Mr John Saunders, Mr Jonathan Teasdale and Mrs Susan Sutherland

28 APRIL 2008

  Q20  Mr Dorrell: My Lord, the bit dealing with employment of children is the only set of statutes here that—I do not think I was responsible for any of them as a Minister but they were certainly passed at the time that I was a Minister with responsibility for children in England. The Scottish piece of legislation went through. Just reading this piece, it seems as though there was a fair amount of muddle about where responsibility for this issue lay and the drafting, in particular of the Children Act 1989, seems to have left something to be desired in terms of where responsibility lay and what the implications of the new piece of legislation were for the provisions of previously existing legislation. Is that a fair criticism effectively of the Parliamentary draftsman at the time? Or indeed of Ministers who are responsible for the words drafted by Parliamentary draftsmen?

  Mr Teasdale: I would cautiously say perhaps it lay on that side rather than Parliamentary Counsel. This is a strange piece of legislation because, as members will see, it is 1973, required to be brought into force, nothing happens, and then suddenly minds are exercised when we get first to 1996, and after that there is a European Directive which leads to, first, the Education Act 1996 and then we have two more pieces of legislation, regulations of 1998 and 2000, and it is at that point it appears that minds in the relevant department really get focused on this. The purpose of the 1973 Act in essence, which seemed perfectly valid at the time, was to have a single cohesive regulatory framework, and that would have been achieved by the Secretary of State having regulation-making powers. Up until that point, under the Children and Young Persons Act 1933,—the 1937 Act in Scotland,—the local education authorities had byelaw-making powers and I think the concern was that they required beefing-up, the penalties required looking at and there needed to be a more consistent approach. It does have to be said that byelaws in practice are made in accordance with model byelaws and that is actually a means whereby national consistency is achieved. Anyway, we move on to 1996. First we had the Education Act, which gives primary powers to local education authorities to serve notice on employers of school pupils—we are talking here about compulsory school age children—relating to employment which might be either prejudicial to health or prejudicial to educational requirements. So here comes a first piece of legislation tucked into the Education Act which starts to make part of the 1973 Act less necessary. Then these regulations, which are, as I say, derived from a European Directive, come on tap in 1998 and 2000, and they dramatically beef-up the byelaw-making powers in the 1933 Act. So the bottom line is the conjunction of the 1996 legislation together with the now beefed-up provisions of section 18 of the 1933 Act, which really render the earliest employment of children provisions otiose. This is quite interesting because we had some to-ing and fro-ing when we lighted upon this with the then Education Department, likewise their Scottish counterparts, and we said, "This looks as if it really is obsolete. What do you think about it? We are minded to recommend repeal." There was some concern and pause. Eighteen months to two years later, having continued to press them, the answer was "No, we have thought really hard about this and it is self-evident that these provisions, now beefed-up with these latest two sets of regulations, are adequate," and I can say to the Joint Committee that both north of the border and south of the border the relevant Education Departments are perfectly content for this to be repealed. So it was valid at the time but then things come along and get in the way later on.

  Q21  Lord Campbell of Alloway: Could I ask a question about this? So the position is that there is no need for any statutory provision because there is a European Directive. Could you identify it for me, please? What is the reference? In other words, I want the management, ownership and everything to do with the running of the thing explained.

  Mr Teasdale: Yes. If members look at page 125 in the Law Commission report, you will see reference to the European Directive, which was 94/33/EC of 1994. The Government in 1998 firstly made regulations to conform with that and then come along and have a second bite in 2000, and the effect of that, put simply, is that the byelaw-making provisions in section 18 of the 1933 Act are significantly amended. I can talk the Committee briefly through what happens. Two things happen. There are primary provisions plus the byelaw-making power. Firstly, the primary provision. There is a prohibition on children being employed under the age of 14 years, on doing other than light work, on working between certain hours, on working more than prescribed hours during the school week and during non-school time, with daily and weekly limits, and on working without a rest break. That is a clear, straight prohibition. Then the byelaw-making power comes into play and the byelaws can do several things. Firstly, they can authorise and regulate—this is in addition to the national arrangements—light work, which is defined in the regulations and the legislation, which is within specified categories, for children aged 13—remember that the prohibition was on under-14s earlier. It deals with employment for one hour before school, for example. It also prohibits in these byelaws work in specified occupations, and it prescribes or gives power to prescribe the minimum age for work, the maximum hours for work, the rest intervals, holidays, other conditions, the need to have compliance with a work permit and the production of employment records. There are actually, I should just say in parentheses, separate byelaws relating to children involved in street trading—that was section 20—and there are separate provisions relating to children being involved in entertainment, but in straight work within shops and light industrial premises these byelaw-making powers are now significantly altered and significantly beefed-up.

