Sanctions and Anti-Money Laundering Bill [HL]

Lord Elystan-Morgan Excerpts

Wednesday 17th January 2018 Lords Chamber

[Viscount Hailsham]

My Lords, I rise briefly to say that I found the observations of the noble and learned Lord extraordinarily persuasive. I have had a look at the regulations set out in Schedule 2 and, in particular, paragraphs 15 and 18 of that schedule, which make the point that the regulations create criminal offences and deal, too, with the defences that can be advanced as well as the evidentiary requirements. Furthermore, paragraph 18 makes the point that the regulations can impose custodial sentences of not in excess of two years. If we accept what the Government are asking us to accept, we would create powers that are very intrusive in criminal processes and impose custodial sentences—and we are being asked to do so by regulations, which are not amendable. I regard that as the chief vice of this process, because the resolution procedure is simply not amendable.

If we were being asked to contemplate an emergency situation, I might find these exceptional powers acceptable, but I do not think—for the reasons advanced by the noble and learned Lord—that we are dealing with emergency situations, because no such situations, or the likelihood of the same, have been identified. There is a raft of existing legislation that covers the kind of issues that are likely to arise.

I am personally always against giving delegated powers to Ministers whenever I can avoid doing so. There is a fundamental rule in politics that I have observed over nearly 40 years in Parliament, which is that, if you give powers to Ministers or officials, on occasion they will be abused. That is a fundamental rule of politics. Consequently, you give powers to Ministers and officials only where you must and, when you do, you ensure that there are as many safeguards as possible. I find the observations of the noble and learned Lord wholly persuasive. If he seeks the view of this House, he will have my support.

[Lord Elystan-Morgan (CB)]

My Lords, I do not have anything to add to give force to the argument that has been put so forcefully by my noble and learned friend and the noble Viscount. All I will do, if I may, is add an anecdotal note. In 1936, I believe, a former Attorney-General and former Lord Chief Justice, Lord Hewart, wrote a book called The New Despotism. He was worried about the very powers that we are talking about today being delegated in a dictatorial way to Ministers. If it was a new despotism then, what is it now?

[Lord Mackay of Clashfern (Con)]

My Lords, the scope for regulation under the provisions that are in issue is very wide. It is an area in which there is, as the noble and learned Lord, Lord Judge, said, a great deal of legislation already. I therefore hope that my noble friend the Minister will be able to indicate some form of restriction that might be acceptable in relation to this particular power. In the debate that we had on Monday, he pointed out that the power would be used only in restoring, in effect, what might be lost as a result of our leaving the European Union and that, in particular, there is power under the European Communities Act 1972 to do a good deal under statutory provision that is not by primary legislation. I thought that, if that were the case, it would be a justification for using this particular method. In this case, however, there does not appear to be justification for anything like that. I therefore invite my noble friend to indicate, as far as he can, what restriction he has in mind and whether that restriction could be embodied in the terms of the legislation.