Local Government Finance Bill

Lord Lloyd of Berwick Excerpts

Monday 22nd October 2012 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I strongly support the thinking which lies behind the amendment, for all the reasons so eloquently given by the noble Baroness, Lady Meacher, and for all the reasons which she gave late at night last week at the very end of the Report stage. I regret that I was unable to be present on that occasion.

My only concern now is that the single word that she has chosen to bring about her purpose may not be the very best one. There may, after all, be all sorts of reasons for a person failing to comply with a requirement, good as well as bad, and there may be good reasons even when a person knows that he is failing to comply with the requirement. What is needed is a word which distinguishes between the good and the bad reasons. The ordinary words which are always used to do that, which I think is the objective that the noble Baroness has in mind, would not be “knowingly” failing but failing “without reasonable excuse”. It so happens that those are the very words which are used in paragraph 1(2)(b) of Schedule 3 to the 1992 Act, which is the Act that we are amending and which there imposes a civil penalty of £50. Those words, “without reasonable excuse”, which we already find in the Act, are all the more relevant and important now that we are turning the civil remedies into criminal offences.

I am of course aware that this is Third Reading and that a manuscript amendment is not permitted, but if the Minister is attracted by the thinking behind the amendment, as I certainly hope that she and other Members of the House are, perhaps she will bear these words in mind when she gives the matter further thought.

[Lord Beecham]

My Lords, I join the noble and learned Lord, Lord Lloyd, in endorsing the thrust of the amendment moved by the noble Baroness, Lady Meacher, and I respectfully adopt his formulation, which I think meets the drafting point. In any event, I have an inherent aversion to the creation of absolute offences, which is what new Section 14B does. It is not appropriate to criminalise behaviour which could be dealt with in the way of a civil liability, particularly when there is not a necessary element of dishonesty. I hope that, when the legislation goes back to the House of Commons, the Minister will look sympathetically with her colleagues in government at whether the provision could be improved.

However, in addition to the matters which the noble Baroness’s amendments address, I am concerned about some further provisions in the proposed new section. New Section 14B(4) states that regulations under subsections which refer to false statements and the like—that is, subsection (1)(d), (e) and (f),

“that create an offence that may only be committed by a person acting dishonestly … must provide for the offence to be triable summarily or on indictment”.

I have no objection to that, but new subsection (6) states that regulations under those provisions which,

“create an offence that may be committed by a person acting otherwise than dishonestly”,

would incur a lesser sentence. So there is still a provision within the new provision to allow for somebody not acting dishonestly to be brought before the criminal courts under the provisions of new subsection (1)(d), (e) and(f). That is another example of stretching the creation of an absolute offence.

It is clear that people who deliberately fail should be dealt with but, in my view, not necessarily by the criminal courts. It is equally clear that those who may fail inadvertently or for the reasons advanced by the noble Baroness should not be treated as criminals, although there may be and perhaps should still be a procedure for them to suffer some penalty as an inducement to provide information. That point may be more debatable. I join with the noble Baroness and the noble Lord in thinking that those provisions go too far to criminalise behaviour—particularly, as the noble Baroness said, as that may well affect vulnerable people, for whom a criminal sanction is simply inappropriate.

Without the Minister committing herself today, I hope that she will at least agree to discuss this further with colleagues to see whether a less draconian process could be used.