Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Judge Excerpts

Report stage (Hansard): House of Lords
Tuesday 18th June 2019 Lords Chamber

Moved by

[Lord Judge]

1: Clause 1, page 1, line 8, at end insert—
“( ) The front page of the Census Form must state, “Completing the census is compulsory and you are liable to be fined if you fail to do so. There are three questions marked “This question is voluntary” and you do not commit any offence if you do not answer any of these questions.”( ) Within the Census Form each of the questions relating to religion, sexual orientation and gender identity must be headed “VOLUNTARY: This question is voluntary”.”

[Lord Judge (CB)]

My Lords, I see many people are leaving. This is not riveting stuff so I do not recommend that your Lordships all stay.

In Committee in June I moved an amendment to the Bill that is rather difficult to follow unless you have the original 1920 Act before you, and I shall not bother the House with it. In summary, it required that there be an express provision in the Bill that if you elected not to answer questions to do with sexual orientation or gender, you would suffer no penalty. My amendment wanted to make it express that that would be no offence. We had a very interesting argument, to which I listened. I was told that the Commons had rejected such an amendment when it was considering the same provision in relation to religion in 2000, and that it would certainly complicate proceedings if the problem were dealt with in one way in relation to religion but differently in relation to sexual orientation and so on. I understood. Actually, there should have been a Bill covering the whole proceedings.

Then I was told that it might put us in England and Wales out of step with Scotland, then I understood that it worked perfectly well and then I was told that I was wrong as a matter of law. I did not agree that I was wrong as a matter of law, but the Minister had rather a powerful weapon up his sleeve: he asked me in a conversation after the Committee had concluded its discussions whether I would have a word with the noble and learned Lord, Lord Mackay. Everyone in this House knows that the noble and learned Lord is the oracle. When the noble Lord, Lord Young, suggested I speak to him, I thought, “Well, that’s the oracle”. What the noble Lord did not know, and there is no reason he should, is that the noble and learned Lord is also the Lord Chancellor who appointed me as a judge, so this was a real double whammy.

So of course I spoke to the noble and learned Lord, Lord Mackay. We had a conversation and we did not agree. I saw the force of what he was saying and he understood the point I was making, but our discussion revealed that we are doing a bit of a Don Quixote and tilting at windmills. Who will read the Census (Return Particulars and Removal of Penalties) Bill? No one. The form will simply arrive in your letterbox. What seemed to me—and, if I may say so, to him and, when we spoke to the Minister, to the Minister—to matter was that the form should be clear and unequivocal so that the individual citizen reading it should understand what it meant.

That is the purpose of this amendment: to forget, if I may say so, about esoteric points of law and concentrate on the practicalities. The amendment I have now tabled would deal with the front page of the census form so that it stated in terms that you would not commit any offence if you did not answer any of the questions. Within the census form itself, there would be a headline saying “Voluntary” and an explanation that the question was voluntary. I respectfully suggest that this would be a practical way of dealing with a rather refined legal problem, and I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I want to speak at this point because I want to leave another question with the Minister and give him time to respond.

I thank the noble and learned Lord, Lord Judge, for his amendment and his explanation. I remain puzzled by the Government’s view on this, because I have now had the chance to consider their letter of 31 May. It seems to say to the noble and learned Lord, Lord Judge, “Yes, you’re probably right, but as we didn’t do it properly in 2000, it might prejudice that, so we should remain consistently with a less-than-perfect form of words”.

There are two aspects to this, as I think the noble and learned Lord, Lord Judge, said. One is the legal aspect and whether it is absolutely clear in law that “no penalty” means “not criminal”; I will leave the two noble and learned Lords to adjudicate on that. The other aspect, which was just touched on, is whether it will be clear enough to all respondents that, unlike the rest of the form, they do not need to answer these questions. We non-lawyers want absolute clarity on this second point, to ensure that no one should feel compelled to answer these questions, nor to expect to have to answer on behalf of those for whom they are completing the form. They should not even be nudged to ask someone for the answer to these questions. We would want to see some real guarantees on that not to support these amendments.

I turn now to another matter regarding voluntary and compulsory questions: military service. I take this opportunity to thank the Minister for his letter of 10 June, a copy of which he has placed in the Library, in response to my concern that, for whatever reason, somebody may not want to disclose their history of service in the Armed Forces to other members of the household. I am probably not alone in wondering about this. Indeed, only 88% of veterans and their families thought this question was “publicly acceptable”, which is interesting. One-fifth had doubts about whether it was publicly acceptable, which I think is significant. In Northern Ireland, the question was found only “generally acceptable” and the Minister’s letter says that,

“some veterans may be unwilling to disclose this information”.

The Northern Ireland Statistics and Research Agency thought:

“This could be mitigated by providing assurances about privacy and through additional guidance”,


although it said it would look carefully at the 2019 census rehearsal before making a final recommendation for the 2021 census.

