I recognise that participation in proceedings is not the only aspect of the issue raised by my noble friend Lord Norton of Louth. Some noble Lords have suggested
that the facilities in the House are not able to cope with the current level of attendance. While that is a matter for the Chairman of Committees, we should not overstate the extent of the problem. We know that there is plenty of spare capacity in our restaurants, for example; indeed, the problem we have is too few people eating in them rather than too many. While desk space for Members has always been at a premium, we currently have more accommodation than before, thanks to the acquisition of Millbank House. Figures presented to the House Committee earlier this year showed that there were desks which had not yet been allocated to individual Members. In terms of research capacity, something about which Members are concerned, noble Lords may like to know that the number of Library staff has increased from 31.5 full-time equivalents in 2007 to 38.5 today.
On the cost of the House—and, indeed, the cost of politics, which was raised by a number of noble Lords, including my noble friend Lord Norton of Louth and the noble Lord, Lord Hunt of Kings Heath—the cost of the House of Lords has not gone up: it has gone down. The resource budget for the current financial year, including the costs of Members’ allowances and expenses, is £4 million lower than it was in 2010-11. That is equivalent to a real-terms cut of 15%, which is a considerable achievement by the administration, on which we would all want to congratulate them.
There obviously is a cost for new Peers, and I recognise that. My noble friend Lord Norton asked me what it was. It is hard to predict precisely because, of course, it depends on attendance and on how much an individual Member will claim. On future numbers, it is clearly hard for me to predict what any future Government might do on appointments. The noble Lord, Lord Hunt of Kings Heath asked me whether I accepted that the mood of the House was that it would not welcome any more new Peers before the next general election. Obviously, I am very aware of the mood of the House in that regard.
A number of suggestions were made by noble Lords as to ways forward. Many of them would require legislation to achieve. I will briefly update the House. We have had a bit of discussion about what we are calling the Byles Bill. As my noble friend Lord Tyler reminded us, there was a government proposal for an elected House that would have dealt completely with my noble friend Lord Norton’s question about size by reducing the House to around 450 Members. However, following the failure of that Bill to emerge from the other place, the Government have made it clear that they do not intend to bring forward any further relevant legislation for the remainder of this Parliament.
There has, however, I am glad to say, been progress on some other issues which have been raised today, particularly in connection with retirement. Here, I share the greater optimism of the noble Baroness, Lady Hayman, rather than the pessimism of my noble friend Lord Tyler. The House of Lords Reform (No. 2) Bill, more commonly known as the Byles Bill—but which, down at our end of the building, we still rightly think of as the Steel Bill—has been making some progress. I know that we are all grateful to my noble friend Lord Steel of Aikwood for his work over many years in pursuing that objective.
The Byles Bill would make a number of modest but, I think, sensible changes. It would allow permanent retirement and resignation and the exclusion of non-attenders, and would expel those convicted of a serious criminal offence. I am sure that the House would value having a formal system whereby Members could resign or retire with dignity. I should, however, say for the record that I do not believe—I know that this view is shared by the leaders of the party groups and the Convenor, as it happens—that retirement with dignity is compatible with any system of financial incentives to encourage that retirement. This point was also made by my noble friend Lord True.
I know that in the past some noble Lords have raised with me what possible rationale there could be for opposing some kind of payment on retirement. I have two main reasons for opposing it, which I think are shared by the other group leaders. The first reason is one of principle and the second is practical. The issue of principle is, quite simply, that it is an honour to be here, not a job; noble Lords are given an allowance, not a salary. If noble Lords decide that it is time to retire, they should do so, and if they are no longer coming, they should not require an allowance.
The second reason is a practical one to do with the reputation of the House, about which we have heard a lot this afternoon. I think that the outside world would take great exception to the idea that a Peer who has already had the honour of serving in your Lordships’ House would receive a lump-sum payment from the taxpayer for stopping doing so. I hope very much that the Government’s support for the Byles Bill will help it complete its passage through the other place, and I look forward to its progression through this House and, in due course, on to the statute book.
The House could take other measures short of legislation, some of which have been set out in the recent report by the Commons Political and Constitutional Reform Committee and in a paper by the Clerk of the Parliaments. I am not able to pre-empt the Government’s response to the committee’s report. However, some of the issues that were raised in that report are matters for this House alone to determine. For example, the report suggested that retirement from this House could be marked in a more formal way, both in the Chamber and outside. Another proposal was that the leave of absence scheme could be further strengthened to build on the success of the recently introduced practice of the Clerk of the Parliaments inviting infrequent attendees, at the beginning of each Session, to take leave of absence. I am very happy to see whether we can make progress on those points. I welcome any suggestions from noble Lords on what an enhanced retirement ceremony might look like, and on how the leave of absence scheme could be further improved.
On specific points that have been raised with me, my noble friend Lord Cormack suggested the establishment of a Select Committee or some other group to consider possible ways forward. As I am sure he knows, I am always happy to talk to him and other noble Lords. Our challenge is not that there is a shortage of suggestions as to what we might do—we know what they all are and we have discussed them many times. Our challenge is to secure political agreement,
not so much in this House but with Members at the other end, and to make progress with them.
The noble Lord, Lord Hunt of Kings Heath, talked about balance in the House—a point I referred to before. It is the case that together, the two coalition parties add up to about 41% of the House. We all know that there are a range of issues where a combination of opinion from the Cross-Benches, Labour and some coalition Peers—on both sides of the coalition—can readily defeat the Government and cause them to think again. A good example of that, which I am sure the noble Lord has been involved with, is the issue that I hope we will try to resolve next week around the lobbying and transparency Bill.
