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

Debate between Lord Judge and Baroness Hayter of Kentish Town

Report stage (Hansard): House of Lords
Tuesday 18th June 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I see many people are leaving. This is not riveting stuff so I do not recommend that your Lordships all stay.

In Committee in June I moved an amendment to the Bill that is rather difficult to follow unless you have the original 1920 Act before you, and I shall not bother the House with it. In summary, it required that there be an express provision in the Bill that if you elected not to answer questions to do with sexual orientation or gender, you would suffer no penalty. My amendment wanted to make it express that that would be no offence. We had a very interesting argument, to which I listened. I was told that the Commons had rejected such an amendment when it was considering the same provision in relation to religion in 2000, and that it would certainly complicate proceedings if the problem were dealt with in one way in relation to religion but differently in relation to sexual orientation and so on. I understood. Actually, there should have been a Bill covering the whole proceedings.

Then I was told that it might put us in England and Wales out of step with Scotland, then I understood that it worked perfectly well and then I was told that I was wrong as a matter of law. I did not agree that I was wrong as a matter of law, but the Minister had rather a powerful weapon up his sleeve: he asked me in a conversation after the Committee had concluded its discussions whether I would have a word with the noble and learned Lord, Lord Mackay. Everyone in this House knows that the noble and learned Lord is the oracle. When the noble Lord, Lord Young, suggested I speak to him, I thought, “Well, that’s the oracle”. What the noble Lord did not know, and there is no reason he should, is that the noble and learned Lord is also the Lord Chancellor who appointed me as a judge, so this was a real double whammy.

So of course I spoke to the noble and learned Lord, Lord Mackay. We had a conversation and we did not agree. I saw the force of what he was saying and he understood the point I was making, but our discussion revealed that we are doing a bit of a Don Quixote and tilting at windmills. Who will read the Census (Return Particulars and Removal of Penalties) Bill? No one. The form will simply arrive in your letterbox. What seemed to me—and, if I may say so, to him and, when we spoke to the Minister, to the Minister—to matter was that the form should be clear and unequivocal so that the individual citizen reading it should understand what it meant.

That is the purpose of this amendment: to forget, if I may say so, about esoteric points of law and concentrate on the practicalities. The amendment I have now tabled would deal with the front page of the census form so that it stated in terms that you would not commit any offence if you did not answer any of the questions. Within the census form itself, there would be a headline saying “Voluntary” and an explanation that the question was voluntary. I respectfully suggest that this would be a practical way of dealing with a rather refined legal problem, and I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I want to speak at this point because I want to leave another question with the Minister and give him time to respond.

I thank the noble and learned Lord, Lord Judge, for his amendment and his explanation. I remain puzzled by the Government’s view on this, because I have now had the chance to consider their letter of 31 May. It seems to say to the noble and learned Lord, Lord Judge, “Yes, you’re probably right, but as we didn’t do it properly in 2000, it might prejudice that, so we should remain consistently with a less-than-perfect form of words”.

There are two aspects to this, as I think the noble and learned Lord, Lord Judge, said. One is the legal aspect and whether it is absolutely clear in law that “no penalty” means “not criminal”; I will leave the two noble and learned Lords to adjudicate on that. The other aspect, which was just touched on, is whether it will be clear enough to all respondents that, unlike the rest of the form, they do not need to answer these questions. We non-lawyers want absolute clarity on this second point, to ensure that no one should feel compelled to answer these questions, nor to expect to have to answer on behalf of those for whom they are completing the form. They should not even be nudged to ask someone for the answer to these questions. We would want to see some real guarantees on that not to support these amendments.