Obviously, members of households can request their own individual census form if there is information they do not want to disclose to the person completing the census on behalf of the household. However, by opting out of the household, one might be looked at slightly askance and it could raise questions as to why one is doing that. This is as true for the gender and sexual orientation questions as for the military service one I have in mind. I do not wish to pursue this separate issue now, but I ask the Minister, who I hope will be able to reassure us that, in all the guidance and testing, the sensitivities about military service, as well as those related to the areas that are the subject of this Bill, will be borne in mind.

--- Later in debate ---

[Lord Young of Cookham (Con)]

My Lords, I thank the noble and learned Lord, Lord Judge, for tabling his amendments, and thank all those who have taken part in this debate. I agree with the noble Baroness, Lady Barker, that the census is an important civic event; we should all discharge our responsibilities and complete it. I will try and deal with the various issues that have been raised during the debate.

We had a useful and informed debate on this in Committee, when the noble and learned Lord did not press his amendments which sought to clarify whether removing the penalty also removed the offence. He did that after an offer to have further discussions before Report to see if there was a way through. I am very grateful to him, and to my noble and learned friend Lord Mackay of Clashfern, who I saw having a discussion outside the Bishops’ Bar last week; I realised that if I joined it I would not understand a word that was exchanged, but I noticed that a cloud of white smoke emerged. They subsequently agreed to come to a meeting with Ministers and officials last week, where I hope we found a way through which satisfied all concerned. I hope that this afternoon we can validate this great meeting of minds.

In Committee, the noble and learned Lord, Lord Judge, raised an important issue on ensuring that there is no ambiguity as to the voluntary nature of certain census questions in the minds of those who will answer them. By removing the penalty attached to a failure to answer, the clear parliamentary intention is to remove the criminal offence. I agree with him that from the point of view of the respondent—the most important person—this must be clear. So far as the guidance on the front of the form is concerned, we have no issue with his proposal. I can confirm that the Office for National Statistics is committed to the inclusion of wording on the front page of the census for England and Wales, as proposed in the amendment. This will make it clear that the census is compulsory, that some questions are voluntary and that not answering these voluntary questions is not an offence. I hope this commitment will meet the shared objective of the noble and learned Lord and others, and of the Government, on ensuring clarity for the public.

I also confirm that the voluntary questions in the form will be clearly marked as “voluntary”, as the amendments would require. This has been the case for the voluntary question on religion since its introduction in the 2001 census for England and Wales, and it has been effective. In each of the last two censuses, 4 million people in England and Wales—over 7% of the population—have chosen not to answer the religion question. This suggests that the public clearly understand this question to be voluntary.

To best fulfil the intent of the noble and learned Lord’s amendments, the wording on the form should be tested with the public to ensure that the messaging is as clear as possible, ahead of finalising the census questions. Stating the precise wording in the Bill would mean that it could not be amended in the light of that testing. The ONS is committed to carrying out this testing, following which the census forms for England and Wales will be put before Parliament and the Welsh Assembly, respectively, in census regulations. While the regulations are not amendable the ONS will engage with interested parties, including noble Lords, as it finalises the form and guidance.

The census is a devolved matter. Decisions on the questions, questionnaire and guidance to be issued in the 2021 censuses in Scotland and Northern Ireland are for the relevant authorities in those Administrations, through a similar secondary legislation process. I hope your Lordships agree that it would be inappropriate to make a decision for Northern Ireland, although we will of course make that Administration aware of the changes we propose for England and Wales through the ONS.

The secondary legislation for the 2021 census in England and Wales will begin to be brought forward later this year. As my noble and learned friend Lord Mackay said, an Order in Council will set out the detail of the questions to be asked in the England and Wales census. That order is in part subject to the unusual amendable affirmative procedure before both Houses. It will be laid in the autumn and the regulations, to which I have already referred, will follow in 2020.

I will try to deal with some of the questions raised during the debate. The noble and learned Lord, Lord Brown, asked about the questions being voluntary and whether the penalty for a false response should be removed. The answer is no: Parliament rejected an amendment to this effect in 2000 and it was right to do so. Not wishing to provide a response and wilfully providing a false response are different issues. Removing the penalty for providing a false response would pose a risk to the quality of census data in a way that allowing people not to provide an answer does not.

The noble Baroness, Lady Hayter, asked about military service—as she said, I wrote to her on it. The Armed Forces question is there to help public services serve those who have served their country and is underpinned by the Armed Forces covenant. No one in the household will know whether an individual fills in their own return; it will overwrite the household return. She was concerned about a lodger who might not wish to disclose their previous service to their landlord or landlady. The landlord would fill in the form for the household, but the lodger could apply for their own census form and fill it in without the knowledge of the householder. That would override the household return. No alternative data source fully meets the data that we need.

I think that I have answered all the questions that were asked. I recognise the concerns expressed by the noble Baroness, Lady O’Neill, and remind all noble Lords that we are happy to do a drop-in session to explore these points in more detail. Finally, I repeat my gratitude to the noble and learned Lord for his help in this matter and express the hope that, as a result of the commitments that I have given, he will not press his amendments.

