Criminal Liability in Regulatory Contexts Responses - Law ...

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MOJ 1.809 Too restrictive. Parliament has legislated for Government to create offences by secondary legislation (eg enforcing EU obligations may be created in Orders made under European Communities Act 1972). Parliament has concluded that secondary legislation provides sufficient parliamentary scrutiny in particular circumstances and it reflects the practical reality that requiring primary legislation would significantly restrict Government’s ability to create or amend regulatory regimes. Government is content that MOJ gateway (operates equally to primary and secondary legislation) will provide a sufficient safeguard going forward to test necessity in a consistent and proportionate way before legislation containing offences if put before Parliament. Care Quality Commission (CQC) 1.810 Attractive in principle but in the context of health and social care, proposal brings significant risks. Health and social care market place is fast-changing with a number of importance changes to policy and legislation through 1980s, 1990s and 2000s, including changes underpinning the current emphasis on flexible, responsible and personalised services. 1.811 Over the years, primary legislation on health and social care regulation has often lagged behind changes to delivery-related legislation. The experience of predecessor regulator shows that the greater ease of developing secondary legislation has been essential to making sure regulation is able to keep up with changes in how health and social care is delivered. CQC doubts that in their context, enforcement powers based solely on primary legislation would be responsible and flexible enough for a fast developing and changing policy and delivery environment. UK Environmental Law Association (UKELA) 1.812 Given UKELA’s view that criminal offences can be an appropriate means of implementing European legislation, proposal seems administratively unworkable. Limits on parliamentary Bill time and procedural uncertainties would make it unlikely that new European legislation could be implemented by the due date using primary legislation. This would give rise to breaches of European and international obligations. If concern is that secondary legislation avoids due democratic process, perhaps more use could be made of the affirmative resolution procedure. 156
EEF: The Manufacturers’ Association 1.813 EEF has been concerned for some time that regulations are made without proper parliamentary scrutiny or in many cases the awareness of most members of the Commons and Lords. We criticised this de3mocractic deficit in the recent report “Reforming Regulation – improving competitiveness, creating jobs”. We are particularly concerned that so many EU directives with far-reaching consequences are never debated in Westminster. This lack of scrutiny reduces the workload of Parliament but to the detriment of parliamentary accountability. The ease with which regulations can be made has contributed to excessive regulation. If regulations warrant criminal sanctions, they also warrant proper debate in parliament and the profile that this brings EEF therefore strong supports a requirement that all regulation creating criminal offences must be enacted through primary legislation. This would address a serious democratic deficit. If an offence is serious enough to warrant a penalty in criminal law, it also warrants full consideration by parliament. Faculty of Advocates 1.814 The enactment of a new criminal offence is a serious step and is one that should be reserved to primary legislation. Central England Trading Standards Authorities (CETSA) and West Midlands Region County Chief Environmental Health Officers Group 1.815 It is for Parliament to create legislation. The scope for agencies and local authorities to make secondary legislation is highly limited, so the comments in the consultation paper are not easy to follow, although they may have been easier had we had the time to take up the academic reference to article, “Better Regulation and the Small Enterprise” by J Kitching in the book, “Better Regulation” 2007, S Weatherill (ed.) 1.816 If the amount of criminal offences being created were not to reduce drastically, we doubt if Parliament would have the time to enact what is needed. Provided legislation is well drafted, deals with the issues that arise, gives certainty to businesses that are regulated and that emergency legislation can be enacted to deal with emergency situations, such as emerging safety issues, we have no preference about whether it is in primary or secondary legislation. Food Law Group 1.817 The Group does not see this proposal to limit the creation of criminal offences to primary legislation only to be a practical or necessary provision and could result in adverse consequences. Many regulatory offences in the food sector are now created under EU regulations and the only UK legislation involved is the enforcement provision which it would be cumbersome to deal with as primary legislation. CBI 1.818 We strongly agree. This would enable appropriate Parliamentary scrutiny and debate to be undertaken. It is not clear how there can be, (nor indeed that there should be), a carve-out for minor details. 157
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CRIMINAL LIABILITY IN REGULATORY CO
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1.8 The current approach of making
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1.21 We remain concerned that many
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Michelle Welsh, Monash University 1
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1.41 Looking for alternative dispos
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1.50 It is important that any regim
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1.61 Range of matters that may be s
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Raymond Schonfeld, Single Market Ve
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1.90 Sometimes appropriate to prose
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1.101 Note Commission’s point in
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1.113 Welcome Commission’s desire
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Trading Standards Institute (TSI) 1
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1.132 CP has misunderstood this imp
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1.144 There are different levels of
