(10 years, 4 months ago)
Lords ChamberMy Lords, I note briefly that Amendments 67 and 72 are essentially technical and consequential.
With one significant difference, Amendment 41 is a repeat of an amendment discussed at some length in Committee. It deals with Clause 87 and Schedule 21, which bring about the wholesale repeal of a huge and hugely varied set of items of legislation, asserting that this legislation is no longer of any practical use. The Government have produced no evidence that these pieces of legislation are in fact no longer of practical use; they simply make that assertion.
There are 84 pieces of primary legislation to be repealed, including seven whole Acts. There are also eight pieces of secondary legislation, making 92 repeals in all. These numbers will rise in a moment when the Minister moves Amendment 42. At this very late stage in the Bill, government Amendment 42 repeals three more pieces of secondary legislation. It is clear that these new repeals will not be subjected to proper parliamentary scrutiny. Like all the other 92 items in Schedule 21, they were not, and will not be, discussed substantively either here or in the Commons, and that is the heart of the matter.
We have before us a proposal to repeal a very large number of items of legislation without any real parliamentary scrutiny and without access to the Government’s evidence that these items really are no longer of practical use. This seemed to the Joint Committee on the draft Bill, chaired by the noble Lord, Lord Rooker, and of which I was a member, to be unsatisfactory. In fact, the Joint Committee recommended that the items in what is now Schedule 21 be referred to the law commissions for independent confirmation that they were in fact genuinely no longer of practical use. We did that because we felt that:
“The skills, research and consultation needed to ensure that Parliament, external organisations and the public can be satisfied that a piece of legislation is genuinely obsolete strongly suggest that the Law Commissions are better placed to conduct that work than Government departments. Added to which, the independence of the Law Commissions from Government and their track record since 1965 reinforce the trust that Parliament places in the … Law Commission Bills”,
including statute law repeal Bills.
Amendment 41 proposes exactly what the Joint Committee recommended. It refers all the items in Schedule 21 to the law commissions for a safety check before they can be repealed. The Government disagreed with this proposal in Committee. To their credit, at no point have the Government attempted to argue that it is clear, on inspection, that all the legislation proposed for repeal is no longer of practical use; instead, they advance three main arguments.
Their first argument was that Schedule 21, in its original form, had gone through pre-legislative scrutiny. This is the case only if simply being in a draft Bill counts as scrutiny. The Joint Committee was required to work to a quite unnecessarily tight timetable. We did not have time to discuss the items in the schedule and nor did the Commons. The Government’s second argument was that many of the provisions in Schedule 21 came out of the Red Tape Challenge. It is not clear why this is an argument against referral to the law commissions. Leaving aside any scepticism about the rigour of the Red Tape Challenge, the truth is as the Minister acknowledged in Committee. The items chosen for repeal via the Red Tape Challenge had a political origin. This illustrates the point made by the Joint Committee.
Scrutiny by the law commissions has the advantage of being, and of being seen to be, absolutely independent. There can be no suggestion of political interest in any of the judgments about what is safe to repeal and what is not. The Government also argued that,
“government departments are key consultees for the Law Commission in seeking to make these kinds of repeals”.—[Official Report, 18/11/14; col. GC 146.]
So they should be. Again, this is not in itself an argument against referral to the law commissions. It simply emphasises the rigorous, wide-ranging and transparent analysis and consultation that the law commissions employ in assessing the case for repeal.
The Government made one other comment about the version of this amendment that we discussed in Committee. They rightly pointed out that it did not impose a duty on the law commissions to do anything with a referral to them and that it imposed no timescale for action. This amendment rectifies these defects. It says that if the law commissions have not reported on the items referred to them 12 months after referral, the repeals may go ahead anyway.
None of the Government’s arguments against this amendment in Committee seemed at all compelling. I do not for a moment doubt that the 95 items for repeal have been examined by the departments concerned. I do not doubt that in some cases there will have been consultation, but we do not know the depth or the rigour of these examinations and we do not know the arguments put forward in consultation. Critically, we do not know how these arguments were weighted by Ministers.
In Committee, I asked the Minister whether we could see any written reports on these proposed candidates for repeal before Report stage. I did not get that but I did get a detailed description of how departments assessed candidates for repeal and identification of some items that have been consulted on. I also got a detailed list of why the Government believe each item in Schedule 21 is safe to repeal. I did not get evidence, just summary reasons. That must have taken a considerable amount of work and I am very grateful to the Minister and his officials for that.
However, the problem with this information is that it is narrative. It is useful narrative and a useful summary but it is not evidence and cannot be properly interrogated. It also does not settle the worries about consultation. We still do not know how many consultations took place and with whom. We do not know the quality of these consultations, which is an issue of wider concern than just this Bill. Only a few days ago, your Lordships’ Secondary Legislation Scrutiny Committee published a report called Inquiry into Government Consultation Practice. The report looks at secondary legislation and some of its conclusions seem to have a more general context. In particular, the report notes that,
“a number of our concerns about the Government's approach to consultation are not allayed: and we are most troubled by an apparent absence within Government, in the Cabinet Office and in individual Departments, of a commitment to monitor consultation practice and to draw lessons of general application”.
There are reasons to worry about government consultations especially when we have no access to them.
The issue here is essentially one of principle. When it comes to wholesale repeals, who can we best trust to tell us that legislation is really no longer of any practical use? Is it the Government, via not only wholly transparent internal processes and a ministerial decision? Or should it be the independent law commissions set up by Parliament to do precisely this and which have a statutory duty to apply the three tests of external expertise, impartiality and independence? The Joint Committee thought it should be the law commissions.
