Preparing Legislation for Parliament (Constitution Committee Report)
Baroness Goldie Excerpts(4 years, 11 months ago)
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Lord Norton of Louth
That this House takes note of the Report from the Constitution Committee The Legislative Process: Preparing Legislation for Parliament (4th Report, HL Paper 27).
Baroness Goldie (Con)
My Lords, the noble and learned Lord, Lord Judge, finds himself addressing matters of sentencing in the Moses Room. By agreement through the usual channels, it has been arranged that the noble and learned Lord will speak after my noble friend Lord Dunlop. All relevant contributors to the debate have been informed.
Lord Norton of Louth (Con)
My Lords, I beg to move the first of the two Motions standing in my name on the Order Paper. I do so in place of the noble Baroness, Lady Taylor of Bolton, who chairs the Constitution Committee, which has produced the two reports we are considering. She is very sorry to miss today’s proceedings.
It is a pleasure for me to open the debate. In 2004, the Constitution Committee, which I had the honour of chairing, published a report, Parliament and the Legislative Process. We looked at the legislative process holistically, examining not only the process once a Bill was introduced but what happened prior to a Bill’s introduction and after it had received Royal Assent. We took the view that success should be measured not by whether a Bill received Royal Assent—seen by some Ministers as the end of the process—but rather by whether it achieved its intended effect.
Among our recommendations were that Bills should be subject to pre-legislative scrutiny as the norm and not the exception, and that there should be a structured process of post-legislative scrutiny, assessing Acts against the criteria set for achieving their purpose. We also advanced proposals for the more effective examination of Bills as they pass through Parliament, including that every Bill should at some stage during its passage be subject to scrutiny by an evidence-taking committee. Some of our recommendations were subsequently adopted, and now form an integral part of the legislative process, such as improvements to explanatory materials and the Government undertaking a review of most Acts within six years of their commencement.
I fear that Governments have shown less enthusiasm for implementing some of our other recommendations, such as pre-legislative scrutiny of draft Bills being the norm and the establishment of a House business committee. Perhaps our most high-profile recommendation —that the Committee stage of each Bill should provide the opportunity for the public to give evidence—has been adopted for Bills that start in the House of Commons but not for those that start in your Lordships’ House. This is a matter to which the committee may return in a subsequent report.
We felt that more than a decade after our first report, it was time to take a step back from individual Bills, to look again at the entirety of the legislative process and examine how laws are developed, drafted, scrutinised and disseminated. Rather than producing one report, we decided to publish four focused reports, targeted at discrete aspects of the legislative process: preparing legislation for Parliament; the delegation of powers; the passage of Bills through Parliament; and after Royal Assent. Two of those have now been published, and are the subject of today’s debate.
The first of these, The Legislative Process: Preparing Legislation for Parliament, was published in October 2017. The purpose of this stage of our inquiry was to look at the policy preparation undertaken by the Government before legislation is introduced to Parliament. In this report, we are broadly positive about how the Government develop policy using embedded mechanisms to gather and evaluate evidence. We also welcome the Prime Minister’s commitment to a greater use of Green and White Papers.
We reiterate the conclusion of our 2004 report—that it should be the norm for Bills to be published in draft, to afford more opportunities for pre-legislative scrutiny. It is regrettable that Governments have generally seen draft Bills as an optional extra, when, in our view,
“pre-legislative scrutiny should be considered an integral part of the wider legislative process”.
Although several Bills have undergone pre-legislative scrutiny in this elongated Session, they constitute the exception, not the rule.
Perhaps the biggest area of our concern is the quality of legislation that the Government introduce to Parliament. This is not a reflection on the standards of the drafting of legislation and the work carried out by parliamentary counsel. Our concern is with the quality control function of the PBL Committee of the Cabinet. That control is not what it could and should be. In our report, we endorse the proposal for the creation of a legislative standards committee, to develop and monitor a set of standards that legislation must meet before it can be introduced. This work would ensure that Bills introduced to Parliament are ready for its scrutiny, and that the essential explanatory materials accompanying Bills are complete and satisfactory.
