53: Clause 38, page 16, line 38, leave out from “amount” to end of line 39
The noble Baroness said: My Lords, Amendment No. 53 would remove a regulator’s ability to calculate fixed monetary penalties by reference to “prescribed” criteria, and is similar to Amendment No. 112 moved by the noble Lord, Lord De Mauley, in Grand Committee. The reference to prescribed criteria caused some confusion when the issue was debated in Committee, and on reflection we accept that the provision could overcomplicate the sanction and are happy to remove it.
The amendment would mean that fixed monetary penalties would simply be of a prescribed amount or amounts, set out in the order made under Part 3. That process will be transparent, as the level of penalty will be specified in both the order and the penalty guidance that the regulator will be required to publish under Clause 62. That will still allow fixed monetary penalties to be set at different levels if appropriate. For example, a sole trader may be given a £50 penalty, whereas a company might receive a £100 penalty, or the penalty for carrying out an activity without a licence may be £50 for one week or £100 for two weeks. I beg to move.
My Lords, I am grateful to the Minister for her brief explanation of government Amendment No. 53, with which are linked seven other government amendments. I am still fairly new to this House, as is she. I had expected that, rather than come back to them, the procedure would be that she would speak to all the government amendments. Perhaps there could be a little clarification from the noble Lord, Lord Bach.
My Lords, I shall do my best to explain. The noble Baroness has done what is quite normal on a grouping of this kind, with a government amendment at the start but an opposition amendment from another noble Lord as part of the group. The Minister will move the first amendment and then the other noble Lord can move his amendment. The Minister will then come back to debate the noble Lord’s amendment and speak to her other government amendments at that time. I hope that that is satisfactory.
My Lords, I am most grateful for the clarification; I can certainly live with that.
My amendment deals with the question of the maximum penalty. What is suggested is the maximum available in the magistrates’ court. The noble Baroness will clarify it for me; I apologise, as I forget at the moment, but I think that the maximum in the magistrates’ court is £5,000, but it could be £3,500. Oh! It seems that £5,000 is correct; I am most grateful. I suggest that the figure should be half the maximum. The amendment gives me an opportunity to raise the important question of how many different levels of fixed penalty the Government have in mind. When I asked this earlier on Report and in Grand Committee, the Government said that they had not thought it through yet but that there might be two—one for a rich business and one for an individual. I said, “Supposing it’s a rich individual and a small business”, and the Government said that they had not thought that through, which they plainly have not.
The noble Baroness has given us two extremely modest penalties, which in one way is encouraging. However, if the Government have in mind penalties of £50 or £100—£50 a week can be a darn sight more frightening if you have been trading without a licence without realising it for six months—that needs some explanation. Why do they need £5,000 as a maximum for fixed penalties? We are pretty used to quite small fixed penalties in this country; we have learnt to live with them in straightforward cases such as parking. The Government keep saying, “This is not tick-box”. So the Government have abolished criteria because they could not think what the criteria ought to be. They were asked about them and it was plain that they had not thought of any sensible criteria. I could have thought of some criteria, but, anyway, they decided to throw up their hands and surrender on that one. Now they are congratulating themselves on removing it; but that leaves the practical question just as much in evidence, because the Government have proposed a range of £5,000 and we do not have a clue as to how they think the statutory instruments, when they eventually come through, will be worded and what they will provide.
However, I am probably being totally unjust and I look forward to hearing what the noble Baroness says to elucidate this point. I shall sit down now, because I believe that I shall be able to speak to, or at least comment on, some government amendments later.
My Lords, I would never accuse the noble and learned Lord of being unjust, but perhaps I may clarify the matter. We understand the concerns that have been raised, and we have, of course, already taken steps to limit fixed monetary penalties. In Committee, we moved an amendment to cap the level of fixed monetary penalties, so that they cannot exceed the maximum fine available in the magistrates’ courts, as the noble and learned Lord said. We have also proposed simplifying the process for fixed monetary penalties, which will now simply be set at a prescribed amount or amounts.
The effect of Amendment No. 54 would be to cap fixed monetary penalties in most instances at a maximum of £2,500, as there are some exceptions to the £5,000 limit in magistrates’ courts. Setting a cap at this level would be an entirely arbitrary limit on the penalty, and I am not sure why the noble and learned Lord has proposed a cap at half the magistrates’ courts maximum, not a quarter or three-quarters. Also, this would unnecessarily limit the flexibility and effectiveness of the new powers.
My Lords, the limit that would be set by Amendment No. 54 appears to be regardless of sector. For example, some offences within the scope of Part 3 relate to failure to hold a permit. In the environmental field, this fee could be as high as £3,000. Some offences of this kind might in future be dealt with by means of a civil sanction. However, the noble and learned Lord’s amendment would preclude the use of a fixed monetary penalty altogether, as the Minister would be unable to prescribe a fixed monetary penalty at a level that reflected the benefit that a business might accrue in not obtaining a permit.
We have also tried to design the measures in Part 3 so that there are no perverse incentives for regulators to pursue a particular course of action. Restricting the level of fixed monetary penalties could upset that balance. It could, for example, encourage the regulator to pursue criminal prosecutions instead of imposing a civil sanction, given that the fine in the courts could be double the level of the fixed monetary penalty.
I understand the concerns of the noble and learned Lord regarding proportionality. I should stress that the Bill simply sets a maximum level for fixed monetary penalties. It will be the order made under Part 3 that sets the actual levels of fixed monetary penalties for a particular offence and clearly this will not be set at the maximum level in every case. At this point, we should not arbitrarily restrict the ability of Ministers to set fixed monetary penalties at an appropriate level so as to provide an effective deterrent.
The noble and learned Lord asked about the various levels at which fixed monetary penalties could be set. As the noble and learned Lord knows, the Bill is enabling legislation and applies to a wide range of regulators and regulatory offences in a wide range of circumstances for a wide range of sectors. As I mentioned earlier, in the environmental field, the fixed monetary penalty may have to be as high as £3,000 to reflect the benefit gained by not obtaining a permit. We would expect most fixed monetary penalties to be much lower. It should be noted that the Minister must set out in the order the penalty amount for each offence and must consult before making that order. It will, of course, be subject to the affirmative resolution procedure and, no doubt, the noble and learned Lord will have views to express at that time. Parliament will, therefore, have the ultimate say on whether the penalties for a particular regime are set at the right level. It is not accurate to suggest that they will be set arbitrarily at varying and different types of levels. The fixed monetary penalties will have to be appropriate and will be debated and set in order, with the relevant sectors and businesses in mind.
My Lords, I thank the noble Baroness and the noble Lord, Lord Bach, for seeking to achieve a consensus on fixed monetary penalties, which we discussed at some length in Grand Committee and which are the subjects of Amendments Nos. 56, 57 and 58. It will be my purpose formally to move Amendment No. 56, to support the government Amendment No. 57, and not to move Amendment No. 58. The effects of those amendments are that people will now have a right to make representations before a fixed penalty is imposed, and that will now be in the Bill. It will require the regulators to serve a notice of intent before imposing a fixed monetary penalty and to allow the implicated party to make written representations and objections to the regulator. Government Amendment No. 57 meets all the concerns that were expressed by your Lordships’ Select Committee on the Constitution. I am extremely grateful for that.
My Lords, I welcome the Government’s support for Amendment No. 56. I also welcome government Amendment No. 53, although my noble and learned friend Lord Lyell’s important question seemed to lead to an answer from the Minister that revealed that there would be multiple maxima for the fixed penalty, dependent upon the sector. That seems to raise more questions than it answers.
I welcome also government Amendment No. 57, which seems to achieve a similar outcome to what we were driving at in the amendment of my noble friend Lord Goodlad and other amendments that we tabled in Committee. In our view, when a regulator decides to impose a penalty, the defendant should have an opportunity to make representations as an innocent party. The penalty should not already have been imposed.
My Lords, I thank in particular the noble Lord, Lord Goodlad, for raising this important issue and for his amendments that have improved the Bill. We understand the concerns that the noble Lord and others have expressed about the fairness of the procedure for imposing fixed monetary penalties. We are happy to accept Amendment No. 56.
I wish to talk further on Amendment No. 57. The amendment and Amendment No. 58 would add a notice-of-intent stage to the procedure for imposing fixed monetary penalties and would allow a person an opportunity to make representations before the final penalty can be imposed. We believe that this addresses the concerns about procedural fairness that the noble Lord and others have raised.
Amendment No. 57 is, however, slightly different from Amendment No. 58. In particular, Amendment No. 57 would allow a business to discharge its liability after the notice of intent has been served by paying a discharge payment of a prescribed amount straight away, without the need for going through the procedural stages of representations and final notice. Where a business admits liability, we believe that it should be allowed to discharge its liability as soon as possible, without the need to go through the whole process.
If a person chooses not to pay the discharge payment because he challenges the proposed imposition of the penalty, he will go on to make representations and objections against the sanction to the regulator. Obviously, if the regulator still thinks that person is liable to a fixed monetary penalty, it will impose it by way of a final notice. The person can appeal against the fixed monetary penalty by going to a tribunal and arguing that the decision was based on an error of fact, was wrong in law or was unreasonable. I would stress that this procedure is fully compliant with our obligations under Article 6 of the European Convention on Human Rights.
The discharge payment will be set out in the order and could be the same amount as the penalty or set at a lower rate to reflect the procedural savings of an early admission of liability. Similarly, a person may not have to pay the full penalty when a fixed monetary penalty is imposed by final notice, as the regulator could offer an early payment discount under the power in Clause 51(1)(a). Both provisions could encourage early compliance.
The level of discharge payment or any early payment discount will be set out in the order made under Part 3 and subject to the affirmative resolution procedure.
The other main distinction between our amendments and those in the name of the noble Lord, Lord Goodlad, relates to time limits. A person in receipt of a notice of intent to impose a fixed monetary penalty will have 28 days to make representations and objections to the sanction or pay a discharge payment. Amendment No. 57 sets out this time limit and therefore addresses the concerns expressed in Grand Committee on 30 January by the noble Lord, Lord Cope, during debate of his Amendment No. 125, which at the time we agreed to consider further.
Finally, I should like to speak to Amendments Nos. 61, 70, 83, 92, 93 and 95. These are simply consequential amendments that flow from the changes in Amendments Nos. 56 and 57. Amendments Nos. 92 and 93 clarify the suspension provisions in Clause 66, taking account of the fact that both fixed monetary penalties and discretionary requirements will now be subject to a notice of intent.
I hope that what I have said has reassured the noble and learned Lord about Amendment No. 54 and that he now feels able not to press it.
My Lords, all amendments can be spoken to in the order in which they come in the Marshalled List. The fact that they happen to be grouped together is entirely for the convenience of the House, but all amendments can be spoken to one at a time in the order in which they appear on the Marshalled List.
On Question, amendment agreed to.
[Amendment No. 54 not moved.]
55: Leave out Clause 38
The noble and learned Lord said: My Lords, Amendments Nos. 55, 60 and 63 follow over from the late session that we had on our first day on Report. I have the right and should like to say one or two things of general importance in answer to the Minister. I appreciate that the Minister was under great pressure and we sat until after 10 o’clock on that occasion. If I had gone on, we would not have finished until after 11 o’clock, but that might not have been popular. I shall not be nearly so long on this now.
I thank the Minister for the second paragraph of her reply to our debate on Wednesday 19 March, at col. 355, and her offer to write to me in answer to the questions and to have further discussion on points of fact. This is terribly important to the progress of the Bill. The discussions on points of fact will be illuminating all round, but the facts may well demonstrate that there will be wisdom in amending the Bill by taking away the draconian powers that are currently being given to tens of thousands of regulators—I have made that point in some detail—and focusing attention on something that can be done and with which I have some sympathy, in a measured and proportionate way.
Proportionality is rightly mentioned as one of the principles of the Bill but, as those who have been following it will notice, it also includes—this is constantly mentioned in the background literature—the need to capture benefit to wrongdoers. That is all very well. There will be some occasions when it is utterly right to capture the benefit to those who have broken regulations and done wicked things—for example, dumping toxic waste, as in the case given by the noble Lord, Lord Jones of Birmingham, to illustrate what we have in mind. I have asked—I am still waiting to hear—what the Crown Court was told by the prosecutor in that case. I strongly suspect that the low penalty in the context of that figure of £28,000 arose because the case was badly prosecuted. I take some objection on behalf of the courts to the generalised criticism of magistrates’ courts and Crown Courts as being unable to set proper penalties. I have a real fear that these fixed penalties will do an injustice, and the noble Baroness’s recent answers demonstrate how difficult it is to judge from the corridors of power what a fair and proportionate penalty is. That should be done by the independent courts, and that is why my whole theme is: give back this power to the magistrates’ courts and the Crown Courts.
My final point was very well made by the noble Lord, Lord Borrie, and I entirely agree with him, although—this may be an understatement—he and I have a slightly different approach to the Bill. The noble Lord made the point that one does not wish to prosecute every time and a more gentle touch is needed. I asked the House to get the Government to remember the fundamental principles of prosecution. You prosecute only, first, if there is a realistic prospect of conviction on the facts and, secondly, if it is in the public interest to do so. As Lord Shawcross, then the Attorney-General, said in his classic statement in the 1940s—these were not his exact words—“God help us if every case that could be prosecuted was prosecuted”. There has to be sensible discretion.
My probings into the facts behind the Bill demonstrate that many regulators are already doing this very successfully, and I shall give a single example. It is a bouquet to the Treasury, because the Treasury is responsible to the Statistics Board. It is interesting that parliamentary Answers, for which I am most grateful, showed that, in the three years from 2005 to 2007, the Statistics Board issued 90 summonses but proceeded with only 17 prosecutions, all of which were convictions. That is because, by sensible discussion aided by the threat of a summons, it managed to reach accommodation with every other alleged malefactor. Therefore, there are already very useful weapons in the powers of regulators that can sensibly be used.
