Preparing Legislation for Parliament (Constitution Committee Report)

Lord Cope of Berkeley Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Cope of Berkeley (Con)]

My Lords, in view of that last speech, I should first declare an interest: I am a resident of Somerset. Judging from what my noble friend said, I am probably in the 99% but there it is.

I congratulate the chair and members of the committee on these valuable reports. They are of interest to me because, like others here, I have been a legislator for 45 years. As a matter of fact, I was involved in the preparation and passage of legislation even before I became an MP in 1974. I am a chartered accountant and a considerable part of my earlier experience was with finance Bills and taxation. One of the advantages of being in the House of Lords is that I am no longer required to take part in Bills on taxation as long as I am here.

The report on delegated legislation seems the latest episode of that long-running saga, “The struggle for power between Parliament and the Crown and its Government”. Having played on both sides, I was interested to read the latest twists in the game, but the scoreboard on page 25 of the report should worry us all. So indeed should the extra information in the report of my noble friend Lord Trefgarne’s excellent Secondary Legislation Scrutiny Committee, which was published yesterday and gives a lot more information.

On the scope of statutory instruments, the Constitution Committee asserts:

“Broad or vague powers, or those sought for the convenience of flexibility for the Government, are inappropriate”.


I agree with that, but the Government’s response—provided by the then Leader of the House of Commons —in paragraph 13 was:

“The Government does not agree that broad powers are, by definition, inappropriate”.


That sweeping statement is modulated a little by some of the following sentences but it still seemed to me, to say the least, cavalier, not only in the sense of taking a swashbuckling cavalry attitude towards rules, but in the more direct 17th century sense of the Crown or Executive attempting to evade the scrutiny of a Round- head Parliament.

I was also interested in the other report that we are debating on the preparation of legislation, particularly the passages about drafting legislation. My noble and learned friend Lord Mackay of Clashfern is right that it is most important that the policy is clear before the parliamentary draftsmen can do their work. I have a high respect for the skills of parliamentary draftsmen, although I have to say that while I was a Minister, at the Treasury and elsewhere, I found them pretty elusive. Sometimes, for example, I thought that legislation I was being asked to take through Parliament could be worded in a plainer English. But my dealings with the parliamentary draftsmen concerned were usually indirect, being filtered through the departmental solicitors and so on, and usually unavailing. I gather that they are more open these days, as Sir Richard Mottram indicates in his quote in paragraph 158.

I think it is true, as the committee suggests, that legislation is sometimes more clearly worded now than it was. Sir Ernest Gowers did not write entirely in vain in 1948. His great work is apparently still in print and I think it should be on every civil servant’s desk.

The Select Committee is right to single out taxation legislation as one area that is not clear. Indeed, it is appallingly complex in places. Some might think that this benefits accountants and tax lawyers, and of course, people from both categories have been the reason for extra complexities being introduced in the cause of anti-avoidance. Both the Institute of Chartered Accountants in England and Wales, to which I still belong, and the Chartered Institute of Taxation complained in their evidence to the Select Committee about the lack of clarity and inconsistent definitions. The problem is recognised by government; the existence of the Office of Tax Simplification demonstrates that. I wish its new chairman, Kathryn Cearns, and all involved every success.

I note in passing that one of the candidates for leadership of my party wants to replace VAT with a so-called simpler sales tax. As it happens, I was in at the birth of British VAT and it was then regarded as a huge simplification of and improvement on purchase tax, the sales tax collected at the wholesale stage. Purchase tax lost favour, to put it mildly, because of the inherent definitional problems inevitably involved in practice when you came to write it into law and vary it over the years. VAT remains an excellent, ingenious, clear concept and its replacement would not lead to simplification for long, if at all, and meanwhile there would be huge disruption. I mention this because it is a special example of the problems of proposed legislation being written into manifestos. This is discussed in the committee’s report in respect of changes in government after general elections, but it has some relevance this week too.

Clearly, like the committee, we all welcome consolidation in principle, but recognise that not enough of it is done in practice, notwithstanding the Bill in Grand Committee this afternoon. My noble and learned friend Lord Mackay of Clashfern spoke much more expertly and eloquently than I can, and I agree with him about this. I was interested in the reference to “rolling consolidation”—namely, making use of the valuable website legislation.gov.uk. I find it extremely useful when considering legislation. I was delighted to see the First Parliamentary Counsel, Elizabeth Gardiner, explaining on page 41 of the report that her office is trying to draft new legislation which alters existing legislation through clauses that could replace the existing legislation—in her words, “consolidating as we go”.

