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Regulatory Enforcement and Sanctions Bill [HL]

My Lords, I thank the noble and learned Lord for coming back to this issue. I have to tell him that the amendments go to the very heart of the Macrory review, as the noble Lord, Lord Razzall, successfully argued. We believe that tribunals are the most appropriate venue for hearing appeals against the new sanctions. As was said in Committee, the Macrory recommendation was supported by a range of important bodies, including the Council of Her Majesty Circuit Judges. It was also supported by the Council on Tribunals, now the Administrative Justice and Tribunals Council. I am sorry that the chairman of that body, the noble Lord, Lord Newton of Braintree, is not in his place. If I may, I shall cite the council's response to the consultation on the draft Bill. It stated: "““The Council strongly supports the proposal ... to work within the new unified tribunal system set up by the Tribunals, Courts and Enforcement Act. The Council does not think it appropriate, in the context of the Macrory review, to continue to use the criminal courts for hearing appeals.””" There are a number of advantages in routing appeals against the new sanctions to a specialist and expert tribunal rather than to the courts. First, that will allow the criminal courts to concentrate on those cases that warrant a prosecution, rather than adjudicating on civil appeals. Secondly, tribunals can comprise members with both legal and specialist expertise in the subject matter before the tribunal, thereby providing it with a fuller understanding of the regulatory issues. Regulatory cases could be concentrated through one tribunal, enabling expertise to be built up over time. By contrast, cases of regulatory non-compliance make up less than 1 per cent of all cases heard in magistrates’ courts, making it difficult to provide specific training to magistrates and legal advisers. The noble and learned Lord said on an earlier occasion that people will have to spend a lot of time and money going to a tribunal. Of course, they will need to go to a tribunal only if they wish to challenge the imposition of a sanction, unlike criminal prosecution where every case must go through the court. I reiterate that tribunals are considered to be more accessible than the courts, so businesses and individuals will be able to present their own cases, should they wish to do so, without the need for legal advice or representation. The crucial point, which I do not think has been fully grasped, is that tribunals will be independent from regulators and will be able to ensure that the procedural and other rights of businesses and individuals are protected. This is what tribunals do now, as my noble friend Lord Borrie said, and have done for many, many years, including the period when the noble and learned Lord served the high office of Attorney-General with great distinction. We have ensured that the Bill allows for further provision to be made on such matters, if necessary, through Clause 53. I understand the noble and learned Lord’s concerns about what he sees as the ousting of the jurisdiction of the criminal courts, but let me stress again that the new civil sanctions are an alternative to criminal prosecution. The courts can and will have a role to play in regulatory offences. Professor Macrory made a number of other recommendations on the criminal court, which we also accept in full and are taking forward. I shall for now deal quickly with the burden and standard of proof. The noble and learned Lord expressed concern that the appeal to a tribunal imposes a greater burden on those who have received a civil sanction. He asked in particular about the burden of proof. Let me put the matter into context. I shall start at the beginning. In a criminal prosecution, as he knows so much better than I do, the prosecution must satisfy the court beyond reasonable doubt that the defendant is liable or guilty of the offence charged. In the case of a civil sanction under the Bill, the regulator will need to satisfy himself to same standard—that is, beyond reasonable doubt—that the person has committed the relevant offence. In making this determination, I repeat that the regulator must be satisfied to the criminal standard of proof and must hear representations and objections against liability on the one hand and against punishment or sanction on the other, and is disallowed from imposing the sanction if the person has a defence to the relevant offence.