Subordinate Legislation: Transparency and Accountability

Lord Rowlands Excerpts

Thursday 21st February 2019 Lords Chamber

[Lord Young of Cookham]

I pay tribute to my noble friend, those who with him work on the JCSI and the lawyers for their important if unglamorous work in scrutinising subordinate legislation, not least because their work rate has had to increase substantially due to the increased flow of SIs.

On corrections and errors, the Government have laid more than 1,500 SIs in the Session to date, not all related to Brexit. As of a recent report, the committee has for one reason or another reported on 136 of them. In nearly three-quarters of those cases, the Government either made a correction, provided further information or gave an undertaking to do so. On delays, of the 582 SIs considered by the committee since its report in June last year, only one has been reported for an unjustified delay and only one has been reported for an unjustified breach of the 21-day rule. Clearly, we hope to improve on both performances. More resources have been given to departments to improve their performance. I note that in its interim report on the current Session the committee states that,

“the overall percentage of errors in SIs has decreased”.

We are working hard to maintain progress.

[Lord Rowlands (Lab)]

My Lords, it has been a privilege to have served on this committee for a number of years; indeed, at various times I have chaired the committee and I was very much involved in the preparation of this report. As the Minister said, scrutinising statutory instruments can sometimes feel a rather remote, distant, especially technical thing to do, but one must never lose sight of the fact that a statutory instrument can seriously influence or affect a citizen’s rights or duties, so it is particularly important that statutory instruments are accessible. In our report we make specific recommendations to make sure that statutory instruments and the relevant documents are available and accessible to individual citizens. Paragraph 4.9 says:

“Accessibility to legislation is … of obvious importance for the maintenance of the rule of law”.


I hope that the Minister will impress upon the department the significance and importance of making these instruments and relevant documents accessible to citizens.

[Lord Young of Cookham]

I agree with that section of the report that deals with accessibility. Given their increasing availability on the internet, we hope that statutory instruments are more accessible than they were when they were available only in hard copy. We are in touch with the National Archives, which has responsibility for putting these SIs online, and we have taken on board the one specific recommendation in the report about making sure that those who originally had access to a document that was subsequently changed have access to the change without having to make special efforts to find it. I endorse the words of the noble Lord about the importance of SIs: that is why the JCSI and the Secondary Legislation Scrutiny Committee have a key role to play.

EU: Advocates-General of the Court of Justice

Lord Rowlands Excerpts

Monday 10th June 2013 Lords Chamber

I should like the Minister to explain what the Government are doing to secure agreement by all member states to increasing the number of judges in the General Court. He referred to discussions in a general manner but it would be helpful if at this stage he were to be a little more specific.

[Lord Rowlands]

My Lords, I associate myself fully with my noble friend’s observations about the chairmanship of the noble Lord, Lord Bowness. I have had the privilege of serving under him for more than three years, and if anyone wanted to find a way to be a model chairman, they should follow him. We have been a disparate group over these past three or four years. Europe encourages lots of disparate views but he somehow managed, throughout the whole of his chairmanship, to achieve a consensus through persuasive patience. I, too, acknowledge his importance and he has been a marvellous chairman.

I welcome, too, the acceptance by the Minister of our recommendation to increase the number of advocates-general. Whatever one’s views about the court’s broader role—it has been controversial and previously I have made observations about its role and said that it might have been on a mission to drive ever closer union and so on—we know simply that we need a fully functioning Court of Justice if we are to remain in the single market and if it is to be effective. It is not just in the interests of some European ideal, it is strongly in British interests that the Court of Justice works effectively, and produces quality and timely justice.

Given the new role that the court will be playing in the field of justice and home affairs, there is a potential time bomb. It is not just the fact of the number of cases but the relationship between the work that the court will play in the new area of the administration of justice, which has to take priority because judgments have to made quickly, and, more broadly, the court’s other cases and judgments that could be displaced. Interesting figures are quoted in the report. Table 1 reveals that the number of preliminary rulings that have come before the Court of Justice concerning freedom, security and justice, was 17 in 2009, 38 in 2010, and 44 in 2011. That represents a considerable increase, both in terms of numbers and proportion. If that were to continue, the relationship between the work of the Court of Justice in its role as regards freedom, security and justice and its more general role could have an important and serious effect.

