My Lords, I thank noble Lords for their amendments in this group related to criminal offences. This is an important area, and I am grateful for the knowledgeable and informed contributions in this debate, demonstrating the significant expertise in this House. My response sets out the general principles relating to criminal offences, but I will try to answer many of the various questions that noble Lords asked.
As I mentioned previously, I am very aware of the concerns that noble Lords have raised on delegated powers and the importance of consultation and scrutiny more generally. In particular, I am grateful for the thoughtful and comprehensive reports of the Delegated Powers and Constitution Committees. I have mentioned this before: noble Lords will be aware that we have provided responses to both committees, and my colleague, Minister Madders, and I gave evidence to the DPRRC. I was very grateful for the opportunity to explain the Government’s approach to these issues.
I begin by stating a central point. The severity of the harm caused by breaches of regulations across different product sectors varies. To proportionately reflect harm, offences and penalties must be tailored to individual sectors and duties.
I hope noble Lords would agree that, with regard to criminal offences, the rule of law is best served by precision. Only by having criminal enforcement provisions alongside product requirements can proportionality be ensured. Take, for example, a penalty for failure to properly mark a product: the harm will be very different for a highly sensitive product within a nuclear energy installation versus a lower-risk product.
As well as creating issues of proportionality, codifying criminal offences and penalties in the Bill would likely lead to enforcement gaps later. Offences would not correspond directly to new duties created for existing supply chain actors or responsibilities placed on new actors who enter the supply chain over time.
Lord Bingham’s principles require that the law be accessible and, so far as is possible, intelligible, clear and predictable. Setting out the details of offences and penalties in the Bill would undermine those principles. It would necessitate drafting speculative penalties to fit duties yet to be created. That would leave ambiguity over to whom offences may apply in future and create statutory maximum penalties that would be disproportionate for some actors.
Lord Bingham’s principles go further to support the approach of tailoring clear, proportionate offences and penalties that correspond to supply chain actors’ duties as they arise over time. If we instead place the
detail in primary legislation, we risk undermining those crucial principles by locking in terms that become ambiguous over time as business models and products evolve, and with penalties that can cater to only the most serious version of the offence. Setting the maximum penalty in primary legislation means that the penalty can be calibrated to only the most serious version of the offence, leaving a broad discretion to judges to determine the appropriate sentence for less serious cases. Legal certainty and predictability of applicable penalties are better served by specific, tailored provision being set out in secondary legislation.
Noble Lords have highlighted that the DPRRC, in its report on the Bill, recommended that elements of criminal offences are set out within primary legislation. The Government value the work of the DPRRC and the incredibly important role it plays. We have considered its recommendations carefully within the department. However, the approach taken to setting out criminal offences within regulations is not novel. Other Acts that underpin broad regulatory regimes allow for the creation of criminal offences in regulations, including the Building Safety Act 2022, the Retained EU Law (Revocation and Reform) Act 2023 and the European Union (Withdrawal) Act 2018. I also highlight some examples of existing product regulations that set out criminal offences and penalties, such as the Nagoya Protocol (Compliance) Regulations 2015 or the Simple Pressure Vessels (Safety) Regulations 2016.
Noble Lords may also be interested to note that, to ensure proportionality, the maximum criminal penalties that may be implemented by regulations are set out in the Bill and follow existing precedent, as seen in sector-specific regulations such as the Electrical Equipment (Safety) Regulations 2016. This is a key point. Our approach provides this strong safeguard that enables discretion to set lower and more proportionate penalties in secondary legislation, which will also have parliamentary oversight. We submit that secondary legislation ensures parliamentary oversight but also the flexibility required to ensure that we can implement proportionate criminal offences that comply with the vital principles underpinning the rule of law.
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I will now address our commitment to following the affirmative procedure. In 1973, the Brooke committee set out three circumstances where the affirmative procedure would normally be appropriate. The third circumstance is where a delegated power involves considerations of special importance, providing the example of a power that may be used to create a new criminal offence of a serious nature. We have followed this recommendation.
The approach taken also reflects the treatment of similar powers in other recent significant Acts. Paragraph 8F of Schedule 7 to the European Union (Withdrawal) Act 2018 requires mandatory use of the affirmative resolution procedure in the case of an instrument made under its powers that
“creates, or widens the scope of, a criminal offence”.
I refer to Amendment 92 in the name of the noble Lord, Lord Jackson. We have agreed that the affirmative procedure will apply when regulations broaden the scope of a criminal offence or set a new penalty to reflect the serious potential implications for individuals.
In committing to that, we have guaranteed an opportunity for debate, consideration and, of course, rejection of regulations should the House see that as appropriate.
When draft regulations containing new offences or penalties are laid, they will be accompanied by an Explanatory Memorandum that will justify in detail any provisions relating to criminal offences. Draft regulations will be introduced only after thorough engagement with the Ministry of Justice. Engagement will include the completion of a detailed justice impact test that justifies the need for such new offences. Statutory instruments will not be laid until those justice impact tests have been interrogated and agreed with the Ministry of Justice. We will also engage the justice departments of the devolved Governments, as required.
The noble Baroness, Lady Brinton, highlighted the difficulties facing our courts and the additional burden that the creation of new criminal offences may cause. We must be able to replicate the existing structure of criminal offences and introduce new offences, where necessary, to meet the requirements of changing product sector responsibilities. However, we intend to introduce civil monetary penalties for non-compliance with certain regulatory requirements that carry less severe consequences if contravened. This would, ultimately, alleviate the pressure on the courts and the prison system.
I refer to the question of the noble Lord, Lord Sharpe, about relevant authorities. I wrote to the noble Lord, Lord Lansley, yesterday, setting out more information on relevant authorities. If the noble Lord, Lord Sharpe, does not have a copy, I can provide one to him and all other noble Lords in this debate.
I understand the good intentions and concerns—of all noble Lords—behind these amendments. I have highlighted, I hope, that we are following precedent. With that in mind, I ask noble Lords not to press their amendments in this group.