On the question raised by the noble Baroness, Lady Hayman, about a proportion of Peers from the minority parties, I am not convinced that I will be able to give her an answer that she would consider satisfactory, any more than my predecessor did. The best I can say is that that formulation was intended as a general statement of approach rather than a precise mathematical formula. We should not consider it as the latter; that is, in a way, borne out by the practice which the Prime Minister himself has observed since the general election. If the precise formula had been followed, many more Peers from the coalition parties would be joining your Lordships’ House.
My noble friend Lord Caithness asked about the possibility of creating a different kind of peerage—a non-sitting peerage. To do that, we would have to legislate to create a new and different kind of life peerage. Another approach, I suppose, would be to restart the practice of creating hereditary peerages, which would not entitle holders to membership of the House. But I am not sure that I would be able to make much progress with that suggestion.
My noble friend Lord Maclennan raised a point about a constitutional convention. I take the point about the importance of the referendum in Scotland. My view, which I know is that of many noble Lords, is that our focus should be on making sure that that referendum is won by those who want to keep the United Kingdom united and the union together. So I am not keen on crossing bridges which I do not believe we will need to cross. It is also the case, on the narrower aspect of the future of your Lordships’ House, that the three main parties in their last manifestos reached a broad consensus on their preference, which was for an elected House.
A lot of important points have been raised. We are very grateful to my noble friend Lord Norton for giving us the opportunity to consider them again. Some steps we have taken; we all look forward to the Byles Bill coming next year. I know that we will come back to these issues in future, including the one about women Bishops raised by the right reverend Prelate the Bishop of Leicester. I know that the Government will do what they can to help the church take forward its desire to see women bishops in your Lordships’ House. But pending more fundamental reform that would decisively address the issues that have been raised, we should focus on the important job with which we are all tasked, and which we are performing very well. We are a House that has cut the cost of running itself and
has increased opportunities for Back-Benchers to scrutinise the Government—and, above all, we are a House that continues to do its core job of scrutinising legislation rigorously, purposefully and effectively.
5.27 pm
Lord Norton of Louth: My Lords, I am grateful to all those who have spoken, and to my noble friend the Leader of the House in particular for replying to the debate. I also appreciate greatly the contribution of the noble Baroness, Lady Hayman, who is speaking in her third debate today. I thought that she encapsulated the point extremely well—size matters. Many of the speeches demonstrated concerns felt in different parts of the House.
This House clearly performs valuable functions; I do not think that the functions are in doubt. Nor is the fact that the House fulfils them effectively. I think that we do a very good job indeed; that is the great merit of the House. We tend to do the work extremely well, and I think that we should proclaim that fact. But my point is that the growing size of the House does not facilitate us in fulfilling those functions effectively. As I have said, it is only one aspect that we need to address, but it is an important one.
I say to my noble friend Lord Caithness that we will continue to have these debates until action is taken. He himself went on to refer to the problem of numbers, and came up with one or two ideas, one of which I would fully endorse—it is something that I have supported for some time. We need to think through the implications of the fact that we continue to grow. It is that dynamic element that my noble friend Lord True did not really address. Nor, to some extent, did my noble friend Lord Hill. We need to have a clear view as to what we believe is the optimum size of the House—and then, within that, the distribution among the different groupings. As my noble friend Lord Tyler indicated, we have not really had that discussion. That, I think, should be our starting point.
I endorse the comments of a great many noble Lords who have spoken. I am grateful to my noble friend Lord Hill for what he said, as far as he felt able to go. However, I am sure that he will understand when I say that we will push him to go further. I end with a quote addressed to those who think that things are fine as they are. Burke said:
“A state without the means of some change is without the means of its own conservation”.
Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2013
Motion to Approve
5.30 pm
Moved by Lord Taylor of Holbeach
That the draft order laid before the House on 2 December be approved.
Relevant document: 15th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, the Government are determined to do all that they can to minimise the threat from terrorism to the UK and our interests abroad. Proscription is an important part of the Government’s strategy to tackle terrorist activities. We propose to add Imarat Kavkaz, also known as the Caucasus Emirate, to the list of international terrorist organisations, amending Schedule 2 to the Terrorism Act 2000. This is the 13th proscription order under that Act.
Having carefully considered all the evidence, the Home Secretary believes that Imarat Kavkaz meets the statutory test for proscription and that it is appropriate to exercise her discretion to proscribe it. Section 3 of the Terrorism Act 2000 provides a power for the Home Secretary to proscribe an organisation if she believes it is currently concerned in terrorism. The Act specifies that an organisation is concerned in terrorism if it: commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism, including the unlawful glorification of terrorism; or is otherwise concerned in terrorism. If the test is met, the Home Secretary may then exercise her discretion to proscribe the organisation. In considering whether to exercise this discretion, the Home Secretary takes into account a number of factors: the nature and scale of an organisation’s activities; the specific threat that it poses to the United Kingdom; the specific threat that it poses to British nationals overseas; the organisation’s presence in the United Kingdom; and the need to support other members of the international community in tackling terrorism.
Given the wide-ranging impact of proscription, the Home Secretary exercises her power to proscribe only after a thorough review of the available relevant information and evidence on the organisation. This includes open source material, intelligence material and advice that reflects consultation across government, including with the intelligence and law enforcement agencies. The Home Secretary is supported in her decision-making by the cross-Whitehall proscription review group. Decisions to proscribe are taken with great care by the Home Secretary and it is right that the case for proscribing new organisations must be approved by both Houses.
