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Legislative and Regulatory Reform Bill

Before I comment on the particular amendments, I remind the Minister about the rubric that appears at the top of the list of groupings for this Bill and for that matter any other Bill. He made a strange face when the noble Lord, Lord Goodhart, suggested that he might want to degroup his Amendment No. 74, or part of it. I remind the Minister that the rubric at the top of the list of groupings says: "““Although every effort is made to secure agreement to these groupings, they remain informal and not binding. It is therefore open to any Peer to speak to an amendment in its place in the Marshalled List””." That applies whether any noble Lord wishes to degroup amendments or not. I remind the Minister that the list of groupings is there for the convenience of the Committee and not of the Government or Ministers. The three amendments tabled by my noble friends and the fourth, tabled by the noble Lord, Lord Goodhart, have as their aim the limitation of the order-making powers to non-criminal sanctions only. I note that the Regulatory Reform Act 2001 includes criminal sanctions in the remit of regulatory reform orders. It describes a burden as, "““any sanction (whether criminal or otherwise) for failure to observe a restriction or to comply with a requirement or condition””." But that does not mean that the appropriateness of including this type of sanction within the meaning of burden should not be revisited. In the debate on the 2001 Act, the inclusion of criminal sanctions within the meaning of the burden did not receive a great deal of attention in Committee. Perhaps it should have done, but I cannot remember the debates at the time. Its inclusion here has not been expressly highlighted by the Select Committee on the Constitution or the Delegated Powers and Regulatory Reform Committee—but they were examining the Bill with the precedent of the 2001 Act in mind. With three separate amendments in the names of three separate of my noble friends, I do not want to act as Paris in choosing between the three amendments. But no doubt the Minister will adjudicate between those three and that part of the amendment in the name of the noble Lord, Lord Goodhart, to which he spoke. The Government have already accepted a limitation to the order-making power when dealing with the creation of new offences in Clause 7, which we will get to in due course. Subsection (1) of that clause says that an order cannot create a new offence with a penalty of more than two years’ imprisonment or increase a penalty for an existing offence up to the same limit of two years. It therefore seems to accept that when creating or increasing offences those carrying a sentence of more than two years should be the preserve of primary legislation. If that is the case, then when it comes to reducing a burden—and if the same principle were to apply—offences that Parliament has already deemed to merit a two-year sentence or more should likewise be the preserve solely of primary legislation. What would be useful to set this debate in context would be if the Minister could set out how many new offences if any have been created or removed under the existing regulatory reform order procedure and what increases to sentences have been made. I hope that the Minister can give us an answer on that this evening.