I have suggested—I have not yet had any comment from the Government, but I hope that between now and Third Reading they will think carefully about this—that, as the Delegated Powers and Regulatory Reform Committee of this House indicated, the Government had overlooked the fact that it was possible to craft legislation so that there is a penalty for wrongdoing. The example given was selling alcohol to children, which is thoroughly undesirable. However, if a shopkeeper is caught doing that, under the crafting of the legislation it is possible for the shopkeeper and the prosecutor to reach an agreement by which the shopkeeper will pay a more modest penalty and agree to stop doing it. That is real proportionality, and the wrongdoer has a small sword of Damocles hanging over him if he does not obey. That is the approach to regulation that I hope we shall see. I am really worried that there may be tens of thousands of cases. Let us remember that the Government do not know how many cases there are—even at the moment. They think that there are 15,000 because the Courts Service told them that, but it is plainly wrong. I shall not weary the House by giving the figures again, but it is clearly an underestimate by a factor of two, three, four or possibly many more.
I am concerned at how regulators will come to be seen. I do not like to use the word that comes to everyone’s mind because it brings a small moustache into the debate, but I am concerned that they will come to be seen as thoroughly oppressive. They will be feared and, when people are feared, they are hated. That is not the kind of country that we want to live in. That was most eloquently put by my noble friend Lord Eccles in our previous debate. That is why I am making such a fuss. I am sorry that I am speaking at such length, but I shall draw this to a close. There is a host of ways in which this can be done. I have never opposed stop orders. The noble Lord, Lord Borrie, thought that I had changed my mind, but my very first amendments, in Committee, also allowed stop orders. If I had changed my mind, I would have been wise because it is sensible to allow stop orders and compensation orders. They can all be moderate and proportionate.
I shall close now and not speak to Amendments Nos. 60 or 63, because they cover the same points. Between now and Third Reading, please will the Government enter into careful negotiations? I shall make myself available, as I am sure will my noble friends, and they will wish to speak to others. Will they think carefully about the structure of the Bill? I hope that they will indicate that they are to come forward with sensible changes that we can accept or, if that does not happen, that there will be an opportunity for the House to reflect and, if necessary, to express its opinion.
My Lords, is there an option in the matter? One cannot speak if the amendment has been withdrawn, and I was hoping to have an opportunity to say a few sentences.
Today, all I wish to say is that, as I did when we discussed the Bill previously, I support what the noble and learned Lord, Lord Lyell, has said in support of Amendment No. 55. I understand that, for reasons of expediency, it would be ridiculous for him to press it any further today, but it should be recorded that there are persons present in the Chamber who think that it is misguided to have this transference of what I might call criminal justice powers. I know that the noble Lord, Lord Borrie, will say that it is all civil, but it is on the edge between criminal and civil law, and, if we get the chance, I shall argue that we should not go down that road at all. I very much support the notion that there should be a discussion to see whether there is any other way of proceeding other than the way in which the Government currently wish to proceed.
My Lords, I have not spoken on this Bill, and I wish to speak only to Amendment No. 83, in particular to paragraph (e), which, it seems to me, would have come in appropriately with the amendment tabled by the noble and learned Lord, Lord Lyell of Markyate, on Clause 53. I hope that the House will bear with me if I say something about my concerns on the rights of appeal that come in under guidance on civil sanctions.
My Lords, I am wondering whether the noble and learned Baroness is speaking to the right amendment. We are discussing Amendment No. 55, tabled by the noble and learned Lord, Lord Lyell, which would get rid of one particular clause in the Bill: Clause 38. I think that the noble and learned Baroness is talking about amendments that had been grouped with the earlier amendment, which has already been passed. When we get to Amendment No. 83, she will have an opportunity to speak on that.
My Lords, perhaps I can help the noble and learned Baroness. I hope that fairly shortly we shall come to a group of amendments that deal with appeals. I think that it includes Amendments Nos. 71, 72 and 73. It may be more appropriate to talk to Amendment No. 83 then. Strictly speaking, Amendment No. 83 has already been passed—I am sorry, it has been discussed with an earlier group.
My Lords, it has not been discussed. Only the government Minister spoke on Amendment No. 83, purely and simply to say that it was part of the group. I understood that we were able to speak to the amendments because they had been grouped by the Minister and that others would have the opportunity to speak as well as the Minister.
My Lords, we are in a bit of a muddle. Perhaps I can clarify, from my experience, what will happen. When my noble friend on the Front Bench moved the group of amendments, she spoke to several of them and then we had advice from the Deputy Speaker that, as each of the amendments was called, we would have a chance to discuss them. When Amendment No. 83 comes up, we shall have a debate on Amendment No. 83. Until then, we have to discuss Amendments Nos. 55, 60 and 63, which, although already debated, have been spoken to again by the noble and learned Lord, Lord Lyell. I think that is a satisfactory situation.
My Lords, we have got into this mess because the noble Lord, Lord Bach, has invented an entirely new procedure, whereby, on a group of amendments, the Minister speaks only to the first one, then makes a second speech about a few more and then makes a third speech about some of the others and they never get debated properly. If we go back to the proper procedure, whereby the whole of the group is spoken to, we might possibly get a little sense into the proceedings, although I remain unoptimistic.
My Lords, I apologise to the House, because I think that, on that group, it was a mistake to advise the House that the Government should sit down after one amendment. That was my mistake. There was more than one opposition amendment in that group. It is probable that one of them will be moved and accepted by the Government and one will be withdrawn, but the better tactic would have been for my noble friend to have moved all the amendments in her name in that group. I apologise for that, particularly to the noble and learned Baroness who, I am afraid, has to wait a little longer before making her speech.
My Lords, I apologise for intervening, but the noble Lord, Lord Bach, has at last got it right. We should have taken all the amendments together, as the noble Viscount, Lord Bledisloe, told us. I suggest that we get on and do that. It will be greatly for the convenience of some who have taken a great deal of trouble to come here but would be quite disconcerted if they had to wait until after all the others to get to Amendment No. 83. My impression is that it would not at all be for the convenience of the House. We should get on with this first group, as I had expected.
My Lords, I had not intended to intervene, but I am extremely puzzled by this. I have been listening to the arguments of the noble and learned Lord, Lord Lyell, which would not be difficult because he spoke extensively at Second Reading, as did the noble Lord, Lord Neill of Bladen. The Bill has been designed to implement Professor Macrory’s recommendations. When we come back to it—if we ever finish this, and, as we have to finish by 10 o’clock, it is obvious that we will not do so tonight—I would ask the noble Lord, Lord Neill, and the noble and learned Lord, Lord Lyell, to help me with a question.
Professor Macrory had extensive consultation on his suggestions, and indeed the Bill, apart from Part 4, was subject to extensive pre-legislative scrutiny. The noble and learned Lord, Lord Lyell, and the noble Lord, Lord Neill, obviously feel strongly about this. They ought to tell us at Third Reading what representations they made to Professor Macrory on this important issue and what representations they made on the extensive pre-legislative scrutiny. Their views have been expressed widely, and I would be interested to hear that before Third Reading. Bearing in mind the importance with which they treat this issue, it behoves them to let us know exactly what happened.
My Lords, before any noble Lord answers, the Clerks, as always, have come up with the answer to our procedural problem. After we have finished debating Amendment No. 55, we will then come to Amendment No. 56, which was of course in the first group. As I understand it, it will then be absolutely in order to talk about the matters that the noble and learned Baroness wants to raise. If the noble and learned Baroness is a little patient, we will, I hope, be there soon.
My Lords, I am assuming that we are on Amendment No. 55. There are no other amendments grouped with it, and its purpose is straightforward: to get rid of Clause 38 on fixed monetary penalties. It is no fault whatever of the noble and learned Lord promoting Amendment No. 55 that we have been doing things in an illogical order.
As I understand it, perhaps 15 minutes ago we had an interesting debate between my noble friend the Minister and the noble Lord, Lord Goodlad. It was an amicable discussion because, as it turned out, the Government had largely accepted the original proposal made at an earlier stage of the Bill by the noble Lord, Lord Goodlad, that there should be a notice of intent before a fixed monetary penalty was imposed and then various other procedures. The noble Lord, Lord Goodlad, has indicated that he is content with that. It seems highly illogical that, having accepted that—the House said “Content” when the government amendment went through—we should now seriously consider the proposal of the noble and learned Lord, Lord Lyell, to get rid of Clause 38 altogether.
Of course, I realise that it is a probing amendment, but the probing has already been done by the noble and learned Lord and others on previous occasions. What is left is a wholly negative proposition in Amendment No. 55 to get rid of a clause that we have just agreed to amend and improve, following the original initiative of the noble Lord, Lord Goodlad. It would be better if we requested that the noble and learned Lord, Lord Lyell, withdraw his amendment, so that we can move on to other matters, including appeals, which the noble and learned Baroness wishes to discuss.
My Lords, I entirely agree. I rather took the noble Lord, Lord Neill of Bladen, aback. I was in the process of withdrawing—I think that the words had emitted from my mouth—Amendment No. 55.
We have all been muddled about how we can say some sensible things that must be said. I think that we are back on track. Anyway, I thought that I already had done so, but I confirm that I wish to beg leave to withdraw the amendment.
My Lords, it may help noble Lords if I say that we now come to Amendment No. 56, which is grouped with government Amendments Nos. 57, 61, 70, 83, 92, 93 and 95 and the non-government Amendment No. 58, all of which can now be spoken to within that group.
56: Clause 39, page 17, line 6, leave out from “(2)” to end of line 7
The noble Lord said: My Lords, I beg to move.
My Lords, I wish to speak not to Amendment No. 56 but to government Amendment No. 83. I hope noble Lords will bear with me if for the purposes of my observations I ally it to Clause 53 because the phrase with which I am concerned—“rights of appeal”—appears in government Amendment No. 83. I am concerned about the position of the regulator in the light of the proposed appellate procedure, which is to be found in Clause 53, and, as the noble and learned Lord, Lord Lyell of Markyate, said a few minutes ago, the intention to exclude the magistrates’ court and therefore the Crown Court by way of further appeal.
There is an appeal under these rights of appeal to a first-tier tribunal. What is a first-tier tribunal? That is the only tribunal that one is able to have. It has a person who has the power to deal with the case. The Bill refers to,
“the person to whom the appeal is made”,
and gives powers to that person. Is he to be a senior civil servant? Is he to be a civil servant who is, perhaps, in a different department from the civil servant who made the decision or is he to be someone who is a regulator in other circumstances but who is the appellate person for the purposes of this first-tier tribunal? This seems to me to strike at the constitutional right of an individual to have a proper appeal. The tribunal is not even three people. There are lots of excellent tribunals where there is a legally qualified chairman and two people of different sorts who sit with the chairman and make decisions. However, here we are talking about the cusp of criminal and civil work, as the noble Lord, Lord Neill of Bladen, said.
If there is, as I assume, an aggregate of sanctions and penalties, the sums of money may be considerable. The regulator may go wrong. We are talking about fixed penalties and discretionary penalties, and we do not have the criteria—I am not suggesting that would be a good idea, though perhaps they might have asked the noble and learned Lord, Lord Lyell of Markyate, to provide them with the criteria—but there will be guidance, although we are not sure what it will be. Members of the public in business will be subject to civil sanctions of considerable sums of money with only an appeal to a first-tier tribunal composed of one person. One does not know what sort of person that may be. I am sure he will be admirable, but he would not be legally qualified and could possibly be operating in a completely different way. I could not find in the Bill any indication of who the person who would comprise the first-tier tribunal would be.
The exclusion of the magistrates’ court and appeal to the Crown Court—because, I understand, it is suggested that they do not fine sufficiently large sums—might well be a matter for the Judicial Studies Board and the magistrates’ guidance to beef up the magistrates. It does not seem appropriate to get rid of them. Surely they should be trained into what is better rather than saying that because they do not make it stick hard enough we will get some other system that will be tougher and will not be scrutinised by lawyers. I do not think this is satisfactory access to justice as the appellate system is flawed. It may well open the door to judicial review, which is not a satisfactory system because, among other things, it looks not at rights of appeal but at whether the tribunal, the one person, approached the case in the wrong way and not at whether the decision was right or wrong. That is very unsatisfactory. If the courts are not tough enough, let us make them tougher.
I apologise for having dealt with what falls more obviously under Amendment No. 71 to Clause 53 at this stage, but I have difficulty remaining in the House later this evening and I hope that I will be forgiven for having stretched the amendment a little further than it might normally go.
My Lords, I have a question for the noble Baroness, but I confess to the fact, for the benefit of the noble Lord, Lord Razzall, that I did not make any submission to Professor Macrory; I made no input into the pre-legislative inquiries conducted before the Bill came before the House. Nor do I think that I had any obligation whatever; and nor can that be a requirement before I am allowed to address your Lordships on clauses now coming before us in a Bill. I find that a completely astonishing doctrine. Enough on that point.
My point for the noble Baroness is that I have a real problem with new subsection (4) proposed by Amendment No. 57. It states:
“Provision pursuant to subsection (2)(c)(ii) ... may include provision for other circumstances in which the regulator may not decide to impose a fixed monetary penalty”.
That seems to me to be totally unrelated to anything that I have read. Am I missing the point? Am I looking at the wrong subsection? What does it mean?
My Lords, I am very grateful to the noble and learned Baroness for her intervention and question. As I am meeting the noble and learned Lord, I would be very happy to meet her as well to discuss it further.
With respect to the tribunal, it is established under Section 3 of the Tribunals, Courts and Enforcement Act 2007 that it can comprise members with both legal and specialist expertise in the subject matter before the tribunal and therefore provide fuller understanding of the regulatory issues.
The noble and learned Baroness asks why we do not strengthen the courts to provide better regulatory outcomes. That was a part of the package of Professor Macrory's recommendations on improving criminal courts’ methods for tackling regulatory offences. He believed that they should be better equipped to deal with them through improved training, sentencing guidelines, information from prosecutors and introducing new sentencing options. Those recommendations were accepted by the Government in full and are being taken forward separately from the Bill, because they are not legislative.