Having carefully considered all the evidence, we firmly believe that Imarat Kavkaz is currently concerned in terrorism. Noble Lords will appreciate that I am unable to comment on specific intelligence that leads to any decision to proscribe, but I can provide a brief summary of its activities. Imarat Kavkaz, or the Caucasus Emirate, is a terrorist organisation which seeks a Sharia-based caliphate across the north Caucasus. It regularly uses terrorist tactics and has carried out attacks against Russian state and civilian targets. The organisation claimed responsibility for the January 2011 suicide attack on Domodedovo Airport in Moscow that killed 35, including one British national, and a suicide attack on the Moscow metro in March 2010 that killed 39. Since then, there has been continued activity by Imarat Kavkaz, including renewed threats of activity in Russia made during the summer of 2013. The organisation is designated by the US and listed by the UN under the
al-Qaeda sanctions regime. Subject to the agreement of this House, the order will come into force on Friday, 13 December.
In conclusion, I believe it is right that we add Imarat Kavkaz to the list of proscribed organisations under Schedule 2 to the Terrorism Act 2000.
Lord Rosser (Lab): The Minister explained the statutory power available to the Home Secretary to proscribe an organisation that she believes is currently concerned in terrorism and the factors that she has to take into account before exercising her discretion. The United States proscribed Imarat Kavkaz in 2011 after it was linked to the two deadly attacks in Moscow to which the Minister referred—namely at the international airport, when 35 people were killed, and in the Moscow metro, in which 39 people were killed. Imarat Kavkaz was formed in late 2007 and is an Islamic militant organisation based in Russia’s north Caucasus. Its stated goal is the liberation from the control of Moscow of what it considers to be Muslim lands. It regularly conducts attacks against Russian security forces and is linked to al-Qaeda.
We support the order, but I have three points to raise. When the order was discussed in the House of Commons on Tuesday, Diana Johnson MP asked the Minister in the other place about the effects of proscription on the social media, given that Imarat Kavkaz has a number of Facebook pages, and a range of fan pages are directed towards its leader. She asked the Minister to,
“clarify whether Facebook will be prohibited from hosting such fan pages and allowing people in the United Kingdom to access them once the group is proscribed”.
“The group’s Facebook page has been referred to the Counter Terrorism Internet Referral Unit, which has responsibility for assessing such issues. If the site is assessed to be illegal, the CTIRU will flag that up with Facebook directly and have it taken down”.—[Official Report, Commons, 10/12/13; cols. 204-05.]
I appreciate that it is only two days since that question was asked but this order, as the noble Lord said, is due to come into effect tomorrow. What, then, is the position in relation to the group’s Facebook page? This is the 13th order of this kind to be laid. Does the Minister know whether previously proscribed organisations had Facebook or any other social media pages and, if so, whether those pages have been taken down?
The consequences for a proscribed organisation are considerable for both the organisation and its adherents. It is a criminal offence for a person to belong to or invite support for a proscribed organisation. It is also a criminal offence to arrange a meeting in support of such an organisation, wear clothing or carry articles in public that arouse reasonable suspicion that an individual is a member or supporter. A proscribed organisation or any person affected by the proscription may apply to the Secretary of State for deproscription. If the Secretary of State refuses, the applicant may appeal to the Proscribed Organisations Appeal Commission. First, how many separate applications for deproscription have been made to the Home Secretary since the Terrorism Act 2000 came into force? Secondly, how many appeals have been made to, and been determined by, the Proscribed Organisations Appeal Commission over the same timescale?
Time-limiting proscription was recommended by the independent reviewer of terrorism legislation, David Anderson QC, who felt that a proscription order should be subject to a review after a fixed period, following which it could be renewed or would lapse. My final question is: what is the Government’s position on David Anderson’s recommendation?
Lord Taylor of Holbeach: My Lords, I hope that I shall be able to answer most of the points raised by the noble Lord, Lord Rosser. I appreciate his support for the order. I strongly believe that Imarat Kavkaz should be added to the list of proscribed organisations.
The noble Lord asked a number of questions. The first was about the internet and the relationship of this proscription and others to organisations such as YouTube and Facebook. We have been removing illegal terrorist content from the overt space where it is hosted in the UK or overseas and we have good relationships with those in the industry—for example, YouTube and Facebook. To date, the Counter Terrorism Internet Referral Unit, which the noble Lord referred to in commenting on the reply in the Commons, has removed more than 18,000 pieces of illegal material. This particular group’s Facebook page has been referred to the Counter Terrorism Internet Referral Unit. If it is assessed as illegal, the CTIRU will flag this directly with Facebook for removal.
The noble Lord also asked about applications for deproscription. There has been none since 2009, and indeed there have been no appeals to the POAC. There was one successful appeal in 2007-08 by the PMOI as a result of a judicial review of the case, as the noble Lord will be aware.
The noble Lord’s last question was about the recommendation made by David Anderson. We obviously take note of that, and indeed matters have been set up. In response to David Anderson, the Home Secretary said that under the current regime any person affected by a proscription can submit a written application to her requesting that she considers the removal of a specified organisation from the list. The Home Secretary is required to determine the application within 90 days. If the Secretary of State agrees to deproscribe an organisation, she will lay an order before Parliament removing it from the list of proscribed organisations. That is subject to the affirmative procedure, as is this order. The Home Secretary’s consideration of these matters following applications from the groups themselves is an effective process. There is a right of appeal and challenge, should the Home Secretary’s decision be negative. Any valid application for deproscription will be considered by the Home Secretary in accordance with the Act. I hope that that helps the noble Lord.
Lord Rosser: Does that response mean that the Government are not looking at going down the road of what I understand to be his recommendation—time-limiting proscription, which would be subject to a review after a fixed period, following which it could renewed or it would lapse? Are the Government not looking to doing that?
