HL Deb 27 June 1994 vol 556 cc531-46

3.8 p.m.

The Minister of State, Department of Trade and Industry (Lord Strathdyde)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Strathclyde.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord Vinson moved Amendment No. 61:

Before Clause 5, insert the following new clause:

Review of unreasonable official decisions

(".—(1) Subject to subsections (2) and (3) below, this section applies to orders or decisions made under such statutory provisions as the Secretary of State may by order prescribe.

(2) This section does not apply to any order or decision of a court or tribunal constituted under any statutory provision.

(3) Notwithstanding subsection (1) above, no statutory provision shall be prescribed by the Secretary of State if a greater burden could arise on any person as a result of it being so prescribed.

(4) Where a person carrying on any trade or business is aggrieved by any order or decision to which this section applies on the grounds that the effect of such order or decision is either—

  1. (a) to prevent him from lawfully carrying on the trade or business; or
  2. (b) to interfere materially and detrimentally with the conduct of the trade or business,
he may apply to a magistrates' court for a declaration in the terms of subsection (5) (a) below.

(5) A magistrates' court considering an application under subsection (4) above shall—

  1. (a) if it is satisfied that the order or decision to which this section applies imposes a greater burden than is reasonably necessary to achieve the objects of the statutory provision under which it is made, grant a declaration to that effect, and
  2. (b) if it is not so satisfied, refuse to grant such a declaration, and may award costs either to the applicant or to the respondent.

(6) In reaching a decision on whether to grant a declaration under subsection (5) (a) above, the court shall have regard to—

  1. (a) the scale and imminence of any risk to life, health or property,
  2. (b) the impact of any action required by the order on the viability of the trade or business,
  3. (c) the length of time for which the situation addressed by the order or decision has persisted, and
  4. (d) the extent to which action other than that prescribed by the order or decision and having less detrimental effect on the trade or business might reasonably have been taken.

(7) The effect of a grant of a declaration under subsection (5) (a) above shall be—

  1. (a) if the order or decision has come into effect, to suspend that order or decision, but without prejudice to anything done before it was suspended, and
  2. (b) if the order or decision has not come into effect, that it shall not come into effect other than in accordance with subsection (8) below.

(8) Subject to subsection (9) below, a declaration under subsection (5) (a) above shall cease to have effect—

  1. (a) at the end of the period of 14 days beginning with the date on which it is granted, or
  2. (b) on the expiry of any period prescribed either in the statutory provision under which the order or decision was made, or in any other statutory provision, for an appeal against the order or decision, 532 whichever is the later, and the relevant order or decision shall, unless it has been revoked or withdrawn, thereupon cease to be suspended, or come into effect, as the case may be.

(9) Where, within the period prescribed in subsection (8) above—

  1. (a) notice has been given of an appeal, or
  2. (b) an application for judicial review of the relevant order or decision has been made,
the relevant order or decision shall not cease to be suspended, or shall not come into effect, until the appeal or application for judicial review has been finally determined, and it shall then cease to be suspended, or come into force, only to the extent that is consistent with the determination of the appeal or the judgment of the court.

(10) An application under subsection (4) above may be made by—

  1. (a) the person to whom the order or decision is addressed, or
  2. (b) any person duly authorised by him,
and shall be made within the period of five days beginning with the date on which the person to whom the order or decision is addressed was notified of it (or was deemed by statutory provision to be notified of it).

(11) An application under subsection (4) above shall be accompanied by a fee of £200, which shall be refunded if the application is successful.

(12) A person making an application under subsection (4) above shall serve a copy, or cause a copy to be served, on the person who made the relevant order or decision, or on any officer of his, on the same day as the application is made.

(13) A magistrates' court shall consider an application for a declaration under subsection (1) above within the period of seven days beginning with the date on which it is made.

(14) Subject to subsections (12) and (13), the Secretary of State may, by regulations prescribe—

  1. (a) the form of application for a declaration under this section, and
  2. (b) the procedure to be followed by the magistrates' court on such applications.

(15) An order made under subsection (1) above, or regulations made under subsection (14), above shall be made by statutory instrument.

(16) In this section "statutory provision" means any provision in any Act of Parliament or any statutory instrument.").

The noble Lord said: With the leave of the Committee, in moving Amendment No. 61 I should also like to speak to Amendment No. 62. The deregulation Bill will, I am sure we all agree, remove much unwanted legislation from the statute book. But the fact remains that most regulation will stay in place—and quite properly too. The concern is that it should be fairly and genuinely administered.

