Civil sanctions

I beg to move Amendment 101, in Clause 15, page 11, line 23, leave out ‘the Minister,’.

To limit important judicial powers of the executive and guarantee right of appeal to an independent body.

With this it will be convenient to discuss Amendment 15, in Clause 15, page 11, line 26, at end insert—

‘(9A) Any instrument (regulation or order) under this section may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.’.

Having said that there were draconian measures hidden in the depths of the Bill, this Clause is more Orwellian, so it is rather appropriate that the proposed Amendment to it is numbered 101. The clause sets out that in the penalty procedure a Minister can establish a procedure for a right of appeal, perhaps to an independent court or tribunal, or to himself if he fancies it. That sounds almost like the model promoted in the famous British comic, 2000AD, in which Judge Dredd is law enforcer, judge, jury and, if necessary, executioner. That is not the kind of holy role model for the Minister that we were looking at earlier—perhaps it is more appropriate for the Whip.

The Minister obviously walks on water, but how would a less popular Minister fare if, say, he belonged to the same political party as the lead local authority pursuing a particularly individual for a civil sanction, or perhaps had a very close working relationship, as one would hope they would have, with the Environment Agency, which is another possible authority that might pursue someone for a civil sanction? How could an appellant be expected to believe that a Minister was truly independent in that situation? It is pretty unwise to put through Bills conferring such quasi-judicial powers on Ministers—it is neither desirable for the Ministers, nor healthy for our democracy. The onus is on the Minister to explain why an independent court or tribunal would ever be insufficient or inappropriate for hearing such an appeal.

On Amendment 101, we would like to see a specific appeals procedure introduced, because some of the powers are far-reaching and prescriptive, particularly in Clause 15. We have some sympathy with the amendment, but we believe that a better way forward would be to introduce reference to an appeals procedure in the Bill. I understand that there are appeals procedures as a matter of course—for example, regarding actions by the Environment Agency—so we simply want to give parties that might be caught under the civil sanctions some reassurance that that will be open to them.

Any instrument drafted by the Minister should be scrutinised and reported to the House, so in amendment 15 we are requesting that any instrument referred to under clause 15 will not be made unless a draft has been laid before Parliament, scrutinised, voted on and approved by resolution of both Houses. I hope the Minister will look favourably on the amendment. The clause will give the Minister substantial powers, and we think it only in order that such secondary legislation should be scrutinised in the normal way. I hope he will give us that assurance.

Again, the hon. Members for Cheltenham and for Vale of York have tabled two good amendments, but I hope that after I explain the matters to which they refer they will be regarded as probing amendments. Even though I feel aggrieved that they are trying to remove any reference to me from the Clause—I do not feel aggrieved at all, because I understand the sense in what they are saying—this is, as the hon. Member for Cheltenham said, a quasi-judicial issue, as opposed to one whereby a Minister would actually hear appeals in any normal course of action. An appeal would be against a penalty notice issued by a lead local flood authority—perhaps the Environment Agency, or even Welsh Ministers—to a person who has failed to comply with the request for information by that authority. That is what Amendment 101 seeks to do in clause 15.

An information request could be made under clause 14, and it would have to be in connection with the authority’s flood and coastal erosion risk management functions. A penalty notice could be issued only on the failure to comply with an enforcement notice in the event of an initial failure to provide the information requested.

I agree that it is important to ensure that a person is able to have the appeal considered by an impartial and independent body, and I understand the hon. Gentleman’s reservations. In England, there is no reason why Ministers, in a quasi-judicial role, as well as courts or tribunals, should not be regarded as impartial and detached, as penalties are not imposed by Ministers. They will be imposed by the Environment Agency or local authorities, and not by the Government. It may not be appropriate for Welsh Ministers to hear appeals if they have imposed the penalty, and a decision would need to be made taking human rights considerations into account.

In any event, the inclusion of the Minister as a person who can be entrusted with hearing appeals is a standard way of providing for appeals. In practice, the Minister generally delegates those powers to an independent person. That is the case, for example, in the Pollution Prevention and Control (England and Wales) Regulations 2000 in respect of pollution, prevention and control permits. Such delegation also happens under the Water Resources Act 1991 in respect of discharge consents, the Water Resources (Abstraction and Impounding) Regulations 2006 in respect of abstraction licences, and the Environment Protection Act 1990 in respect of waste management licences. Those are a few examples; there are many more.