Lord Taylor of Holbeach: I have described the position, and I have a note here which helped me to do so. It presents the Home Secretary’s role and the Home
Office’s view on the best way of dealing with deproscription, subject to application and considered within 90 days. In the event of a negative response there is a right of appeal. That is the current procedure and it would apply to any of the current 14 bodies that have been proscribed through the order.
Legislation: Gender-neutral Language
Question for Short Debate
5.45 pm
Asked by Lord Scott of Foscote
To ask Her Majesty’s Government what guidance they issue to Parliamentary Counsel with regard to the use of gender-neutral language in the drafting of legislation.
Lord Scott of Foscote (CB): My Lords, on 8 March 2007 the right honourable Jack Straw, the then Leader of the House of Commons, issued a Written Ministerial Statement. The same Statement on the same day was issued by the noble Baroness, Lady Amos, in this House. It related to the use in the drafting of legislation of male pronouns—he, his and him—in context where the individual referred to might change from time to time and might be either a woman or a man. The Statement said:
“Many believe that this practice”—
the practice of using male pronouns—
“tends to reinforce historic gender stereotypes”.
He went on to say that the Government took the view,
“that it would be right, where practicable, to avoid this practice in future and, accordingly, Parliamentary Counsel has been asked to adopt gender-neutral drafting. From the beginning of next Session, Government Bills will take a form which achieves gender-neutral drafting so far as it is practicable, at no more than a reasonable cost to brevity or intelligibility”.—[
Official Report
, Commons, 8/3/07; col. 146WS.]
However, as the Statement expressly recognised, the drafting practice of using an apparently gender-specific pronoun to apply both to men and to women had received the imprimatur of Parliament by the enactment of Section 6 of the Interpretation Act 1978. Section 6 of the 1978 Act provides inter alia that:
“In any Act, unless the contrary intention appears … words importing the masculine gender include the feminine … words importing the feminine gender include the masculine … words in the singular include the plural and words in the plural include the singular”.
Section 23(1) of the 1978 Act made it clear that Section 6 was applicable not only to Bills and Acts of Parliament but also to statutory instruments.
It follows from Section 6 that the use in both primary and secondary legislation of apparently gender-specific pronouns is a use of pronouns that are in law, subject of course to the context, gender-neutral. They are no longer in their effect gender-specific. None the less, the obvious purpose of the 8 March 2007 Statement was to discourage the use in legislation of the masculine pronouns—he, him and his—except, of course, where the individual was known and was male.
There are, however, two objections to the drafting instructions given to government officials pursuant to the 8 March 2007 Statement. The first is an objection
of principle. The 1978 Act is not an ancient Act that could be regarded as out of date or overtaken by obsolescence. Section 6 represents Parliament’s considered guidance to the use in legislative instruments of gender-related words. The guidance was followed for many years. It avoided ambiguity in the construction of legislative instruments and brought clarity to the identification of the persons to whom the legislative provisions in question were intended to apply.
It may be that the drafting habit of using in legislation pronouns importing the masculine gender and relying on Section 6 of the Act to enable the pronouns to apply also to persons of the feminine gender as well offends some people’s notions of gender equality. However, it was never more than a habit. That habit could, of course, be adjusted and remedied. If the officials who draft legislative instruments were to be instructed to use from time to time the feminine pronouns—she, her, hers—instead of the masculine pronouns, relying therefore on Section 6 of the 1978 Act to include the masculine, context permitting, why not let Section 6 have the gender-neutralising effect that Parliament intended in enacting the section in question?
In principle it is inappropriate and, indeed, objectionable for government Ministers to instruct their officials to adopt a drafting practice that simply ignores the provision that Parliament, through legislation, has made for dealing with the perceived problem of gender stereotyping.
My second objection, however, is bred from my perusal of statutory instruments drafted, I suppose, in pursuance of the instructions given pursuant to the March 2007 statement. I have had the privilege of being for some years a Member of the House’s Secondary Legislation Scrutiny Committee and I hope the House will bear with me if I refer it to the language used in some of the statutory instruments that have recently come before that committee.
In Statutory Instrument 2013 No. 2828, Regulation 2(2)(b) refers to a child who,
“by virtue of his or her disability”,
cannot be expected to share a bedroom. Regulation 3(2)(b) repeats the reference to “his or her disability”. The child in question might of course be a child of either sex, so the use of “his or her” is correct. However, the Explanatory Notes to the statutory instrument explaining that regulation refer instead to “their disability”, but then use “is”, a singular verb form, as the following verb.
Regulation 4(3) of the same statutory instrument adds a new Regulation 12 to the Universal Credit Regulations 2013. The new Regulation 12(1) states that “A renter”—that is, a singular noun—
“is entitled to an additional bedroom if they”—
a plural pronoun—“satisfy”—a plural verb form—“various conditions”. So there is the use of a plural pronoun and verb form, “they satisfy”, after a singular noun, “A renter”. This language reads very oddly, particularly as it is then followed by the use of “are”, a plural verb form.
Secondly, the Explanatory Memorandum which accompanied Statutory Instrument 2013 No. 2827 and Statutory Instrument 2013 No. 2828 uses in several
paragraphs the plural pronoun “their” followed either by the plural verb “are”, which in the context of a reference to a single person makes no sense, sometimes followed by the singular verb “is” which, combined with the plural pronoun “their”, also makes no sense.
Paragraph 7.4 has a sentence beginning,
“The claimant or their partner is a person”,
“an adult who is not the claimant’s partner if they are part of the claimant’s Extended Benefit Unit”.
