Lord Goodlad: 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
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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.

Lord De Mauley: 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.

Baroness Vadera: 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.

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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.

8 pm

Lord Lyell of Markyate: My Lords, I apologise for needing guidance on procedure. Will the noble Lord in the Chair be giving us an opportunity to debate the other amendments further?

The Deputy Speaker (Lord Geddes): 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.]

Lord Lyell of Markyate moved Amendment No. 55:

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
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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
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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.

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The Deputy Speaker: My Lords, does the noble and learned Lord wish to move his amendment?

Lord Lyell of Markyate: My Lords, I apologise. I wish to withdraw it and the other two, in due course.

The Deputy Speaker: My Lords, is it your Lordships’ pleasure that the amendment be withdrawn?

Lord Neill of Bladen: 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.

Baroness Butler-Sloss: 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.

Lord Borrie: 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.

Lord Bach: 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.

Baroness Butler-Sloss: My Lords, it has not been discussed. Only the government Minister spoke on Amendment No. 83, purely and simply to say that it
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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.

Lord Desai: 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.

8.15 pm

Viscount Bledisloe: 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.

Lord Bach: 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.

Lord Lyell of Markyate: 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.

Lord Razzall: 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
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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.

Lord Bach: 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.

Lord Borrie: 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.