HC Deb 01 November 1994 vol 248 cc1497-509

Lords amendment: No. 1, in page 1, line 21, leave out ("Chapter") and insert ("section and sections 2 to 4 below")

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The Parliamentary Under-Secretary of State for Corporate Affairs (Mr. Jonathan Evans)

I beg to move, That this House doth agree with the Lords in the said amendment.

Madam Deputy Speaker (Dame Janet Fookes)

With this, it will be convenient to discuss also Lords amendments Nos. 2, 4, 9 and 10, and Lords amendment No. 79 and amendments (a) and (b) thereto.

Mr. Evans

My hon. Friends the Members for Scarborough (Mr. Sykes) and for Chingford (Mr. Duncan Smith), in whose names amendments (a) and (b) to Lords amendment No. 79 stand, were prime movers in prompting our consideration of this whole issue. Hon. Members may recall that, during debates of the Bill in Committee and at subsequent stages, a number of my hon. Friends pressed for the Bill to include measures on the enforcement of legislation. My hon. Friends the Members for Scarborough and for Chingford argued persuasively that, while the Bill provided an important new means to remove or reduce burdens imposed by legislation, it lacked a means to ensure that regulations were not over-zealously or unfairly enforced. Hon. Members from both sides of the House echoed the anxiety about over-zealous enforcement.

I should make it clear that it is not the Government's intention in any way to undermine the proper enforcement of rules and regulations, and I emphasise that the provisions could not be used to do so. The powers cannot be used in situations in which that would jeopardise any necessary protection afforded by the legislation in question. The powers also cannot be exercised in a way that would prevent the taking of immediate action where that is justified, or that would require the disclosure of information contrary to the public interest; nor do we intend those provisions to apply to aspects of legislation that involve deliberate wrongdoing.

The new powers would apply to legislation affecting businesses or charities, but not to legislation the sole or main effect of which is on individuals in a personal capacity. The exercise of those powers by a Minister may be in respect of any primary legislation passed before the end of the 1993-94 Session, and any order or regulation made under such legislation.

The sheer diversity of the existing appeals can be, in itself, a problem for business. The second new clause therefore provides that the Secretary of State may prescribe by order a model standard appeal mechanism. The new clause sets out several key elements that the model provisions would include. It makes it clear that the Secretary of State is to draw up the provisions in such a way as will secure that appeals can be determined without unnecessary delay, and that costs and expenses that will be incurred by the parties are kept to a minimum. The model appeal mechanism would be available to be incorporated into future legislation as appropriate, either with or without variations.

I leave it to my hon. Friends to speak to the amendments that appear in their names before responding to the issues that they raise but, in concluding my remarks, I emphasise that it is important for businesses to be able to clarify the status of, to understand the reasons for, and to be able to challenge, decisions at as early a stage as possible. The provisions provide that important means of ensuring that they can.

Mr. Nigel Griffiths (Edinburgh, South)

In moving the group of amendments, the Minister and the Government showed how ill-prepared they were. In some ways, I feel sorry for the new Minister. Let me be the first to congratulate him on his elevation—and to commiserate with his predecessor, who put in a great many hours of hard work on the Bill, on the Floor of the House and in Committee. We look forward to hearing from the Minister's predecessor as soon as possible, and we wish him every success in the direction in which he is going now.

As for the group of amendments before us, it is ridiculous that the House, at 1.12 in the morning, is being asked to consider a major amendment to the existing enforcement procedures.

Nothing better typifies how ridiculous and shambolic the Government's treatment of deregulation is than the fact that in the amendments are recommendations of the local government enforcement scrutiny team, which were published as recently as September this year, in a report that was sent out for consultation. The consultation period covered by the amendments on which we are being asked to vote does not expire until 20 January 1995. This is a panic measure, if ever there was one.

The Government have asked the people who will be responsible for a key measure of enforcement—the trading standards officers—to give their opinions on it. Unfortunately, trading standards officers, like many other enforcement groups such as environmental health officers and even the police, have not had the chance to respond in the consultation period that the Minister's predecessor and the President of the Board of Trade set. Therefore, the Institute of Trading Standards Administration, representing more than 1,500 trading standards officers in the country, has not had a chance to respond to the document.

