Regulatory Enforcement and Sanctions Bill [HL]

moved Amendment No. 55: 55: Leave out Clause 38 The noble and learned Lord said: My Lords, Amendments Nos. 55, 60 and 63 follow over from the late session that we had on our first day on Report. I have the right and should like to say one or two things of general importance in answer to the Minister. I appreciate that the Minister was under great pressure and we sat until after 10 o’clock on that occasion. If I had gone on, we would not have finished until after 11 o’clock, but that might not have been popular. I shall not be nearly so long on this now. I thank the Minister for the second paragraph of her reply to our debate on Wednesday 19 March, at col. 355, and her offer to write to me in answer to the questions and to have further discussion on points of fact. This is terribly important to the progress of the Bill. The discussions on points of fact will be illuminating all round, but the facts may well demonstrate that there will be wisdom in amending the Bill by taking away the draconian powers that are currently being given to tens of thousands of regulators—I have made that point in some detail—and focusing attention on something that can be done and with which I have some sympathy, in a measured and proportionate way. Proportionality is rightly mentioned as one of the principles of the Bill but, as those who have been following it will notice, it also includes—this is constantly mentioned in the background literature—the need to capture benefit to wrongdoers. That is all very well. There will be some occasions when it is utterly right to capture the benefit to those who have broken regulations and done wicked things—for example, dumping toxic waste, as in the case given by the noble Lord, Lord Jones to Birmingham, to illustrate what we have in mind. I have asked—I am still waiting to hear—what the Crown Court was told by the prosecutor in that case. I strongly suspect that the low penalty in the context of that figure of £28,000 arose because the case was badly prosecuted. I take some objection on behalf of the courts to the generalised criticism of magistrates’ courts and Crown Courts as being unable to set proper penalties. I have a real fear that these fixed penalties will do an injustice, and the noble Baroness’s recent answers demonstrate how difficult it is to judge from the corridors of power what a fair and proportionate penalty is. That should be done by the independent courts, and that is why my whole theme is: give back this power to the magistrates’ courts and the Crown Courts. My final point was very well made by the noble Lord, Lord Borrie, and I entirely agree with him, although—this may be an understatement—he and I have a slightly different approach to the Bill. The noble Lord made the point that one does not wish to prosecute every time and a more gentle touch is needed. I asked the House to get the Government to remember the fundamental principles of prosecution. You prosecute only, first, if there is a realistic prospect of conviction on the facts and, secondly, if it is in the public interest to do so. As Lord Shawcross, then the Attorney-General, said in his famously classic statement in the 1940s—these were not his exact words—““God help us if every case that could be prosecuted was prosecuted””. There has to be sensible discretion. My probings into the facts behind the Bill demonstrate that many regulators are already doing this very successfully, and I shall give a single example. It is a bouquet to the Treasury, because the Treasury is responsible to the Statistics Board. It is interesting that parliamentary Answers, for which I am most grateful, showed that, in the three years from 2005 to 2007, the Statistics Board issued 90 summonses but proceeded with only 17 prosecutions, all of which were convictions. That is because, by sensible discussion aided by the threat of a summons, it managed to reach accommodation with every other alleged malefactor. Therefore, there are already very useful weapons in the powers of regulators that can sensibly be used. I have suggested—I have not yet had any comment from the Government, but I hope that between now and Third Reading they will think carefully about this—that, as the Delegated Powers and Regulatory Reform Committee of this House indicated, the Government had overlooked the fact that it was possible to craft legislation so that there is a penalty for wrongdoing. The example given was selling alcohol to children, which is thoroughly undesirable. However, if a shopkeeper is caught doing that, under the crafting of the legislation it is possible for the shopkeeper and the prosecutor to reach an agreement by which the shopkeeper will pay a more modest penalty and agree to stop doing it. That is real proportionality, and the wrongdoer has a small sword of Damocles hanging over him if he does not obey. That is the approach to regulation that I hope we shall see. I am really worried that there may be tens of thousands of cases. Let us remember that the Government do not know how many cases there are—even at the moment. They think that there are 15,000 because the Courts Service told them that, but it is plainly wrong. I shall not weary the House by giving the figures again, but it is clearly an underestimation by a factor of two, three, four or possibly many more. I am concerned at how regulators will come to be seen. I do not like to use the word that comes to everyone’s mind because it brings a small moustache into the debate, but I am concerned that they will come to be seen as thoroughly oppressive. They will be feared and, when people are feared, they are hated. That is not the kind of country that we want to live in. That was most eloquently put by my noble friend Lord Eccles in our previous debate. That is why I am making such a fuss. I am sorry that I am speaking at such length, but I shall draw this to a close. There is a host of ways in which this can be done. I have never opposed stop orders. The noble Lord, Lord Borrie, thought that I had changed my mind, but my very first amendments, in Committee, also allowed stop orders. If I had changed my mind, I would have been wise because it is sensible to allow stop orders and compensation orders. They can all be moderate and proportionate. I shall close now and not speak to Amendments Nos. 60 or 63, because they cover the same points. Between now and Third Reading, please will the Government enter into careful negotiations? I shall make myself available, as I am sure will my noble friends, and they will wish to speak to others. Will they think carefully about the structure of the Bill? I hope that they will indicate that they are to come forward with sensible changes that we can accept or, if that does not happen, that there will be an opportunity for the House to reflect and, if necessary, to express its opinion.