European Union (Withdrawal) Bill

Debate between Lord Thomas of Gresford and Lord Marks of Henley-on-Thames

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I agree with what the noble Lord, Lord Cormack, has just said. As the noble and learned Lord, Lord Judge, the noble Viscount, Lord Hailsham, and my noble friend Lord McNally explained, the Bill as drafted would permit Ministers, when they consider it “appropriate”—a point made by the noble Viscount and a word discussed at length last Wednesday—to create by regulations new criminal offences carrying up to two years’ imprisonment for wide and diffuse purposes. As discussed last week, regulations could also be used to make any provision that could be made by Act of Parliament. The Henry VIII powers are as all-embracing as could be imagined. This is all the more shocking in the context of the creation of new criminal offences. These may concern individual liberty, certainly; reputation, always; and the conduct of business, as the noble Lord, Lord Carlile, has pointed out.

The report of the Delegated Powers and Regulatory Reform Committee—on which I sat for a number of years—described the powers as “wider than we have ever seen”. It described Clause 7 as notable for its width, novelty and uncertainty, and the same can be said of all three of the clauses in question. The principle is simple: it is in general not acceptable for the Government to have the power to create new criminal offences by regulation without an Act of Parliament. That principle was treated as cardinal when I was on the Delegated Powers Committee.

In 2014 the committee produced a document headed Guidance for Departments, directed principally at memorandums for the departments. However, on the question of criminal offences it was considered so out of order that new criminal offences would be created by regulation that the guidance did not even address that possibility. The committee said:

“Where a Bill creates a criminal offence with provision for the penalty to be set by delegated legislation”—


that is, the Bill creates the offence—

“the committee would expect, save in exceptional circumstances, a maximum penalty on conviction to be included on the face of the bill. Therefore, where this is not the case, the memorandum should explain why not, and at the very least the Committee would expect the instrument to be subject to affirmative procedure. Similarly, where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification”.

However, this Bill potentially permits the creation of a new range of criminal offences. Both the Bill and the Explanatory Notes are silent about everything to do with such offences as might be created except for the broad statement of their purpose in the three clauses, in the most general terms, and with no indication of what offences are envisaged, except that the maximum penalty must not exceed two years imprisonment—which, as the noble Viscount, Lord Hailsham, pointed out, is a not insubstantial period.

The basic principle was enshrined in Article 39 of Magna Carta: that no one should be imprisoned or stripped of his rights or possessions or deprived of his standing in any way except by the lawful judgment of his equals or by the law of the land. These are constitutional principles as old as this Parliament, and we should be very careful in dealing with the issue of allowing the right of Parliament to insist on a say over criminal offences being created by the diktat of Ministers.

[Lord Thomas of Gresford (LD)]

My Lords, in this context, I draw attention to the paragraphs in the Delegated Powers and Regulatory Reform Committee report which deal with tertiary legislation because it is important that this aspect should be understood. The Bill confers powers on Ministers to make law by regulations, and the secondary legislation can do anything that Parliament can do. This would allow people, bodies or Ministers to make further subordinate legislation—tertiary legislation—without any parliamentary procedure or any requirement for it to be made by statutory instrument. Where tertiary legislation is not made by statutory instrument it evades the publication and laying requirements of the Statutory Instruments Act 1946 but it is still the law.

Nothing in the Bill limits the power of creating tertiary legislation. It can be used for any purpose—for example, to create new bodies with wide powers, which could introduce criminal offences in many of the areas currently governed by EU law, including aviation, banking, investment services, chemicals, agriculture, fisheries and medicines. They may only provide the skeleton provisions in relation to a particular activity, leaving the detailed regime to be set out in tertiary legislation made not by Parliament or Ministers but by one of the new bodies so created.