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Criminal law in the shadows: creating offences in delegated legislation

Published online by Cambridge University Press:  22 June 2018

James Chalmers  and
Fiona Leverick
James Chalmers*
Affiliation:
School of Law, University of Glasgow, Glasgow, Scotland
Fiona Leverick
Affiliation:
School of Law, University of Glasgow, Glasgow, Scotland
*
*Corresponding author. Email: [email protected]
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Abstract

Substantial numbers of criminal offences are created in the UK in delegated legislation, often carrying heavy maximum penalties. The majority are created in statutory instruments passed under the negative resolution procedure, which offers very limited opportunity for scrutiny and does not involve a parliamentary vote. This phenomenon has slipped under the radar of orthodox criminal law scholarship, where debate has focused primarily on the criteria that should be used to determine the content of the criminal law and on the principles to which such offences should conform, rather than on the process of creating criminal offences. Creating offences in delegated legislation raises questions of democratic legitimacy and has resulted in criminal offences being created which do not conform to basic principles of fair notice and proportionality of penalty. To address this, we propose that parliamentary approval should be required for all serious offences. It would be impractical to do this for all criminal offences, and direct participation in the legislative process via consultation can act as an alternative (or additional) legitimating principle. This does, however, require that the consultation process complies with certain basic minimum requirements, and we explain how these requirements might appropriately be framed.

Keywords

criminal lawcriminalisationdelegated legislation
Type
Research Article
Information
Legal Studies , Volume 38 , Issue 2 , June 2018 , pp. 221 - 241
Copyright
Copyright © The Society of Legal Scholars 2018 

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Footnotes

†

The research on which this paper is based was funded by the Leverhulme Trust. The authors would like to thank Lindsay Farmer, Tom Mullen and Findlay Stark and the anonymous reviewers for their helpful comments on earlier versions and Alasdair Shaw and Peter Lewin for their research assistance at various stages of the project.

References

1 Law Commission Criminal Liability in Regulatory Contexts (Consultation Paper No 195, 2010) at para 1.49.

2 See eg Husak, D Overcriminalization: The Limits of the Criminal Law (Oxford: Oxford University Press, 2008)Google Scholar; Duff, RA et al. (eds) The Boundaries of the Criminal Law (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar; Simester, AP and Hirsch, A von Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford: Hart, 2014)Google Scholar.

3 See eg Westen, P ‘Two rules of legality in criminal law’ (2007) 26 Law and Philosophy 229 at 289Google Scholar; Ormerod, D and Laird, K Smith and Hogan's Criminal Law (Oxford: Oxford University Press, 14th edn, 2015) p 3CrossRefGoogle Scholar.

4 Tomlin, P ‘Extending the golden thread? Criminalisation and the presumption of innocence’ (2013) 22 Journal of Political Philosophy 44 at 65Google Scholar; Dripps, DA ‘The liberal critique of the harm principle’ (1998) 17 Criminal Justice Ethics 3 at 12CrossRefGoogle Scholar.

5 See Table 1 below.

6 As Table 2 below shows, many are imprisonable.

7 See eg J Chalmers and F Leverick ‘Tracking the creation of criminal offences’ [2013] Crim LR 543; J Chalmers, F Leverick and A Shaw ‘Is formal criminalisation really on the rise? Evidence from the 1950s’ [2015] Crim LR 177.

8 N Morris ‘Blair's “frenzied law making”: a new offence for every day spent in office’ (The Independent, 16 August 2006).

9 For discussion, see Chalmers and Leverick, above n 7.

10 The initial periods assessed were the 12 months following the election of the ‘New Labour’ Government in 1997 and the Coalition Government in 2010. A third analysis following the 1951 election of a Conservative government provided a historical baseline. The analysis concluded with the calendar year 2014 in order to provide a more recent picture than that available from the initial samples.

11 Ferguson, PR ‘Criminal law and criminal justice: an exercise in ad hocery’ in Sutherland, EE et al. (eds) Law Making and the Scottish Parliament: The Early Years (Edinburgh: Edinburgh University Press, 2011) p 208 at p 218Google Scholar.

12 Chalmers and Leverick, above n 7, at 548–550; Chalmers et al, above n 7, at 179–180.

13 These figures include fines limited by reference to the standard scale, prescribed sum, and nominal limits. For the standard scale and prescribed sum, see the Interpretation Act 1978, Sch 1 and references therein.

