Regulatory Enforcement and Sanctions Bill [HL]

My Lords, I wish to speak not to Amendment No. 56 but to government Amendment No. 83. I hope noble Lords will bear with me if for the purposes of my observations I ally it to Clause 53 because the phrase with which I am concerned—““rights of appeal””—appears in government Amendment No. 83. I am concerned about the position of the regulator in the light of the proposed appellate procedure, which is to be found in Clause 53, and, as the noble and learned Lord, Lord Lyell of Markyate, said a few minutes ago, the intention to exclude the magistrates’ court and therefore the Crown Court by way of further appeal. There is an appeal under these rights of appeal to a first-tier tribunal. What is a first-tier tribunal? That is the only tribunal that one is able to have. It has a person who has the power to deal with the case. The Bill refers to, "““the person to whom the appeal is made””," and gives powers to that person. Is he to be a senior civil servant? Is he to be a civil servant who is, perhaps, in a different department from the civil servant who made the decision or is he to be someone who is a regulator in other circumstances but who is the appellate person for the purposes of this first-tier tribunal? This seems to me to strike at the constitutional right of an individual to have a proper appeal. The tribunal is not even three people. There are lots of excellent tribunals where there is a legally qualified chairman and two people of different sorts who sit with the chairman and make decisions. However, here we are talking about the cusp of criminal and civil work, as the noble Lord, Lord Neill of Bladen, said. If there is, as I assume, an aggregate of sanctions and penalties, the sums of money may be considerable. The regulator may go wrong. We are talking about fixed penalties and discretionary penalties, and we do not have the criteria—I am not suggesting that would be a good idea, though perhaps they might have asked the noble and learned Lord, Lord Lyell of Markyate, to provide them with the criteria—but there will be guidance, although we are not sure what it will be. Members of the public in business will be subject to civil sanctions of considerable sums of money with only an appeal to a first-tier tribunal composed of one person. One does not know what sort of person that may be. I am sure he will be admirable, but he would not be legally qualified and could possibly be operating in a completely different way. I could not find in the Bill any indication of who the person who would comprise the first-tier tribunal would be. The exclusion of the magistrates’ court and appeal to the Crown Court—because, I understand, it is suggested that they do not fine sufficiently large sums—might well be a matter for the Judicial Studies Broad and the magistrates’ guidance to beef up the magistrates. It does not seem appropriate to get rid of them. Surely they should be trained into what is better rather than saying that because they do not make it stick hard enough we will get some other system that will be tougher and will not be scrutinised by lawyers. I do not think this is satisfactory access to justice as the appellate system is flawed. It may well open the door to judicial review, which is not a satisfactory system because, among other things, it looks not at rights of appeal but at whether the tribunal, the one person, approached the case in the wrong way and not at whether the decision was right or wrong. That is very unsatisfactory. If the courts are not tough enough, let us make them tougher. I apologise for having dealt with what falls more obviously under Amendment No. 71 to Clause 53 at this stage, but I have difficulty remaining in the House later this evening and I hope that I will be forgiven for having stretched the amendment a little further than it might normally go.