Mr.
Prisk: I shall conclude my remarks by saying that we have
probably exercised this issue up and down and in and out. On that
basis, I shall not delay the Committee any
further. Question
put and agreed
to. Clause
52 ordered to stand part of the
Bill. Clause
53 ordered to stand part of the Bill.
Clause
54Appeals Question
proposed, That the clause stand part of the
Bill.
Mr.
McFadden: It is important to pause on clause 54 because
much reference was made during our debates here, but also in the other
place, to the judicial protections for people who are subject to the
regulations. Clause 54 requires that appeals under part 3 of the Bill
must be heard by either the first-tier tribunal or another statutory
tribunal specified by the Minister in the order made under that part.
An appeal to such tribunals provides an important safeguard for
businesses against the misuse of the civil sanctions. These tribunals
are independent, impartial and highly qualified to review a
regulator’s sanctioning decision.
Professor
Macrory, to whom I have referred a lot, found in his report a number of
advantages in routing appeals against the new sanctions to a
specialist, expert tribunal, rather than to the courts. First, that
will allow the criminal courts to concentrate on those issues that
warrant prosecution rather than adjudicating on civil appeals.
Secondly, tribunals can comprise members with legal and specialist
expertise in the subject matter before the tribunal, thereby providing
the tribunal on some occasions with a fuller understanding of the
regulatory issues. In another part of my work, I am the Minister for
employment relations, and have contact with the employment tribunals,
where the role of these wing members, as they are sometimes referred
to, or expert members, is often highly valuable. Regulatory cases could
be concentrated through one tribunal under the first-tier tribunals
heading as well, enabling expertise to be built up over time. For
example, in the cases of regulatory non-compliance in magistrates
courts, they make up less than 1 per cent. of all the cases, so it is
difficult to provide specific training to magistrates and legal
advisers for a field of law that, in percentage terms, is a small part
of their work. This gives us the capacity to build up over time
significant concentrated
expertise. We
have talked about small businesses, and it is also the case that
tribunals rather than courts may often encourage small businesses to
exercise their rights of appeal without the need for expensive legal
representation.
As I said, our preferred venue for such appeals is the first tier of a
tribunal, which is created by the Tribunals, Courts and Enforcement Act
2007. The first-tier tribunal will be launched later this year, and
most existing tribunal jurisdictions, such as the transport tribunal,
the information tribunal and the gambling appeals tribunal, will
eventually transfer across to become part of this. These jurisdictions
will be grouped together to form different chambers, and it is expected
that a regulatory chamber will hear appeals against sanctions for
regulatory non-compliance. Most of the
detail concerning composition, functions, procedures and powers and so
on is contained in the 2007 Act rather than in this Bill, but I want to
make it clear to the Committee that this is the vehicle that we see as
dealing with appeals. The tribunal will have legal members who are
professionally qualified in appropriate fields, and other experts. The
composition of a tribunal for a particular field will be determined
partly by statutory orders to be made by the Lord Chancellor,
specifying qualifications and numbers, and partly by the senior
president of tribunals and other judicial leaders. I should stress that
regulators and their sponsoring Departments will not have any influence
in such matters: the independence of the tribunal panel is further
guaranteed by section (1) of the 2007 Act, which extends the
courts’ statutory guarantee of independence under the
Constitutional Reform Act 2005 to the
tribunals. There
is an exception to all this in clause 54 (1)(b), which says that the
appeal could be held
by “another
tribunal created under an
enactment.” That
is to take account of the fact that a number of statutory tribunals
will not be transferring. The employment tribunals are a good example
of that. They currently hear, for example, some health and safety
appeals, so that is covered by subsection (1)(b). However, they have
similar characteristics and safeguards to the first-tier
tribunal. 9.45
am Subsection
(2) makes it clear that statutory tribunals only, not ordinary courts
of law, can be specified. However, they have similar characteristics
and safeguards to a first-tier tribunal. Subsection (3)(a) allows the
Minister, when setting out the power, to make provision for the
suspension of the effect of a fixed penalty or other requirement during
an appeal. A person could apply for a stop notice to be suspended
pending the result of an appeal. If that application is unsuccessful,
the notice will remain in force during the appeal. However, should the
person appeal, the effect of the stop notice can be automatically
suspended until the result is known.