Trading standards officers are saying individually to the Minister that any procedure of the suggested type would place yet a further burden on them—on local authority enforcement that is already overstretched by the additional legislation that the Government have introduced, governing food safety and other matters. That has been done without a concomitant increase in the number of trading standards officers.

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Amendments (a) and (b) to Lords amendment No. 79 have been tabled by the hon. Member for Scarborough (Mr. Sykes). The hon. Gentleman was courteous enough to advise me outside the House that he intended to table such amendments, but I do not think that he made it clear to me that his proposal, especially as it is contained in amendment (b), was designed specifically to allow people against whom trading standards officers were acting to intimate that they intended to appeal to a magistrate or justice of the peace. The amendment would allow such people to ignore enforcement while they were waiting for the appeal to reach the court.

The problem with that part of the amendment can be shown by the example of a builder who illegally starts to demolish a listed building and is ordered by planning enforcement officers to halt the demolition. By lodging an appeal he would be able to continue the demolition until magistrates had heard the case. That shows why we cannot accept the amendments.

In another place the noble Lord Ferrers voiced concern about how an appeals procedure might be conducted. The appeals procedure being considered by their lordships was informal and outside the judicial system. Just a few weeks ago that Minister in the other place was proposing such a new system, but a Conservative Back Bencher, with the support of the Minister, this morning tabled an amendment that would circumvent the current judicial system.

Why did the Minister feel the need to encourage this last-minute amendment when in the other place Lord Ferrers was proposing an appeals procedure that would be outside the judicial system? I note that, in moving the amendment, the Minister did not deal with that but said that his Back-Bench colleague might touch on it. The amendment would ensure that some people had a pre-eminent right of appeal.

Mr. Jonathan Evans

In the interests of saving time, I can tell the hon. Gentleman that the Government do not intend to agree to amendments (a) and (b). His presumption in that regard is misplaced. That may enable him to finish his speech somewhat earlier.

Mr. Griffiths

I could have reduced my speech by five minutes and saved the time of the House if the Minister had made that clear when moving the amendment. He nods his agreement. [Interruption.]

Madam Deputy Speaker

Order. I am finding it difficult to hear the hon. Member, and I wish to do so.

Mr. Griffiths

I assume from the Minister's failure to say earlier that he was unwilling to accept his hon. Friend's amendments that he is now persuaded that they are unnecessary. I hope that the Minister will not waste more of the House's time by failing to say what is acceptable in the other 11 key issues that we intend to pursue and vote on.

Concern has been voiced to me—I hope that the Minister had a similar briefing—by the Local Authorities Committee on Trading Standards, LACOTS, which the Department of Trade and Industry helps to fund. It co-ordinates the views of local authorities on trading standards, and it is disappointed that it has not been specifically consulted on amendments Nos. 9 and 10. It wants to ensure the transparency in decision making that some of the amendments would also ensure. I have no objection whatsoever to people receiving in writing the full details of any enforcement order and the terms with which they have to comply. Although it will take up the time of local authorities, I recognise the justice in that as it ensures that there is no confusion. LACOTS, however, would have liked to have been consulted. It is concerned that if the Bill is not enacted in a practical way, it will prejudice proper enforcement and standards.

The tightening up of the matter was, of course, the subject of the Opposition Front-Bench initiative in the House of Lords where the amendments were generally welcomed.

Mr. John Sykes (Scarborough)

I note the warm welcome that my colleagues have given me this morning. First, may I offer my hon. Friend the Minister a warm Yorkshire welcome to the Front Bench? Secondly, the English language has a famous phrase, the "Scarborough warning". Historically, the Scarborough warning means no warning at all—the blow first and the warning after.

In Scarborough, robbers were dealt with in a summary manner—by a Halifax gibbet law or lynch law. As we had no warning that the Scottish Nationalists and the Labour party in Scotland were to have such a big fall-out tonight, it is not right for me to detain my hon. Friends any later than necessary and besides, I have no wish to become the first Member of Parliament to be hanged in public since the 18th century by former colleagues in New Palace yard.

I shall, therefore, say simply that the amendments that I propose would have the effect of obliging an enforcement officer first, to state in writing the reasons for any decision that he has come to in relation to the person or business against whom he is regulating, and, secondly, to inform that person or business of any appeals procedure that may exist in relation to his decision.

