Preparing Legislation for Parliament (Constitution Committee Report)

Lord Beith Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Beith (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Norton of Louth, and to pay tribute to his work on constitutional issues on the committee, in his professional career and in various other organisations that focus on them. I endorse his comments on the staff and advisers to the committee.

The two reports that we are debating today are linked, and not merely because they are two of a sequence of four studies by the Constitution Committee into the legislative process. They are linked by cause and effect. Excessive and inappropriate use of the delegation of powers undermines the quality of legislation, leading to legislation that is unclear, incoherent, inaccessible or badly scrutinised. Furthermore, the excessive use of regulations to fill in the gaps in legislation is often a consequence of a failure to prepare legislation properly. The policy has not been worked through and properly consulted on, so the Bill leaves gaps to be filled by regulations. This is particularly the case when new elements are added to a Bill in the course of its passage through Parliament. All new laws should have to pass the tests suggested to us by the Office of the Parliamentary Counsel: is it necessary, effective, clear, coherent and accessible? Many new laws do not, at least in part, pass those tests.

The legislative landscape is littered with Christmas trees, skeletons and signals. For the uninitiated, Christmas trees are Bills on which departments hang a diversity of provisions that they have not managed to get into the programme as individual Bills; skeleton Bills contain none of the detail and depend on delegated powers; and signal Bills may have no practical effect because their only purpose is as a declaration that the Government want to be seen to be doing something but cannot think of anything particularly useful to do.

The committee sets out remedies for these failings. First, legislation should have an evidence base which has been the subject of wide consultation and thorough scrutiny. Then the norm should be, as the noble Lord said, for Bills to appear first as draft Bills, scrutinised by committees of either or both Houses of Parliament. Issues identified can then be dealt with before the Bills acquire the level of political and government commitment, which leads to a defensive attitude and an unwillingness to amend. Parliamentary counsel should, as it has traditionally done, make clear where a legislative mechanism is unworkable, inappropriate or confusing in its legal effect. If it does so, within government it is the job of the Leader of the House of Commons and the law officers to challenge colleagues over such defects.

The Constitution Committee, as the noble Lord, Lord Norton, has pointed out, supports and reiterates the proposal for a legislative standards committee to test proposed legislation—not on the merits of its policies, but on whether new legislation is needed, whether its impact has been properly assessed and whether it creates coherent law. That process would sit alongside the work of the Constitution Committee and of the Delegated Powers and Regulatory Reform Committee in their examination of new Bills on the issues for which they are each responsible. The Constitution Committee also strongly commends accelerating the process of consolidating Bills. It is satisfying that, as we speak, the Grand Committee in the Moses Room is looking at the pre-consolidation legislation on sentencing, which accounts for the noble and learned Lord, Lord Judge, today demonstrating his ability to be and speak in two places almost at once.

If new Bills have been well prepared and have gone through the tests we recommend, they will be less likely to have the inappropriate recourse to delegated powers, which we have identified and criticised in our 16th report—the other report we are considering today. There will still be issues about delegated powers and the inadequate scrutiny which so often applies when they are exercised, particularly in the Commons. Some of us have experience of the brief and inconsequential Committee process which attends negative instruments in particular in the Commons.

We need also to reconsider how inappropriate or defective statutory instruments are dealt with in our own House. We were concerned that the question asked by departments and Ministers when considering whether to use secondary rather than primary legislation for important features of a Bill is not always an objective test of appropriateness, but a question of what Parliament will allow—what powers can be pushed through, perhaps on the back of general support for the policy objectives of the Bill.

Delegated powers are a necessary part of the legislative process, but the committee said:

“It is constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken”.


The DPRCC said that the Childcare Bill in Session 2015-16 contained,

“virtually nothing of substance beyond the vague ‘mission statement’ in Clause 1(1)”.

Our committee, like the DPRCC, has raised strong objections to the use of delegated powers to create criminal offences legislation or to set up public bodies. The Children and Social Work Bill presented to this House in the 2016-17 Session did both these things and was strongly criticised by us at the time. As the noble Lord, Lord Norton, referred to, we may be faced with a rivers authorities Bill which allows numerous public bodies to be created by delegated powers.

Henry VIII powers, by which statutory instruments can change primary legislation, are necessary for minor tidying—for example, to make sure that the law correctly cross-references legislation passed subsequent to the introduction of the Bill in question. However, their use should be strictly limited. If the Government continue to fail on this test, they will have my noble and learned friend Lord Judge to answer to.

When substantial issues come before Parliament in the form of statutory instruments, with very rare exceptions, they cannot be amended. If they are defective, or if they include provisions which are deeply controversial and might be rejected if presented separately, the House faces a take it-or-leave it decision on the instrument as a whole. Although it would be technically possible to allow for amendments, it would be a significant change. It would require different procedures and the committee is not recommending such a course.

The appropriate response in such circumstances is for the Government to withdraw the instrument and relay it in amended form or, in case of urgency, to bring forward an amending instrument at a later date. It does happen, but Governments are too reluctant to do it. Again, they are defensive: the instrument is their baby and they will not hear a word said against it, although I remember the late Patrick Mayhew, when he was Solicitor-General, announcing in a committee sitting that a Bill he was taking through was not capable of fulfilling its intended purposes and could not be made so, so would not be further proceeded with. That kind of refreshing honesty is something we could do with a little more of. The natural instinct of government, I fear, is not to admit it has got it wrong.