An example may explain the concept a little more clearly. A change in the law may be proposed by an amendment saying something such as, “except that subsection (5)(b) will not apply in the following circumstances”. Is it not better to have an amendment that proposes to leave out subsection (5)(b), or whatever it is, and insert a new subsection altogether, incorporating the changes required? That technique leaves the legislation in a cleaner position, and a consolidated one, to a degree. Footnotes on the website can direct readers to the old version in case that is required. There will not always be a choice between the two ways to frame a change but, where there is, the First Parliamentary Counsel is quite right to prefer it.

The subject of these reports will for ever be with us, and, for that matter, with our successors, but the Constitution Committee has made a most useful contribution to the current debate, and I commend it.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Cope of Berkeley Excerpts

2nd reading (Hansard): House of Lords
Friday 8th September 2017 Lords Chamber

[Lord Cope of Berkeley (Con)]

My Lords, the noble Lord has got a whole series of different complaints which are not relevant to this debate off his chest, and I hope he feels better for it, but I hope he will forgive me if I do not follow him exactly in what he had to say.

The noble Lord, Lord Grocott, has based his case, as he often does—I beg your pardon, as he always does I think—on logic. That is his habit, but logic is not the only guide to our constitution. From a practical point of view, I believe that the House has gained from having hereditary Peers and from the system of electing new ones to replace those who pass on. We all know of the valuable service of individual hereditary Peers, some of whom came back of course as life Peers—I see the noble Lord, Lord Berkeley, the holder of one of the most distinguished and oldest peerages in the House, who sits here as a life Peer, in his place. All of us could list a whole number of hereditary Peers by name who play a great part in this House—the noble Baroness, Lady D’Souza, emphasised this in her speech. As we have been reminded, and as many of us recall, the system created in 1999 was expected to be temporary. But as we also all know, in the British constitution, when temporary expedients work, they tend to last. This one has lasted, in my view because it has produced Members who make valuable contributions to the House.

But whatever one’s point of view on that, a central point of the argument or the criticism made by the noble Lord, Lord Grocott, and others is that in some cases when a hereditary Peer dies, there are only three electors under Standing Order 10(2). If the House wishes, we can change that without legislation. It is enshrined solely in the House of Lords Standing Orders. The legislation requires there to be by-elections but does not specify the electors for a by-election or some of the other arrangements. That is all in Standing Order 10. We can amend that Standing Order, so that, for example, all vacancies are filled by election under Standing Order 10(3), with the whole House voting instead of just the appropriate hereditary Peers as now for many vacancies—that is, elections conducted under Standing Order 10(2). That would of course increase the electorate substantially. If we were to do that, it would be important that the excellent Carter convention, which preserves the proportions of the different party groups, should continue under such a proposal. That could be included, if we wished, in the changes to the Standing Order to bring this about.

This plan is entirely within the authority of this House and would not involve the Commons, nor the legislative procedures inevitably involved in the wider proposal of the noble Lord, Lord Grocott. It would involve no expenditure of government or other time in the House of Commons and very little in this House—the noble Lord, Lord Grocott, and I have reason to know about the difficulties with parliamentary time and its allocation by government. As I say, this would take very little time in this Session, in which, although it is a long one, parliamentary time is going to be extremely scarce.

Israel and Palestine

Lord Cope of Berkeley Excerpts

Thursday 5th March 2015 Grand Committee

[Lord Cope of Berkeley (Con)]

My Lords, first, I thank the noble Lord, Lord Luce, for initiating this debate and for an excellent speech. If I may say so, if I do that on behalf of all of us, we need not repeat that phrase at the beginning of every speech.

I have explained before my interests and my belief that the biggest enemy of the peace process is the occupation and the so-called settlements—in reality, massive towns and vast agricultural estates. Today, I want to encourage reconciliation work between the different religious leaders in Jerusalem of the three faiths to whom it is especially sacred, and also between the many strands within each faith, which are particularly obvious in that part of the world.

The faith leaders have a duty to reach out to each other and to work to recognise and respect the religious sensibilities of the others. That is easier said than done, I fully realise, but that only emphasises its importance. The conflict is primarily about land and ethnicity, but faith is a key expression of the differences, and all the faith leaders have, after all, a commitment to peace in their own way. The Holy Land has been scarred by religious wars throughout history. If organised religion could now contribute to the peace, progress would be easier.

