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Parliament and the Legislative Process

My Lords, as one who has just left the committee, I would like to say how much I enjoyed my time on it and how valuable I found the work that it did and to say to my noble friend Lord Norton of Louth and the noble Lord, Lord Holme of Cheltenham, what a pleasure it was to serve under their chairmanship. After rereading the report over the Recess and coming to it afresh after an interval of eight months, I felt that a compelling case had been made for the main recommendations. That is a real tribute to my noble friend Lord Norton of Louth, who did much of the drafting and gave the report its shape. I was also struck by the general direction of the evidence that we received from people from all parties with real experience in both Houses. All their evidence pointed in the same direction and was in favour of the recommendations that we put forward. I speak as someone who was a Back-Bencher in the other place for some years and a Minister for 15 years. I am now coming back to what I used to do 25 or 30   years ago, which is to serve on Committee stages in the Lords. Like the noble Lord, Lord Holme of Cheltenham, I acknowledge the progress that has already been made, particularly the number of draft Bills going for pre-legislative scrutiny; it would be churlish not to do so. However, we need to go further. I shall speak first about the argument for most Bills having pre-legislative scrutiny. The obvious first point, which many people have made, is that the process is not working particularly well at the moment. That is partly because there is too much legislation—both the number of Bills and their size—and partly because of other pressures on MPs. They are not able to give as much time as one would like to pre-legislative scrutiny. That situation has not been helped by the changes in working hours in the other place in the past few years. There are also the processes at Committee and Report stages. All of us who have been through the process know exactly what happens: there is concentration on the major issues of political difference or on the issues that will attract most media attention. There is less concentration on the details and the technical points, so that so much goes undebated. In this House there is less partisanship and greater technical expertise, and so the House can give more attention to the less high-profile but nevertheless crucial parts of Bills, which simply go unlooked at in the other place. I was struck by what my noble friend Lord Wakeham said. He and I have much experience of finance Bills. I have long thought that the criticisms that I was making of the way in which issues are examined in the other place applied particularly to finance Bills. All the big, high-profile issues are dealt with, but the mass of technical clauses that there are in every finance Bill are practically undebated. I pay tribute to the work that his committee does. It could be taken further. As my noble friend Lord   Wakeham rightly said, it is an argument for the present composition of the House of Lords, given its role and responsibilities and the increasing role in legislative scrutiny that this House will have. Timetabling—programme orders and so on—has not worked, as the noble Lord, Lord Holme of Cheltenham, pointed out. I was struck by the evidence that Alan Beith gave us:"““there has been a tendency to use up the time””—" in programme orders; guillotining, if you like—"““on one or two early groups of amendments, leaving other amendments, including substantial government amendments and new clauses, to be passed formally without any discussion or examination at all. This has increased the dependence on the Lords’ ability to scrutinise bills without limit of time””." In other words, timetabling has, in a sense, made it more important for the Lords to do the work that is not undertaken in the Commons. In the 2002–03 Session, 23 Bills were subject to programming orders, yet 75 per cent of those Bills included parts that were not considered in the other place. Clearly, timetabling is not working effectively. Then, there is the point to which the noble Lord, Lord   Carter, referred—it has always worried me, and it worried me when I was Leader of the House of Commons: the constraints imposed by the single Session, which mean that there is a huge rush of legislation—Second Readings and so on—in the early part of the Session. Often, if you do not get everything done by Christmas, you are in real trouble later on. Then, there is the enormous rush at the end, in the October spillover, when we are dealing with masses of amendments going between here and the other place. I have sometimes thought that allowing 200 amendments to go back in a week to the other place, where they are not examined, is a disgrace to parliamentary procedure. There is a more positive point about pre-legislative scrutiny. When I first joined the other place, I was keen on the development of Select Committees—at that stage, we had very few; now, of course, we have all the departmental Select Committees. One reason was the expertise that individual MPs were able to build up through serving on a departmental Select Committee. It was a much better way than anything else that was going on in the other place. To some extent, the same applies to pre-legislative scrutiny. With the heavy emphasis on professional politicians who have had no outside career during most of their life in the other place, it becomes more and more essential to get that expertise at House of Commons Committee stage. I am a passionate supporter of the first-past-the-post system and of the direct constituency link. However, the constituency does not provide an MP with the expertise needed to consider legislation. The present way in which outside experience is brought to bear is haphazard and second-hand. It depends on whether individual members of a committee are prepared to go and listen to outside organisations. They do not have the depth of knowledge that would enable them to come back when the point that they are making is criticised. That is where the pre-legislative process, in which outside evidence is given directly to the members, is so important. It brings in a new dimension and enables individual issues to be considered more thoroughly. For all those reasons, I felt, like the noble Lord, Lord Holme of Cheltenham, that the Government’s response to our recommendations on pre-legislative scrutiny was disappointing. They said that they would seek at least to maintain the proportion of Bills published in draft; that is a long way from where we wanted to end up. I also felt that the reasons given for not publishing a Bill in draft were very weak. I will not bother to read out the whole paragraph, but it did not seem to add up to a row of beans. Above all, they   missed the key point: having to put