Regulatory Enforcement and Sanctions Bill [HL]

My Lords, the regulator must be sure before he can find liability and impose a sanction. That is right. The independent element is the right of appeal to a tribunal, which will always be chaired, as I understand it, by a lawyer. The lawyer may sit on his own or may, on as many occasions, be with one other or with two others. Under the Bill, a person may then challenge a regulator’s determination of liability by responding to a notice of intent by raising objections, representations and defences. It will then fall to a regulator, having received these submissions, to consider whether he remains satisfied beyond reasonable doubt that the relevant offence has been committed before he can find liability and thus move on to sanction. Secondly, under a provision in the Bill, a person can challenge a decision to impose the sanction by appealing. The specified grounds of appeal differ in detail from sanction to sanction. Generally speaking, a person can appeal in effect both as to liability and the sanction by arguing successfully—against conviction and sentence—that the decision was based on an error of fact, was wrong in law or was unreasonable. It will be for the tribunal to decide whether that is so, in the same way as it is for the Court of Criminal Appeal to decide, in an appeal against conviction from the Crown Court, whether the conviction was safe or unsafe. The question of burden and standard of proof does not seem to arise as far as that is concerned. It is for the court to decide whether it is unsafe or safe that the conviction maintains. Here, it will be for the tribunal to decide whether the finding of liability was safe or unsafe. Was there an error of fact; was there an error of law; or was it unreasonable? In the case of discretionary requirements and stop notices, a person can also argue that a requirement in the notice, such as the level of monetary penalty, is unreasonable. These grounds would allow a person to challenge the evidence on which the decision was based on the grounds that it contained some error of fact. We expect that it would then fall on the regulator to satisfy the tribunal as to whether there had been an error or whether that error should not prevent them still being satisfied as to the commission of the offence to the criminal standard. Similarly, a person can challenge a regulator’s earlier rejection of a defence by saying that the decision was based on an error of law or was somehow unreasonable. Once these grounds have been raised and argued, we expect it to be for the regulator to rebut such grounds. However, in common with other legislation that sets up tribunals and courts, that leaves the detailed provision as to the procedure of appeals to secondary legislation. Under Clauses 53 and 54, the order can make provision about the powers and procedure of the tribunal. In addition, the Minister will need to ensure that such provision is compatible with obligations under the Human Rights Act. I have gone on a long time, but this is an important amendment that the noble and learned Lord has brought, so I have tried to answer his questions. On the panel composition, the deployment is a matter for the judiciary, which will discuss composition with it. Appeals cannot be heard by an official. They must be heard by an independent person who is likely, as I understand it, to be a lawyer, a legally trained person. What will the powers of the tribunal be? Clause 53(4) sets out those powers. It can reduce or substitute the penalty decision, can remit the decision back to the regulator and can allow further provision to be made. The noble and learned Lord raised an interesting point on suspension. A penalty can be suspended pending the appeal under Clause 53(3)(a). Under that clause, the matter is to be left to the order that is made. The order could provide that the effect of the sanction can be suspended automatically. I have tried to answer the debate that the noble and learned Lord has raised and I hope that he will withdraw his amendment.