At Second Reading I raised the problem that is caused by the misapplication of regulations and the real injustices that occur when over-zealous regulators disproportionately or unreasonably interpret the law at the point of implementation. Many noble Lords will know of this from their own direct experience and others will not have failed to come across the remarkable stories of the numerous near-lunatic regulatory conditions that are forced on the owners of small businesses.

The law rightly cannot possibly attempt to define every regulatory condition. Thus substantial discretion is very properly left to the regulatory officer who is concerned. It is consequently at that point that on occasions the law is interpreted by over-zealous officials in a manner that no legislator in his wildest dreams would have anticipated when framing the original statute.

A number of us believe that there is widespread public anxiety over the inadequacy of appeal procedures against such enforcement. While there are some appeal procedures, they are often cumbersome, slow and extremely expensive. Consequently, in practice they are hardly ever used and bad regulation goes unchallenged. It is unrealistic to expect small businesses and the proprietors thereof to go to the expense of a judicial inquiry costing many thousands of pounds quite apart from the inordinate delay. Some intermediate steps are surely needed.

Frankly, the checks and balances that the law normally has in place to see sensible conduct between two parties—as in this case between the regulator and the regulatee—do not exist. So the object of this new clause is to introduce a simple appeal procedure to give time for common sense to reassert itself.

The thinking behind this clause originated in this Chamber and was taken up in Committee in another place, where similar amendments were introduced. The Minister for deregulation welcomed the principle but wished to see whether he could find a different remedy. The new clause gives a right to any regulatee to apply to a magistrates' court for an immediate stay of a regulatory order if prima facie it appears to be unreasonable or disproportionate and there is no immediate threat to life and limb.

Perhaps I may illustrate this intention by one example. There is a well-known block of flats in London with an underground garage. The residents have quietly used that garage for the past 30 years with the full approval of the fire officer. Recently, a new fire officer has come along —who had, no doubt, just got out of bed the wrong side—and said that he will not reissue the fire licence unless immediate steps are taken to narrow the entrance to the garage to prevent double parking. The managers of the block of flats had to comply immediately with his demand, otherwise the garage would have been closed by the following Monday, which was the date of expiry of the previous approval certificate. After 30 years of use one could well ask what was the problem. Had the appeal procedures that we now advocate been in place, the proprietor could have gone at once to the local court and would, I believe, and should, have obtained a stay of that order.

More importantly, had he been able to turn to the regulatory officer and say, "Frankly, I think you're being unreasonable. I intend to take this to appeal", the chances are that the fire officer would have had second thoughts, would have realised that his conduct was indeed unreasonable and that a sensible compromise or retraction would be to everybody's advantage. Not least, much time and cost, which are eventually paid for by all of us in society, would have been saved.

We have examined alternative appeal procedures and can find none to date that offers the familiarity and speedy remedy of the magistrates' courts. They are already there, and the public and local solicitors know of them. Magistrates' courts are of course well versed in regulatory procedures. Indeed, they are already the mechanism through which enforcement orders are made. Through them justice is administered by good citizens who understand the meaning of common sense and of common sense interpretation of the law.

However, if the Government can come up with an alternative such as, for example, a regulatory ombudsman, I am sure that we would be the first to welcome it. But by using the magistrates' courts, no new appeal framework would have to be set up, though inevitably some extra workload would occur.

It is our belief that the very presence of sensible appeal procedures would broadly achieve the. better interpretation of the law that I am sure we would all wish to see. The law works best when it is not used. However, to make certain that there is no frivolous use of the courts for every minor disagreement, we suggest that the applications are accompanied by a fee of £200 which would be refundable only in the event of the court finding in favour of the applicant.

The procedures that we advocate give time for second thoughts and offer a stay of execution. We believe that they dovetail nicely in most cases into the wider pattern of appeal procedures which remain to be used after 14 days if neither party retracts. That is the background to our thinking.

Amendment No. 62 follows the same line of thinking. It puts an obligation on the regulator to advise the regulatee at the point at which any order is made of his rights under any appeal procedures. Here again, the very action of what one might call cautioning the regulatee would make the official concerned think twice before proceeding with an enforcement order which he might know in his heart of hearts was unreasonable and disproportionate.

Finally, I would like to stress that the object of these amendments is not to undermine regulation in any way but to make the interpretation of regulations by officials on the spot fairer, thus making the law better. On my own behalf and on behalf of my noble friends I commend this clause to the Committee. I beg to move.

3.15 p.m.