[Lord Judge]

My Lords, I am grateful to everyone who has spoken today. I shall not put down an amendment to an amendment but, when we come to look at this matter again, we could add “or if you give any false answer” after “if you fail to do so”. That should not be a problem. There is time for reflection on these matters. The Order in Council has to be drafted; we can all have an opportunity to look again. In the meantime, I am grateful to the Minister for the assurances that he has given. In those circumstances, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Preparing Legislation for Parliament (Constitution Committee Report)

Lord Judge Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I thank everyone in the House for their kindness in allowing me to move about up and down the list. It is always difficult to change your place in the list when you are before some difficult judge, but no one has been too difficult today.

I am speaking to the delegated legislation part of this debate. I do so as a member of the Constitution Committee, on which I have now served for four years, and it has been the most wonderful experience. I want to underline something that is absolutely obvious to us as committee members: when it comes to evaluating the recommendations of a committee such as this and indeed all the committees of this House, it is perhaps worth underlining that in those four years, although we are divided equally into four Conservatives, four Labour, two Liberals and two Cross-Benchers—and we have had different chairmen, the noble Lord, Lord Lang, and then the noble Baroness, Lady Taylor—there has not been a single moment when I as a Cross-Bencher have been able to detect the tiniest, flimsiest division along party lines. There were disagreements but they were nothing to do with party. That should add a proper respect for the reports that have been produced, not just by us but by the various committees in this House. It is very easy to overlook it, and it is easy for the Executive not to realise that the committee reports are cross-party and therefore should carry more weight.

There have been 10 speeches in this debate. As a judge, after 10 I might have said, “I agree and have nothing to add”, and in a sense I do not; I agree with them all. However, behind the courtesies of this debate, the very carefully measured language of the speakers and of the reports themselves and, dare I say it, the carefully measured fulminations of the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Committee, there is a constitutional predicament that we are not grasping. We, by which I mean parliamentarians in both Houses, seem to be on an extraordinary, irrevocable course to vesting the Executive with more power. This is not deliberate; we are not sitting here saying, “Hooray, let’s give the Executive more power”. It is the consequence of the way in which we are failing to address the issue of delegated legislation.

Although “delegated legislation” is two words in one phrase, there are two aspects of it that we tend to see separately but which are actually totally integral to each other. There is the enactment of primary legislation, which empowers the ministerial use of delegated legislation, and then there is our failure to reject the secondary legislation that Ministers subsequently produce. The two stand together. It is obvious that nothing I want to say suggests for a moment that I want to undermine the usefulness of delegated legislation; we obviously have to have it, matters of detail have to be addressed and we have to have procedures to enable primary legislation to be fully scrutinised in both Houses to be implemented and updated. So the problem is not with delegated legislation but with its misuse, and its constant misuse within our constitutional processes.

Our report underlines that there is not just one form of misuse. Let us just look at skeleton Bills. I want to read these words aloud and slowly and then ask a question. They are,

“we find it difficult to envisage any circumstances in which their use is acceptable”.

I would love the Minister to stand up—I know he cannot and will not; he would cause a revolution if he did and, I am sorry to say, none of this would believe him anyway, but it would be wonderful—and say, “That’s it, there will be no more skeleton Bills; we agree”. We say all this, but they still come. I shall come to Henry VIII clauses in a minute, but the report is saying nothing new when it says they are,

“a departure from constitutional principle”.

Would it not be nice if the Minister stood up at the end of the debate and said, “I agree; they’re a departure from constitutional principle, to be contemplated only where a full and clear explanation and justification is provided”.

I am being not forceful but—I hope—direct, because we are very courteous in how we issue our complaints about the way in which the Executive behave. All these different processes, cumulatively combined, undermine parliamentary control of the Executive, full stop. Each of them has been discussed time and again. We always overlook the very simple proposition that if you give power to someone then it will be used and, having given power to them, you are not going to get it back. That applies here as anywhere else. So I want to highlight what I shall identify as the “try-on” approach to legislation, which is one more manifestation of the problem.

The try-on is simply this: “Let’s see if we can get away with it”. For me, the starkest example was the recent sanctions Bill, which proposed that by delegated legislation the Minister should be able to create criminal offences—not fines but criminal offences—punishable by 10 years’ imprisonment, which is a major criminal offence. But what else was the delegated legislation going to allow them to? The proposal was that the Minister should, by delegated legislation, be able to decide what defences there should be. Of course I am glad they thought that there might possibly be a defence to a crime that they had created but, worse, it would have enabled the Minister by delegated legislation to change the rules of evidence for any relevant trial to which the individual was brought, just like that. What is the point of having a criminal justice system? The Minister can say, “Oh, you can’t use that” or “This can be admitted in evidence against you”, although perhaps five centuries have demonstrated the dangers to safety of convictions of admitting it.