We asked the law commissions how long they would take to certify whether or not the items in Schedule 21 were safe from repeal. They told us it would take between four and 12 months. The Government say that they are confident that it is safe to repeal the items in Schedule 21; they are confident that they are in fact of no practical use. So what exactly is the risk? What is the problem with a four to 12 month delay? What is lost by referral to the law commissions? Nothing is lost, but a considerable amount is gained. What is gained is trust, independent transparent scrutiny, and giving Parliament the confidence that repeal is safe via the mechanism that Parliament set up for that very purpose. Amendment 41 does what the Joint Committee recommended. I beg to move.
My Lords, as a Member of the Joint Committee I support the amendments of the noble Lord, Lord Sharkey, and commend him for the indefatigable way he has brought this issue back on Report. I can confirm that the Joint Committee was exercised about this failure, this deliberate resistance, by the Government to consider the Law Commission for all the reasons the noble Lord set out—transparency, reduction of risk and uncertainty and the opportunity to consider the repeals which were being recommended.
Let me take the House back to the first stages of this Bill, when there was something in the spirit of the original clause which was dropped from the eventual Bill, whereby the Minister was going to take upon himself the power to decide which legislation was or was not redundant and to recommend that a whole swathe of legislation should actually disappear from the statute book. Such was the reaction to that that the clause was wisely dropped.
As to the attitude towards the Law Commission, I do not quite understand the difficulty. As the noble Lord, Lord Sharkey, said, the Law Commission was absolutely clear that it would be able to deal with and expedite the passage of judgment on the repeals and it would give everyone the security of knowing that whatever was moved for repeal would have that additional scrutiny. That is not to cast aspersions on the ability of departments to make a judgment about what is or is not redundant legislation, but as we have got the Law Commission and that is part of its job, we should take advantage of that expertise and the scope to do that. On that basis, I certainly support the amendment.
My Lords, I thank my noble friend Lord Sharkey for moving this amendment. As the noble Baroness, Lady Andrews, said, my noble friend has indefatigably pursued this issue since beginning his membership of the Joint Committee. Like the noble Lord, Lord Stevenson, I take this opportunity to pay tribute to the committee’s work on the whole range of the Bill. I have been involved in only small parts of the House’s consideration of the Bill, but it is evident that the areas that I dealt with in Committee reflected the continuing interest of noble Lords who served on that committee.
With regard to this part of the Bill, the most controversial element of the original draft Bill concerned the more general order-making powers for the Secretary of State. As a result of the committee’s deliberations and recommendations, those powers were removed from the Bill as introduced into the other place.
I hope that I will have more information on the dogs issue before I sit down, but what I can say to the noble Lord, Lord Stevenson, now is that, following our debates in Committee, I did have a meeting with the noble Lord, Lord Trees. It is certainly my recollection that there is to be a consultation. If I can give fuller chapter and verse before I conclude, I will happily do so.
As my noble friend has indicated, Amendment 41 seeks to add conditions before the various items and provisions set out in Schedule 21 can be repealed or revoked. The main condition, as he indicated, is the need for the Secretary of State to ask the law commissions to review the legislation to be removed by these provisions and to report on whether the legislation to be removed has practical use, following which only those confirmed as redundant could be commenced. Perhaps I may say that the Government see the work of the law commissions as absolutely vital in keeping the law under review and recommending reform where it is needed. However, it is important to put this into context by saying that the statute law repeals work is just a small part of the overall work that is done by the commissions. The Government themselves have an important role to play in updating and tidying up both primary and secondary legislation as they develop policies and make new law. This is the role that they have exercised in relation to Schedule 21. If this work did not take place, the statute book would quickly become very unclear, inaccessible and outdated. There would also be an increase in the time and costs for those who use the law and an increase in the risk of their being misled by redundant legislation masquerading as live law.
If one reflects on this, one sees that in almost every piece of legislation there are repeals which the Government invite Parliament to approve. I was just flicking through the current Bill, and I think I am right in saying that, in Schedule 18, there are omissions from the Licensing Act 2003. Is the principle in the amendment that, before there can be any repeal of primary legislation, the Law Commission has to establish whether, because of what else is occurring in its place, it is no longer of any use? I do not know whether anyone has asked the Law Commission whether it sees that as an important part of its additional workload. To be consistent, the principle would have to be that any consequential repeals under general provisions in a Bill may well have to be referred. I am sure that that is not what my noble friend is proposing, but it is, by extension, the implication of what he is arguing here.
The law commissions were not established in order to replace the Government’s role in this area. The law commissions and the Government both have a valuable contribution to make to legislative housekeeping. Would requesting the law commissions to review legislation listed in Schedule 21 be the best use of their resources? I submit to your Lordships’ House that it would not, for two reasons.
First, we would be requesting the law commissions to duplicate the work already undertaken by government departments, because the actual technical work carried out by lawyers in departments and within the law commissions would be very much the same. The only difference in the general approach is that the law commissions would then conduct an open consultation, whereas government takes a more proportionate approach and tries to identify persons or organisations who would appear to have an interest in the proposal.
Secondly, in practice, the law commissions invite government departments to comment on repeal candidates, as departments have a responsibility for the legislation and policy area in question, as well, of course, as having specific inside knowledge and, no doubt, very good contacts with the various stakeholders and interested bodies. If the law commissions did undertake a review on Schedule 21, then departments which have already determined that the legislation no longer has a practical use would become key consultees in confirming whether the legislation no longer has a practical use. That does not seem to be a useful operation or a good use of resources.