It is a standard way of doing things. In practice, in all those instances, the Minister delegates the powers to an independent person, usually from the Planning Inspectorate. I recommend that the reference to ministerial power be retained, primarily so that the Government have the standard flexibility to delegate it to another party, should  it be required in specific circumstances—for example, if the expertise or experience of another party is better suited to hearing a particular case or type of appeal. Clearly, we have no intention of a Minister ever hearing an appeal, either here or in Wales, if there is a conflict of interest. On that basis, I also urge against introducing an inconsistency between this and other legislation and between similar provisions in the Bill.

Much as we have to be careful how Ministers’ powers are used, may I urge a note of caution? All the people whom I deal with say that it is not a question of the excessive use of power. In this area, what is often remarkable is the failure—I pinpoint the Environment Agency—to take sufficient action and to impose fines. It should be made clear that the behaviour of some riparian owners is completely unacceptable. Everyone else loses out, so I would not want to dilute those powers in any way, even if the reference to Ministers is a fall-back position.

We are arguing to retain what has been described as a quasi-judicial role in order to make an effective appeal to the right person if any sanction has been put. However, my hon. Friend makes a good point. When necessary, the sanctions will need to be used. That is why they are there.

Amendment 15 would require the affirmative resolution procedure for any regulations made under Clause 15. The Minister must by regulations provide a right of appeal against penalties in respect of a failure to provide information to an authority. The regulations will be important in so far as they will confer jurisdiction and make provision about the procedures. However, the details of the regulations are less important here because we are focused on the fundamental right of people to pursue an appeal. The regulation-making power makes it clear that a right of appeal must be available at all times. Changes to the value of the penalty may be needed from time to time to reflect inflation, if nothing else, and it would be an inefficient use of parliamentary time to require a debate every time that happened.

If there are concerns, either House of Parliament can call a debate and vote to annul the secondary legislation, as they can on other matters. Again, this is not unusual. In the unlikely event that proposed changes to procedural details cause concern, the Merits of Statutory Instruments Committee can draw the legislation to the attention of Parliament to assess whether a debate is needed. The National Assembly for Wales will have the same rights in Wales.

In the light of that answer, I urge the hon. Member for Cheltenham to withdraw his amendment. I want to consign amendment 101 to room 101, because removing the reference to the Minister would go against a clear precedent in environmental legislation and, potentially, make it harder to ensure that a person can get an appropriate hearing. I urge him not to move amendment 15, on the assurance that Parliament can none the less intervene if any concern were to arise.

I am not sure that the fact that “the Minister” is in lots of other legislation is a strong argument for having it in the Bill. If it was wrong in all  the other legislation, it would be wrong here as well. I worry about phrases about judicial functions being attached to Ministers, but, as with the other amendments today, I am realistic about the prospect of this one getting through the Committee. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I have listened carefully to what the Minister said. I am not entirely convinced that—

Order. Amendment 15 was for debate. There is no more discussion. Do you want to move it formally and vote on it?

No, I was going to withdraw it.

Amendments made: 79, in clause 15, page 11, line 28, leave out ‘authorities in England’ and insert—

‘(i) lead local flood authorities for areas in England, and

(ii) the Environment Agency in respect of a failure to comply with a request in connection with a flood or coastal erosion risk management function in relation to England.’.

Amendment 80, in clause 15, page 11, line 30, leave out ‘authorities in Wales’ and insert—

‘(i) lead local flood authorities for areas in Wales,

(ii) the Environment Agency in respect of a failure to comply with a request in connection with a flood or coastal erosion risk management function in relation to Wales, and

(iii) the Welsh Ministers.’.

Amendment 81, in clause 15, page 11, line 31, at end add—

‘(11) A reference in this section to an authority includes a reference to the Welsh Ministers.’.—(Huw Irranca-Davies.)

Clause 15, as amended, ordered to stand part of the Bill.