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Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016

My Lords, I have had three privileges in my life. I have had the privilege of serving in every Parliament for the last 50 years. I have also had the additional privilege—the most recent one—of being a member of the Joint Committee on Statutory Instruments, and it is in that context that I rise to speak. I refer in particular to that part of the report in which our committee reported on the use of the statutory instrument.

Over the years that I have been in both Houses, these were all too familiar words:

“Regulations … may … make incidental, consequential, supplementary or transitional provision”.

Both Houses have warned Ministers and departments over the years not to use these generalised and imprecise words to promote regulations of importance and significance. Our own committee made that very point in the eighth report of 2008, yet here we are in 2016 with Regulation 8 being promoted through these imprecise and general words.

I remind the Committee what Regulation 8 seeks to establish. It will give the courts the power to order that some or all documents can be withheld and prevent a party to the proceedings from having access to such information. Who would deny that that type of restriction is both important and significant? Who would claim that this is just a consequential, incidental, supplementary or transitional matter? If the Government intend to promote Regulation 8 on that basis, which of those applies? Is it incidental? It cannot be, surely. An instrument which will restrict access to information for parties in a hearing is certainly not incidental. Is it consequential? No, how can it be consequential? Is it supplementary? Is the Minister going to rest his case on the basis that this is just a mere supplement? An instrument of this kind, leading to the possible restriction of parties’ access to evidence in the proceedings? That cannot be supplementary. On what possible basis can the Government promote Regulation 8 as regulation that is incidental, consequential, supplementary or transitional?

The Government’s case is even more feeble and flimsy when one goes back and looks at the parent Act. The Act stipulates, in considerable detail, in Sections 80(3) and (4), the matters that should be subject to regulations. Section 80(3) lists some seven matters that must be considered in regulations, while Section 80(4) lists six that may be. Some 13 matters are specified in the two subsections, but what is not in them is the issue of the power to give the courts the right to withhold evidence. Why is that not there? This is an important issue. The 2015 Act specifically listed the kinds of issues that should be dealt with and addressed in regulations, but the important one that is now being brought forward, of withholding evidence, was missing.

Why was it not included in the list in the parent Act? There must have been some debate in the department about it, or among Ministers about such a big issue. Why was it left out? Why was it excluded and why is it now being brought in? Was it an oversight? Did they forget that this was going to be a big issue? If so, they are now trying to remedy an omission or an oversight. I want to find out from the Minister why and how an important issue such as this was left out of the parent Act and is now being brought forward and promoted under this raw, general and imprecise regulation. We deserve answers on this mysterious issue.

3.45 pm

I am not arguing the case against the issue of withholding evidence; it is about the process by which the Ministers, the Government and the department are trying to achieve it. If we are to use this regulation now, why should we not have done so in the first place? Why should a loose, imprecise regulation, which should always been used for minor, not major, issues, be promoted in the way it has? The Joint Committee sought to address that in its report, in which it said:

“The Committee draws the special attention of both Houses to these draft Regulations on the grounds that in one respect there is a doubt as to whether, if made, they would be intra vires”.

Does the Minister agree with the important conclusion of our committee? This is not a nit-picking issue but rather fundamental.