Clause 65

Regulatory Enforcement and Sanctions Bill [Lords] – in a Public Bill Committee at 10:00 am on 19 June 2008.

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Publication of enforcement action

Question proposed, That the clause stand part of the Bill.

Photo of David Kidney David Kidney PPS (Rt Hon Rosie Winterton, Minister of State), Department for Transport

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.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

I am extremely grateful to my hon. Friend for asking me that series of questions, which will allow me to elucidate on the rationale behind the clause. Hopefully, I can give him some answers. He asked several questions, including whether the purpose of the clause was accountability or letting the public know who had contravened. It is a bit of both. It is right that regulators, who are being given a significant new sweep of powers under this part of the Bill, publish information about how they are exercising those powers. That is a good in itself. As to naming and shaming, there can also be a public interest in knowing whether an organisation has contravened and has reached the end of the process. We can go back to the example of a business releasing toxic waste into the environment. I do not know why the public should not know about a business that has been found guilty of such an offence, has received a civil sanction—it may have appealed but has not been successful—and has reached the end of the process.

My hon. Friend then asked, why exempt those on appeal? That issue has arisen in other Bills as well. Is it in the public interest to know when charges have been levied but the person has not been found guilty in the end? There is a reputational issue at stake for business.  We have talked about appeal processes in the context of the Bill. The regulator may impose a civil penalty, but the penalty gets overturned on appeal because the regulator was wrong. In those circumstances, is it fair for the business to be named in the report? In the end, when the process has been completed, the business has not been found guilty of anything. Therefore, subsection (3) is fair.

Photo of David Kidney David Kidney PPS (Rt Hon Rosie Winterton, Minister of State), Department for Transport

I guessed that my hon. Friend might say that it was a bit of both, but does he not think that that is confusing? If there were lots of civil sanctions being imposed and they were all being overturned on appeal, there would be a cause for public concern. If the Bill exempts publication of information about cases because they were successfully appealed, we would not know about that concern.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

My concern is with reputational fairness for the business. I do not think that saying that it is a bit of both is a bad thing. There is a perfectly fair dual purpose to publishing information. It will show those looking at the regulator how the regulator is using the new suite of powers, and it will serve the public interest to know about those who have contravened the regulations. That can be fair, provided it has reached the end of the process.

The point that my hon. Friend is making is, in a sense, a generic one. It has been raised in other situations. My Department has sometimes been asked, “Shouldn’t those accused of something be named on some list, even if it isn’t proven?” I am not sure that that is fair. Subsection (3) is intended to deal with that situation.

My hon. Friend’s final question concerns subsection (4) and the phrase,

“where the relevant authority considers that it would be inappropriate to do so”.

I should make it clear that the relevant authority and the Minister are the same thing under that provision. The relevant authority will not be the regulator. Subsection (4) will allow the Minister to exempt certain cases from the publicity requirement, and is intended to capture cases that may have data protection implications or other grounds for exemption.

I must be careful how I put that. What other grounds might there be for exemption from the requirement to publish information about enforcement action? The regulated person or business may be in a particularly sensitive area. It may be that if information about the address of the premises came into the public domain, it could be a danger to those working there. I know that we can think of examples where that might be the case. There are some among the population who object fiercely to some business activities, research activities and so on, so it is prudent to give the Minister the power to say in those circumstances, “We don’t want that information released, because we could be putting someone at risk by publishing it.”

Photo of David Kidney David Kidney PPS (Rt Hon Rosie Winterton, Minister of State), Department for Transport 10:15, 19 June 2008

I apologise for missing the fact that the relevant authority is the Minister; my hon. Friend is quite right. In the kind of case that he described, it is perfectly understandable that a Minister might want to direct that such information should not be published—certainly information such as people’s names, addresses  and so on. Does my hon. Friend agree that that would happen in exceptional situations rather than simply inappropriate ones? Will he reflect that “inappropriate” is quite a wide test for the power, and that something such as “exceptional circumstances” would be more narrowly focused?

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

We could have a discussion about “exceptional” and “inappropriate”. We agree that regulators should not be exempted from the duty for frivolous reasons. “Exceptional circumstances” might take it too far. It could cause a regulator difficulties in cases where strong data protection reasons exist for not disclosing enforcement action but the case is not seen as exceptional. We could argue about the specific term, but on data protection grounds and grounds of safety for those involved in the enterprise, we think that the provision in subsection (4) is a prudent part of the Bill’s information release function.

Photo of Mark Prisk Mark Prisk Shadow Minister (Business, Enterprise and Regulatory Reform)

This has been a useful debate. The hon. Member for Stafford rightly raised questions, which the Minister has delicately answered, about inappropriateness. I do not wish to stretch it too far, but does the Minister agree that although it might be helpful if the word “inappropriate” remained in the Bill, it would also be helpful if it were understood that it is the Government’s expectation that the matter would not be regarded as routine?

Question put and agreed to.

Clause 65 ordered to stand part of the Bill.