European Union (Withdrawal) Bill — House of Lords, 2018-04-25
Topic: Law and Crime
Annabel Goldie (Conservative, Centre-right): My Lords, it is important that we have returned to this issue after our debate in Committee, during which many noble Lords raised concerns about the creation of criminal offences through secondary legislation. I am grateful to the noble and learned Lord, Lord Judge, for Amendments 34, 44, 54 and 97, which seek to prevent the key powers in the Bill from creating criminal offences. I think we are all in agreement that the power to create criminal offences, above all things, is not to be taken lightly. These decisions can have huge impacts on people’s lives. Therefore they are decisions that the Government take very seriously. Parliament is absolutely right to give full scrutiny to proposals of this kind The Government listened very carefully to the debate we had in Committee and respect and understand the concerns raised. I pay tribute to the noble and learned Lord, Lord Judge, for his constructive approach to this matter. The Government believe that serious omissions or weaknesses to law enforcement could arise if the Bill did not include a capacity to create criminal offences in certain circumstances. It is therefore the Government’s view that the ability of the key powers to create criminal offences must remain in the Bill, for reasons I shall endeavour to explain. I realise that the noble and learned Lord and the noble Baroness, Lady Hayter, are very conversant with these issues, but perhaps other noble Lords would welcome a slight expansion of the Government’s approach to this Before I endeavour to expand on these reasons, I take this opportunity to highlight the amendment tabled by the Government—to which the noble and learned Lord referred and of which I am sure noble Lords are all aware—requiring a statement to be made alongside all instruments made under the main powers that seek to create a criminal offence. The statement will be made in writing by a Minister before the instrument is laid and then usually published in the Explanatory Memorandum to inform the deliberations of committees and the House. I am happy to talk with the noble Baroness further about the form in which the statement will be made to the House. One option might be to deposit the statement in the House The statement will explain why, in the relevant Minister’s opinion, there are good reasons for creating the offence and for the penalty provided in respect of it. This is in line with the approach taken in the Sanctions and Anti-Money Laundering Bill, and it will increase the level of transparency, ensuring that where the Government seek to create a criminal offence the Minister’s reasoning is clear and justified to Parliament. Of course, if either this House or the other place feels that these reasons are not good enough, I expect MPs and certainly noble Lords to vote against the instrument—I remind noble Lords that all statutory instruments made under the main powers in the Bill creating criminal offences must be affirmative. If noble Lords did not wish to take that dramatic option but wanted to express their dissatisfaction with the proposal, I hope they would avail themselves of other options to express this such as regret Motions, inviting the Minister to give evidence before the sifting sub-committee of the Secondary Legislation Scrutiny Committee, or asking for the Minister to justify himself or herself before a committee of this House or of the other place, such as the Exiting the European Union Committee or other relevant departmental Select Committee. I understand the amendment will be discussed in detail once we reach the debate on Schedule 7. I shall be happy to go into further detail then. However, I will say that the Government have tabled the amendment to increase the scrutiny of the main powers, rather than to reduce their scope or remove the power completely because of its important function. The Bill does, of course, limit the ability to create criminal offences with the sunsets on both the correcting power, which is sunset at two years after exit day by Clause 7(8), and on Clause 9, which is sunset at exit day as set out in Clause 9(4). I stress to noble Lords that these are the only powers—other than Clause 8; I hope the House accepts the Government’s amendment to remove that clause—that could create a criminal offence Upon exiting the EU, existing criminal offences that relate to the EU may require amending to ensure that previous criminal conduct remains criminal—for example to correct deficient references to the EU, EU bodies or EU legislation. If these are left unaddressed, the protections provided by having an offence in place will fall away. The reality of this would be a green light for criminal behaviour to go unpunished, leaving businesses and individuals unprotected from what was previously deemed so unacceptable that it was made criminal The noble Baroness, Lady Hayter, asked about examples. Some examples were given in Committee but there may be further examples that she is not aware of—if she is, I ask her to indulge me—where it might be appropriate, depending on negotiation outcomes with the EU, to amend existing offences or to create new ones. Certain financial services firms that are regulated at an EU level may need to be brought into the UK regulatory regime. HM Treasury is therefore considering amending the offence of misleading a regulator to include trade repositories misleading the FCA and third-country central counterparties misleading the Bank of England, if their regulation is transferred from the European Securities and Markets Authority. Without this, these important City operators, unlike other firms already supervised in the UK and within our regulatory perimeter, would not be subject to a criminal penalty when misleading the regulators which ensure their good conduct and the stability of our financial system. I cannot believe that any noble Lords would want this.