So delegated legislation was proposed which would have constituted a remarkable gift to the Executive to interfere with the administration of justice. It was a try-on, and we noticed it. Good. This time we were able to argue against it, and the end result was that the House was horrified and it did not pass, but it was in the legislation as a try-on. Good heavens above, how many times has the Constitution Committee said that the creation of a criminal offence by delegated legislation requires full parliamentary scrutiny? Do not worry about that; just ignore it and stick it in.

On Monday, we debated the courts and tribunals Bill. The breadth of that Bill is quite astonishing. By legislation, if it is passed unamended, a Minister, the Lord Chancellor, will be vested with powers to change the entire processes of family, civil and tribunal justice on the basis of a recommendation made by a committee of which he, the Lord Chancellor, has appointed a majority of the members. Wow. So by delegated legislation, the try-on is that the Executive will be given control over the judicial processes in those courts. I regard it as a try-on because, if not, it is an indication of ignorance of basic constitutional principles, and the relevant department is the Ministry of Justice.

In view of the other things that have been said, I want to say a brief word about Henry VIII. I have gone on about Henry VIII—I refer to the Constitution Committee six years ago. Everyone knows that Henry VIII clauses are a menace but they come rolling along like the Mississippi, except that the Mississippi rolls between pretty well-known banks but in this case the river just grows and the sides are flooded. What attention did anyone pay? I ask this question rhetorically, although there may be an answer to it: when did we last see a Bill in which a power given to a Minister to dissapply or amend existing primary legislation was missing? There must be a robot in every department that sticks this provision in, or maybe it is a consequence of the development of modern technology. “Good heavens, there is a computer, let me press the button—H8, press it”. It does not merely stop at one clause. Sometimes Bills are decorated with Henry VIII powers—festooned with them. It overlooks something rather important. We call them Henry VIII powers because they are unacceptable to us: Henry VIII was an ogre and a menace, so we think that shows how we disapprove of them. However, it overlooks this simple fact: under the Proclamation by the Crown Act 1539, Parliament declined to give him the power to overrule a statute. It expressly stated—it was not by implication—that he had the power to work through proclamations, but not if it interfered with an existing statute—if my memory is right, particularly one passed during his reign, which I thought was a rather nice touch.

I want us all to pause for a moment. Which would we prefer? Would we find a summons to Henry VIII to explain ourselves for some piece of legislation that was going on and to account for it—and our failure to support him—marginally more alarming than a call to visit No. 10 for an interview with Mr Blair, Mr Brown, Mr Cameron or Mrs May? I think we might; but we are giving these powers to the Prime Ministers of our day which the men of the 1539 Parliament were not prepared to give to the dictating ogre who ran the country in theirs. We give powers that Parliament would not give to the great king.

I have a couple of more points. I completely agree with the noble and learned Lord, Lord Mackay, about guidance, but I highlight something which was not covered in our report because we have only just noticed its emergence: a new scheme, or maybe an old scheme revived. You produce a Bill—for example, the Trade Bill. You set it all out in regulations—nine separate regulation-making powers, all based on delegated legislation—but it is not enough, because these are merely “for example” or “among other things”. What is that supposed to mean? “Please, Minister, do what you like”. We have to watch for that and we need to be very alert to it.

I come to the scrutiny process—the second limb. I must try to be moderate about this but the scrutiny process is a nonsense, is it not? It does not happen. It is 40 years since the House of Commons rejected a statutory instrument; not one piece of secondary legislation merited being rejected. I have made plenty of mistakes in the last 40 years and I expect we all have, but, funnily enough, not a single piece of secondary legislation was so deemed.

I turn to the tax credits which were referred to earlier in today’s debate. When this House exercised its undoubted constitutional authority to reject that legislation, it was the sixth time in the last 50 years—not exactly a declaration of independence, was it? But, lo and behold, we had an entire review put into place and we were told that the Lords had interfered with a decision of the Commons. You might have expected the Government to go back to the Commons and say, “Please, just tell the Lords they are wrong”. But the Government did not, so when the Lords rejected it, the Government did not go back for support. The original secondary legislation was a case of, “let us see if we can get it through”. I have looked up to see how much time seemed to have been spent on that legislation in the Commons and it was not very long.

We overlook something else which this is revealing. Maybe the point of the review was just to discourage us from rejecting secondary legislation; but the incident graphically highlights the dangers of giving Ministers power to use secondary legislation. The power exercised by the Conservative Government in relation to tax credits was based not on their own legislation but on legislation enacted when Labour was in power—the Tax Credits Act 2002. Some 13 years or so after a Labour Parliament had given a Labour Minister these powers, those same powers were being exercised by a Conservative Government. The Opposition in this House certainly involved a great number of Labour Peers who spoke against it, which eventually led to its defeat. I cannot remember the specific words they used at the time, but the meaning of their words conveyed that this was a misuse of power—what a lesson to us about the long-term consequences of enacting powers in a Government to use secondary legislation to do almost anything they like, and it was not petty cash that was involved in the issue.