We also address the important parts of the statute book that have become inaccessible to practitioners and the public alike because of a succession of Bills that have amended previous Acts. One has to think only of the changes in immigration law in recent decades. The challenge of navigating that area of the law is now considerable. We urge the Government to consider the pressing need for greater consolidation of the law. With that in mind, we strongly welcome the introduction of the Sentencing (Pre-consolidation Amendments) Bill, paving the way for the Law Commission’s sentencing code to simplify sentencing legislation. The standard line from the Government on consolidation and Law Commission Bills is that they might happen when parliamentary time allows. Given the current lull in legislative activity, this might be an especially appropriate time to introduce more consolidation measures.
I turn to our second report, The Legislative Process: The Delegation of Powers. Delegated powers are, of course, an important and necessary part of the legislative process. When they are used appropriately, they provide the Government with the flexibility to fill in some of the blanks or update aspects of the policy detail without the need to go through the extensive and rigorous primary legislation process. The Delegated Powers and Regulatory Reform Committee does an outstanding job in policing such matters. If the Government heeded its advice more frequently, the quality of legislation would improve markedly. Regular readers of the Delegated Powers Committee’s reports, as well as our own, will know that the Government’s use of delegated powers is regularly found to be inappropriate. It is constitutionally unacceptable that the Government seek to create criminal offences as well as new public bodies by secondary legislation, to which only limited parliamentary scrutiny applies.
The Government’s response to our report suggested that such uses of delegated powers are,
“likely to be few and far between”.
We do not find this persuasive. Indeed, on Monday we published a report on the Rivers Authorities and Land Drainage Bill—a Private Member’s Bill supported by the Government—which contains a delegated power to create new public bodies in the form of river authorities. It is not clear why the Government acknowledge that these powers,
“must be approached with caution”,
yet they continue to appear in Bills.
Similarly, the committee found that “skeleton Bills”—Bills comprising little more than delegated powers—“inhibit parliamentary scrutiny”. We concluded that it was,
“difficult to envisage any circumstances in which their use is acceptable”.
Perhaps the most egregious recent example of this is the Agriculture Bill. I quote from the report of the Delegated Powers Committee:
“Parliament will not be able to debate the merits of the new agriculture regime because the Bill does not contain even an outline of the substantive law that will replace the CAP after the United Kingdom leaves the EU. Most debate will centre on delegated powers because most of the Bill is about delegated powers. At this stage it cannot even be said that the devil is in the detail, because the Bill contains so little detail”.
The Government’s response on skeleton Bills was that the term was sometimes used to describe bills in which the overall policy framework was clearly set out, and states that,
“there have been and will continue to be sound reasons”,
for the use of skeleton Bills in a limited number of cases. It is not clear what the sound reasons are. The response is one of assertion and not justification. I shall return to its inadequacies.
Henry VIII clauses were another area we consider,
“a departure from constitutional principle”,
and we conclude:
“Widely drawn delegations of legislative authority cannot be justified solely by the need for speed and flexibility”.
Although, as the Government acknowledge,
“a full and clear explanation and justification”,
is clearly helpful, Henry VIII powers should be sought much less frequently than has been the case in recent years.
This House has shown notable restraint towards the Government’s approach to delegated legislation. Indeed, the House has shown remarkable flexibility in accommodating several hundred EU exit statutory instruments. We pay tribute to the work of the Secondary Legislation Scrutiny Committee for undertaking that task on top of its other important work. However, there are limits. We call on the Government to be more responsive to issues raised about statutory instruments and to use the flexibility of the system to withdraw and re-lay amended instruments when parliamentary scrutiny has identified concerns. We suggest that if the Government do not use their delegated powers appropriately, the restraint shown by this House may become unsustainable.
I turn to the Government’s responses to the reports. The two responses were clearly written by different hands; one, on the delegation of powers, addressing each recommendation, and the other, on the legislative process, being more general and thematic. Both, though, have one thing in common: they seek to defend existing practice and concede nothing. The way in which they are written is not persuasive. Some of our proposals are matters for the House, not the Government, such as the recommendation for a legislative standards committee. I very much hope that this recommendation will be taken up by the Liaison Committee as part of its current review of committees, and likewise with the proposal for a post-legislative scrutiny committee.