My noble friend asked why the Schedule 21 items should not be referred to the law commissions. As I have indicated, Schedule 21 includes the sorts of items which departments routinely repeal and revoke as part of their legislative housekeeping roles. That complements the law commissions’ repeal work. Schedule 21 also includes secondary as well as primary legislation, while the law commissions’ repeal work has, hitherto, concerned primary legislation.
My noble friend also mentioned the Red Tape Challenge and suggested that items were chosen for political reasons. I accept that there is a political drive to try to tidy up the statute book and to do what we are doing in this Bill and have sensible deregulation but the point is—the heading of the schedule says as much—that these are provisions that are no longer of practical use. This sort of tidying up is an ordinary and useful part of the Government’s work.
When my noble friend proposed a very similar, although not identical, amendment in Committee, I argued that there would be no requirement for the law commissions to report on the legislation contained in Schedule 21, with the result that the obsolete law could simply remain on the statute book. I note that my noble friend has attempted to address this point by introducing proposed new subsection (7), but I have some difficulty in following the pattern through. The amendment requires only that a request be made by the Secretary of State to the law commissions to report on whether the provisions are redundant. The law commissions would in turn accept or decline the request.
If the intent is to provide a safeguard, then I am not quite sure that that will be carried out. If the law commissions either decline the request or fail to report to Parliament on the provisions within 12 months—and no doubt if they decline the request, Parliament will still have to wait for 12 months—the schedule will then simply be commenced. It is unclear exactly when the provisions are to be commenced if a request is accepted and the law commissions report to Parliament that the provisions are redundant. There does not seem to be a very clear way in which these provisions would be commenced.
My noble friend also referred to evidence and consultation, and he acknowledged the work that had been done by officials in going through all the paragraphs in Schedule 21 and indicating why they were there—whether they were redundant, had expired, had served their purpose, had been superseded by other legislation or were no longer relevant because they related to an activity that was no longer taking place. It is difficult to see what more evidence could be needed. For example, in paragraph 7, we believe that the provisions that have been repealed in the Industry Act 1972 no longer serve their purpose and are no longer relevant. That is because the Shipbuilding Industry Board (Dissolution Provisions) Order is not relevant because the board itself has been dissolved. I am not sure what more evidence you can actually get than the fact that the board no longer exists. If it does not exist, whom does my noble friend think we should be consulting? That is the nature of many of these provisions, such as paragraphs 10 to 12, covering the British Steel Act 1988. What was British Steel plc is now wholly owned by Tata Steel, so the Government’s shareholding provisions are redundant. Paragraph 12 repeals a saving provision for four sets of historic iron and steel pension regulations that are now redundant and no longer have any practical effect. That is the nature of these provisions.
Amendment 42 gives further illustration. My noble friend indicated that it had been brought in very late but it relates to three instruments that were identified as being spent during the rail theme of the Red Tape Challenge. The Department for Transport had originally believed that the revocation could be delivered by secondary legislation. However, legal investigation during the drafting of the revocation instrument—and this underlines the thoroughness with which officials go through these matters—identified vires issues which meant that this could proceed only through primary legislation. A number of similar instruments have already been included in the schedule. That is the reason for the proposed insertion into the Bill at this stage.
I will explain. The Railways Act 1993 (Extinguishment of Relevant Loans) (Railtrack plc) Order 1996 extinguished the liabilities of Railtrack plc in respect of specified loans. These loans were initially made to the British Railways Board and subsequently transferred to Railtrack plc as part of the privatisation of the railways. As many noble Lords will recall, Railtrack plc was placed into railway administration in October 2001 and acquired by Network Rail in 2002. The Railtrack Group PLC (Target Investment Limit) Order 1996 fixed, for the first time, the target investment for the Government’s shareholding in Railtrack Group plc. That limit was expressed as a proportion of the voting rights exercisable in all circumstances at general meetings of Railtrack plc. Following the entry into administration of Railtrack plc, Railtrack Group plc was placed into members’ voluntary liquidation in October 2002 and finally dissolved in June 2010. Railtrack Group plc no longer exists and that is the essence of why we are putting these kinds of provisions in.
When I sat on the Benches opposite, both here and in the other place, I was on the receiving end of technical problems with amendments standing in the way, but I think that in this case there are serious technical deficiencies, not least because I am still not certain how, even if a clean bill of health was returned by the law commissions, these provisions would come into effect. More relevantly, it is part of the work of government to keep the statute book in a tidy and orderly fashion. Thorough work has been done. It was presented initially to the Joint Committee and subsequently went through both Houses. It is on the basis of not wanting to duplicate work that has already been done, and of trying to avoid a somewhat odd situation where the law commissions would consult government departments to see whether they agreed that these matters were no longer of practical use when in fact the only reason they would be consulting was because the government departments had said they would no longer be of practical use, that I do not believe it is a good use of resources.
Before I sit down, Defra officials have confirmed that before commencing the particular repeals with regard to the Breeding of Dogs Act, there will be consultation as the issue generates a considerable amount of interest, as the noble Lord indicated. I urge my noble friend to withdraw his amendment.
I thank all noble Lords who have spoken in this debate. Earlier in the afternoon, I heard that the Government had referred the laws on busking to the law commissions. When I heard that, my hopes rose, but, clearly, that was the limit of their willingness to refer things to the law commissions.
