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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,

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

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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 which you are liable to 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

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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 equivalent to two hectares that I know of in any other European country.

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,

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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 to 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.

5.30 pm

Lord Desai: My Lords, I supported the noble Viscount in Committee when he moved a similar amendment. I said at that time that, having served with him on the Merits of Statutory Instruments Committee, I had always been immensely impressed by the amount of work that he put in to trace the roots of every instrument that came before that committee. It took a formidable amount of work and his kind of legal brain to be able to do that.

I do not know what my noble friend is going to say about the amendment, but there is a general point to be made and somebody somewhere ought to look after this matter. When these regulations or orders are published they should contain a succinct summary of all the previous relevant orders and where people can find them. I hope that the Government will also make available an electronic dictionary so that, at the touch of a button, anyone can trace all the 25 or 27 previous items involved in such legislation. That should not be difficult to do. From what the noble Viscount has said, I am convinced that lots of small businessmen, farmers and ordinary people are harassed by such regulations, so we should do whatever we can. What could apply under Clause 1(3)(b), (c) and (d) supports the amendment. I hope that somewhere in the system there is a positive response to what the noble Viscount has suggested.

Lord Kingsland: My Lords, I was not tasked by my Front Bench to reply to this amendment, and I find myself somewhat shaken to have to do so. Unfortunately, I missed the noble Viscount in Committee; I was probably one of those who took an early train home. However, as I understand his remarks, he is referring to European Community regulations—

Viscount Colville of Culross: Or directives.



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Lord Kingsland: 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.



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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.

Lord McKenzie of Luton: My Lords, I add my genuine thanks to the noble Viscount, Lord Colville of Culross, for his diligence and persistence on this issue and for the useful examples of good and bad practice which he brought to our attention in Committee and again today. I readily acknowledge that we did not seek to answer the point that he raised in Committee, but I hope that what has happened in the interim, and what will happen, will demonstrate that the Government take this matter seriously and that there is an effective way forward.

The purpose and effect of Amendment No. 36 are very similar to those of the amendment that the noble Viscount tabled in Committee. As he explained then, the amendment would make it possible to tell, by reading UK legislation alone, without the need to cross-refer to the relevant Community legislation, what one is obliged to do and what one must not do to avoid committing a criminal offence. He said that this was a question of transparency and reducing the burden for those who have to deal with statutory instruments that transpose European Community obligations into domestic law. These are issues which the Government take extremely seriously.

The Government agree with the intention behind the noble Viscount’s amendment and that every effort should be made to ensure that European Community obligations are transposed into domestic law in a way that is transparent and reduces the burden on those dealing with them. He was also right in saying that Defra tries to address that by including in some statutory instruments a schedule to explain those provisions in the relevant European directive that, should they be breached, will amount to an offence under domestic law. The two examples of SI 2006/1970 on sea fisheries and 2005/3522 on the disposal of older cattle were cited by the noble Viscount in Committee and again today. He also referred to those instruments as examples of good practice.

The Government will continue to seek ways to ensure that all statutory instruments that transpose European Community obligations into domestic law are drafted in a manner that is clear, simple and transparent. Although I agree with the intention of the noble Viscount’s amendment, as he has anticipated we cannot support it today. Current drafting guidance does not explicitly state whether a description of an offence should be included in an SI used to transpose a European Community obligation, or how detailed any such description should be. Instead, departments are given the flexibility to decide on a case-by-case basis how best to draft an SI that transposes a Community obligation. Amendment No. 36 would remove this flexibility by requiring all subordinate legislation used to transpose European Community obligations into domestic law to include a description of any activity which, if carried out, would constitute a criminal offence.



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Although I cannot support Amendment No. 36, I can assure the noble Viscount that the Government will consider the points that he has made today. Clearly, one route is through the guidance given to departmental lawyers who draft the implementing Community obligations, which seems an appropriate way of encouraging best practice. We will certainly look at that to see how it might be strengthened to address the point that the noble Viscount made.