Lord Reay

I should like to add my voice as well as my name to these amendments, at which my noble friend Lord Vinson has worked long and hard, which he has moved very ably and which address an issue that is of paramount importance to small businesses; namely, the right to appeal against wayward or unreasonable decisions by officials. I hope that my noble friend the Minister will be able either to accept these amendments or to promise to produce his own independent appeals procedure for the next stage of the Bill.

The Government have been moving very much in the direction of Amendment No. 61. I was encouraged by what my noble friend Lord Mackay of Ardbrecknish had to say when he wound up at Second Reading, when he was able to inform the House that the deregulation unit had been asked to consider the issue as a matter of urgency. When the Under-Secretary of State for Corporate Affairs wound up the debate on the version of this amendment that was considered by another place, one of the things that he said was that the Government wished to ensure that there was a well-publicised, swift and effective complaints procedure which was easily accessible to business, and one, he added, which would not create a new bureaucracy. As my noble friend Lord Vinson has pointed out, this amendment would not create a new bureaucracy. It would use the existing system of magistrates' courts.

It may be that that would not be the best solution for all cases. Perhaps there needs to be a differentiation between the different areas of enforcement. If that is the Government's view—and my noble friend Lord Mackay of Ardbrecknish seemed to hint at that when he wound up at Second Reading—then I look forward to hearing their arguments. We have time to explore the matter thoroughly and to come up with the best solution before the Bill leaves this House in October. I would certainly not want to be a party to any new legislation that we adopted in haste and about which we could then repent at leisure—that is the besetting sin that is largely responsible for the need to bring forward much of this Bill in the first place.

This issue is important. Christopher Booker, whose dogged exposure of the oppression of businesses by regulation will be well known to many Members of the Committee, writing in the Daily Telegraph on 1lth May concluded his article by saying that an amendment such as this, has become the real acid test of whether the Government's Deregulation Bill is to have any serious purpose at all, or is just an empty charade which shows that ministers are still completely under their officials' spell". That may be going a little far in the view of some Members of the Committee. But it brings out the great need to add to the Bill an effective appeals procedure against unreasonable decisions by officials which is also affordable by small businesses. The harm done by regulations is not due just to their existence but to the manner of their enforcement. These amendments seek to provide a practical remedy.

Lord Moyne

My noble friend Lord Reay mentioned Christopher Booker. It would be relevant to read into the record of this Chamber the whole book which he wrote with Richard North, rightly called The Mad Officials. I shall not of course do so.

My noble friend Lord Vinson spoke of widespread public anxiety—a characteristically moderate phrase but a serious understatement. Outside these walls there is a gale of genuine and justified anger among some of the most economically valuable members of our society. I shall illustrate the problem by a true story which has a comparatively happy ending. The main point is to show how some of the officials themselves are deeply unhappy about the situation. My noble friend Lord Vinson may be interested to know that in this case the fire officer comes out well.

A business man whom I know wanted to open a new shop in a south coast town. He took two-storey premises which had the requisite planning permission, intending to use both floors. He applied for building regulation permission to put lavatories on the first floor. Apparently, that brought the whole building under the 1993 building control regulations which would not otherwise have applied since trading had been carried on in those premises for about 100 years.

When the building control officer visited the premises with the fire officer, he told my friend that he could not open the shop because the first floor on which the lavatories were to be put was at its furthest point slightly more than 18 metres from the exit on to the street. My friend is a lateral thinker and he put many alternative suggestions. Each time he was told that the suggestions did not comply. When he asked the building inspector outright for his suggestions, he was told, "My job is to tell you what you cannot do, not what you can do." In the end my friend came up with a solution of sorts, which was accepted; namely, that the lavatories should be on the first floor at the top of the stairs and the rest of the first floor should remain unused. That was not before further difficulty had been raised, to the effect that the door at the bottom of the stairs was a few inches more from the exit than the regulation allowed.

At this point the fire officer intervened and successfully pleaded for a minimal amount of flexibility. Later, off the record—this is the reason why I must not give any clues to identify the case but ask the Committee simply to believe me—the fire officer apologised for the building control officer's attitude and said, "Please try to put some pressure on these people to listen to us". That is what my noble friends and I are trying to do with this amendment.

As it stands, the Bill needs teeth. Our purpose is to supply them.

Lord Laing of Dunphail

I wholly support my noble friend Lord Vinson. There is a great deal of merit in these amendments. Unnecessary burdens on industry through erroneous interpretations of regulations go unchallenged because it is impossible to challenge them quickly. Also, many small and medium-sized busines-ses do not have the staff or the resources to pursue them and suffer accordingly.