The noble and learned Baroness also raised the issue of deployment, which will be a matter for the Senior President of Tribunals. As I said, the panel will consist of judges and, where appropriate, expert and non-legal members, but would be very happy to meet the noble and learned Baroness to go through the detailed questions that she raised.
My Lords, I shall say a word or two about government Amendment No. 83. We are not clear about this at the moment. Preliminary to my own proposals in Amendment No. 71, will the Minister spell out in words that will be understandable to this House and the public what the tribunal will look like? Will it consist of a legally qualified person plus two experts, or of one lay person and one expert? Perhaps the first sentence of my question should have been, “Has the Minister any idea in her head at this moment?”. Have the Government seriously thought through what this tribunal will be?
I confess that I do not have a great deal of experience of first-tier tribunals, quite unlike the noble and learned Baroness, Lady Butler-Sloss, who brings immense knowledge to these areas. I was quite taken aback to hear that this might be a single person, even a lawyer, let alone to find that it might be a single person who was not a lawyer and who might be in the regulatory field. Will the Minister tell us what instructions in this matter she has from the Secretary of State or the noble Lord, Lord Jones of Birmingham, and what the position of the appeals tribunal is? If she does, I shall be better informed and, I hope, briefer.
My Lords, I have two very short points to make. One amplifies the points made by the noble Lord, Lord Razzall. I attended a meeting arranged by the noble Lord, Lord Bach, at which Professor Macrory was present. It was absolutely clear that he is very keen on a system of civil sanctions. When the discussion turned to how this would be implemented as a result of his report, he said very clearly that implementation was a matter not for him but for Parliament. He deliberately distanced himself from the details of the Bill, which already existed.
Secondly, do people on the tribunal know what people are talking to them about? The regulators in the list must have an incredibly wide knowledge, because there will be issues from the Charity Commission and the Hearing Aid Council to the Human Fertilisation and Embryology Authority. The Schedule 5 designated regulators cover the waterfront, and as the House will know from debates in Committee and on day one of Report, I have always been incredibly concerned about the width of the Bill. I cannot understand why, if anyone wished to implement what they tell us is Hampton and what they believe to be Macrory, they did not choose to do so on a much more limited scale to find out how well it worked.
My Lords, my noble friend has rightly pointed out the sheer breadth of the 28 regulators in Schedule 5, but is he aware that the Bill covers not only those regulators but all those in Schedules 6 and 7? There are also the 178 statutes plus all their statutory instruments in Schedule 7, so while my noble friend is absolutely right about the sheer breadth of the Bill, it is as wide as it is possible to make it.
My Lords, I should be clear that we have an understanding of what we anticipate and expect from tribunals. The noble and learned Lord will no doubt be very familiar with the Tribunals, Courts and Enforcement Act 2007. Our preferred venue for appeals will be the first-tier tribunals, which should be divided into separate chambers. The Ministry of Justice is consulting on implementing the tribunals elements of the Act and proposes that the general regulatory chamber includes a number of different jurisdictions, such as consumer and credit licensing, estate agents, transport and gaming appeals.
This new structure under the Tribunals, Courts and Enforcement Act will allow much greater levels of expertise to be deployed in the magistrates’ courts. It will allow for flexible deployment of tribunal judges and non-legal members. Its deployment is a matter for the judiciary and we will need to consult with it about how the tribunal will be constituted for regulatory offences, which is ongoing. I do not think that it is entirely fair to say that we do not have a view on this issue. It will be independent, would normally have three members and would expect to have a legal person, and we are in consultation on how this would be set up.
On Question, Amendment No. 56 agreed to.
57: Clause 39, page 17, line 8, leave out subsections (2) to (5) and insert—
“(2) Those results are that—
(a) where a regulator proposes to impose a fixed monetary penalty on a person, the regulator must serve on that person a notice of what is proposed (a “notice of intent”) which complies with subsection (3),(b) the notice of intent also offers the person the opportunity to discharge the person’s liability for the fixed monetary penalty by payment of a prescribed sum (which must be less than or equal to the amount of the penalty),(c) if the person does not so discharge liability—(i) the person may make written representations and objections to the regulator in relation to the proposed imposition of the fixed monetary penalty, and(ii) the regulator must at the end of the period for making representations and objections decide whether to impose the fixed monetary penalty,(d) where the regulator decides to impose the fixed monetary penalty, the notice imposing it (“the final notice”) complies with subsection (5), and(e) the person on whom a fixed monetary penalty is imposed may appeal against the decision to impose it.(3) To comply with this subsection the notice of intent must include information as to—
(a) the grounds for the proposal to impose the fixed monetary penalty,(b) the effect of payment of the sum referred to in subsection (2)(b),(c) the right to make representations and objections,(d) the circumstances in which the regulator may not impose the fixed monetary penalty,(e) the period within which liability to the fixed monetary penalty may be discharged, which shall not exceed the period of 28 days beginning with the day on which the notice of intent was received, and(f) the period within which representations and objections may be made, which shall not exceed the period of 28 days beginning with the day on which the notice of intent was received. (4) Provision pursuant to subsection (2)(c)(ii)—
(a) must secure that the regulator may not decide to impose a fixed monetary penalty on a person where the regulator is satisfied that the person would not, by reason of any defence, be liable to be convicted of the relevant offence, and(b) may include provision for other circumstances in which the regulator may not decide to impose a fixed monetary penalty.(5) To comply with this subsection the final notice referred to in subsection (2)(d) must include information as to—
(a) the grounds for imposing the penalty,(b) how payment may be made,(c) the period within which payment must be made,(d) any early payment discounts or late payment penalties,(e) rights of appeal, and(f) the consequences of non-payment.”
The noble Lord said: I beg to move.
My Lords, before Amendment No. 57 is agreed to, perhaps I may speak briefly to my Amendment No. 59. The notice of intent to serve the penalty should contain all facts and matters relied on. I very much hope that the noble Baroness will say, “Yes, that is exactly what the Government have in mind”. I shall give way to the noble Lord, Lord Desai.
My Lords, we have enough of a muddle. Amendment No. 59 is not in this group and the noble and learned Lord should not speak to it. Let us get through the present amendment. When we come to Amendment No. 59, the noble and learned Lord should speak to that amendment.
My Lords, I wear two hearing aids, so I might have misheard. But I understood the Deputy Speaker to say that if we agree Amendment No. 57, we would not be able to debate Amendment No. 59. I stood up simply to get clarification from the Government that they intend that the notice will give all facts and matters relied on so that the citizen or the business can understand the case that they have to answer, which is one of the most fundamental requirements of justice, not only in the United Kingdom but almost throughout the world—certainly throughout the civilised, legal world. Will the noble Baroness expand on that and set our minds at rest?
My Lords, I must confess to being somewhat procedurally confused. On Amendment No. 59, as we stated in Committee, we agree with the noble and learned Lord that when imposing a sanction a regulator must provide the person subject to the sanction with the evidence that has been used to determine liability. This is a basic requirement if a person is going to be able to defend himself. However, we still do not feel that this amendment is necessary to ensure that evidence is provided and it could, in fact, be limiting. Regulators are already required to provide all relevant evidence to the person in question, in accordance with principles of good administration, common law principles of fairness and duties under human rights law. It is therefore not necessary specifically to state this requirement.
These amendments address technical matters of how and when relevant evidence should be provided to persons subject to a sanction and would be better left to the order as it would allow further detailed provision to be made. Furthermore, while we may agree with the sentiment behind Amendments Nos. 59 and, as it happens, 66, it may stop the use of other, more transparent, means of providing evidence to persons subject to a sanction. For example, instead of providing all the relevant material in the notice of intent itself, as suggested by the amendment, the regulator could instead provide full access to its investigation files. Some regulators, such as the OFT in competition law investigations that are comparable to the civil sanctioning regime, use this means of providing all the relevant material to persons subject to regulatory sanctions. In certain cases this could be a more efficient means of providing information to benefit both the parties rather than the more onerous requirement to state all of the facts and matters in the notice of intent itself. I am sure that, on this basis, the noble and learned Lord would not wish to have these unintended consequences given that the requirement already exists in law.
My Lords, I think I am satisfied with what the noble Baroness has said. However, we are dealing partly with highly sophisticated firms that can cope with all this and partly with ordinary blokes and blokesses who have to understand in simple and straightforward language what it is they are being accused of. Can the noble Baroness confirm that in the notice there will be at least a few sentences in straightforward language that will tell people what they have got to meet?
61: Clause 40, page 18, line 3, after “that” insert—
“(a) in a case where a notice of intent referred to in section 39(2)(a) is served on a person—(i) no criminal proceedings for the relevant offence may be instituted against the person in respect of the act or omission to which the notice relates before the end of the period in which the person may discharge liability to the fixed monetary penalty pursuant to section 39(2)(b), and(ii) if the person so discharges liability, the person may not at any time be convicted of the relevant offence in relation to that act or omission;(b) ”
On Question, amendment agreed to.
Clause 41 [Discretionary requirements]:
62: Clause 41, page 18, line 13, leave out “the regulator” and insert “an independent person appointed in accordance with provisions which shall be laid down in the order made under section 35(1)”
The noble Lord said: My Lords, in fact I rise to speak to Amendment No. 65A which replaces the original amendment, Amendment No. 62, which I shall not move, with apologies for any inconvenience that might cause. In a moment I will also speak to Amendment No. 69.
The objective of Amendment No. 65A is to provide an accused business with the opportunity to make representations to an independent person when it is proposed to levy a penalty on that business. The Bill already provides for a review of the proposed imposition of a penalty if the business objects. It also provides for an appeal to a tribunal if the regulator decides to go ahead with the penalty. The Minister made much of this when he opposed our amendment in Committee. However, this is an appeal as a convicted person, not the hearing of a case on the basis of being innocent until proven guilty.
The Bill provides that an enforcer should determine each of the following: first, that an offence has been committed beyond all reasonable doubt; secondly, that there are no due diligence defences; thirdly, that a penalty is the appropriate enforcement response rather than a prosecution in a court; and fourthly, the level of the penalty. Any review of these decisions is then, it is proposed, to be carried by that very enforcer, so that enforcer, as we have said before, is effectively the policeman, judge and jury. We simply do not believe that it is satisfactory or equitable for this to be the procedure.
In his response to the debate on our amendment in Committee, the Minister could not oppose our proposal in principle, and indeed the guide published with the Bill makes it absolutely clear that this is what the Government want to happen, at least to some extent. The guide states on page 29:
“In order to provide a degree of independence, it is recommended that the person(s) conducting the review should not have been involved with the original decision to issue the notice”.
But it goes on to say:
“The reviewer should work or have worked in the relevant area of regulation and, where possible, should be more senior and experienced than the person imposing the notice”.
We support the first part of that statement, although the second slightly spoils the effect. However, we think that there is an essential degree of agreement here. Where we differ is on how important this is. We believe it is so important that it should be a provision in the Bill and not just left to a statement of hope in a guide. It is inappropriate to leave the civil rights of citizens or the rights of businesses before the law to a recommendation in a guide.
Because he could not disagree in principle, the Minister suggested in Committee that the problem with the amendment was that it was not clear who the independent reviewer would be. Unfortunately there are many things in this Bill which are not clear. There are many implementation measures left to implementing orders, as this would be. As the amendment makes clear, and as the Minister did not recognise in Committee, this is exactly the procedure to be adopted here. In this case it is sensible because there will be different orders for different regulators, and so it will be possible to ensure that the independent reviewer is one who is relevant to the regulator. Thus, in the case of a local authority, it might be the legal department of that authority or a neighbouring authority. We will be happy for the Government to consider this further and to offer their proposals in the order rather than now.
The effect of Amendment No. 69 would be that, just as an enforcer has a choice of prosecuting a business either through the courts or on the basis of an administrative penalty, the business, too, would have the right to opt to be dealt with in the courts if it so wished. When we tabled our original amendment, the Minister objected on the basis of a practical concern rather than a matter of principle. He was concerned that a business might simply play a waiting game and, after a long negotiation within the business penalties approach, decide to require the matter to be dealt with in court. That was never our intention.
We always envisaged that this would be a relatively speedy action by the business. For this reason, our new amendment requires the business, within 14 days of being served with a notice of intent to issue a penalty, to advise that it wishes to have the matter dealt with in the courts. That would enable those with responsibility for such matters within the business to be properly appraised but would not allow for last-minute decisions.
The amendment would achieve two aims, one direct and one indirect. The direct one is to provide a degree of equity for the business by placing it on a par with enforcers in having a choice of going to court if the enforcer has opted not to go down that route. In turn, this would have the important effect of ensuring that enforcers do not use the business penalties route simply because their case is less certain than would be required in court. The Bill makes it clear that the required level of proof for a civil penalty of this kind is beyond reasonable doubt. If enforcers are aware that the case may end up in court, this will serve to ensure that they do not propose civil penalties unless they are certain they have such a level of proof.
The indirect aim to which I referred is that the amendment will help ensure the whole system is fair. We have criticised the Bill for failing to offer the opportunity for an accused to make representations to an independent person prior to being convicted. We still believe this should be included in the Bill to make the civil penalties regime coherent in itself. However, acceptance of the amendment would go some way to alleviating that problem because the accused would have the opportunity to opt for court and thus for an independent judgment if desired.
My Lords, before spelling out the amendment proposed, perhaps I may advise the House that Amendment No. 62 is now the lead amendment in this group, as Amendment No. 59 cannot be called. That will enable debate on Amendments Nos. 62, 65A—to which the noble Lord, Lord De Mauley, has already spoken—and 66 to 69. The amendment formally in front of your Lordships at the moment is therefore Amendment No. 62, in the name of the noble Lord, Lord De Mauley. Is the amendment not moved?