No such rights exist at the moment. It should be the duty of the regulatory authority to provide such information and I hope that my hon. Friend the Minister will consider my amendment seriously.

Mr. Nigel Spearing (Newham, South)

The understandable atmosphere in the House is due to the succession of Divisions that we have had on a matter which is highly serious for those north of the border—the scrapping of what some of us regard as democracy. I wish to refer to the new clause after clause 4 or amendment No. 9, which represents an extension proposed by the other place—no doubt at the behest of the Minister—of what I consider to be a principle that is objectionable and ultimately undemocratic. On Second Reading I used the term "semi-fascist" and, for reasons that I shall explain, I do not withdraw it in respect of the new clause now before us because it follows the same pattern.

The key phrase in the new clause is: any provision made by an enactment a Minister of the Crown is of the opinion". The new clause under amendment No. 9, which we might call 4A or 5—as it will probably be if it is passed—removes from the House that opinion. It removes from the House the ability to change by enactment—the changing of an Act in the same way as that enactment was made—a requirement which in this case is the means of enforcement of the Act itself. That enforcement may be put in place by some statutory instrument, but it may be by the Act.

The Minister will correct me if I am wrong, but it appears that the amendment seeks to make it possible for a Minister of the Crown, irrespective of any existing Act, by placing an order under the proposed Act, on his opinion, and subject to anything else in the Act, to change the methods of enforcement.

The amendment says something more particular than that. In subsection (b) it states: by exercising any one or more of the powers conferred by Schedule (Powers to improve enforcement procedures)"— that is, the one and a half pages of schedule being written into the Bill by amendment No. 79— to this Act, it would be possible, without jeopardising any necessary protection, to improve (so far as fairness, transparency and consistency are concerned) the procedures for enforcing the restriction, requirement or condition. That provision means that there will be a whole series of subjective judgments. Who is to say whether it is possible? Even if it is, is it practical? If it is, do we do it without jeopardising any necessary protection? What is a necessary protection? What is meant by "to improve"? What is fairness? What is transparency? What is consistency? Those are all matters of subjective judgment. By passing the new clause, the House passes over its powers of enactment—lock, stock and barrel—to a Minister in Whitehall.

Those of us who believe in parliamentary democracy believe that that is a reversal of what the Government sometimes say—that is, "Bring it nearer to the people; let the people decide; let it be discussed in public." [HON. MEMBERS: "Hear, hear."] Conservative Members here tonight do not understand what they will be doing when they vote: they will be handing over our powers of enactment to Ministers in Whitehall, struggling home at night through the traffic, reading their briefs by the light of lamps and probably signing something that they scarcely understand.

Clause 4, which precedes the new clause, is bad enough, but the new clause is even worse because it strips away the protection that some people might derive from the judgment of this House by statute and puts it in the hands of a Minister.

The next new clause is introduced under amendment No. 10 and relates to provisions with respect to appeals. Of course, the Minister will not judge appeals. The amendment sets out a large number of fairly complex provisions. It provides for the Secretary of State to appoint persons to hear appeals. What sort of person will be appointed? To what supervision by a Committee of this House will he be subject? A procedure for that is included for other clauses. Will it be entirely up to the Secretary of State whom he appoints and under what rules he works?

While we might approve the extension of appeals as being superficially satisfactory, it is again a centralising, authoritarian measure that removes from elected Members powers which reside in this place and which adjudicate between the people who make the rules and the people who are protected by them. It removes the balance which should reside in Parliament, not in Whitehall. If it goes to Whitehall, it will increase the power of patronage and, therefore, the possible extension of what I have rightly called neo-fascism.

Mr. Iain Duncan Smith (Chingford)

I welcome my hon. Friend the Member for Brecon and Radnor (Mr. Evans) to his new post on the Front Bench. It is no reflection on him, but I want to say how much I regret the fact that our hon. Friend the Member for Tatton (Mr. Hamilton) is no longer in that post and replying to the debate, as he would have been were it not for the nonsense of the past few weeks.

I accept that the Government have moved a long way on our recommendations on the matter—and quite rightly, too. Any hon. Member who doubts that need only consider the response of the hon. Member for Edinburgh, South (Mr. Griffiths) to what we are doing. The Opposition do not like it, which tells us that we have moved a long way in the right direction.

