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Legislative and Regulatory Reform Bill

moved Amendment No. 22: Page 4, line 30, leave out ““that is punishable, or”” and insert ““and may not”” The noble Lord said: My Lords, Amendments Nos. 23 and 24 are consequential. We discussed in Committee the extent to which order-making powers could be used to impose or repeal penalties involving fines and imprisonment. I expressed the view that we had to be circumspect in providing that any body other than Parliament itself could prescribe specified offences carrying terms of imprisonment. I tabled amendments designed to limit the scope for imposing or repealing penalties carrying terms of imprisonment. I listened carefully to what the Minister had to say in response. My amendment takes account of what he said. I have decided not to pursue amendments affecting the repeal or modification of existing offences. I can see that there may be a case for retaining those powers in order to remove burdens, but I do not consider that approach the best one. I would have preferred the proposal advanced by my noble friend Lord Goschen; namely, that of an annual deregulation Bill, a medium through which offences could, with Parliament’s assent, be removed or created. However, if we are to have this Bill, I am prepared to concede the power to modify or remove existing offences. I think, though, that there remains a case for requiring primary legislation for new offences. My amendment provides that no new offences may be created under Part 1, and that the penalty for existing offences may not be increased so that they are punishable on indictment for a term exceeding two years, or on summary conviction imprisonment for a term exceeding the normal maximum term or a fine exceeding level 5 on the standard scale. The case for the amendment is straightforward. New offences, especially those carrying terms of imprisonment, should be introduced through primary legislation and subject to the full rigours of legislative scrutiny. There is greater scope for probing and considering amendments than is the case with the order-making power. Parliament needs to be at its most rigorous and operating in the full glare of public attention when it introduces new offences that may result in individuals being sent to prison. What, then, is the argument for allowing new offences to be created by secondary legislation? In Committee, the Minister argued that a new offence would be subject to the safeguard that Ministers would need to ensure that the preconditions in Clause 3 were met, and that the order could be vetoed by the relevant parliamentary Committee. He also pointed out that the provision was carried over from the 2001 Act, and that the provision had not been abused. Those arguments are not sufficient to overcome the point of principle in question. The fact that a provision is carried over from the 2001 Act is not, to my mind, a commendation, as I variously argued on other points earlier today. I was as critical of that measure as I am of this one. The Minister’s own words could be used against him. To claim that the provision has not been abused is to concede that it could be. In essence, the choice is between a point of principle and one of convenience. We may be willing to concede that burdens including criminal sanctions may be removed by secondary legislation and that existing sanctions may be modified, but I think we should be extremely wary of permitting, or continuing to permit, the creation of new sanctions by secondary legislation. I beg to move.