I understand that there are some problems--our system has not caught up with the way we do our work—but in the end, virtually rubber-stamping laws proposed by Ministers exercising secondary legislation powers simply will not do. We have got into the habit of accepting it, and when you become habituated to a situation in which you do nothing or very little, however much you may not like it—even if you do not agree with it—and cease to question, the habit becomes entrenched. We must be hawk-eyed in our scrutiny of delegated legislation.

I have one last point. We are enmeshed in Brexit. Some 10 years from now, Brexit will have come or gone and some of the disappointment the public have in their political processes will have declined; but these powers will still be there. Unless something is done about them, this is what we should shall expect to happen. The public can be very strange in the way the democratic process works. When the public are utterly disillusioned with their political arrangements, as I think they are now, they may vote into power a party of extreme authoritarian views—for the left or the right, either equally unacceptable to us today. But who knows? That new Executive, if elected, will not have to hunt in very obscure corners to find legislative powers necessary to carry out an abhorrent programme.

Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Judge Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 4th June 2019 Grand Committee

Moved by

[Lord Judge]

2: Clause 1, page 1, line 8, at end insert—
“( ) In section 8 (penalties), after subsection (1A) insert—“(1B) A person does not commit an offence if that person does not state any particulars with respect to sexual orientation or gender identity.””

--- Later in debate ---

[Lord Judge (CB)]

My Lords, these are simple amendments directed to an issue of principle. The issue is very simple. It is a criminal offence to fail or refuse or neglect to complete the census form—note “to complete it”: that is, to answer every question. Over the years, it has come to be accepted that some of the answers should not be matters of obligation—in particular, in 2000, providing answers to a question relating to matters of conscience such as religion; or, now, in the current Bill, sexual orientation and gender identity, matters which are obviously intensely personal. The reasons are obvious and I support them.

It is plainly the intention of the legislation that each individual responding to the census will have a choice on these questions: you may choose to answer or you may not. If you choose not to answer, you will, in the words of the legislation, not,

“be liable to a penalty”.

Even if you are prosecuted, no penalty could be imposed: you would get an absolute discharge.

What, then, is the problem? Why am I making a fuss? I am making it in the company of the Constitution Committee, of which I have the privilege to be a member, which expressed its concerns in one of those very short, simple letters. In summary, it comes to this: because no legislative provision expressly decriminalises the choice not to answer, the Bill should be amended explicitly to state that such a failure is not a crime.

By letter dated 31 May, the Minister gave a very considered, lengthy reply to a very short letter. My experience is that, on the whole, those with the best points write short letters. However, ignoring that general experience, which may not be true here, I have discovered from the letter that, based on a starting point for the legislation in 2000 relating to religion—dare I point out, before we had a Constitution Committee?—the promoters of the Bill confused, conflated or perhaps simply failed to understand that the removal of the risk of a penalty meant that answering or not those questions was voluntary, and therefore there was no criminalisation. They confused crime and penalty. They are distinct concepts. Normally, the conviction comes and the penalty follows. What we have done—what is proposed here and was proposed and carried in 2000—is to wipe out the penalty but leave the crime. At the very least, it is arguable—I would say strongly arguable—that what we have now, and will continue to have without the amendments, is a crime of not answering the question but no penalty for choosing not to do so. That does not seem very sensible.

It is obvious that the Bill’s objective to decriminalise any such failure. That is the point of it and why it is supported. Why is conduct that carries no penalty and is not intended to represent even minute contravention of the criminal law allowed to disfigure it by remaining on the statute book? I respectfully suggest that that is wrong in principle. The Bill should be amended expressly to decriminalise any such conduct and any necessary amendments in relation to questions about religion in the 2000 Act made subject to identical amendments within the Bill. That is the purpose of the amendments.

It is not an answer that the Crown Prosecution Service would not prosecute. It is not an answer that if the Crown Prosecution Service prosecuted and someone were convicted, no penalty would be imposed by the court. I mention that in this context. We hear rather a lot about private prosecutions these days. If there were a private prosecution—I know that this is hyperbole; there would not be, but let us examine this as a matter of principle—the court would no doubt have in mind that on conviction there would inevitably have to be an order for absolute discharge. Of course it would. The court might rage in the way that old judges did but do not any more because they are much more polite than they used to be. It might rage against the absurdity of any such prosecution, but I respectfully suggest that it could not as a matter of certain law say that the failure to answer the question did not constitute a criminal offence. We really cannot have that situation; there must be certain law about this. We must do better and decriminalise a failure to answer such questions. I beg to move.

[Lord Beith (LD)]

My Lords, I support the noble and learned Lord’s amendment. I apologise to the Committee that I was not able to speak at Second Reading, but the discussions in the Constitution Committee, of which I am also a member, have brought to light the seriousness of this problem within what is otherwise a highly commendable and necessary Bill. I am afraid that I have form on this subject: on 25 March 1975, I moved an amendment to the census order—it was possible to move amendments to those statutory instruments unlike to almost all others—precisely to assert the principle that, so far as the procedure allowed in that case, the state should not turn people into criminals because they had some good conscientious reason for declining to answer questions in such areas as were not fundamental to the state knowing where its population was, how many people there were and in what kind of properties they lived.

