Westminster Watch

To legislate or not to legislate?

As the year draws to a close, Mark Hatcher reviews events in Parliament

The Fixed-term Parliaments Act 2011 has a major impact on the timing of parliamentary elections in the UK. The Act set the date of the next general election as 7 May 2015 (and, unless it is repealed) on the first Thursday in May in every fifth year thereafter. The practical effect of the Act has been to make the final session of Parliament a lame duck session and prolonged the election campaign. With less than six months to go before Parliament is dissolved, the denizens of Westminster have been getting increasingly fractious.

The European Arrest Warrant (EAW), which had emerged as part of a package of measures agreed at the Tampere summit in 1999 to combat cross-border crime in the EU, ignited passions in the Commons. The Prime Minister had promised a vote on the EAW before the Rochester by-election. When MPs came to the debate on 10 November they thought they were considering 35 EU police and criminal justice measures which the UK was going to opt back into (from 133 such measures they had opted out of in 2013). In fact only 11 measures were listed on the order paper and the EAW was not one of them. The Home Secretary said it was necessary for these measures alone to be voted on for them to be transposed. The outcome, she said, could be taken as a verdict on the package as a whole. Speaker Bercow’s ruling, that the EAW was not the subject of the motion, enraged backbenchers and transformed what could have been a debate on the substance of the measures, on which the three main parties were agreed, into a procedural shambles, with the Chairman of the Commons European Scrutiny Committee, Bill Cash, claiming the Government’s approach had been “tainted with chicanery”.

There was no doubt that the Government would win the vote – the motion was passed 464 to 38. What should have been a small story became a tale of confusion and provided a gift for UKIP. If the British people had been denied a referendum on the Lisbon Treaty and the Commons had been promised a vote on the EAW, why trust the Tories to hold a referendum in 2017?

Criticism from the other place

At the other end of the Palace of Westminster the Government was defeated three times last month on their plans, in the Criminal Justice and Courts Bill, to restrict judicial review. Peers also had a field day with Chris Grayling’s Social Action, Responsibility and Heroism Bill. It fell to Lord Faulks, for the Ministry of Justice, to explain the purpose of this measure which was intended “to provide reassurance to people who act in socially beneficial ways, behave in a generally responsible manner, or act selflessly to protect someone in danger, by ensuring that the courts recognise their actions and always take that context into account in the event that something goes wrong and they are sued.”

From the crossbenches, Lord Lloyd of Berwick, a retired Law Lord, took the unusual step of inviting Peers to decline to give the Bill a Second Reading, on the grounds that it was not only unnecessary, but that it was not a proper use of legislation to send out a powerful message or signal on behalf of the Government to the courts. Lord Lloyd reminded Peers that the former Attorney General, Dominic Grieve, had described the Bill as “utter tosh” and the former Solicitor General, Sir Edward Garnier, in a devastating critique, had called it a silly Bill which would be greeted with derision by the judges. Another former Law Lord and Supreme Court Justice, Lord Brown of Eaton-under-Heywood, called the Bill “essentially a waste of legislative time” with attendant consequences of wasting court time and legal expense in debating “what, if any, effect it is intended to have.”

Lord Pannick was more blunt. The Bill was “simply pointless”. Its provisions were so anodyne that the only appropriate response was a shrug of the shoulders or the raising of an eyebrow. Since neither of these gestures would be reported in Hansard, he felt it was necessary to put his response into language. He was reminded of Basil Fawlty’s description of his wife, Sybil in the television programme “Fawlty Towers”. Asking for Peers’ indulgence in using unparliamentary language, Lord Pannick quoted Basil: “She should be a contestant on ‘Mastermind’. Special subject: the bleedin’ obvious.” The Bill was a statement of the legally obvious. It was nevertheless given a second reading, Lord Lloyd having withdrawn his motion against the Bill which had been introduced and passed through all its inglorious stages in the elected House.

But the last word must go to the former Foreign Secretary, Lord Hurd. He told Peers that he had been brought up on the fundamental principle about legislation which was: if it is not necessary to legislate, it is necessary not to legislate. A good axiom to bear in mind by those who seek to form the next administration.

Author details: 
Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.