I turn now to another matter regarding voluntary and compulsory questions: military service. I take this opportunity to thank the Minister for his letter of 10 June, a copy of which he has placed in the Library, in response to my concern that, for whatever reason, somebody may not want to disclose their history of service in the Armed Forces to other members of the household. I am probably not alone in wondering about this. Indeed, only 88% of veterans and their families thought this question was “publicly acceptable”, which is interesting. One-fifth had doubts about whether it was publicly acceptable, which I think is significant. In Northern Ireland, the question was found only “generally acceptable” and the Minister’s letter says that,

“some veterans may be unwilling to disclose this information”.

The Northern Ireland Statistics and Research Agency thought:

“This could be mitigated by providing assurances about privacy and through additional guidance”,


although it said it would look carefully at the 2019 census rehearsal before making a final recommendation for the 2021 census.

Obviously, members of households can request their own individual census form if there is information they do not want to disclose to the person completing the census on behalf of the household. However, by opting out of the household, one might be looked at slightly askance and it could raise questions as to why one is doing that. This is as true for the gender and sexual orientation questions as for the military service one I have in mind. I do not wish to pursue this separate issue now, but I ask the Minister, who I hope will be able to reassure us that, in all the guidance and testing, the sensitivities about military service, as well as those related to the areas that are the subject of this Bill, will be borne in mind.

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

Debate between Lord Judge and Baroness Hayter of Kentish Town

Committee: 2nd sitting (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Lord Judge (CB)]

Before the noble Lord, Lord Grocott, answers that question, while I am not speaking on behalf of the Cross Benches—because nobody speaks on behalf of us—can the Cross-Benchers be left to look after themselves, please?

[Baroness Hayter of Kentish Town]

Perhaps I may make one small point. I apologise to my noble friend, having said that I would stay quiet all day. I want to say one thing about why the Labour Party so supports this amendment. It was never about the political balance in this House. In fact, it has been a Labour Party claim for a long time that the idea that because people whose fathers, grandfathers, great-grandfathers and sometimes great-great-grandfathers did service for this country and were therefore put in this House, their subsequent children, grandchildren and great-grandchildren should be here is one that we no longer find democratic. That is the reason why we support this Bill. We put the issue of any political balance on the very wide and strong shoulders of the noble Lord, Lord Burns, and when we are able to move to a smaller House, we will deal with it then. This is not the way to do it. The importance of the Bill is that it is incredible that in the 21st century, we are talking about having by-elections for people because of what their ancestors did.

European Union (Withdrawal) Bill

Debate between Lord Judge and Baroness Hayter of Kentish Town

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, the issue that these amendments give rise to is quite an important constitutional one. This will not be a great moment after having had the excitement of a vote involving 500 or more Peers, but if we could add up to 100 it would be very successful. There are two reasons why there is no great interest in this issue, and one is that we have become habituated to the creation of criminal offences by regulation. It happened under the last Labour Government and the coalition Government, and it happens under this Government. Over the past 20 to 25 years there has been a proliferation of these clauses. Constitutionally, that is an aberration. We should not be creating criminal offences that can lead to an individual being imprisoned by regulation that, for the reasons we have discussed over the past few weeks, is controlled only by negative or affirmative resolution, which, as we have seen, is no sort of control at all.

The constitutional principle was upheld during the debates on the sanctions Bill. Those noble Lords who were here will remember a very significant vote in favour of an amendment to that Bill which would have deleted the ability of a Minister of the Crown to create criminal offences by regulation. There was cross-party support for the amendment and, as I say, the Government were defeated. The end result was that I had a series of meetings with the noble Baroness, Lady Bowles, who is not in her place. We then met with the Treasury Minister, with the Bill team and twice with parliamentary counsel to argue about how best to preserve constitutional certainty in relation to the creation of criminal offences. It was not easy. One significant point was made that certainly affected me: there will be occasions when it may be necessary—to use the word we now have—to allow for an offence to be created by regulation. A compromise was put forward and was accepted. It was put before the other place and, on this particular issue, that Bill will now proceed.

