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Legislative and Regulatory Reform Bill

My Lords, that slightly complicates what I intended to say. The report of the noble and learned Lord, Lord Davidson, is about gold-plating, which is a function of directives, not regulations. As I understand it, regulations are instruments that, when issued on a certain date by the European Community, are required henceforth to be obeyed in each one of the member states. Directives, by contrast, are given typically 18 months or two years before implementation has to take place, and thereafter the member Government are not obliged to implement the directive word for word, as long as they reconstitute the objective behind the directive in their national regulations. In so far as the noble Viscount is talking about regulations, it seems to me that the committee of the noble and learned Lord, Lord Davidson, is entirely inappropriate to deal with the matter. Regulations are not supposed to be amplified or altered in any way by a member state once made by the European Community; but, in the context of what the noble Viscount has been saying, we are in difficulty with regulations that subsequently become the subject of national criminal law. That goes to the heart of the point he is trying to make. The European Community has no authority over the making or implementation of criminal law. We are in particular difficulties over this point in relation to Article 7 of the European Convention on Human Rights. That article requires the definition of any criminal offence to be sufficiently specific that an individual can assess whether the activity he is about to enter into is capable of constituting a criminal act. As the noble Viscount pointed out, regulations are drafted in many different languages, and they do not define the particular legislative target in a way that fits in with our criminal law—or, in particular, our criminal evidence system—at all. On the Continent, they have the inquisitorial approach to crime: no juries, judges with immense power to investigate the background as well as the specifics of the alleged offence, and burdens and standards of proof that sometimes differ dramatically from our own. It is almost impossible to discern, in a regulation that is intended subsequently to be applied by the criminal law, the traditional approaches of our courts even to such fundamental distinctions as mens rea and actus reus. Both for Article 7 reasons, and because the Continental systems are so different from our own, in my judgment there is a really compelling case here to follow the line suggested by the noble Viscount. Of course, as he rightly says, one of the ways Governments escape from amendments tabled by your Lordships’ House is to look at the detail of the amendment and explain why the detail is not quite right, thus avoiding having to confront the principle. However, what matters here is not the detail but the principle. We want to know from the Government whether they accept that principle. I am sure we are going to hear from the Minister why the particular detail that the noble Viscount has set out does not quite fit the bill. We all owe the noble Viscount a great debt for raising this serious matter. If it is not confronted by the Government now, sooner or later we will find Article 7 points taken, and the Government will not be able to say in those circumstances that they have not been warned.