14 Chalmers and Leverick, above n 7, at 551 and note n 16 below. We make no claim here about whether the number of offences created by legislation (whether primary or secondary) represents overcriminalisation. It is doubtful that such a conclusion can be reached by a numerical analysis alone, and the extensive use of criminal law in this way must be understood in the broader context of the regulatory role of governments: see Horder, J ‘Bureaucratic criminal law: too much of a good thing?’ in Duff, RA et al. (eds) Criminalization: The Political Morality of the Criminal Law (Oxford: Oxford University Press, 2014) p 101CrossRefGoogle Scholar.

15 For the use of secondary legislation to create criminal offences prior to the 1950s, see Horder, above n 14, at p 108.

16 The figure here differs to that of 1235 mentioned above because it includes not only offences applicable to England and Wales but also those applicable to other parts of the UK.

17 Some of the percentage totals exceed 100 due to rounding. There were no maximum penalties of more than one year but less than two years’ imprisonment in the relevant years.

18 Under the Defence (General) Regulations 1939, whereby contravention of or non-compliance with any provision was deemed an offence with a maximum penalty of two years’ imprisonment: see Chalmers et al, above n 7, at 189–190.

19 Including 130 created by a single instrument, the Water Environment (Controlled Activities) (Scotland) Regulations 2011, SSI 2011/209.

20 Law Commission, above n 1, at para 1.49.

21 Law Commission, above n 1, at n 105.

22 For a rare example of discussion in the UK context, see Horder, J Ashworth's Principles of Criminal Law (Oxford: Oxford University Press, 8th edn, 2016) pp 60–64CrossRefGoogle Scholar.

23 Such offences are sometimes termed ‘regulatory’ but we avoid that term as there is disagreement over its meaning: see Smith, G et al. ‘Regulation and criminal justice: exploring the connections and disconnections’ in Quirk, H et al. (eds) Regulation and Criminal Justice: Innovations in Policy and Research (Cambridge: Cambridge University Press, 2010) pp 2–4Google Scholar.

24 See Chalmers and Leverick, above n 7, at 557.

25 See ibid, at 557; Chalmers et al, above n 7, at 186–189.

26 See eg Ispa-Landa, S and Loeffler, CE ‘Indefinite punishment and the criminal record: stigma reports among expungement-seekers in Illinois’ (2016) 54 Criminology 387CrossRefGoogle Scholar.

27 See the table in Chalmers et al, above n 7, at 186.

28 See eg Friedman, L ‘In defense of corporate criminal liability’ (2000) 23 Harvard J of L and Public Policy 833Google Scholar.

29 The Law Commission quotes Department for Business, Enterprise and Regulatory Reform figures that estimate that 96% of the UK's 4.7 million private businesses have fewer than 10 employees (Law Commission, above n 1, at para 7.6).

30 Hawkins, K Law as Last Resort: Prosecution Decision-Making in a Regulatory Agency (Oxford: Oxford University Press, 2002)Google Scholar.

31 J Black ‘Talking about regulation’ [1998] PL 77 at 93.

32 For an overview, see Zander, M The Law-Making Process (Cambridge: Cambridge University Press, 7th edn, 2015) ch 2Google Scholar.

33 Page, EC Governing by Numbers (Oxford: Hart, 2001) p 157Google Scholar.

34 Unless specified otherwise, the term SI will be used here to incorporate SIs and SSIs (Scottish Statutory Instruments).

35 Kelly, R House of Commons Background Paper: Statutory Instruments (London: House of Commons, SN/PC/6509, 2012) p 5Google Scholar. Almost all of the SIs in our sample were made under either NRP or ARP – see Section 3(b)(i) below. Statutory instruments can be made under procedures which are different from the general ones described here: see ibid, at pp 11–14.

36 House of Lords Briefing Looking at the Small Print: Delegated Legislation (London: House of Lords, 2009) p 2Google Scholar.

37 Ibid.

38 Ibid.

39 In the parliamentary session 2014–2015, NRP was used to make 168 SSIs and ARP to make 97 SSIs: Delegated Powers and Law Reform Committee The Work of the Delegated Powers and Law Reform Committee in 2014–15 (Edinburgh: Scottish Parliament, 2015) at para 29Google Scholar.