This House has a device to identify and object to failings in statutory instruments—regret Motions—but these have no direct effect; they are not fatal. They may be appropriate, but an expression of opinion is all that your Lordships intend. They are not adequate to prevent the fundamentally inappropriate use of a statutory instrument, which brings me to the case of the tax credits regulations of 2015, which had far-reaching effects. This House passed a delaying Motion. The Government had a blue fit and called in the noble Lord, Lord Strathclyde, to act as a sort of one-man fire brigade, but then abandoned the proposed regulations—an appropriate course of action in the end. In paragraph 109 of our report we set out why we think it is wrong to frame discussions on the question of what happened in that instance as if it were about the balance of power between the two Houses of Parliament, the Lords and the Commons. It is not; it is about the balance of power between Parliament and the Executive, about whether and how the Executive should be held to account.

As we have explained, the Government have the means at their disposal to confine delegated powers to the purposes for which they are legitimately intended and to correct faults in them identified by Parliament. If they fail to do so, they should recognise that an occasional defeat is neither momentous nor necessarily fatal to their policy objective. This House exercises great restraint in these matters, but the committee makes it clear in its unanimous conclusions that:

“If the Government’s current approach … persists … the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained”.


Those words were not chosen lightly.

Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Beith Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 4th June 2019 Grand Committee

[Lord Judge (CB)]

My Lords, these are simple amendments directed to an issue of principle. The issue is very simple. It is a criminal offence to fail or refuse or neglect to complete the census form—note “to complete it”: that is, to answer every question. Over the years, it has come to be accepted that some of the answers should not be matters of obligation—in particular, in 2000, providing answers to a question relating to matters of conscience such as religion; or, now, in the current Bill, sexual orientation and gender identity, matters which are obviously intensely personal. The reasons are obvious and I support them.

It is plainly the intention of the legislation that each individual responding to the census will have a choice on these questions: you may choose to answer or you may not. If you choose not to answer, you will, in the words of the legislation, not,

“be liable to a penalty”.

Even if you are prosecuted, no penalty could be imposed: you would get an absolute discharge.

What, then, is the problem? Why am I making a fuss? I am making it in the company of the Constitution Committee, of which I have the privilege to be a member, which expressed its concerns in one of those very short, simple letters. In summary, it comes to this: because no legislative provision expressly decriminalises the choice not to answer, the Bill should be amended explicitly to state that such a failure is not a crime.

By letter dated 31 May, the Minister gave a very considered, lengthy reply to a very short letter. My experience is that, on the whole, those with the best points write short letters. However, ignoring that general experience, which may not be true here, I have discovered from the letter that, based on a starting point for the legislation in 2000 relating to religion—dare I point out, before we had a Constitution Committee?—the promoters of the Bill confused, conflated or perhaps simply failed to understand that the removal of the risk of a penalty meant that answering or not those questions was voluntary, and therefore there was no criminalisation. They confused crime and penalty. They are distinct concepts. Normally, the conviction comes and the penalty follows. What we have done—what is proposed here and was proposed and carried in 2000—is to wipe out the penalty but leave the crime. At the very least, it is arguable—I would say strongly arguable—that what we have now, and will continue to have without the amendments, is a crime of not answering the question but no penalty for choosing not to do so. That does not seem very sensible.

It is obvious that the Bill’s objective to decriminalise any such failure. That is the point of it and why it is supported. Why is conduct that carries no penalty and is not intended to represent even minute contravention of the criminal law allowed to disfigure it by remaining on the statute book? I respectfully suggest that that is wrong in principle. The Bill should be amended expressly to decriminalise any such conduct and any necessary amendments in relation to questions about religion in the 2000 Act made subject to identical amendments within the Bill. That is the purpose of the amendments.

It is not an answer that the Crown Prosecution Service would not prosecute. It is not an answer that if the Crown Prosecution Service prosecuted and someone were convicted, no penalty would be imposed by the court. I mention that in this context. We hear rather a lot about private prosecutions these days. If there were a private prosecution—I know that this is hyperbole; there would not be, but let us examine this as a matter of principle—the court would no doubt have in mind that on conviction there would inevitably have to be an order for absolute discharge. Of course it would. The court might rage in the way that old judges did but do not any more because they are much more polite than they used to be. It might rage against the absurdity of any such prosecution, but I respectfully suggest that it could not as a matter of certain law say that the failure to answer the question did not constitute a criminal offence. We really cannot have that situation; there must be certain law about this. We must do better and decriminalise a failure to answer such questions. I beg to move.

[Lord Beith (LD)]

My Lords, I support the noble and learned Lord’s amendment. I apologise to the Committee that I was not able to speak at Second Reading, but the discussions in the Constitution Committee, of which I am also a member, have brought to light the seriousness of this problem within what is otherwise a highly commendable and necessary Bill. I am afraid that I have form on this subject: on 25 March 1975, I moved an amendment to the census order—it was possible to move amendments to those statutory instruments unlike to almost all others—precisely to assert the principle that, so far as the procedure allowed in that case, the state should not turn people into criminals because they had some good conscientious reason for declining to answer questions in such areas as were not fundamental to the state knowing where its population was, how many people there were and in what kind of properties they lived.