I remain of the view that it is undesirable for the state to extend its reach by way of criminal offences that put people in that position. As my noble friend did in the context of the previous debate, I hope that the guidance and what is said to people by those who hand out and collect census forms will assist in reassuring them, but, like the noble and learned Lord, Lord Judge, and the Constitution Committee, I believe we are legislating unsatisfactorily. The primary reason for doing so given by the Minister in his careful and lengthy letter was that, unless we made certain further provisions to tidy up other legislation, we might create a degree of ambiguity. I found that unconvincing; I do not think any court would be in any doubt as to what Parliament had intended if it phrased this part of the legislation so as to make it quite clear that it was not creating or continuing a criminal offence of failing to answer questions relating to sexual identity and gender.

Everybody seems to agree with what we are trying to do. Let us for heaven’s sake do it in a way that makes our legislation both sensible and not threatening to individuals who perhaps do not view these matters in the detail that we have been required to do today.

--- Later in debate ---

[Lord Young of Cookham]

My Lords, let me try to deal with the very serious issues raised by the amendment moved by the noble and learned Lord, Lord Judge. The noble Lord, Lord Beith, has trumped my Second Reading story of having moved the 1981 census order by going back to 1975.

I take very seriously any amendment moved by the noble and learned Lord, Lord Judge. He will not remember this, but two years ago we crossed swords on the Higher Education and Research Bill, when he tabled an amendment which it fell to me to answer. It was on a legal matter, so it was a home game for him and an away game for me. I gave what I thought was a very considered, detailed and lengthy response to his amendment. I just looked up what he said in response:

“My Lords, we have just heard an utterly reasonable argument but, with great respect, it is wrong”.—[Official Report, 8/3/17; col. 1419.]


With a judicial flick of the wrist, in a few sentences, my argument was disposed of; a Division was called and the Government lost. Therefore, I take this amendment very seriously and I hope to set out the reasons why we have real difficulty in accepting it.

The two amendments insert two new subsections after Clauses 1(3) and 2(3), seeking to clarify that omitting to provide particulars concerning sexual orientation or gender identity is not an offence. Amendment 2 applies to England and Wales and Amendment 3 to Northern Ireland. A similar amendment was debated in another place during the passage of the Census (Amendment) Act 2000, which noble Lords may recall added the possibility of asking a question on religion to the census Act in England and Wales, and removed the penalty for non-response. That amendment was rejected, following reassurances from the promoters of the Bill, and I hope to provide similar reassurances to noble Lords today.

The short point is that the current drafting already achieves what these amendments aim to do. Unlike the amendments, they do so in a way consistent with the existing law. By removing the penalty attached to a failure to answer, the clear parliamentary intention is to remove the criminal offence. This reassurance was given in 2000, and I give it again today. “No person shall be liable to a penalty” is tried-and-tested legislative language. It was used in the National Insurance Act 1911 and the National Health Insurance Acts 1924 and 1936. It was used in the Census Act (Northern Ireland) 1969 in respect of religion. Most recently, it was used by this Parliament and the Scottish Parliament in the Census (Amendment) Act 2000. Its meaning is clear.

I shall quote what is in the letter, which some noble Lords may not have seen. It is an extract from Hansard by the then Economic Secretary to the Treasury, speaking on behalf of the Government against the amendment similar to the one we are debating now. It says:

“I can assure the House that the legal opinion that my officials have taken on this matter confirms the view … that the removal of the penalty for anyone failing to provide particulars on religion makes the census question on religion voluntary, as only the criminal sanction in section 8 of the 1920 Act makes it statutory to comply with the census in the first place”.—[Official Report, Commons, 26/7/00; cols. 1150.]


On the point from the noble Lord, Lord Scriven, I am not aware that there is any doubt in the public’s mind at the moment, since the 2001 or 2011 census, about the status of the voluntary nature of answering those questions.

I will go on to some other reasons why we have real difficulty with the amendments. They would—inadvertently—land a pebble in what we regard as clear water. They are limited to the questions on gender identity and sexual orientation, as required by the scope of the Bill. However, the effects would go far and wide. They would imply that where the law removes the penalty alone, the intention is to leave in place the offence. That would cast doubt on what was previously clear. In this way, they would risk the voluntary nature of the religion question being called into question, both now and historically. They would entail the same risk for the Scottish census. This risk would extend to other law, historical and current, which uses the same language.

I am grateful for the close and proper attention to and scrutiny of this measure by the House, particularly the Constitution Committee. It is right that we ensure that the law is clear and coherent, and that the public are clear, as the noble Baroness said, that in refusing or neglecting to answer questions on sexual orientation or gender identity they will not be committing an offence. The Bill, consistent with the Northern Ireland Parliament’s approach in 1969, and the approach of this Parliament and the Scottish Parliament in 2000, achieves that.