40 Kelly, above n 35, at p 5.

41 Statutory Instruments Act 1946, s 5(1). Very occasionally the instrument is laid in draft and cannot be made if the draft is disapproved within 40 days. SIs subject to this procedure are ‘few and far between’ (ibid, at p 5) and there were none in our sample.

42 See the Interpretation and Legislative Reform (Scotland) Act 2010. NRP is set out in s 28 and s 28(3) provides for the 40-day period.

43 Secondary Legislation Scrutiny Committee terms of reference 1(a).

44 Or, for those involving only financial matters and therefore only the House of Commons, the Select Committee on Statutory Instruments.

45 Kelly, above n 35, at p 9.

46 House of Commons Standing Order No 151 (and these are mirrored in House of Lords Standing Order No 74).

47 House of Lords Guidance for Departments Submitting Statutory Instruments to the Secondary Legislation Scrutiny Committee (London: House of Lords, 2016) at p 2Google Scholar.

48 Previously known as the Subordinate Legislation Committee.

49 Standing Orders of the Scottish Parliament, Rule 10.3.1. The power to draw attention on the basis that the supporting material does not adequately explain the policy intention or that inadequate consultation has taken place has not specifically been given to the DPLRC but it could report an instrument for these reasons under its general power to report an instrument on ‘any other ground which does not impinge on its substance or on the policy behind it’.

50 Standing Orders of the Scottish Parliament, Rule 15.1.1.

51 Previously known as the Merits of Statutory Instruments Committee.

52 Guidance for Departments, above n 47, at p 2.

53 Standing Orders of the Scottish Parliament, Rule 10.2.1.

54 JD Hayhurst and P Wallington ‘The parliamentary scrutiny of delegated legislation’ [1988] PL 547 at 574.

55 Or a member of the House of Lords or, in Scotland, an MSP.

56 There have been instances where, following a report, the government has committed to amend an instrument at the next available opportunity. See, for example, the Animal Feed (England) Regulations 2010, which were reported by the JCSI for imposing requirements in relation to the labelling of animal feed but failing to identify the person whose responsibility it was to ensure that these requirements were complied with. The Food Standards Agency undertook to amend the SI at the next available opportunity: see Fox, R and Blackwell, J The Devil is in the Detail: Parliament and Delegated Legislation (London: Hansard Society, 2014) p 202Google Scholar. The Regulations were amended but not until three years later: see the Feed (Hygiene and Enforcement) and the Animal Feed (England) (Amendment) Regulations 2013.

57 In the context of the Scottish Parliament, there was only one motion to annul in the parliamentary session 2014–2015 and it was withdrawn. This was despite 64 instruments being reported by the DPLRC during this period: see DPLRC, above n 39, at paras 46 and 130. See similarly (writing about Westminster) Hansard Society Lifting the Lid on Delegated Legislation: Issues and Questions Paper (London: Hansard Society, 2013) p 3Google Scholar.

58 Bennett, AF ‘Uses and abuses of delegated power’ (1990) 11 Stat LR 23 at 26Google Scholar.

59 See Kelly, above n 35, at p 7.

60 The Paraffin (Maximum Retail Prices) (Revocation) Order 1979, SI 1979/797. See ibid, at p 7.

61 Beith, A ‘Prayers unanswered: a jaundiced view of the parliamentary scrutiny of statutory instruments’ (1981) 34 Parliamentary Affairs 165Google Scholar; Bennett, above n 58.

62 Tudor, P ‘Secondary legislation: second class or crucial?’ (2000) 21 Stat LR 149Google Scholar.

63 See eg Asimow, M ‘Delegated legislation: United States and United Kingdom’ (1983) 3 OJLS 253 at 266CrossRefGoogle Scholar; Ganz, G ‘Delegated legislation: a necessary evil or a constitutional outrage?’ in Leyland, P and Woods, T (eds) Administrative Law Facing the Future: Old Constraints and New Horizons (Oxford: Oxford University Press, 1997) p 61 at pp 66–75Google Scholar.

64 Asimow, above n 63, at 266.

65 Statutory Instruments Act 1946, s 7(1). The same is true of SSIs: see Interpretation and Legislative Reform (Scotland) Act 2010, s 28(3).

66 Hayhurst and Wallington, above n 54, at 557.

67 Kelly, above n 35, at pp 5–7. Occasionally an instrument is laid after making and comes into force immediately but cannot remain in force unless approved within a certain period (usually 28 or 40 days). This was not the case for any of the SIs in our sample.