I remain of the view that it is undesirable for the state to extend its reach by way of criminal offences that put people in that position. As my noble friend did in the context of the previous debate, I hope that the guidance and what is said to people by those who hand out and collect census forms will assist in reassuring them, but, like the noble and learned Lord, Lord Judge, and the Constitution Committee, I believe we are legislating unsatisfactorily. The primary reason for doing so given by the Minister in his careful and lengthy letter was that, unless we made certain further provisions to tidy up other legislation, we might create a degree of ambiguity. I found that unconvincing; I do not think any court would be in any doubt as to what Parliament had intended if it phrased this part of the legislation so as to make it quite clear that it was not creating or continuing a criminal offence of failing to answer questions relating to sexual identity and gender.

Everybody seems to agree with what we are trying to do. Let us for heaven’s sake do it in a way that makes our legislation both sensible and not threatening to individuals who perhaps do not view these matters in the detail that we have been required to do today.

[Lord Lipsey (Non-Afl)]

My Lords, as one would expect, the noble and learned Lord, Lord Judge, has made an extraordinarily powerful case. I really think that the Minister, as well as restating his case, which is wide of these amendments, is obliged to expand on “why not”, preferably in words a normal person could understand and that are not deep in a complicated letter.

All sorts of people may come to us during the census period and ask, “What’s my legal position if I don’t want to fill this in?” Does everybody feel confident, having heard the noble and learned Lord, Lord Judge, that they could readily explain the situation to those who came in and saw them? Can they readily show that those people would understand immediately that, although they may be committing a criminal offence—though not one to which any penalty attaches—it would be perfectly all right and no future employer would ever hear about it? I am not trying here to construct a legal case, because I am not a lawyer; I am trying to reflect the reality that may exist if the Bill goes through without the amendments tabled by the noble and learned Lord, Lord Judge.

Public Procurement (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

Lord Beith Excerpts

Thursday 14th March 2019 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, I wonder whether my noble friend can help me. In view of the contingent nature of these SIs, is it the Government’s policy to honour the result of last night’s vote in another place?

[Lord Beith (LD)]

My Lords, that is a question I shall leave on the charge sheet for the Minister to deal with in a moment. Indeed, there is a wider political question around these statutory instruments to which the Minister delicately referred, in careful language, which is that there are those Brexiteers who argued for Britain’s departure from the EU on the basis that we would be free of all these rules and restrictions, including those which, in sum and on balance, genuinely benefit British industry but which do not always suit either a particular business or a local authority which wants to give the business to some more local concern. This was one of the things that was so often quoted during the referendum debate as something we would get rid of, whereas most of us knew that these were so much to our advantage that, even if Brexit did happen, we would retain many of them, as we see is happening today.

Budget: North East of England

Lord Beith Excerpts

Thursday 14th December 2017 Lords Chamber

Asked by

[Lord Beith]

To ask Her Majesty’s Government what assessment they have made of the likely impact of measures announced in the Budget on the north east of England.

[Lord Young of Cookham (Con)]

My Lords, the Budget has provided a significant and very positive impact for the north-east of England, with more than £300 million to replace the Tyne and Wear Metro fleet, Transforming Cities funding for Tees Valley and an investment fund of £600 million over 30 years as part of the “minded to” devolution deal for the north of Tyne.

[Lord Beith (LD)]

My Lords, the funding for the Tyneside metro is welcome, but the big announcement in the Budget was the half-baked devolution deal. Does the Minister realise that the region has none of the transport, health and social care powers and still less the level of funding which other regions such as Manchester and Birmingham are getting? It has a boundary cutting right through the middle of Tyneside and it focuses on the creation of an expensive elected mayor who nobody asked for and very few people want. What, if anything, will this deal do for the low-wage rural areas of north Northumberland, so often outvoted by the Tyneside areas on which this deal will focus?

[Lord Young of Cookham]

My Lords, I welcome what the noble Lord said at the beginning about the metro. The rolling stock is some 40 years old and is not as reliable as it should be, and the new rolling stock will make the north-east an even better place in which to live and work. So far as what the noble Lord calls the “half-baked deal” is concerned, for those not familiar with the story so far, seven local authorities in the north-east approached the Government, under the umbrella of the North East Combined Authority, for a devolution deal. This was in accordance with the Government’s wish to decentralise decision-making and give local areas more powers and resources. Half way through the discussions, four of those local authorities withdrew. Those who understand the socio-political dynamics of the north-east and the tribal tensions of the Tyne may understand why—but I do not. The decision for the Government was whether the three remaining local authorities of Northumberland, Newcastle and North Tyneside should go ahead. Those authorities want to proceed, as do the business community and the local enterprise partnership. For those reasons, the Government are minded to proceed and the ball now rests in the court of the three local authorities to go through the statutory consultation and pass the local orders.