64: Clause 41, page 18, line 17, at end insert “subject to a maximum amount to be laid down in the order”
The noble Lord said: My Lords, Amendment No. 64 seeks to bring the penalties in the discretionary regime into line with all other penalty provisions. While I am grateful to the Minister, the noble Lord, Lord Bach, for his response to my letter of 3 March and to the Government for their amendment in this group, it does not go far enough because—and the noble Baroness may put me right on this—if an offence is triable summarily only, it is unlikely to involve a large fine. We are concerned with a situation where a regulator can levy an unlimited fine. It would be inequitable if a regulator which was—as we have repeatedly said—policeman, judge, jury and even initial appeal court had the capacity to set the maximum level of fines. Even the Office of Fair Trading, I believe, can set the level in a competition case at only 10 per cent of turnover.
In general the courts have to set penalties in accordance with the terms laid down by Parliament, so they are not unfettered. A business cannot have confidence in a system where the enforcer has the ultimate power to fine that business to the extent that it is put out of business. None of the mitigating factors in Section 45 of the guide to the Bill, to which the Minister kindly drew my attention in his helpful letter, dealt with that point at all.
The amendment does not seek to reduce the level of fines or to make them ineffective. It restores to Parliament the right to determine the maximum level. I beg to move.
My Lords, in Committee, as the noble Lord said, we debated whether there should be a cap on the level of the variable monetary penalty that a regulator can set. We continue to believe that a cap for the more serious offences would not be appropriate. Regulators must be able to capture any financial benefit gained from non-compliance. That was one of the key recommendations of both the Hampton and Macrory reviews. If a business knows that any profit gained will be removed, with the potential for an additional penalty on top, there will be less incentive to break the law in the first place. That will help deter future non-compliance and ensure that there is a level playing field for compliant businesses, which are the majority. It is an essential part of the risk-based approach to enforcement.
The regulator will be required by Clause 62 to publish guidance setting out the criteria it is likely to take into account when setting the level of the variable monetary penalty, so there will be transparency in the process. As the noble Lord knows, possible criteria are listed on page 35 of the guide to the Bill. These include the seriousness of the non-compliance, the business’s disciplinary record and whether the business has taken any actions to address the harm caused by the non-compliance. Those criteria will vary depending on the regulatory area. We have discussed the business’s right to raise objections and to make representations after a notice of intent is issued as well as to appeal against the penalty. If the tribunal agrees, the business will have the power to withdraw or vary the penalty imposed.
Requiring that there should be a cap on variable monetary penalties in every single case may mean that regulators would continue to seek criminal prosecutions. There is no maximum on the fine that may be imposed by the Crown Court. We therefore do not wish to create a perverse incentive for regulators to pursue criminal prosecutions.
That is not to say that variable monetary penalties will not be capped in practice. In making an order under Part 3 of the Bill, the Minister may consider that such a cap is necessary, and is able to set an appropriate cap for a particular set of offences. We do not, however, think that that should be an obligation on the Minister in every case. The noble Lord referred in particular to a cap based on the business’s turnover. That was specifically ruled out by Professor Macrory, as he felt that such a cap would act as a target rather than a ceiling. It is also worth noting that the Government have followed the recommendations of the Delegated Powers and Regulatory Reform Committee on the issue of capping the penalties. I refer again to the example set out in Committee by my noble friend Lord Bach of the £14 million fine that was imposed on Citibank.
Variable monetary penalties should not be regarded as an isolated sanction. They can also be combined with other discretionary requirements in order to fully address all effects of a breach of regulation. As we have just discussed, the variable monetary penalty element of a sanction can be mitigated if a business offers undertakings to benefit third parties affected by the non-compliance.
As a part of this, I shall speak to Amendment No. 65, which I hope will go some way to addressing the noble Lord’s concerns. I appreciate his concern about variable monetary penalties and do not believe that they should be capped for the more serious offences. However, I am happy to say that, as the Delegated Powers and Regulatory Reform Committee proposed, we are prepared to cap variable monetary penalties for the minor, summary-only offences, and Amendment No. 65 would set the cap at the level that would otherwise have been available to the magistrates’ court, which, as we discussed earlier, is usually £5,000. In the light of what I have said, I trust that the noble Lord will feel able to withdraw his amendment in favour of Amendment No. 65.
My Lords, Amendment No. 65 can be regarded as benign in the context of the Government’s approach, but the Government’s approach is to take the maximum power for themselves in almost any circumstances and to give that to every regulator. The Government are speaking with forked tongue, because at one point they say they will be proportionate but at the next they say that it is important to capture any profit and to be an effective deterrent. Courts can perfectly well understand these things, but they stand back, are independent, and look at them in the context of ordinary life in this country. Now it is being taken to a group of specialists and to a system where you are found guilty and you incur the penalty. You can even run up costs for not paying the penalty on time because it continues to run, it seems, unless and until an appeal tribunal suspends it temporarily, which it may or may not do, and you may or not understand.
One of the difficulties for the Opposition when a Bill goes so fundamentally against what we understand as the normal principles of justice is that one cannot really rewrite it sensibly by amendments. My noble friend has raised some very important points. I go back to my plea for the Government to think very carefully about this whole area and whether it is not wiser to go to the courts. I had certainly understood from other answers in other debates, both in Committee and on Report, that the Government were saying that the most egregious and serious cases should probably go to the courts, but now the Minister wants absolutely unlimited powers, to be dealt with by the regulators.
We have still not heard a sensible explanation for how a system that currently works 99 per cent in the magistrates’ court and less than 1 per cent in the Crown Court will be divided up, as the Minister put it, roughly into 60 per cent administrative penalties and 40 per cent for the courts. I am amazed that no principle seems to exist for determining which cases will go to the courts, which will be administrative penalties, which will be—massively—variable penalties, which will be fixed penalties, or how much the fixed penalties will be. The Government have just not answered those questions. I hope they will reflect further.
My Lords, perhaps the noble Viscount will give way. I know that this evening has not been a classic example of how Report stage should be conducted in this House, but I have to remind noble Lords that Chapter 7.134 of the Companion states:
“Only the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation to the minister or where the minister speaks early to assist the House in debate”.
It was of course convenient for the noble and learned Lord, Lord Lyell, to speak to Amendment No. 65, which I presume will be put after Amendment No. 64, but I wonder whether the noble Viscount will confine his remarks to an elucidating question or two.
My Lords, as noble Lords are aware, there has been considerable discussion about the regulator's requirement to bring forward a case to a criminal standard of proof. That is a requirement. I hope that the noble Lord will be satisfied with that given that this was debated at some length earlier.
The noble and learned Lord, Lord Lyell, asked about the need at all for variable monetary penalties and why they are there to capture benefits of non-compliance, particularly if the more serious offences are to be prosecuted through the criminal courts instead. They would be useful in instances of non-compliance where a business has inadvertently breached regulations and corrected its breach quickly but has made a significant financial gain or competitive advantage. I mentioned the case of Citigroup, where a fine significantly captured the competitive advantage that it had gained from non-compliance. In that circumstance, a regulator might decide that a variable monetary penalty would be a more appropriate and proportionate response than a criminal prosecution.
My Lords, I am grateful to my noble and learned friend, who put the point much better than I did. I do not think that the Minister’s response has addressed all my points. I should be most grateful if she would consider them after today; as indeed I will consider her response.
In view of the time taken so far, I will not press the amendment this evening, but I reserve the right to return to it at Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
65: Clause 41, page 18, line 32, at end insert—
“( ) Where a variable monetary penalty is imposed in relation to a relevant offence which is—
(a) triable summarily only, and(b) punishable on summary conviction by a fine (whether or not it is also punishable by a term of imprisonment),the amount of the variable monetary penalty may not exceed the maximum amount of that fine.”
On Question, amendment agreed to.
Clause 42 [Discretionary requirements: procedure]:
65A: Clause 42, page 18, line 39, leave out “the regulator” and insert “an independent person appointed in accordance with provisions which shall be laid down in the order under section 35(1)”
The noble Lord said: I beg to move.
My Lords, I cannot ask a question, so I suppose I will now have to speak.
I fully understand the purpose of Amendment No. 65A, and I entirely agree that the regulator himself cannot be the proper person to receive and decide on these representations. He has already decided that an offence has been committed, which is why he has instituted the proceedings. But I do not understand why the noble Lord seeks to include this independent person in Clause 42(2)(b). When the representations have been received, under Clause 42(2)(c) the regulator has to decide,
“whether to … impose the discretionary requirement”,
or whatever. There is no amendment to remove the regulator from that. The independent person receives these representations. He presumably then puts them in his file and the regulator goes back to deciding whether the offence is proved and what penalty is to be imposed. Am I missing something? Has the noble Lord failed to carry his amendment to its full conclusion in the remainder of this part of the Bill?
My Lords, is the noble Lord saying that if his amendment is passed, he will carry it through into the remainder of the section, because otherwise it is pointless? Is the noble Lord undertaking that if Amendment No. 65A is passed, he will come back at the next stage and remove the regulator and insert the independent person into paragraph (c) and the rest of the section? That is all I am asking.
My Lords, I believe that I am responding to Amendment No. 65A, which I understand covers the same ground as Amendment No. 143 that we debated in Grand Committee. I am grateful to the noble Lord for clarifying the intentions behind his amendment but I confess that I still lack understanding about who this independent arbiter would be that would hear the representations made by a business, or what powers it would have. For example, would the person be fully independent, such as the judicial person suggested by the noble Lord, Lord Cope?
If the amendment seeks to introduce a truly independent arbiter, external to the regulator, we would strongly disagree with such an aim. This would replicate the existing criminal system, which we are trying to provide an alternative for in certain circumstances by requiring some form of substitute judge to determine whether a sanction may be imposed. The amendment is unnecessary given that the Bill already provides for there to be a right of appeal of the final decision to an independent and impartial tribunal. It would create two rights to have your case heard by two different judicial persons, both before and after a sanction was imposed. If we could figure out how such a body or person could be created, this would add a further level of bureaucracy which would not only make the process of imposing a sanction much more lengthy and cumbersome but would have the same impact on criminal prosecution itself. Therefore, this amendment would make the Part 3 sanctions unworkable and would give regulators no incentive to take up the new powers.
The noble Lord suggested that the amendment was designed to ensure that decisions to impose a sanction are rigorously reviewed and challenged within a regulator before a final notice is issued. We would have considerable sympathy with that. Professor Macrory explored such matters in his final report and suggested different ways in which regulators could take decisions on penalties which would ensure quality and consistency. For example, the final decision to impose a penalty could be taken at a more senior level of the regulator’s organisation than that of the person who issued the notice of intent. The noble Lord, Lord De Mauley, provided an example of local authorities in that regard. Professor Macrory also suggested that training and monitoring can play important roles in ensuring quality and consistency.
We believe that such matters should not be in the Bill and are better dealt with through guidance. We are prepared to amend the guide to the Bill to make more explicit how regulators can safeguard the quality and consistency of their sanctioning decisions by, for example, requiring that senior officers, independent of the initial regulatory officer, take final decisions. I hope that what I have said has reassured the noble Lord and that he feels able to withdraw Amendment No. 65A.
I would like to speak also to government Amendments Nos. 67 and 68. Amendment No. 67 proposes making the undertakings provision at Clause 42(5) compulsory. This will mean that a regulator must allow the business the opportunity to offer undertakings in order to mitigate a discretionary requirement. This issue was raised in Committee by the noble Baroness, Lady Wilcox, on behalf of the noble and learned Lord, Lord Lyell. We promised to consider the proposal and, on reflection, are very happy to make undertakings a mandatory part of the discretionary requirements provision. We have tabled a further amendment, Amendment No. 68, to clarify, that while the regulator must allow the business the opportunity to offer undertakings, the regulator does not have to accept the undertakings.
My Lords, I am sure that the noble and learned Lord is going to ask a question for elucidation only. The Minister has spoken on this group now, and there can only be questions for elucidation after the Minister has spoken. Noble Lords cannot make further speeches.
My Lords, the noble Lord cannot be saying that. The Minister can move all the amendments in a group. When she has spoken to them, other Members can speak to them. She cannot wait until the end of the debate and then say, “By the way I want to move some other amendments, but you cannot speak to them because we are on Report and you can only ask questions for elucidation”. This is making a farce of these farcical proceedings.
My Lords, when we reach Amendments Nos. 67 and 68 in the name of my noble friend, she will move them, and then anyone who wishes to speak to them can rise. At this stage, after the Minister has spoken to the opposition amendments, the conventions make it quite clear that all that is allowed are questions for elucidation on the group. When Amendment No. 67 is moved, as many noble Lords as want to can speak to it before it is voted on.
My Lords, I confess that I am further confused, and I really question whether the noble Lord, Lord Bach, has got this right. Does not the same thing apply to a Minister as applies to any Member of this House? The Minister was not asking elucidating questions about Amendments Nos. 67 and 68—
My Lords, I remind the noble and learned Lord of the rules of debate on Report:
“On report no Member may speak more than once to an amendment, except the mover of the amendment in reply or a Member or who has obtained leave of the House, which may only be granted to … a Member to explain himself in some material point of his speech, no new matter being introduced … the Lord in charge of the bill; and … a minister of the Crown … Only the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation to the minister or where the minister speaks early to assist the House in debate”.
That could not be much clearer.
My Lords, I think that the noble Lord, Lord Bach, is trying to assist my noble and learned friend by explaining that, on this occasion, when the Minister moves the amendments to which my noble and learned friend wishes to allude—that will not be at this minute but in a little while—he will have full opportunity to respond. It is merely the case that we have not reached those amendments yet. It was important that the noble Lord, Lord Bach, put on the record the guidance in the Companion.
My noble and learned friend asked proper questions about whether there is a difference between the rules that apply to a Minister and those that apply to other Members of this House. In fact, there are different rules, because the Minister of the Crown, as the noble Lord, Lord Bach, pointed out, has an extra opportunity to speak in certain circumstances. On this occasion, the noble Lord, Lord Bach, is not trying to prevent my noble friend from participating. Indeed, I would never dare do so, because I bow to my noble and learned friend’s experience as Attorney-General. He will have full opportunity to speak on those government amendments when they are moved by the noble Baroness, Lady Vadera.