When this matter was raised with the Minister, David Lidington, he accepted in his oral evidence that there was a considerable proportionate increase but argued that only 10% of preliminary references in 2001 came from justice and home affairs. However, that 10% figure is increasing. The Minister admitted in his evidence that we really do not know the potential. The figures are beginning to show, and I believe that they will show, that as the Court of Justice increasingly becomes involved in freedom and security issues there will be more urgent cases and, therefore, delays to cases in the broader work of the court could occur.

We wanted to raise this matter and are glad that after initial hesitation the Government have accepted our recommendations on advocates-general. As the noble Lord said, they were actually written into the Lisbon treaty, but the Minister should also be aware that sooner or later we will have to address again the issue of the number of judges. I understand the impasse and the complications among all the member states on who should be appointed, who should appoint and which country should be given the appointments. Mr Lidington at least accepted that advocates-general do not raise those sorts of issues.

I was particularly interested in the statement made by the noble Lord, Lord Wallace, which was very different from that of his predecessor. The noble Lord, Lord Howell, was very chary of the whole idea of new judges, but I think that the noble Lord, Lord Wallace, has said that the Government have in principle accepted that concept. If that is the case, we as members of the committee are very pleased.

[Lord Liddle]

My Lords, this is the third debate in which I have spoken on the European Court of Justice from the Opposition Front Bench. We support the strengthening of the system; it is essential to the effectiveness and quality of justice in the European Union. We seem to be getting there at least step by step. The proposal for additional advocates-general has our support. The idea that Poland should have a permanent position seems to be in accord with the acceptance that that country is one of the major member states of the Union. It grants Poland the equality of status that it has long sought.

It is significant that the Government have moved to support this proposal. It shows that at least they accept the pragmatism of the view of the noble Lord, Lord Rowlands, whereby if you are going to have an effective single market you have to have an effective form of justice. I have to say, however, that there are many people not present tonight but who occupy the government Benches and talk about renegotiating a relationship between Britain and the European Union, which, in essence, boils down to free trade and political co-operation. If that is the vision of the modern Conservative Party about Britain’s relationship with the EU, it is not one in which you would have this system of law which upholds the single market. We need clarification from the Government as to what they envisage the role of the system of law in the European Union to be. I very much hope that what they are doing now, on a case-by-case basis, demonstrates that they accept pooled sovereignty in areas where we have chosen to accept it, and that part of this involves a form of supranational decision-making and supranational law.

My second point is that I support those noble Lords who have raised the question of why progress is limited, so far, to the issue of additional judges for the general court. That is clearly an important part of the reform package. I listened very carefully to what the Minister said about the Government broadly supporting this proposal. Do they support it or do they not? Do they regard the requirement to keep within the existing budget of the court as a binding constraint in all circumstances, or do they not? Is it a binding constraint or is it not? If they say it is a binding constraint, what efficiency proposals are the Government putting forward to the court in order that the cost of the additional judges could be met from within the budget?

I suspect that we are seeing a divided Whitehall here, with some departments recognising the need for additional judges, while others are trying to argue that the cost has to be kept within the existing budget. It is all very well making these declarations but how will it be done?

I agree very much with what the noble Lord, Lord Bowness, said about not differentiating between cost and value. It should be obvious to everyone that the value of more efficient decision-making on issues of central concern to our economy, such as the single market, would greatly exceed the cost. Where do the Government stand on this point?

I also endorse what the noble Baroness, Lady Corston, said about the value not just of greater efficiency of justice in terms of the single market, but also in terms of the basic rights of European citizens. We welcome the limited steps that have been taken. Of course, one should search for efficiency and cost saving all the time, but can the Government give us an assurance that they will not block a proposal to increase the number of judges purely on cost grounds alone?

European Union Committee Report

Lord Rowlands Excerpts

Monday 26th November 2012 Grand Committee

[Lord Rowlands]

My Lords, the more than three years that I have been a member of Sub-Committee E on Justice, Institutions and, now, Consumer Protection, have been a pleasure. It has been a particular pleasure to serve under our chairman, the noble Lord, Lord Bowness. He regrets that he is not here this afternoon, for a simple reason: he is in Brussels on committee work. He is grappling with the issue of the common European sales law, which we have under sceptical scrutiny at the moment. I am sure that we all agree that he is still serving our committee in that particular way.