Lord Peyton of Yeovil

I too would like to support very strongly the amendment moved with such commendable moderation by my noble friend and I hope that my noble friend on the Front Bench took note of it. In my view he could have expressed his admirable intentions with a little more roughness.

There is just one point that I should like to make. It is very easy for everybody to blame anonymous officials for the terrible things which take place in the process of rounding up, improving and clarifying regulations. One is tempted to ask why those regulations were not made clear in the first place. The process of adding to them is intolerable. I cannot believe that it is always officials who are to blame. I do not like to ask such an obvious question as, "What is a Minister for?", because one might get all sorts of answers. I hope very much that my noble friend will give this matter his serious attention.

Perhaps I may give just one example of the kind of thing that worries me about small businesses. Only two or three days ago I was talking to someone about a firm which had sought the help of the department. The firm is small; it is innovative; and it is a high technology business. Its achievements have received a certain amount of public notice. It is of distinction. When the firm approached the department seeking help it was told, "We are very sorry but what you want us to do is not within our guidelines". When asked, "What are your guidelines?", the answer was, "We are not at liberty to tell you that". That is what I would regard as a classically unhelpful piece of dialogue. It leaves small businesses in a state of profound discouragement.

At the time, I said that I intended to put this case to my noble friend and ask him to give it his personal attention. I knew that he was a very unusual kind of Minister and listened to what was said to him. I was confident that in due course he would take effective action. I shall shortly seek the loan of my noble friend's attention so that I can tell him the details of this case.

There is no doubt that the Government are full of good intentions. But, as so often in our experience, the good intentions are hedged round with regulations and difficulties of every kind. Somehow those good intentions are inhibited from coming to fruition. I hope that my noble friend will take a fairly brutal stick to this process and that on this occasion he will show his good intentions by accepting my noble friend's amendments. I am not at all sure that I would welcome some alternative. I feel that it would necessarily be something rather more comfortable than accepting adjudication by an independent body such as Her Majesty's courts.

My noble friend is one of the most reasonable men that I know, as well as one of the most intelligent—I am talking about my noble friend Lord Vinson. I am not at all sure that he was not just a shade too reasonable on this occasion in suggesting that he might accept an alternative. I believe that my noble friend on the Front Bench will find it very hard to better the ideas that he has put forward so cogently and with such eloquence.

Lord Cockfield

I am sorry to dissent from this chorus of approval for these amendments. I do not know whether it is an orchestrated chorus or an entirely spontaneous one. It was so well performed that a lack of prior practice seems to me to be improbable.

This is one of those areas in which a balance has to be kept between the needs of industry and the needs of the public at large. I entirely agree that many decisions are taken by official bodies which are not good decisions from the point of view of industry. Equally, those bodies take many decisions which are favourable to industry and pay insufficient regard to the wider public interest. That is particularly true in the case of planning decisions, which was the specific instance raised by my noble friend Lord Vinson. Sometimes planning decisions that are made in favour of a small business operate very much to the detriment of other people.

If business is to be given a right of appeal to the magistrates' courts I do not see why aggrieved citizens should not also be given a right of appeal against all decisions which they do not like. That was the point I tried to raise at Second Reading; that is, that the duty of the Government is not simply mindlessly to repeal every regulation to which somebody draws their attention. Their function is to hold a proper balance between the interests of industry and the interests of the public at large.

3.30 p.m.

The Earl of Onslow

The difficulty in which we find ourselves is that on occasions like this industry A says that something must be done or must not be done. It has a direct and personal interest in what happens. There is then a general feeling of, "Oh no, we don't like it", from people who have no genuine and personal interest in what happens. However, they may be founder and active members of special interest groups. It is those special interest groups which impose upon us regulation after regulation without any real balance of cost and analysis.

Of course, it is an extremely difficult balance to achieve. I understand that. And of course I understand that it may be more profitable for somebody to build a factory in my back yard which will affect me, but I do not like it. I do not want it and my interest is not exactly economic. I understand that difficulties exist, but sometimes we take too much notice of the NIMBY factor. We react to it because it is a powerfully expressed single interest lobby and we regulate for that.

We then encounter a further difficulty in that our civil servants are, above all, honest, efficient and enthusias-tic. When those three factors are combined we are: likely in the end to get "Horlicks"; but not the same "Horlicks" we get from Italian officials (I shall probably be called to order at any moment for being rude about them) or dishonest foreign civil servants who pay no attention to the regulations. Fortunately, our civil servants are extremely conscientious and the fault lies in their conscientiousness allied to single interest propositions. Somehow we must find a balance and a way through this problem.

