Commencement Orders

Lord Cormack Excerpts

Thursday 7th November 2013 Grand Committee

[Lord Cormack (Con)]

My Lords, it is both a pleasure and an honour to follow my two noble friends. My noble friend Lord Norton of Louth has performed many signal services to our parliamentary democracy in this country and his introducing this subject today with such concise and crisp logic was but another example of the services that he has rendered. Of course, my noble friend Lord Brooke of Sutton Mandeville has also been a marvellous public servant who has done so much to enhance the reputation of Parliament, which is more than can be said for many Ministers over the time that he served.

I was provoked into taking part in this debate by my noble friend Lord Norton of Louth and I was delighted to respond to that provocation. We devote an enormous amount of time in the two Houses to debating legislation. Frequently, the cry goes up from your Lordships’ House that ill digested, ill considered legislation has been placed before us, whole chunks of which have never been debated, or have been debated only very briefly, in the House of Commons. That is bad enough.

Another thing that we complain about, as I did on many occasions in another place, is the number of Henry VIII clauses, as they are called, which give almost untrammelled powers to Ministers to do things within the general purview and ambit of the Act. I deplore both those things. Of course, when we are then brought up sharp by the noble Lord, Lord Norton, as we were by the commission that he chaired all those years ago, and have it pointed out to us that many of the Acts over which we slave and to which we devote many parliamentary hours, either never come into force at all or whole chunks of them never come into force, we face what is no less than a parliamentary scandal. It is incumbent on us to address this subject at last with some vigorous action.

I entirely endorse the clinching recommendation based on the Marquess of Salisbury’s Private Member’s Bill, but I would go further than that and make one or two suggestions to your Lordships this afternoon. No Bill or Act should be introduced or passed by Parliament unless it is the specific and stated intention of the Government of the day to bring it into force within the lifetime of the Parliament in which it is passed. If any law passed by Parliament has not been brought into force by the end of that Parliament, it should disappear from the statute books. That is a sharpening- up of what I would call the Salisbury/Norton recommendation and something that the Government should take exceptionally seriously.

I am also a great believer in the efficacy of Joint Committees of both Houses and I think that there should be a Joint Committee of both Houses on commencement orders. We talk often about the necessity for pre-legislative scrutiny; we talk about the desirability of post-legislative scrutiny; but we have not, as far as I remember, talked in any detail on the Floor of either Chamber in the 43 years that I have been here about commencement orders. If we had a Joint Committee of both Houses, which had as its remit the constant examination of this subject, surely it could only sharpen the minds of Ministers and make them consider: is this law truly necessary?

We pass far too many laws in this country. The extent to which the statute books have been increased during the time I have been a Member of one House or another is, frankly, horrifying. We should be concentrating our minds on trying to improve the quality of legislation, and the first question before introducing any Bill in either House should be: is this necessary and will it improve things? If the answer to both those questions is in the affirmative, it is indeed incumbent on those who have the ultimate control to ensure that the law in question comes into force.

At the root of all this is the whole question of the balance between the legislature and the Executive. I am often minded to quote Dunning’s famous Motion in 1780 that,

“the power of the Crown has increased, is increasing and ought to be diminished”,

and apply it to the present moment—whether it is a Government of my party, a coalition Government or a Government of the noble Baroness’s party—and say that the power of the Executive has increased, is increasing and ought to be diminished. One way we could diminish that is to ensure that ministerial minds are more concentrated on the need for the legislation that they place before us.

When he was talking about the report produced by the commission of which he was such a distinguished chairman, my noble friend Lord Norton said that our right honourable friend William Hague, who was then the leader of the party, defined it as being a road map. Being Foreign Secretary, Mr Hague knows all about maps now, and I hope that the present leadership of the Government will recognise that this was indeed a road map and that it is about time that it was looked at again and that its suggestions or refinements, such as I have put before your Lordships this afternoon, are thought about seriously and, much more importantly, implemented.

--- Later in debate ---

[Lord Gardiner of Kimble (Con)]

My Lords, first, I congratulate my noble friend on securing this debate. I am particularly conscious of his long-standing interest in this issue and his experience in matters of constitutional law and practice. I am aware of the work he undertook for the commission for the Conservative Party. If I may say so, I was conscious that, should we achieve government, we should adhere to many aspects of that piece of work.

I also remark on the long and formidable experience of the noble Baroness, Lady Royall, and my noble friends Lord Brooke of Sutton Mandeville, Lord Cormack and Lord Skelmersdale. It is a daunting prospect to reply when your Lordships have the experience that you all have, but I am glad your Lordships were all, if I may use the word, provoked to speak in this debate. I hope that it is helpful to set out the Government’s current policy and practice on the use of commencement orders.