Palestine: Recognition

Lord Cope of Berkeley Excerpts

Thursday 29th January 2015 Lords Chamber

[Lord Cope of Berkeley (Con)]

My Lords, when we discussed this part of the world on 30 October, I explained my involvement with Palestine resulting from my wife’s family having settled in Jerusalem for Christian reasons 150 years ago. I have, therefore, been visiting Palestine for over 45 years. I have seen for myself the problems on the ground and I have seen them get worse. I believe it is time—indeed it is overdue—that the UK recognises Palestine as a country. We all know that the 1967 borders need land swaps by agreement, but that is still the internationally agreed border. Some countries with disputed borders have long been recognised as states, including Israel itself. Many other countries without our historic responsibilities for the problems she faces, which my noble friend Lord Steel referred to in his excellent and moderate introduction, have recognised Palestine.

I believe recognition by the UK would help towards a settlement. The two-state solution needs two states to negotiate and agree. The PLO committed itself to recognising Israel over 20 years ago, in 1993. However, Israel not only still refuses to recognise Palestine but builds all over it. As has been said, settlement building is against international law. It is highly aggressive and provocative, particularly just now around Jerusalem. In this dispute, the extremists on each side constantly quote the words and actions of the extremists on the other side and squeeze out the moderates in the middle. Like my noble friend, I believe that recognition would give the Palestinian moderates a real boost and encourage the Israeli moderates to try and get their Government to negotiate properly with their neighbours. Many Israelis, like those quoted by my noble friend, recognise the truth that aggressive, illegal occupation will not work in the end. It is not the road to peace. The world cannot accept, and has not accepted, that a state can steal other people’s land by force and build over it.

For the UK, recognition would mean that at last we had tried to redeem our historic pledges, in so far as we still can, to respect the interests of the pre-existing inhabitants in creating what was called the national home for the Jewish people. I sincerely hope that on 17 March the very difficult Israeli electoral system will result in a long-sighted Government who realise that without a two-state solution Israel will never be at peace with its neighbours. Meanwhile, let us show our support for the two-state solution by recognising the second state involved in it.

Deregulation Bill

Lord Cope of Berkeley Excerpts

Monday 7th July 2014 Lords Chamber

[Lord Cope of Berkeley (Con)]

My Lords, I start prepared in principle to cheer on its way any Bill labelled a Deregulation Bill. Mind you, it has come out this afternoon, if one did not realise it from reading the Bill, that much in it is not exactly deregulation but reregulation and so on. One of the worst features of modern life is the multiplicity of regulations. I do not mean that regulation itself is bad. Of course not; we all realise that regulation is essential in very large parts of life. The problem, particularly for a small business, for example, is on the one hand the multiplicity of regulations and on the other the fact that they are constantly changing. This changing factor is part of the difficulty, which is a problem when it comes to a Deregulation Bill.

I have been arguing in favour of deregulation for a long time—over 40 years or so of parliamentary life—but so have a lot of other people. The previous Government, as well as the present one, have given a lot of attention to it. Yet throughout that time, and for that matter before, regulations have been and still are breeding like weeds in a garden. While I welcome the Bill in general, I have some reflections on Second Reading about deregulation and the complications of regulation itself.

I do not think that I am the only Member of this House who believes that one problem with our modern legislative drafting habits is that every Bill, even this one, is littered with statutory instruments—even though the noble Lord, Lord Rooker, and his colleagues have succeeded very well in getting the Henry VIII one removed from this Bill. Yet statutory instruments flow through the Moses Room like the waters of the sea when Moses first arrived on its banks—except that there seems to be no way of stemming the tide, as he did when he parted those waters. Moreover, they are only the statutory instruments that require debate by your Lordships’ House. They are affirmative instruments, for the most part, but businesses have to take account of many negative instruments as well.

I am contemplating moving a new version of Dunning’s famous Motion of 1780, which would say that “The number of statutory instruments has increased, is increasing and ought to be diminished”. How far we will get, I am not sure—and I emphasise “diminished” rather than abolished. For the record, I do not blame the proliferation of statutory instruments on the parliamentary draftsmen; I think that the blame lies within the various departments. Legislation is insufficiently prepared, so the details of a Bill have to be filled in after enactment. For some details, that is entirely in order, but too many are left to be filled in in that way. I pay tribute in passing to the existence and work of the Delegated Powers and Regulatory Reform Committee, and I look forward to its report on delegated powers memoranda, which it is currently working on.

Like the noble Lord, Lord Rooker, my noble friend Lord Naseby and others, I am a supporter of the work of the Law Commission in this field of deregulation, particularly on cancelling parts of the law that are no longer required. I also think that it is better placed than Parliament to look at areas of the law, and to suggest improvements and parts that should be done away with. I am sympathetic to the idea of annual SLR Bills—an idea that should certainly be considered further by government.

