Regulatory Enforcement and Sanctions Bill [HL]

I shall deal with each amendment in this group separately. With regard to Amendment No. 139, as the noble Lord, Lord De Mauley, accepted, we have already said, in response to his Amendment No. 122, that we understand the concern that multisite businesses have about the service of enforcement notices. However, we do not feel that it would be appropriate for either the enforcing authority or the business for all notices across the country to be served only by a primary authority and only on a designated person within a company. I hope that the noble Lord will forgive me if I do not repeat the arguments; he anticipated rightly that they are the same. I stress, though, that we consider these to be operational issues that do not need to be set out in the Bill. We feel that the policy aim behind both this amendment and Amendment No. 122, which we debated the other day in Committee, might be better achieved administratively through the primary authority notifying the business whenever a sanction is imposed. On Amendment No. 141, the Bill requires a business to put its representations against the proposed imposition of a discretionary requirement in writing. We think that that is appropriate; we have had discussions in which the Government have given some ground on other matters that need to be put in writing under the Bill. However, there is nothing in the Bill to prevent the business from also making oral representations to the regulator. Indeed, we rather hope that such dialogue will be part of the more flexible ongoing relationship between the business and the regulator. The requirement for representations to be made in writing is to ensure clarity and to enable both parties to maintain a clear record of discussions that have gone on. Amendment No. 143, which has been supported by the noble Lords, Lord Cope and Lord Razzall, proposes that the representations following a notice of intent to impose a discretionary requirement should be heard by an independent person. The distinction between variable and fixed monetary penalties is that a notice will be served on the business that there is an intent to impose a discretionary requirement. I repeat that it is not clear from the amendment who that independent person would be and what powers he or she would have. Unlike the amendment to which the noble Lord, Lord Cope, has just referred, which specifies that the independent person should be judicial, this amendment says simply that the person should be independent. Our worry with that is that, if the amendment were accepted, further provision would need to be made in the Bill for that independent person. We think that that would increase the complexity and bureaucracy of the process of imposing this higher sanction. The amendment could also give businesses that have clearly breached the regulations two rights of appeal against a sanction, one before imposition and one after, possibly to two different bodies. There is a basic right of appeal and it is important to maintain that, but we think that two may be overly bureaucratic and not necessary in the interests of justice. In the case of discretionary requirements, the notice-of-intent stage is part of an ongoing dialogue between the business and the regulator. Requiring the involvement of an independent person in the process would undermine it. In particular, with discretionary requirements a business may wish to offer undertakings in order to mitigate a penalty, and that can take place during the period of representations. If the amendment were accepted by the Government and such undertakings were made instead to an independent person, again a further period would need to be built in to allow those undertakings to be considered by the regulator. Once more, we think that this would be an unnecessary increase in bureaucracy and in the time involved with imposing a sanction. We are trying to lighten the bureaucracy as much as we can. We understand the concerns of noble Lords about regulators other than courts determining whether a person is liable to a sanction, which is precisely why we have a right of appeal against a sanction to an independent and impartial tribunal. I hope that what I have said goes some way towards reassuring the noble Lord.