- Committee (4th Day)
- Welsh, Scottish and Northern Ireland legislative consent sought.
- 3:45 pm
- Clause 37: Fixed penalty notices
- Amendment 74
- 74: Clause 37, page 19, line 33, leave out “must be £200” and insert “committed by a person for the first time and deemed serious by a local weights and measures authority must be £500 if the amount is paid before the end of the period of 14 days following the date of the notice, and otherwise £1,000. (4A) If the fixed penalty notice is not the first notice issued to the person in respect of such an offence, the fine is—(a) £2,500, if it is the second fixed penalty notice so issued;(b) £5,000, if it is the third fixed penalty notice so issued;(c) £10,000, if it is the fourth or any subsequent fixed penalty notice so issued.”Member’s explanatory statement This amendment seeks to create a stepped approach to fixed penalty notices based on how many times a person has been issued a notice.
- My Lords, I have tabled two amendments in this group, both with the intention of creating a stepped and more proportionate approach to fixed penalty notices, which I feel to be a very draconian measure in the first instance. Under the unamended drafting, the Bill would allow immediate penalties regardless of the scale or context of the offence committed. This is bad practice, contrary to the societal change that is needed if this legislation is to succeed.Through these amendments, I want to enable enforcement authorities to apply sanctions gradually starting—this is important—with education and warnings for minor or first-time breaches. These would escalate only when non-compliance persists. This is a well-established approach of enforcement that is rooted in fairness. The goal of the Bill should be not to trap small retailers or inadvertent offenders in red tape but to encourage dialogue and corrective measures to be the mantra of our enforcement agencies. This is how you get change and compliance.The tiered approach that I have outlined through Amendment 74 will build some much-needed credibility into the enforcement clauses of the Bill in a way that keeps the law tough when needed but ensures—this is important—that it is proportionate and, above all, fair. I beg to move the amendment.
- My Lords, I will speak to the four amendments in this group that are in my name—Amendments 78, 86, 88 and 89. Particularly perceptive Members of our Grand Committee will remember that, when they looked at the third Marshalled List, the Minister had signed my Amendment 89. I understood at the time that she had signed it not for the same reason that I tabled it—as we discovered at the last sitting of the Committee, the Minister did not move a whole set of government amendments. We will doubtless return to those issues later.My amendments are all of a piece. The object is to dive into Clause 38 and remove those parts that relate to money that is received through fines for licensing offences from the hands of the Consolidated Fund to put it into the hands of the local weights and measures authorities or—as we might get to, in due course—the relevant authority, which is the trading standards enforcement authority. My proposition is a terribly simple one: we should prioritise the receipt of resources not only from fixed penalty notices but from the fines imposed for licensing offences and they should be made available to local authorities with trading standards responsible for enforcement.The background is probably well known to Members of the Grand Committee. Trading standards is operating with substantially fewer members of staff than it did a decade ago. The Local Government Association has warned that trading standards may be unable to fulfil its statutory duties and the Association of Chief Trading Standards Officers has warned of a growing gap between its statutory duties and the available resources.Happily, today we meet with a realisation that this has not inhibited trading standards departments across the country from taking effective action together with the leadership of the National Crime Agency, which reported 2,700 premises—barber shops, vape shops and other trading establishments—operating illegally. Where vaping is concerned, which is our interest here, these are being used as a route for the sale of illegal vapes—without paying the appropriate duty or doing so in due course—including to minors, which is of particular concern for many noble Lords. There is also the employment of staff who are not properly able to work in this country.
- My Lords, I have attached my name to Amendment 81 in the name of the noble Baroness, Lady Walmsley, from whom we have not yet heard—but that is the way the order works. I declare my position as a vice-president of the Local Government Association.I am slightly torn because the noble Lord, Lord Lansley, has just put forward a strong case. There are indeed huge problems with the funding of trading standards. I go to a recent report in the Financial Times in which the chief executive of the Chartered Trading Standards Institute said that the underfunding of trading standards has left consumers open to rogue traders and fake goods. There is a huge problem there and, as the noble Lord said, the Government’s own impact assessment says this measure is going to increase the burden and they are already hopelessly overburdened.However, Amendment 81 goes in a different direction, towards public health initiatives to be determined by local authorities. Either of these has a strong case. I prefer the public health case, because public health is something that I am gravely concerned about. There is a real logic to the money going from where damage is being done to public health towards dealing with damage done by illegal activity.I talked about how much trading standards is suffering. We all know that public health in the UK is in a terribly parlous state; when we compare ourselves with other countries that we might consider similar to ourselves, we are doing much worse in public health. I suspect that the Minister will get up and say, “Yes, but in February this year we gave £200 million to public health”, but that is to go towards smoking cessation programmes —which are very relevant to the Bill—along with addiction recovery, family and school nurses, sexual health clinics, local health protection services and public health support for local NHS services, and £200 million does not sound like quite so much when I read that list out.