Paragraph 7.5, says that “a severely disabled child”—that is a single person—
“who would otherwise be expected to share is not able to do so due to their disability”.
“any child who meets the qualifying criteria and is occupying the dwelling as their primary residence”.
It goes on further in the same paragraph: “a child who requires”—singular verb form—“their”—plural pronoun—“own room”, and so on. It may also be noted that paragraph 7.20 refers to,
“a child who requires their own bedroom”,
while paragraph 7.23, when referring to a “child”, says,
“They are not reasonably able to share … because of their disability”.
That language, I respectfully suggest, is somewhat absurd.
Thirdly, the so-called Keeling schedule to SI 2013/2827 and 2013/2828 has a number of oddities. In the references to SI 2006/213, SI 2006/214 and SI 2013/376, the masculine pronouns “he”, “his” and “him” are used, leaving Section 6 of the 1978 Act to extend the references to women. But Schedule 2 to the proposed amendments to SI 2006/213 contains in paragraph 2(4) the following gem:
“where a son, daughter, step-son or step-daughter of the claimant who is the claimant’s non-dependant ceases”—
“to occupy the dwelling as their”—
plural pronoun—“home because they become”—plural pronoun and verb form—
“a member of the armed forces away on operations or subsequently resumes”—
“occupying the dwelling as their home”—
“on ceasing to be a member of the armed forces away on operations”.
What may be noted in particular is the use of “they” and “their”, plural pronouns, although the reference is to a single person, and the contrast between “become”, a plural verb form, and “resumes”, a singular verb form, all in the same sentence.
The next oddity is to be found in amendments made to the housing benefit regulations which provide, in paragraph 13D(2)(12) a definition of “occupiers” that includes in sub-paragraph (b) the following,
“any member of the armed forces who, (i) is the son … of the claimant,(ii) was the claimant’s non-dependant before they became a member of the armed forces away on operations, and (iii) intends to resume occupying the dwelling as their house when they cease to be a member of the armed forces away on operations”.
Noble Lords should note the incongruity of including “they become”, a plural verb form, and “intends to resume”, a singular verb form, in the same sentence.
Another example is the Policing Protocol Order 2011, SI 2011/2744. This statutory instrument refers in a number of places to the “Police and Crime Commissioner”, an individual who may be male or female, and to the “Chief Constable”, who also may be male or female. Paragraph 13 of this statutory instrument states:
“Each PCC and their respective Chief Constable are established in law as corporations sole”.
The statutory instrument refers, in several regulations, to the “Chief Constable”, and Regulation 23(f) refers to the “Chief Constable”,
“planning their policy functions in respect of their force’s … policing responsibilities”.
Lord Ahmad of Wimbledon (Con): If the noble and learned Lord would give way for a moment, this is a time-limited debate and the actual time limit is 10 minutes. As fascinating as his comments are, I think that he has reached the limit. Perhaps he will look to conclude his remarks.
Lord Scott of Foscote: To perorate, if you will. The statutory instrument continues with infelicities to the same extent as those that I have already mentioned.
The clarity of the language of the protocol is certainly not assisted by the use of grammatically inappropriate plural pronouns coupled with references to a single person. In my opinion, it is a matter of great regret that the instructions given pursuant to the 8 March 2007 statement to those who draft government legislation, were ever given. Statutes and statutory instruments ought not only to be clear and free of ambiguity, but surely ought also to stand as models for the correct use of the English language. To prostitute the English language in pursuit of some goal of gender equality is, I suggest, unacceptable. Moreover, it is quite unnecessary. Section 6 makes all apparently gender-specific pronouns in law gender-neutral, context permitting. In any event, there is no reason other than habit why it should always be male pronouns that are used when both men and women are intended to be referred to. By all means let those who do the drafting sometimes use feminine pronouns, relying on Section 6, where the context admits, to include men, or vice versa.
The drafting of which I have given examples—and there are more—is not only unacceptable and unnecessary but is, I suggest, an insult to the lovely English language, which to my regret is the only language that I am able to speak or understand. I therefore ask the Government to take steps to put an end to the appalling drafting of which I have given a few examples and to allow Section 6 to have the effect, and to achieve the gender-neutral interpretation of statutory language, that Parliament always intended it to have.
6 pm
Lord Mackay of Clashfern (Con): My Lords, the noble and learned Lord, Lord Scott of Foscote, has certainly raised an extremely interesting question. I believe that Parliament, in the Interpretation Act, set a
rule that is perfectly gender neutral in respect of the use of either male or female pronouns.
It is regrettable that this practice has taken place because statutes and statutory instruments have now become a very fundamental part of our law. I see no reason to suppose that that is likely to reduce to any extent in the future—rather, the opposite seems to be the case. That means that ordinary people, not just the courts and lawyers, have to try to understand these instruments. I would have thought that the cardinal principle is that the instrument should be reasonably clear and written in language that ordinary people would normally use in common speech. I am not sure how many of our statutes really come up to that degree of clarity. Indeed, if one approaches one of the current Bills without any knowledge of its antecedents, the task of trying to find out exactly what it means is quite formidable. To make it more difficult by using rather contrived constructions seems to be contrary to the best use of the statute book.
I notice that the briefing pack kindly prepared for us by the Library includes drafting guidance for the Office of the Parliamentary Counsel, which says:
“Some Acts have used ‘they’ or ‘them’ as a third person singular pronoun”.
“This use of the plural pronoun is thought by some to be grammatically incorrect, though it reflects common usage and is well-precedented in respectable literature over several centuries”.
