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
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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.

Lord Lyell of Markyate: 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.

Lord Neill of Bladen: My Lords—

Amendment, by leave, withdrawn.

The Deputy Speaker: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.

Lord Goodlad moved Amendment No. 56:

The noble Lord said: My Lords, I beg to move.

The Deputy Speaker: My Lords, we are in the grouping now if any noble Lord wishes to speak.

Baroness Butler-Sloss: 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,

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
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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.

8.30 pm

Lord Neill of Bladen: My Lords, are we still addressing Amendment No. 57? Is it in order to speak to Amendment No. 57, or has that gone by?

The Deputy Speaker: My Lords, it is entirely in order to speak to any of the amendments grouped with Amendment No. 56. We have already passed Amendment No. 53; we are now discussing Amendment No. 56 and all the amendments thereafter in that group.

Lord Neill of Bladen: 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
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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:

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?

Baroness Vadera: 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.

Lord Neill of Bladen: My Lords, does my question permit of an answer?

Baroness Vadera: My Lords, the proposed subsection enables flexibility and thus allows for new defences to be created for the offence.

Lord Lyell of Markyate: 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
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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.

Viscount Eccles: 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.

Lord Lyell of Markyate: 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.

Baroness Vadera: 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
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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.

The Deputy Speaker: My Lords, I must advise your Lordships that if Amendment No. 57 is agreed to I cannot call Amendment No. 59 due to pre-emption.

Lord Bach moved Amendment No. 57:

(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.(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. (a) must secure that the regulator may not decide to impose a fixed monetary penalty on a person where the
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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.(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.

Lord Lyell of Markyate: 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.

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.

Lord Lyell of Markyate: 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?

Baroness Vadera: 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.