Criminal Liability in Regulatory Contexts Responses - Law ...

Residential Landlords Association
1.823 We heartily endorse this proposal. One of the major concerns is that individual
departments spew criminal offences out by the use of secondary legislation. The
primary legislation conferring authority to do so is drafted in the broadest terms.
There is, however, an enforcement problem with an unwritten constitution as to
how you would implement this proposal, as well as the EU issue to which we
have already referred. Most EU legislation via EU directives is implemented by
secondary legislation made under the European Communities Act 1972 rather
than through primary legislation. We believe that it should be a fundamental
principle that all criminal offences must be created by primary legislation,
including those emerging from the EU. However the corollary of this is that it is
vital that Parliament reforms itself so that sufficient time is given to properly
debate these issues even if only at the Committee stage as Bills pass through
Parliament. The use of guillotines/timetables would otherwise make this
suggestion effectively worthless. If only because of Parliamentary time this would
be a vital check to reduce the flow of additional criminal offences. At the same
time it needs to be coupled with a repeal bill to cut back on the number of existing
offences. We already have such a vast number that action is needed to be taken
to deal with these just as much as any new offences which may be required.
Trading Standards North West (TSNW)
1.824 Primary legislation is not reactive, and as Trading Standards legislation may not
sit high up on Parliamentary priority – secondary legislation can be useful. For
example with the BSE and Foot and Mouth outbreaks, the latest regulations were
published daily / weekly.
Criminal Bar Association and Bar Council
1.825 Arguably the practical impact of adoption of this proposal could be paralysis of
regulatory regimes. The restriction introduced could result in the criminal law
being unable to respond effectively and quickly to a constantly changing
regulatory environment. We invite consideration of the following.
Section 33(1)(c) of the Health and Safety at Work etc Act 1974
(HSWA 1974) creates an offence of contravening a provision in a
health and safety regulation. The terms of such health and safety
regulations have been subject to frequent variation, repeal and
replacement not least as a result of the need to secure the UK’s
compliance with various EU Directives. Would an offence contrary to
s 33(1)(c) of HSWA 1974 fall foul of this proposed principle? Would
amendment, repeal or replacement of health and safety regulations
be required to be effected by primary legislation in compliance with
such a principle? Or, would s 33(1)(c) provide an effective
circumvention of the ambit of such a proposed principle?
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