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Legal Services Bill [HL]

We have already had some discussion about the rationale behind the approach we have taken, so I will resist the temptation to go over it extensively. Suffice to say, we consider that the financial penalty warranted a specific reference and ability for statutory right of appeal in the Bill. We believe that that is also consistent with precedents in other regulatory areas. We are sure that, with this provision, the court will be in no doubt that the amount of the penalty may be questioned. That could apply even in cases where, although the amount is not so manifestly disproportionate that it could not be the act of a reasonable regulator, it may none the less be too high. The alternative would be to leave approved regulators to a remedy in judicial review. In that case it would still be possible to challenge the imposition of a penalty, and potentially even the amount. Yet, as noble Lords will know, for a challenge on the latter to succeed, it is likely that the amount would have to be more conspicuously unreasonable. And, of course, all challenges would be subject to permission. It is important to lay out those differences on the face of the Bill. Apart from those differences, the grounds on which an appeal against a fine may be brought are already akin to the grounds for judicial review. If the board exceeds its powers, fails to follow proper procedure or acts unreasonably in imposing a penalty, it may be challenged under Clause 38. I think that goes some way to answering the point raised by the noble Lord, Lord Thomas of Gresford. The noble Lord, Lord Kingsland, seeks to add a further ground incorporating any ground that would find a claim in judicial review. I would argue that that is not necessary because it duplicates grounds that already exist as part of the existing appeals process which has been set out. I turn to the second element of the amendment. In this clause we are seeking to avoid any duplication or confusion of procedures. Subsection (7), the ouster clause, sensibly pre-empts the possibility of a parallel challenge being brought by way of judicial review proceedings. It would not do to create a situation where two challenges could be brought on the same decision on substantially the same grounds. I note that Clause 38(7) does not prevent the case proceeding to the Court of Appeal in the event that that is appropriate. The provision exists not to deny rights but to ensure that we are clear about certainty and expediency and to ensure that there is one route through and not two parallel routes. There is case law in the European Court of Human Rights on which I am happy to write to noble Lords, to explain it. But that is the purpose of the provision. It is intended not to deny rights but to say that there is one way through. I hope that the noble Lord will reflect on that explanation.