If the noble and learned Lord has doubts, I am more than happy to arrange a meeting with relevant officials and other noble Lords between now and Report, to see if we can find a way through, given the narrow scope of the Bill and therefore the limitation in impact of any amendment such as the one we are debating. Against that background, and in good faith, I hope the noble and learned Lord feels able to withdraw his amendments.

[Lord Judge]

I am very grateful to everyone who has spoken, and to the Minister—I sometimes think of him as a sort of ministerial Hercules. Getting this right is not a Herculean task, and I should certainly welcome the opportunity to talk to him about it. I shall withdraw the amendment for the time being, on a wait-and-see basis.

Amendment 2 withdrawn.

Making Tax Digital for VAT (Economic Affairs Committee Report)

Lord Judge Excerpts

Monday 29th April 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I must declare an interest: for a time in the late 1970s, I was standing counsel to the Inland Revenue on my old circuit. I am sorry that I am going to be critical of those who once fed me. I declare a second interest, which we all have: I believe that tax liabilities should be paid. That is not merely a moral view. Every time somebody fails to pay his or her tax, the rest of us who do pay our tax have to pay more. Therefore, I have an interest in this discussion beyond merely having been counsel to the Inland Revenue.

I want to, if I may, grapple with some very simple propositions. The liability to pay tax depends on legislation. Hurrah! I am right. Unless legislation provides liability to pay tax, there is no liability to pay it. Hurrah! That is self-evident. Tax legislation has become intensely complicated. Indeed, it is not unfair to say that tax legislation over the past 10 to 15 years has made understanding tax liabilities virtually impossible. The legislation is virtually unintelligible—no hurrah for that. Sometimes no one—not Her Majesty’s Revenue and Customs, not the taxpayer, not good sensible accountants and not even wise judges—can be too certain about what the legislation actually provides.

We have to grasp those simple issues when considering this debate for this reason: where the law is uncertain, one or other side—it may be HMRC, it may be the taxpayer—is entitled to go to a court and to ask the court to glean what the legislation means and whether it establishes a tax liability. Of course, if it does, it must be paid; but if it does not, surely not. The principles are simple provided we remember one long and well-established rule at common law, easily forgotten: we have the right to unimpeded access to a court. It is one of the essential principles on which the rule of law is founded. Note that I emphasise “unimpeded”. This is not the time or the place to point that what has been done in the past few years to the provision of legal aid has damaged that principle. However, just because it has been damaged once we do not want to go on to damage it further.

I am speaking today in relation to The Powers of HMRC because it has identified a number of incursions into the right of unimpeded access. I strongly support the recommendation in paragraph 134,

“that all powers granted to HMRC since the conclusion of the Powers Review in 2012 should be evaluated and those evaluations published. All future powers should be evaluated after five years”.

I find the Government’s response to this paper alarmingly negative. The fact that the Minister has treated the committee with what I regard—I am being less courteous than the noble Lord, Lord Kerr—as a contemptuous disregard for serious issues has encouraged me to speak on my own behalf.

I wish to take one aspect of these various matters: the general anti-abuse rule. What does that define? Using that language presupposes that a scheme intended to reduce tax liability by reliance on litigation constitutes an abuse. The description “abuse” assumes that the scheme is unlawful or that, if not unlawful, it should be treated as though it is even if it is not. Since when has it constituted an abuse for a citizen, rich or poor, to seek to rely on law laid down annually by Parliament? It is a strange concept.

If where the legislation is uncertain, a case is litigated, the court may decide that the scheme is lawful and, if it does, no penalty can be imposed on the taxpayer for going to court. It would be an extraordinary proposition if it could. However, what that successful taxpayer risked in going to court was not only the costs of losing the litigation, which is fair enough, but the imposition of a huge financial penalty—not tax, not back tax, not unpaid tax, not interest on tax, but just a straight penalty.

That is precisely what is meant by the Government’s response on page 9 that this regime—I paraphrase—provides the taxpayer with an opportunity to settle the dispute without the application of penalties. That is a subtle threat, seemingly bedecked, as an inducement that, “It will be in your interests to do as we tell you”.

As the noble Lord, Lord Tugendhat, mentioned, all this applies equally to the provision for extending powers of naming and shaming. That is fair enough if you have done something shameful, unlawful or wrong, but unless you have, why should you be shamed?

HMRC may be a unique institution in our country but, unique as it is, it is not infallible. It is not always right. However, if HMRC tells you that if you challenge its analysis of a problem and you lose, and it can cost you, as your accountants will advise you, a huge penalty, what is your reaction likely to be? It turns HMRC into judge and jury in its own cause. You can describe it in a lot of different ways, but what I am driving at is that the threat—the risk—would undoubtedly deter you from going to court, from seeking the opinion and judgment of the court. That is its purpose and it is rather alarming. That is interference with access to justice. Can we imagine our reaction if any other government department or Minister tried to obtain the power to impose a financial penalty on anyone who had the temerity to take it or him or her to court? We would be horrified.