My Lords, in respect of Amendment No. 65A—I think that it is the amendment we are debating—the noble Baroness offered some redrafting in the guide. It does not go as far as I would have liked, but that is as far as I should like to go this evening, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 66 not moved.]
67: Clause 42, page 19, line 27, leave out “may” and insert “must”
The noble Baroness said: My Lords, I beg to move.
My Lords, although the noble Baroness has spoken to the amendment and presumably does not intend to speak further to it, I think that this is the moment for me to speak. Once again I say that I am grateful, in the context of what the Government seek to do, that a potential defendant—an alleged wrongdoer—has an opportunity to come forward and make an undertaking. He must be given such an opportunity. That is wise. It fits in well with the way that I want the Bill to work. Those of us who are worried about the enormous incursions into our legal procedures that the Bill represents will welcome it. In the discussions that take place before Third Reading that the noble Baroness has kindly offered, we will focus on whether all this can be done under exactly the existing system, among other things. I gave the example of how the Statistics Board was successful, occasionally by twisting people’s arms by issuing a summons, in reaching an accommodation with 73 out of 90 people and having to prosecute only 17, and getting 17 convictions. The present system works much better.
The House will remember that Professor Macrory, whose name has much been relied on this evening, says that there are many areas in which the regulatory system works perfectly well. He also says that, when he spoke to regulators, he found it difficult to get any of them to tell him where it was not working well; I gave chapter and verse—the page reference—when I last mentioned that. There is a great notion that it is not working well, but evidence has not been forthcoming from Professor Macrory, who is much more tentative on the subject. I see the noble Lord, Lord Razzall, in his place. He will have read Professor Macrory’s reports carefully and know that he is much less dogmatic about the whole structure. As Professor Macrory told the noble Viscount, Lord Eccles, and those who were able to attend his meeting—I was sorry not to be able to go—he is not the man who constructed the Bill but the academic who worked up ideas. He has laid just as much emphasis on training of the courts and on better and more competent prosecution. Here the Government recognise, by accepting the amendment and tabling it in their own name, that there are good ways to achieve this—oh! I am sorry; I cannot see what the noble Lord, Lord Bach, sees. Perhaps he was not even pointing at me.
My Lords, as I look at the board I see that it is a zero-sum result, whatever that means.
There are many sensible ways in which the Government can achieve what they wish in a way that will have my support, with more subtle use of the legislative programme and less sweeping changes. I hope that in due course the Government will agree to that or, if not, give the House an opportunity to express an opinion about it.
My Lords, the noble and learned Lord is absolutely right to say that the role of Professor Macrory lies behind the various proposals in the Bill. He was an academic brought in to discuss various alternative sanctions to criminal prosecution. The noble and learned Lord is absolutely right to say that Professor Macrory recognised the merits, over the years, of criminal prosecution. And of course, the noble and learned Lord said just now, and at greater length earlier, that it has always been the case—he quoted the former Attorney-General Shawcross, who held the same office as the noble and learned Lord—that there is discretion as to whether a prosecution should be brought.
However, surely what the Government had to do on receiving the Macrory proposals was to put them into legislative form—it was not Macrory’s job to do that—and to lay out alternative ways of dealing with some problems that might not deserve criminal prosecution and all that that means in terms of the stigma and procedure involved. The Government, since they first introduced the Bill, including in the amendments we are discussing, have been prepared to make amendments, some of them as a result of points made in this House and Grand Committee.
Surely, it is perfectly understood by everyone, including the Government that the role of Macrory was different from that of the Government in producing a detailed Bill. Unlike Ministers and their officials, Macrory does not have to go through the procedure of considering amendments and carefully seeing whether some of them can be accepted. They are desirable improvements, but I fear that sometimes the noble and learned Lord here is so resolutely against the whole idea of providing alternative possibilities to criminal prosecution that he will not even consider the possibility—and he may say so again when we consider amendments to come—that tribunals, despite in many cases being more expert and knowledgeable on a subject than lay magistrates, are a better place for appeals.
I understand that the noble and learned Lord is resolutely against the Bill, but it is not really necessary to produce one amendment after another in order to demonstrate that.
My Lords, finally, I turn to Amendment No. 69. I thank the noble Lord, Lord De Mauley for tabling it and I wish to restate the Government’s case. The new sanctions are an alternative to criminal prosecution and will be imposed by a regulator only when he is satisfied beyond reasonable doubt, which is a criminal standard of proof, that a criminal offence has been committed. The regulator will have undertaken a thorough and rigorous investigation and at the end of that process will have determined that a person is liable for the offence. That person then has a right of appeal to an independent tribunal. In such circumstances it cannot be for a person or a business to decide how it should be punished.
In particular, allowing a person to choose would leave the system open to abuse. They could, for example, attempt to delay the enforcement process by opting for a criminal prosecution and requiring the regulator to undergo another process of setting out its case and presenting all its evidence before a court. Allowing a person to choose to go down the route of criminal prosecution would also go against another of the fundamental tenets of what we are attempting to achieve, which is a proportionate sanctioning regime, whereby criminal prosecution should be reserved for the most serious cases. Indeed, that has to be decided by the regulator, in view of all the cases before it. The choice between civil and criminal sanctions must remain at the discretion of the regulator and not the offender.
On the first day of Report, the noble and learned Lord, Lord Lyell, asked what principles would determine whether a civil or criminal sanction was pursued by the regulator. It may be helpful if I give some examples. They include the seriousness of the conduct and whether malicious intent or gross negligence is involved. The regulator may also take account of the extent of harm that the conduct has caused—for example, whether there have been a large number of victims of the regulatory non-compliance.
The regulator is required by Clause 63 to give public guidance in its enforcement policy as to the circumstances in which it is likely to pursue a criminal or civil sanction. The regulated community will be well aware of the kind of factors that will be taken into account.
As we said in Committee, we understand the concerns that noble Lords have had about the new sanctioning powers being misused and the need to provide adequate protections for persons subject to these sanctions. There are already powerful safeguards in the Bill, including the criminal standard of proof, which is different from the reference by the noble Lord, Lord De Mauley, to the regulator being the judge, jury and sanctioner.
Most importantly, the imposition of these sanctions will be the subject of scrutiny by an impartial and independent tribunal, as we have discussed at length this evening, and that will offer an opportunity further to challenge the evidence collected by the regulator. Therefore, there will be no question of the regulator acting as prosecutor, judge and jury. The tribunal will also have the power to overturn or reduce the penalty imposed by the regulator or to take any other steps that the regulator could have taken in relation to the incidence of regulatory non-compliance. Therefore, it is not correct to say that the regulator will have absolute powers and that therefore business should be allowed an alternative route.
My Lords, the noble Baroness has just said that it is not correct to say that the regulator is investigator, prosecutor, judge, jury and sentencer, but is she not wrong? Is not the whole structure here based on the fact that the regulator imposes the penalty? The penalty stands unless and until the defendant—the alleged wrongdoer—appeals but, as we shall discover a little later, the defendant has to pay up and also to prove his innocence before the appeal tribunal. Therefore, the position is the same as if the regulator imposes the penalty. I also ask the noble Lord, Lord Borrie, to reflect on this very carefully: the citizen or business is in the same position as someone who has been found guilty by the magistrates’ court or Crown Court and then has a right of appeal. That is a very serious position to be in.
My Lords, I must disagree. The procedure is not as described by the noble and learned Lord, and I am very happy to go through it in detail when we meet. There are many steps in between which have been missed by the noble and learned Lord, including the notice of intent, the ability to make representations, the ability to appeal subsequently, and the fact that at the start the regulator needs a criminal standard of proof. I understand the superficial and compelling description of something for a good soundbite but, frankly, that does not reflect the reality. As the noble and learned Lord seems to have a somewhat ideological objection to the entire Bill, perhaps we could discuss this in the meeting that we agreed to have.
In the mean time, I can tell the noble Lord, Lord De Mauley, that there are sufficient safeguards for the purposes of his Amendment No. 69, and that allowing a business to choose which punishment method it is subject to is not appropriate. I hope that I have reassured the noble Lord that there are sufficient safeguards, at least for the purposes of Amendment No. 69, and that he will feel able not to press the amendment.
68: Clause 42, page 19, line 32, after “accept” insert “or reject”
On Question, amendment agreed to.
[Amendment No. 69 not moved.]
Clause 50 [Combination of sanctions]:
70: Clause 50, page 24, line 23, leave out subsections (1) and (2) and insert—
“( ) Provision may not be made under section 38 and section 41 conferring powers on a regulator in relation to the same offence unless it secures that—
(a) the regulator may not serve a notice of intent referred to in section 39(2)(a) on a person in relation to any act or omission where a discretionary requirement has been imposed on that person in relation to that act or omission, and(b) the regulator may not serve a notice of intent referred to in section 42(2)(a) on a person in relation to any act or omission where—(i) a fixed monetary penalty has been imposed on that person in relation to that act or omission, or (ii) the person has discharged liability to a fixed monetary penalty in relation to that act or omission pursuant to section 39(2)(b).( ) Provision may not be made under section 38 and section 45 conferring powers on a regulator in relation to the same offence unless it secures that—
(a) the regulator may not serve a notice of intent referred to in section 39(2)(a) on a person in relation to any act or omission where a stop notice has been served on that person in relation to that act or omission, and(b) the regulator may not serve a stop notice on a person in relation to any act or omission where—(i) a fixed monetary penalty has been imposed on that person in relation to that act or omission, or (ii) the person has discharged liability to a fixed monetary penalty in relation to that act or omission pursuant to section 39(2)(b).”
On Question, amendment agreed to.
Clause 53 [Appeals]:
71: Clause 53, page 25, line 32, leave out subsection (1)
The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 72, 73 and 74. These amendments deal with Clause 53 on appeals. The noble Lord, Lord Borrie, is right that, in dealing with a Bill such as this, one has to put down clear markers about the broad construction. As he has been kind enough to pay a good deal of attention to my speeches, which may have been a burden to him, I hope he will have noticed that I have tried, at every stage, to find ways to achieve the same effect without what the Delegated Powers Committee and the Constitution Committee—not me—have described as unprecedented inroads into the normal rights of the citizen to be tried by judge and jury, as appropriate.
We have a system in which, as the noble Baroness said, some 15 different regulators have the power to issue administrative penalties. I have spoken of some of them, with approval—for example, the VAT tribunals—and of the Financial Services Authority with slight reservations. I have personal experience of seeing the Financial Services Authority break practically every rule in the book, do some very serious injustice and lose a case in the end after someone had lost his job three years earlier. It is not all up-side. I am looking for ways in which one can simplify the process; I have already said enough about that.
The point of Amendments Nos. 71 to 74 is that they continue to make the magistrates’ court and the Crown Court the courts to which one appeals in this case. Primarily, as the House knows, the courts should decide whether one is guilty and the level of penalty. We have seen the muddle that the Government are getting into in trying to create a one-size-fits-all or a 10-sizes-fits-all solution to the huge conundrum that they have set themselves.
Under Clause 53(1)(a) and (b) there is a double negative:
“An order … may not provide for the making of an appeal other than to
“(a) the First-tier Tribunal, or
“(b) another tribunal created under an enactment”.
The noble Baroness told us a little earlier in answer to the noble and learned Baroness, Lady Butler-Sloss, and others that the Government think—I hope I am not mis-stating her—that there will probably be three people in such tribunals. I see the noble Lord, Lord Bach, shakes his head. In that case, I will ask the noble Lord how he thinks that these tribunals will be constructed.
I was alarmed when the noble and learned Baroness, Lady Butler-Sloss, pointed out that it would just be a single person, who might be another public official. I hope that the noble Lord, Lord Bach, will be able to reassure us that that is not the case. Perhaps he will also tell us what,
“another tribunal created under an enactment”,
might be. This is an important part of the whole structure. I say with great respect to the noble Baroness, Lady Vadera, that when we sit down and look at her words on the previous amendment and she says, “Oh no, I am not doing these things because there is a notice of intent and the regulator must listen to what you say”, she is relying on some kind of mini-trial within the mind of the regulator. In a sense, that is what is intended. But that is not the same as being judged by an independent person, let alone an independent court.
We have in this country a well tried system of the magistrates’ court and the Crown Court. They are trusted. Yes, there will be some cases which are highly technical. I have 45 years of experience at the Bar, and in the early years I did a huge amount of work before the magistrates’ courts. As the noble Lord, Lord Borrie, knows, I did quite a lot of trade descriptions work and some Factories Act work. I was always deeply impressed by the care which the magistrates took over these cases. I am afraid that I am no way currently convinced, and the Government have come up with absolutely no chapter and verse to show that the courts have it wrong. In the only case they have given, the Oxford case, they do not seem able to find out who prosecuted. I cannot think why they cannot tell me who prosecuted that very important case and what the prosecutor told the court, even if it was only from the memory of the prosecutor. However, they put great weight on that kind of thing. It really does not stand up.
The other thing that is deeply worrying about the appeals system here is that it is not clear to me—I should like the noble Baroness to reiterate once again—on whom the burden of proof at the appeal will fall. Which will it be? The Delegated Powers Committee, which is greatly to be respected, as is its chairman, the noble Lord, Lord Goodhart, says in its report that the burden will be on the subject or the business. I was surprised to read that. I thought that the Government would have the matter tried afresh with the regulator proving the case and the appeal tribunal deciding it. What will be the powers of this appeal tribunal, whether it be a court or a tribunal? Will it be able to set the penalty afresh? Will it be able to reduce the penalty? Will it be able to give no penalty? Often the fair thing to do is to give a conditional or absolute discharge. I have had cases where prosecutors had thought that they had done the right thing and were pressing for major penalties, and the court, when it had heard all the facts, decided that there was an error but that a conditional or absolute discharge was the right response. I want to know that these tribunals can do that kind of thing and that they have full flexibility.
