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Legislative and Regulatory Reform Bill

I have three amendments in this group, so I should like to develop the case for them and, to some extent, reiterate what my noble friend Lord Peyton has said. In tabling those amendments, I start with two propositions. First, the terms of the Bill should be as tightly drawn as possible. As we have already discussed, the potential for misuse by future Governments remains considerable. If it is to be used for removing non-contentious regulatory burdens, it needs to be clearly and firmly ring-fenced. That is the generic point I begin with. My second proposition is that one of the most powerful weapons in the armoury of Parliament is to stipulate conditions under which the individual can be deprived of liberty. Parliament can stipulate what is and what is not an offence, and can provide that anyone convicted of an offence may lose their liberty for a stipulated period. Given the importance that we attach to the liberty of the individual, I believe that we must be circumspect in providing that anybody other than Parliament can prescribe specified offences carrying terms of imprisonment. If someone is to be deprived of their liberty, we need to be sure that Parliament has made the decision as to the offence and the penalty. If Parliament has previously made a decision as to an offence carrying a penalty that may entail going to jail, then it has to be assumed that it has done so in the full knowledge of the seriousness of what it has done. Similarly, if penalties carrying terms of imprisonment are to be introduced, they should be introduced by Parliament. In short, Parliament should be the body that determines the circumstances in which the individual may be deprived of their liberty. That may involve creating offences and it may involve repealing offences. As my noble friend has outlined, Clause 1 provides that the Minister may make an order to reduce a burden where that burden may comprise, "““a sanction, criminal or otherwise, for doing or not doing anything in the course of any activity””." Clause 7 permits an order to be made creating a new offence that is punishable on indictment with a term not exceeding two years or on summary conviction with imprisonment for a term not exceeding the normal maximum term or a fine not exceeding level 5 on the standard scale. I appreciate that the noble Lord, Lord Bassam, will respond that such orders will be subject to parliamentary scrutiny under the Bill. However, I believe that offences carrying terms of imprisonment created by Parliament through primary legislation should normally be repealed by Parliament through primary legislation. As I read the Bill, Clause 1 permits an order to get rid of any criminal offence, whatever the penalty. Similarly, if a criminal offence is to be created, especially one which entails a term of imprisonment, it should be created through primary legislation. My amendments are designed to address the point, albeit in different ways. Amendment No. 13 follows the amendment of my noble friend Lord Peyton in removing the power to remove the criminal offence by an order under the Bill. This amendment takes my argument to its logical conclusion and reserves to Parliament the right to abolish a criminal offence through primary legislation. However, I appreciate that there is an argument that certain regulatory burdens may be created through offences that may entail fines or a short period of imprisonment. So I can see that there may be an arguable case for allowing for the removal of such offences by order. It is for the House to determine where to draw the line—removing such a power altogether or permitting it in limited circumstances. Under Amendment No. 15, primary legislation would be required to remove any offences carrying a penalty of imprisonment for more than two years. Since I tabled that amendment, the noble Lord, Lord Goodhart, has tabled Amendment No. 74, which seeks to achieve a similar result but in a more sophisticated and, I think, preferable manner. I will be happy to support that amendment. The argument I have deployed applies also but with more force to the power to create new offences. Again, if we take my argument to its logical conclusion and reserve to Parliament the right to create criminal offences through primary legislation, then Clause 7 should come out of the Bill. Alternatively, instead of removing it, one may seek to restrict further the powers it contains by deleting the capacity to create an indictable offence. That is the intention of Amendment No. 72. It is for Parliament to decide where to draw the line. I do not believe that removing, or at least limiting, the capacity to create or remove criminal offences creates insuperable problems in seeking to achieve better regulation. I know that the Minister will argue that it does, but if departments identify offences which should be removed or created and which cannot be because of these amendments, they could be included in an annual deregulation Bill as proposed by my noble friend Lord Goschen at Second Reading. Indeed, I would regard an annual deregulation Bill as a preferable alternative to this Bill, but if the Government persist with this measure, a regular deregulation Bill may complement it. That possibility provides the basis for ensuring that this Bill is as tightly drawn as possible. As we have discussed, it is too open-ended as it stands, not least in respect of matters that should be prescribed by Parliament through primary legislation. The Minister has argued that there needs to be some scope for removing a sanction. He developed the point in his letter—it is becoming his infamous letter—of 27 June. My response to that is, ““Yes—up to a point””. My amendments are designed to establish where that point lies.