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Legislative and Regulatory Reform Bill

I thank the noble Viscount for moving this amendment and for taking us through some detailed examples. He is right that I spent some happy months on the Merits Committee, although I am not sure that some of the fun we had perusing the intricacies of the instruments was always the best use of my time. I fear that my response may be inadequate to the challenge the noble Viscount has posed me, but he has given us cause for reflection for subsequent stages. The purpose of the amendment is to make it possible, by reading UK legislation, to tell what one is obliged to do, or what one must not do, to avoid an offence, without the need for cross-reference to EC legislation. I have no doubt that he would want this amendment to add clarity for those dealing with statutory instruments that transpose Community obligations into domestic law. However, the second subsection of the amendment appears to undermine the noble Viscount’s intention. Its effect is that any description of subject matter, as required by subsection (1), would be indicative only. In practice, that would mean that in cases before courts or a tribunal—for example, criminal prosecutions—the court could still interpret the words in the relevant Community instrument so as to establish precisely what one is obliged to do, or what one must not do, to avoid an offence. The provisions of the amendment would not remove the need to refer to the relevant EC instrument, as it is that and not any description made under the requirements of subsection (1) of this amendment that will be determinative before the courts. This could lead to confusion, not clarity, for those dealing with SIs implementing Community instruments, as the inclusion of ““descriptions”” may lead some to believe that they do not need to refer to the relevant Community instruments. It should also be noted that even if descriptions made under the requirements of this amendment were not merely indicative, the description in the Community instrument would still be deemed definitive by a court. Therefore, one would still have to refer to the relevant Community instrument. The provisions of this amendment would also create an unnecessary legislative burden, as any description of a ““subject matter””, as required under the provisions of this amendment, would have to be updated each time the relevant Community instrument was amended. The creation of such a legislative burden does not fit with the tenor of Part 3, which is designed, in part, to reduce bureaucracy with respect to the implementation of European Community obligations in domestic law. For those reasons, the Government cannot accept the amendment. The noble Viscount asked whether courts in England interpret differently from courts elsewhere in Europe. Courts in different member states may take a different view on the interpretation of Community law, but they are all interpreting and bound by the same law, and ultimately the interpretation of Community law is a matter for the European Court of Justice. If a case reaches the ECJ its interpretation would bind the domestic courts of all member states. Notwithstanding that, and the technical difficulties in proceeding as the noble Viscount suggests, he has given us food for thought about trying to get more clarity in the statutory instruments to make sure they are more user friendly.