The one major report that we have fulfilled is the one that I am glad to say that the noble Lord, Lord Maclennan, referred to and gave such a ringing endorsement to our findings. That was on the workload of the Court of Justice and the General Court. We warned of the very heavy workload building up at the General Court and the potentially heavy workload that would occur as a result of the changes in jurisdiction of the Court of Justice. We saw that both courts were going to be under considerable pressures to deliver. As the noble Lord, Lord Maclennan, said, our report received a somewhat lukewarm response from Ministers. They doubted our concerns and even possibly our pessimism. But figures since the production of our report have shown that in fact there are real concerns about the workload of both courts. Those concerns need to be addressed.

Indeed, quite a lot has happened since and I hope that the Minister will bring us up to date on what exactly the situation now is regarding the discussions that have gone on about the workload of the courts. It is not a matter of cost and savings but a matter of justice. Delayed justice can be as unjust as any other action and can create injustices. I hope that Ministers take seriously the issues we have raised in this respect. We have just started an inquiry on combating European fraud. This will bring within our scope and purview the controversial issue of the European public prosecutor’s office. We are in the early days but it will be interesting to see how the evidence falls.

For me, the core of our committee’s work is the scrutiny that has arisen out of the decision to scrutinise opt-ins. I find this particularly satisfying because I was on the Constitution Committee that drove this case forward some years ago. We not only recommended specific parliamentary procedures to deal with the opt-ins but, very unusually, carried our recommendations on to the Floor of the House. For those who remember those debates, we sought to amend the European Union Bill to introduce parliamentary procedures. It was as a result of that pressure that, in the end, the Ashton undertakings were delivered. I therefore have a particular concern and interest in how the experience of scrutinising opt-in issues has worked out in relation to our sub-committee.

It might be useful if I explain to the Committee the experience to date on a very important aspect of the new scrutiny procedures that we have. Since December 2009, there have been 63 proposals to opt in, of which 29 fell within our committee’s jurisdiction. Of the 29 proposals we agreed concerning 17 opt-ins, disagreed on nine and did not express a view on two. We agreed with 13 of the Government’s decisions to opt in and with four of their decisions not to opt in. Of the two occasions on which the sub-committee did not express a view, the Government opted in on one but not the other. In total, we have disagreed with nine decisions that the Government have made on both opting in and opting out. That may sound like quite a considerable disagreement but in fact the number exaggerates that disagreement.

That was, first, because one of those nine decisions was on the human trafficking directive, where we were very surprised that the Government did not opt in initially. After that, they gradually got involved in negotiations and have now opted in—so that is one less. Of the rest, six all pertained to what we on the sub-committee considered was a group of proposals and dealt with as one decision, while the Government treated it as six. It was the application of the Hague Convention on child abduction to Gabon, Seychelles, Albania, Morocco, Armenia and the Russian Federation. In fact, there have been very few disagreements between the committee and Ministers over opting in. I find that interesting, given the background.

Given the broader political background where we have had a high degree of rhetoric, including on repatriations of powers, this Government have opted into a majority of opt-ins since they have been in power. It is an interesting reflection; they have in fact shown considerable pragmatism towards opt-ins. Opting in is transferring power, particularly in the field of justice that we have been dealing with, so I shall be interested—as I am sure many of us will—to see whether this pragmatism will be carried forward into the protocol 36 issues, and how far and to what extent that is going to happen.

One thing that puzzles me is not the argument on whether one should opt out or opt in completely but what basis or evidence to date the Government have used in their provisional decisions to opt out. I tabled a Question because the noble Lord, Lord McNally, said that there were three categories as regards the 130 measures: useful, not useful and defunct. Will the Minister at least intimate whether in the eyes of the Government the majority of those 130 measures fall in the last two categories of being not useful or, indeed, defunct? If the majority fall into those categories, you can see there is a possible case for saying, “Let us opt out”, but what if those cases are a minority and that leaves us with a majority where we might seek to opt back in? That is a considerable problem. The thought of doing that on such a scale would determine a lot of our thinking.

Our sub-committee, jointly with Sub-Committee F, is going to conduct inquiries and scrutiny on these matters but we expect an intimation from Ministers of where they stand on these issues and what the numbers and percentages are regarding the opt-ins and the opt-outs. Therefore, I look forward with considerable interest not only to the work we are going to do on protocol 36 but also to finding out whether the pragmatism that has been a feature of the Government’s attitude towards case-by-case studies of opt-ins to date will be carried forward into protocol 36.