I must say that I was slightly surprised when I read that, but it seems to be fairly authoritative. On the other hand, it does seem that it is not very common usage. Whether it is authoritative and approved by usage may be a matter of interest, but the common situation is that the grammatically correct interpretation would be as the noble and learned Lord, Lord Scott of Foscote, has described it. I should have thought that we want to give as many good examples of good grammar to our fellow citizens and to ourselves as we possibly can.
I would be very interested to hear from the Minister in due course how this particular practice, which has been decreed by the Leaders of both Houses in directions to parliamentary counsel, contributes to a greater degree of lucidity in our statutes and statutory instruments than would be the case without it.
6.04 pm
Lord Quirk (CB): My Lords, in this interesting debate, the noble and learned Lord, Lord Scott, has raised and memorably illustrated a problem which has two sources, one in grammar and the other in political history.
First, in grammar, like many other languages, English lacks an epicene third person pronoun that can have anaphoric reference to an ungendered antecedent—that is putting it in plain language. For literally hundreds of years, we have vacillated between solutions that partly fit the bill, especially “he”, which is third person and singular but not, of course, epicene, and “they”, which is third person and epicene but not, of course, singular. It is the danger of this “they” creeping into legislation that concerns the noble and learned Lord, Lord Scott, among many others.
I will illustrate this with an example from the policing Bill that is currently going through this House. In one of the Marshalled Lists, Amendment 56LG reads as follows:
“The owner of a dog commits an offence if they … are not able to control the dog in a public place”.
Of course, far more of the amendments employ the traditionally approved solution, using “he”, as in Amendment 58, which says:
“A person questioned … may not be detained … unless … he is a person falling within section 40(1)(b).”
In fact, gender neutrality is only one part of the grammatical problem. We lack also the means of expressing number neutrality. After all, when we speak of “anybody” or “everybody”, we are not concerned with specifically singular entities but, well, with everybody. This is another factor tempting us in the direction of “they”. It is not surprising that many of us avoid the singular/plural mismatch by opting for the plural in both antecedent and anaphora, as in, for example, “Persons who live in glass houses are asking for trouble if they throw stones”.
The second problem issue is political history. When the whole world was solidly male dominated, as large parts of it still are, few people were concerned about the casual assumptions implicit in the generic “he” and kindred expressions such as “mankind” or the Musée de l’Homme in Paris. After all, the word “woman” proclaims that she is merely a subcategory of man, as surely derived from him linguistically as Genesis tells us that Eve was derived from Adam biologically. However, in the past century, when women got jobs outside the home, and then better and better jobs, they started exerting themselves and they increasingly convinced most of us that their grievances included linguistic ones. With striking rapidity, we got used to hearing sentences such as, “Our doctor and her husband were at the meeting”, and we abandoned “policemen” and “firemen” for “police officers” and “firefighters”.
Of course, languages frequently embody glimpses of the past and past beliefs— even the noble Lord, Lord Rees of Ludlow, might speak of “tomorrow’s sunrise”—so, too, with sexist expressions, including our very own salutation, “My Lords”. If the English, brazen “Every man for himself” sounds particularly blatant, we should not forget that in “Chacun pour soi” “chacun” is not “chacune” and that in “Jeder für sich”, “jeder” is spelled with the masculine “r” and not the feminine “e”.
In my view, it was perfectly reasonable for Jack Straw in 2007 to call for an end to any such male stereotyping in our use of English, specifically rejecting the Interpretation Act 1978 and its reiteration of the convention that masculine pronouns are deemed to include feminine reference. If it ever worked, that convention no longer does, and there have been convincing psycholinguistic experiments showing that sentences such as “Anyone parking his car here will be prosecuted” predominantly call up images of a man doing the illicit parking.
To return to the policing Bill, we find that most amendments are thoroughly sensitive in this respect, with anaphoric reference employing “he or she” or repetition—“a person … that person”. But among the
minority using the traditional “he”, there are striking cases, especially in Amendments 93 to 95, where the singular masculine pronoun is used no fewer than 18 times. In all of them, the antecedent of “he” is surely a tell-tale phrase: “the judge”. Since we do indeed have a judiciary that is largely manned by men, it is hard to believe that the use of “he” in these amendments really means “he or she” rather than endorsing one particular male stereotype as a fact of life.
At least the amendments show reassuringly little intrusion of the controversial “anyone … they” formulation. Of course, we hear it daily in this House and read it daily in the press, but it has no place in the language of statute, where its comfortably colloquial imprecision is seriously unwelcome.
6.13 pm
Lord Kennedy of Southwark (Lab): My Lords, I want to place on record my thanks to the noble and learned Lord, Lord Scott of Foscote, for putting down this Question for debate today. Like other noble Lords who have spoken, I am looking forward to the response of the noble Lord, Lord Gardiner of Kimble.
As the noble and learned Lord, Lord Scott of Foscote, told the House, the drafting of primary legislation has for many years relied on Section 6 of the Interpretation Act 1978, under which words referring to the masculine gender include the feminine. Section 23(1) of the 1978 Act made it clear that Section 6 was applicable not only to Bills and Acts but to statutory instruments.
That changed on 8 March 2007, when my right honourable friend Mr Jack Straw, who was then the Leader of the House of Commons, issued a Written Ministerial Statement that was also issued as a Written Ministerial Statement in this House by my noble friend Lady Amos.
Along with the noble and learned Lord, Lord Scott of Foscote, English is the only language that I understand and speak, which is much to my regret as we are living in a global world where communication is key. Although I fear that I may not be as eloquent in my delivery as many noble Lords in this House, my accent is a mix of south London with Irish influences and a tinge of the east Midlands.