On matters that are within the remit of the Government, I have a number of questions for my noble friend Lord Young of Cookham. What do the Government now do that they did not do before because of the committee’s reports? Following my earlier comments, can he confirm that the Government will maintain the practice of publishing Green and White Papers? What is the Government’s strategy for pre-legislative scrutiny: is it integral or an optional extra to the legislative process? Do the Government have plans to introduce any further consolidating measures, and in what circumstances does he think skeleton Bills are appropriate?
I conclude by putting on record our thanks to all those who gave evidence to us, our staff and our two legal advisers, Professor Mark Elliott and Professor Stephen Tierney. Professor Elliott is about to step down from his role to take on enhanced responsibilities in the law faculty at Cambridge, and I place on record the committee’s thanks to him for his outstanding contribution to the work of the committee. I beg to move.
European Union (Withdrawal) Bill
Baroness Goldie Excerpts(6 years, 3 months ago)
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Lord Triesman (Lab)
My Lords, despite what has just been said, it was inevitable that this Bill would arrive here with such obvious defects. Because of the ideological drive to leave at any cost and a Prime Minister who is obviously unable to contain the excesses of her Eurosceptic colleagues, we now have no declared detailed objectives other than that we do not want a fight among them. We have a Bill which is constitutionally deficient, and a Constitution Committee report, introduced by my noble friend Lady Taylor, that is clear and precise, and justifiably tough.
The Bill is deficient on the constitutional issues of granting Ministers untrammelled powers that sideline Parliament, deficient in the neglect of devolved interests and deficient on the human rights implications—and it is all tied to a timetable that is almost certainly incapable of being accomplished. The Bill will need significant amendment if it is to be made simpler and clarified, and it had better be accurate. I thank my noble friend Lady Taylor and also the noble Lord, Lord Norton, for his clarity on this point.
I cannot square the difficulty posed by the problems outlined in the debate with the complacency of Ministers in saying that they have all the aspects covered. This House will expect and welcome a positive attitude to amendments aimed at improving the Bill. Ministers ask us to trust in a bargaining process in Europe where it is plain that the two sides are not even on the same page. These are the same Ministers who will ask us to allow them Henry VIII powers at a later stage, and it is the same Ministers who conducted the referendum campaign on the basis of what I can describe only as deliberate deceit.
I complained about the overstatements on the remain side, unashamedly, and I say to your Lordships that the straightforward lies on the other side have brought our politics to a miserable low, as the right reverend Prelate the Bishop of Leeds said earlier today. We have surrendered our largest constitutional issue in modern times to hucksters and snake oil salesmen. To take these steps on the basis of a referendum conducted in that way will, I suspect, be seen historically as a form of certifiable insanity—a malady comprising crude populism and a sense of profound fantasy.
I do not really want to focus on the economic prospects post Brexit, other than to agree with my noble friend Lord Mandelson, who emphasised a possible route through the miasma: by staying in the single market and customs union while leaving the EU. It is sub-optimal but it is at least an intelligible route. I remind the House that my noble friend was also a former Northern Ireland Secretary and, like the noble Lord, Lord Patten, has grasped the profound danger of dismantling the customs union.
I mean to focus on the subject of defence, if I may, and the alliances which keep our country safe. It is fundamental; if Governments do nothing else they must do this. When we leave the EU, I have little doubt that our erstwhile partners will rate our exceptional forces very highly. They will know that they are capable and do not shrink from tasks that they are set. Even with our capacity sharply reduced by government cuts, our partners will no doubt welcome our contribution to military activity. But we will not be at the meetings or councils where the strategic decisions are discussed and decided. We will be asked to contribute without having helped to decide the objectives. We may try to find ways to take part in discussions—and we should—but, as the noble Lord, Lord Hague, told the European Union External Affairs Sub-Committee, we will have no rights in those forums.
I know with certainty that the United Kingdom will not commit its forces if it cannot share in shaping their objectives. That would be an absurd position for any state to take. When I am told that NATO will fill the gaps—I am completely committed to that alliance—I am not confident. American commitment is at best half-hearted. It is not only what President Trump says, which is bad enough, but the septic pool of populism from which his policies have emerged and which will greatly outlast him. The United States is more isolationist and nationalistic than for a long time, and there is small reason to feel that we have compensating alliances and doctrines. Indeed, the things he has said suggest to me that the underpinning values of NATO are themselves at risk.