Lord Moyne

One can be honest, enthusiastic and efficient and also be petty-minded.

Lord Northbourne

Having put my name to the amendment I must take up the time of the Chamber for one moment to try to convince Members of the Committee, in particular the noble and learned Lord, Lord Hailsham, that it is an important amendment. I suggest to the noble Lord, Lord Cockfield, and the noble Earl, Lord Onslow, that, interesting though their discussion was, it was not actually about the subject of the amendment.

The amendment concerns petty regulations applied by individual inspectors who may, perhaps because they got out of bed on the wrong side or hold a specific: view on a specific subject, unfairly impose a regulation on a business which destroys it. In those circumstances, it is important that the owner of the business can obtain some kind of relief as quickly as possible. That is what the amendment is about.

I greatly support the Government in their policy of deregulation. However, the amendment forms a modest second leg to their Bill. The first leg concerns wiping out a whole lot of unnecessary regulations, and that must be a good thing. In my view, the second leg must be to ensure that the people who implement the regulations which remain do so in a sensible and responsible way with a sense of proportionality. Most officials are sensible, responsible and have a. sense of proportionality. But a tiny proportion —naturally, as with any other human activity—make mistakes or are not so responsible. The stories circulate of those cases and I suggest that that is not only unfair to the businesses concerned, but also extremely damaging to the Government's policy—a policy we all want—of small businesses developing. Small businesses become frightened that they will be stamped upon and wiped out by a mistake.

If the Government want to be popular—I assume that that is what politics is all about—then I recommend that they take the amendment away and bring back an amendment which will have something like the same effect. It must be wrong that one official can wipe out or severely damage a business which has been built up over decades by a family or an individual. I therefore strongly support the amendment.

Lord Tordoff

One has great sympathy with what lies behind the amendment and discussions in Committee in another place made quite clear that that sympathy extended across the whole of the political spectrum. Certainly I want to place my name on record in your Lordships' Chamber as saying that this sort of petty dictatorship must be stopped and small businesses should not be subjected to the sort of foolishness suggested.

However, the suggestion that every small business somehow has a halo round its head is not always right. The regulations exist to catch the cowboys for the benefit of properly-run small businesses which are dealing properly with health, safety, planning and so forth. I am sure that there will be general agreement on that and I see Members from all sides nodding.

My criticism of the amendment is the mechanism by which it is supposed to work. I have looked at it several times and do not understand how it can work. I do not understand how the magistrates' courts can be the proper place to deal with this type of problem. For a number of years I was a magistrate in the great city of Manchester. A varied bunch of people met from time to time on the Bench and a whole range of disciplines were involved. But if on any specific day somebody from the industry in which both the noble Lord, Lord Vinson, and I were engaged—the chemical and associated industries —came before one or two of the Benches in that city I could not guarantee that the subsequent hearing would mean anything at all to the people sitting on the Bench.

That is my problem. I hope that the Government will find some mechanism, whether an ombudsman or some other arrangement, that is capable of dealing with the difficulties because they need to be dealt with. Frankly, I do not believe that the magistrates' court is the right place.

Lord Peston

I echo the remarks of the noble Lord, Lord Tordoff. I am extremely sympathetic to both the thinking and the feeling that lie behind Amendments Nos. 61 and 62. The point was extremely well put by the noble Lord, Lord Northbourne. Clearly we do not want a rogue's charter, which is what the noble Lord, Lord Tordoff, had in mind. In my view, if a business cannot survive unless it breaks the law on health, hygiene or safety, good riddance to it. That is not something to which we could be a party.

I do not believe that that is the intention of the amendment. As I interpret its intention, it is about how some officials put the regulations into practice. I agree with the noble Lord, Lord Northbourne, that only a tiny minority of businessmen may be aggrieved. But, if one is at the receiving end, to be told that one is in the minority is not much consolation. For example, the trading standards officers do a good job in difficult circumstances. But that does not mean that sometimes things do not go wrong. The problem is that a small businessman may interpret a specific regulation one way and the officials another. One tries to argue the case but the official's response may be aggressive, officious and unreasonable and he simply says, "Do it or legal proceedings will follow". One may still believe that one is right but is frightened by the thought of legal proceedings, cannot afford them anyway and gives in. The important point for the Committee to bear in mind is that in that case the businessman will feel aggrieved for many years and that is not a satisfactory state of affairs. Those are the reasons why, on the one hand, I am very sympathetic and, on the other hand, we do not want a rogue's charter. Then I come to the difficult bit: I simply do not believe that the amendment can work. For example, it does not have a clause which restricts it to small businesses, unless I have misread it; it applies to all businesses. So the case is less powerful, in a way, than it should be.