Having listened carefully to the Minister, I am not quite sure that we were talking about the same thing at times. The point is not that the Government should not repeal legislation; of course they should. The point is that Parliament should be able to scrutinise proposed repeals. The fact is that some of the repeals that are proposed will need scrutiny. The Government were able to trot out examples such as laws on the keeping of pigs or the flying of kites—the usual stuff that, on inspection, appears to be safe to repeal—but they did not mention, for example, item 18, which is the Nuclear Industry (Finance) Act and the implications of that, and the consultations that went on.
As for the duplication of work by government departments and the law commissions, it seems entirely clear that the existing work by the departments will have the effect of speeding the review by the law commissions. It will be extremely helpful to the law commissions to have transparent access to the inner workings of the departments when they make these assessments.
The problem is that it is now very late. If we were working on normal time, it would now be 10 o’clock or so. At this point, with the Chamber fairly empty and the clock registering the normal weekday equivalent of 10 o’clock or quarter past, I feel with some regret that it would be inappropriate at this stage to divide the House.
I end by saying that I believe strongly that Parliament in general should be given every opportunity to examine in a timely way repeals proposed by the Executive. I regret that on this occasion it will not be possible. Having said that, I beg leave to withdraw the amendment.
(10 years, 7 months ago)
Grand CommitteeMy Lords, I move Amendment 89 and shall speak briefly to Amendments 103 and 104. Amendment 89 deals with Clause 82 and Schedule 20.
Clause 82 is very short. It contains 17 words. It asserts that the laws listed in Schedule 20 are no longer of any practical use and it repeals or amends them all. Schedule 20 is in 10 parts and runs to more than seven pages. It lists at least 84 pieces of primary legislation, seven of which are whole Acts, and eight pieces of secondary legislation. Those numbers will rise in a moment when the Minister moves Amendments 91 and 92, which, at this late stage in the Bill, add a further two pieces of secondary legislation and another three whole Acts to the list of repeals.
Schedule 20 and the Minister’s further additions today are a widely varied and miscellaneous collection. They range from apparently obvious candidates for repeal to deeply complicated amendments. It is probably not dangerous to repeal the 22 sections of the Town Police Clauses Act 1847, creating as it does offences to do with every person who rolls or carries a cask, every person who beats or shakes any carpet, every person who keeps a pigsty and even—the politician’s favourite—every person who flies a kite.
However, most of the provisions in Schedule 20 are not like that. They are repeals of complicated sections of Acts or of whole Acts themselves. There is even one Schedule 20 provision to be repealed which seems not to be “not any longer of practical use”. That is paragraph 40, which repeals Section 13 of the Defamation Act 1996, which allows an individual litigant in defamation cases to waive the ban in Article 9 of the Bill of Rights on proceedings in Parliament being impeached or questioned in court.
That section of the Defamation Act has been much discussed by your Lordships and the Commons, and I support its removal. However, this section is still of practical use. We are removing it because we think that it is wrong, not because it is useless. It may be in the wrong place in the Bill.
In its report, the Joint Committee recommended that items in what was then Schedule 16 be referred to the Law Commissions for confirmation that they are in fact no longer of practical use. We did that because we felt that:
“The skills, research and consultation needed to ensure that Parliament, external organisations and the public can be satisfied that a piece of legislation is genuinely obsolete strongly suggest that the Law Commissions are better placed to conduct that work than Government departments. Added to which, the independence of the Law Commissions from Government and their track record since 1965 reinforce the trust that Parliament places in the … Law Commission Bills including SLR Bills”.
The point here is this. Whom do we trust to certify that Acts or parts of Acts are genuinely no longer of any practical use? Should it be the department’s assessment agreed by a Minister, or should it be by an independent body, such as the Law Commission, to ensure thoroughness of inquiry and absence of any suspicion of political bias? Or should it be Parliament itself? Parliament has not thought so, for good reason. To examine in exhaustive detail the possible consequences of repeals would overwhelm Parliament and would reintroduce the possibility of suspicion of political motivation. That is why Parliament delegated the job to the Law Commissions and why it approved an accelerated procedure for Law Commission Bills.
In the present case, as this Bill passed through the Commons, there was no real discussion of Schedule 16, which is now Schedule 20. So the question resolves itself into this: is it better to accept, without evidence or supporting argument and without substantive discussion, the Government’s assertion that the items in Schedule 20 are really no longer of any practical use or is it better to let the uniquely qualified and independent Law Commission certify that for us? The Joint Committee thought that the second option was better but the Government did not agree. In their response to the Joint Committee’s report, they made three points.
First, they noted that Governments frequently repeal legislation. However, they do not say how frequently this extends to the en-bloc repeal of over 90 items of legislation. Secondly, they disagree on whether departments have the expertise to determine whether legislation is obsolete or to know the importance of accuracy and giving consideration to saving transitional or consequential provisions. Here, they are pleading not guilty to something that they have not been accused of. The Joint Committee simply noted that the Law Commission was better qualified for this task than the departments are. The Government also make no mention in their response of the importance of having independent judgment, free from the possibility of the suspicion of political bias. Thirdly, they agree that some of the provisions in the then Schedule 16 are the type of repeal candidates that can be referred to the Law Commissions. They do not say which or how many.
When the Joint Committee heard evidence from the Law Commission, we were impressed not only by its obvious independence and professionalism but by its willingness to take on more work. We were also struck by the fact that in its last trawl of government departments for suggestions for repeal to be included in the forthcoming SLR Bill, none of the items now in Schedule 20 was put forward. When we asked the Government why this was so, they gave two reasons. In his letter to the committee of 5 November 2013, Mr Clarke noted that the Law Commission generally brings forward an SLR Bill every four years, with the last being in 2012 and the next in 2016. However, as departments have been asked to implement Red Tape Challenge measures in this Parliament, he went on to say that there are a number of such measures in Schedule 20. He did not say which.