At the level of military leadership, we seem ready to give up the positions we have traditionally held, including Deputy Supreme Allied Commander Europe, which was ably filled for many years by General Sir Adrian Bradshaw. My noble friend Lord Robertson, the former Secretary-General of NATO, has asked how a non-EU country can hold that position. It is a good question. We have elected to be marginal and, inevitably, weaker. I hope that the deepening relationship with France and some other countries may partly compensate, but our decline seems obvious and unacceptable. We have not thought it through.
Finally, in starting this process David Cameron turned our country inward. I doubt that I will be reconciled to the noble Lord, Lord Framlingham, for example, or to any other zealots for leave, because they want a very different country from the one that I want—and I doubt that they will ever be reconciled to views such as mine. In short, our differences may be resolved if some middle way is found but it is entirely possible that they will never be resolved, at least in a generation. The right reverend Prelate the Bishop of Leeds put this eloquently today. The ugliness of the debate, the name calling and the lies have all demeaned the United Kingdom. I am afraid that I see a country with deeper xenophobia and more unashamed hate crime than I have ever seen in my lifetime, and with a view of people from other countries which should shame us—and it is getting worse.
Two generations ago, two ladies in my family left Paris, where my family had lived for generations. That was in 1932. Their letters showed that they thought that the French would never resist the Germans when they inevitably advanced on France and that French anti-Semitism would find a terrifying ally. Other members of the family thought that they were mad. Paris? Amazing city. What could possibly go wrong? Well, they left in 1933, and the two of them—and two others who spent the war hiding in Paris’s sewers—survived. The rest of the family went to the extermination camps. For the first time in my life, I know a number of people who are asking the question: when the economy goes pear-shaped and the bogus promises are seen to be the frauds that they have always been, what will happen then, and who will be blamed? How will we avoid repeating some of the mistakes of European history that occur in these circumstances? Their bet will be that the same people historically will be blamed in Europe. Like the Paris relatives, sadly they are beginning to make their plans to leave when it becomes sensible, and in advance of a catastrophe. They are not the familiar lot who plan to leave because a tax increase is rumoured, and do not tell them it cannot happen to them, because it has happened—in our lifetimes and to our families.
If there are serious solutions to taking on crimes and attitudes of prejudice, let us see them, not just hear words about them. Nothing about this outcome is inevitable. But there is a requirement for confidence that people take it seriously and are prepared to confront it and deal with it. If they are not, I fear that the consequences will be as I have rehearsed.
The noble Lord, Lord Newby, in a fine speech at the beginning of these proceedings, said that it was not a reform Bill but a dreadfully incoherent transfer Bill. I remind noble Lords that the football transfer window closes at 11 pm tomorrow—about the same time as we will close. Let us hope that Ministers can tell us how Team UK can answer the problems set out in this debate rather better than the authorities in football clubs. No bland assurances—
Intergenerational Fairness in Government Policy
Baroness Goldie Excerpts(6 years, 6 months ago)
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Baroness Altmann (Con)
My Lords, I too congratulate the noble Baroness, Lady Smith of Newnham, on securing this important debate. The issue of intergenerational fairness has been rising up the political agenda, and I find this trend deeply troubling. By pitting one generation against another, instead of generations working together and supporting each other, society is damaged.
First, like my noble friend Lord Willetts, I understand the concerns that young people express, particularly when it comes to housing, student debt and irresponsible credit card and loan practices. But those are issues related specifically to the housing market, the financial system and higher education. They are not really generational fairness factors.
The enormous rise in house prices across the UK has also driven up rents, which means that tenants of all ages have less disposable income for other expenditure. But that relates to the shortage of new homes and, to some extent at least, the Bank of England’s policy of quantitative easing, which was deliberately designed to inflate asset prices as an indirect means of stimulating the economy. Problems of housing affordability for younger people will not be most effectively solved just by giving young people more money to buy a home. In fact, such policies may further increase upward pressure on house prices. Increasing supply would be more beneficial. We are probably at the top of the housing price cycle. The ratio of house prices to earnings is clearly unsustainable, but it may not last. We have seen house price cycles before. Indeed, just because house prices have risen and many older people own their own homes does not actually improve living standards for older generations. They live in their homes and their income is not normally improved when house prices rise. The noble Lord, Lord Best, however, is right to focus on the need to encourage older people to downsize and free up family homes for younger people.