Secondly, the clause seems not to distinguish—and again the noble Lord, Lord Vinson, will perhaps take a moment to clarify this—between the merits of the regulation per se and the way that it is put into practice. I do not wish to use an amendment of this kind to undermine the regulations per se. I am concerned that if you feel that you are meeting the regulations in a perfectly sensible and effective way but it is not the way the official likes, you should have a chance to argue your case elsewhere.

I come to my final point, which the noble Lord, Lord Tordoff, has already raised. My first inclination—and I mentioned this to the noble Lord, Lord Vinson, after your Lordships' Second Reading—is that a magistrates' court does not seem to me to be the natural home for what I have in mind. If we could find the regulatory equivalent of the small claims court, which is a court that I am very keen on, I would be very much happier; or, alternatively, a regulatory ombudsman—and on looking round your Lordships' Committee I can see that it is full of excellent candidates for the job.

To summarise, I am sympathetic—and I hope that nothing that I have said will suggest that I am not. The fact that there is a minority of cases does not mean that we ought not to concern ourselves. Although I appreciate that this may be technically very difficult, I hope that the noble Lord, Lord Strathclyde, will say to the noble Lord, Lord Vinson, and his friends, "Come and see us in the department and one way or the other we shall see whether we cannot find an amendment that does the actual job you have got in mind; one which we can all support". Let me add that it is not obvious to me how to write that amendment. I am not suggesting that it is easily done. But I would certainly be unhappy if the noble Lord simply turned this down. I think there is an important consideration here which, if we can solve it, would be worth solving.

Lord Hailsham of Saint Marylebone

I hope that I am wrong in everything that I am going to say but I am going to say it. I am not going to embark upon the merits of the kind of grievances which my noble friends and others have put before the Committee; I am not qualified to do so. I simply raise two separate points about the magistracy. First of all, is it the function of the judiciary, high or low, simply to second-guess the officials who are part of the Executive? I think that is an important constitutional question which has not been addressed at all in the course of this debate. My answer is, no, it is not a judicial or justiciable question. That is my belief; it may turn out to be wrong. I hope my noble friend will either be able to answer that or will consult with our noble and learned friend the Lord Chancellor before he gives in to this particular magnet.

Secondly, of all the judicial bodies to deal with this particular grievance the last that I would choose is a magistrates' court. Magistrates' courts are already overworked to an almost unbelievable extent; they are composed of lay people who do not know anything necessarily about small businesses or what is reasonable to impose by way of a regulation inhibiting certain kinds of practices. They are courts that are designed to deal with petty criminal offences which are either proved or not proved after a judicial hearing with witnesses; they deal also with domestic disputes, and of course they have a licensing function about public houses, which are irrelevant for this purpose. The idea that you can suddenly offload onto the magistrates' courts system of this country this enormous, unmeasured and unmeasur-able burden—to try something which I do not believe even the highest judges can do except by way of a judicial review—seems to me, frankly, to initiate a nonsense. I hope that my noble friend will think very carefully before he gives into this.

3.45 p.m.

Lord Monson

I too support this pair of admirable and well thought out amendments which are designed to support commerce—including small-scale commerce —as well as industry, contrary to what the noble Lord, Lord Cockfield, seemed to suggest. I join the noble Lords, Lord Reay and Lord Moyne, in commending Mr. Christopher Booker for his tireless efforts in reminding us, week after week, of the abuses of petty officialdom.

The problems that these amendments seek to address are not trivial ones; on the contrary, they are very serious ones which cause financial misery, economic inefficiency and personal distress. It is time that we put a stop to them.

Lord Wade of Chorlton

One cannot but be delighted over the great support that there is for the need for an appeal procedure. I would like to draw the attention of my noble friend Lord Cobham to the fact that, although these laws are created to make a balance, the balance is now getting out of the picture. Clearly there are many more forces in society making it much more difficult for the right businesses and certain things to develop. We need to get that balance back. I hope that my noble friend will take on board the clear demand of the Committee for some kind of appeal procedure to be set up which can be fair to all sides and which would give an opportunity for small businesses in particular to become effective very rapidly. More importantly, we need to get a balanced view on regulations throughout the country. Fire regulations can vary from area to area and it is impossible to know from one minute to the next what the regulations are. An appeal procedure would have the impact surely of at least levelling out the procedures throughout the country and balancing certain regulations.