I have another important question and I hope that I have the noble Baroness’s attention. What will happen to the penalty in the mean time? Although we have not focused much time on it—we could not, it is a complex Bill—what you experience if you are a motorist and you do not pay your congestion charge will apply here. If you have not paid after a month, there are provisions for powers to increase the fine, just as there are provisions for powers to tempt you to accept it because if you pay quickly it is less. Then there are powers for if you do not pay and you have to go to the county court or something like that. It can go up and you can pay interest. There is a structure like that. I can see the thing mushrooming. The noble Baroness shakes her head to say that there are not provisions for such powers. I will be very comforted to hear it, but I have obviously misread the Bill because I think there are. The most important question that one needs to know is whether the requirement to pay the penalty stands unless and until—I am sorry; I keep talking about the noble Baroness and it is the noble Lord, Lord Bach—the citizen, who may be a fairly basic individual, has realised that he has to make an application to the tribunal that it be suspended pending a hearing. It may put him out of business. Are the bailiffs going to be sent in pending the hearing of the appeal or is the Minister relying on the fact that the Government would never do anything so unkind? I wish it were so, and I do not speak of any particular Government or particular time. There are serious problems here. I look forward to the noble Lord’s answers. I beg to move.
My Lords, I shall speak briefly because we all want to hear what the Minister will say. I find it difficult to follow the noble and learned Lord on this point, as on earlier points, where he seems to have an—I shall use a word that the Minister used a while back—ideological objection to tribunals, which, at least for the past 40 years since the passing of the Tribunals and Inquiries Act 1958, have been part of the judicial system. They may be called administrative tribunals for convenience, although that is hardly an appropriate description for many of them that decide disputes between one individual and another, as employment tribunals do, generally, it is thought to the satisfaction of employers and employees. Nobody suggests that they are somehow inferior to something that is called a court. I suggest that the noble and learned Lord is indicating a kind of hangover from the days of that not very good Lord Chief Justice Lord Hewart who in 1930 wrote a book called The New Despotism because he regarded anything other than the courts deciding disputes as despotic, unjust and unworthy of our consideration. However, that has not been so for the past 40 years, and with the membership and the attention paid to training there is no reason why tribunals should not do the job that the Government give them in this Bill.
My Lords, I have not attempted to intervene very often in this debate, largely because, like the Minister, I assumed that we would get through by 10 o’clock, but I am afraid that there is clearly no possibility of that. Whether we will get through by any 10 o’clock remains in the hands of others. From these Benches, I endorse the remarks of the noble Lord, Lord Borrie. What we have sat through in Committee in the Moses Room and on Report is significant ideological opposition to the Macrory principles coming from the noble and learned Lord, Lord Lyell. He is perfectly entitled to his view and it is a pity that he did not express his view at Second Reading, which would have been the appropriate point, because he fundamentally disagrees with this Bill. His problem is that he keeps trying to amend it to make it better. I know that he is going to meet the Minister, but I predict that his meetings with whichever Minister or Ministers will not result in any resolution of his ideological objection to the Bill.
Fundamentally, what the noble and learned Lord wants, as the noble Lord, Lord Borrie, suggested, is that all these matters be referred to the lawyers and the courts. The Bill cannot deal with that. Either the Bill is defeated at Third Reading or it must be accepted, because we cannot keep trying to amend it as the noble and learned Lord suggests.
Taking one point made by the noble Lord, Lord Borrie, forget 40 years of operation of tribunals, which of course there has been, the pass has been massively sold in the creation of the FSA, which has been given huge powers. No one from any part of your Lordships' House suggests that the powers given to the FSA should be curtailed—that in some way judges or magistrates should be brought into the operation of the FSA. So the cat is long out of the bag on trying to roll back to only judges or only magistrates’ courts being able to deal with such matters.
I have a lot of sympathy what the noble and learned Lord, Lord Lyell, is saying—I do not agree with him, but I have sympathy with his view—but he will not achieve what he wants by trying to emasculate the Bill with his amendments. The appropriate thing would be to get to Third Reading and test the opinion of the House on whether we agree with him and his views.
I speak to Amendments No. 71 and 74 tabled by my noble and learned friend Lord Lyell of Markyate. As he has expressed them, his amendments would remove the appeal to a tribunal and return the situation to the status quo, which is the jurisdiction of the magistrates' courts and the county courts.
We seek clarification from the Government as to exactly how and to whom an appeal will be made and whether there will be further level of appeal; for example, to a second-tier tribunal or to the Court of Appeal. I expect the Government to explain that in some detail.
We also must know on whom rests the burden of proof before the tribunal. Can the tribunal substitute no penalty or any level of penalty it considers just, or can it increase the penalty? Those are questions that must be answered before we can even start to consider the Government’s proposals for this part. The Government may be content to give a fairly lofty view, but we all know that the rudimentary mechanics are often the very things that determine how a scheme works or does not.
My Lords, I thank the noble and learned Lord for coming back to this issue. I have to tell him that the amendments go to the very heart of the Macrory review, as the noble Lord, Lord Razzall, successfully argued.
We believe that tribunals are the most appropriate venue for hearing appeals against the new sanctions. As was said in Committee, the Macrory recommendation was supported by a range of important bodies, including the Council of Her Majesty Circuit Judges. It was also supported by the Council on Tribunals, now the Administrative Justice and Tribunals Council. I am sorry that the chairman of that body, the noble Lord, Lord Newton of Braintree, is not in his place.
If I may, I shall cite the council's response to the consultation on the draft Bill. It stated:
“The Council strongly supports the proposal ... to work within the new unified tribunal system set up by the Tribunals, Courts and Enforcement Act. The Council does not think it appropriate, in the context of the Macrory review, to continue to use the criminal courts for hearing appeals.”
There are a number of advantages in routing appeals against the new sanctions to a specialist and expert tribunal rather than to the courts. First, that will allow the criminal courts to concentrate on those cases that warrant a prosecution, rather than adjudicating on civil appeals. Secondly, tribunals can comprise members with both legal and specialist expertise in the subject matter before the tribunal, thereby providing it with a fuller understanding of the regulatory issues. Regulatory cases could be concentrated through one tribunal, enabling expertise to be built up over time. By contrast, cases of regulatory non-compliance make up less than 1 per cent of all cases heard in magistrates’ courts, making it difficult to provide specific training to magistrates and legal advisers.
The noble and learned Lord said on an earlier occasion that people will have to spend a lot of time and money going to a tribunal. Of course, they will need to go to a tribunal only if they wish to challenge the imposition of a sanction, unlike criminal prosecution where every case must go through the court. I reiterate that tribunals are considered to be more accessible than the courts, so businesses and individuals will be able to present their own cases, should they wish to do so, without the need for legal advice or representation.
The crucial point, which I do not think has been fully grasped, is that tribunals will be independent from regulators and will be able to ensure that the procedural and other rights of businesses and individuals are protected. This is what tribunals do now, as my noble friend Lord Borrie said, and have done for many, many years, including the period when the noble and learned Lord served the high office of Attorney-General with great distinction. We have ensured that the Bill allows for further provision to be made on such matters, if necessary, through Clause 53.
I understand the noble and learned Lord’s concerns about what he sees as the ousting of the jurisdiction of the criminal courts, but let me stress again that the new civil sanctions are an alternative to criminal prosecution. The courts can and will have a role to play in regulatory offences. Professor Macrory made a number of other recommendations on the criminal court, which we also accept in full and are taking forward.
I shall for now deal quickly with the burden and standard of proof. The noble and learned Lord expressed concern that the appeal to a tribunal imposes a greater burden on those who have received a civil sanction. He asked in particular about the burden of proof. Let me put the matter into context. I shall start at the beginning. In a criminal prosecution, as he knows so much better than I do, the prosecution must satisfy the court beyond reasonable doubt that the defendant is liable or guilty of the offence charged. In the case of a civil sanction under the Bill, the regulator will need to satisfy himself to same standard—that is, beyond reasonable doubt—that the person has committed the relevant offence. In making this determination, I repeat that the regulator must be satisfied to the criminal standard of proof and must hear representations and objections against liability on the one hand and against punishment or sanction on the other, and is disallowed from imposing the sanction if the person has a defence to the relevant offence.
My Lords, the Minister has just said that the regulator, before he imposes a sentence—if I may use that expression—has gone through the processes of being regulator, investigator, prosecutor, judge and jury, and sentencer, and satisfied himself. No independent person has been satisfied, have they?
My Lords, the regulator must be sure before he can find liability and impose a sanction. That is right. The independent element is the right of appeal to a tribunal, which will always be chaired, as I understand it, by a lawyer. The lawyer may sit on his own or may, on as many occasions, be with one other or with two others.
Under the Bill, a person may then challenge a regulator’s determination of liability by responding to a notice of intent by raising objections, representations and defences. It will then fall to a regulator, having received these submissions, to consider whether he remains satisfied beyond reasonable doubt that the relevant offence has been committed before he can find liability and thus move on to sanction.
Secondly, under a provision in the Bill, a person can challenge a decision to impose the sanction by appealing. The specified grounds of appeal differ in detail from sanction to sanction. Generally speaking, a person can appeal in effect both as to liability and the sanction by arguing successfully—against conviction and sentence—that the decision was based on an error of fact, was wrong in law or was unreasonable. It will be for the tribunal to decide whether that is so, in the same way as it is for the Court of Criminal Appeal to decide, in an appeal against conviction from the Crown Court, whether the conviction was safe or unsafe.
The question of burden and standard of proof does not seem to arise as far as that is concerned. It is for the court to decide whether it is unsafe or safe that the conviction maintains. Here, it will be for the tribunal to decide whether the finding of liability was safe or unsafe. Was there an error of fact; was there an error of law; or was it unreasonable? In the case of discretionary requirements and stop notices, a person can also argue that a requirement in the notice, such as the level of monetary penalty, is unreasonable. These grounds would allow a person to challenge the evidence on which the decision was based on the grounds that it contained some error of fact. We expect that it would then fall on the regulator to satisfy the tribunal as to whether there had been an error or whether that error should not prevent them still being satisfied as to the commission of the offence to the criminal standard.
Similarly, a person can challenge a regulator’s earlier rejection of a defence by saying that the decision was based on an error of law or was somehow unreasonable. Once these grounds have been raised and argued, we expect it to be for the regulator to rebut such grounds. However, in common with other legislation that sets up tribunals and courts, that leaves the detailed provision as to the procedure of appeals to secondary legislation. Under Clauses 53 and 54, the order can make provision about the powers and procedure of the tribunal. In addition, the Minister will need to ensure that such provision is compatible with obligations under the Human Rights Act.
I have gone on a long time, but this is an important amendment that the noble and learned Lord has brought, so I have tried to answer his questions. On the panel composition, the deployment is a matter for the judiciary, which will discuss composition with it. Appeals cannot be heard by an official. They must be heard by an independent person who is likely, as I understand it, to be a lawyer, a legally trained person.
What will the powers of the tribunal be? Clause 53(4) sets out those powers. It can reduce or substitute the penalty decision, can remit the decision back to the regulator and can allow further provision to be made. The noble and learned Lord raised an interesting point on suspension. A penalty can be suspended pending the appeal under Clause 53(3)(a). Under that clause, the matter is to be left to the order that is made. The order could provide that the effect of the sanction can be suspended automatically. I have tried to answer the debate that the noble and learned Lord has raised and I hope that he will withdraw his amendment.
My Lords, I am grateful to the noble Lord and I shall read carefully what he has said. On his final point, could he clarify whether the Government intend to make suspension—once an appeal has been put in—automatic? That would seem to be a good deal fairer.
My Lords, that is perfectly reasonable and I am most grateful to the noble Lord. On burden of proof, the Minister has given a careful answer, which seems to amount—I do not know whether he caught the attention of the noble Lord, Lord Neill of Bladen—to the fact that if on appeal you raise an arguable issue, the burden shifts to the regulator to establish his case. That may or may not be the case, but you have to find an arguable issue, otherwise the burden is on the defendant. Again, I would like to read carefully what the Minister has said in order to remind myself of how the criminal law operates in this world. I noticed that the Minister followed closely the criminal law procedures, and we can both discuss it carefully. It may be that, without being as radical as I am thought to be, some solution could be found which would in a mild way ameliorate some of what is going on.
I want to say a word to the House about what the noble Lord, Lord Borrie, and, to some extent, the noble Lord, Lord Razzall, have said. They seem to think that I am some kind of ideologue who does not like tribunals. I have probably appeared in more tribunals than 80 per cent of the noble Lords now sitting in the Chamber or probably at any other time. I have enormous respect for tribunals and they unquestionably have their place. The noble Lord, Lord Borrie, mentioned the employment tribunals. I did about 100 cases in front of those tribunals and the industrial relations court, and they were brilliant. You could predict what they were going to do and thus give good advice to the client. That led to sensible settlements being made behind the scenes and, almost invariably in my experience, that in turn led to justice. So I have a very high opinion of tribunals in many areas.
The noble Baroness mentioned in her speech on 19 March that tribunals are operating in some 15 areas at the moment. She referred to tribunals in relation to the Health and Safety Executive and the Financial Services Authority. I confess that I ought to have known about the tribunals related to the Trading Standards Institute, but I did not. I see the noble Lord, Lord Borrie, indicating that he did not know about them either. If the noble Lord does not know about those tribunals, who does? I also did not know that the Office of the Rail Regulator ran tribunals. Perhaps the Minister would be kind enough to confirm by a nod or otherwise that if I write and ask him to give me a reasonable amount of detail about the 15 tribunals that he relies on, he would do that.