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Many small business men throughout the country have been beset by problems of over-officialdom, by constant over-imposition of regulations, by people acting beyond their brief and by the extra charges levied against them, forcing them out of business because they can no longer afford to be in business. I accept that the Government, particularly with Lords amendment No. 10, have gone some way towards rectifying that.

However, I do not believe that as yet we have found a good alternative, impartial way in which to allow business men the right of appeal against what they consider to be the result of someone acting beyond his brief. The Bill provides for the appointment of persons to hear and determine appeals, and I hope that during the next few weeks and months my hon. Friend will try hard to find a strong mechanism by which that can be done. I still recommend the judicial process—the magistrates courts. The only way in which people throughout Britain will be able to have the basic principle of the right of redress is to go down that road. I therefore urge my hon. Friend to consider the matter carefully in the future to find a way of winding it in.

Mr. Christopher Gill (Ludlow)

In view of the late hour, I shall speak briefly.

First, I congratulate my hon. Friend the Minister, my constituency neighbour, on his new appointment, and wish him well at the Dispatch Box. Naturally I am disappointed when I hear him say that he is unable to accept amendments (a) and (b) to Lords amendment No. 79 standing in the names of my hon. Friends the Members for Scarborough (Mr. Sykes) and for Chingford (Mr. Duncan Smith). I congratulate them on the initiative that they have taken in bringing forward those two measures, which would have been widely welcomed by British traders and business men. They will be disappointed to know that the Government do not see fit to accept them.

In a perfect world, the enforcement of the law would be an even-handed matter and would always be within the bounds of the law as enacted in this place, but there is far too much evidence of enforcement officers acting in an intimidatory and over-officious way, exploiting the ignorance of traders and business people in order to deprive them of their rights under the law.

Too often, the enforcement officers move into a business and browbeat the traders and business people into doing things that they are statutorily under no obligation to do. Amendments (a) and (b) seek to oblige enforcement officers to state exactly the terms and conditions under which they have the right to do what it is that they propose to do. I commend my hon. Friend the Member for Scarborough on tabling the amendments.

Mr. Nigel Griffiths

The hon. Gentleman said that enforcement officers are making business people do things that they are not statutorily obliged to do. Will he give us some examples?

Mr. Gill

Yes, I should be pleased to give the House an example. It is well known—I speak with some little experience—that, for several years, the meat industry has been intimidated into removing wooden butchers' blocks. We now discover that all that was done in a purely intimidatory way, without the force of law and at a huge expense to the industry. Those who have removed their wooden blocks—the majority of those in the meat industry, because they were persuaded that the law was on the side of the enforcement officers—have now discovered that the law was not on the side of the enforcement officers.

When an enforcement officer goes into a business, generally, the person running that business accepts—or has accepted in the past—that that officer knows his stuff and knows what he is entitled to do within the law. I repeat that there has been far too much evidence of such officers going into businesses and acting beyond their rights under the law; that has been a great annoyance to businesses, and has severely disadvantaged the businesses in many instances.

I hope that my hon. Friend and his Department will look at the matter again, and try to ensure that the rights of the traders and business men are made as substantial as the rights of those who set out to enforce the law. I am sure that my hon. Friend will look at the problem. We must see that there is equity between those who enforce the law and those who are obliged to comply with it.

Mr. Malcolm Bruce (Gordon)

I believe that the amendment very much reflects the discussion that we had in Committee, about a general recognition that small businesses and small traders, which, of course, must comply with regulations that are necessary and agreed, should not be harried in the difficulties of their business without adequate recourse.

I believe that the Opposition's amendment has found a formula that provides for local, simple redress, or something close to it. At the moment, the Government's formula, although we do not know the details of it, effectively means that Government Departments could be clogged up with many complaints from businesses—we do not know how they will be handled—whereas it would be much better for businesses to know that they could get local recourse within the magistrates court or, as suggested in the other place, possibly in the small claims court.

It should be some simple mechanism that would enable traders to say, "We think that this is unreasonable and oppressive. We want you to justify it, and if you cannot, we should not be put in a situation where we are faced with regulations that are not justified, and which could threaten our business."

