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Legislative and Regulatory Reform Bill

moved Amendment No. 36: Page 17, line 9, at end insert- ““(1B) Where subordinate legislation creates any new or amended criminal offence the subordinate legislation shall contain, in the text and not solely by reference to a provision of the Community instrument, a description of the conduct which, if proved, would constitute that offence.”” The noble Viscount said: My Lords, with this amendment I am returning to a point that I raised in Committee. I think the noble Lord, Lord McKenzie of Luton, who dealt with it on that occasion, will probably concede that no very careful consideration was given to the points that I raised, but that has now been repaired. Nevertheless, I must set out my stall. I appreciate that all those noble Lords who have not already caught their trains home are dying to do so, but I must try to set out the problem so that the House can understand what I am talking about. The problem concerns the formulation of criminal offences which arise out of the transposition of European instruments into British law. Let me give an example of this. Under instrument 1228 of this year—which covers the very important subject of transmissible spongiform encephalopathy—where any premises are occupied and licensed, an occupier commits an offence if he maintains and operates the premises other than in accordance with, "““the requirement of the Community TSE Regulation and these Regulations””—" and there are some fairly substantial penalties. How do you comply with the requirements of the Community TSE regulations? The instrument earlier states: "““Expressions that are not defined in these Regulations and occur in the TSE Community Regulation””," have the same meaning here as they do there. So what is the TSE regulation? It is contained in a schedule and consists of a list of 27 different instruments which have emerged from the European Commission over a period of time, some of them quite recent but many of the amending others. Nowhere in the regulation is there a definition of the offence, simply that you can fail to comply with it. The Bill is about transparency and reducing burdens, and, under the terms of the Bill, ““burdens”” include criminal sanctions. It is ordinary good sense that people should understand what they are forbidden to do. I think it is also in accordance with Article 7 of the European Convention on Human Rights that they should know this. There has, however, occurred a massive practice of simply transposing European regulations without ever saying what they mean and what are the offences created under them. I have been very worried about this. I have been sitting on the Merits Committee for some time and British regulations after regulations occur where we have exactly this problem. I was greatly relieved to find that I am not alone in being upset about this. In the Third Report of the Joint Committee on Statutory Instruments in 2001, the committee, which, of course, contains members of this House and another place, concluded that in its view the regulation it was considering—it was in exactly the same form as the one I have been talking about—was not consistent with the United Kingdom’s traditional legislative practice of precision in the formulation of criminal offences, and it reported that provision for defective drafting. But nothing has been done and the situation continues as before. When we asked in the committee why this was so, one of the answers was that ““because EU Regulations””—the TSE one was a regulation, "““are directly applicable in law in all countries, normal drafting practice is to avoid repetition of EU regulations provisions in domestic legislation, as it may result in duplication or in the meaning of effect of the Regulations being obscured””." I doubt whether it could be much more obscure than it is at the moment. That is not true. I am talking in particular about Defra regulations but this applies to other departments as well. Some other regulations were recently produced by Defra where exactly the opposite of what I have just read out has been applied. SI 2005/3522 related to the disposal of older cattle and slaughterhouses. I drew it to the noble Lord’s attention in Committee but he did not comment on it. In the schedule is a parallel set of columns. The first refers to the provision of the Commission regulation that the SI is referring to, while the second contains the subject matter of the offence that will be committed if you do not pay attention to it. So it is not true that you do not put into the British regulation some indication of what you must do to avoid getting into trouble. There was another very good example in SI 2006/1970 relating to sea fisheries. Here is a whole collection of requirements, again relating to a Council regulation about fishing, fines, and so on. There are three columns: the first refers to the provision of the regulation; the second refers to the subject matter of the offence which you would commit if you were not careful; and in the third column is a very large sum which you are liable to by way of a fine if you offend. That comes from the same department which said it was impossible to put this into British regulations. There they are. As I said, it is not simply Defra which does this; a number of other departments, including the DTI, do the same. We do not comply with the transparency provisions underlined by the Bill and we do not comply with the reduction of sanctions in the term of what constitutes a criminal offence underlined by the Bill. The noble Lords, Lord McKenzie of Luton and Lord Bassam, have taken a good deal of trouble to have a meeting with me and to discuss