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Parliament and the Legislative Process

My Lords, it is a pleasure to follow the noble and scholarly Lord, Lord Smith of Clifton, for the second time in as many sitting days. I very much welcome the debate and I congratulate the noble Lord, Lord Holme of Cheltenham, on the clear and effective way in which he has introduced it, and I am most grateful to him and other noble Lords for their kind comments. I now know how one of my students feels towards the end of a seminar when he says, ““But everything I want to say has already been said””. I am afraid that that will not necessarily make my speech any shorter. I begin by reinforcing a point made by the noble Baroness, Lady Gould. It is difficult to exaggerate the importance of this debate. Parliament approves the rules that shape how we behave. Acts of Parliament stipulate what we cannot do. They empower and constrain public authorities. They impose regulatory regimes on private as well as public bodies. It is essential therefore that Acts of Parliament are fit for purpose. Legislative scrutiny is at the heart of what Parliament does. Ensuring that the law is both necessary and well crafted is crucial to the well-being of the polity. This debate is not about some technical matter, suitable only for parliamentary experts; it is about the very way in which the rules that govern us are debated and approved. The future well-being of our political system rests on getting the process right. As things stand, and what underpins the report, is that we are not getting it right. Parliament’s involvement in the legislative process is essentially too narrow, too pressured, and too closed. For Parliament, the traditional starting point of the legislative process is when a Bill is formally introduced for First Reading. The end point for both Parliament and government is when a Bill receives Royal Assent. Within that narrow frame, an increasing volume of legislation is being processed. The sessional cut-off and Ministers’ keenness to pass legislation, especially their own reputation-making big Bills, have generated what   Robin Cook characterised as the ““tidal wave””approach to legislation. A mass of Bills is introduced at the beginning of a Session. They then cascade down to Standing Committees at roughly the same time before flooding along the Corridor to your Lordships’ House, a point well made by my noble friend Lord MacGregor. The volume of legislation expands as the resources available to Parliament to deal with it remain, at best, restricted. Parliament cannot keep pace with the increasingly pressured process. Neither can those outside the House. The demands on Parliament in such a short space of time mean that there is limited opportunity for those outside the House with an interest in a measure to be consulted. Well-resourced firms and lobbying organisations can keep pace, but others cannot. The process may not be entirely closed, but it is not as open as it should and could be. The public are in large measure left out of the process, a point so ably observed by the noble Baroness, Lady Gould. The committee’s report addresses these problems and seeks to achieve a fundamental culture shift, moving to a longer and more open process. It sees the legislative process not simply as the period from the introduction of a Bill to Royal Assent, but rather as encompassing pre-legislative input and post-legislative effect. It envisages a process that is not only extended, but also more open, enabling those outside Parliament to have an input during a Bill’s passage. I do not wish to repeat what is in the report since noble Lords have had a chance to read it, and the noble Lord, Lord Holme, earlier provided a clear overview. What I wish to focus on is the Government’s response and to put some questions to the Leader of House. In so doing, I shall reinforce a number of questions already posed by noble Lords. The Government’s response constitutes something of a curate’s egg. I shall comment on the bad bits before I come to the good bits. However, I want to draw attention initially not so much to the content of the egg, but rather to how long it took the Government to lay it. As has already been mentioned, the Government’s report was published on 29 October last year. Their response was published on 20 April, only just coming in within the six-month limit. The delay, coupled with the content of the response, confirms that there is still an attitude on the part of government that fails to engage fully with the important and necessary role of Parliament. Parliament is viewed primarily, if not exclusively, through the prism of government self-interest. The issue of the time set for responding to committee reports is an important one to which we will need to return on another occasion. For the moment, let me just ask the Leader of the House to confirm that, if this report had been published not by the Constitution Committee of this House, but by the Constitutional Affairs Committee of the other place, the Government would have had to publish their response within two months. Can she tell us why it took the Government six months to produce a response—basically as long as it took the committee to conduct the inquiry and produce its report—and in what way the response would have been different had it been produced within two months? I turn to the content of the government response. It reads as if written by someone who is initially sceptical, but at the end sees the light and warms to the recommendations. On pre-legislative and legislative scrutiny, the Government recognise that some of the recommendations are matters for both Houses rather than for Ministers. Where it does affect government, there is little that marks a significant move forward. If anything, they are being nudged forward and, in one instance to which a number of noble Lords have already referred, appear to take a step back. Previously, as cited in the report and as already mentioned by the noble Lord, Lord Holme, the Government in the form of the then Deputy Leader of the other place, Phil Woolas, have stated that,"““a bill should be published in draft form unless there are good reasons for not doing so””," as well as declaring that,"““it is the Government’s intention and policy to increase the amount of legislation that is subject to pre-legislative scrutiny””." However, paragraph 11 of the government response states:"““The Government continues to be committed to pre-legislative scrutiny. Whilst it will not be possible nor necessarily desirable to sustain the year-on-year increase for an indefinite period, we will seek at least to maintain the proportion of bills published in draft””." That is an ambiguous statement as well as a contestable one in terms of its normative content. