My Lords, this Bill contravenes two fundamental constitutional principles. First, it is being fast-tracked through Parliament when there is no justification whatever for doing so. Secondly, the Bill breaches the fundamental constitutional principle that penalties should not be imposed on persons by reason of conduct that was lawful at the time of their action. Of course, Parliament may do whatever it likes—Parliament is sovereign—but the Bill is, I regret to say, an abuse of power that brings no credit whatever on this Government.
As we have heard, this morning your Lordships’ Constitution Committee, of which I am a member, issued a report on the Bill. We looked at this matter yesterday, necessarily as a question of considerable urgency. I pay particular tribute to our legal advisers, Professor Adam Tomkins and Professor Richard Rawlings, for their indispensable assistance. I am astonished that the Minister in his opening remarks made no mention whatever of our report. He mentioned other reports by other committees but he said nothing about the report of the Constitution Committee. Are the Government not interested in the report of the Constitution Committee on this important issue? Do they not wish to engage with the reasoning of the Constitution Committee on this important matter? Do they have, as the noble Lord, Lord German, asked a few moments ago, any answer to the reasoning and conclusions of the Constitution Committee? Surely, the House is entitled to know from the Minister, when he opens a debate at Second Reading on these matters, what the Government say about a report of this nature on constitutional issues.
Let me deal with the two issues in turn—first, on the fast-tracking element of the Bill. Your Lordships’ Constitution Committee published an earlier report, the 15th Report of Session 2008-09, specifically on fast-track legislation. We pointed out, as is obvious, that there are real detriments when Parliament is asked to fast-track legislation. It means that there is no adequate time for committees of this House and the other place to consider and report on the implications of the proposed legislation. It means that persons and bodies outside Parliament have no proper opportunity to make representations to provide information to Members of each House. It also means that Members of the two Houses, as the Bill goes through its parliamentary stages, have no proper opportunity to consider its implications, propose amendments, reflect on matters and debate with Ministers outside the Chamber as to the proper way forward. For all those reasons, it must be obvious that fast-track legislation needs a compelling justification. It should be reserved for the most obvious cases of emergencies that of course occur from time to time. However, a compelling justification is needed.
What is the position here? It is clear; on 12 February in the Court of Appeal, the Government lost a case about jobseeker’s allowance. That is when the judgment was handed down. What did the Government do? They acted with commendable speed in one respect; on the very same day, they introduced fresh regulations that cured the legal defect prospectively from 12 February.
The Government were able to act speedily because they knew what the judgment was going to say; they and the other parties are told by the Court of Appeal two or three days in advance the contents of the draft judgment in order for them to comment. The Government were therefore able, very properly, to act speedily.
The only remaining issue relates to the payment of benefits to those persons who refused to comply with the unlawful regulations prior to 12 February—the retrospective effect. What did the Government do? They took four weeks to address the matter. They laid the Bill before Parliament last Thursday, 14 March. Despite the fact that they took four weeks internally to decide what to do, they then tell Parliament—I suppose, more accurately, they asked Parliament—to consider the Bill within just over one week, with one day in the Commons and two days for all stages in this House.
All that is in the context of there being no urgency whatever for this unseemly haste in parliamentary procedure. Why is there no urgency? It is for this reason: the problem has been cured prospectively by the fresh regulations. There is no urgency in relation to those denied benefits for the period up until 12 February, the retrospective effect, because the Secretary of State is appealing to the Supreme Court, as he is perfectly entitled to do. The law states that while an appeal is pending in the Supreme Court—while the Secretary of State is seeking permission from the Supreme Court to go there—there is no obligation on the Secretary of State to pay a penny back to the individuals who have been denied their benefits. If your Lordships are interested, it is Regulation 16 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, Statutory Instrument 991. Therefore, there is no immediate urgency.
As I said, the Secretary of State has sought permission from the Supreme Court to appeal there. Again, in stark contrast to the urgency with which he requires Parliament to address this Bill, the Secretary of State’s appeal to the Supreme Court is being conducted in the most leisurely of fashions. I shall tell your Lordships the facts. The Court of Appeal refused the Secretary of State’s application for permission to appeal on 12 February—the date of the substantive judgment. The Secretary of State has 28 days to apply to the Supreme Court for permission to appeal. When did he make his application? He made it 28 days later on 12 March, last Tuesday—the day of the deadline. The form that a party fills in when applying for permission to appeal to the Supreme Court asks whether the proposed appellant is seeking an expedited hearing and it contains a box for the answer. The Secretary of State ticked the box stating no.
