licensing, inspections or the information that centres are required to provide for them. For example, in the HFEA’s overall licensing and inspection of clinics, if it decided to implement a new licensing process, the growth duty requires a consideration of the importance of exercising such regulatory functions in a way which ensures that regulatory action is taken only when it is needed and that any action taken is proportionate. This would encourage the HFEA to consider the impact that this change may have on those it regulates.
The HFEA, as an expert in its respective and expanding field, will decide what weight, if any, to afford growth as part of its decision-making process in each case. In some circumstances it may be appropriate that the HFEA, in making a particular decision, has regard to growth, but makes a reasonable decision not to give it any weight in its decision-making. For example, while exercising its licensing and inspection functions the HFEA may find that a clinic’s ability to provide a safe service was in question. The clinic may have breached the Human Fertilisation and Embryology Act 1990, its licence conditions or the HFEA’s code of practice to the extent that it is at risk of the suspension of its licence or even having its licence revoked. In this circumstance, where patient safety is clearly an issue, the HFEA may, in considering the facts before it and weighing up its various statutory duties, make a reasonable decision not to apportion any weight to growth in considering whether to continue to license or close the clinic.
It may also be helpful to draw on an example from the pharmaceutical sector to further illustrate the type of mischief that the growth duty seeks to resolve. A pharmaceutical business used an alcohol spray product in bottles which had certification to say it was safe to use for three months. However, the inspector told the business that once opened, it must throw out bottles after 24 hours. Despite the business pointing out the certificate and the three-month agreed safe lifespan, the inspector refused to read the material and imposed the requirement that the company throw out the spray every 24 hours. This clearly placed an unnecessary financial burden on the business, due to the cost of the product. It could no longer afford to use the product or manufacture a particular pharmaceutical product. The growth duty would have required the inspector to have regard to the economic impact of its decision on the business. It would also have ensured that regulatory action was taken only when needed and that the action taken was proportionate. In neither of those cases would the issue of safety have been jeopardised in any way.
The Government are committed to creating a positive business environment right across the economy and applying a growth duty to regulators across a broad range of sectors that will contribute to this. It is, thus, the Government’s view that the HFEA should continue to be included within the scope of the growth duty. I hope that I have clarified the scope and intent of the duty and provided the necessary reassurances on this front.
Finally, in addition to excluding the PSA and the HFEA from the scope of the growth duty, the amendment seeks to give the Secretary of State the power to list by order,
“any persons exercising a regulatory function with respect to health and care service”,
and in that order to exclude them from the scope of the growth duty.
The Department of Health feels that excluding health regulators from the growth duty would be at odds with other departments and inconsistent with the Government’s intent. I hope that I have provided the assurances that the Opposition and others were looking for in this complex area, and I hope that that will enable the noble Baroness to withdraw the amendment.
Baroness Hayter of Kentish Town
I thank the Minister for a very thoughtful response, and for all the work and meetings that have clearly taken place. I particularly welcome the fact, if I have his words right, that the Government do not propose to bring the PSA into scope.
Turning to the HFEA, funnily enough I agree with virtually everything that the noble Earl, Lord Lindsay, says, except that I do not agree that it is against the amendment in front of us. I think that he is arguing for better regulation and for not putting unnecessary burdens on those being regulated, be they hospitals or laboratories. All the talk about better regulation, not having undue costs and not throwing away bottles after 24 hours is, to me, better regulation and not the same as the growth duty. I think that we are not very far away from that.
I welcome very much the recognition by the Minister that the HFEA is not an economic regulator, his words that it will not be required to drive or pursue economic growth, his willingness to continue this discussion and to use new guidance to try to help avoid the risk of challenge, and his words that the HFEA will decide for itself not to afford that duty in certain cases. We are probably fairly close on this, and the discussions and the new guidance will be helpful. On that basis, I beg leave to withdraw the amendment.
“CLC practitioner services: consequential amendmentsAdministration of Justice Act 1985 (c. 61)1 The Administration of Justice Act 1985 is amended as follows.
2 (1) In section 16 (conditional licences), subsection (1) is amended as follows.
(2) For paragraph (b) substitute—
“(b) when conditions under this section have been imposed on a licence under this Part previously issued to him;(ba) when conditions under paragraph 5 of Schedule 8 to the Courts and Legal Services Act 1990 have been imposed on a licence under section 53 of that Act previously issued to him;”.(3) In paragraph (c), after “Part” insert “or a licence in force under section 53 of the Courts and Legal Services Act 1990”.
