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
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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.

Lord Lyell of Markyate: 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?

Lord Bach: 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.

10 pm

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
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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.

Lord Lyell of Markyate: 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.

Lord Bach: My Lords, perhaps I may write to the noble and learned Lord when I have had a chance to consider that very important question.

Lord Lyell of Markyate: 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
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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
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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]:

Baroness Vadera moved Amendment No. 75:

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
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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.

10.15 pm

Baroness Vadera moved Amendment No. 76:

“(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]:

Baroness Vadera moved Amendment No. 77:

On Question, amendment agreed to.

Clause 62 [Guidance as to use of civil sanctions]:

Baroness Vadera moved Amendment No. 78:

On Question, amendment agreed to.

Baroness Wilcox moved Amendment No. 79:

“(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.

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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:

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
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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.

Baroness Vadera: 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.