Another significant problem for younger generations is the sharp increase in the cost of funding higher education. Once more, that is not the fault of older generations, most of whom never had a chance to go to university—less than 10% of today’s retirees actually went to university. Older people are too often portrayed as undeservedly wealthy, having been lucky throughout their lives in ways that young people cannot hope for. But, quite frankly, I feel that such stereotypes are dangerous simplifications. There is an enormous range of income and wealth among pensioners. Lumping all those over pension age together and looking at their average wealth or income per person gives a misleading picture. Also, lumping the entire age group together is highly misleading. Most over-75s and certainly over-80s are not well-off at all. They live on low incomes with half or so needing means-tested assistance.
UK state pensions are among the lowest in the developed world. Pensioners overall are no more likely than other groups to be in poverty, but that is success and marks real social progress. It is not a signal that somehow we have done something wrong. In fact, pensioner poverty is most pernicious, because once a pensioner is poor they cannot normally hope to improve their future financial position. Younger people have their future career and earnings to look forward to, whereas pensioner poverty is most often permanent. However, the triple lock has been another example of a political construct that has become totemic and has proved damaging. I agree with my noble friend Lord Tugendhat that it may have outlived its usefulness, but it is also important to remember that the triple lock is rather misleading because the poorest pensioners are not actually protected and the triple lock gives much more protection to the younger, better-off pensioners than to the oldest and poorest, which is clearly the wrong way round.
Another factor that is too often overlooked is that young people are starting their careers and their earning years much later than previous generations did. Comparing today’s twentysomethings with those of prior cohorts is not quite comparing like with like. If young people today are starting work, say, five years later than was previously the norm, their income position should be compared with people five years older than them rather than of the same age. If the young also ultimately benefit from the extra qualifications, they should increase their earnings more as they progress through their careers and should not therefore stay behind previous generations. The best route out of poverty is employment, and we should congratulate the Government that employment rates for young people are around record levels with very low unemployment. Meanwhile, older generations are staying in work much longer than ever before. The numbers of older people in work are at record levels, as older generations keep contributing more to the economy.
I find it strange that there is so much concern about the so-called baby boomers having good pensions and owning more assets. Surely, in a societal sense, that is to be welcomed, partly because they are at the end of their careers rather than at the beginning or halfway through, but also because as more older people live longer, increasing numbers will need more money to support them through their expected extended later life. Extreme old age will increasingly become the norm rather than exception. More will need money to pay for social care, and if they have no money they will have to be supported by younger taxpayers.
We should perhaps be celebrating that today’s older people are better off than previous generations, while also encouraging those who can to earmark some of their money in case they need later-life care. I urge my noble friend the Chancellor to introduce measures that will address that, such as incentives to keep some of their pensions or ISAs or allocate a share of the value of their home to a fund that would be set aside for later-life care in case they need it. That would at last begin to bring in much-needed funding before the care crisis brings down the NHS and places ever more burdens on young taxpayers. It is also true that there is an intergenerational imbalance in pension coverage, but that is partly a function of the unrealistically expensive pension promises that were made by past employers, who did not anticipate the range of changes that have increased the costs of providing a final salary-type pension to around 50% of salary.
I caution strongly against pitting one generation against another. Older generations already do much to support the young. Society is a nation of generations, each of which needs to live together in harmony. The bank of mum and dad—and often the bank of grandma and grandad—is helping younger generations. Relationships between old and young people are so important, both in our communities and in the workplace. I urge noble Lords to be mindful of the need for intergenerational cohesion.
Baroness Goldie (Con)
My Lords, we are tight for time, so I ask your Lordships to pay attention to the seven-minute timetable, please.
