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Regulatory Enforcement and Sanctions Bill [HL]

We have listened to the noble and learned Lord, Lord Lyell, with tremendous interest. It was a brilliant speech, covering a great many of the matters concerning Part 3. It is excellent to deal with it in principle now and we shall deal with it in great detail under the amendments to come. When he referred to the House of Lords case in Tesco v Nattrass, I was reminded that that was one of the fairly rare cases in which a chief trading standards officer—I think, for Cheshire—Mr Nattrass, was reported as handling this very difficult case right up to the House of Lords. It began in the magistrates’ court under the Trade Descriptions Act 1968, which has its 40th anniversary this year. It is a regulation that I hope Members of the Committee on the other side will recognise as having had a great deal of success in improving marketing displays, marketing in advertising and all the requirements of honesty that that Act introduced. It has been, as the noble and learned Lord rightly said, dealt with by trading standards officers as prosecutors and then by the courts, be it a magistrates’ court or sometimes a higher court resolving guilt or otherwise. I am sure that my noble friend the Minister will agree that it is well worth having this general debate at the outset of discussion on Part 2. In my Second Reading speech, I thought it unusual and peculiar that the phrase with which everyone, not just lawyers, is familiar as regards the standard of proof required in the criminal courts—““beyond reasonable doubt””—should appear in a new guise in the Bill. It is not the prosecutor having to prove in the courts beyond reasonable doubt that guilt is established; it is that the official should satisfy himself beyond reasonable doubt. He does not need to satisfy anyone else at all. That appears in Clause37(2), and it is most unusual, but I am sure that the Minister will deal with that. I want now to suggest that there is merit in that and in the whole of Part 2, which stems from Professor Macrory’s report. There is benefit to the public interest. There is also benefit to businesses, which are likely to be defendants in these cases, of a greater flexibility than the one and only procedure now available; that is, prosecution for a criminal offence with a criminal conviction, and all that that means, if guilt is proven either in the magistrates’ court or in the High Court by the finding of a jury. Provided that there are sufficient procedural safeguards, the flexibility in Part 2, including the provision for fixed or discretionary penalties, is what business has indicated it would be happier with, instead of always being faced by regulators who say, ““Either you get away with it, or you have to be prosecuted for a criminal offence””. Many matters are not worthy of the court’s consideration—taking up the time of either a judge in the higher courts or of the part-time judges, the magistrates, in the lower courts. Sometimes they are stipendiary magistrates, to use the old phrase; now called district judges. Whether the judges are paid or unpaid, many matters can be put right often in discussion. If that is not sufficient, the procedures provided here—I will not go into the detail of stop notices, discretionary payments, fixed payments and so forth—will serve, provided that the procedural safeguards are adequate. I agree with many of the remarks made by the noble and learned Lord, Lord Lyell, but I think that he went a little too far in suggesting that the procedural safeguards were not adequate. Sticking to fixed monetary penalties, let us look at Clause 38. Others have suggested different wording—the noble Lord, Lord Goodlad, has tabled an amendment. However, as the Bill stands, Clause 38 requires that there must be a notice with reasons: the businessman has the opportunity to ask for a review, with reasons, giving his reply; and then the regulator can think again. In his review, he will either confirm the penalty or not. If he sticks to his original view and confirms the penalty, there is a right of appeal. We can argue about who should hear the appeal and I do not want to go into that. I am talking about matters of principle which are procedural safeguards. The Bill is not lacking in them. I have spoken quite long enough in my intervention on this matter.