§ 8.51 p.m.
§ Lord Nathan
rose to ask Her Majesty's Government whether they intend during the current Session to repeal or bring into force any and, if so, which of the provisions of the 69 Acts enacted up to 1992 specified in Bringing Acts of Parliament Into Force (Cm 3595); what is their policy on bringing into force Acts enacted since 1992; and whether they intend in future legislation to limit the time within which it will be brought into force.
The noble Lord said: My Lords, this afternoon we have had two wide-ranging debates on matters of great interest and importance and it may seem that the subject of the Question which I am asking is of a somewhat technical character and of no particular importance. But I shall seek to show that that is not so and that in the context of our parliamentary system of government, issues of considerable importance arise.
At last, and for the first time, there is available to us a list of the provisions of those Acts which have neither been repealed nor brought into force. That list is limited to the period 1979 to 1992; that is a period of between five and 18 years ago. Therefore, we remain ignorant of the position in relation to Acts passed in the past five years.
Years ago we were informed that a database was in preparation which would enable easy access to that information and there was some thought that that would be available in the spring of this year. I gather now that that will not be available for use by the public or by Parliament until 1999. I hope that the Minister will be able to inform your Lordships of the current position and prospects.
In the 12½ years from May 1979 to December 1992 (the period covered by the Command Paper) 810 Bills received Royal Assent. The paper lists 69 Acts out of the 810 which had not come into force in all their sections by March 1997. That constitutes 8.5 per cent. of the total number of Acts passed during the period. It is not a negligible percentage. It relates to the position five years after the latest date in the paper. Therefore, it should not be thought that that represents at any time the percentage of Acts which contain commencement provisions unlimited in time and which have not been exercised. It seems likely that a list produced now similar to that in the paper in respect of the period 1992 to 1997 would contain entries representing a higher percentage.
The Command Paper No. 3595 stems from a recommendation of your Lordships' Select Committee on Procedure of the House (set out in Hansard of 27th March 1996 at col. 1706) that the Government should lay before the House an annual report listing all the Acts and provisions within Acts which have been neither repealed nor brought into force, giving reasons for the delay in each case.
The problem arises because with increasing frequency Acts provide that a commencement order is required to bring a provision into force without limit of time in which it shall be exercised. Indeed, there is no 291 obligation to exercise it at all. Those powers introduce an option for government to implement legislation which Parliament has enacted or to render that legislation of no effect. Commencement powers usually appear last in a Bill. When earlier clauses are under discussion, reference is rarely made to their application. It should be. Parliament enacts provisions in the belief that it has made effective laws but it is only an act of government that (in such cases) makes them so, if they choose.
The Select Committee on Delegated Powers was concerned that a mechanism be found to ensure that Acts passed by Parliament are brought into operation. There is reference to that at paragraph 38 of the 12th report. The list of Acts annexed to the paper represents wasted parliamentary time.
It has been said that government are answerable to Parliament for any failure in their responsibilities as respects the exercise or non-exercise of such powers. But Parliament does not in fact exercise control and might indeed have difficulty in doing so even if it had the knowledge that part or all of an Act was not in force. That is referred to at paragraph 11 of the 12th Report of the Delegated Powers Select Committee. In effect, Parliament abdicates its responsibility for ensuring implementation of legislation.
The paper lists a number of reasons for incorporating commencement powers but there are, I submit, scarcely any instances justifying indefinite duration. None of those cited do so.
If, exceptionally, it were desired to omit a limit of time for exercise, Parliament should only accept that if it is satisfied that that is necessary for the most cogent reasons. Indeed there would be much advantage in the House being advised by the Select Committee on Delegated Powers in all such cases.
The paper refers to delays in implementation being required by supervening developments such as international conventions and unforeseen problems in implementation such as adverse changes in economic conditions. But that is a risk applicable to all legislation.
In some cases the paper explains that certain provisions remain available to be brought into force but kept in reserve. There may be cases where it is desirable for government to have reserve powers; for example, where long and difficult negotiations are in view (as in Northern Ireland). But those are exceptional cases and should be explained as such and kept under review, perhaps annually.
I turn briefly to the command paper itself—which does not inspire confidence. It refers in the preamble to "Bills" listed in the annex, which are in fact Acts, and refers to Acts "approved" by Parliament. They are not "approved"; they are enacted. No doubt this was an unfortunate slip (though the word appears not once but twice) and indicates a measure of arrogance on the part of the author.
A brief review of the annexed list indicates certain categories. There are the cases where provisions have not been brought into force but,there are no plans to do so at the present time although the need to do so is kept under review".292 Your Lordships will see that in a note on the Building Act 1984. That Act was passed 13 years ago. For how much longer will the possibility of implementing it remain? Is the public, is Parliament, aware that these provisions may suddenly spring into life having lain dormant all these years?
