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There is a bit of a grey area. I have made my point for the moment. I am sure the Minister will reflect on it. For the time being, pending further stages, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 133 not moved.]

Clause 38 agreed to.

Clause 39 [Fixed monetary penalties: criminal conviction]:

Lord Razzall moved Amendment No. 134:

(a) no proceedings shall be instituted for that offence before the expiration of the period specified in the notice pursuant to section 38(3)(d) following the date of the notice; and(b) he shall not be convicted of that offence if he pays the fixed penalty before the expiration of that period.”

The noble Lord said: This is a probing amendment as to the Government’s intentions, and as to whether the drafting is quite right. I am grateful to the Trading

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Standards Institute, which has drawn to a number of your Lordships’ attention a possible weakness in this clause. It is quite obvious that Clause 39 intends to say that there cannot be an element of double jeopardy and that if the fixed penalty is imposed on somebody they cannot then be convicted of a criminal offence in relation to the same action or omission. That is clearly the intention of Clause 39.

It is suggested that we should amend Clause 39 as set out in Amendment No. 134 that stands in my name and that of my noble friend Lady Hamwee and the noble Baroness, Lady Wilcox. It would bring the legislation into line with other legislation with respect to fixed penalty notices, thus allowing the regulated person to accept the fixed monetary penalty to discharge their liability for future action through the payment of the penalty within the period set. The suggestion is that if that is not put in the enforcing authority could proceed to impose an alternative sanction on the regulated person and not fall foul of the double jeopardy argument. The draftsman may not think that this is necessary. For that reason it is a probing amendment, and it is really a drafting amendment. I beg to move.

Lord De Mauley: We of course support Amendment No. 134. We also support Amendments Nos. 144 and 154. Amendment No. 151 would do much the same thing, in that it would enable a business in receipt of a notice of intent to opt instead for a court action, thereby ensuring that the court option would not only be available at the desire of the regulator, but also of the accused. It would therefore act as a brake on any regulator who tried to use the civil sanction procedure as an easy option to cut corners in determining whether an offence has been committed and in collecting the appropriate evidence. The prospect of a criminal conviction would act as a deterrent against a situation where a business used this route deliberately to bog down the system. In other words, other than where it had good reason to believe it would succeed.

Lord Bach: Turning first to Amendments Nos. 134, 144 and 151, we understand the concerns that noble Lords have expressed about the new sanctioning powers being misused. There are of course the important safeguards I have spoken about this afternoon. First, there is a need for regulators to be satisfied beyond reasonable doubt before they can impose a fixed monetary penalty or discretionary requirement. Secondly, for both of these sanctions there will be an opportunity for the business to make representations to the regulator. Thirdly, and perhaps most importantly, the imposition of these sanctions

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will be subject to the scrutiny of an independent tribunal. While these safeguards will apply in individual cases, there are broader safeguards in the form of the review and suspension provisions that we will come to in Clauses 63 and 64. These will help to address any systemic failings by a regulator.

The powers in Part 3 are an alternative to criminal prosecution, but it is for the regulator to determine which route is more appropriate. This is a fundamental component of the Macrory model of regulatory enforcement. Enabling a business to decide how it will be punished could leave the system open to abuse. A business, for example, could wait until a late stage in the civil sanctions process before opting for a criminal prosecution in an effort to delay the enforcement process. Allowing businesses to choose to go down the route of criminal prosecution would also go against another of the fundamental tenets of Macrory: that criminal prosecution should be reserved for the most serious and egregious offences. That can only be assessed by the regulator in view of all of the cases before it.

Amendment No. 154 would go a step further and allow a business to opt for a criminal prosecution where a regulator has already imposed a stop notice. Stop notices will only be imposed in strictly controlled circumstances. In particular, there must be a significant risk of serious harm to human health, the environment or the financial interests of the consumers before a notice can be imposed. In light of the sorts of behaviour that these notices are designed to tackle, it would be inappropriate for a business to be able to opt instead for a prosecution, while the serious harm specified in the stop notice materialises.

That expresses the Government’s view. We are very grateful, as always, to the trading standards organisation, which has been very helpful throughout the Bill.

Lord Razzall: The amendment to Clause 39 is of a slightly different nature to the other two amendments that the noble Lord, Lord De Mauley, and I were speaking to. Perhaps the Minister’s officials could have a look at the wording proposed by the Trading Standards Institute to see whether it covers a necessary point. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 agreed to.

The Deputy Chairman of Committees: The Committee stands adjourned until Wednesday 6 February at 3.45 pm.


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