Clause 65
Regulatory Enforcement and Sanctions Bill [Lords]
10:00 am
David Kidney (PPS (Rt Hon Rosie Winterton, Minister of State), Department for Transport; Stafford, Labour)
It is a pleasure to serve under your firm but fair direction of our proceedings, Mr. Chope. I have some questions for my hon. Friend the Minister. The clause relates to the publication of information on enforcement action in respect of the new civil sanctions. What is the purpose behind the clause? It strikes me that it is one of two things. One possible explanation is that it constitutes a name-and-shame policy for people on whom civil sanctions are imposed. The second explanation is that it is about accountability: people who impose the new civil sanctions have to account for how many they have imposed and whether they are collecting moneys efficiently, so that there is information on which the public can judge them. To me, the second explanation is far more satisfactory.
The reason why I thought that the first explanation might apply is that this morning I woke up to the news that from today the Border and Immigration Agency will, under a naming-and-shaming policy, publish the names of employers who employ illegal immigrants. It therefore occurred to me that the Minister might say that that is his purpose in this case.
The important point about the second purpose—collecting the information and knowing whether the system is effective—is that under subsection (2) some information has to be published, but it is partial. The information that a civil sanction has been imposed should be collected, but not necessarily the information that the matter has come to a successful conclusion. Under subsection (2)(b), for some of the fixed monetary penalty cases, it will be reported that the penalties have been paid, but that will not necessarily happen for all of them. That is my reading of the provision. It is therefore possible that we would never know the true extent of the power and whether it was successful. I conclude that we might never know its effectiveness if we were thinking back to the time when magistrates courts were imposing many fines but apparently not collecting them successfully. The collection rate was appalling. That fact would be very important for public interest in whether the sanctions were any use. However, because of the way in which the clause is drawn, I do not think that we would have that information.
The provision also seems incomplete because of subsection (3), which states that if there is a successful appeal against a civil sanction, that information does not have to be collected and reported. If one is asking about the effectiveness of the overall system, one has to ask why that is, because it is a relevant fact that in many cases there would be a successful appeal against the civil sanction. We would want to know that fact, and it should be published, because it would lead to questions being asked about the alacrity with which civil sanctions were being imposed but overturned on appeal. It would be important to have that information; it should not be excluded.
Subsection (4) is the most worrying of all. It says that the information need not be collected and published
“where the relevant authority considers that it would be inappropriate to do so.”
That sounds as though a local authority, as a regulator, could decide not to collect information because it was inappropriate to do so or to collect some information about some cases but not others, which would lead to an undermining of the use of the statistical evidence. That seems to hole the entire clause below the waterline. I looked at the explanatory notes for guidance, but found that they muddied the waters even further instead of solving the problem.
Paragraph 170 reminds us that the reports may not need to list certain cases. “Certain cases” suggest that it is one or two and not the whole lot, but the clause is so broadly drawn that the regulator could decide that all the cases were inappropriate to be publicised. The clause says that cases need not be listed
“where the Minister thinks it inappropriate for such cases to be publicised, for example, for data protection reasons.”
If I am right and the purpose is to compile statistical information, data protection would not apply because we would not be disclosing information about individual cases.
Why do the explanatory notes mention the Minister? The Bill says that the “relevant authority” makes the decision. Either the Bill or the explanatory notes is wrong. The Minister needs to tell us the purpose of the clause—he was about to rise to do so before I interrupted him, so I apologise for that—and whether he is satisfied that the Bill has been drawn sufficiently carefully on this occasion.