---

Regulatory Enforcement and Sanctions Bill [HL]

My Lords, we have this evening, as we did in Grand Committee, listened to an extremely eloquent and persuasive speech by the noble and learned Lord, Lord Lyell of Markyate. His main thrust—indeed, his main amendment—is to remove from the Bill the ministerial power to give a regulator power to issue civil sanctions. Perhaps I may be critical of the noble and learned Lord and of the noble Lord, Lord Neill of Bladen. Both of them used, more than once, the language of the criminal law, saying that the same person was to be prosecutor, judge and jury in the same case, when they were talking about civil sanctions. There are benefits to the consumer and business in following the general principles of the Macrory report, to whose worth the noble and learned Lord gave due obeisance. The main thrust of the report is to give greater flexibility to the regulator and to provide for civil sanctions as a suitable alternative in some cases—in the less ““egregious”” cases, to use the Minister’s word, which I would not have chosen myself—where, because the matter is less serious, the full panoply of the criminal law and prosecution in the magistrates’ court or the Crown Court may not be warranted. Macrory suggests that there should be procedures for civil penalties instead. I am glad that on this occasion, but not in Grand Committee, the noble and learned Lord, Lord Lyell, has not attacked the provisions for stop orders or restitution orders. As far as I can see, he has confined his criticism to fixed and discretionary civil penalties. I would not differ from the noble and learned Lord in his claim that the magistrates’ courts and the Crown Courts have, over the years, been extremely helpful in dealing with the criminal law in legislation such as the Trade Descriptions Act—I think that we both referred in Grand Committee to the fact that it is having its 40th anniversary this year. That Act has done a great deal of good in consumer protection and just as much good, if not more, in its deterrent effect. The fact that it is there and that there is the potential of criminal prosecution has been just as important as the actual cases that have taken place and that have, no doubt, registered with businesses up and down the country. As the noble and learned Lord admitted, conviction before a criminal court has a severe meaning for a respectable business. Certainly businesses regard the full force of the criminal law as most undesirable and to be avoided. That is the great benefit of the deterrent effect of the criminal law. But the criminal law is not always needed in every case of a business contravening a particular statutory requirement; it is not needed in every case to ensure compliance and to correct the deficiencies and the faults of business. The noble and learned Lord was teasing the Minister about his letter of 20 February and the use of the phrase ““egregious offences””. The letter said: "““Like Professor Macrory, we believe that regulatory offences do not always merit a criminal prosecution and that the court should be reserved for the more egregious offences””." That is surely sensible and right irrespective of the adjective. The greater flexibility introduced in Part 3 of the Bill is most useful. Of course, for civil sanctions as for criminal sanctions, there must be procedural safeguards, despite the fact that civil sanctions do not have the same dramatic effect and do not register as criminal convictions.