There are instances where it appears that later legislation supersedes or conflicts with provisions of earlier Acts which have not been brought into force. It seems that the opportunity to repeal the provisions in the earlier Act by the later was either overlooked or ignored. There is constant reference to the possibility of repeal but the lack of opportunity to do so. Some system of repeal could surely be devised which would enable this clutter of useless law to be removed from the statute book.
There are cases where it appears that legislation has been enacted when it was known (or ought to have been known) that it was not needed or was impossible to implement. The Charities Act 1992, Part III, is a case in point. In July 1994 a deregulation report was published which under the heading of Part III refers to "The Problem". It states,There is concern that the practical consequences of some aspects of the new legislation were insufficiently thought through",and recommended further consultation. That was done. The response was published in January 1996 and proposed forming in September 1996 a working group for further consultations with a view to bringing Part III fully into force in June 1998. The working group has not yet been formed. I do not cast blame on the civil servants or others for the slippage in the time which I gather has been due to other severe pressures, but it is alarming to say the least. I speak of this at some length because it demonstrates the need for pre-legislative consultation and thorough consideration of legislation in draft before initiation of the formal legislative processes.
The relevance of this to the present discussion is that a means must be found to eliminate in all but the most exceptional instances the need for commencement powers exercisable without limit of time, for these sap confidence of the public in the parliamentary process and replace it in the public mind with control by the governing party. That indeed was in the mind of Mrs. Ann Taylor when she gave her address on reform of parliament on 14th May 1996 before becoming Lord President of the Council.
It is in this context that the establishment of a Select Committee in another place is highly relevant. Increased time spent in preparation of legislation would not only help to avoid bad legislation (of which there has been far too much) but enable the totality of the legislative package to be considered together. Indeed I hope it may consider abandonment of commencement powers of the type I have described except in the most exceptional circumstances.
I hope the Minister may be able to tell us about the thinking of Government on the various questions which arise. First, can he tell us the position about the database of legislation in force—when it will be running and available to Parliament, the public and indeed practitioners? Do the Government intend during the 293 current Session to repeal or bring into force any, and if so which, of the provisions of the 69 Acts enacted up to 1992 specified in the Command Paper?
Do the Government intend to present to Parliament a similar command paper in respect of a period later than 1992, and if so what period and when? What is the Government's policy as regards future legislation as to incorporation of commencement powers and the limit of time within which they may be exercised?
§ 9.3 p.m.
§ Lord McIntosh of Haringey
My Lords, I do not think I should address the House by saying "My Lords". I address the noble Lord, Lord Nathan, the noble Baroness, Lady Gould, and the Deputy Speaker, the noble Lord, Lord Lyell. Those noble Lords deserve to be addressed individually rather than collectively. I am not sure that in my 14 years in this House I have ever experienced a situation where the Opposition Benches have been completely empty. Since the 18th century there has been official recognition of Her Majesty's loyal Opposition and I am not sure it is entirely proper that they should not take part in debates, particularly debates as important as this one which has been introduced by the noble Lord, Lord Nathan.
All three of us must be grateful to the noble Lord, Lord Nathan, for the work that he has done in this area. We must also be grateful for the work of the Select Committee on Procedure, and indeed for the work of the Delegated Powers Scrutiny Committee which preceded that. It will be evident that there was a good reason for the Delegated Powers Scrutiny Committee to attack this problem when it did. The Criminal Justice Act 1988 included provision for the establishment of a criminal injuries compensation scheme which would have run in parallel to that of the law in other areas of personal injury compensation. That part of the Act was never brought into force and was never repealed. Subsequently the then Home Secretary tried to introduce a criminal injuries compensation scheme which departed radically from the provisions of the Criminal Injuries Compensation Act without seeking legislative authority for it; in other words, that was done by Order in Council. He was struck down by the courts and as a result he was forced to introduce primary legislation in the Criminal Injuries Compensation Bill which consisted of a compromise between the provisions of the 1988 Act and his original scheme. That finally received parliamentary approval but it clearly caused justifiable concern to a large number of Members of Parliament in both Houses.
No one can disagree that it is undesirable that there should be legislation on the statute book which is not implemented. That must be the starting point for our consideration of this issue. However, there are exceptions to every rule. For example, the noble Lord, Lord Nathan, has referred to the desirability of bringing legislation into force after a certain period of time. However, there are examples in the other direction. The Football Spectators Act 1989 would have required all football spectators to carry membership cards. The Hillsborough tragedy, which is now being investigated again at the instigation of the Home Secretary, led to the report from the subsequent Lord Chief Justice, Lord 294 Taylor of Gosforth, whose wise report made it clear that an identity card scheme was not appropriate. It would have been a great pity if that had been implemented before the report had been produced.
