Provision of Services Regulations 2009

My Lords, I thank all those who have contributed to this fascinating but somewhat complex and technical debate. I cannot guarantee that I shall answer every question precisely but I will ensure that, if I do not do so today orally, I will cover every point in writing. I think that the noble Lord, Lord De Mauley, will agree that he posed a significant number of questions. However, with the assistance of those sitting behind me, I shall do my best. I was asked whether other countries’ points of single contact will be ready by the deadline of 28 December. We know that plans for PSCs are well advanced in some other member states, including key UK markets such as Spain, the Netherlands and parts of Germany. Some other states appear less advanced according to the Commission. However, all EEA states are committed to introducing a PSC and the UK will continue to work to encourage progress. I was asked whether other points of single contact would include English as a language. Some countries—for example, the Netherlands and Denmark—made a commitment to provide material in English, but not all countries have done so at this stage. Another question was whether the UK has been working with other Governments on the development of the points of single contact? We have actively participated in Commission-led implementation working groups and in a number of bilaterals, and we co-sponsored two EU-wide events for PSC experts and advisers across Europe in November 2008 and in 2009. I was asked about implementation in other member states and mutual evaluation. All member states are working to the same implementation date, making legislation in accordance with their own parliamentary procedures. As I said, plans for the points of single contact are well advanced in some other member states, including key UK markets such as Spain, the Netherlands and parts of Germany. In some others, arrangements will take a little longer. The UK will continue to work to support implementation at the European level. I was asked what we are doing to ensure that other member states implement effectively. In terms of direct interaction with other member states, the UK has played a leading role in developing effective points of single contact, and early in the implementation process we encouraged other member states to develop PSCs which cater for business needs. We organised two events for PSC experts to share best practice, co-funded the development of a common branding for PSCs across Europe—the EUGO brand—and provided a website. Lastly, we have pushed other member states to consider promoting PSCs both nationally and across Europe. We continue to stress the importance of the full implementation of the services directive in other member states in meetings at EU level. In the six months after implementation, the first half of 2010, member states and the Commission will evaluate how far barriers to the setting up or carrying on of the business have been reduced, and a consistent approach is encouraged across the EEA. The UK is working with her European counterparts to ensure that the process is transparent and effective, while the Commission will report the outcome of mutual evaluation to the European Parliament and Council. The noble Lord, Lord De Mauley, asked why the information provisions are being extended to non-EEA providers. By applying the information provisions to all those providing a service in the UK, we are aiming to ensure a high quality of services for consumers and, in particular, to ensure that they have access to a minimum amount of information about the complaints procedure whomever they buy services from. We also want to avoid creating parallel regimes for service providers depending on where they are established. On the question of conflict, when requirements on competent authorities do not apply, Article 3 of the services directive concerns the relationship with the provisions of other Community law. We have not copied out the wording from Article 3 in our regulations as it does not provide sufficient legal certainty, not least because the term "conflict" is open to interpretation. Regulation 6 has been drafted so as to transpose our understanding of a conflict in order to provide legal certainty. Our understanding is that a conflict will occur whenever a requirement in the services directive and a requirement in another Community instrument contradict each other to the extent that it is impossible to comply with both. This interpretation is consistent with guidance on the implementation of the services directive published by the European Commission, and it is a principle of Community law that exceptions in Community legislation must be strictly construed. Regulation 6 therefore requires a competent authority to do whatever is necessary to comply with the requirements in Parts 2 to 6 of the provision of services regulations and a requirement derived from another Community instrument. It will often be possible to comply with both requirements by taking a single action, such as complying with the stricter of the two requirements in order to ensure compliance with both. However, if it is not possible to comply with both, the requirement deriving from the other Community instrument will prevail. The question arose of why the definition of a "regulated profession" differs from that of the EU professional qualifications directive. Regulation 4 is consistent with how the UK has transposed the Professional Qualifications Directive 2005/36/EC. There is a distinction between the two categories of professional bodies as reflected in the directive, and Regulation 4 makes this distinction clearer. The requirement to pay for an application online was described as a stealth tax, but that is not the case. Many applications already need to be accompanied by a fee. It would be less helpful to businesses if they could apply electronically but then had to post the fee. I was asked why the drafting of vexatious complaints does not include those which are frivolous or totally without