- My Lords, in relation to this group, it is essential that trading standards have the resources they need. Although the government pledge of an additional £10 million is welcome, I feel it is probably not going to be enough. It is worth bearing in mind that trading standards are supportive of the Bill, and that is good news.I understand the desire of my noble friend Lord Lansley to push the idea of the money being ring-fenced, as it were, for trading standards. As he acknowledged, there are dangers in that approach; we can think of overzealous traffic wardens and the criticisms that they have in relation to raising money that is ring-fenced for specific purposes, and there may be a danger of that happening here too. Still, I quite understand the desire to press for additional finance for trading standards, and I hope the Minister will say something on that in response because I think that is needed.On Amendment 74, it seems eminently sensible to have a stepped approach to fines for offenders so that it is a proportionate response and first offenders do not have such a high fine as others. I am wholly supportive of that, and I hope the Minister is listening in that regard too.
- My Lords, I support the amendments from my noble friends Lord Udny-Lister and Lord Lansley. I do not know whether any noble Lords in this Committee saw the news item, a few weeks ago, when the BBC went around looking not for under-the-counter illegal cigarette sales but for shops, well advertised with bright neon lights on the front, selling illegal vapes and illegal cigarettes. The stories of people of old going to the pub and having cigarettes passed under the table are now simply not the case; they are freely available. I have heard of people who have never bought a packet of legal cigarettes.
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- What we are doing, as we always do with regulation in this country, is creating a two-tier system where hard-working, law-abiding citizens—notably, retailers—do what they are told to the nth degree and suffer the consequences from the friction and costs therein, as do their clients. Then we run a parallel universe of illegitimacy, where people run freely, pay no tax and behave extremely badly. In many instances—I refer people to the BBC documentary—they employ illegal immigrants in terrible conditions and behave in such a fashion as to be reprehensible. So we have to be very careful about these types of legislation because of the damage they cause the economy and the signals they send. They nearly always end up driving the illegal market, as we have seen factually in Australia.
- I would be extremely keen to make sure that there was an understanding of tolerance of legal retailers trying to follow the law, and I would be keen to see the money that is raised go into trading standards enforcement—not to become a busybody clipboard checklist process, where legal retailers have even more demands placed on them, but to close down the illegal market. It is deeply unfair that, because of bad legislation —possibly with good intentions—we have driven a gigantic growth in illegal sales of tobacco products.
- It is perfectly reasonable to have the precedent of keeping fines. In the Royal Borough of Kensington and Chelsea, where I had the privilege of being a councillor for a number of years, we kept the parking fines. In fact, I feel that my wife may have sustained the budgets of the Royal Borough of Kensington and Chelsea for a number of years on account of her usage of yellow lines and blocked-off bays. The point is that it is perfectly reasonable to incentivise the councils using fines in order to do their job. I ask Minister to make clear in her remarks—or at least to give some guidance or element of the future expectation—that the principle around these processes is not to penalise legal retailers doing their job, trying to keep us safe and running their businesses properly, but rather to make sure that the focus is on cracking down on the illegal market. We should be very aware of that, which is why I support these amendments.