Mr Clarke also told us that the existence of legislation that is no longer of practical use had come to light in the course of mainstream departmental work and that the Bill provides the Government with an appropriate legislative vehicle to repeal it and rationalise the statute book. Neither of those points quite answers the question of why none of the Schedule 20 items was referred to the Law Commission when it asked in June 2011 for proposals for repeal.
The Law Commission has also received no suggestions for repeal at all from the Red Tape Challenge people, the Better Regulation Executive. All this raises another question: “What’s the rush?”. Why cannot the Schedule 20 items be left to the independent review of the Law Commissions to decide whether they really are obsolete or not? The Joint Committee asked the Law Commission how long it would take for it to review the legislation in Schedule 20. The answer was that it would probably take between four and 12 months. What is the problem with waiting that long? In previous Committee sessions the noble Lord, Lord Deben, whom I am sorry not to see in his place, and other noble Lords have wondered whether parts of the Bill are there simply so that the Government can say that they have repealed so many pieces of allegedly burdensome legislation, and that this can be a big number.
The situation that we find ourselves in is this. The Government are proposing the wholesale repeal of at least 84 pieces of primary legislation and seven pieces of secondary legislation. If the Bill passes as it stands, this legislation will be repealed without any real examination by Parliament or any examination at all by the Law Commissions. The Government assert that the departments are qualified to make a proper assessment of whether the candidates for appraisal are obsolete. This is an unevidenced assertion but, even if true, it does not mean that they are best qualified. We have heard nothing to suggest that the departments’ assessments are as deep, as consultative or as rigorous as the assessments made by the Law Commissions.
Of course, any departmental assessment approved by a Minister leaves the whole process open to the suspicion of political bias. This is not an independent assessment process; by contrast, assessment by the Law Commission is exactly that. It is independent of government and it has a statutory duty to apply the three tests of external expertise, impartiality and independence in its SLR function. How does a departmental and ministerial review pass these three tests?
Furthermore, the process of assessment and review by the Law Commission is extremely rigorous. It involves research and consultation, and it finishes in a report and a draft Bill. The research phase tests each repeal candidate—there may well be more than a hundred in any repeals project, although there are fewer than that in Schedule 20—to check whether any of it is of any practical utility. This includes checking parliamentary records, including the original debates, examining other public records and studying a range of legal and historical works to provide context and background information. The research is then written up and issued as a consultation paper to people in central and local government, in industry and elsewhere. This consultation typically goes on for up to three months, dealing with inquiries and responses. After the consultation, the report and draft Bill are produced. This is all very rigorous and very thorough, as it must be if we are to be certain that legislation is really no longer of any practical use.
However, this raises a question about departmental assessments. Can the Minister say whether the departments followed the same process? Was there consultation and, if so, with whom? Are there written reports for the proposed repeal candidates? If so, can we see them before Report? On the one hand, we have the Government’s unevidenced assertion that it is safe to repeal the legislation in Schedule 20; on the other hand, we have the Joint Committee’s recommendation that these items be referred for rigorous, impartial and independent review to the Law Commission for certification that it is safe to repeal them. We know that it would take the commission only between four and 12 months to do this. So, again, why the rush? Why not give these pieces of legislation the kind of scrutiny Parliament set up the Law Commission to provide? The Joint Committee thought there was a strong case for doing exactly that.
Amendment 89 proposes exactly what the Joint Committee recommended. Amendment 103 accepts the repeal of Section 13 of the Defamation Act 1996 by exempting it from the provisions of Amendment 89. Amendment 104 makes Clause 82 and Schedule 20 come into force in accordance with the provisions of Amendment 89. I beg to move.
I am grateful to all noble Lords who have spoken and to the Minister for his reply, apart from his reply to my noble friend Lord Skelmersdale in the last sentence. It is the case, despite the Minister’s assertions, that the items in Schedule 20 have not really been subject to scrutiny in any meaningful sense. I agree, of course, that we have now taken up more than three minutes of parliamentary time by discussing the items in Schedule 20, but we have not actually discussed or examined the items themselves in any detail. What we have discussed is whether they should be there in the first place, which is of course not the same thing.
The argument that interested parties essentially would have complained if they had found any faults—a kind of way of saying “The dog did not bark, so clearly these are okay”—makes me wonder, in a way, why we need any kind of parliamentary scrutiny or scrutiny by the Law Commission at all. We could just say “The dog has barked” or not and carry on that way. I do not think that that would work. On waiting for interested dogs—or interested parties—to bark there are, of course, interested parties but the difference between them and the Law Commission is that the Law Commission is precisely not an interested party.
In closing, there are some questions that the Minister did not answer. Perhaps I could persuade him to write to me, in particular about departmental processes, which are at the heart of the matter, the processes that these proposals have gone through and how those processes in fact impact with the processes that the Law Commission itself would use. It would be very helpful to know how those compared.
The real question, however, and I do not think that the Minister touched on this at all, is one that I asked twice, which is: “Why the rush?”. I do not understand why we have to rush this when we know that the Law Commissions could do this in between four and 12 months.
I am grateful to my noble friend for giving way. First, the amendment does not make any requirement on the Law Commissions to do this, so there is no guarantee that it will be done within the next six to 12 months. Secondly, these are matters which have been out in the public domain since the summer of 2013. By the time that this Bill proceeds to Royal Assent, it will be the best part of 18 months, if not longer. I do not consider that a rush.
