Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Debate between Baroness McIntosh of Pickering and Lord Beith

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

[Lord Beith (LD)]

This gives us an opportunity to look at whether the training is intended to embrace the increasing use of online and virtual court facilities. We cannot advance that cause in the context of the Bill, because it has been drafted to exclude some of the things that we all assumed were part of the modernisation programme. It would indeed be difficult to ensure that the training and deployment of judges meant that they were well equipped for these changes, because we do not know what the parliamentary underpinning would be, but this would be a useful moment for the Minister to indicate how far the well-declared and strongly supported plans that emerged from the Briggs and Leveson reports form part of the Government’s thinking on how judicial deployment and training should operate.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to raise a question, in the confines of this amendment, about training. I know that my noble and learned friend has explained on a previous occasion that the role of justice clerks is changing and that that is the purpose of this. What stage are we at with consulting the justice clerks? I understand, looking at paragraph 10 of the impact assessment, on page 5, that currently the most senior lawyers in Her Majesty’s Courts & Tribunals Service are indeed justice clerks. To what extent are they agreeable to these changes? I want to be assured that we will not find ourselves in a situation in the autumn where perhaps they do not entirely agree to what we are asking of them. At the same time, I wonder if there is an expectation that those undertaking this new role will travel further to courts, particularly magistrates’ courts, given that in rural areas there are so few of them. We have seen an increase in cancellations of trials and cases not being heard, where witnesses have found it difficult to travel to and reach the court on time.

European Union (Withdrawal) Bill

Debate between Baroness McIntosh of Pickering and Lord Beith

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

[Baroness McIntosh of Pickering]

The noble Lord has the advantage over me. I was not thinking so much of potato seeds but the fact that the Secretary of State has said that we are to have higher standards of animal hygiene, animal health and animal welfare, which I welcome. That follows on from the little debate we have just had. There will have to be physical checks. There cannot be checks managed by technology, in which case potatoes and their seeds could effectively fall within that category. So the noble Lord has actually made and developed that point very neatly for me.

In the context of Amendment 47, I urge the Minister to maintain Clause 8 in the Bill and to keep an open mind as regards potential membership of the European Economic Area or applying to join the European Free Trade Association.

[Lord Beith]

My Lords, notwithstanding the noble Baroness’s arguments, I want to address this group from a different standpoint: that of government Amendment 47A, which is to leave out Clause 8. It may be because I have a suspicious mind, but, while the removal of Clause 8 would be quite welcome to the Constitution Committee, which had considerable concerns about its breadth, I am worried that in removing it the Government have satisfied themselves that there is nothing they could do under Clause 8 that they could not do under Clause 17 and its broad powers. What is more, there are things which the Government can do under Clause 17 which they are prohibited from doing under Clause 8. When we come to Clause 17, we will perhaps have to look more carefully at it than has been done so far.

It would be helpful if the Minister could set out the Government’s argument for deleting Clause 8. I am quite sympathetic to that, even though I understand the standpoint from which the noble Baroness, Lady McIntosh, was arguing. But were we able to get the Government to move seriously in the direction of having a customs union-EEA, as our vote last week showed that the House wants to do, I am quite confident that ways could be found to do that with or without Clause 8. I would be only too glad to assist if that happens—but I am concerned about the reliance on Clause 17, which may lie behind the removal of Clause 8.

European Union (Withdrawal) Bill

Debate between Baroness McIntosh of Pickering and Lord Beith

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Beith]

My Lords, the amendments in this group all seek to address a long-standing problem with statutory instruments: that for the most part, they are incapable of amendment. That is not absolutely always so because, many years ago in the other place, I moved an amendment to a statutory instrument arising from the Census Act but few bits of primary legislation allow one to do that. This is not an occasion on which those of us who have long been concerned about that are trying to use this legislation to improve a long-standing defect. It is peculiarly relevant to what we are considering because major matters will be dealt with by way of statutory instrument—a theme throughout the debates in recent days—and they may well include things which ought to be susceptible to amendment, such as details about the creation of public bodies, their powers and remit. To take one example, and there will be others, there are the ways in which new bodies can be held to account when they are created to replace European bodies.

We would be left in a situation where it would be said in the House of Commons, “Take it or leave it—this is the only statutory instrument you’re going to get and we clearly need to address this issue, therefore you must accept it in this form”. I am afraid that in this House, it would be, “Take it or face unspecified constitutional consequences”. Either we agreed to the statutory instrument in its present form or did something we should really not be doing at all, according to members of the Executive. That is an absurd position to put this House in, when what would be at issue would be some fundamental defect in the way the statutory instrument sought to transpose existing European processes into the British domestic statute book. The Government have to address the plea that all these amendments raise: to have some way to do something which falls short of wanting to reject a statutory instrument but insists that if it is to go through, it must be amended in some way.

[Baroness McIntosh of Pickering]

My Lords, I shall speak to Amendment 247, which seeks to do precisely that. I am delighted to have secured the support of the noble Lords, Lord Wigley and Lord Dykes. I took great comfort from the words of my noble friend Lady Goldie earlier this evening when she said that the Government welcome scrutiny. I hope that she will not regret those remarks.

My starting point this evening was paragraph 215 of the report by the Select Committee on the Constitution, which states:

“We do not consider that it is appropriate for the Henry VIII powers in this Bill to be exercisable by the negative procedure, particularly as they might be used to make legislation of substantive policy significance”.


In Amendment 247, what I seek to do is precisely that: to enable a statutory instrument to be amendable.

While this may seem radical or even revolutionary, it is not as there is a precedent. To appeal to the noble Lord, Lord Lisvane, who I know likes some precedents but not others, the precedent here is the Civil Contingencies Act, which legislated precisely for statutory instruments to be amended. Under that Act, specific examples would be required. In my view, there should not be a blanket provision to amend but in the specific circumstances where a statutory instrument in relation to the Bill before the Committee legislates on what amounts to a substantive policy change, it should be open to both Houses to be able to amend the statutory instrument. That is the procedure that I have set out here, once again with the expert advice of the Public Bill Office. At Clauses 19 and 20 of the Civil Contingencies Act, there is a power to make emergency regulations if certain conditions are met. These orders stand unless negated or amended by Parliament, so the power to amend the statutory instrument does exist, although I accept it is not used very often.

Further, in Clause 29, the emergency regulations should be made by statutory instrument. Statutory instruments can be made by either negative or affirmative resolution of the Houses of Parliament. Whether negative or affirmative is set out in the regulations, which will already have been agreed by Parliament, and committed and put into operation by the Government, unless later rejected or amended by Parliament within the seven-day period set down in that clause.

I am sure that my noble friend, in summing up the debate on this small group of amendments, will say that it is not appropriate to amend statutory instruments in these circumstances. I put it to your Lordships in Committee this evening that in those very specific circumstances where the Government seek to make and propose a substantive policy change by way of statutory instrument rather than by an Act of Parliament, that is simply not appropriate and outwith the actual remit of the Bill before us this evening. I therefore hope that Amendment 247 will find favour with the Committee this evening.