68 Ibid, at p 10.

69 Or two and a half hours if the instrument relates exclusively to Northern Ireland: see Kelly, above n 35, at p 10.

70 See eg the Census Act 1920.

71 Kelly, above n 35, at p 6.

72 Interpretation and Legislative Reform (Scotland) Act 2010, s 29. Instruments only require the approval of the Scottish Parliament as there is no second chamber. As in Westminster, amendment is not possible.

73 http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powers-and-regulatory-reform-committee/role/.

74 Standing Orders of the Scottish Parliament, Rule 10.3.1.

75 See eg Delegated Powers and Regulatory Reform Committee Guidance for Departments on the Role and Requirements of the Committee (London: House of Lords, 2014) para 38Google Scholar.

76 See eg Official Report, Delegated Powers and Law Reform Committee, 4 March 2014, col 1336 (in relation to the Tribunals (Scotland) Act 2014).

77 DPRRC, above n 75, at para 26.

78 Craig, P Administrative Law (London: Sweet and Maxwell, 8th edn, 2016)Google Scholar paras 15-025 to 15-033.

79 See eg R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2000] 1 All ER 884, where the court held that the Rent Acts (Maximum Fair Rent) Order 1999 was invalid because it went beyond the powers set out in the Landlord and Tenant Act 1985.

80 See eg Agricultural, Horticultural and Forestry Industry Trading Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190 where the court held that the Industrial Training (Agricultural, Horticultural and Forestry Board) Order 1966 had no application to mushroom growers because the minister did not comply with his legal duty to consult them before the Order was made.

81 See eg R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1992] 25 HLR 131 at 139.

82 See eg Beetham, D The Legitimation of Power (London: Palgrave Macmillan, 2nd edn, 2013)CrossRefGoogle Scholar (political philosophy); Weber, M The Theory of Social and Economic Organization (New York: The Free Press, 1964)Google Scholar (sociology); Tyler, TR Why People Obey the Law (New Jersey: Princeton University Press, 2006)Google Scholar (criminology); Suchman, M ‘Managing legitimacy: strategic and institutional approaches’ (1995) 20 Academy of Management Review 574CrossRefGoogle Scholar (management science).

83 On which see eg Beetham, above n 82.

84 Riker, WJ ‘Democratic legitimacy and the reasoned will of the people’ in Reidy, DA and Riker, WJ (eds) Coercion and the State (New York: Springer, 2008) p 77 at p 80Google Scholar; Scharpf, F Governing in Europe: Effective and Democratic? (Oxford: Oxford University Press, 1999) p 6CrossRefGoogle Scholar.

85 For discussion of the relationship between procedural and substantive measures of legitimacy, see Sadurski, W ‘Law's legitimacy and “democracy plus”’ (2006) 26 OJLS 377CrossRefGoogle Scholar.

86 See eg Schmidt, V “Democracy and legitimacy in the European Union revisited: input, output and throughput” (2013) 61 Political Studies 2 at 7CrossRefGoogle Scholar.

87 Democratic legitimacy is also a particularly pertinent issue in the context of the European Union: see eg Beetham, D and Lord, C Legitimacy and the European Union (Abingdon: Routledge, 1998)CrossRefGoogle Scholar; Follesdal, A ‘The legitimacy deficits of the European Union’ (2006) 14 Journal of Political Philosophy 441CrossRefGoogle Scholar.

88 Follesdal, above n 87, at 448; Pünder, H ‘Democratic legitimation of delegated legislation: a comparative view on the American, British and German law’ (2009) 58 ICLQ 353 at 356CrossRefGoogle Scholar.

89 A McHarg ‘What is delegated legislation?’ [2006] PL 539 at 556.

90 Schmidt, above n 86, at 6–7; Lord, C and Magnette, P ‘E pluribus unum? Creative disagreement about legitimacy in the EU’ (2004) 42 Journal of Common Market Studies 183 at 187CrossRefGoogle Scholar.

91 See text accompanying nn 193–202 below.

92 See eg Elster, J Deliberative Democracy (New York: Cambridge University Press, 1997)Google Scholar; Gutmann, A and Thompson, D Why Deliberative Democracy? (New Jersey: Princeton University Press, 2004)CrossRefGoogle Scholar.