I hope that my noble friend will take the view of the noble Lord, Lord Peston, and that we can sit down together over the period before the Report stage and come to a sensible agreement—an agreement which will appeal also to the other place—in which clearly a. similar view is held. I very much support such a. proposal.

Lord Strathclyde

I am genuinely grateful to my noble friend Lord Vinson and other noble Lords for putting forward these amendments and giving us the opportunity to debate them. What is well known to the Committee is that I spend a great deal of time before your Lordships at this Dispatch Box; what is perhaps less well known is that I also spend a great deal of time travelling the country and visiting many businesses, particularly small firms. It is true that one of their overriding concerns is the interpretation, implementa-tion and enforcement of rules and regulations, which they do not feel are dealt with in a fair, reasonable, or proportional manner. That is what is at the heart of this debate.

It is one thing to look to remove or lessen unnecessary burdens, as Clause 1 of the Bill does; it is quite another to ensure that where regulation is justified it is enforced in a fair, open and reasonable manner. I would say to my noble friend Lord Cockfield that what is at the heart of the Bill is not a mindless repeal of legislation—which I think were the words that he used —but rather the surgical operation that has been done by my noble friend Lord Sainsbury of Preston Candover to make sure that the burdens that exist on business are genuinely necessary—and of course Parliament will eventually be able to make its mind up on that.

My noble friend Lord Peyton came in with a defence of officials and civil servants—and quite rightly. He asked the question, "What are Ministers for?" I am sure that he is much better able to answer that than I am. What is important in this debate is to make sure that we get to the right solution, which is why I am grateful to my noble and learned friend Lord Hailsham for his words.

At the heart of the new clause is the concern that any official decision that imposes a burden should be capable of being challenged and, if found to be unreasonable or arbitrary, overturned. Deregulation is as much about ensuring that right decisions are taken as about abolishing unnecessary ones. I therefore have every sympathy with the objectives behind the new clause—the ability, as my noble friend Lord Vinson says, for common sense to reassert itself. An ability to appeal in itself provides a powerful discipline on those making decisions; they can be called to account and made to justify actions they have taken.

It is, however, important for there to be proper procedures at each stage where enforcers and businesses are in contact and for complaints to be dealt with effectively before they even reach the stage of a formal appeal. This is the approach that the Government are already pursuing. We are encouraging regulators to balance the cost of compliance with the objectives to be achieved; we are working to improve contacts and to create a much better understanding on both sides—by businesses and by enforcers—of why regulation is justified and how best to comply with it. There are a growing number of local business partnerships to that end along with the promotion of a code of conduct and improved and simplified guidance for business.

The new clause seeks to provide a single appeals mechanism via the magistrates' court to overturn any unreasonably burdensome decision. Since this issue was first raised in another place we have been investigating carefully the option of a legislative solution and in particular the issues raised by the kind of single appeals mechanism envisaged by the new clause. I have to report that our work is not yet complete.

The area of appeals mechanisms and complaint procedures is complex. There already exists a wide range of appeals and complaint procedures. Appeals are dealt with in all manner of ways. Some already go to magistrates' courts; others to the High Court. There are also appeals to Secretaries of State, industrial tribunals, inspectors, commissioners and, of course, the ombud-sman. I accept that the multiplicity of appeals processes may in itself be a criticism, but there are many different statutes and many different types of decision ranging from straightforward assessment of facts to highly technical judgments about the possible consequences of industrial processes for health and the environment. Different approaches to the handling of appeals involving specialised fora may well be the most efficient means of providing effective redress rather than a single mechanism as envisaged by the clause.

In Amendment No. 62 my noble friend Lord Vinson has included a requirement that when an enforcement decision is taken the business affected must be made aware of the appeal mechanism available. From the work we have already done we know that this is a feature of some existing systems and one which is appreciated by business. I can assure my noble friend and others who spoke in favour of the amendment that we share the objective of providing efficient and effective appeal mechanisms along with proper complaint handling procedures. What I would like to suggest is that the Committee agrees to allow the Government to complete their analysis of this complex issue and, working with the deregulation task force, to come forward with proposals which address the concerns expressed in the best way possible.

I think that is the best way to go forward with some of the criticisms that have been made today and perhaps to deal with the argument raised by my noble friend Lord Cockfield that our role should be a proper balance between industry and the public interest at large. We still have a great deal of work to do. Fortunately, we also have a reasonable amount of time in which to do it. I hope that by the time we return to this issue at Report we will be able to have a much better informed debate.