I am slightly surprised that Labour Members have not had the representations, which we and Conservative Members have obviously had, from small traders who, in the main, are prepared to accept reasonable regulations, which are required for health, hygiene and safety, and who become extremely angry at the occasional over-officiousness of officials who do not have an understanding of how businesses are run, but who can nevertheless harry small businesses, which have enormous difficulty just making ends meet.

It is important—it would be preferable if we had all-party agreement on this—that we find some simple procedure to enable businesses to ask, "Is this justified? Is this within the law? If not, we should not be expected to comply with it. If it is, we will of course comply with it, and accept that enforcement procedures will follow."

It must be cheap, simple and effective. Unless the Minister can give us some assurances, we are left in a slightly difficult position as to how to handle the amendment. I would like to press it if those who tabled it are not prepared to do so. I am not sure that I can support what the Government are saying, because I do not think that they have explained how one can provide a simple system such as that being sought.

The Minister should acknowledge that there is real concern about the need to ensure simple redress that enables business men to run their businesses, know what the regulations are, and find a clear way of ensuring that officials are acting within their powers.

Mr. Jonathan Evans

I begin by thanking the hon. Member for Edinburgh, South (Mr. Griffiths) and many of my hon. Friends for the warm welcome that they gave me for my new responsibilities. I am pleased that many of my hon. Friends referred to my hon. Friend the Member for Tatton (Mr. Hamilton) and paid credit to him for all his work in the Department in relation to the deregulation initiative.

I was surprised—astonished, in fact—to hear the hon. Member for Edinburgh, South approach the amendments in such a negative way. In the other place, his noble Friend Lord Peston said: The over-zealous, unfeeling and unreasonable enforcement of statutes and orders is a matter about which one feels more than irritation … I am anxious to be supportive and to give matters a fair wind."—[Official Report, House of Lords, 11 October 1994; Vol. 557, c. 841-42.] In the circumstances, it is difficult to reconcile those remarks with the remarks that we have heard from the Opposition Front Bench this evening.

Mr. Nigel Griffiths

The Minister should concede that, when Earl Ferrers moved his amendments in the House of Lords and my noble Friend responded, he responded to a completely different set of amendments. Earl Ferrers said that people should not have the sword of Damocles of an appeal hanging over them for months on end, and that if the appeal procedures turned out to be too costly, they simply would not be used.

The Government have now had some time to come up with an alternative programme, and such a programme has been called for by the Minister's hon. Friends, but he has not been able to offer it tonight.

Mr. Evans

I have said that the amendments that I am supporting result from the pressure imposed by many of my hon. Friends. I think that the hon. Gentleman's remarks are somewhat misplaced.

The hon. Gentleman also referred to the concern expressed by the Local Authorities Committee of Trading Standards, and suggested that that body had not been specifically consulted. Let me me make it clear that we certainly intend to consult, as appropriate, when we consider the areas of legislation to which the new power should be applied. We would certainly take into account the impact on effective enforcement at that time.

But let us not forget what the new powers do. There are five powers, the first of which is to require that when, without taking formal action, an enforcement official tells a business to take some remedial action, the business should be entitled on request to a written statement making it clear what action is necessary and why. I should have thought that that was a fairly unobjectionable change in the law, and I am surprised that it should be resisted.

Second is a power to require enforcers, where they take immediate action against a business, to provide a statement as soon as practicable, explaining the reasons for the immediate action. That would apply where observance or compliance with the burden imposed would be likely to involve expenditure of a single amount. Again, given the mode of expression, I am surprised that it would be regarded as in any way objectionable.

The third power is a power to require enforcers to issue a business with a notice that they are minded to take enforcement action. The business would then be entitled to have its point of view heard and taken into account within a specified period before any formal action was taken.

Fourthly, a power is provided to require that, when formal action is taken, the business should be told exactly what rights, as contained in the relevant enactment, it has to appeal. In those circumstances, it is very important that businesses should be made aware of the grounds on which an appeal can be made, to whom it should be addressed, within what time scale, and whether the enforcement decision can be stayed upon appeal. Finally, a power should be provided to apply relevant provisions to third parties which had had a direct economic interest in an enforcement decision.