93 Asimow, above n 63, at 268.

94 Ibid, at 267.

95 Pünder, above n 88, at 375.

96 Excluding three instruments of local application only.

97 Excluding three instruments of local application only and nine instruments that were Orders in Council.

98 DPRRC, above n 75, at para 38; Official Report, Delegated Powers and Law Reform Committee, 4 March 2014, col 1336.

99 The majority of these were regulations implementing EU law made under the power in the European Communities Act 1972, s 2. Sch 2 to the 1972 Act prohibits the creation of criminal offences with a maximum penalty of more than two years’ imprisonment (see s 1(1)(d)).

100 The Water Environment (Controlled Activities) (Scotland) Regulations 2011.

101 Water Environment and Water Services (Scotland) Act 2003, Sch 2 para 20(2). It is unclear from the accompanying documentation to the Act why it was thought appropriate to allow for criminal offences with such a high maximum penalty to be created by secondary legislation.

102 The Water Environment (Controlled Activities) (Scotland) Regulations 2011 created 130 offences, all subject to a prescribed maximum penalty of five years’ imprisonment.

103 A total of 275 offences across 11 SIs.

104 EC Regulation 178/2002, Art 9.

105 In our sample, two SIs were made under the Merchant Shipping Act: the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Artificial Optical Radiation) Regulations 2010 and the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Asbestos) Regulations 2010.

106 Merchant Shipping Act 1995, s 86(4).

107 Under which the Motor Fuel (Composition and Content) Regulations 2010 and the Merchant Shipping (Prevention of Air Pollution from Ships) (Amendment) Regulations 2010 were made.

108 Clean Air Act 1993, s 30(2).

109 See eg Public Services Reform (Scotland) Act 2010, s 26 (the enabling Act for three sets of Regulations in our sample).

110 The standard pro forma for writing an Explanatory Memorandum for a statutory instrument includes a mandatory section on the outcome of any consultation that was undertaken. See Statutory Instrument Practice, Circular No 2 (10), 28 May 2010.

111 See eg Explanatory Memorandum to the Ecodesign for Energy-Related Products Regulations 2010 at para 8; Explanatory Memorandum to the Electronic Money Regulations 2011 at para 8.

112 See eg the Democratic People's Republic of Korea (Asset-Freezing) Regulations 2011; the Export Control (Russia, Crimea and Sevastopol Sanctions) Order 2014.

113 The Child Minding and Day Care (Disqualification) (Wales) Regulations 2010; the Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Provisions) Order 2010; the Sea Fishing (EU Recording and Reporting Requirements) (Scotland) Order 2010; the Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2010; the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (Wales) Regulations 2010; the Sulphur Content of Liquid Fuels (Scotland) Regulations 2014; the Environmental Protection (Duty of Care) (Scotland) Regulations 2014; and the Childcare (Childminder Agencies) (Cancellation etc) Regulations 2014.

114 See Explanatory Memorandum to the Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Provisions) Order 2010 at para 8.1.

115 See Explanatory Memorandum to the Childcare (Childminder Agencies) (Cancellation etc) Regulations 2014 at para 8.8.

116 Executive Note, The Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2010 at para 4.

117 Policy Note, The Plant Health (Forestry) (Phytophthora Ramorum Management Zone) (Scotland) Order 2014 at para 12.

118 The JSCI's concerns over the quality of consultation over secondary legislation are discussed in the text accompanying nn 183–192 below.

119 See the text accompanying nn 94–95 above.

120 Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010, reg 27.

121 Department for Business Innovation and Skills Implementation of EU Directive 2008/122/EC on Timeshare, Long-Term Holiday Products, Resale and Exchange Contracts: Government Response to Consultation and Final Impact Assessment (2010) at para 2.

122 Department for Business Innovation and Skills Consultation on Implementation of EU Directive 2008/122/EC on Timeshare, Long-Term Holiday Products, Resale and Exchange Contracts (2010) p 7.

123 Government Response, above n 121, at para 9.

124 Ibid, at paras 39, 101, 107.

125 Ibid, at paras 404–432.

126 Explanatory Memorandum to the Seal Products Regulations 2010 at para 8. The EM does not state whether these responses came from individuals or from representative bodies – if the latter, then the figure is perhaps of less concern.