To answer my noble and learned friend’s first point, I will certainly alter the amendment to make sure that the Law Commissions are required to do it in the appropriate time, and I am grateful for that advice. I do not propose to go any further on the issue of rush because I do not think that our minds are meeting on this. I meant the rush to do it without certification, not just getting it done. That seems to me the heart of the matter. Given that we are in Grand Committee, I beg leave to withdraw and may return to this at a later stage.
(10 years, 8 months ago)
Lords ChamberMy Lords, as the noble Lord, Lord Rooker, said, the Joint Committee on the draft Bill, of which I was a member, received a large amount of evidence on this clause. The effect of Clause 2 is to amend the Equality Act 2010 to remove the power of employment tribunals to make recommendations to employers in cases where there has been a finding of unlawful discrimination, harassment or victimisation, and where the successful claimant no longer works for the company.
In such cases, the claimant has redress. His former fellow workers may still be stuck with the conditions that led to the discrimination, harassment or victimisation of their former colleague, and that is in most cases. In 2013, only 16% of claimants in discrimination cases were still working for the employers against whom they made the claim. That means that in 84% of discrimination cases, the tribunal would no longer have the power to make recommendations to employers to take steps to improve their employment practices so as to avoid similar discrimination against their other employees.
Broadly speaking, evidence from business interests supported the clause and other groups opposed it. Business spoke in support of Clause 2, chiefly because it believed the wider recommendations to be beyond the information and expertise of the panel or that it was unnecessary because,
“the reputational risk of a wider recommendation is something an employer would take into account when making a decision whether or not to settle out of court”,
which is slightly grubby reasoning. Those who opposed the clause did so chiefly on the grounds that the system had been in operation for too short a time to provide any clear evidence about its merit or otherwise. The JCHR was opposed to the clause as was, perhaps not surprisingly, the EHRC.
At the time of our report, as the noble Lord, Lord Rooker, said, there have been 28 such tribunal wider recommendations and I understand that in 2013 there was a total of 30. That may seem like a small number in absolute terms, but it represents one in every 12 cases in 2013 where these kinds of recommendations were made.
In their response to the Joint Committee’s report on Clause 2, the Government held to the view that the clause should remain and they disagreed that the removal of the tribunal’s power of recommendations was either unnecessary or punitive. The arguments that they advanced were first that there was a clear pattern visible in the existing recommendations; namely that they focused on training for management or updating the diversity policy, which is hardly a surprise. They asserted in a magnificently unproven and probably unprovable way that it is unlikely that this pattern will change going forward or that much more could be learnt about the use of the power by reviewing it and allowing it to run on for several more years. That is of course simply a non-evidenced assertion. More importantly, there is no evidence that it can be true. The sample is simply too small.
The Government’s second argument was based, as the noble Lord, Lord Rooker, pointed out, on a survey of employers—all 28, presumably, who then received wider recommendations because of breaking the law. Only eight responded. Six of these were from the private sector and all six had implemented the wider recommendations with an average cost of £2,000. The Government were silent about the two public sector respondents. I am at a loss to understand why the Government think that this is an argument in favour of removing the power to make wider recommendations. The response level is so low that it probably proves nothing at all, but if it proves anything then surely it shows the merit of these recommendations. It shows why the power to make them should be retained.
The Minister and his team have been helpful in providing additional briefing on the clauses that we will debate today as a Committee of the whole House. It included briefing on Clause 2 and I thank the Minister and his team for that. In a briefing note on the clause, the Government make four points in defence of the removal of the power to make wider recommendations. First, there are better and less burdensome ways to achieve the aim of helping employers comply with anti-discrimination. The response points to government-led workshops although it does not say how many and says that these workshops generated positive feedback from small business owners to the simple compliance message of “Do not discriminate”. That is not hard evidence, and not really evidence of any kind. How many workshops were there? How many small businesses? What positive feedback was there on agreement with the message that you should not discriminate? What follow-up was there to see if the workshops produced behavioural change?
The Government also point to the fact, which I have noted already, that employers think that the power is not needed. That is surely not a surprise to anyone. Nor does it amount on its own to a reason for abolition.
The Government’s third argument in defence of Clause 2 is essentially that the power added little and was not necessary. They go on to repeat that the cost of compliance with wider recommendations averaged £2,000. Presumably this is based on the six companies that actually replied to the Government. If that argues for anything at all, it is for retaining the power, if that is all it costs to put right discriminatory practices in a company.
Finally, the Government point out that any wider recommendations are unenforceable under the 2010 Act and are therefore of limited effect. In their briefing paper, the Government go on to say about the removal of the power to make wider recommendations that it will not stop tribunals from making observations in their judgments about how an employer might improve their practice to avoid breaching the Equality Act in the future. In other words, removing Clause 2 means that tribunals will not be able to make unenforceable recommendations any longer, but they will still be able to make unenforceable observations with exactly the same effect. Let me be clear about this: we are debating the removal of a power to make unenforceable recommendations and leaving in place the power to make exactly the same comments as unenforceable observations. This really does not seem to be sensible or a sensible use of legislative time.
The power to make wider recommendations is in its infancy. There is no evidence that it causes harm. In fact, there is no evidence either way because it is much too soon for that. There is no evidence to suggest that abolition is needed, appropriate or necessary. As the TUC said in giving evidence to the Joint Committee, it seems ridiculous to get rid of a piece of legislation that affects only employers who have broken the law. This is not sweeping through a whole swathe of businesses that are doing the right thing. Where businesses have broken the law, they quite often find it useful to have the tribunal help them get things right. But what seems even more ridiculous is that by the Government’s own admission, the removal of the power to make wider unenforceable recommendations will leave intact the power to make exactly the same recommendations as observations. There really is no need for this clause.
