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Regulatory Enforcement and Sanctions Bill [HL]

My Lords, we have heard an important speech by the noble and learned Lord, Lord Lyell of Markyate, as we have done on previous occasions. I was, however, somewhat disappointed that both he and the noble Baroness, Lady Wilcox, repeated what I think is a false illustration of procedure when they referred to the regulator as being, in one and the same case, prosecutor, investigator, judge, jury and sentencer. That is a false illustration because we are talking not about criminal trials in which that little list would be most inappropriate. Indeed, it would be completely against the traditions of this country if a criminal trial were to be conducted on the basis that the same person, the regulator, had all those different roles. We are talking not about criminal trials but about alternative procedures which the noble and learned Lord knows well, from the Macrory report and elsewhere, are more suitable and more proportionate, depending on the problem at issue, whereby civil sanctions, fixed penalties, discretionary penalties and various alternatives are put forward. That range of powers is designed to ensure not just greater flexibility for the regulator, but a greater opportunity for the trader, the businessman at the other end of the action, to take a course by his own choice, to influence the regulator. If I may say so, I found it somewhat inconsistent for the noble and learned Lord, Lord Lyell of Markyate, to attack the system for being prosecutor, judge, jury and so on, all at once, and to criticise the detailed complexity of the procedure that this Bill introduces in order to provide adequate opportunities for the businessmen trader—the regulated person—to put his case and advance his proposition. The greater complexity exists now, as the Bill has been amended, in accordance with some of the useful propositions put forward by the noble and learned Lord and others, such as the noble Lord, Lord Goodlad, to make it quite clear or establish that the regulator cannot rush in, even with alternative civil sanctions. He must issue a notice of intent, there must be an opportunity for defence, an opportunity for each side to answer the other sides case, and so on—and, of course, there must be an opportunity for an appeal to the tribunal. ““Proportionate”” is a most useful word which we hear from both sides of this House to indicate what we want to achieve. In relation to fixed penalties, perhaps I may quote from paragraph 34 of the government guide to the Bill. In answer to the question, ““What is a fixed monetary penalty notice?””, it says that they are, "““fines for relatively low fixed amounts that are intended to be used in respect of low level, minor instances of non-compliance””." What are the advantages? To bear out my point that we are not talking here about criminal offences, convictions and stigma, that paragraph goes on to say: "““We see fixed penalty notices as enabling regulators, in suitable cases, to enforce less serious offences in a more proportionate way than a prosecution. FMPs can remove the stigma and adverse publicity of a criminal record and could be used, for example, where no intent was present””." The point about fixed monetary penalties, which the noble and learned Lord is homing in on in his amendment, is that they deal with relatively minor cases in a way that does not impose criminal penalties and the stigma thereof, and they are one example of the more flexible approach in Part 3 of the Bill. For those reasons, I recommend that the House does not accept the amendment.