127 Explanatory Memorandum to the Products Containing Meat etc Regulations (Northern Ireland) 2014, at para 8.1.

128 The consultation accompanying the Brucellosis (Scotland) Amendment Order 2014 attracted ‘very limited feedback’, which the Scottish Government took ‘to signify that the consensus is acceptance of the proposal’ (Policy Note, The Brucellosis (Scotland) Amendment Order 2014, at para 7).

129 It is common for the documentation accompanying the instrument to state simply that there was ‘broad support’ for the measures in question. See eg Policy Note, The Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2014 at para 5.

130 Beetham and Lord, above n 87, at p 9.

131 Sadurski, above n 85, at 390.

132 Issues surrounding scrutiny and the quality of the resulting legislation, discussed in the next section, remain.

133 Page, above n 33, at p 154.

134 Ashworth, A and Horder, J Principles of Criminal Law (Oxford: Oxford University Press, 7th edn, 2013) p 1CrossRefGoogle Scholar.

135 See the text accompanying nn 26–29 above.

136 We do not suggest that these are the only relevant principles in this context – they are simply two concerns that are particularly pertinent in our sample of offences.

137 Ashworth, A ‘Ignorance of the criminal law, and duties to avoid it’ (2011) 74 MLR 1 at 4CrossRefGoogle Scholar. As Ashworth explains (at 20–23), the State's obligation to make the criminal law accessible to citizens may require the production of simplified versions of legislative texts and the implementation of a communication strategy to ensure that those subject to the law can be expected to be aware of it. Space precludes a further discussion of these points here, but government guidance is clearly an important component of the state meeting its obligations in respect of accessibility and fair notice.

138 On the particular problem posed by secondary legislation in this context, see the comments of Toulson LJ in Chambers [2008] EWCA Crim 2467 at [64] (discussed in Chalmers and Leverick, above n 7, at 559–560). On the defence of ignorance of law, see Ormerod and Laird, above n 3, at pp 380–382; Chalmers, J and Leverick, F Criminal Defences and Pleas in Bar of Trial (Edinburgh: W Green/SULI, 2006) ch 13Google Scholar.

139 Ashworth and Horder, above n 134, at p 19.

140 Unlike some of the instruments in our sample, they are, at the time of writing, still in force.

141 See especially Sch 3 which sets out extremely detailed technical rules governing water-related activity.

142 As discussed earlier, the Act provides that criminal offences could be made in secondary legislation with a maximum penalty of five years’ imprisonment. This was used as a blanket penalty for all the criminal offences created here.

143 Sch 3, Part 1, para 10.

144 Sch 3, Part 1, para 1.

145 Sch 3, Part 1, para 14.

146 Which is not to say that a mens rea requirement would not be read in by the courts.

147 Law Commission, above n 1, at para 4.81.

148 As required under the Water Act, Sch 2.

149 Under ss 16(2) and 17(1) and (2).

150 See the Explanatory Memorandum to the Materials and Articles in Contact with Food (England) Regulations 2010 at para 8.3.

151 And is highly specific in terms of the behaviour it prohibits: see eg reg 8(1).

152 See eg Art 12(1).

153 See eg Regulation 2023/2006, Arts 6(2), 7(1) and 7(2); Regulation 1935/2004, Arts 11(5), 16(1) and 17(2).

154 Section 84.

155 Explanatory Memorandum to the Animal By-Products (Enforcement) (England) Regulations 2011 at para 8.1.

156 See eg Art 6, which refers to ‘Annex 1 to Directive 92/119/EEC’; Art 24, which refers to ‘Regulation EC No 183/2005’.

157 There are specific offences of failing to provide information etc in reg 18 but some of the EU legislation also contains duties to provide information, breach of which is an offence with a maximum penalty of two years’ imprisonment under the By-Products Regulations.

158 Nor do we mean to suggest that primary legislation, which falls outside the scope of this paper, avoids these difficulties, as we note below.

159 See eg the Merchant Shipping (International Safety Management (ISM) Code) Regulations 2014 (where discovering the precise conduct that is criminalised involves a labyrinthine trawl through a lengthy EU Regulation and a search for the ISM Code adopted by the International Maritime Organisation in 1993) and the Salmon Netting Regulations (Northern Ireland) 2014 (which prohibits the use of various methods to fish for salmon, but nowhere in the Regulations does it mention that using these methods is a criminal offence).

