Regulatory Enforcement and Sanctions Bill [HL]

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. 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.