I recognise, as the noble Lord, Lord Whitty, did just now, the difficulty of finding legislative time for Law Commission Bills in general. I am also sympathetic to the idea that my noble friend Lady Eaton drew our attention to: namely, the Local Government Association proposals for rewiring licences in that field. My noble friend knows much more about it than I do, but I have read something about it in the past and I have seen an account of it, about which I can say only that it looked good to me.

I reflect on my experience of deregulation as a Minister. Sometimes, of course, efforts to simplify have exactly the opposite effect. For example, when I was at the Treasury, along with Customs and Excise we went to great efforts to make VAT easier for small businesses instead of having a sharp cut-off between those who were not involved and those who were fully enmeshed. Several alternative schemes were introduced for VAT for small businesses, but the danger then was that you needed knowledgeable advice about which scheme you ought to go to for your particular circumstances in business and how it was going to move over the next few years, in order to know which scheme to choose. The schemes were good and worth while, but deciding which one to use gave you another complicated headache.

I know what a difficult business deregulation inevitably is. I have every sympathy with my noble friends on the Front Bench as we look forward to the Committee stage of the Bill—which, as we have heard today, is going to be of some length and complexity, to put it no stronger. This has been frequently described as a Christmas tree of a Bill, but I think that Christmas is going to be a long time coming as far as my colleagues are concerned. However, the Second Reading of the Bill is the time to congratulate the Government on tackling the subject vigorously and to wish them the best of good fortune in the debates to come.

Queen’s Speech

Lord Cope of Berkeley Excerpts

Monday 14th May 2012 Lords Chamber

Moved on Wednesday 9 May by

[Lord Cope of Berkeley]

That an humble Address be presented to Her Majesty as follows:

“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.

[Lord Trimble]

My Lords, the Front-Bench speeches last week on behalf of the coalition added very little to the cautious reference in the gracious Speech concerning reform of this House, but that is as it should be. The noble Lord the Leader of the House said that the Government are yet to take a position on the Joint Committee’s report. I would add that they should give equal weight to the alternative report—and note that it is an alternative report, not a minority report. It was a committee of 26: there was one member from the Commons who did not attend any meetings; another member from the Commons, during the 30 meetings of the committee, popped in six times at the beginning and popped out not long afterwards. I do not recollect him saying anything while he was there, and he certainly did not vote. We had then, in effect, 24 persons who were contributing to the committee and 12 of them signed the alternative report. In the light of that, that report is entitled to equal weight in the matter.

There are some signs, I am glad to see, that the Government might think again. For example, both the Prime Minister and the Deputy Prime Minister gave nuanced reactions to the recommendation in both reports of a referendum, and last Wednesday in the other place, the Prime Minister said:

“I think it is possible, and it would be a good reform … if we had a smaller House of Lords and if it had an elected element”.—[Official Report, Commons, 9/5/12; col. 23.]

That is of course reminiscent of the Wakeham report. It may also refer to the suggestion which appeared in the Mail on Sunday on 15 January, in a column written by Mr James Forsyth. He said that a compromise was being hatched in Downing Street which would see elections take place in 2015 for 20 per cent of the places in the Lords, but that the elected element—his words—would not be increased without Parliament again being asked to give its approval. In case either of these is being considered, may I advise caution?

If there was a referendum, what advice would the Conservative Party give to the electorate? It is likely that Members of Parliament and other members of the Conservative Party might try to compel their leader to campaign for a no vote, just as they did with regard to the AV vote. As to the cunning plan which, it is said, is about to emerge from Downing Street, I would like to make two points. First, it would be unstable if future change was conditioned simply on the approval of a statutory instrument. What, I wonder, would your Lordships do if such an instrument was whipped through the other place after a short debate? Secondly, the injection of even a small elected element into this House would destabilise it. No matter how few they were, I cannot see any directly elected Member accepting that his or her electoral mandate was inferior to that of the other place. The elected Members would not follow the conventions and they would expect, and probably obtain, the support of their appointed political colleagues in doing that.