I have made the point before that I am not an ideologue about this; it is not in my nature. My point is that we are dealing with specialised tribunals—I have praised the VAT tribunal many times—which operate in areas where there are large sums of money and involve people who are on the whole substantial in the business world, can employ good lawyers and can look after themselves. If that was what we were dealing with, I would not be worried by what the Government are setting up. But this will involve far more cases. Statistical figures are bandied around without really thinking about them. The Minister read out a piece which I think may have come from a Macrory report, although I am a bit surprised because Professor Macrory is pretty meticulous. It said that only 1 per cent of magistrates’ court cases relate to regulatory matters. There are roughly 1 million cases in the magistrates’ courts each year, so 1 per cent is 10,000 cases. The Government themselves, whose figures I have pointed out ad nauseam are wrong, say that there are 15,000. I have said that the minimum figure is 36,000, and that figure does not even take into account the cases dealt with by local authorities.
I am not asking these questions to waste the time of the House, but because the Government have got this all out of scale. They are introducing a system with figures they have plucked from the air. If 9,000 of those 15,000 cases are going to go administrative penalty, the number of cases that will go before these tribunals will increase enormously unless people are frightened off. I think that in minor cases where an injustice has been done, people will be frightened off. The point made by the Law Lords and the circuit judges sought to deal with highly specialised cases which might tie up the time of a Crown Court or a magistrates’ court. I would not mind if the Government could think of a system whereby genuine, highly specialised cases are hived off to a tribunal. I am not sufficiently familiar with the present tribunals Act to know how much flexibility there is within the court system, but that might be acceptable.
These tens of thousands, maybe hundreds of thousands, of defendants—I am calling them “defendants” and I have been criticised for using the criminal language because they are involved in civil cases, but, as the noble Lord, Lord Neill, has pointed out, we are on the cusp between civil and criminal here—have to stir themselves to find the tribunal, to write the right kind of letter and to make the application for the penalty to be suspended. It is tricky stuff. In the magistrates court it is quite straightforward.
Once you get to the tribunal it will probably be very helpful, but I am worried about the big picture and the complication of getting there. That is why I am saying, once again, that we should keep much more to the courts. Today, 99 per cent of cases are dealt with by magistrates and probably 85 per cent of those are pleas of guilty. People have accepted and live with the kind of penalty that magistrates give. This is a new ball game as far as penalties are concerned and there is a real danger of unrest.
I am sorry to come back to my worries, but noble Lords will see how they tie in with the amendment and why I am probing the whole purpose of the Government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 72 to 74 not moved.]
Clause 54 [Other provision]:
75: Clause 54, page 26, line 27, leave out paragraph (b)
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 76, 77, 78, 84, 86, 87, 88, 90, 91, 94, 96 and 97.
Amendments Nos. 75 and 76 arise from recommendations by the Delegated Powers and Regulatory Reform Committee which questioned the power in Clause 54(3)(b) to authorise the use of information in evidence which could not otherwise lawfully be used. It accepted the need for such a power but recommended that this be limited to replicating provision which already exists for prosecuting the parallel criminal offence. We are happy to accept the committee’s recommendations and Amendments Nos. 75 and 76 give effect to this.
Amendments Nos. 77, 78, 84, 86, 87, 88, 90, 91, 94, 96 and 97 simplify the drafting of certain provisions in Part 3 of the Bill by creating a common definition clause. The Bill contains a number of references to the “relevant authority”—that is, the Minister or Welsh Minister who makes an order under the powers in Part 3—with a definition of this term each time. As a result of Amendment No. 85, which we will come to shortly, we would have needed a further reference in the Bill to the “relevant authority”. We have decided instead that it would be simpler to strip out these references and have one common definition of the term. Amendments Nos. 77, 87, 90 and 94 therefore remove the definition of “relevant authority” from Clauses 59, 64, 65 and 66 respectively, and Amendment No. 97 adds the definition to Clause 69 instead. Clause 69 deals with the interpretation of Part 3 and is the natural home for this.
Similarly, there are a number of clauses in Part 3 which make reference to “civil sanctions” by listing the new sanctions in full. Again we would have needed a further list of the sanctions as a result of Amendment No. 85 but have decided instead to simplify these provisions as well. Amendments Nos. 78, 84, 86 and 88 simplify the lists of sanctions in Clauses 62, 63 and 65 respectively by replacing them with the defined term of “civil sanctions”. Amendment No. 96 would then add a definition of “civil sanctions” to Clause 69. It also defines the term “discretionary requirements”.
Finally, Amendment No. 91 amends Clause 66(1) to bring consistency of drafting to this provision. I trust noble Lords will agree that these amendments simplify the drafting of Part 3 of the Bill. I beg to move.
On Question, amendment agreed to.
76: Clause 54, page 26, line 29, at end insert—
“(d) where information is authorised to be used in evidence in criminal proceedings, authorises its use in relation to the use of any power to impose a civil sanction conferred under or by virtue of this Part.”
On Question, amendment agreed to.
Clause 59 [Consultation: general]:
77: Clause 59, page 27, line 35, leave out subsection (4)
On Question, amendment agreed to.
Clause 62 [Guidance as to use of civil sanctions]:
78: Clause 62, page 28, line 35, leave out paragraphs (a) to (d) and insert “to impose a civil sanction in relation to an offence”
On Question, amendment agreed to.
79: Clause 62, page 28, line 41, leave out paragraph (a) and insert—
“(a) a Minister of the Crown and the Welsh Ministers must publish guidance about the use of the sanction,”
The noble Baroness said: My Lords, at this late hour I will try to be as quick as I can. The Minister could of course help me in that by immediately intervening as soon as I start speaking to give me what I want.
The amendments ensure that national guidance can be issued about the appropriate use of civil sanctions by the Ministers with responsibility for the legislation under which the penalties can be used. I apologise; I meant to say that I am speaking to Amendments Nos. 79 to 92. We on these Benches still feel that a requirement for every local authority and every national regulator to have to issue its own guidance about its use of civil sanctions for the same pieces of legislation is unnecessary and could promote inconsistency. The Bill requires every national regulator and every local authority to issue guidance, which is not only time-consuming and hideously bureaucratic but is a system that could also lead to inconsistencies.
The amendments that we have proposed would ensure that national guidance could be issued about the appropriate use of civil sanctions by the Ministers with responsibility for the legislation under which the penalties can be used. That would mean there would be a single set of national guidance on how civil sanctions should be used for a specific piece of legislation. As your Lordships will of course be aware, this is an amendment that my noble friends have previously laid and discussed in the Moses Room. I am insisting on this group of amendments again because we feel that our justifications were not fully understood before by the Minister, the noble Baroness, Lady Vadera, when she said:
“Where there is no national regulator, such as on environmental health or trading standards, we would expect the LBRO to take the lead in preparing guidance”.—[Official Report, 6/2/08; col. GC 591.]
I hope that next time the civil servants brief the Minister better with what “environmental health” and “trading standards” services do and what their full remit encompasses. Sometimes, some parts of environmental health legislation and some parts of trading standards legislation are led by a “national regulator”; for example, the Food Standards Agency or the Office of Fair Trading.
This raft of amendments has been suggested by LACORS, the Local Authority Coordinators of Regulatory Services, which is an instrument of local government that has been around for 30 years and hence has huge authority in the regulating business. The Minister would be wise to listen to its proposals. The amendments deem it apt and appropriate for councils to produce an individual enforcement policy setting out the general circumstances in which they will take enforcement action. The majority of councils already have an enforcement policy; indeed, regulators should publish an enforcement policy under the regulator’s compliance code that comes into force in April 2008. There is always a government department or agency responsible for all environmental health and trading standards legislation, and sometimes a national regulator as well. We feel that the appropriate Minister should have responsibility for issuing guidance.
It is a good idea for councils to have regard to national guidance issued by the Minister. It is appropriate for every council to issue its own guidance on how it specifically intends to use the civil sanctions in relation to every piece of legislation. I cannot believe that a national multisite business will want to read several hundred individual sets of guidance, for each piece of legislation. Surely the Minister cannot find fault with amendments that would reduce costs for local authorities, assist regulated persons and entities, particularly multisite businesses, and help ensure consistency in approach—which is, after all, a stated aim of the Bill.
My Lords, we have considerable sympathy with the sentiments behind the amendments, particularly when it comes to consistency. It is worth stressing again that the requirement in Clause 62 is to publish guidance; the clause does not refer to who prepares that guidance. The regulators should publish the guidance because we believe that the regulated community will look to them for this kind of information. For example, a business in the West Midlands will look to its local trading standards office for guidance on the new sanctions, rather than BERR’s website. Concern has been expressed by LACORS about who produces the guidance and the potential workload. I have spoken to the chief executive of LACORS, who is now satisfied about the workload involved. I can understand that not every individual local authority will want to produce guidance on its own, which would defeat the purpose of improving consistency.
In the event of a national regulator working in partnership with local authorities, such as on food safety, we would expect the regulator to prepare the guidance in consultation with the LBRO and local authorities, and then for the local authorities to publish the guidance. Where there is no national regulator, the LBRO would prepare the guidance, working with the relevant government department and the local authorities. The local authorities, as regulators, would then publish the guidance. This approach should help reduce the workload for local authorities and ensure the consistency which we agree with the noble Baroness is critical. We have set out on pages 44 and 45 of the guide to the Bill exactly how the approach will operate, so that local authorities will not be left exposed. I hope that, in light of what I have said and of the fact that the head of LACORS is now satisfied, the noble Baroness will feel able to withdraw her amendment.
My Lords, I thank the Minister for that most helpful answer. I will not delay the House any longer. I shall read what the Minister said and speak with LACORS. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 80 to 82 not moved.]
83: Clause 62, page 29, line 13, leave out paragraphs (c) and (d) and insert—
“(c) the amount of the penalty,(d) how liability for the penalty may be discharged and the effect of discharge, and(e) rights to make representations and objections and rights of appeal.”
On Question, amendment agreed to.
Clause 63 [Guidance as to enforcement of relevant offences]:
84: Clause 63, page 29, line 31, leave out paragraphs (a) to (d) and insert “to impose a civil sanction in relation to an offence”
On Question, amendment agreed to.
85: After Clause 63, insert the following new Clause—
“Publication of enforcement action
(1) Where power is conferred on a regulator under or by virtue of this Part to impose a civil sanction in relation to an offence, the provision conferring the power must, subject to this section, secure the result in subsection (2).
(2) That result is that the regulator must from time to time publish reports specifying—
(a) the cases in which the civil sanction has been imposed,(b) where the civil sanction is a fixed monetary penalty, the cases in which liability to the penalty has been discharged pursuant to section 39(2)(b), and(c) where the civil sanction is a discretionary requirement, the cases in which an undertaking referred to in section 42(5) is accepted from a person.(3) In subsection (2)(a), the reference to cases in which the civil sanction has been imposed do not include cases where the sanction has been imposed but overturned on appeal.
(4) The provision conferring the power need not secure the result in subsection (2) in cases where the relevant authority considers that it would be inappropriate to do so.”
The noble Baroness said: My Lords, the amendment would require regulators to publicise on a regular basis details of their completed enforcement actions imposed under the powers in Part 3 of the Bill; that is, when a civil sanction is imposed or an undertaking accepted. The amendment is similar to Amendment No. 179A tabled by the noble Lord, Lord Razzall, in Grand Committee. As we said at the time, publicising enforcement activity is an accepted government policy and was a key recommendation of the Macrory review. While we had originally intended that this issue should be dealt with through guidance, we understand the concerns that have been raised and are happy to place the requirement on a statutory footing. The new clause also excludes decisions by the regulator that are overturned on appeal, which takes account of the concerns raised in Committee by the noble Lord, Lord Hodgson of Astley Abbotts.
Amendment No. 85 contains one important difference from the amendment tabled by the noble Lord, Lord Razzall. New subsection (4) allows the Minister to exempt certain cases from the publicity requirement. This captures cases where there may be data protection implications or other important grounds for not publishing some details of a case; for example, exempting enforcement action that has been taken under the Animals (Scientific Procedures) Act 1986, since this would disclose the fact that certain individuals or companies are involved in animal research. For security and safety reasons, it is not Home Office practice to publish such information. I beg to move.
My Lords, I hope that something can be done about the language of new subsection (1). It reads like a translation from German. It states:
“Where power is conferred on a regulator under or by virtue of this Part to impose a civil sanction in relation to an offence, the provision conferring the power must, subject to this section, secure the result in subsection (2)”.
Could it not be written in straightforward English? If one exercises a power, one has to publish reports that say A, B and C—but the subsection is drafted in the most extraordinary manner.
On new subsection (3), I take the point that the sanction imposed might have been overturned on appeal, but I do not see why the report should not state that fact. It would be quite an interesting fact for people to know—“sanctions imposed 1,000 times and half of those overturned on appeal” or whatever.
86: Clause 64, page 30, line 7, leave out paragraphs (a) to (d) and insert “to impose a civil sanction in relation to an offence”
87: Clause 64, page 30, line 13, leave out subsection (2)
On Question, amendments agreed to.
Clause 65 [Review]:
88: Clause 65, page 30, line 22, leave out paragraphs (a) to (d) and insert “to impose a civil sanction in relation to an offence”
On Question, amendment agreed to.
88A: Clause 65, page 30, line 26, leave out from “place” to “beginning” in line 27 and insert “every third year,”
The noble Lord said: The amendment would help to ensure that the exercise of business penalty powers under the Bill would continue, over time, to be approached on the basis of the better regulation principles outlined in Clause 5(2). The Government have already accepted that in awarding the powers to a regulator, the relevant authority—the relevant Minister—must satisfy himself that they will be exercised in accordance with Clause 5(2) and we are grateful for the amendment to that effect, which is good as far as it goes.
The Bill already proposes that there should be a review of the operation of these powers after three years. That, too, is good as far as it goes. However, it leaves a void about what should happen beyond three years, which is long after those who were involved in the preparation and passage of the Bill have moved on. By tabling Amendment No. 164 in Committee, the Government acknowledged in legislative form, as they have consistently done in non-legislative form, the importance that they attach to the regulators with Macrory-style penalty powers acting along Hampton or better regulation lines. That was a view expressed by Professor Macrory himself and both he and business have regarded it as an essential safeguard against the new penalty system becoming a revenue-raising, tick-box system of penalties.
