§ 3.32 p.m.
§ The Minister of State, Treasury (Lord Cockfield) rose to move, That the draft regulations laid before the House on 30th June be approved.
§ The noble Lord said: My Lords, when we debated this matter in your Lordships' House on 28th July the noble Lord, Lord Bruce of Donington, raised an important and, if I may say so with respect, difficult point of law relating to the vires of the penalty provisions contained in paragraph 13 of the regulations, and particularly in sub-paragraph (4)(b). I then said that we would seek further legal advice. This advice has now been received and it confirms the opinion I expressed to your Lordships on 28th July.
Section 2 of the principal Act, the European Communities Act 1972, which provides for the making of regulations, is drafted in the widest possible terms. Subsection (4) says that the regulations may include, and I now quote:
…any such provision (of any such extent) as might be made by Act of Parliament …".
These very wide provisions are then restricted by the provisions of Schedule 2. Section 2(4) says:
subject to Schedule 2 to this Act…".
Schedule 2 therefore restricts the power to make regulations under Section 2. There are various restrictions relating to conviction on summary jurisdiction but so far as conviction on indictment is concerned the only restriction is, and I quote, that the regulations may not:
create any new criminal offence punishable with imprisonment for more than two years…".
There is no other restriction on the punishment which may be provided on indictment. It follows therefore that the wide general words in Section 2(4) prevail and that on indictment a fine may be imposed instead of or in addition to a term of imprisonment not exceeding two years. On this basis therefore the regulations are intra vires. I trust that with this explanation your Lordships will now be prepared to approve the regulations, and I so move.
§ Moved, That the draft regulations laid before the House on 30th June be approved.—(Lord Cock field.)
Lord Bruce of Donington
My Lords, we on this side of the House are most grateful to the noble Lord for agreeing to reconsider this matter when it was raised on 28th July. We realise that all Ministers like their regulations to go through without undue trouble and I personally am most grateful to the noble Lord. He has been most considerate. Indeed, he and I have been in conversation about this particular clause during the Recess.
The main difficulty arises over the drafting. As the noble Lord explained on 28th July, he himself had spent some considerable time in the Library seeking to resolve the double negative in Schedule 2. After taking legal advice myself, which was not always unanimous, I have come to the conclusion that the noble Lord was originally quite correct and that I myself lacked the perception which he had at the time: that the double negative in fact meant what he said it meant.
443 For the information of the House I should like to give the example of this double negative so that we can see the quality of the draftsmanship that was employed in the drafting of Schedule 2. Schedule 2 to the European Communities Act 1972 says at paragraph 1(1):The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2)(a) and (b) shall not include the power—…(c) to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument, other than rules of procedure for any court or tribunal".Sub-paragraph (2) says:Sub-paragraph (1)(c) above"—the one which I have just read—shall not be taken to preclude the modification of a power to legislate conferred otherwise than under section 2(2), or the extension of any such power to purposes of the like nature as those for which it was conferred…".I hope that all noble Lords are now wiser as to the exact wording of Schedule 2 and as to the true clarity with which it was supposed to be expressed.
On going through the records I found that Schedule 2 to the European Communities Act when it was before your Lordships' House in Committee took up only 20 minutes of your Lordships' time. Despite the efforts of my noble friend Lord Beswick and my noble friend Lord Davies of Leek, it appears that this particular schedule was disposed of with undue haste. It would probably have been far better if the whole Bill, and in particular this schedule, had been considered rather more carefully at the time. Having said that, I reiterate what I said when I commenced: that we have no desire to hold either the House or the Government up on this matter. However, we hope that we have performed a useful service in drawing attention to what was an apparent ambiguity.
§ Lord Cockfield
My Lords, I am most grateful to the noble Lord for what he has said. Speaking as somebody who has to spend a great deal of his time finding his way through the 4,000 or more pages of the taxing statutes, I have a very great deal of sympathy with his point of view.
§ On Question, Motion agreed to.