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Legislative and Regulatory Reform Bill

moved Amendment No. 114: After Clause 31, insert the following new clause- ““PROVISIONS AS TO SUBORDINATE LEGISLATION (1) Where subordinate legislation (as defined in paragraph 1A(2) of Schedule 2 to the European Communities Act 1972 (c. 68) as inserted by section 30 of this Act) creating any obligation or offence is made under section 2(2) of the European Communities Act 1972 or any other statutory power (or both) in order to give effect to a Community instrument, the subordinate legislation shall include a description of the subject matter of every such obligation or offence imposed by the Community instrument. (2) Any description under subsection (1) shall be taken, in any proceedings before any court or tribunal, to be indicative only and shall not prejudice the power of the court or tribunal to interpret the meaning of any expression in the Community instrument.”” The noble Viscount said: I am so glad that this amendment is not grouped with anything. Nobody in the Committee can be expected to understand what it concerns except those who sit on the Merits of Statutory Instruments Committee. That includes, or did include, the noble Lord, Lord McKenzie of Luton. I have given detailed comments to the noble Lord, Lord Bassam, about what I am going to say so I hope that he will be able to follow it. I do not expect anybody else to understand it at all. It is all about transparency. There are two keynotes in this Bill. One of them is the removal of burdens, including, among other things, criminal sanctions. That involves criminal sanctions not only on businesses, charities and everything else but also, I was delighted to hear the noble Lord, Lord Bassam, saying on 3 June, on individuals. The Bill alsohas a keynote of promoting, in Clause 2(3)(a), transparency. Departments in drafting statutory instruments are complying with neither of those principles. That is especially a matter for Defra but the DTI is not exempt; it is when it is transposing EU directives or regulations that it falls into the trap that I am about to describe. I have given the noble Lord, Lord Bassam, some examples, which I hope he haslooked up. I shall begin with an example from the Department of Trade and Industry—2006/1719. It states in Regulation 2: "““Any person who, except under authority of a licence … infringes the prohibition on the acceptance of technical assistance in Article 4 of Regulation (EC) No 1236/2005 shall be guilty of an offence””." The penalty in a magistrates’ court is up to level three on the standard scale. What is that? It does not say. I am not particularly sorry for the people who are being attacked by this regulation; they are those who provide materials or instruments that can be used for torture or cruel and inhuman treatment, such as thumbscrews and cattle prods. Nevertheless, whoever they are, they are entitled to know what the offence is that they are not allowed to commit but it does not say what that is in the statutory instrument. From Defra, I have chosen two examples. First, there is 2005/3280, which states: "““Any person who contravenes or fails to comply with any of the specified provisions of Regulation 183/2005 set out in paragraph (2) is guilty of an offence””." The penalties vary; on indictment it would be up to two years in prison or an unlimited fine or, in the lower courts, less. Paragraph (2), one of the provisions with which one has to comply, specifies Article 6(1) as read with paragraphs (2) and (3). That is described as the HACCP system. It then goes on to Article 7(1), on documents concerning the HACCP system. Nowhere in the statutory instrument is the HACCP system explained. In fact it is a hazard analysis and critical control points system; but one can find that out only if one reads the Explanatory Memorandum, which of course is not published with the statutory instrument at all and can be obtained only separately. There are also Community codes of good practice. We do not know what will be in those, and presumably if one fails to comply with them, that will also be a criminal offence. But we do not know what they are. The provision is about animal feed. However, it does not apply only to those commercially producing animal feed, but also to individual farmers. Recently, we have had statutory instrument 2006/1228, which came into force on 3 May 2006. It revoked a previous statutory instrument, 2006/68, which came into force on 1 March this year. It concerns what I fully appreciate is an extremely serious problem: TSE—transmissible spongiform encephalopathy. It is a licensing provision for premises, which have to be maintained and operated in accordance with what is called ““the Community TSE Regulation””. There are provisions for inspections and prohibition on the movement of animals, or parts of them, a breach of which carries the normal range of penalties allowed under the European Communities Act. ““The Community TSE Regulation””, with which one has to comply, consists of 