A much more ancient example concerns the Easter Act 1928 which provides for Easter to be on the first Sunday after the second Saturday in April. That would have been between 9th and 15th April this year. But Section 2 of the 1928 Act states that regard should be had to any opinion officially expressed by any Church or other Christian body before an order is made. The Council of Churches in Britain and Ireland has said that it would not wish to move to a fixed date without worldwide agreement. Noble Lords who are members of Christian Churches will know that there is disagreement among them about when Easter should be. There has been no worldwide agreement; and as a result the Easter Act 1928 has never been implemented. I am not sure whether the noble Lord, Lord Nathan, suggests that it should now be repealed, but I understand that the Churches would not be pleased if that initiative were taken.
However, these are extreme examples. There are perfectly good although mundane reasons on most occasions why an Act, or part of it, should not be implemented on a fixed date. Sometimes there is a need for public consultation. Sometimes there is a need for administrative machinery. Sometimes international developments such as the ratification of conventions are necessary before an Act can be implemented. Sometimes Acts require expenditure of money which simply is not available and that may delay implementation.
We have to accept that we should not take too purist a line. We should accept that unforeseen problems could arise. Sometimes Parliament, even in passing legislation, recognises that specific provisions may never be brought into force. The Representation of the People Act 1985 contains a commencement order for Schedule 1 which states that it can be implemented only if the Secretary of State is satisfied that it is necessary to do so in order to prevent serious abuse of the system of voting by post in Northern Ireland. I cannot say that the commencement order will never be required, but I think that we should all hope it will not be required. All that leads me to say, contrary to the arguments of the noble Lord, Lord Nathan, that it would not be desirable to insist on fixed dates for implementation.
I do not believe that the problem is as serious as the noble Lord suggests. If we consider the command paper to which the noble Lord referred, we find that the record is not that bad. In most cases Acts contain only one or two unimplemented sections. Reading through them, I thought that most of them could be perfectly reasonably justified. That is not to say that nothing should be done.
Perhaps I may respond to the noble Lord's specific points. He asked me about the statute law database. He is right to say that it was originally intended that it should be available to Parliament and the public by 1997. I am sorry to have to confirm that it will not now be available until 1999. That is the nature of information technology projects, I am afraid. This is not the only one to suffer delay in that way.
295 The noble Lord asked me whether, if the legislation were delayed, there should be a similar command paper on unimplemented legislation. I am certainly prepared to give him the undertaking that if it were delayed beyond 1999, there would be a second command paper during the course of that year covering Acts not only up until 1992 but 31st December 1994. In other words, we would not only update but improve the coverage of the command paper. We could go beyond that, but after a while the database and the record of unimplemented legislation would become swamped by what I believe the noble Lord would recognise as trivial examples of those which should never be implemented closer than a year or two after enactment.
The noble Lord asked me about the repeal of the 69 Acts in the command paper. I can give him the assurance that instructions will go out to departments which are producing major and wide-ranging legislation in the course of this Session: that they should have regard to two points. First, where there is an opportunity to repeal unimplemented legislation they should take it; and, secondly, that they should take good care that in commencement procedures in the Bill before Parliament they should ensure that no measures are included which would give rise to the concerns expressed by the noble Lord. I am hopeful that we will not bring before Parliament legislation of that kind. However, it is up to Parliament in the end to protest when commencement orders are vague. I am sure that what is now called the Delegated Powers and Deregulation Committee will take good care to cover that point.
296 I think I have answered the point that the noble Lord raised about a similar command paper in the future by saying that we will do so if the slippage on the statute law database is any greater than it has been. I think I have also answered the point about our policy on future legislation.
It is Parliament's responsibility as well as that of the Government to see to it that our scrutiny covers those points. The President of the Council, Ann Taylor, in another place, has asked the Modernisation Committee there to consider whether Special Standing Committees could be used more effectively where they would have an effect in ensuring better scrutiny of legislation. Your Lordships have the provision for a Special Standing Committee procedure in this House. We have hardly ever used it. I hope that we shall use it more and that that will improve the quality of legislation. I hope it will reduce the number of cases when unimplemented legislation will arise.
To sum up, our strategy is twofold. We have to tidy up the existing law, and we have to ensure that new legislation is better informed than it has been in the past. I hope that the noble Lord will feel that it is the intention of this new Government to treat the matter seriously. Although we cannot accept his particular recommendation for a time limit, we are prepared, and keen, to attempt to secure that the volume of unimplemented legislation is reduced and continues to reduce.
§ House adjourned at sixteen minutes past nine o'clock.