Lord Vinson

I am extremely grateful to the many noble Lords who have spoken in favour of the principle behind the amendment. It was largely a probing amendment to try to get the debate given wider coverage and to try to find the best route. I am deeply heartened by the acceptance that there is a problem out there— except, that is, by the noble Lord, Lord Cockfield, who perhaps throughout his life has been what one might call the arch-regulator. I am sorry that there was no deathbed repentance in saying that the gentleman from Whitehall perhaps does not always know best. Leaving that aside, I am very reassured by the Minister's statement. I take the full value of his word that he will come back to the issue at Report. Certainly, many eyes will be watching him and many ears will be listening to see that he does.

Lord Peyton of Yeovil

I am most grateful to my noble friend for giving way. I hope that he will take this very valuable opportunity to press my noble friend on the Front Bench to give a firm undertaking to produce a proposal from the Government before the next stage of the Bill is reached.

Lord Cockfield

I do not know whether my noble friend Lord Vinson has finished or whether I am merely interrupting or speaking again, as I am entitled to do. I avoided replying to the noble Lord, Lord Northbourne, who also attacked me on the ground that I did not understand his amendment. The trouble is that I understand his amendment only too well. Equally, as far as concerns the noble Lord, Lord Vinson, I spent 15 years in industry and probably know just as much about it as he ever did. What I am saying is perfectly valid. The Government have a balance to make. We all know that regulations dealing with health, safety, the environment, consumer protection and so on affect not only businesses but members of the public as well. The Government need to remember, if only in a political context, that it is members of the public who at the end of the day vote for them.

Lord Hailsham of Saint Marylebone

Or against them.

Lord Cockfield

Or against them, as is the case at present. I accept my noble and learned friend's correction on that. I am saying no more than that a proper balance has to be kept. Of course there are instances where officials do stupid things. There are instances where officials do things that cannot be defended. There are also instances where officials fail to take into account the wider public interest. That is the point I am making: no more and certainly no less.

Lord Vinson

I am sure that there is more that unites my noble friend and I than divides us. He will recall that I went out of my way in introducing the amendment to say that behind it stood the desire to make the law work better. I am sure that that motivates us all.

Lord Peston

Before the noble Lord tells us what he is going to do, did I mishear the noble Lord, Lord Strathclyde? Apart from the deregulation task force, did he say that he would talk to the noble Lord, Lord Vinson, and his friends before coming back to us? Did I hear him give that assurance?

Lord Strathclyde

I hope that the noble Lord, Lord Peston, knows the way I like to do business. I am delighted to speak to him, to my noble friend and to anyone else who wishes to discuss the matter with me.

Lord Vinson

On behalf of my noble friends here and, I hope, on the other side, perhaps I may say that we shall look forward to these extremely constructive discussions. I do not want to run over the arguments again. I think that we are being led broadly to a solution. What I would like to hear from the Minister is perhaps a more forthright and categoric assurance that these issues will be addressed with a view to bringing forward a solution, which I accept may well be better than the one put forward, which will give quick recourse. There is out there in the wide world of the administration of regulations considerable injustice. Something needs to be done about it.

Lord Strathclyde

I said at the outset that I understood very clearly what the problem is. The debate we have had demonstrates that it is not the problem which is in doubt: it is the solution. That is why the Government are currently carrying out an urgent exercise on the whole manner of appeals procedures, some of which I mentioned. I said at the end that the Government would be looking to come forward with proposals. What I cannot confirm to my noble friend is that those proposals will necessarily be legislative proposals or proposals that would fit under the Bill. They may be or they may not be. What is important is to solve the problem so that the people who are being regulated at least feel that that regulation is being carried out in a fair-minded way.

Lord Peyton of Yeovil

Perhaps I may intervene again to ask my noble friend to go a little further than that. Will he at least give an undertaking to come forward at Report stage with a statement of the position that has been reached by the Government showing that he is really minded to deal with the problem and knows how to do so?

Lord Strathclyde

My noble friend Lord Peyton will perhaps be surprised to hear that I am not at all concerned about being pressed on this matter. I shall be delighted, if I am given the opportunity at Report stage, to honour that and to make a commitment that I shall come forward with a statement explaining exactly where we stand.

Lord Vinson

In view of those very positive assurances it would not be right to divide the Committee. I am sure that we shall have the opportunity at Report stage to readdress the matter and to weigh up the substance of the Minister's suggestions. In view of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 62 not moved.]

Viscount Goschen

This may be a convenient time to take the Statement. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.