As your Lordships will know, courts regularly order speedy hearings in urgent cases. I have contacted the chief executive of the Supreme Court, Ms Jenny Rowe, and she has confirmed to me what your Lordships would expect: that if an application for expedition had been made by the Secretary of State in this case, the Supreme Court would of course, as in any other case, have given it careful consideration. If appropriate, the court would have heard the matter speedily and it would, if necessary, have taken another case out of the list to accommodate this one.
We have the quite remarkable situation that the Minister is asking Parliament to fast-track this legislation, with all the detriments that that involves, even though there is no urgency at all in that he has no duty to pay up £130 million, or whatever the figure is, while an appeal is pending, and even though he has taken four weeks to prepare the legislation, and while he is conducting the appeal proceedings in the most leisurely manner possible. Therefore, there has been a distinct lack of urgency by Ministers in bringing the legislative proposals before Parliament and no urgency whatever in the Government’s approach to the appeal in the Supreme Court. The only expedition or emergency is here in Parliament, denying us a proper opportunity to reflect on and debate the legislative proposals in a properly informed manner. Reference has already been made to the report of your Lordships’ Constitution Committee. When we considered the Bill, we set out the circumstances and concluded at paragraph 11:
“For these reasons, we are unable to agree with the Government’s assessment that it was necessary for the Bill to be fast-tracked”.
I have explained to your Lordships why I take that view.
I ask the Minister to answer three questions on this topic. First, what is the urgency, given that the prospective regulations are in place and that while an application for appeal is pending there is no duty to pay out a single penny for the period prior to 12 February? Secondly, if this matter is so urgent, why did it take four weeks to bring the Bill before Parliament, and how can it possibly be justified to give Parliament only one week to consider the issues? Thirdly, if the matter is so urgent, why wait four weeks before seeking permission from the Supreme Court to appeal and why not seek an urgent hearing in the Supreme Court?
My second objection to this Bill—I shall be more speedy on this subject—is its substance. If the Secretary of State’s appeal were to succeed, the problem would go away. Those denied benefits for the period up to 12 February were correctly denied benefit and they have no claim. But if the Supreme Court upholds the judgment of the Court of Appeal or if, as I suspect will happen if this Bill is enacted, the Government do not pursue an appeal, this Bill will impose a penalty on persons who acted lawfully under the law as it existed prior to 12 February. They are being penalised for refusing prior to 12 February to act in a manner in which they had no legal duty to act.
The Bill therefore offends against a basic constitutional principle that people should be penalised only for contravening what was at the time of their act or omission a valid legal requirement. If this Bill becomes law, Ms Reilly, the claimant in the case, and others will be penalised for failing to attend schemes when at the time of their refusal they had no legal obligation to do so. It is quite irrelevant that the people adversely affected are jobseekers. Indeed, one might think that if the victims are from the most disadvantaged section of society, it is all the more important to maintain basic elements of the rule of law.
I have seen a letter dated 18 March from the Minister to the noble Lord, Lord McKenzie, explaining the Government’s position. For reasons I do not understand,
the letter was not sent to the chairman of the Constitution Committee but we did receive it by a very indirect route. One sentence on page 2 of the letter, the substance of which was repeated today in the Minister’s opening remarks, stands out. The Minister said:
“It would … be unfair if claimants who have failed to comply with requirements … obtained an undeserved windfall payment”.
The Minister repeated that language today.
That approach misses the central point which I have sought to emphasise. The claimants complied with all lawful requirements in existence at the date of their conduct. It may cost—who knows?—£130 million as a result. But I take the view—I hope that I am not the only noble Lord who takes the view—that the rule of law is simply priceless. One cannot put a price on complying with the rule of law and basic constitutional requirements.
Your Lordships’ Constitution Committee has drawn attention to these matters at paragraphs 13 and 14 of our report. At paragraph 15, we concluded:
“In scrutinising this Bill, the House will wish to consider whether retrospectively confirming penalties on individuals who, according to judicial decision, have not transgressed any lawful rule is constitutionally appropriate in terms of the rule of law”.
I would be assisted if the Minister would answer that point and would address the reasoning and the concern of the Constitution Committee.
I am not impressed by the arguments that the legal defects identified by the Court of Appeal may have been technical in nature. That is quite irrelevant. The point is that the Court of Appeal found—this is the law unless overturned by the Supreme Court—that the regulations were unlawful and the people who failed to turn up for job schemes were acting perfectly lawfully under the law at that time.
In conclusion, I say to your Lordships that there is no justification whatever for fast-tracking this Bill. Moreover, if that were not bad enough, its contents offend against a basic constitutional principle. I very much regret that this Government should see fit to bring forward such a legislative proposal. If the noble Lord, Lord McKenzie, chooses to divide the House on his Regret Motion, or perhaps more accurately his deplore Motion, he will have my support.
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