most Bills into pre-legislative scrutiny is a discipline. Of course, there will be occasions on which one will not wish to do it—both Houses would understand that—but it is that discipline that is missing from the Government’s response. Why the resistance? There is the pressure to get Bills through. We can judge that by the number and scale of the Bills and the feeling that governments are judged on how much legislation they achieve. There is sometimes a belief among civil servants that, having carried out the consultative processes and applied their expertise, they have got the Bill right, and there is a general disposition not to alter it. All former Ministers will remember seeing in large print at the top of briefing on individual amendments the word ““Resist””. Douglas Hogg from the other place put it extremely well in his evidence to us. He said that many junior Ministers—indeed, Cabinet Ministers—could not have the detailed knowledge of each part of the legislation to be able to probe deeply. Therefore, there is a tendency either to accept the advice, if one does not have the detailed knowledge, or to refuse to give way to the amendment because doing so would be regarded as a sign of weakness. However good the civil servants—many are extremely good—they are not the repository of all wisdom. I was interested to see that Peter Riddell had spoken to some civil servants who had acknowledged that the pre-legislative scrutiny arrangements improved a Bill. As I said, Douglas Hogg put the point extremely well. He said that a junior Minister listening to the pre-legislative scrutiny process would be able to turn to his civil servants and say, ““You may say that this is the case, but, laddie””—as he put it—““you don’t know anything like as much about the issue as the experts who have just been putting their evidence to us””. All of that is valuable in the pre-legislative scrutiny process. It not only enables Parliament to fulfil its proper role in looking at legislation and enables MPs to make judgments based on hearing both sides of the case, but it also leads to better legislation. I am very flexible on committees and how that should be done. In the report, we have put forward a number of options. Here, I agree with the noble Lord, Lord Carter: I do not think that the work could always be done by departmental Select Committees. With six Home Office Bills it would be impossible for the Select Committee to do the work. But that it should be done, I am very clear on that. I want to say a special word about special standing committees and, in this House, special public Bills committees. Our report notes that neither House makes much use of such committees, which is a pity. I had an experience of a special standing committee. The first Bill that I took through the House of Commons was the deep sea mining Bill. It was highly technical and I have to admit that I did not have much knowledge about it. In the special standing committee, for about three or four legislative Sessions, all of the companies and experts involved came before us putting their points of view and being probed by the committee, including the Minister. The benefit was that not only did it remove what might have been wasted time or bipartisan approaches, but it also led to a very much greater knowledge by those on the committee of outside views. I know that the Rippon commission, the Norton commission and the Parliamentary First publication, Parliament’s Last Chance, have all recommended more use of those committees. I was interested to learn that Robin Cook felt that this should be a normal process for most committees. Sir Michael Wheeler-Booth and other former Clerks, equally, felt that that was valuable. It would be helpful to have that used more where there was not pre-legislative scrutiny. That is why we put forward recommendations 15 and 16, to which the Government’s response again was not as I might have wished it to be. Of course, pre-legislative scrutiny of draft Bills and special standing committees will increase the pressure on MPs, although I suspect not so much on departments which will be doing the work anyway. It may ease the parliamentary draftsman’s role and load. But nothing is more important than that we produce better legislation. Therefore, MPs ought to spend more time on that. One of the problems is that work in committees is not a glamorous role. It gets very little attention in the media or in one’s constituency, and so on, but it is a very good breeding ground for ministerial appointments—the ladder to ministerial office. It is important that we establish that really good work in those committees leads to promotion. As regards carry over, I was struck by how in their evidence two former Leaders of the House of Commons and the former Government Chief Whip in the House of Lords, the noble Lord, Lord Carter, strongly recommended much more use of carry over. I was a member of the committee, so I was unable to make my view known. Perhaps I may now say that it is three former Leaders of the Commons who are strongly in favour of that. I have always thought that we often end up with botched legislation because of the need for haste in the dog days of June and July and the two weeks in October. Sometimes, as I said earlier, it leads to what I regard as a disgraceful situation. I was interested in what the noble Lord, Lord Carter, said about sanctions for the Opposition. He is probably right. His way of looking at things would enhance the position of the Opposition, but it would certainly lead to better legislation. Finally, as regards post-legislative scrutiny, about which the noble Lord, Lord Holme, talked, I am not prescriptive as to how and when that should be done, but as a general principle it is highly desirable. It is also important to get the objectives and check-list of legislation in the Explanatory Notes so that there is a check-list later in order to see how well it has worked out in practice. That point was well put by Mrs Corston, chairman of the Joint Committee on Human Rights, when she said in her evidence,"““Our responsibility does not begin with a Bill’s introduction to Parliament or end with the royal assent. Improving the efficiency with which we process legislation is only a small part of improving our effectiveness””." I know that that will lead to pressure on resources, but we have tried to frame our recommendations to reduce that pressure as much as possible. We are all arguing now for regulatory impact assessments for statutory instruments and post-regulatory impact assessments. I believe that it should apply to legislation. Ministers and officials will know that later they will be held to account and that would better concentrate their minds. I am grateful for all of the support that there has been for this report. I certainly endorse all of the recommendations and I hope that we can proceed more in those directions.