Part of Retained EU Law (Revocation and Reform) Bill - Committee (4th Day) – in the House of Lords at 9:30 pm on 6 March 2023.
Lord Hacking
Labour
9:30,
6 March 2023
My Lords, I want to draw attention to two paragraphs in Clause 15 to which there has not been any reference in our Committee. Indeed, I do not think there has been any reference to them since Second Reading, but concern was certainly raised then about Clause 15(4)(c) and (d), and it is those that I now want to address.
We should remind ourselves that immense powers are vested in the Minister under Clause 15. Subsection (1) allows them to
“revoke any secondary retained EU law without replacing it”,
while subsection (2) allows them to
“revoke any secondary retained EU law and replace it with such provision as the relevant national authority”— that is, the relevant Minister—
“considers to be appropriate and to achieve the same or similar objectives.”
That is a power, without reference to Parliament, resting entirely in the hands of the Minister.
I now turn, more precisely, to Clause 15(4)(c) and (d). I shall read those paragraphs out to your Lordships. When replacing revoked secondary EU law, the Minister has the power to
“create a criminal offence that corresponds or is similar to a criminal offence created by secondary retained EU law revoked by the regulations”,
and, in paragraph (d), to
“provide for the imposition of monetary penalties in cases that correspond or are similar to cases in which secondary retained EU law revoked by the regulations enables monetary penalties to be imposed”.
It has been a cardinal feature of our law that the creation of criminal offences and the penalties that arise from the breach of those offences rest entirely in primary legislation. If, hidden under some carpet, there have been EU regulations that create a criminal offence or monetary penalties, then I am ashamed and embarrassed. But for the Government now to seek powers to replace them—again, without putting that before Parliament—is another wrong. My simple contention to your Lordships is that two wrongs do not make a right.
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