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1.156 We note, however, that it is
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1.167 The distinction between “tr
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1.173 Defence of due diligence: One
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Residential Landlords Association 1
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1.193 Any self regulatory scheme it
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1.201 Another issue in the case of
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“regulatory authorities should ma
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1.223 The paper says (n. 10) it is
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1.234 While for many arguments in t
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1.244 The identification doctrine i
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1.253 Decriminalising the regulatio
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1.262 The present position: Using k
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1.275 On the other, the immediately
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1.290 Another UK example of applica
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Judges of the Court of Session 1.30
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1.317 Spirit drinks in the EU are c
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1.325 Whether or not HMRC succeeded
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1.335 Furthermore, to suggest that,
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Criminal Bar Association and Bar Co
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1.346 The civil sanctions regime fo
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Trading Standards South East Ltd 1.
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1.363 Perhaps even more critically,
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(6) whether there are grounds for b
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1.380 Believes the aim of proposal
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1.393 Local regulators already (ie
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1.399 At what stage does reprehensi
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1.412 There is a reference at 1.47
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Both factors are relevant to a cons
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1.425 We do not think that the dete
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1.435 Further, it is considered tha
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1.449 The civil sanctions regime fo
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1.460 For my part, I struggle to se
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1.472 Very often an either-way offe
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Local Government Regulation (LGR) 1
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Institute of Employment Rights 1.48
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1.499 2008 Act limits the maximum f
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1.514 Agree. Residential Landlords
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1.528 Whilst these sanctions provid
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Page 117 and 118: 1.595 Selling alcohol to children c
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Page 137 and 138: CBI 1.717 Yes in principle, but see
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Page 145 and 146: Association of Chief Trading Standa
Page 147 and 148: 1.765 It is also important that pro
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Page 155: 1.805 Agree. (3) Examples of Codes
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Page 163 and 164: RSPCA 1.845 As stated in this respo
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Page 167 and 168: 1.867 Due to a series of budgetary
Page 169 and 170: The Law Society 1.876 As a general
Page 171 and 172: City of London Law Society 1.886 We
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Page 175 and 176: East of England Trading Standards A
Page 179 and 180: OFT 1.927 With regard to the fault
Page 181 and 182: The Faculty of Advocates 1.940 The
Page 183 and 184: Kingsley Napley LLP 1.952 Where the
Page 185 and 186: 1.964 Work to or involving asbestos
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Page 189 and 190: 1.989 There is also the situation o
Page 191 and 192: HSE 1.1000 We recognise that in gen
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1.1094 This is an appropriate addit
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1.1105 Furthermore, there are a num
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1.1113 Should the defendant fail to
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1.1121 Both sets of regulations enf
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HSE 1.1134 Under this proposal, and
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Institute of Chartered Accountants
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Trading Standards South East Ltd 1.
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1.1171 I argue that the proposal to
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Justices’ Clerks’ Society 1.118
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East of England Trading Standards A
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PROPOSAL 16 Clifford Chance 1.1217
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City of London Law Society 1.1231 W
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1.1244 Question 3: No. Negligence b
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Central England Trading Standards A
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Institute of Employment Rights 1.12
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1.1284 Q4: We do not agree with the
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HSE 1.1296 We are opposed to this p
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Michelle Welsh, Monash University 1
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1.1312 The finding of the empirical
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1.1319 Q3: We do not agree that an
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1.1333 In that case, the Court of A
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1.1343 We have set these matters ou
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