- My Lords, I will speak to my Amendments 81 and 83, but as this is Committee I also note the virtues of Amendment 89 from the noble Lord, Lord Lansley. We will soon find out which one the Minister prefers, if either of them.My amendments would ensure that the money from the fixed penalty notices goes to the local authority to pay for public health initiatives determined by the authority. As the Committee knows, local authorities are very hard up. Indeed, some are going into administration. I know from my work on food and health that the public health grant is stretched to breaking point for obesity services, let alone all the other services that we are talking about, such as smoking quitting services. All that makes the burden assessment, mentioned by the noble Lord, Lord Lansley, very important, so I too would be interested to hear where it is.Although I hope that the level of compliance with the new laws will be high, so that there is no need for too many fixed penalty notices, I believe there is virtue in the idea that such fines should support smoking cessation services. I am afraid that at the moment there is limited access to these services. As I have said before, young people who wish to stop vaping also complain of a lack of services to help them to do so. One would hope that what I should perhaps call the traffic warden syndrome, mentioned by the noble Lord, Lord Bourne, would not happen—but, of course, if people are breaking the law, they will need to pay the penalty. One would not want small businesses to be overburdened by constant vigilance on that score.However, if the Minister were minded to accept one of my noble friend Lord Russell’s amendments in another group, on a levy on the profits of tobacco companies to support the NHS and smoking cessation services, that might be even better because it would raise a lot more money, which could be spent on cessation and prevention. That is the subject of a different discussion.
- My Lords, taken together, this group of amendments focuses on the question of how the new fixed penalty notice regime will operate in practice, how enforcement will be resourced and how local authorities will be supported in carrying out their duties under the Bill. Those are all important themes.Amendment 74 in the name of my noble friend Lord Udny-Lister proposes a stepped approach to fixed penalty notices reflecting the number of times a person has been issued with a notice. That makes a lot of sense to me. The first time somebody commits an offence should surely be treated differently from the fourth or fifth time. I hope that enforcement officials will want to do this anyway, but such an approach would help strike a balance between giving people the benefit of the doubt—particularly as this will be, at the beginning, a complex new framework of rules—and ensuring that repeated non-compliance is dealt with properly.That spirit of proportion and fairness also underpins Amendment 77, which would give local enforcement authorities the discretion to issue a formal warning notice to first-time offenders in lieu of a fixed penalty. I hope that the Minister will recognise the constructive intent behind both proposals.I turn to the series of amendments tabled by my noble friend Lord Lansley, which seek to ensure that the proceeds of fixed penalty notices arising from offences under Clauses 17 and 20 are used to support trading standards teams directly, rather than being absorbed into the Consolidated Fund. Like my noble friend, I can see no real reason why the proceeds of fixed penalty notices arising from those breaches should not be treated in exactly the same way as the proceeds of other fixed penalty notices or fines. Trading standards officers are at the forefront of enforcing the Bill’s provisions.There is, perhaps, a debate to be had about whether hypothecation along those lines creates an incentive for enforcement officers not to exercise the kind of discretion favoured by my noble friend Lord Udny-Lister. However—I admit that this is entirely guesswork on my part; I hope the Minister can illuminate us further— I do not think we should expect the yield from fixed penalty notices to be all that great in the scheme of things. This means that the incentive for overzealousness is likely to be more theoretical than real, so on balance I can identify with my noble friend’s argument that the resources generated by enforcement officers through their activity should be reinvested to strengthen their own capacity.
- My Lords, I am very grateful for the debate we have had on this group of amendments, which address the issues relating to penalties and enforcement of the Bill. Let me start with Amendments 74 and 77 in the name of the noble Lord, Lord Udny-Lister, which relate to penalties. I understand the noble Lord’s interest in providing tougher deterrents for repeat offenders and in taking a proportionate approach to first-time offenders in relation to certain measures in the Bill. However, I feel that the Bill already strikes the balance in this regard and has taken this into account.The noble Earl, Lord Howe, and the noble Baroness, Lady Walmsley, made some good points about fixed penalty notices and their literal value. I can agree with the noble Lord, Lord Johnson, that we have focused, as we did on an early group, on supporting those who carry out their business legally and correctly, which is most people. We want to make that possible and streamlined, and we want to crack down on the illegal. This brings us to the point about how in an ideal world we would not be seeing fixed penalty notices because everyone would be playing by the rules. That is an ambition, but what I am trying to say is that it will not be a good measure if we are issuing so many fixed penalty notices without a decline. I think that is what noble Lords are saying, and I certainly share that view. I think that is a very helpful and practical point about how we see the proceeds from fixed penalty notices.When enforcing tobacco and vape legislation, local trading standards already take a proportionate approach. They choose appropriate action to achieve compliance, and in many cases this already involves the issuing of warning notices, which can be effective in achieving compliance without the need to escalate to harsher penalties. Enforcement authorities will continue to use warning notices where appropriate.
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