  Q22  Lord Campbell of Alloway: So we have moved out of the area of domestic legislation. We cannot by our own Parliament amend the European Directive and we are wholly dependent upon the management provisions of the European Directive.

  Mr Teasdale: My Lord, in a sense you are not, because, of course, if the 1973 Act provisions had been triggered quickly, in 1974, you would have had a regulatory regime which would have run right from, say, 1974 to at least 1994. It is only because that is not done and because the European Directive comes on stream, then, as you rightly say, my Lord, you have to then convert that into regulations, so we have this tranche of regulations in 1998, 2000 and another little one in 2000 (the number 2 regs) that you then complete the picture. But it is driven at that stage, as you rightly say, by Europe.

  Q23  Lord Campbell of Alloway: I hope I have got it right. We cannot introduce regulations. They have to be Commission regulations or European regulations. We cannot just introduce any form of management into it unilaterally.

  Mr Teasdale: Parliament has a limited discretion. I do not pretend to be a European expert for one moment, but it has a limited discretion as to how it translates the European Directive into domestic legislation. So long as it keeps within the parameters of the European Directive, it has a limited room for manoeuvre but the bottom line is, as you rightly say, now Europe has said this is the way it has to be done, yes, the UK Parliament has accepted that is the position, has put the regulations in place and has taken it back to the 1933 Act and beefed that Act up. But the bottom line is, so far as I can tell, that you now have a good solid working regulatory regime, which is byelaw based.

Lord Campbell of Alloway: Thank you very much.

  Q24  Mr Cash: Could I just come back to two other points? One is that I noticed anecdotally that the original enactment was introduced by Lord Archer, as Mr Jeffrey Archer, MP, in 1973. Was he consulted about the repeal of this great enactment of his, I wonder?

  Mr Teasdale: No, he was not.

Mr Cash: The other thing is that I come back to the point I made—and this follows on from what Lord Campbell was saying—that if one wants to interfere—this is a lower-case example of the problem but it is a matter of principle—if you want to interfere in any way through Westminster with European legislation, and that would include repeal, and you run counter to European legislation, in a nutshell—and this is Denning in Macarthys v Smith, it is Diplock in Garland and Lord Justice Laws in Thoburn—you actually specifically have to state unequivocally that you are intending to override the 1972 Act and effectively therefore instructing the judges that they have to take note and to enforce that latest Westminster enactment which is inconsistent with European legislation. It can be done, because the words in the judgements are not merely to repeal the treaty. It also says "or any provision in it". So the question is simply that. I do not want to make a meal of this but would it not have been more sensible, or at any rate convenient, to have included the words "notwithstanding the European Communities Act 1972" to guarantee the effectiveness of the repeal that you are now proposing in relation to this protection of children?

Chairman: As I understand it, the protection of children is secured in any event by other legislation and therefore there can be no question of a breach of the European legislation arising by the repeal of this Act.

Mr Cash: No, I do not think that is quite the question, my Lord, if I may say so. I think the issue of whether or not there is protection of children is something we would all advocate. The question, however, as a matter of law—and we are sitting here as a technical Committee looking at the repeals system—is whether in fact it is effective in law as compared to whether or not there are provisions which have survived. I am simply asking the questions and I am not sure what the answer is. I know what the principles of law are but I am not sure that you can easily repeal legislation which impinges on Europe because, just as on the one hand, if they pass a regulation or Directive, it can have an implied repeal on our legislation, so conversely, if we seek to repeal it, I would have thought we needed to include the words "notwithstanding the European Communities Act 1972". I am open to thoughts from our experts on this.

Mr Dorrell: Can I offer, my Lord, a slightly different interpretation? Surely, provided after the repeal that is proposed our law still complies with the European Directive, then we are compliant in European law and we have a more up-to-date UK statute law, and therefore that is win-win.

Mr Cash: That may well be the position but providing you have not in fact infringed European law. I am very happy to do that but I am interested to know whether that has been the effect.

Chairman: Obviously, if the result were to put us down below the minimum standards set by the European legislation, the question would arise but if, as I understand it, that does not arise, the legislation which remains, the more modern legislation, maintains a standard which complies with the Directive, then in that situation I would have thought no problem arose.

