moved Amendment No. 71:
71: Clause 53, page 25, line 32, leave out subsection (1)
The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 72, 73 and 74. These amendments deal with Clause 53 on appeals. The noble Lord, Lord Borrie, is right that, in dealing with a Bill such as this, one has to put down clear markers about the broad construction. As he has been kind enough to pay a good deal of attention to my speeches, which may have been a burden to him, I hope he will have noticed that I have tried, at every stage, to find ways to achieve the same effect without what the Delegated Powers Committee and the Constitution Committee—not me—have described as unprecedented inroads into the normal rights of the citizen to be tried by judge and jury, as appropriate.
We have a system in which, as the noble Baroness said, some 15 different regulators have the power to issue administrative penalties. I have spoken of some of them, with approval—for example, the VAT tribunals—and of the Financial Services Authority with slight reservations. I have personal experience of seeing the Financial Services Authority break practically every rule in the book, do some very serious injustice and lose a case in the end after someone had lost his job three years earlier. It is not all up-side. I am looking for ways in which one can simplify the process; I have already said enough about that.
The point of Amendments Nos. 71 to 74 is that they continue to make the magistrates’ court and the Crown Court the courts to which one appeals in this case. Primarily, as the House knows, the courts should decide whether one is guilty and the level of penalty. We have seen the muddle that the Government are getting into in trying to create a one-size-fits-all or a 10-sizes-fits-all solution to the huge conundrum that they have set themselves.
Under Clause 53(1)(a) and (b) there is a double negative: "““An order … may not provide for the making of an appeal other than to""““(a) the First-tier Tribunal, or""““(b) another tribunal created under an enactment””."
The noble Baroness told us a little earlier in answer to the noble and learned Baroness, Lady Butler-Sloss, and others that the Government think—I hope I am not mis-stating her—that there will probably be three people in such tribunals. I see the noble Lord, Lord Bach, shakes his head. In that case, I will ask the noble Lord how he thinks that these tribunals will be constructed.
I was alarmed when the noble and learned Baroness, Lady Butler-Sloss, pointed out that it would just be a single person, who might be another public official. I hope that the noble Lord, Lord Bach, will be able to reassure us that that is not the case. Perhaps he will also tell us what, "““another tribunal created under an enactment””,"
might be. This is an important part of the whole structure. I say with great respect to the noble Baroness, Lady Vadera, that when we sit down and look at her words on the previous amendment and she says, ““Oh no, I am not doing these things because there is a notice of intent and the regulator must listen to what you say””, she is relying on some kind of mini-trial within the mind of the regulator. In a sense, that is what is intended. But that is not the same as being judged by an independent person, let alone an independent court.
We have in this country a well tried system of the magistrates’ court and the Crown Court. They are trusted. Yes, there will be some cases which are highly technical. I have 45 years of experience at the Bar, and in the early years I did a huge amount of work before the magistrates’ courts. As the noble Lord, Lord Borrie, knows, I did quite a lot of trade descriptions work and some Factories Act work. I was always deeply impressed by the care which the magistrates took over these cases. I am afraid that I am no way currently convinced, and the Government have come up with absolutely no chapter and verse to show that the courts have it wrong. In the only case they have given, the Oxford case, they do not seem able to find out who prosecuted. I cannot think why they cannot tell me who prosecuted that very important case and what the prosecutor told the court, even if it was only from the memory of the prosecutor. However, they put great weight on that kind of thing. It really does not stand up.
The other thing that is deeply worrying about the appeals system here is that it is not clear to me—I should like the noble Baroness to reiterate once again—on whom the burden of proof at the appeal will fall. Which will it be? The Delegated Powers Committee, which is greatly to be respected, as is its chairman, the noble Lord, Lord Goodhart, says in its report that the burden will be on the subject or the business. I was surprised to read that. I thought that the Government would have the matter tried afresh with the regulator proving the case and the appeal tribunal deciding it. What will be the powers of this appeal tribunal, whether it be a court or a tribunal? Will it be able to set the penalty afresh? Will it be able to reduce the penalty? Will it be able to give no penalty? Often the fair thing to do is to give a conditional or absolute discharge. I have had cases where prosecutors had thought that they had done the right thing and were pressing for major penalties, and the court, when it had heard all the facts, decided that there was an error but that a conditional or absolute discharge was the right response. I want to know that these tribunals can do that kind of thing and that they have full flexibility.
I have another important question and I hope that I have the noble Baroness’s attention. What will happen to the penalty in the mean time? Although we have not focused much time on it—we could not, it is a complex Bill—what you experience if you are a motorist and you do not pay your congestion charge will apply here. If you have not paid after a month, there are provisions for powers to increase the fine, just as there are provisions for powers to tempt you to accept it because if you pay quickly it is less. Then there are powers for if you do not pay and you have to go to the county court or something like that. It can go up and you can pay interest. There is a structure like that. I can see the thing mushrooming. The noble Baroness shakes her head to say that there are not provisions for such powers. I will be very comforted to hear it, but I have obviously misread the Bill because I think there are. The most important question that one needs to know is whether the requirement to pay the penalty stands unless and until—I am sorry; I keep talking about the noble Baroness and it is the noble Lord, Lord Bach—the citizen, who may be a fairly basic individual, has realised that he has to make an application to the tribunal that it be suspended pending a hearing. It may put him out of business. Are the bailiffs going to be sent in pending the hearing of the appeal or is the Minister relying on the fact that the Government would never do anything so unkind? I wish it were so, and I do not speak of any particular Government or particular time. There are serious problems here. I look forward to the noble Lord’s answers. I beg to move.
Regulatory Enforcement and Sanctions Bill [HL]
Proceeding contribution from
Lord Lyell of Markyate
(Conservative)
in the House of Lords on Monday, 31 March 2008.
It occurred during Debate on bills on Regulatory Enforcement and Sanctions Bill [HL].
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