Regulatory Enforcement and Sanctions Bill [HL]

Knowing the noble Baroness, I am sure that she said it in strong terms. As the two noble Lords pointed out, this amendment, if carried, would absolutely be a stab in the heart of the Macrory principles. This is an important moment in a sense, because we know that the Government have accepted Macrory and obviously, given the speech of the noble Lord, Lord Razzall, the Liberal Democrats in this House have, too. I know that the noble Baroness was eloquently reading a speech written by the noble and learned Lord, Lord Lyell of Markyate, but it is an important point for all Members of the Committee to come to a view about—indeed, for Parliament to come to a view about. Is Macrory the way forward or is it not? If the amendment were carried, Macrory would effectively be a dead duck. On the letters that have been asked for, of course I will write them. As for the details of the case that my noble friend Lord Jones of Birmingham graphically described at Second Reading, yes, it will be a pleasure to try to fill out a few more details, although, knowing how dangerous it is to take issue with a former Attorney-General, I do not think that offences—the noble Viscount, Lord Colville, will know the answer to this—such as those that we are talking about are likely to lead to any appeal against the lightness of sentence, because I do not think that the law allows for that. I see that the noble Viscount does not think so either; I am gratified by that. But we will see. We will look at that issue, too. That letter will be sent. Professor Macrory found two main advantages in a tribunal hearing appeals rather than the criminal courts. First, a tribunal can comprise members with both legal and specialist expertise in the subject matter before it, thereby providing it with a fuller understanding of the regulatory issues. He pointed out that cases of regulatory non-compliance make up less than 1 per cent of all cases heard in magistrates’ courts, making it more difficult to provide specific training to magistrates and legal advisers—not impossible, but more difficult. Secondly, a tribunal would not consider regulatory cases alongside cases of conventional crime, which should constitute the main workload of criminal courts. Regulatory cases could be concentrated through one tribunal, enabling expertise to be built up over time. Professor Macrory specifically ruled out some form of hybrid system—or ““hotchpotch”” system as the noble Lord, Lord Razzall, accurately said—with appeals against civil sanctions heard by the criminal courts. Professor Macrory argued for a clear separation between the criminal and civil systems. Tribunals were set up in the first place because they were considered to be more accessible than the courts and less formal. Businesses would be able to present their cases, should they wish to do so, without the greater need for legal representation. Tribunals will also be independent from regulators and will be able to ensure that the procedural and other rights of businesses are protected. For those reasons, and for the ones better set out by my noble friend Lord Borrie and the noble Lord, Lord Razzall, we could not accept the amendment. The noble Lord, Lord Cope, as always, seeks the middle way between one view and another in order to help the Committee to come to a firm view. He asked when we would know which tribunal would hear appeals; he talked with a man-on-the-street perspective. That will be set out in the order giving the regulator access to the new powers. The order will be subject to consultation and the affirmative resolution procedure. Lay members can and do sit on tribunals. The first-tier tribunal is to be set up under the Tribunals, Courts and Enforcement Act 2007 and will consolidate the jurisdictions of a number of existing tribunals—for example, the VAT and duties tribunals, the Financial Services and Markets Tribunal and the Pensions Regulator Tribunal—but a number of tribunals will remain whose jurisdictions will not be incorporated into the first-tier tribunal. The Explanatory Notes give the example of the employment tribunals, which currently hear some appeals on health and safety matters, but other tribunals, such as the Competition Appeal Tribunal, will not come within the first-tier tribunal. The Bill is not prescriptive in determining which tribunal will hear appeals and I understand the noble Lord’s concern about which body the Minister may specify in the order. However, the exemptions are limited to statutory tribunals and would therefore exclude administrative tribunals or other less formal hearing panels. I hope that that is of some comfort to the noble Lord, although I take his point about it not being entirely satisfactory that we do not know at this stage which tribunal this will go to. However, it will not be an administrative tribunal; it will be a statutory tribunal.