Expressed in that way, the powers to which I refer do not square with some of the remarks that we have heard from Opposition Members. The hon. Gentleman referred to the possible cost of increase in regulation; the impact on costs—both for enforcement authorities and for business—will be considered in a particular case in deciding whether to exercise the powers, but, as our proposals build on what is already included in enforcement practice, we see no reason to believe that they will impose undue costs on enforcement authorities where they are applied. The problems were sorted out earlier, and should benefit everyone.

The hon. Member for Newham, South (Mr. Spearing) suggested, in rather extreme language, that the proposals were objectionable, undemocratic and semi-fascist. I do not know whether it is the first time that those remarks have been uttered in the Chamber by the hon. Gentleman, but I doubt it. He suggested that a Minister must express an opinion. In fact, the provision to which he referred is extremely common; it is not as rare as he seemed to suggest. He will be aware that there is precedent for the fact that the courts have the power to intervene if the opinion expressed by a Minister is unreasonable.

Let me also reassure the hon. Gentleman that the powers do not allow Acts to be changed, as he seemed to indicate, except in one very minor respect, in respect to time limits.

The hon. Gentleman also described further complaints. General issues have emerged from the Government's analysis, which are relevant to enforcement of a wide range of legislation, and we want to tackle those issues. Given the diversity and complexity of existing mechanisms, it is not appropriate to superimpose new arrangements across the board. There is a need for flexibility to apply to any or all of the elements in a particular case, depending on the existing arrangements in that case and where the business is experiencing difficulty.

It has been said that the new powers are too significant to be enacted by secondary legislation.

Mr. Spearing

rose—

1.45 am
Mr. Evans

Will the hon. Gentleman allow me to address this matter first?

As I said earlier, the order-making powers can be used only to amend existing legislation in the limited respect of time limits within which proceedings must be brought. The powers will enable existing procedures to be supplemented where appropriate in ways clearly specified in the provisions, and we believe that the negative resolution procedure provides an appropriate degree of scrutiny of such provisions.

Mr. Spearing

I am sure that hon. Members will say that I am not given to extreme language. Do the words any provision made by an enactment mean what they appear to mean? I presume that the new clause 5—that is what it will be—is of the same nature as the humorous, yet not so humorous, clause 4, which does just what the Minister says. I shall enlighten him about the rather extreme remarks in a more private way afterwards if that is necessary. I hope that I am wrong about the new clause 5. I will withdraw my remarks if I am, but not in relation to the existing clause 4.

Mr. Evans

The hon. Gentleman heard what I had to say about that matter.

I am aware of the concern outlined by my hon. Friends the Members for Scarborough (Mr. Sykes), for Chingford (Mr. Duncan Smith and for Ludlow (Mr. Gill) about the effect of over-zealous regulation upon businesses. They have pressed that cause with my predecessor and myself, and I pay tribute to them for that. However, in recognising that, it is important to outline why the proposals cannot be accepted by the Government.

Amendment (a) relates to the first new power, that a written explanation of suggested remedial action should be given. That power could apply when, without taking formal action, an enforcement official tells a business that it should take some remedial action. Amendment (a) would mean that, if the power were to be applied in every case, irrespective of the circumstances, where any suggestion or observation was made by an official, it would have to be accompanied by a written statement. We do not believe that that is necessary or desirable.

In many cases, it will be clear to businesses whether they are being given advice or being told of a new legal requirement, and why the action is being suggested. In those cases, it would lead to unnecessary bureaucratic paperwork to provide that they were always provided with a written explanation. Advice is given and suggestions are frequently made by enforcement officials, and it is important that businesses should be able to obtain a written explanation when they want it. That is what the Lords amendment will provide.

My hon. Friend the Member for Scarborough has discussed this matter with me at length. He has argued strongly—the Government accept this—that it is important that, where the right applies, businesses should know that they are entitled to written clarification. I can assure the House and my hon. Friend that we intend to ensure this, through appropriate publicity and guidance material.

Amendment (b) was supported by my hon Friend the Member for Ludlow and by the hon. Member for Gordon (Mr. Bruce). I have every sympathy with the hon. Members' desire to ensure that action taken against businesses should not be disproportionate. In another place, my noble Friend Lord Vinson raised the issue of proportionality in the context of these provisions. My noble Friend the Minister for Consumer Affairs and Small Firms gave a detailed response in the other place.