(4) In paragraph (ca), after “24A” insert “(including that section as applied by section 53 of the Courts and Legal Services Act 1990)”.
(5) In paragraph (d), after “26” insert “(including that section as applied by section 53 of the Courts and Legal Services Act 1990)”.
(6) In paragraph (ea), after “22” insert “(including that section as applied by section 53 of the Courts and Legal Services Act 1990)”.
3 (1) Section 26 (proceedings in disciplinary cases) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a), after “licence” insert “under this Part”;(b) in paragraph (b), for “a licence under this Part” substitute “any relevant licence”;(c) in paragraph (c), after “licence” insert “under this Part”. (3) After subsection (8) insert—
“(9) In this section “relevant licence” means—
(a) a licence under this Part, or(b) a licence under section 53 of the Courts and Legal Services Act 1990.”4 (1) Section 28 (revocation of licence on grounds of fraud or error) is amended as follows.
(2) In subsection (1)—
(a) after “a licence” insert “under this Part”;(b) for “the licence” substitute “all of the relevant licences held by that person”.(3) For subsection (2) substitute—
“(2) Where a person has had any relevant licence which was held by him revoked because of fraud on that person’s part, the person may not be issued with a licence under this Part except on the advice of the Committee given to the Council as the result of an application made by the person to the Committee.”
(4) In subsection (3), for “a licence under this Part” substitute “any relevant licence”.
(5) After subsection (6) insert—
“(7) In this section “relevant licence” has the meaning given by section 26.”
5 (1) Section 33A (administration of oaths by licensed conveyancers) is amended as follows.
(2) In the heading, after “conveyancers” insert “or licensed CLC practitioners”.
(3) In the section, after “conveyancers” insert “or licensed CLC practitioners”.
6 (1) Section 34 (modification of existing enactments relating to conveyancing etc) is amended as follows.
(2) In subsection (2), after “a recognised body” insert “which is a conveyancing services body”.
(3) In subsection (2), after “conveyancer or” (in the second place it occurs) insert “such a”.
(4) In subsection (3), after “body” insert “which is a conveyancing services body”.
(5) After subsection (3) insert—
“(4) In this section “conveyancing services body” has the meaning given by section 32A.”
7 In section 39 (interpretation of Part 2), in subsection (1), at the appropriate place insert—
““licensed CLC practitioner” means a person, other than a licensed conveyancer, who holds a licence under section 53 of the Courts and Legal Services Act 1990;”.8 In Schedule 3 (the Council for Licensed Conveyancers: supplementary provisions), in paragraph 2 (constitution of the Council), in sub-paragraph (1)(a)—
(a) omit the “or” at the end of sub-paragraph (i);(b) after sub-paragraph (i) insert—“(ia) licensed CLC practitioners; or”.9 (1) Schedule 6 (bodies recognised under section 32: supplementary provisions) is amended as follows.
(2) In paragraph 3 (preliminary investigation by the Investigating Committee etc)—
(a) omit the “or” at the end of sub-paragraph (1)(a)(ii);(b) after sub-paragraph (1)(aa) insert—“(aaa) it is alleged that a manager or employee of a recognised body who is not a licensed CLC practitioner has failed to comply with any rules applicable to him by virtue of section 32; or”.(3) In paragraph 3A (orders made by the Investigating Committee), in sub-paragraph (1)(b)—
(a) after “3(1)(aa)” insert “or (aaa)”;(b) for “that paragraph” substitute “paragraph 3(1)(aa) or (aaa) (as the case may be)”. (4) In paragraph 4 (orders made by the Discipline and Appeals Committee), in sub-paragraph (2A)—
(a) after “3(1)(aa)” insert “or (aaa)”;(b) for “sub-paragraph (ii) of that paragraph” substitute “paragraph 3(1)(aa) or (aaa) (as the case may be)”.(5) In paragraph 14 (examination of files), in sub-paragraph (1), after “(aa)” insert “, (aaa)”.
Courts and Legal Services Act 1990 (c. 41)10 The Courts and Legal Services Act 1990 is amended as follows.
11 In section 75 (judges etc barred from legal practice), in paragraph (c), for “or licensed conveyancer” substitute “, licensed conveyancer or licensed CLC practitioner”.
12 In section 119 (interpretation), in subsection (1), at the appropriate place insert—
““licensed CLC practitioner” has the meaning given in section 53;”.13 (1) Schedule 8 (licensed conveyancers) is amended as follows.
(2) In the heading, after “conveyancers” insert “and licensed CLC practitioners”.