I understand—I know perfectly well as a matter of history—how many powers HMRC has been given over many years, but that does not justify any further extensions. I quite understand the need to address protracted delays in dealing with avoidance cases. I understand that the court processes can be misused. They are, sometimes. I understand that on occasions the system is simply being played with a totally unmeritorious misuse of the court processes to delay settlement of a clear tax liability. I understand all that. I was prosecuting counsel for the Inland Revenue for long enough to know that it happens, but provisions in the court processes themselves would address those problems and do so in a way that does not offend the principle of access to justice. For example, there could be a leave requirement. If a taxpayer wishes to take proceedings and the Revenue says it is hopeless, he would need leave.

There could be a conditional leave requirement, for example, “Okay, you can come to court if you like, but bring the tax and the costs into court. If you win you’ll get them back”. Further, and perhaps more importantly, if a court concluded that the scheme was without merit, was unarguable and was, indeed, no more than an abuse of the court, why on earth should the court not be given the power to declare that it is so? Then you can be named and shamed. There is a judgment that you have been abusing the court process.

There is a further power that could be considered: in such a case, if the court had come to such a conclusion, it would be open to the court to impose a penalty for such misconduct by the taxpayer, not only on the taxpayer but on the taxpayer’s advisers and on those who promoted what the court had found to be an abusive scheme. Such a declaration, such a power and such processes would obviously be matters for parliamentary counsel. I venture to suggest that this would provide a surer foundation, consistent with the rule of law and unimpeded access to justice, for the imposition of a penalty through a judicial process rather than through an administrative decision by a department that resented or objected to the citizen going to court. We really need an evaluative review of the wide accretion of powers to HMRC. I repeat that I strongly support the recommendation in paragraph 134.

Subordinate Legislation: Transparency and Accountability

Lord Judge Excerpts

Thursday 21st February 2019 Lords Chamber

[Lord Young of Cookham]

The noble Lord’s question goes slightly broader than the narrow Question about statutory instruments’ transparency and accountability. On his first point, it is a matter for the DPRRC to draw attention to primary legislation where, in its view, too many powers are being subjected to subordinate legislation. The House, as it knows, can amend legislation as it goes through, and the Government have indeed amended legislation in many cases where the House has expressed the view that too much has been delegated. The particular Bill the noble Lord refers to is being debated later today. On his other question, about a wholesale review of statutory instruments, that goes slightly broader than this Question and at the end of the day it is a matter for the House and not the Government whether it wants to change the way it scrutinises legislation.

[Lord Judge (CB)]

My Lords, the Minister was present when I suggested on Monday that it was something of a disgrace that it is 40 years—1979—since the House of Commons last rejected a statutory instrument. Can the Minister be persuaded to ask the Post Office to issue a commemorative stamp? That way, we will either remember the process and revitalise it or accept that it has been consigned to the dustbin of history.

[Lord Young of Cookham]

I am grateful to the noble and learned Lord. I was present in the House of Commons on that historic date but I cannot remember which side I was on, because I cannot remember whether it was before or after the general election in 1979. The noble and learned Lord’s suggestion of a commemorative stamp is a good one, but it might be subject to a statutory instrument.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Judge Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[The Earl of Caithness]

My Lords, the reason for the figures that the noble Lord, Lord Grocott, mentioned is that when the elections took place in 1999, it was by and large the younger and most active hereditaries who were elected. It is not surprising that the gathering-in rate of Conservative hereditary Peers has not been as great as it is about to become. We are all getting older and my noble friend Lord True has raised an important point.

The noble Lord, Lord Grocott, said nothing about protecting the Cross Benches. He waxed lyrical about how a Conservative Prime Minister would be keen to protect these Benches but with the possible implementation of the Burns report ahead of us, we are talking about a size limit on the House along with the importance of keeping the Cross Benches. Perhaps he could tell us how the Cross Benches are going to keep their numbers up to those required.

[Lord Judge (CB)]

Before the noble Lord, Lord Grocott, answers that question, while I am not speaking on behalf of the Cross Benches—because nobody speaks on behalf of us—can the Cross-Benchers be left to look after themselves, please?

[Baroness Hayter of Kentish Town]

Perhaps I may make one small point. I apologise to my noble friend, having said that I would stay quiet all day. I want to say one thing about why the Labour Party so supports this amendment. It was never about the political balance in this House. In fact, it has been a Labour Party claim for a long time that the idea that because people whose fathers, grandfathers, great-grandfathers and sometimes great-great-grandfathers did service for this country and were therefore put in this House, their subsequent children, grandchildren and great-grandchildren should be here is one that we no longer find democratic. That is the reason why we support this Bill. We put the issue of any political balance on the very wide and strong shoulders of the noble Lord, Lord Burns, and when we are able to move to a smaller House, we will deal with it then. This is not the way to do it. The importance of the Bill is that it is incredible that in the 21st century, we are talking about having by-elections for people because of what their ancestors did.