My Lords, much of the discussion on health and safety has been around the issues of believed or real overregulation. I have already committed myself to the view that there is a great deal of overregulation which it is right to stop and that there is too much regulation which has caused real and proper anger. However, the Government have to be careful, when it comes to deregulation, not to fall into the same trap; in other words, for the deregulation efforts to look like an additional activity, as if to say, “Let us see how many things we can claim we have got rid of”. I must say, very delicately, that that is what this looks like.
Before my noble friend Lord Sharkey made his point, I was going to put it in the form of a question. I was going to ask what sanctions there are against a tribunal that decides that, irrespective of the fact that it does not have the power to do so, it is going to make a comment. I suspect that there are no such sanctions, which means that the tribunal can in fact say what it can say under this power that is being removed. It might be argued, when the power was originally put forward three years ago, that it would have been sensible to have had some kind of recall procedure to make sure that when the recommendations had been made, someone would listen to them. That might have been argued, but it was not.
It seems that we have here a power that is merely a statement of what is a power in any case. It is not onerous. So we are spending time removing a power that exists, whether you have it or not. Even so, it has a purpose, which is that tribunals ought to think through not just the case in front of them, but how the case fits into a pattern of behaviour or a way in which a particular company appears to approach certain things. It does not do any harm to say to the company, “Look, you’re guilty in this case but don’t you think it would be more sensible if you had somebody in charge of this, or if you recognised that in that particular factory in that particular place this was likely to occur?”. You can imagine the sorts of points that might reasonably be made by a reasonable tribunal.
If I may say so, this is so unimportant a change that if it is pushed to a Division, I shall be happy to support the Government on the basis that it does not mean anything. But I ought to say to the Government that it is not sensible to bring forward this proposal in these circumstances merely to add one to the number of deregulation activities that have taken place. I say that to my noble friend because I believe in deregulation and want to get rid of a whole lot of stuff that is not necessary and is telling people how to lead their lives, which they can do perfectly well themselves. But let us not bring that into disrepute by having the kind of discussion that we are, unnecessarily, having today and which I have, no doubt unnecessarily, prolonged.
(10 years, 8 months ago)
Lords Chamber
To ask Her Majesty’s Government what is their assessment of the main implications of the Scottish referendum for the rest of the United Kingdom.
My Lords, I am pleased that people in Scotland have decided to stay in the United Kingdom. A process and timetable have been announced to deliver the commitments on further devolution to Scotland made by the three pro-UK parties; further powers are being devolved to Wales; work continues to ensure that the devolved institutions in Northern Ireland function effectively; and a committee has been established to consider governance arrangements for England.
Can the Minister confirm, preferably by just saying “yes”, that further Scottish devolution will not be linked to the question of English votes for English laws? Can he confirm that a constitutional convention will be considered by the Cabinet committee he mentioned, looking into possible solutions to the West Lothian question?
My Lords, a constitutional convention is one of the many ideas that clearly will be discussed. We need to take these things as fast as possible but not in a hurried way. It is a very difficult balance. I can assure my noble friend that the transfer of powers to Scotland will not be held to ransom by any particular reservations.
(10 years, 11 months ago)
Lords ChamberMy Lords, I, too, had the privilege of being a member of the Joint Committee that scrutinised the Bill in draft form. As it turns out, it was very much in draft form. As many noble Lords have said, the Bill is significantly different from the draft Bill. It is inevitable that such a Christmas tree of a Bill will grow as it progresses, but that fact raises significant questions about the role of pre-legislative scrutiny.
When the draft Bill came to us, it was 240 pages long. It was described by Ken Clarke as,
“a slight mountain of a Bill”.
It covered 10 ministerial departments and four agencies. It made changes to more than 70 underlying Acts. Some of these Acts made changes to previous Acts. The committee was given 12 weeks to scrutinise all this. We thought this was inadequate, and we said so. We would have pressed the point more strongly had we known that the Bill was to be carried over. We found this out only when Oliver Letwin, in evidence to us, mentioned it in passing. This seems entirely unsatisfactory. Perhaps when the Minister replies he could commit to a more open discussion with pre-legislative scrutiny committees in future on the question of the time necessary for thorough scrutiny. As it was, with this Bill we had no choice but to restrict ourselves to certain areas and to leave others entirely unscrutinised.
I also ask the Minister to think about helping the process of scrutiny in another way. In a complex Bill such as this, it would help greatly for references to underlying legislation to be given a hypertext link. That is a lot easier than having 70 other Bills open before you. It would have helped your Lordships’ House to have those hyperlinks in the text of the Bill. Could I trust the Minister to commit to doing that well before Committee, which I understand will start after Recess?
As the noble Lord, Lord Rooker, has mentioned, the original draft of the Bill proposed giving Henry VIII powers to disapply legislation. The Joint Committee recommended that these powers be removed. I am very glad that the Government have agreed to do that. In the course of our inquiry into these and similar proposals in the Bill, however, it seemed to us that, as the noble Lord, Lord Rooker, has also said, there was an unhelpful tension between the Government and the Law Commission. The draft Bill contains a schedule containing legislation to be disapplied by order. The Government removed the order power but retained the schedule. It is now Schedule 20 to the Bill. This schedule repeals parts of 28 separate Acts. These range from the Nuclear Industry (Finance) Act 1977 through the Breeding of Dogs Act 1973 to the Town Police Clauses Act 1847. Clause 82, which asserts that all this legislation is no longer of any practical use, will repeal about 119 clauses. Some of these clauses are whole Acts themselves.