In preparation for this debate, I asked myself: what is the English language? As noble Lords will be aware, English is a Germanic language and is one of the most widely used languages in the world. It is spoken as the first language by majority populations in the United Kingdom, the United States of America, Canada, Australia, New Zealand, Ireland and a number of Caribbean nations. It is often widely chosen to be learnt as a second language, and is one of the official languages of the European Union and the United Nations. In terms of numbers of people speaking English as a first language, it comes third in the world behind Mandarin Chinese and Spanish. However, when combining native and non-native speakers, it is definitely the second most commonly spoken language in the world, if not the most commonly spoken. It is the required language of communication in seafaring, aviation and many other fields.
However, the English spoken by the early Germanic settlers from what is today the Netherlands, north-west Germany and Denmark is different and has evolved over the years into the language that we have today. Our language has developed with influences from Old Norse. A number of English words drew their construction from their roots in Latin, as Latin was the lingua franca of the Christian church and European intellectual life.
The Norman conquest of England in the 11th century gave rise to heavy borrowings from Norman French. All noble Lords will be aware of the use of Norman French in Parliament to signify some of the formalities of Bills passing. Many French words or phrases have crept into the English language, such as mirage, genre, coup d’état and rendezvous. The point is that the English we all speak today is a beautiful language that has a wonderful, rich literature for us all to enjoy, but it has evolved over time. That evolution is a consequence of our development as a nation and as a people, of our history and the influences that have shaped us and our history. It is not a stand-alone, stand-still language. It is growing, evolving, developing and shaping us into who we are today. That is how it should be.
I very much support the initiative undertaken by my right honourable friend Mr Jack Straw in 2007. I read with real interest the paper by Mr Christopher Williams in the Statute Law Review, “The End of the ‘Masculine Rule’?”. It is clear from the paper that we are not the first Parliament or institution in the world to adopt gender-neutral drafting. We follow in the footsteps of both Australia and New Zealand, which were probably the first English-speaking countries to embrace the principle of gender-neutral drafting.
Mr Williams’s excellent paper informs us that as far back as 1983, the Parliamentary Counsel’s Office of New South Wales adopted the policy, and on a national level in Australia it was adopted in 1988. Similar reforms happened in New Zealand in 1985. In Canada the policy was adopted in 1991-92, and with the election of President Mandela and the ANC Government, gender-neutral drafting was adopted in South Africa. Looking at international organisations, the United Nations adopted gender-neutral drafting during the latter half of the 1980s. The International Labour Organisation began drafting its conventions in a gender-neutral way at around the same time. The European Union began the switch in 1998, though you can find examples there where the masculine rule still applies.
My noble friend Lady Corston, when she was the Member for Bristol East in the other place, raised the issue in the Commons on 7 May 1995. It was reported in the Guardian on 9 March 2007 that my friend in the other place, Meg Munn MP, said:
“It may seem a small thing in one sense, but language is important. We have a society in which we believe men and women are equal, so why shouldn’t the law refer to us equally? Many other English-speaking countries do so already”.
I very much agree with the comments of my friend in the other place. You could say that we have not been quick off the starting blocks here. We took more of a long-term view, but correctly made the change in 2007.
I very much hope that the noble Lord, Lord Gardiner of Kimble, will tell the House when he responds to the debate that, moving forward, the changes announced by Mr Jack Straw are here to stay. In saying that, I accept fully that we are not going to go back and start rewriting laws just to change the language, but that, in a sensible and proportionate way as we move forward, gender-neutral drafting will become the norm. I also accept fully that we have to ensure that the legislation we pass does what it says on the tin and that there must not be any inconsistencies. We should work to achieve the maximum clarity in the laws we pass in Parliament.
As I see it, when we have a Bill making a minor change or textual amendment to an existing Act, it would not be sensible to go through and make a whole load of gender-neutral changes to the original Act. But, where you introduce a whole new Bill to put substantial new laws onto the statue book, you should seek to make sure that it is gender-neutral. I do not agree with the point made by the noble and learned Lord, Lord Scott, about the matter of principle, but I agree with him that the legislation we pass has to be clear. He highlighted skilfully to the House some of the issues and problems that we have with the drafting of statutory instruments. I am sure that the Minister will look seriously at them, when he takes this away afterwards because they have serious implications for the Government.
I am also of the opinion that our language evolves with us and reflects on us. As it illustrates who we are, it must make sense and not be difficult to understand. Nowhere is that more important than in the laws we pass. Again, I thank the noble and learned Lord, Lord Scott, for his interesting debate today. I thank all noble Lords who spoke and look forward to the response of the noble Lord, Lord Gardiner of Kimble.
6.20 pm
Lord Gardiner of Kimble (Con): My Lords, I congratulate the noble and learned Lord, Lord Scott of Foscote, on securing this debate, which has been informative and illuminating. It is somewhat daunting to reply to two noble and learned Lords and to the noble Lord, Lord Quirk, who is an expert in language and linguistics of some considerable renown. We were also reminded by the noble Lord, Lord Kennedy of Southwark, of the evolution of our language. All that has helped to inform this debate. While I know that some have reservations about the style of the legislation which has resulted from the use of gender-neutral language, I am sure that your Lordships will agree that the motives for making the transition were sound.
For many years parliamentary counsel, who draft legislation, relied on Section 6 of the Interpretation Act 1978, to which my noble and learned friend Lord Mackay of Clashfern and the noble and learned Lord, Lord Scott of Foscote, referred. That provision says that words referring to the masculine gender include the feminine, and vice versa. In practice, this means that male pronouns such as “he” were used in contexts where a reference to women and men was intended. This indeed aided brevity, but many people believed
that the practice tended to reinforce historical gender stereotypes. The noble Lord, Lord Quirk, gave your Lordships some good examples of that.