Lord Balfe (Con)
My Lords, I also begin by thanking Lady Smith for a wide-ranging and useful debate. I am a member of silent generation; however, I am not a member of the silent party. One of the most astonishing things about the debate is the total absence of Labour speakers, apart from the noble Lord, Lord Hunt. It is not as though Labour has nothing to say on the subject. I would be interested if the noble Lord could tell us whether this was an instruction from the Whips—or is the Labour Party genuinely mute? I will try to make up for them by making one or two mildly radical suggestions.
First, we are told that pensioner poverty has halved between 1997 and today. That means there are still a lot of pensioners living in poverty. We should not forget that. Secondly, this intergenerational argument should not be regarded as an opportunity to bash the old. The basic problem is that the wage economy has collapsed in the last 15 years but the pensioner economy has been maintained thanks to the input of largely public money.
The great problem that exists between the generations, including this third generation, is that some of us are much better off than others, often because we bought our houses many years ago and were in defined benefit pension schemes if, as in my case, you spent your entire life in the public sector. I left school at 16. I did not have a single day’s unemployment until I retired at the age of 60. I did not have to sign on. I was in a number of jobs but they linked, one to the other. That is a quite different experience from today.
I shall make a few suggestions on having a slightly fairer taxation system for the elderly. The first concerns TV licences. In a couple of years mine will be free. Why should it not be a taxable benefit? I am not saying it should not be free for poor pensioners, but why not make it a taxable benefit so you declare on your tax return that you have a television licence, just as you declare you have a pension? The winter fuel payment is another. It is astonishing that, seven years into our Government, we are still defending what Labour did in creating a benefit that goes to millionaires, tax free. At the time I remember saying this was impossible. Gordon Brown had a very wishy-washy explanation as to why it was needed, but I still do not see why I, as a 40% tax payer, should get a benefit that is substantially more for me than it is for an old-age pensioner. You do not have to save the money; you could redistribute the winter fuel payment so the poor pensioner has more and the richer pensioner pays for it.
It is high time to look at the administrative costs, as well. There are nonsenses such as the £10 Christmas bonus, introduced by Barbara Castle, of blessed memory, 30 years or more ago. Some of these benefits hang around for ever, such as the 25p a week extra that I will get in my pension when I reach 80. All this has an administrative cost. We could look at that.
Reference has been made to the exemption from national insurance. If I am lucky enough to earn extra money on which I will pay tax, why should I not pay national insurance, when the noble Baroness who moved this Motion—who is also not in receipt of a bus pass—would pay? Yet, I could be lecturing, as I have, in the very same building she works in. We could be in the same classroom giving a talk to the same people—even that has happened—and we could receive cheques on which I would not pay national insurance and she would. Frankly, this does not make sense.
The old are healthier and they also live longer. They can cost more in end-of-life care, but there is a tendency for us to think that because they get old, they cost a lot more. In fact, most health expenditure is in the last 24 months of life. The two basic problems we have are, first, the rise in the cost of the NHS, which has always moved ahead of inflation—most of the savings the Government have made have been swallowed up in this. Secondly, we have to look at the fact that the elderly are not smoking or drinking as much, so they are not putting as much back into the Exchequer in excise duties. I am not suggesting they should, but the pattern of excise duties is moving.
I will say a quick word about the young. Earnings have fallen and housing is difficult, but, to echo the sentiments of some noble Lords, more needs to be done. Messing around at the margin with tax relief and other reliefs will only generate price increases, as, of course, has quantitative easing. The fact that mortgages are so cheap makes them much more affordable, which means house prices go up.
At some point we need to recognise that for the older generation, class continues to divide the income groups more than anything else. For every poor pensioner there is a rich pensioner, but for both there is a strong class factor. If you live in the north on a council estate and start work at 18, you are more likely to be poor. It is as simple as that.
My final suggestion is: when we look at pension ages, why do we not base them on years of national insurance contributions? Why do we not say that if you start work at 18, work for 45 years and pay into the NI fund, you should be able to retire at the age of 63? If you go to university and pay for 45 years into the NI fund, you would retire at 68. We know that there is a mortality differential associated with income and occupation. These are one or two of the things we should look at when we consider intergenerational fairness. It is a far more complex issue than many outside this House imagine.
Baroness Goldie
My Lords, I apologise for further interruption. We have a quite serious slippage of time. When the Clock shows seven, will noble Lords please terminate their remarks and sit down?