My Lords, my amendments in this group—Amendments 69, 91 and 107—cover a somewhat wider area than those in the name of the noble Lord, Lord Sharpe of Epsom. I shall return to his amendments and the speech he has just made later, to comment on them—but I start by saying that Amendment 92 in the name of the noble Lord, Lord Jackson of Peterborough, is helpful. One of my concerns at Second Reading was how Parliament can be made fully aware by more than just the laying of regulations, when a Minister or another body decides to create or widen the scope of criminal offences, that they must lay an Explanatory Memorandum in the Libraries of both Houses. I look forward to hearing the noble Lord speak later; his amendment is part of a possible solution.
At Second Reading, the Minister said:
“We have minimised the use of the powers in the Bill as much as possible and we have worked closely with the Attorney-General—who, quite rightly, is a stickler for these kinds of things—to find the best approach. So we look forward to the report of the Delegated Powers and Regulatory Reform Committee, which we will carefully consider
”.—[Official Report, 8/10/24; cols. 1940-41.]
In my speech later on in that debate, I raised my concerns about a Minister who was not based in the Justice Department being able to create or extend criminal offences by regulation, with no ability to amend and much less detailed debate in both Houses of Parliament.
At Second Reading, we had not seen the second report of the Delegated Powers Committee, because that was published on 15 October—a week afterwards. Its summary about this part of the Bill is blunt. It says:
“We consider that … the Government have failed to provide a convincing justification for the inclusion of skeleton clauses in the Bill”
and suggests that
“the delegations of power in clauses 1, 2, 3 and 9 are inappropriate and should be removed”.
There is some detail about why it thinks that, in particular, there is a problem with the creation of, or the widening of the scope of, criminal offences. I mention this because I absolutely appreciate everything that the noble Lord, Lord Sharpe, has said about the skeletal nature of the Bill earlier on—indeed, my noble friends have also made those comments—but I want to focus on the impact of having new criminal offences on the criminal justice system. I shall come to that in a minute.
My first two amendments tackle the creation of criminal offences—in the first part of the Bill on product regulation and in the second part on metrology. I have also laid Amendment 107, which seeks to ensure that new criminal offences are not created through the clauses on information-sharing regulations. Clause 7(3)(d) talks about
“sanctions for non-compliance … including … creating, or widening the scope of, criminal offences”.
That is exactly one of the points that the Delegated Powers Committee is making: the Bill is so skeletal in nature, it appears that information sharing is a route by which criminal offences could be made. I would be grateful if the Minister could respond to that.
5.30 pm
I come back to a wider concern of mine. We know that the criminal justice system is under real stress at the moment, so much so that the Secretary of State for Justice is considering that fewer convicted offenders will be imprisoned and that those who are will be imprisoned for a shorter period. But prisons are only part of the criminal justice system; an offence for which a convicted offender can be sentenced for a term of up to two years also relies on substantial time from the CPS, police, court staff, solicitors and barristers, and judges and recorders. This is at exactly the moment when we have people waiting for years for serious cases of rape even to be considered.
In my experience of working with other noble Lords on either home affairs or justice amendments, Justice Ministers from all parties have repeatedly said, “Please, no more criminal offences and no more offences with lots of longer time”. I see the Deputy Chairman smiling wanly, because he and I have both been in that position.
I want to ask the Minister again about the formal discussions with the Attorney-General, which were referred to at Second Reading. Have they taken place not just with the Attorney-General about the principle but more widely with the Home Office, the Ministry of Justice, the court service, the Probation Service and the Prison Service? Is there an impact assessment for those departments, because it is not covered in the impact assessment for the Bill? Given the current crisis in our criminal justice system, we need to think carefully before moving ahead with this.
The explanation from the noble Lord, Lord Sharpe, of his Amendments 68 and 90 was interesting. I agree with many of the principles that he outlined, but he seeks to remove only subsection (9) from Clauses 3 and 6, not subsections (9), (10) and (11), as I do in my amendments—both on the product regulation and metrology parts of the Bill. I accept that both his and my amendments are probing, but I am somewhat bemused by that, because I cannot see how removing just subsection (9) would create the effect that he desires. It leaves in the right to appeal to a court or tribunal in subsection (10) and the scope of triability of an offence and the levels of fines or imprisonment, with a maximum term being up to two years, in subsection (11).
If only subsection (9) were removed from Clauses 3 and 6, it would still be possible to appeal and to have the terms of triability for an offence and the levels of the fines and imprisonment in place, but with no power for the Minister to create or widen the scope of criminal offences. I may have misunderstood the objective of the noble Lord’s amendments, but I am concerned that they create even more power for a Minister, which I am trying to rationalise, certainly to hold them to account. I hope that, when the noble Lord, Lord Sharpe, responds to the debate after the Minister has spoken, he could perhaps explain this a little more. I also look forward to hearing the Minister’s response to my amendments. I am very grateful for the meetings with the Ministers, but I have seen nothing in writing about this issue with criminal offences.