The policy of gender-neutral language in legislation was announced by the previous Government in a Written Statement on 8 March 2007, as the noble Lord, Lord Kennedy of Southwark, said. Parliamentary counsel were asked to use,
“gender-neutral drafting so far as it is practicable, at no more than a reasonable cost to brevity or intelligibility”.—[
Official Report
, Commons, 8/3/07; col. 146WS.]
However, I reassure the noble and learned Lord, Lord Scott, that we are not abandoning the Interpretation Act. The 1978 Act is still needed for amendments to old legislation that predates the move to gender-neutral drafting. The noble Lord, Lord Kennedy of Southwark, referred to that. Parliamentary counsel sometimes still use gender-specific pronouns when amending old legislation to ensure that it remains coherent. The 1978 Act enables masculine or feminine words to be used in legislation to cover both genders but does not contain drafting guidance about how to draft.
Even before the move to gender-neutral drafting in 2007, there was no requirement to use gender-specific pronouns. There are plenty of examples of old provisions that were drafted in gender-neutral terms and without reliance on the 1978 Act. Interestingly, the 1978 Act was a consolidation and may be traced back to legislation first enacted in 1850. I know that the noble and learned Lord, Lord Scott of Foscote, referred to the 1978 Act as not being ancient, but 1850, while it may not be very ancient, is quite a long time ago.
The move to gender-neutral drafting brought us in line with other jurisdictions which use the English language, where it had been the norm for many years: Ireland, New Zealand, Canada, parts of Australia and the United States of America, as well as the three devolved legislatures. The noble Lord, Lord Kennedy of Southwark, included South Africa in that list. With the change to gender-neutral drafting, a range of drafting styles was developed: for example, omitting the pronoun, repeating the noun, replacing the noun with a letter such as the letter P, using defined terms or using “he” or “she”, and so on. Parliamentary counsel have tried to simplify drafting so that it is not ambiguous or too lengthy.
In places, the move caused drafters to reword propositions so that they indeed became shorter and clearer. For example, “the Secretary of State may, if he thinks fit” could become simply, “the Secretary of State may”. Before the change, the drafting may have said, “A person commits an offence if he drops litter in a public place”, but now it could be simplified to, “A person who drops litter in a public place commits an offence”. However, we recognise that there are some techniques that people find easier to follow than others, and I have much sympathy with people who do not like techniques such as the use of letters—“P” and so on—to identify different people.
I hope that your Lordships will be pleased to note that the Office of the Parliamentary Counsel has agreed to revise its drafting guidance to recommend that the approach of using letters to identify people is used sparingly, although it may sometimes be a useful
way to distinguish between several people. It will also be considering whether any other adjustments could usefully be made in light of the helpful feedback from this debate.
Etymologists may disagree but the guidance from parliamentary counsel provides that some terms are to be treated as gender-neutral. These include “testator”, “manager” and “actor”, although they have female equivalents. There are also some terms that have always been gender-neutral—for example, Secretary of State and Prime Minister.
Gender-specific pronouns are still sometimes used in legislation that amends older legislation, as it is important for the amended Act to remain coherent. For example, if there is a list of conditions each of which begins with “he”, it would be confusing to start a new condition starting with “the person”.
The guidance also recognises that there must be some flexibility and that there will be some Acts where only gender-specific drafting can be usefully applied. In a case where a person has to be of a particular gender—male or female—gender-neutral drafting does not require drafters to avoid referring to the gender. I think your Lordships would agree that that would be the case for legislation about maternity.
I turn to the specific points raised by the noble and learned Lord, Lord Scott of Foscote, in his detailed account of various provisions in subordinate legislation. I hope that he will forgive me if I do not engage in what I would call the intricacies of what he has quite rightly outlined, but I reassure noble Lords that the Government remain committed to producing high-quality legislation that is clear, accessible and free from ambiguity. We believe that gender-neutral drafting is perfectly compatible with that objective. It ensures that our law is expressed in a way that clearly covers all citizens without requiring people to consult Section 6 of the Interpretation Act 1978.
Most of the examples that were mentioned concern the use of “they” as the third person singular pronoun. Although some regard this usage as grammatically incorrect, it reflects common usage, as my noble and learned friend Lord Mackay of Clashfern said with regard to the brief from the Library, and is well precedented in literature over the centuries. However, the noble Lord, Lord Quirk, referred to the risks of using the word “they” in the singular form. This is noted in the parliamentary counsel’s drafting guidance, and care obviously needs to be taken when drafting any legislation to ensure that it is not ambiguous.
I turn to the Good Law initiative, which the First Parliamentary Counsel is spearheading. This initiative, about which I have spoken before in your Lordships’ House, aims to improve drafting, reduce complexity and make the law more accessible, and I believe that these are the objectives that we all seek. The parliamentary counsel’s initial report aspires to good law, which is defined as necessary, effective, clear, accessible, coherent and, if I am allowed, I would like to add my noble and learned friend Lord Mackay’s word “lucid”. This is a sentiment that I very much hope we share across all sides of the House. With that in mind, the Government acknowledge that the use of gender-neutral drafting must result in legislation that is effective, clear and accessible.
I thank all noble Lords who have spoken today. I will be taking away what has been said. I know that officials, particularly Good Law initiative officials, will be looking strongly at the points that have been made. The Government take extremely seriously the importance of ensuring that legislation is more accessible and less complex. As I say, I will ensure that full consideration is given to everything that your Lordships have spoken about today.
6.30 pm
Lord Scott of Foscote: My Lords, I offer my thanks to the Minister for his very complete answer and my gratitude to everyone who has taken part in this debate.