There was some discussion about the committee of the noble and learned Lord, Lord Davidson. It is right, as the noble Lord, Lord Kingsland, said, that it focuses primarily on gold-plating issues, which are about directives and not regulations. However, the review is about considering the implementation of EU legislation, and we will ensure that the noble and learned Lord, Lord Davidson, who is undertaking the review of implementation of European Union legislation, receives for his consideration copies of Hansard for the debates today and in Committee, as well as the examples of best practice that the noble Viscount provided. We will also seek to facilitate his own direct engagement with that process, if he so wishes. I hope that, in that manner, we can move the issue forward.

5.45 pm

I hope that the noble Viscount will accept that the Government are committed to finding means of transposing European Community obligations into domestic law in a way that is transparent and reduces the burden on those required to comply with European Union directives. For example, they are exploring the possibility of making consolidated versions of statutory instruments used to implement Community obligations into domestic law publicly available. The Davidson review has taken note of these representations. It is likely that the review will recommend that consolidated versions of statutory instruments should be made publicly available. The Government also stated in their response to the Merits of Statutory Instruments Committee’s 29th Report of Session 2005-2006 that they will dedicate resources to formally and informally—that is, without making a new instrument—consolidating statutory instruments where departmental Ministers can identify appropriate cases. This intention is consistent with the Government’s simplification programme, which requires departments to consider whether they can reduce the regulatory burdens which fall on business, the voluntary sector and front-line public servants by providing greater clarity on the content or interpretation of legislation.

I am conscious that my response has not provided a precise way of dealing specifically with the important point that the noble Viscount has again raised, but I hope that, through the mechanisms and processes that I have mentioned, there is a way forward and that we can achieve the objective he so rightly pursues. On that basis I hope that he will withdraw the amendment.

Viscount Colville of Culross: My Lords, I am entirely in favour of consolidation; there is too little of it at the moment, and it would be a great help if it

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were available in some shape or form. I dare say that it will be on the website but, never mind, that is better than nothing.

I thank the noble Lords, Lord Desai and Lord Kingsland, for their support. It does not matter whether it is a regulation or a directive, the trouble in the transposition arises in exactly the same way. In neither case does the parliamentary Clerk—or not usually—put into the British statutory instrument anything which says what the offence is. I am very glad that I was supported by the noble Lord, Lord Kingsland, on Article 7 of the European convention. I believe that that is at the heart of the matter. It is not right that people should not be able to discover—or at any rate without the most colossal trouble—what they are not allowed to do, which is subject to criminal sanctions. It certainly is not transparent.

I will happily talk to the noble and learned Lord, Lord Davidson, about this. If he is concerned only with directives, we will have to deal with that, but it does not matter very much, as both sorts of European instruments are involved. I hope that these two short debates will ensure that somebody in the Cabinet Office will tell parliamentary Clerks that there is good practice. I have given two examples of it, and the noble Lord has acknowledged that. I tried to do that in Committee but it was brushed aside as being perfectly hopeless, airy-fairy and nothing other than confusing. However, that does not seem to be the case, as sometimes, but by no means always, parliamentary Clerks continue to put summaries of the offence in schedules. Why can’t we have a new instruction across the board that that should always be done? Then someone has, at any rate, the beginning of an idea where to look for the actions that they must avoid if they are not to get into trouble. If that is what the noble Lord is telling me he will set afoot, I will not return to the matter. However, I promise him that the reports of the Merits of Statutory Instruments Committee will continue to look at this. It has not gone away and there is no sign whatever of it improving as a result of anything that has been said.

Please, look again at what the Joint Committee said in 2001 and see whether something can be done about it. The noble Lord nods his head and I am sure that he will probably get something done. I hope that he may communicate with me a little further before Third Reading next week—it is also on a Thursday, so I shall be in the same trouble as I am today.

Lord McKenzie of Luton: My Lords, I assure the noble Viscount that we will not let the matter rest here, and my noble friend Lord Bassam and I will keep him abreast, both before and after Third Reading, of what ensues from our debate.

Viscount Colville of Culross: My Lords, that is as generous as both noble Lords were this morning. The point has been made and will continue to be made by them and others. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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