Does anyone seriously believe that Parliament will subject these 119 clauses to close scrutiny—or, indeed, any scrutiny at all—as the Bill passes through its stages? The Joint Committee’s report found that the Law Commission was better placed to give detailed scrutiny to this kind of allegedly obsolete statute. We stated:
“The skills, research and consultation needed to ensure that Parliament, external organisations and the public can be satisfied that a piece of legislation is genuinely obsolete strongly suggest that the Law Commissions are better placed to conduct that work than Government departments. Added to which, the independence of the Law Commissions from Government and their track record since 1965 reinforce the trust that Parliament places in the Law Commissions”.
This is a key point. Whom should we trust to say that legislation is obsolete and may be safely repealed—government departments or the Law Commission? I am in no doubt that the answer should be the Law Commissions. We recommended that Schedule 20 items be referred to the Law Commission for a safety check. We acknowledged that, to meet the growing demand, the Law Commission would need additional resource. We also agreed with the Law Commission’s own proposals for more frequent and responsive SLR Bills. We recommended that the Government consider making such Bills annual, as my noble friend Lord Naseby said.
The Government did not sound very enthusiastic about any of this in their response. They disagreed with our recommendation to give more resource to the Law Commissions—and did not give a convincing reason why—and so the mass repeal proposed in Clause 81 and Schedule 20 remains part of the Bill. I suspect that we will discuss that further as the Bill progresses. The case for subjecting all those proposed repeals to the Law Commission for a safety check remains very strong, as does the case for an annual SLR Bill.
However, there are other controversial matters in the Bill; I will point to just some of those that were investigated by the Joint Committee. We were concerned about the level of consultation undertaken by the Government in preparation for this very complex and wide-ranging Bill. The original Bill had 61 relevant clauses in it, excluding recitations, titles and so on. Only 10 of those clauses were subject to formal consultation, a further 18 had had some kind of consultation under the Red Tape Challenge scheme, and the rest had no formal consultation at all. That raised two questions: was that an appropriate level of consultation, and was it appropriate to rely on the Red Tape Challenge as a means of consultation?
The Joint Committee concluded that in some cases consultation had been insufficient. We were also alarmed by Oliver Letwin’s assertion that pre-legislative scrutiny was part of the Government’s consultation process. It is not. The Government should not rely—as they apparently were—on Parliament to consult on their behalf, but should undertake proper consultation themselves. I wonder whether inclusion in the Red Tape Challenge amounts to proper consultation. It is not clear that it should, and I would be interested to hear the Minister speak to the robustness of the Red Tape Challenge process. In the event, the Government agreed to remove certain clauses pending further consultation and, in particular, to consult further—which is important—on the authorisation of insolvency practitioners.
The committee welcomed the Government’s reasons, when it came to it, for proposing a duty on regulators to have regard in broad terms to “economic growth”. We discussed at some length with our witnesses and among ourselves the question of measuring or judging the success of that requirement. That was an important consideration; we need to be able to assess the effect of any piece of legislation. However, we acknowledged that with the growth objective, that would be difficult. We understood the difficulties involved in attempts to quantify. Nevertheless, we thought that the Government should consider by what criteria the impact of the duty could be demonstrated, and welcomed the Minister’s commitment to reflect further. I am not sure that the further reflection—if that is what it was—in the Government’s response to our report was terribly helpful. It was all rather vague and woolly. That is an important and unresolved issue, to which I expect to return at a later stage.
Also unresolved is the consequence of the application of the growth duty to the EHRC. The commission spoke to us about the,
“intrinsic incompatibility between the growth duty and the duty to promote and protect human rights”.
That incompatibility would risk the “A” status of the commission and the British candidacy on the UN Human Rights Council. The JCHR agreed with this assessment. In their response to our report the Government recognised the need to avoid jeopardising the international standing of the EHRC. They said that they would consider this issue further with the EHRC before finalising the list of regulators to whom the growth duty will apply. In the helpful draft guidance notes I received from the Minister this morning, there was no list and no mention of the issue in the covering letter. Can the Minister tell the House what progress is being made in discussion of whether that growth duty will apply to the EHRC?
There are also some other committee recommendations where the Government response seems to require further discussion. I refer in particular to Clause 2, which removes the employment tribunal’s power to make wider recommendations, to Clause 43, which deals with household waste decriminalisation, and to Clause 70, which deals with gangmasters. I am sure that the list of clauses your Lordships will want to discuss in detail will be much longer than that, and I look forward to those discussions.
The purpose of the Bill is a very good one. It is a very welcome Bill and contains good things. The provisions for apprenticeships and their funding in Clauses 3, 4 and 5 are especially welcome, as is the whole part on “Alcohol and entertainment”. This grew from one rather lonely clause in the draft Bill on the exhibition of films in community premises to the larger-scale liberalisation for local community events.
That part also contains, in Clauses 59 and 60, provisions for review of the penalties for non-payment of the BBC licence fee and powers to decriminalise such non-payment. I welcome the opportunity that gives us to discuss how to balance protection of the BBC’s revenue with the importance of not sending people to prison for non-payment of the licence fee. However, I would have welcomed it even more had we been discussing this in the context of charter renewal.
Finally, I thank the noble Lord, Lord Rooker, for his outstanding chairmanship of our Joint Committee. I would like to thank our truly excellent clerks, Christine Salmon Percival and Geraldine Alexander, for their invaluable work.