We therefore believe that it is reasonable that at the very least there should be some sort of ongoing monitoring of how regulators are exercising these powers. More than that, regulators will be more likely to monitor their own performance if they know that they are to be reviewed. The very fact of the review process will go some way to ensuring compliance.
In this, we are particularly concerned about the situation in which hundreds of local authorities may have been granted these powers en bloc. That is why we tabled our Amendment No. 26 in Committee that would have required the LBRO to ensure ongoing compliance with the requirements of Clause 5(2) in the case of local authorities with Macrory-style powers. The Minister thought that this might place excessive demands on the LBRO, and that might be the case if this were interpreted as a day-to-day monitoring requirement.
The amendment now under discussion attempts to achieve a similar end in a different way. We envisage that under the powers granted to the relevant Minister in the Bill, he could ask or direct the LBRO to undertake this review on his behalf and we would welcome that. But the current amendment should have a reduced impact on the Minister or the LBRO in that the review will happen only every three years. Moreover, we have not added any further obligations once the review is completed. We have not, for example, added a requirement, which was perhaps implicit in our original amendment, that any authority found to be wanting should have its powers revoked—that is already provided for to some extent in a more draconian fashion in Clause 64 of the Bill. So the review will only have a persuasive impact on the enforcers and on the Minister who might be minded to issue a direction to the enforcer to change its approach where it is found wanting.
Acceptance of this amendment would go a long way to reassuring the business community that the whole basis of business penalties, about which it has many reservations and concerns, will be that of a better regulation approach to enforcement. I beg to move.
My Lords, I thank the noble Lord for raising this issue. Clause 65 requires the Minister who made the order giving a regulator access to the new civil sanctions to review whether that order has implemented its objectives. In conducting the review, the Minister will have regard to such issues as whether there are any obstacles to the use of the new sanctioning powers, whether the drafting of the order has caused any unintended consequences, or whether the way the sanctions have been implemented has created incentives to use particular sanctions. The review will be focusing on the design and implementation of the sanctioning regime in the legislative order.
Like other post-implementation reviews, however, this is a one-off review. Amendment No. 88A would go further and require the Minister to review the order every three years.
We do not expect a tick-box revenue-raising exercise given that it will be the Treasury and not the regulators which will keep the revenue. I question the value of a rolling three-year review relative to the ongoing bureacucracy and constant review process that it will engender, in particular given that we would expect any failings in the design of the sanctioning regime to have been identified within the first three years of operation and as needs may arise on an ongoing basis. There is nothing, of course, which prevents the Minister and the regulator from conducting further reviews on an ad hoc basis. This is a much more flexible approach to this issue than an inflexible and onerous requirement to conduct a review every three years.
There are other safeguards, some of which the noble Lord alluded to. The Minister has the power to suspend a regulator’s sanctioning powers in the event of persistent misuse of the sanctions. There will also be other checks and balances. For example, if a regulator’s decisions are consistently overturned on appeal, we would expect the Senior President of Tribunals to bring such matters to the Government’s attention as part of his duty to make an annual report under Section 43 of the Tribunals, Courts and Enforcement Act 2007. Regulators are already obliged to have regard to the better regulation principles contained in the compliance code. Regulators are already subject to regular Hampton implementation reviews. As noble Lords may know, the first five such reviews were published on 20 March. Ministers also have the right to monitor a regulator’s performance as part of existing governance arrangements. These mechanisms will be effective in discovering problems in the culture and performance of regulators. I hope that in the light of the comprehensive set of checks that already exist on regulators the noble Lord will feel able to withdraw the amendment.
My Lords, I also wish to speak to Amendment No. 89. This amendment covers the same ground as Amendment No. 167 that the noble Lord, Lord Cope of Berkeley, moved in Grand Committee on 23 January.
The Government are keen to see transparency through the publication of post-implementation reviews. While the regulator is already required by Clause 65 to publish the results of the review, we are happy to strengthen this provision further. Amendment No. 89 would therefore require a Minister to lay before Parliament or the National Assembly for Wales, where appropriate, a copy of the post-implementation review that he is required to conduct under Clause 65.
My Lords, I am most grateful to the Minister. I am particularly interested that ad hoc reviews are contemplated, which I think is helpful. I shall read her words carefully. For the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
89: Clause 65, page 30, line 32, at end insert—
“( ) The relevant authority must lay a copy of a review under this section—
(a) before Parliament (where the relevant authority is a Minister of the Crown), or(b) before the National Assembly for Wales (where the relevant authority is the Welsh Ministers).”
90: Clause 65, page 30, line 33, leave out subsection (6)
On Question, amendments agreed to.
Clause 66 [Suspension]:
91: Clause 66, page 30, line 40, after “regulator” insert “to impose a civil sanction”
92: Clause 66, page 31, line 2, leave out “notice of the kind” and insert “notice of intent”
93: Clause 66, page 31, line 5, leave out “notice of the kind” and insert “notice of intent”
94: Clause 66, page 31, line 40, leave out subsection (7)
On Question, amendments agreed to.
Clause 67 [Payment of penalties into Consolidated Fund etc]:
95: Clause 67, page 32, line 8, at end insert “or
(c) a sum paid in discharge of liability to a fixed monetary penalty pursuant to section 39(2)(b),”
On Question, amendment agreed to.
Clause 69 [Interpretation of Part 3]:
96: Clause 69, page 32, line 37, at end insert—
““civil sanction” means a fixed monetary penalty, discretionary requirement, stop notice or enforcement undertaking (and references to imposition of a civil sanction include acceptance of an enforcement undertaking);
“discretionary requirement” has the meaning given in section 41(3);”
97: Clause 69, page 33, line 4, at end insert—
““relevant authority” means—
(a) in relation to provision made under or by virtue of this Part by a Minister of the Crown, that Minister, and(b) in relation to provision made under or by virtue of this Part by the Welsh Ministers, the Welsh Ministers;”
On Question, amendments agreed to.
Clause 70 [Duty not to impose or maintain unnecessary burdens]:
98: Clause 70, page 33, line 15, at end insert “keep that function under review and”
The noble Baroness said: My Lords, in moving Amendment No. 98 I wish to speak also to government Amendments Nos. 99, 100, 102, 103 and 104. The noble Lord, Lord Razzall, was particularly keen that we should address the points raised by my noble friend Lord Borrie in Committee. We are very grateful to my noble friend for the clarity that he brought to this part of the Bill. The government amendments reflect his insight. I hope that in the light of what I say, the noble Lord, Lord Razzall, and the noble Baroness, Lady Wilcox, will feel able to support the inclusion of Part 4 in the Bill.
Government Amendment No. 98 adds to the duty not to impose or maintain unnecessary burdens a requirement that any regulator to which the duty applies must also keep its functions under review. It is intended that the review of regulatory functions to which this duty has been applied should be carried out within a reasonable timeframe following application of the duty and in sufficient detail to identify unnecessary burdens.
Amendments Nos. 99 and 100 make clear that it is the regulator that decides which of its burdens are unnecessary as a result of that review. I turn to Amendments Nos. 102, 103 and 104. My noble friends Lord Berkeley and Lord Borrie expressed in Committee concern that the mechanism by which the duty is applied—a ministerial order made under powers conferred in Clause 71—may be perceived to be an interference with regulators’ independence. That was never our intention, but the concern was shared by a number of regulators. As a result of discussions with those regulators, the Gas and Electricity Markets Authority, the Office of Fair Trading, the Office of Rail Regulation, the Postal Services Commission and the Water Services Regulatory Authority have all asked to have the duty in Clause 70 applied to them immediately via the Bill. This will avoid any potential perception of ministerial interference by this duty in the future. Amendment No. 102 answers that request and applies a duty to them.
The economic regulators to which we are applying the duty have significant regulatory powers in respect of a large part of the UK economy. Not including the OFT, we are dealing with a regulated sector worth more than £38 billion per year to the UK economy. Administrative burdens alone, for example imposed by the OFT and Ofgem, amount to more than £64 million. Ofcom, which regulates the telecoms and communications sector, is subject to a duty that is similar to the duty in Part 4. It has reported in its simplification plan a reduction of burdens on business of around £3.5 million in 2007. If we could replicate even a small proportion of that in other parts of the economy through the removal of unnecessary burdens, the Bill will have proved its worth. The amendment will also implement a recommendation made in the recent Select Committee report on economic regulators by statutorily requiring those regulators to remove regulatory burdens wherever possible.
The amendment tabled by the noble Lord, Lord Razzall, and the noble Baroness, Lady Wilcox, would remove this part of the Bill altogether. That would remove a key tool for securing the removal of regulatory burdens for a significant proportion of the economy and would frustrate the implementation of the House of Lords Select Committee’s clear recommendation. We previously assured noble Lords that we did not intend for the duty to be applied to the competition functions of the regulators in a way that would give scope to undermine or second guess their decisions. In fact, we have gone rather further. To address the concerns of my noble friend Lord Borrie, we have excluded any functions that are carried out under competition law. Other than the regulators detailed in Amendment No. 102, the duty will not be applied to any other regulators, including local authorities, via the Bill. The duty will be applied only where and when appropriate by order, and the orders will be agreed by Parliament. I beg to move.
My Lords, I am not sure whether I will be popular or unpopular if I take this debate through 10.40 pm; or with whom I will be popular. I cannot guarantee to speak for as long as various other noble Lords, but I will try my best.
I very much welcome the remarks made by the noble Baroness. As she will be aware, we tabled amendments that would effectively have deleted Part 4. We did so for two reasons: first, for the reason of substance, which has been very much dealt with by the noble Baroness; and, secondly, we were concerned by the procedure that had been followed regarding Part 4. It is not often that I get confused between substance and procedure, but in this case it is a particular pity that the noble Lord, Lord Neill of Bladen, is no longer in his place, because he rather admonished me on why he had not got involved in the pre-legislative scrutiny. It is important, and I have congratulated the Minister’s department over the years on the way in which it has developed pre-legislative scrutiny and consultation on quite important Bills. The problem with Part 4 is that, although there was extensive consultation and scrutiny regarding the Macrory proposals and the Bill, Part 4 was very much tacked on at the end without any appropriate consultation.
It is very much to the credit of the noble Lord, Lord Borrie, that the Government have been—not forced, because I am sure that the noble Lord, Lord Borrie, does not force anyone to do anything—persuaded to table the amendments. I am grateful for that. If there is a lesson to be drawn from the Government’s point of view, I hope it will be that important provisions should not be tacked on at the end of a Bill when proper pre-legislative scrutiny has not taken place.
If I go on for one more minute, I will certainly be the most popular man outside this Chamber. In the circumstances, I do not propose to move Amendments Nos. 101 and 105, which stand in my name.
My Lords, I shall get in as well; I hope that I am not competing with the noble Baroness. I want to thank the Minister and the noble Lord, Lord Razzall, for the kind remarks that they made about my amendment in Grand Committee. Clearly the Government—the Minister and officials, no doubt—have done a great deal of work, no doubt in consultation with several regulators, which are hardly likely to have all said exactly the same thing. She seems to have come up with a most suitable range of amendments to deal with a problem, and I need add nothing further.
My Lords, before there is an unalloyed vote of praise for the Minister, I should briefly sound a discordant note. I thought that Amendments Nos. 101 and 105 were rather fine, because they would have kicked Part 4 out of the Bill. It was a late arrival, was ill consulted on, and is probably one of the most unnecessary pieces of legislation I have ever had the privilege to speak on. I predict that it will never be used; the Minister knows my views. The proposition is a sort of punishment step for regulators. The reality is that if a regulator ever got to the point where a parliamentary order would have to be approved to make it necessary for it to report on removing unnecessary burdens, not only would the chairman and the chief exec have been sacked by then, but probably most of the board as well. It is a very unnecessary part of the Bill but it is here, so we must acquiesce to some extent. By way of a small sop at this time of night, I say that government Amendments Nos. 98 to 100 are an improvement—a good darn in a bad sock.
99: Clause 70, page 33, line 17, leave out “are” and insert “that person considers to be”
100: Clause 70, page 33, line 18, after “which” insert “that person considers to”
On Question, amendments agreed to.
[Amendment No. 101 not moved.]
Clause 71 [Functions to which section 70 applies]:
102: Clause 71, page 34, line 8, leave out subsections (1) and (2) and insert—
“(1A) Section 70 applies to the following regulatory functions—
(a) the regulatory functions specified in subsection (1B),(b) any regulatory function specified by a Minister of the Crown by order in accordance with this section, and(c) any regulatory function specified by the Welsh Ministers by order in accordance with this section. (1B) The regulatory functions referred to in subsection (1A)(a) are the regulatory functions exercised by—
(a) the Gas and Electricity Markets Authority,(b) the Office of Fair Trading,(c) the Office of Rail Regulation,(d) the Postal Services Commission, and(e) the Water Services Regulation Authority,other than any function exercised under competition law.(1C) Any reference in subsection (1B) to a regulatory function—
(a) where the function is exercisable in Scotland, does not include the function if or to the extent that it relates to matters which are not reserved matters,(b) where the function is exercisable in Northern Ireland, does not include the function if or to the extent that it relates to matters which are transferred matters, and(c) where the function is exercisable in Wales, does not include the function if or to the extent that it relates to a Welsh ministerial matter.”
103: Clause 71, page 34, line 11, after “Minister” insert “of the Crown”
104: Clause 71, page 34, line 19, leave out from “may” to end of line 21 and insert “only specify under this section a regulatory function if or to the extent that it relates to a Welsh ministerial matter.”
On Question, amendments agreed to.
[Amendment No. 105 not moved.]
Clause 73 [Extent]:
[Amendment No. 106 not moved.]
Clause 74 [Commencement]:
[Amendment No. 107 not moved.]
House adjourned at 10.43 pm.