The Government undoubtedly have responsibility for the maintenance of the statute book. I agree with noble Lords that it is not in principle desirable for there to be parts of enacted legislation on the statute book which remain uncommenced for long periods. In briefing myself on the debate, I became aware of the Easter Act—I must say that I was not before—which is of very long standing. I agree with the noble Baroness that that would undoubtedly cause confusion, indeed, probably bewilderment, among the public if they were to hear about that.

Again from study, I am conscious of the amount of legislation. I should say that in a different life, I have been a strong supporter of less legislation rather than more, and of higher quality legislation. My noble friend Lord Cormack was rightly strong on that point. Given the amount of legislation we have, actually a very small proportion of it is not brought into force within, at most, two to three years of it being passed, although I in no way downgrade the point made by my noble friend Lord Norton.

It has been a long-standing practice of all Governments to treat commencement of legislation on a case-by-case basis. Noble Lords will have seen a wide range of provisions relating to the commencement of legislation in their scrutiny of Bills. That reflects the fact that it is usually necessary to provide a certain amount of notice to those affected by the legislation before it takes effect and that the notice period required will depend on the nature and complexity of the Act concerned. I understand my noble friend Lord Cormack’s proposal about the end of a Parliament. The problem would be that in the last part of the Parliament, it would be particularly difficult to transact any sort of legislative programme.

[Lord Cormack]

That is very good.

[Lord Gardiner of Kimble]

That might bear out some of my earlier comments, but I believe that the truth is that all Governments seek to have legislation that is in the public interest, so there is a problem with my noble friend’s proposal, albeit that it is well meaning.

Sometimes, where legislation is relatively limited in effect or otherwise straightforward, it is possible for that notice period to be stated in the Act. A two-month period is often regarded as the minimum, but sometimes it may be appropriate for Acts to take effect immediately. Commencement orders are used to provide the Government with a degree of flexibility in the timing of implementation; I think that my noble friend Lord Norton agreed with that. That may be necessary to allow time for the establishment of new organisations, for industry to adjust to any new regulatory requirements or for consultation on the detail of implementation, which is often undertaken via secondary legislation—I am conscious of what my noble friend Lord Skelmersdale said about statutory instruments. Sometimes, a commencement order may be required to commence different parts of an Act on different days or for the Act to apply first in specific areas or to specific people or situations. It is also sensible for Ministers to retain the ability to ensure that everyone is fully prepared for implementation before legislation is brought into force.

It would perhaps be unduly restrictive or possibly counterproductive for Ministers to be held to an arbitrary time period fixed in the original legislation. This would not allow Ministers to take into account any changes in circumstance which might quite reasonably delay implementation. Conversely, it would not be wise to risk legislation being lost on account of a failure to agree the details of implementation by a specified time period. This is the potential consequence of certain sorts of sunset provision.

I accept entirely that in the vast majority of cases one should expect legislation to be fully brought into force within a year or two of Royal Assent. However, there may be exceptional circumstances in which it may not be possible to make progress within that timescale, but it is none the less desirable to keep open the possibility of implementation at a future date. However, that is not to say that sunset clauses should never be used; on the contrary, they may well be justified, but perhaps act to provide a degree of certainty to businesses that new regulations will not be introduced once a period of time has expired, or as a legislative backstop to be used if required.

I was particularly struck by the Electronic Communications Act 2000, which contained a statutory regulatory scheme that would be brought in if self-regulation by industry failed. The statutory scheme was subject to a five-year sunset clause if it was not needed. In the event, self-regulation worked and the provisions were accordingly repealed. I think that is a good example of what all of your Lordships are seeking. My point is that the desirability or otherwise of a sunset clause of this nature should be considered on its merits and on a case-by-case basis. In seeking to answer directly the question posed by my noble friend, I hope I will not shock your Lordships by saying that the Government do not have precise plans to reform the use of commencement orders. But if my noble friend is making the case that very careful consideration should be given to the use of commencement orders and to sunset clauses, I entirely agree and that is what the Government seek to do. I think it is, in good faith, what all Governments should seek and have sought to do.

I now turn to some of the additional ways in which the concerns expressed by your Lordships could be addressed. First, the Government believe that post-legislative scrutiny, which my noble friend Lord Cormack referred to, has a very important part to play in ensuring that the statute book is kept under review and up to date. For the benefit of Parliament and others, the Government publish a post-legislative assessment of every Act between three and five years after enactment. These assessments include an explanation for any provisions that have not been commenced. Indeed, your Lordships are already contributing to this scrutiny process. In the previous Session, the Select Committee on Adoption Legislation examined previous and forthcoming legislation on this subject. There are currently two committees of your Lordships’ House undertaking post-legislative scrutiny in respect of the Mental Capacity Act 2005 and the Inquiries Act 2005. Departmental Select Committees in the other place carry out similar inquiries from time to time, particularly in respect of Acts that have not been implemented fully or satisfactorily, so I believe that this scrutiny is entirely welcome.

Secondly, there is the work of the Law Commission—I am not sure whether my noble friend Lord Skelmersdale meant the Law Commission rather than the Law Society.