The main point is that disproportionate action against business may arise for one of two reasons: either the requirements of the law may be unduly burdensome, or they may be interpreted or applied in an over-zealous or unreasonable way. Amendment (b) would cover both cases, and would provide a sweeping new power to magistrates courts. In effect, it would allow magistrates to make a clear legal requirement unenforceable because they took the view that it was a disproportionate means of maintaining any necessary protection". We do not believe that that change is desirable or necessary. In clause 1, we have already provided a means of changing or removing unduly burdensome legal provisions, subject to important and stringent safeguards as to consultation and detailed parliamentary scrutiny.

As my noble Friend Earl Ferrers explained, that power could also be used in appropriate cases to amend legislation so as to provide a dispensing power for particular cases. Clause 1 therefore already provides the means to deal with legislation that is disproportionate or that cannot be applied in a proportionate way, subject to appropriate parliamentary control, which the Government consider to be important.

The other case that amendment (b) would cover relates to a case in which a reasonable law has been interpreted or applied in an unreasonable way. It is not clear how the new appeal procedure would mesh with existing appeal mechanisms against enforcement action. Nor am I persuaded that magistrates courts would necessarily be the most appropriate forum for deciding such matters, as I told my hon. Friends the Members for Chingford and for Scarborough. The term "disproportionate" can also give rise to a variety of meanings in legal terms, as I have already explained.

Mr. Gill

Will my hon. Friend look into the files in his offices, which I am sure will reveal a letter that I wrote to his predecessor concerning a constituent of mine who was eventually driven out of business? That all stemmed from the fact that my constituent sold three T-shirts, the total value of which amounted to £6. The trading standards officer considered that they infringed the Walt Disney copyright. Other people, however, were responsible for producing the garments that were sold by my constituent, and they were not affected by the enforcement.

My hon. Friend would agree, I think, that it is unreasonable that the eventual seller of the articles should have been the one to bear the full brunt of enforcement, rather than the wholesaler or the manufacturer, who was more culpable than my constituent.

Mr. Evans

Both the House and my hon. Friend will understand that I do not intend at this hour to be drawn into a debate about that specific case, although one of the objections to putting the matter before magistrates, as proposed in amendment (b), is that it would give rise to the very inconsistency that many businesses have complained about in dealing with the way in which the rules are enforced. That is one of my objections to amendment (b).

The provisions in the Lords amendments are important. To make the rules proportionate and reasonable, which the deregulation order-making power would help us to do, is only half the battle. We must ensure that they are also fairly and properly interpreted and applied, as my hon. Friend the Member for Ludlow is asking. The provisions would help us to do that.

In the light of what I have said, I hope that my hon. Friends will feel able to withdraw their amendments. As I have said, we are most grateful to them for prompting us to consider these matters in the first place.

Question put, That this House doth agree with the Lords in the said amendment:—

The House divided: Ayes 142, Noes 43.

