Local Government Finance Bill

Lord Mackay of Clashfern Excerpts

Monday 22nd October 2012 Lords Chamber

[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.

[Lord Mackay of Clashfern]

My Lords, I assume that the prosecuting authority would have some regard to the circumstances of any suggested offence under the regulations, but it is very important that the regulations should not include people as potentially liable for criminal sanctions who have not been dishonest in some way or other. The noble Baroness has given examples of people who might find it very difficult to comply with regulations within 21 days in some circumstances. I hope that my noble friend, with her colleagues, may find it possible to modify the statutory language to eliminate the risk of people being faced with criminal charges who are not deliberately doing wrong but who find themselves in difficulties of one kind or another.

I have sympathy with the view that the regulations which deal with council tax are extremely complicated and that it would be easy for someone to fall into a mistake without any deliberation. The last thing that we would want is to criminalise people who make honest mistakes; otherwise, most of us would have some difficulty avoiding the criminal law at some stage, and possibly at more than one stage, of our careers.

[Baroness Hanham]

My Lords, I have listened with sympathy to the noble Baroness, but I think that she is tackling the wrong end of the spectrum. If it was as she suggested, we would certainly need to do something about it. I may need to give the following explanation.

The clause is intended to allow flexibility to create offences similar to those already in existence relating to council tax benefit. It does not create any additional offence beyond those. The offence that exists is under Section 111 of the Social Security Administration Act 1992. It is that of refusing or neglecting to comply with a requirement to enter into arrangements allowing authorised officers to access electronic records. It is also an offence under that section for a person to refuse to provide information or produce any document when required to do so in accordance with the legislation.

The information may be required from one of several classes of persons and bodies: for example, from banks, employers or utility companies. We seek the flexibility to create a similar offence in regulations where a person falling under those categories fails to comply with the requirement to supply information needed in relation to the council tax support scheme. To be clear, that would relate to circumstances where an individual or organisation holding information about a council tax payer has failed to provide information when required to do so. A small number or persons, such as the self-employed, might fall into both categories, but this is not about requesting information directly from vulnerable taxpayers, as has been suggested. I hope that the noble Baroness will be assured on that point.