I am beginning to worry that I’ve gone native. After three and a half years in the Lords, I am tempted to be even more pompous and semantic than I was before.
Yesterday evening’s debates on the Marine and Coastal Access Bill took a curious turn when I asked the Minister leading to explain a little known legislative foible, to which successive governments have been addicted. In this case, the Government is determined that applicants for marine licences might be required to supply information to the authority granting that licence where it is “necessary or expedient”.
As I pointed out in the chamber, “If something isn’t ‘necessary’, it surely is unnecessary to add ‘or expedient’; either it is necessary or it is not. What is the point of adding ‘expedient’ unless it is just expediency?” The Collins Cobuild Essential English Dictionary defines ‘expedient’ as “an action or a plan that achieves a particular purpose, but that may not be morally acceptable”. Surely then, it would be better to stick with ‘necessary’ – and quite unnecessary to do otherwise.
The Government disagrees. In typical Ministerialese, I was told that, “We do not want to hamstring in any way the ability of the licensing authority to be able to make the most effective decisions that it can.” I can only assume that ‘effective’ decisions are sometimes unnecessary. And scarcely anything is as important in Westminster as precedent, so the Minister reeled off some other legislation that also uses this phrase: we’ve always done it this way, so it must be right.
Some people may consider this all rather trivial but our business is words, and words can be very important if laws are challenged in court. You can read the full exchange http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90223-0011.htm#09022329000293
Gone native you say? If you have it is not in pomposity or semantics I think but in the upper chambers sheer generousness and good nature in withdrawing amendments in response to a pretty feeble ministerial argument. Only two examples cited, in acts very recently passed, does not exactly sound like an age old precedent but a new bit of legalise slipped in, probably without any previous challenge or justification, to provide government with the widest possible cover to do as they please.
However, as I read the bill (which may or may not have changed) and assuming I’ve understood it, I can see far more objectionable parts than the ‘semantics’ above. Past court precedent has establish farmers liability for cattle attacking walkers on their land. The fact some farmers will be forced to have parts of the new coastal footpath on their land (for a potentially derisory level of compensation) and with it the liability mentioned above is no doubt an irritation they could well do without.
I watched the debate online I have to agree once again Lord Hunt is playing politics with words, if only they would be straight. I also note that the marshalled list is getting more complicated instead of numbering amendments we now have letters such as amendments 101BZBC!! I do hope Lord Greeves is not to poorly.
To fight tautology and attempt to render our statutes in plainer English seems to me a very noble (not to say Herculean) task.
I saw the statute books some years ago almost breaking several shelves of a public library beneath their weight. Ignorance of the law being, of course, no excuse, I could not help feeling that Westminster is perhaps slightly overestimating the learning capacity of the average subject of Her Majesty.
And these numerous copious volumes, of course, constitute merely statute law, to which we have to add common law, civil law, canon law etc etc.
In one of your Lordship’s places, I do not think I could resist the temptation to check out the Attorney General by marching up to her and demanding, say, the sixth word along the fourth line of page 247 of the third year of Victoria. I rather suspect that even the Noble Baroness would have to get back to me.
Was it President Kennedy who said “Bring it me back on a side of A4?”
Maybe we could take a leaf out of the Bible here. We may remember that the Almighty dsciplined himself into carving the Commandments out on two tablets of stone. I rather suspect that if Government ministers had to personally carve their future legislation in such a manner, one would quickly find it becoming remarkably succinct. Tautology would be consigned to history and we may even generate a population capable of comprehending our laws as quickly as Parliament is able to create them.
Lord Tyler rightly raises concerns about conferring power to confer licenses where deemed ‘necessary or expedient’. I did an earlier post on issues raised by the Constitution Committee in respect of provisions in the Banking Bill (now the Banking Act). It conferred powers to act retrospectively where it was deemed ‘necessary or desirable’. We allowed ourselves to be persuaded that there was a case, exceptionally, to allow the power to be used where it was deemed necessary but we were not persuaded of the case to add ‘or desirable’, since that was subjective and gave too much discretion to officials. It was the point we argued with the minister and his officials. In the event, the government agreed to an amendment but it was not the one we preferred and was not one that adequately met our concerns.
I think there is clearly a case for the House being especially vigilant to ensure that too much discretion is not vested in officials. We should not be permitting overly wide powers of this sort.