Government seeks too much power after Brexit, warns ex-chief justice

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Nov 27, 2017
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Lord Judge called for the principle of new criminal offences being created by acts of parliament to be restored

Ian Nicholson/PA

Ministers will gain “extraordinary powers” to create criminal offences carrying ten-year prison sentences with minimal scrutiny if a post-Brexit international financial crime bill is passed, a former lord chief justice has warned (writes Sean O’Neill).

The Sanctions and Anti-Money Laundering Bill proposes that ministers use secondary legislation to enshrine new crimes in law, declare what legal defences are available to anyone charged and dictate the rules of evidence that would apply in a trial.

Lord Judge, who was the lord chief justice of England and Wales between 2008 and 2013, told [ital] The Times that the bill was “a very worrying piece of legislation” and a “serious inroad” on the constitutional principle that new criminal law should be created by legislation subject to full debate in parliament.

The parliamentary website says that secondary legislation, in the form of statutory instruments and regulations, means “parliament’s room for manoeuvre is limited”. Parliamentarians are reluctant to oppose such regulations and the House of Commons has not voted one down since 1979.

Lord Judge said that the bill went further than the so-called Henry VIII powers that are being invoked in much of the EU withdrawal legislation.

“You’re vesting powers in the minister today but you never know who is going to be in government in five, ten or twenty years’ time,” he said. “Henry VIII never got this power in the 1539 Act of Proclamation; they were a subservient parliament but they did not give him the power to declare new criminal offences.”

The bill seeks to set out how Britain will comply with international sanctions, anti-money laundering and terrorist financing regimes after Brexit. Lord Judge’s concerns about it have been echoed by the former Supreme Court judge Lord Hope of Craighead and the leading public law barrister Lord Pannick, QC, of Blackstone Chambers in London.

The House of Lords constitutional committee said that it was “deeply concerned” about the powers concerning new criminal offences and described them as “constitutionally unacceptable”.

And anti-corruption campaigners expressed alarm that the proposals would allow ministers to strike out anti-money laundering rules at the stroke of a pen.

“The bill would give this government, and any government that follows, practically unchecked powers to rip up our anti-money laundering laws,” Murray Worthy of the organisation Global Witness said.

“If MPs and peers don’t want post-Brexit Britain to become a haven for criminals and the corrupt to launder their dirty cash they must reject this reckless power grab by the government.”

Lord Judge said that the principle of new criminal offences being created by acts of parliament should be restored.

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