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Regulatory Enforcement and Sanctions Bill [HL]

moved Amendment No. 118: 118: Clause 38, page 15, line 32, leave out from ““(2)”” to end of line 33 The noble Lord said: I shall speak also to Amendment No. 119, in my name and in the names of the noble Lord, Lord Razzall, and the noble Baroness, Lady Hamwee. Under the Bill as drafted, regulators will be able to impose fixed monetary penalties without first serving a notice of intent or giving the individual or company involved a chance to make written representations and objections. By contrast, regulators will have to provide a notice of intent in the case of variable monetary penalties. As the Select Committee on the Constitution says in its report on this Bill, "““procedural propriety generally requires that a person charged with an offence, or against whom administrative action is proposed to be taken, should be told the case against him””—" or her— "““and be afforded an opportunity to make representations””." Under the Bill, the onus will be on the individual or company to seek an internal review and then to appeal after the regulator has made its decision. Your Lordships’ Select Committee concluded: "““We are unconvinced that this [arrangement] meets the minimum standards of procedural fairness an accused person ought to have in relation to what are ostensibly criminal offences. The bill as currently drafted risks excluding a basic common law principle of natural justice: audi alteram partem (hear both sides before making a decision)””." In his letter to me, as chairman of your Lordships’ Select Committee, the noble Lord, Lord Jones of Birmingham, said: "““As the Guide to the Bill (which we published last month) makes clear, fixed monetary penalties are aimed at low level non-compliance. It is envisaged, for example, that notices will be used for ‘strict liability’ offences, that is, cases where liability is satisfied simply by a person committing a particular act; the prosecution does not have to show an intention to act, or any blameworthy conduct … fixed monetary penalties are not intended to be used for more serious or more complex instances of non-compliance””." If that truly is the Government’s intention for fixed monetary penalties, that should clearly be in the Bill rather than in non-statutory guidance because statute should reflect reality. Putting it in guidance is not sufficient. Pat McFadden, the Minister in the other place, said in his letter to the Joint Committee on Human Rights: "““In practice, we would also expect regulators to have been in communication with those they regulate before proposing to impose a sanction. Against this background, although there is no specific procedure in the Bill under which a person would make representations or objections before a fixed monetary penalty or stop notice is imposed, this may in practice occur””." I respectfully submit to this Committee that it is simply not good enough to say, as the Minister does, that this may in practice occur. People should have a right to make representations before the penalty is imposed. The effect of the amendments would be to require the regulators to serve a notice of intent before imposing a fixed monetary penalty and to allow the implicated party to make written representations and objections to the regulator. I beg to move.