There is no escape from the reality that a House containing Members with a direct electoral mandate, whether they be few, many or all, will act differently from this place. If the other place is to retain primacy, those who sit here must not be able to assert that they have an equal or superior mandate. The Joint Committee’s report suggests this can be done by a concordat between the two Houses, but anything agreed between the two Houses will last only as long as both Houses continue to agree. When one House decides not to follow it, it will end. Ministers giving evidence to the Joint Committee said that the Parliament Acts would be a fallback for Commons primacy. I was interested to note that last week the noble and learned Lord, Lord Mackay of Clashfern, said that he “firmly agreed” with the view that had been given to the committee by the noble and learned Lord, Lord Goldsmith, and by the noble Lord, Lord Pannick, that the Parliament Acts would not apply to an elected Chamber. Proposing, as some do, that those Acts be extended to an elected Chamber ranks, to my mind, with the Labour Party’s proposal to reduce the powers of the elected Chamber—a proposal rightly derided by the noble Lord the Leader of the House as a rich absurdity.

I would suggest that the solution is to elect Members indirectly, by a formula or process related to a direct election. Indirect elections are not unusual. In her written evidence, Dr Meg Russell told us that of the 76 second Chambers then in existence, 16 were wholly indirectly elected and 18 partly indirectly elected. By way of comparison, the figures for wholly and partly directly elected Chambers were 28, while those for wholly or partly appointed were 34, so there is an interesting distribution there. It is proposed that we have a second Chamber with a majority directly elected and with some appointed members. There are five other upper Chambers around the world that are constituted in the same way and which might be regarded as comparable. These five are Zimbabwe, Burma, Bhutan—they may not be regarded as terribly good comparators for reasons of distance, cultural difference and so on, but it is the remaining two that really worry me—Italy and Belgium. Is that going to be the future of our constitutional and parliamentary arrangements? I hope not.

The simplest form of indirect election is to allocate seats in proportion to the votes obtained in a general election, so that if a party obtained 40% of the vote it could appoint 40% of the second Chamber to hold office until the next election. Nominations could be made after the election or from a list published beforehand. But that is open to the familiar criticism of closed lists: it would increase party patronage and favour those individuals who were good at schmoozing party managers or members.

I would prefer the form of direct election that this Parliament legislated for in the past. The relevant Acts that I am referring to were enacted in 1909 and 1920. The second Chambers provided for in those Acts no longer exist, but that is not the point. Here we have legislation that was enacted in the middle of the crisis that led to the Parliament Act, and it may show what the Government who were involved in that crisis thought would be the appropriate shape of a second Chamber. The first Act was the South Africa Act 1909 and the second was the Government of Ireland Act 1920. Both proposals are very similar. My noble friends to my right might like to note that the 1920 Act was the work of a coalition of Conservatives and Liberals, headed by a Liberal Prime Minister—Lloyd George—whose Budget it was that had started the crisis in the first place. This is something worth looking at.

The South Africa Act 1909 provided for eight senators to be elected by single transferable vote for a 10-year term by the legislature of each of the four colonies that became provinces of the Union of South Africa, with a further eight Members appointed by the Governor General—an 80/20 split. That is interesting. The Government of Ireland Act provided for 24 Members of the Northern Ireland Senate to be elected for an eight-year term by single transferable vote by the Northern Ireland House of Commons, half being elected every four years, with the lord mayors of Belfast and Londonderry as additional Members. I thought that this might be a pointer in view of some other aspects of the coalition’s policy, but apparently they got lost by the wayside recently. But you never know, that might come back again.

Interestingly, both Acts had exactly the same procedure written into them to resolve differences between the two Houses. In the event of a difference between them over a piece of legislation, there could be convened—it was discretionary—a joint sitting of both Houses to deliberate and vote on the disputed Bill. That deliberation and voting would then count as the passing of the Bill. This procedure also applied to the rejection of a money Bill, so the legislation contemplated that money Bills might be rejected and had a procedure for dealing with that, which underlines that the Governments at those times did not contemplate that something similar to the Parliament Act was needed or should exist with regard to these bodies.

If anything resembling the draft Bill that the Joint Committee has considered comes forward, it is clear that it will encounter serious opposition in the other place from Members who wish to retain their primacy and to avoid being challenged in their constituencies by a rival elected Member. An indirectly elected senate solves both those problems. So I urge it on those who will be involved in taking decisions on this as something to look at.

Last week the noble Lord, Lord Wakeham, said that if a reform Bill comes here,

“the responsibilities of this House are clear. We should treat the Bill like any other coming before the House”.—[Official Report, 10/5/12; col. 50.]

It might be possible to do that if the Bill comes after being properly considered in the other place, but I fear for what might happen if we get another ill-drafted Bill pushed though the other place on a guillotine with many of its provisions never debated.

I appeal to the Government: treat this bill as constitutional Bills were once treated in the past. Let it be considered without a timetable. A whip on Second Reading would be understandable, but thereafter let the debate proceed freely. A consensus reached in that way would then be respected.