Commencement Orders

Lord Gardiner of Kimble Excerpts

Thursday 7th November 2013 Grand Committee

[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.

[Lord Skelmersdale]

I did.

[Lord Gardiner of Kimble]

The work of the Law Commission is extremely valuable. It undertakes periodic reviews of particular areas of legislation and does the detailed preparatory work on what we know as Statute Law (Repeals) Bills. These are valuable, if somewhat unsung, exercises which help to tidy up the statute book, by repealing unnecessary and uncommenced legislation. Noble Lords may recall one such Act, the Statute Law (Repeals) Act 2013, which received Royal Assent recently.

I hope, but I am not sure, that all noble Lords are aware of the good law project that is currently being led by the Cabinet Office, in particular by the Office of the Parliamentary Counsel. It is designed to improve the quality of legislation by identifying ways to further improve its drafting and reduce complexity. I entirely agree with the noble Baroness: I have looked at some legislation and found it extremely difficult to understand. To reduce that complexity and make the law more accessible must be a good principle to hold. Among other things, the project is also considering how the law in both printed and digital form can be made more easily understood; for example, it may be possible to examine how information about whether provisions are in force is presented to online users of legislation. Although I am very conscious that many do not use online facilities, I think it is increasingly the case that many do. We should try to facilitate that.

I should have said at the outset that all suggestions from your Lordships are welcome in this project. This is a project of good will and it is in good faith that many of the points that your Lordships made today are understood. We need to find a resolution to how we can best ensure the quality to which my noble friend Lord Cormack referred. The quality of the statute book is important to us all, because we are its creators. If we are not happy with our work, we have not done particularly good work.

This has been an illuminating debate and briefing, and seeking to answer it has certainly been illuminating for me. I believe that your Lordships and my noble friend are right to hold the Government to account to maintain the statute book properly and uphold good legislative practice. I have mentioned post-legislative scrutiny, and I believe that pre-legislative scrutiny is a desirable thing as well. I expect that it is the case that all Governments have had moments—I freely admit it—when pre-legislative scrutiny would have been extremely desirable. I suspect that it is a note of caution to all Governments that pre-legislative scrutiny is a sound thing to do.

I have taken on all the comments made by your Lordships. I freely admit that it is daunting to be up before your Lordships’ great experience, but my role is to pass on the comments that have been made today. I will make sure that the good law project officials have a copy of Hansard, so that all the points that have been made can be reinforced. They are all good points, and they are all soundly based. I am grateful to all of your Lordships.