Commencement Orders

Lord Norton of Louth Excerpts

Thursday 7th November 2013 Grand Committee

Asked by

[Lord Norton of Louth]

To ask Her Majesty’s Government whether they have any plans to reform the use of commencement orders.

[Lord Norton of Louth (Con)]

My Lords, I welcome the opportunity to raise this Question and I am delighted that my noble friends Lord Brooke of Sutton Mandeville and Lord Cormack are contributing.

Commencement orders may seem a dry and obscure subject—one little understood by the public or indeed by Members. When I mentioned to a colleague that I had this Question for Short Debate, I had to explain what commencement orders were. However, they are extremely important, and the fact that they are little understood is a major problem, bearing on public confidence in the political system. Commencement orders are essentially what stand between what Parliament has said can be the law and what is the law.

Unless an Act states otherwise, it takes effect upon Royal Assent. However, it is common to provide for provisions to take effect on dates stipulated by Ministers. Were provisions of Acts of Parliament brought into effect as a matter of course relatively soon after Royal Assent, allowing time for whatever administrative arrangements needed to be made, there would not be a problem. However, that is not what happens. There is a plethora of legislative provisions—agreed by Parliament and embodied in Acts of Parliament—which have never been brought into effect. These provisions are substantial, both qualitatively and quantitatively. The Easter Act 1928 is frequently offered as an example of an Act that was never brought into force. However, there are modern-day equivalents. The statute book is littered with substantial parts of Acts which have never been given effect.

Some noble Lords have tabled Questions to the Government to find out how extensive this practice is of not bringing legislation into force. The noble Lord, Lord Hylton, in June 2010, asked which sections of, or schedules to, Acts passed since 1997 had not been commenced. On my count, the list encompassed no fewer than 147 Acts of Parliament that had sections or schedules that had never been commenced—147 Acts since 1997. They include one Act that is unimplemented in its entirety. The Acts were not minor pieces of legislation, with just one section or schedule unimplemented, although there were a number of those. They included major pieces of legislation with several sections or schedules unimplemented. One Act, for example, had, on my count, 45 sections and seven schedules unimplemented wholly or in part.

For Parliament to pass legislation that is not then given effect is an inefficient use of Parliament’s time—indeed, a waste of time. We spend time discussing the merits of provisions that we expect to become law but which then simply lay on the face of the Act without being brought into effect. Perhaps more importantly, it confuses the public. People think that when Parliament passes an Act the Act is then law and takes effect. They do not realise that its provisions may not take effect until an order is made to bring them into effect and that Ministers may not actually make such orders.

Some provisions are not commenced until the necessary administrative work is completed. I understand that. I know that there are now common commencement dates and departments are expected to comply with those. However, the Government may need to consider how they explain to those affected by a measure the reasons for any delay in giving effect to their provisions.

However, my principal concern is with legislative provisions never given effect at all. I should be interested to hear from my noble friend the justification for government not giving effect to that which Parliament has passed and how he would explain that to the public.

I appreciate that the responsibility for the current situation rests as much with Parliament as with government. The two Houses approve Bills that give power to Ministers to make orders to bring particular provisions into effect. We discuss the substantive provisions of Bills, but rarely give much attention, if any at all, to the supplementary provisions. We see the headings under the supplementary provisions—commencement, transitional provision, extent and Short Title—and tend to see them as standard provisions requiring little consideration. By that stage, Members tend to think that their work is done.

There is a case for Parliament to be more vigilant in future in checking such provisions and perhaps limiting their scope. Why allow Ministers an open-ended power to bring provisions of an Act into effect? Why not be more prescriptive or set a time period within which such orders may be made? My comments are addressed as much to colleagues in the House as they are to the Government. I wanted to get them on the record as a basis for pursuing the issue.

This is not the first time that I have addressed the issue. I chaired the Commission to Strengthen Parliament, which was set up by William Hague as Leader of the Opposition in 1999 and reported in 2000. My noble friend Lord Brooke of Sutton Mandeville was a member of the commission. We included commencement orders in our remit, and in our section on legislative scrutiny we concluded:

“Finally, we wish to see one particular change to existing practice. The commencement clauses normally give power for the Secretary of State to bring provisions in on dates set by the minister. Parliament could, of course, ensure that commencement clauses do not provide excessive latitude. We think there is a case for a more systematic constraint. In the Parliamentary Government Bill that he introduced in 1999, Lord Cranborne included a clause to provide that any provision of an enactment which is not commenced within five years of the passing of the Act shall cease to have effect. We find the argument for such a provision persuasive. We therefore recommend that there be a statutory provision that any sections of an Act which are not brought into effect within five years of Royal Assent shall cease to have effect”.

In other words, provisions of Acts that have not been brought into effect will be repealed. That will tidy up, and indeed shorten, the statute book. Introducing such a provision would also have a salutary effect on Ministers.

William Hague said that the report of the commission would be a road map for a future Conservative Government. Perhaps my noble friend will confirm that the Government have not lost their sense of direction and will now address the issue. In particular, it will be helpful if my noble friend will put on the record the Government’s position on commencement orders and what they will be doing to ensure that in future the statute book is not littered with provisions that occupy the confusing position of being law but not law.