Division No. 333] [1.54 am
AYES
Ainsworth, Peter (East Surrey) Douglas-Hamilton, Lord James
Alexander, Richard Dover, Den
Alison, Rt Hon Michael (Selby) Duncan, Alan
Allason, Rupert (Torbay) Duncan-Smith, Iain
Amess, David Elletson, Harold
Arbuthnot, James Emery, Rt Hon Sir Peter
Arnold, Jacques (Gravesham) Evans, Jonathan (Brecon)
Atkinson, Peter (Hexham) Evans, Nigel (Ribble Valley)
Baker, Nicholas (Dorset North) Evans, Roger (Monmouth)
Baldry, Tony Fabricant, Michael
Bates, Michael Forsyth, Michael (Stirling)
Booth, Hartley Forth, Eric
Boswell, Tim Fox, Dr Liam (Woodspring)
Bottomley, Peter (Eltham) Freeman, Rt Hon Roger
Bowden, Sir Andrew French, Douglas
Bowis, John Gallie, Phil
Brandreth, Gyles Garnier, Edward
Brazier, Julian Gill, Christopher
Bright, Sir Graham Gillan, Cheryl
Brooke, Rt Hon Peter Gorst, Sir John
Browning, Mrs. Angela Greenway, Harry (Ealing N)
Burns, Simon Hague, William
Burt, Alistair Hamilton, Neil (Tatton)
Carrington, Matthew Hampson, Dr Keith
Cash, William Hawkins, Nick
Chapman, Sydney Hawksley, Warren
Clappison, James Heald, Oliver
Clifton-Brown, Geoffrey Hendry, Charles
Coe, Sebastian Hogg, Rt Hon Douglas (G'tham)
Colvin, Michael Howarth, Alan (Strat'rd-on-A)
Congdon, David Hughes, Robert G. (Harrow W)
Conway, Derek Hunt, Rt Hon David (Wirral W)
Coombs, Simon (Swindon) Jack, Michael
Cope, Rt Hon Sir John Jenkin, Bernard
Couchman, James Jessel, Toby
Day, Stephen Jones, Robert B. (W Hertfdshr)
Deva, Nirj Joseph Kirkhope, Timothy
Devlin, Tim Knapman, Roger
Knight, Greg (Derby N) Spring, Richard
Knight, Mrs Angela (Erewash) Squire, Robin (Hornchurch)
Kynoch, George (Kincardine) Steen, Anthony
Lawrence, Sir Ivan Stephen, Michael
Legg, Barry Stewart, Allan
Lidington, David Streeter, Gary
Lightbown, David Sweeney, Walter
Luff, Peter Sykes, John
Lyell, Rt Hon Sir Nicholas Tapsell, Sir Peter
MacKay, Andrew Taylor, Ian (Esher)
Maclean, David Taylor, John M. (Solihull)
Maitland, Lady Olga Temple-Morris, Peter
Malone, Gerald Thomason, Roy
Merchant, Piers Thompson, Patrick (Norwich N)
Mitchell, Andrew (Gedling) Thompson, Sir Donald (C'er V)
Mitchell, Sir David (Hants NW) Thurnham, Peter
Neubert, Sir Michael Tracey, Richard
Newton, Rt Hon Tony Twinn, Dr Ian
Norris, Steve Vaughan, Sir Gerard
Ottaway, Richard Viggers, Peter
Page, Richard Walker, Bill (N Tayside)
Pattie, Rt Hon Sir Geoffrey Waller, Gary
Pickles, Eric Wardle, Charles (Bexhill)
Porter, David (Waveney) Waterson, Nigel
Richards, Rod Watts, John
Robathan, Andrew Whittingdale, John
Roberts, Rt Hon Sir Wyn Widdecombe, Ann
Robertson, Raymond (Ab'd'n S) Wilkinson, John
Robinson, Mark (Somerton) Willetts, David
Ryder, Rt Hon Richard Wolfson, Mark
Shaw, David (Dover) Young, Rt Hon Sir George
Shepherd, Colin (Hereford)
Smith, Tim (Beaconsfield) Tellers for the Ayes:
Speed, Sir Keith Mr. Timothy Wood and
Spink, Dr Robert Mr. Bowen Wells
NOES
Barnes, Harry Kilfoyle, Peter
Beith, Rt Hon A. J. Kirkwood, Archy
Bruce, Malcolm (Gordon) Martin, Michael J. (Springburn)
Campbell, Menzies (Fife NE) McMaster, Gordon
Chidgey, David Meale, Alan
Chisholm, Malcolm Miller, Andrew
Clarke, Eric (Midlothian) Olner, William
Clelland, David Pike, Peter L.
Cox, Tom Powell, Ray (Ogmore)
Cunliffe, Lawrence Purchase, Ken
Cunningham, Jim (Covy SE) Rendel, David
Dixon, Don Salmond, Alex
Foster, Don (Bath) Skinner, Dennis
Foster, Rt Hon Derek Spearing, Nigel
Godman, Dr Norman A. Speller, John
Graham, Thomas Wallace, James
Griffiths, Nigel (Edinburgh S) Welsh, Andrew
Harvey, Nick Wicks, Malcolm
Hill, Keith (Streatham) Wilson, Brian
Hughes, Kevin (Doncaster N) Wise, Audrey
Jackson, Glenda (H'stead) Tellers for the Noes:
Jamieson, David Mr. Jim Dowd and
Jones, Nigel (Cheltenham) Mr. Dennis Turner

Question accordingly agreed to.

Subsequent Lords amendments agreed to.

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