merit. Regulation 12(2) states: ""Paragraph (1)(b) does not apply to complaints that are vexatious"." That is, service providers do not have to find a satisfactory solution to complaints that are vexatious, although they do have to respond to them. The term "vexatious complaints" covers frivolous complaints, so we thought there was no need to provide further wording in the drafting. We have set out clearly in the guidance that vexatious complaints may include complaints that are unsubstantiated or malicious. I was asked about the role of Scottish Ministers in relation to the provision of a point of single contact. The Secretary of State and the Commissioners for Revenue and Customs must jointly provide a facility which will become the point of single contact. I am not clear about their role, so I shall cover it in writing as well; my apologies for that. What is the role of devolved Administrations in the obligation in Part 7 for information to be provided to the Secretary of State by competent authorities? The obligation under Regulations 36 and 38 relate only to the Secretary of State. The interpretation provision does not make reference to Scottish Ministers. In line with their equivalents in Northern Ireland and Wales, Scottish Ministers have agreed to have a single UK point of contact. It is therefore sufficient that the information specified is provided to the Secretary of State. The noble Lord, Lord Lucas, raised the question of pedlars. The provisions were included in the draft regulations which my department made available for comment in May and June. My department notified the pedlar community of the proposals on the day that the draft regulations were published. Although some interest was generated and some questions were raised, no changes to the provisions were requested. My department will shortly consult on the future of pedlar legislation. The possibility of introducing a replacement scheme for pedlars solely of services which would be compliant with the services directive is addressed in that document. However, although it is difficult to ascertain, we believe there are very few pedlars solely of services and, as this regulation lifts a requirement on them, it seems unlikely that a replacement scheme is likely to attract much support. On the possibility of criminalisation, we would say absolutely not. The regulations will ensure that pedlars who trade solely in services will no longer have to apply for a pedlars certificate. Street trader licences apply to traders in articles; for example, traders in markets or fixed pitches. The regulations will not require pedlars of services to comply with the street trading regime. The regulations propose to amend the Pedlars Act 1871 by removing the requirement for pedlars solely of services to be certified. The services directive requires EU states to remove any authorisation schemes which cannot be justified as non-discriminatory, proportionate and necessary on carefully defined grounds such as public safety and public security. In the Government’s view, the pedlar certification scheme amounts to an authorisation scheme, which cannot easily be justified on these criteria. The changes will affect only a very restricted class of trader: pedlars who trade solely in services. The majority of pedlars in the UK who trade in goods will remain unaffected by the changes. I hope that I have satisfied most of the concerns of the noble Lord, Lord Lucas. If he has any further concerns, no doubt he would be happy to address them in writing and we would try to respond further. Noble Lords asked what the Government are doing to ensure that businesses are aware of the benefits and obligations in the regulations. We are carrying out a major communications drive to raise general awareness of the directive among businesses. It is of the utmost importance that we tell them about the benefits that will be available to them. If they are not aware, the resulting benefits will not accrue to the UK economy. Our communications work involves a range of different channels. They include: attendance and presentations at conferences and business events; distributing messages via business organisations and trade associations; media features; and website and electronic communications. We are working closely with all the usual suspects; that is, the Federation of Small Businesses, the CBI and the British Chambers of Commerce—we are thankful for their continued support and efforts. In September, we emailed information packs to around 3,000 small businesses and a wide range of service providers via trade associations. We have specifically targeted 145 relevant trade associations and started to place articles in their sector press, some of which has a readership of tens of thousands. We have published detailed guidance on the regulations for business, available on the BIS website. We appreciate that there is a need for shorter guidance for small businesses. We have distributed flyers which summarise what the directive means for business, and the FSB has asked us to work with it to help produce its own short, snappy guidance for small businesses. We will continue to deliver messages about the benefits to business as much as possible over the coming months through speeches, events and media articles. I think that we ought to take away the idea about VAT. I do not feel capable of responding yea or nay to that. However, we will take it away and respond in writing to the noble Lord, Lord Lucas. I doubt that I have covered every question, certainly not all those raised by the noble Lord, Lord De Mauley, but we will respond in writing. We will carefully scrutinise Hansard so that we respond to the right things. I thank noble Lords for giving their time to the consideration of this draft instrument. I apologise for the length of my reply, but I emphasise the benefits and opportunities that these regulations will bring to businesses in the UK. I hope that they will go some way to help to boost the UK economy at a time when that is greatly needed. I commend the regulations to the Committee.