Faced with that, it seemed to me that we had to reflect again on the absolute nature of this amendment. I see that the Government have put forward proposals in government Amendments 83C and 83G which coincide with the suggestions made by the Constitution Committee, of which I am a member. I am speaking today only for myself, of course, not for the committee. The Government have recognised that there needs to be a significant increase in the element of parliamentary scrutiny and, if I may say so, proposals to encourage ministerial hesitation before proceeding by way of regulations to create criminal offences.

I really am not suggesting more than this. This is a start. It is a pullback from a process to which, as I said, we have become habituated. It is a process; it is an advance. It had not been made when the present Bill came before the House. The Bill has now come before the House, and we have discussed it. We have debated it in Committee, we have now discussed it again and ministerial amendments have been made. I welcome those, as I said at the start. I welcome the proposal that these amendments should be made. Ultimately, it is not my decision whether Amendments 83C and 83G should be supported in the House. If they were, that would provide a significant improvement to the current arrangements. There is nothing more I can usefully say. I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, we have heard from the noble and learned Lord, Lord Judge, an indication of where the Government have arrived on this issue and that there will in future be a document stating why this measure is needed and what necessitated it, according to the Minister.

The Government’s changes, which I welcome, do not go as far as Amendment 34 and the others in the group, but they insert an element of both written explanation and scrutiny of the use of these powers. I still doubt the need for these powers. Since the Bill was introduced in the Commons—not even when it came here—I have been asking for examples of where such new offences might need to be created. Finally, after numerous times of asking, the Government this week were able to provide just one example; that is all. It related to the marketing of medicine where it is an offence to produce false or misleading information in applications for approvals. After six months, that was the only example they gave of where such a new criminal offence, imprisonable for up to two years, might be needed, so I am still not entirely persuaded. However, given the new procedure that will come up later in the Bill, it should include the written statement as part of the Explanatory Memorandum and say that such powers will be available only in relation to our exit from the EU anyway. If the Minister could confirm that they are also subject to the timings of sunset clauses, we would see the Government’s amendments as a great improvement.

Finally, these will be orders that the House could not simply debate or put down a regret Motion about. However, if necessary, there is a backstop so that if we were not persuaded by the written statement, we would still be able to ensure that the orders did not go ahead. I hope that will never happen. I hope that they will not be used that much; clearly, there is no plethora of examples where the Government feel the need for them. Given where the extra scrutiny has now been inserted, given that there is a sunset on these powers—I think I am right in saying that—and given that they will be used only for the purpose of exiting the EU, we would certainly be content with the noble and learned Lord, Lord Judge, withdrawing his amendment.

European Union (Withdrawal) Bill

Debate between Lord Judge and Baroness Hayter of Kentish Town

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, if we reflect on the words used by my noble friend Lord Lisvane, it is really rather chilling. There will be power in a Minister to create laws by giving him or her a blank sheet of paper so that he or she can write out whatever he or she thinks is appropriate. It will be uncontrolled and unscrutinised.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I have little to add but I have tabled Amendments 350 and 351 in this group. I should like to mention the importance of ensuring parliamentary scrutiny, in particular of tertiary legislation which was mentioned by the noble Lord, Lord Lisvane. We will deal with that issue later in a different group. The issue he raises is covered in paragraph 15 of the report of the Delegated Powers Committee. There is to be no time limit on the ability to pass tertiary legislation.

As has been made clear both last Wednesday and today, in seeking to bring into UK law the provisions that are currently effected in the UK by virtue of the 1972 Act and our EU membership, the Government have simply slipped into a belief that they should take control of all of this and have drafted for themselves powers and possibilities that rightly belong in Parliament, not with the Executive. As has been said, these amendments are to ensure that use of the powers will be properly scrutinised, and that they will be used by Parliament, rather than Ministers. I hope that the Minister has heard this often and strongly enough to be able to indicate, even at this late hour of the night, that it should be the Government who bring forward amendments on this on Report, because the arguments have been so well made. We should expect them to take the next step.