these points with officials, and I am very grateful to both of them. I am told that they do not like my amendment. Well, there is nothing new in that, is there? What amendment has ever been liked by Government? Nevertheless, I think they concede that there is a point. I see them nodding, which means that perhaps there is a point. The noble Lords have suggested that this problem should go to the review being carried out by the noble and learned Lord, Lord Davidson of Glen Clova, which is to report very soon. I was today given the consultation documents that have so far emerged. This is primarily concerned with that very eminent topic, gold plating, and its two close friends, double banking and regulatory creep. I do not think that the terms of reference are entirely apt to deal with what I am talking about, but there is a passage that gives me a little cause for encouragement. The noble and learned Lord refers to the tradition of precise drafting, aimed at reducing uncertainty in this country, and contrasts it with a more purposive approach adopted by the legal systems of some continental member states as well as by the European Commission, which broadly speaking deals in civil law rather than common-law terms, and the methods with which we are familiar in this country. If the Minister is going to say that he does not like my amendment, I shall not be surprised, but something here needs to be attended to. It is not just businesses and charitable and voluntary organisations which are affected by these rules; it is also individuals We cannot have a situation where a farmer confronted with this kind of regulation would have to spend a great deal of time looking up, for instance, 27 different European instruments on the internet, if they have it and are able to use it, and then see whether what they were doing complied. This approach has been criticised also by those whom we in the committee have in our turn criticised as being faulty because what is done in this country might not be the same as what is done in other European states. A recent example in the latest report of the Merits of Statutory Instruments Committee will come before your Lordships, and some noble Lords might like to think about it. An ancient, 1985 directive relates to uncultivated land, and doing things to it to make it cultivated, as well as to restructuring projects. Nothing in the European legislation defines either ““uncultivated land”” or ““restructuring projects””. Therefore, some time ago—I think it was in 2001—the Government introduced an uncultivated land provision by way of statutory instrument and laid down a threshold of two hectares. If you carry out operations on that land, you are in for trouble. There was an instance of somebody who spread lime on an environmentally sensitive piece of grassland in York and was heavily fined for doing so. There is no threshold that I know of in any other European country which is the equivalent of two hectares. Then, quite apart from that, the statutory instrument examined in the latest Merits Committee report introduces the restructuring programme. Nobody knows what ““restructuring”” means. Nobody knows what area it relates to, and Defra has made up the rules—they may be very sensible. They relate to the things that ““restructuring”” may convey. However, all I can tell your Lordships is that our rules are seriously different in extent from those in Ireland, Belgium and the Netherlands. It is therefore no use saying that, because the offences are not specified, we are liable to get into trouble by not conforming to what is happening in the rest of the European Union—we are already doing so. What is going to be done about this? If the Minister does not like my amendment, he must first of all assure me that the noble and learned Lord, Lord Davidson, will be able to deal with this point, because I doubt that it is within his terms of reference. If he is not, the Cabinet Office will have to provide instructions to parliamentary clerks in various government departments on how to draft regulations. They are going to have to pay attention to what the Joint Committee said five or six years ago. If they do not, we will not be sticking to the precepts that underline this Bill—transparency, and the removal of sanctions. This is an occasion when we must really emphasise that government departments should pay attention to this problem. It is no use leaving it on the basis that you can look it all up on the internet or find some other method of dealing with it. The other thing that the Joint Committee said was, ““Oh, well, it’s always covered by guidance””. So it is, but guidance does not do any good in a criminal court, nor does a criminal court have access to the guidance. Indeed, I do not think that the criminal court has access to the European legislation either. When I used to sit at Harrow, there was no indication in the library of the official journal in which one could look all those things up, and I very much doubt whether it would have been readily obtainable by me as a judge. Goodness knows what is going to happen to the clerks to magistrates’ courts when they are confronted with this—because that is where the majority of the cases are going to go. There are provisions which apply the prohibitions with a sanction that includes prison. I very much trust that that is not the course that will be taken. Fines are much more likely to be effective. Nevertheless, somebody has to impose the fine and find out what offence is alleged to have been committed. So ought people be able to find out what the offence is before they decide whether they are going to commit it. That is one of the basic principles of criminal law in this country. I beg to move.