160 Law Commission, above n 1, at paras 1.49, 3.157.

161 We have previously criticised the clarity of primary legislation in this context: see Chalmers and Leverick, above n 7, at 549–550.

162 See eg the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, s 1, discussed in Chalmers, J and Leverick, F The Criminal Law of Scotland vol II (Edinburgh: W Green/SULI, 4th edn, 2016) at paras 49.16–49.17Google Scholar; the Serious Crime Act 2007, s 46, discussed in Ormerod and Laird, above n 3, at pp 542–547.

163 See Section 3 above.

164 Law Commission Criminal Liability in Regulatory Contexts: Responses (2010) at eg paras 1.784 (Criminal Sub-Committee of the Council of HM Circuit Judges); 1.794 (The Law Society); and 1.804 (the Magistrates Association).

165 See eg the responses from the Food Standards Agency (para 1.785) and the Criminal Bar Association and Bar Council (para 1.825).

166 See Law Commission, above n 1, at para 4.7.

167 There were 98 in the 2014 sample (excluding instruments of local applications and Privy Council Orders in Council). To put this in context, 72 Acts of Parliament were passed in 2014.

168 For critical discussion, see eg White, RM ‘“Civil penalties”: oxymoron, chimera or stealth sanction?’ (2010) 126 LQR 593Google Scholar; Yeung, K ‘Better regulation, administrative sanctions and constitutional values’ (2013) 33 LS 312Google Scholar.

169 It should be said that in effect this is not that different from the Law Commission's proposal, given that for the Commission the criminal law should be reserved only for serious breaches.

170 Art 34 of the French Constitution provides that ‘La loi fixe les règles concernant … la détermination des crimes et délits ainsi que les peines qui leur sont applicables’. The English translation offered by the French National Assembly website translates this as: ‘Statutes shall determine … the rules concerning the determination of serious crimes and other major offences and the penalties they carry.’

171 See Weigend, T ‘The legal and practical problems posed by the difference between criminal law and administrative penal law’ (1988) 59 Revue International de Droit Pénal 67 at 69–70Google Scholar.

172 French Penal Code, Art 111-1.

173 French Penal Code, Art 131-12.

174 The French version of Art 34 Constitution specifically refers to ‘crimes et délits’ although this is lost in the English translation offered by the French National Assembly.

175 A suggestion made by the Joint Committee on Delegated Legislation, Second Report (HL204/HC468, 1972–73) at para 46.

176 See eg the Sunbeds Regulation Act 2010, s 11(2) and (3) (under which the Sunbeds Regulation Act 2010 (Wales) Regulations 2011 were made).

177 Burrows, J ‘Legislation: primary, secondary and tertiary’ (2011) 42 Victoria University of Wellington LR 65 at 65Google Scholar.

178 See the discussion of the Water Environment (Controlled Activities) (Scotland) Regulations 2011 above.

179 Cabinet Office Consultation Principles: Guidance (2016), available at https://www.gov.uk/government/publications/consultation-principles-guidance. In the Scottish context, see Scottish Government Consultation Good Practice Guidance (2008).

180 See text accompanying n 47 above.

181 Guidance for Departments, above n 47, at p 10.

182 Ibid.

183 House of Lords Secondary Legislation Scrutiny Committee 22nd Report of Session 2014–15, Inquiry into Government Consultation Practice (London: House of Lords, HL Paper 98, 2015)Google Scholar.

184 Ibid, at para 52.

185 Ibid, at para 12.

186 Ibid, at para 22.

187 Ibid, at paras 16, 18, 20, 27 and 28.

188 Ibid, at para 16.

189 Ibid, at para 24.

190 Ibid, at para 10.

191 Ibid, at paras 25 and 26.

192 Ibid, at para 21.

193 See eg Pünder, above n 88, at 375–377.

194 See Asimow, above n 63, at 254–261; Pünder, above n 88, at 359–371.

195 Discussed in detail by Asimow, above n 63, at 254–261; Pünder, above n 88, at 359–360.

196 Section 4(1)(a).

197 Section 4(2)(b).

198 Section 4(2)(c).

199 Asimow, above n 63, at 256.

200 Ibid.

201 See the discussion in Page (above n 33, at pp 138–139), where he records civil servants describing their frustration at low response rates to even well managed consultations.

202 Aside from the JCSI's report, see Page, above n 33, at p 154.