(3) In paragraph 1 (general)—
(a) for the definition of “advocacy licence” substitute—““advocacy licence”, “litigation licence” and “probate licence” have the meaning given by section 53;”;(b) omit the definitions of—(i) “litigation licence”, and(ii) “probate licence”.(4) In paragraph 4 (issue of licences), in sub-paragraph (3), for the words from “with respect” to “as they” substitute “with respect to—
(a) any application under paragraph 3 for an advocacy licence and any advocacy licence in force under section 53;(b) any application under paragraph 3 for a litigation licence and any litigation licence in force under section 53; and(c) any application under paragraph 3 for a probate licence and any probate licence in force under section 53 (as the case may be),as they”.(5) In paragraph 5 (conditional licences)—
(a) for sub-paragraph (1)(b) substitute—“(b) when conditions under this paragraph have been imposed on an advocacy, litigation or probate licence previously issued to him;(ba) when conditions under section 16 of the Act of 1985 have been imposed on a licence under Part 2 of the Act of 1985 previously issued to him;”;(b) in sub-paragraph (1)(c), for “a licence of that kind” substitute “an advocacy, litigation or probate licence or a licence under Part 2 of the Act of 1985”;(c) in sub-paragraph (1)(d)—(i) after “1985” insert “(including section 24A(1) as applied by section 53)”;(ii) after “that Act” insert “(including section 26(1) as applied by section 53)”;(d) in sub-paragraph (6), omit the “or” after paragraph (a);(e) in sub-paragraph (6)(b), at the beginning insert “in the case of an applicant who is a licensed conveyancer,”;(f) after sub-paragraph (6)(b) insert “; or(c) for requiring the applicant to take any specified steps that will, in the opinion of the Council, be conducive to his carrying on an efficient practice as a licensed CLC practitioner,”;(g) in sub-paragraph (6), after “paragraph (b)” insert “or (c)”.(6) After paragraph 6 insert—
“Register of licensed CLC practitioners6A (1) The Council must establish and maintain, in such form as the Council may determine, a register containing the names and places of business of all persons who for the time being hold an advocacy, litigation or probate licence and are not licensed conveyancers.
(2) The Council may make rules specifying the further information, including information about disciplinary measures taken, to be recorded in the register in relation to a person.
(3) The Council must cause the appropriate entries and deletions to be made in the register on the issue and termination of advocacy, litigation and probate licences; and where any licence held by a person is for the time being suspended by virtue of any provision of Part 2 of the Act of 1985 as applied by this Act the Council must cause that fact to be noted in the register against that person’s name.
(4) Any change in a licensed CLC practitioner’s place or places of business must be notified by that person to the Council within the period of fourteen days beginning with the date on which the change takes effect.
(5) The Council must provide facilities for making the information contained in the entries in the register available for inspection in visible and legible form by any person during office hours and without payment.
(6) A certificate signed by an officer of the Council appointed for the purpose and stating—
(a) that any person does or does not, or did or did not at any time, hold an advocacy, litigation or probate licence, or(b) that any licence held by any person is or was at any time either free of conditions or subject to any particular conditions,is, unless the contrary is proved, evidence of the facts stated in the certificate; and a certificate purporting to be so signed is to be taken to have been so signed unless the contrary is proved.”(7) For paragraph 8 and the cross-heading preceding it substitute—
“Effect of suspension or revocation8 Where a relevant licence ceases to be in force because of—
(a) a direction under section 24(5) of the Act of 1985, or(b) an order under section 26(2)(a) or (c) of the Act of 1985,any other relevant licence in force with respect to that person at the time shall cease to have effect to the same extent as the licence in question.”(8) Omit paragraph 9 (removal of disqualification from holding an advocacy, litigation or probate licence).
(9) Omit paragraph 10 (revocation on grounds of error or fraud).
(10) In paragraph 21 (power to examine files)—
(a) in sub-paragraph (1)(a), after “conveyancer” insert “or licensed CLC practitioner”;(b) in sub-paragraph (1), for “the licensed conveyancer” (in both places where it occurs) substitute “the person complained of”.(11) In paragraph 22 (interest on clients’ money), after “conveyancer” insert “or licensed CLC practitioner”.
Legal Services Act 2007 (c. 29)14 The Legal Services Act 2007 is amended as follows.
15 (1) Section 104 (prevention of regulatory conflict: accounts rules) is amended as follows.
(2) In subsection (2), after “conveyancer” insert “or licensed CLC practitioner”.
