Criminal Liability in Regulatory Contexts Responses - Law ...

1.792 Rather than formulating the exemption in terms of “minor details”, we suggest it is
formulated in terms of:
(1) changes which reduce or avoid inappropriate or unnecessary regulatory
burdens; or
(2) correct unintended consequences not anticipated by Parliament.
1.793 The inappropriate or unnecessary regulatory burdens would, implicitly or
explicitly, include those costs and other burdens introduced through unclear or
obscure wording.
The Law Society
1.794 We agree that criminal offences should be created and amended only through
primary legislation. This principle respects the constitutional power of Parliament
to make law, and would ensure that there be can proper debate by both Houses
of Parliament in relation to the creation of any criminal offence. Limiting criminal
law creation to primary legislation would, hopefully, reserve the use of criminal
law for serious offences and would help to create a more orderly, accessible and
clear criminal statute book.
1.795 We think it may be difficult to determine what is a minor detail which can be
amended in some other way. We also have doubts as to whether this exception
is appropriate. Many European Directives are implemented by statutory
instruments under the European Communities Act. We do not believe it is always
necessary to impose criminal offences to ensure Directives are properly
implemented and we think a requirement that criminal offences can only be
created by primary legislation would help to reduce the number of criminal
offences created. We think also it would be worth considering something like the
German and French approach to administrative offences
1.796 It is observed that where people work in a particular regulatory field (or are
involved in prosecuting a particular type of crime) there is a tendency for the
person involved to think that any behaviour that offends that regulatory regime (or
type of offence) is necessarily very serious and deserving of criminalisation (or
prosecution). This is perhaps an understandable and natural tendency, but one
that should be resisted in the interests of a rational and effective regulatory
regime.
1.797 We agree that what is required is centrally created, necessary and clear criminal
law, made on the basis that the behaviour in question really does warrant the full
force and associated opprobrium of the criminal law.
152