29 European Union instruments, including the original one—999/2001—which has at least 11 annexes, of which Annex III has been amended five times since then, and Annex XI seven times. It applies to farmers as well as to slaughterhouses and cutting plants, and some of the enforcement falls to trading standards departments. To understand that, there is no alternative but the internet. Trading standards departments are fairly busy. They do not deal only with animals but with all kinds of other frauds, counterfeit goods and heaven knows what. Recently I was talking to the head of a trading standards department in a very large rural community. He said that, quite apart from what they themselves need to know as enforcement officials, farmers want to know what they can or cannot do. I do not know how many of them have time to look up 29 European Union instruments on the internet—compiling the amendments to all the annexes as they go about their daily business. I remember the noble Baroness, Lady Carnegy of Lour, saying recently that farmers are under great pressure these days and I am sure that she is right. It does in fact go wrong. I am told by my noble friend Lady Mar, who had been listening to ““Farming Today”” on the BBC, that, a fortnight ago, there was a case in Flint concerning the European Union cattle passports. A man named Mark Payne, I think, was charged with 19 offences of failing to keep proper records. I think that the district judge found that there was no foundation in English law for the offences. It was said to be legal grey area going back to 2000. I asked the noble Lord, Lord Bassam—and now ask the noble Lord, Lord McKenzie—whether I could have further information on the case. I think it is quite an important illustration of what happens. Why will government departments not put the ingredients of the offence into the statutory instrument? Well, it has been perfectly plainly explained by Defra. It says that, "““because EU Regulations are directly applicable in all countries, normal drafting practice is to avoid repetition of EU provisions in domestic legislation, as it may result in duplication or in the meaning of the Regulations being obscured””." That was in a letter that the department sent last month to the committee which I sit on. What does it mean? Are we to suppose that there will be different interpretations of the directive, or regulation, in Portugal, in Latvia and in this country? The result, of course, must be an enormous burden on farmers, as well as many others. As farmers run small businesses, they are well within the ordinary scope of this Bill. Are they supposed to go straight from the milking parlour to the internet to see what is the latest regulation to affect their trade and how they carry out their farming? It is not reasonable to suppose that they could do so. The result is that the whole of these provisions are completely opaque. That is why the Bill ought to deal with this sort of matter. If one contrasts this approach to what happens with ordinary criminal legislation in your Lordships’ House, one sees that it is very different. Members of the Committee will remember, for instance, the Theft Acts, or the recent Fraud Bill, both of which originated with the Law Commission. I do not remember anyone saying that anybody likely to be affected by these criminal provisions need only go back to the Law Commission’s report to find out what the offence consisted of—of course not. We have always put what are the several ingredients of the offence in the legislation, so that people know exactly what they are not allowed to do. That is not so in the case of European Union legislation. I do not want to be totally unconstructive about this. If there is a difficulty over obscurity or different interpretations in different countries, then maybe Defra has the solution. There is one in the over 30-month scheme, which comes originally from regulation 719/96, but was most recently amended by statutory instrument 2005/2109 in England—I am not sure whether it applies to Wales. It now has a parallel column, setting out the article in the original European Union regulation and, in the other column, what is called ““the subject matter””: the requirement or prohibition. That does not appear to cause duplication or obscuration. If not, why can it not be used as a general approach? I put in the amendment that any such explanation would not be used in a criminal court by way of interpretation. It would simply help those being dealt with under these various instruments. Can the Minister tell me, what is the policy on duplication and obscurity? Is this Bill not the very vehicle to try to import some transparency into the process? As the parliamentary Clerks responsible for statutory instruments in their various departments evidently will not depart from this probably quite long-standing technique, should Parliament not deal with it now? I am not going to ask anybody to decide upon it tonight, but it must be addressed and I look forward to what the Minister has to say. I beg to move.