  Q25  Mr Dorrell: My point in raising this, my Lord, was a slightly different one but I think that, if we can take it for these purposes there was a consistent desire to comply with the relevant European Directive, what appears to have happened is that the various pieces of legislation that went through from 1973 onwards did not take proper account of each other at the time that the new pieces of legislation were put on the statute book, and I just hope that that point will be taken away, because that will reduce one element of the requirement for retrospective repeals.

  Mr Teasdale: My Lord Chairman, I think Mr Dorrell is almost certainly right about that. I will be honest and say I have not researched Hansard in all those aspects, but the point is correct, that the current legislation to all intents and purposes replicates that which was available in 1973. It may have been—and I have not looked at the 1996 Hansard, and there will not be very much anyway on the regulations—that the 1973 Act was overlooked in debate but I think, in fairness to Parliamentarians at the time, of course, the 1973 Act was not commenced. It was sitting there not as a piece of active law. I think that is what you are seized of today. It was something that Parliamentarians, Ministers, had not for 25 years thought fit to activate. But the general position is that Mr Dorrell is right, I think.

  Q26  Lord Campbell of Alloway: Is there a vacuum, putting it in a rather odd way, that requires that it should be filled by our process of law, if I am making sense?

  Mr Teasdale: My Lord, there is not today, in the sense that the Directive is there. Putting aside moral arguments about protection of children, the Directive is there. It would need to be implemented. Of course, the bottom line is—it has been implemented. It has been done seemingly thoroughly by three sets of regulations amending the 1933 Act, and therefore that renders the need for the 1973 Act now long since gone. So I do not think you have a vacuum. I think the issue has been properly addressed. If it was not, I do not think we could ...

Chairman: There has not been an enforcement provision, measures taken by the European Commission on the basis that we were in breach of the Directive, so I think we can take it that we are all right. Are there any other questions?

Mr Cash: I am slightly intrigued by one last point, and that is the Historic Buildings and Ancient Monuments Act 1953, which is on page 26 under item 7.

Chairman: That is actually Schedule 2. Please restrain your enthusiasm. We have not got there yet.

Mr Cash: We have that pleasure still in store.

Chairman: Yes. Apart from that, anything else on Part 11 of Schedule 1? No. In that case the question is that Schedule 1 be the first Schedule to the Bill. As many as are of that opinion will say "content", the contrary "not content". The contents have it.

  The same is agreed to.

  ON SCHEDULE 2

Chairman: Now we come to Schedule 2, and we can now take the question on the Historic Buildings and Ancient Monuments Act 1953.

  Q27  Mr Cash: I was just looking for the reference. I just wondered. I have historic buildings as one of my interests. I am interested to know that it does not actually override these arrangements and why.

  Mr Saunders: This is a purely technical amendment. That is a consequence of the repeal, in Part 9, of section 12 of the Town and Country Amenities Act 1974. The 1974 Act amended the 1953 Act.

Mr Cash: What page is it in this great volume?

Chairman: It is page 128 in the slim volume.

Mr Cash: Did you consult the Historic Houses Association, by any chance? I only mention that because they are the repository of all matters of this kind. They are the sort of trade association for historic house owners. It does not look very important, I have to say.

  Q28  Chairman: It is preserving the existing law, is it not?

  Mr Saunders: The law is not being changed at all.

  Q29  Chairman: It is to ensure that it is not changed.

  Mr Saunders: It is putting a patch on an earlier Act to ensure that what we are doing now does not affect the earlier Act ,so the law has not been changed at all.

Mr Cash: Fair enough. OK.

Chairman: Are there are any questions on Schedule 2? In that case, the question is that Schedule 2 be the second Schedule to the Bill. As many as are of that opinion will say "content", the contrary "not content". The contents have it.

  The same is agreed to.

  ON THE TITLE OF THE BILL

Chairman: The question is that this be the title of the Bill. As many as are of that opinion will say "content", the contrary "not content". The contents have it.

  The same is agreed to.

Chairman: Finally, I propose that the terms of our report should be as follows: "The Committee has considered the Statute Law (Repeals) Bill which was referred to it and also the Report of the Law Commission and the Scottish Law Commission on the Bill. We have heard evidence on the Bill. The Committee is of the opinion that the enactments proposed to be repealed are no longer of practical utility, and we approve their repeal. There is no point to which the special attention of Parliament should be drawn." That will be the first report of the Joint Committee for this session. It is my pleasure to invite Mr Dorrell to present the report to the House of Commons and also to report the minutes of proceedings. I would ask leave of the members of this House to make the report to the House of Lords. That is our business. I am very grateful to members of the Committee.

Mr Dorrell: May we once again congratulate you on your skilful and good-natured chairmanship of the Committee, my Lord.