(3) After subsection (2) insert—
“(3) In this section “licensed CLC practitioner” means a person, other than a licensed conveyancer, who holds a licence under section 53 of the Courts and Legal Services Act 1990.”
16 (1) In Schedule 5 (authorised persons), paragraph 11 (rights during transitional period: licensed conveyancers) is amended as follows.
(2) After sub-paragraph (1) insert—
“(1A) During the transitional period every individual, not being a licensed conveyancer, who holds a licence under section 53 of the Courts and Legal Services Act 1990 is deemed to be authorised by the Council to administer oaths.”(3) In sub-paragraph (2), after “(1)” insert “or (1A)”.
(4) In sub-paragraph (3), in the opening words—
(a) after “and every” insert “conveyancing services”;(b) after “provide conveyancing” insert “or other”.(5) After sub-paragraph (3) insert—
“(3A) During that period, every CLC practitioner services body recognised under section 32 of the Administration of Justice Act 1985 is deemed to be authorised by the Council to administer oaths.”(6) In sub-paragraph (4), after “(3)” insert “or (3A)”.
(7) For sub-paragraph (5) substitute—
“(5) In this paragraph—“CLC practitioner services body” has the meaning given by section 32B of the Administration of Justice Act 1985;“conveyancing partnership” means a partnership at least some of the members of which are licensed conveyancers, but does not include a CLC practitioner services body;“conveyancing services body” has the meaning given by section 32A of the Administration of Justice 1985.”(8) In sub-paragraph (6), after “licence” insert “or a licence under section 53 of the Courts and Legal Services Act 1990”.
17 In Schedule 24 (index of defined expressions), at the appropriate places insert—
“CLC practitioner services body | paragraph 11 of Schedule 5”; | |
“conveyancing services body | paragraph 11 of Schedule 5”; | |
“licensed CLC practitioner | section 104(3)”.” |
Baroness Hayter of Kentish Town
My Lords, I use this opportunity for a brief moment to pay tribute to my noble friend Lord Stevenson, who, from our side, has guided and marshalled our many Front Bench colleagues, including my noble friends Lady Thornton, Lord Tunnicliffe and Lord McKenzie, through what has been called a “Christmas tree Bill”. Of course, we do not think it is quite such a Bill because it is not full of goodies, but I thank my noble friend Lord Stevenson and, I have to say, our brilliant legislative adviser, Muna Abbas; this was her first such Bill. We think that it has ended up a little better than it arrived.
I thank the Minister and his sometimes expanding, sometimes reducing ministerial team. I also thank the other members of the Bill team who have helped negotiate, redraft, debate and discuss throughout the process, including the setting up of a large number of bilateral meetings, some of which have dealt with some very complex issues. They now deserve a very good holiday, so I suggest that before too long we have a general election so that they may have one.
Lord Stoneham of Droxford (LD)
My Lords, on behalf of these Benches, I thank my noble friend Lord Wallace for seeing us through this Bill. When we started, we thought that this would be a complete nightmare, but his skill, perseverance and patience have helped that not to be so. I thank also the opposition Benches for their part in seeing this legislation through, and our colleagues in our own office, Giles Derrington and Elizabeth Plummer, who supported us through the business of this Bill.
Lord Wallace of Saltaire
My Lords, this is almost the end of the Gardiner-Wallace double act for this Parliament. The kinder definition of this Bill is “a portmanteau Bill”, I think. I am particularly grateful to the Bill teams for the way in which they have coped with what has unavoidably been a matter of negotiation across Whitehall, dealing with different Whitehall departments, in pursuit of what the noble Earl, Lord Lindsay, would like to call better regulation rather than deregulation.
When I look across the currently empty Benches, I am always conscious that there are those who believe that the only regulations imposed on Britain are imposed by Brussels. Many of our discussions here have been about the necessity of regulation for many different parts of the British economy, British society and British science, and we are going to continue, for the rest of our careers in this Chamber, to discuss many of these issues about risk, regulation, the market and how one balances all those very difficult issues.
There are many others whom one could thank. I almost feel that I should thank the noble Lord, Lord Rooker, for agreeing that, having chaired the pre-legislative scrutiny, he would not take further part in this Bill because he felt that he had had enough. He is far too sharp otherwise to have missed a number of things that we have been struggling with. It has been a very large Bill. We have managed to repeal or amend a number of early 19th-century Acts and statutory instruments, and we have now come to the end. I am extremely grateful to all those who have co-operated in this, including the Opposition Front Bench and their researchers, as well as our magnificent Bill team.