European Union (Withdrawal) Bill — House of Lords, 2018-04-25
Topic: Law and Crime
Igor Judge (Crossbench, Unknown): My Lords, the issue that these amendments give rise to is quite an important constitutional one. This will not be a great moment after having had the excitement of a vote involving 500 or more Peers, but if we could add up to 100 it would be very successful. There are two reasons why there is no great interest in this issue, and one is that we have become habituated to the creation of criminal offences by regulation. It happened under the last Labour Government and the coalition Government, and it happens under this Government. Over the past 20 to 25 years there has been a proliferation of these clauses. Constitutionally, that is an aberration. We should not be creating criminal offences that can lead to an individual being imprisoned by regulation that, for the reasons we have discussed over the past few weeks, is controlled only by negative or affirmative resolution, which, as we have seen, is no sort of control at all The constitutional principle was upheld during the debates on the sanctions Bill. Those noble Lords who were here will remember a very significant vote in favour of an amendment to that Bill which would have deleted the ability of a Minister of the Crown to create criminal offences by regulation. There was cross-party support for the amendment and, as I say, the Government were defeated. The end result was that I had a series of meetings with the noble Baroness, Lady Bowles, who is not in her place. We then met with the Treasury Minister, with the Bill team and twice with parliamentary counsel to argue about how best to preserve constitutional certainty in relation to the creation of criminal offences. It was not easy. One significant point was made that certainly affected me: there will be occasions when it may be necessary—to use the word we now have—to allow for an offence to be created by regulation. A compromise was put forward and was accepted. It was put before the other place and, on this particular issue, that Bill will now proceed Faced with that, it seemed to me that we had to reflect again on the absolute nature of this amendment. I see that the Government have put forward proposals in government Amendments 83C and 83G which coincide with the suggestions made by the Constitution Committee, of which I am a member. I am speaking today only for myself, of course, not for the committee. The Government have recognised that there needs to be a significant increase in the element of parliamentary scrutiny and, if I may say so, proposals to encourage ministerial hesitation before proceeding by way of regulations to create criminal offences. I really am not suggesting more than this. This is a start. It is a pullback from a process to which, as I said, we have become habituated. It is a process; it is an advance. It had not been made when the present Bill came before the House. The Bill has now come before the House, and we have discussed it. We have debated it in Committee, we have now discussed it again and ministerial amendments have been made. I welcome those, as I said at the start. I welcome the proposal that these amendments should be made. Ultimately, it is not my decision whether Amendments 83C and 83G should be supported in the House. If they were, that would provide a significant improvement to the current arrangements. There is nothing more I can usefully say. I beg to move.