Regulatory Enforcement and Sanctions Act 2008 (Amendment to Schedule 3) (England) Order 2021

Secondly, I will explain why Part 2A, as it applies in England, needs to be added to Schedule 3 to RESA. As noble Lords have heard, the order effects the inclusion of Part 2A in the primary authority scheme. To be within scope of the scheme, legislation must be listed in Schedule 3 to RESA, or be made under legislation listed in Schedule 3, or under Section 2(2) of the European Communities Act 1972. It must relate to certain specified matters and be enforced by local authorities. RESA requires any amendments to Schedule 3 to be made using the draft affirmative procedure for statutory instruments.

If Part 2A is not added to Schedule 3 of RESA, it would be necessary to amend Schedule 3 on an individual basis to bring each regulation made under Part 2A within scope of the scheme. This would delay the provision of primary authority advice at the time of a public health emergency. In contrast, by bringing Part 2A and regulations made under it within the scope of the scheme, businesses in England will be able to obtain primary authority advice on compliance with public health regulations from the outset of a public health emergency.

Thirdly, I will briefly describe the primary authority scheme. This was established under RESA and has been in operation since 2009. It was created in response to the Hampton report of 2005, which noted widespread inconsistencies of regulatory interpretation between different local authorities. RESA establishes a statutory framework for a business to form a partnership with a local authority—which becomes the primary authority—for it to receive support from that primary authority in respect of complying with regulations introduced under a relevant enactment. Once a partnership has been nominated by the Secretary of State, the primary authority can issue tailored advice to the business on compliance with legislation in scope of the scheme. The receipt of primary authority advice enables businesses to avoid the cost and regulatory burden associated with inconsistent interpretation and application of the law by different local authorities in respect of the same regulatory requirements.

Where a local authority is proposing to take enforcement action against a business, the primary authority will review the proposed action and consider whether it is consistent with previous primary authority advice. In the event of any disagreement between the primary authority and a local authority over whether the proposed enforcement action is consistent with the original primary authority advice, the Secretary of State is empowered to make a determination.

There are many benefits to the scheme. Primary authority partnerships facilitate a more productive and proactive regulatory relationship between businesses and local authorities. The public also benefit when businesses properly comply with regulations. There are benefits for local authorities as well. If one local authority—the primary authority—provides a business with robust, reliable and consistent advice, it will allow other local authorities to target their resources more effectively, thereby avoiding duplication. Transparency is maintained via a central register through which local authorities can search for primary authority advice. Finally, the scheme gives regulators greater clarity as to where responsibility lies. It improves the consistency of local regulation and supports local economic growth through stronger business relationships.

Finally, let me highlight that there has been strong support among business stakeholders, local authorities and trade associations for the addition of Part 2A to Schedule 3 to RESA. The challenges that local authorities recently experienced in interpreting, at pace, regulations made under Part 2A to reduce the impact of the Covid-19 pandemic, and the associated burdens experienced by businesses in trying to comply with these differing interpretations, led to calls for Part 2A to be brought within scope of the scheme. For example, in November 2020 the British Retail Consortium, which represents over 170 major retailers, wrote to the then Business Secretary, Alok Sharma, requesting that Part 2A be brought within scope. This was in the context that in 2020 approximately 46,000 businesses with an existing primary authority partnership received informal advice on coronavirus regulations made under Part 2A.

In conclusion, we are introducing this order to bring Part 2A, as it applies in England, within scope of the scheme. As I have said, the aim is to ensure that businesses in England will be able to obtain primary authority advice on compliance with regulations made under Part 2A from the outset of any future public health emergency. Due to the Covid-19 pandemic, which is unfortunately unlikely to be the last public health emergency this country will face, there is strong recognition among business stakeholders, local authorities and trade associations of the benefit of bringing Part 2A within scope of the scheme. I therefore commend this order to the Committee.

The Welsh Government have apparently decided not to apply this statutory instrument to Wales. The First Minister of Wales declined to consent to the amendment in July 2021. Can the Minister explain why, and what type of engagement took place with the Welsh Minister?

The Explanatory Memorandum revealed this:

“The impact on business, charities or voluntary bodies is an expected net benefit to business in England of approximately £20.9 m over 2021 to 2030.”

Can the Minister provide some clarity on how that benefit is expected to be shared between large businesses, SMEs and charities? I look forward to his reply.

The noble Lord asked for clarity on the benefit between large and small businesses. All businesses receive consistent, assured advice, and SMEs do not have to pay for costly legal interpretations. Small businesses may also join a co-ordinated partnership and receive the benefits of primary authority advice in that way. The primary authority scheme is voluntary; obviously, businesses will participate only if they consider that doing so will benefit them.

In supporting this order, we support businesses being in a better position to understand and comply with regulations enacted during a public health emergency. With thanks to the noble Lord, Lord Lennie, for the sole contribution, I commend this order to the Committee.