Subsection
(3)(b) enables the Minister to make provision about the powers of the
tribunal. Examples of those powers are set out in subsection (4), which
details that the tribunal may
“withdraw the
requirement or notice...confirm the requirement or
notice...take such steps as the regulator could take in relation
to the
act” or
“remit the
decision...to the
regulator”. The
Bill is not prescriptive about the powers of the tribunal, because a
tribunal may have existing powers. Detailed rules governing the
exercise of the powers will be provided in the tribunal procedural
rules that will be
made under existing provisions of other Acts—I have mentioned the
Act that establishes such
things. The
clause is an important part of the machinery. We have talked a lot in
our debates on this part of the Bill about the different enforcement
options available to regulators, such as fixed monetary penalties,
variable monetary penalties, stop notices, restoration acts,
restoration notices and so on. The rights of appeal that we are talking
about to deal with the problem of judge and jury being one are set out
in the clause.
I hope that
is helpful in assuring members of the Committee that the measure is a
robust and important part of the enforcement
mechanism.
Mr.
Prisk: I am grateful to the Minister for those remarks. As
he said, we have rehearsed the arguments as to whether the measure
provides a sufficient protection as an appeal process in the absence of
the ability of someone whom we might call the accused to refer their
concerns to an ordinary court of law, so I do not propose to go over
them
again. The
clause permits appeals to be heard either by the first-tier tribunals,
which the Minister explained at some length, although I still have a
question. Subsection (1)(b also permits another statutory tribunal that
Ministers can specify. The Minister alluded to the fact that there is
some expectation that employment tribunals may participate, not least
because they handle health and safety at work cases.
I have two
separate but important questions. How significant a role does the
Minister envisage for non-first-tier tribunals, which are alluded to in
subsection (1)(b)? What estimate has his Department made of the costs
of the appeals process and what budget has been put to one side for the
first year, say, after the measure is
launched?
Mr.
McFadden: The hon. Gentleman’s first question
relates to the proportion of cases dealt with by first-tier or other
tribunals. The answer is that it depends on the jurisdiction. As I
said, one of the advantages to business, regulators and everyone
concerned is that hearing appeals through a tribunal can concentrate
experience and work of that nature over time and build up expertise.
However, when the jurisdiction is not dealt with by the first-tier
tribunal but by an employment tribunal, the latter would deal with the
process. Given that this is enabling legislation covering a significant
degree of enactments, it is difficult for me to give the hon. Gentleman
the percentages of first-tier and other tribunals. The answer to the
question is that it will depend on the jurisdiction and the issue at
heart; health and safety, for example, might be dealt with by other
tribunals, other issues that we have talked about might not.
I may have to
return to the hon. Gentleman with the answer to his question about the
budgets that have been set aside. On costs, this is one of the parts of
the Bill that I was referring to when I mentioned the impact assessment
the other day. This part of the Bill is expected to give rise to the
most significant savings to business. If memory serves me right, the
savings on costs to business will be up to £80 million. In terms
of the budget set aside to do the work, the answer may be shared
between my Department and the Ministry of Justice, which is the lead
Department for tribunals. I will come back to
the hon. Gentleman on that, or write to him. I would prefer to do that
rather than to give him a figure for the budget right now. Question
put and agreed to.
Clause 54
ordered to stand part of the
Bill. Clauses
55, 56 and 57 ordered to stand part of the
Bill.
Clause
58Consultation
and consent:
Scotland Question
proposed, That the clause stand part of the
Bill.
Mr.
McFadden: The clause touches on an issue alluded to by my
hon. Friend the Member for Glasgow, North the other day, so I thought
that it might be worth setting out what we hope to achieve in the
provision. My hon. Friend pointed out that the Procurator Fiscal
Service and the Lord Advocate decide on prosecution matters in
Scotland. The clause recognises that. It
states: “A
Minister of the Crown must obtain the consent of the Lord Advocate
before making an order under this Part in relation to an offence in
Scotland.” There
are two issues involved: the legal issue and the devolution issue. I
will deal with devolution first. Clause 56 is
clear: “An
order under this Part may not, except for consequential purposes, make
any provision which would be within the legislative competence of the
Scottish Parliament if it were contained in an Act of that
Parliament.” We
are familiar with the concepts of devolved and reserved
matters.
