Criminal Liability in Regulatory Contexts Responses - Law ...

Trading Standards South East Ltd
1.798 TSSE does not believe that this proposal is necessary or appropriate. Offences
within statutes do inevitably play their part within the legislative framework,
however, TSSE feels that to rely upon this methodology for creating criminal
offences leads to an inflexible and unresponsive system. The nature of the
legislative process means that primary legislation can take too long to reach the
statute books. Parliament has, on occasion, introduced statutes fairly quickly
such as the Video Recordings Act 2010 to repeal and replace the Video
Recordings Act 1984. It is the view of TSSE that this would need to become the
norm, rather than the exception, in order to maintain a truly flexible legislative
framework. Such flexibility must be maintained in order to respond appropriately
to emerging situations such as disease outbreaks or product safety issues.
City of London Law Society
1.799 We agree criminal offences should be created and amended only through
primary legislation. We think it may be difficult to determine what is a minor detail
that can be amended in some other way and are dubious that 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 also think it would be worth considering something like the
German and French approach to administrative offences.
1.800 Yes.
Kiron Reid, Liverpool Law School
Financial Services and Markets Legislation City Liaison Group
1.801 In general, we support this proposal, but views do differ as to whether there
should be an exception for “minor details.” We recognise that there may be many
instances where it is appropriate for the detail relating to criminal offences to be
contained in secondary legislation; for example, in respect of technical offences
or where the provisions might need to be amended expeditiously. By way of
illustration, the Regulatory Activities Order (“RAO”) sets out in detail the activities
and investments which are regulated under FSMA – thereby setting the so called
“regulatory perimeter” – whilst section 19 of FSMA creates the criminal offence of
carrying on regulated activities without ‘authorisation’ or ‘exemption’ (the latter
also being an example of an ambulatory reference effected by secondary
legislation). That said, there are concerns that it will not be practicable to define
what “minor” means for these purposes.
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