Clause 58
requires that a Minister proposing to make an order affecting the
prosecution of any offence in Scotland must obtain the agreement of the
Lord Advocate. The Lord Advocate is responsible for prosecution in
Scotland and should therefore consent to the proposed changes. Giving
regulators civil sanction powers would remove that decision from the
Lord Advocate, so we thought that it was absolutely right to put the
provision into the
Bill. Subsection
(2) requires a Minister proposing to make an order affecting the powers
of a regulator that is a local authority in Scotland to consult
Scottish
Ministers. Ann
McKechin (Glasgow, North) (Lab): Where a local authority
in Scotland becomes the primary authority for a company that operates
in other parts of the United Kingdom, what would be the procedure if
the primary authority wanted to enforce action in some other part of
the United Kingdom? Would the relevant Minister still be required to
take the authority of the Lord Advocate or a Minister of the Scottish
Executive, who have no function outwith Scotland? Will my hon. Friend
clarify the
position?
Mr.
McFadden: It is important to note the difference between
subsections (1) and (2). Subsection (1) concerns the Lord Advocate and
action in Scotland; subsection (2) concerns the powers of local
authorities as regulators. The situation to which my hon. Friend refers
already exists in some cases under the home authority principle.
My hon. Friend the Member for Dundee, West is not with us this morning,
but my understanding is that Dundee city council is a home authority
that has four operations that operate throughout the UK. That situation
is already provided for.
Under
subsection (2), if a Minister proposes to make an order that affects
the power of a regulator that is a local authority in Scotland, he
would be required to consult Scottish Ministers, because they obviously
have an interest in the function of local authorities in Scotland. For
the avoidance of doubt, subsection (3) defines the term “local
authority in Scotland”. We have set out the application of the
Bill in terms of both reserved and devolved functions, but in this
clause we also set out important procedural matters that respect the
position of the Lord Advocate in
Scotland. Question
put and agreed
to. Clause
58 ordered to stand part of the
Bill. Clause
59 ordered to stand part of the
Bill.
Clause
60Consultation:
general Question
proposed, That the clause stand part of the
Bill.
Mr.
McFadden: We have heard a significant amount about
consultation in the debate, and it is an important part of the
requirements of the Bill. The clause relates to other clauses that we
have discussed or will come on to. Subsection (1)
states: “Before
making an order under this Part the relevant authority must consult the
following...the regulator to which the order relates...such
organisations as appear to the relevant authority to be representative
of persons substantially affected by the
proposals”. That
could be a business group, which may represent a number of small
businesses or other such persons. It is important that consultation is
part of the machinery for which we are legislating, and there is a
broad definition under subsections (1)(a) to (c) of who should be
consulted. That will rightly ensure a high level of public scrutiny of
the decision to award a regulator new sanctioning powers.
If there are
substantial changes to any part of the proposals as a result of the
consultation exercise, subsection (2) requires the Minister
to undertake further consultation on the revised proposals, as he
considers
appropriate.
Mr.
Prisk: Clause 60 is important and the process of
consultation is essential if sanctions are to work as part of the Bill.
Subsections (1)(c) and (2) are particularly important in the context of
consumers. Quite understandably, we have discussed the principal
relationships between regulator and regulatee, but it is important to
recognise a third significant group—consumers. The Minister is
nodding.
It is
extremely important to ensure that the interests of consumer
organisations, such as the National Consumer Council or the Consumers
Association—better known as Which?—are included in the
process as those organisations do an excellent job of representing
consumers’ interests. They represent the interests of many of
our constituents, so it is extremely important that the measure is not
simply confined to a narrow relationship between
the regulator and regulated—I think that is probably better
English than regulatee; it is important that the provision goes further
than that. We welcome that addition to the
clause. Question
put and agreed
to. Clause
60 ordered to stand part of the
Bill. Clause
61 ordered to stand part of the
Bill.
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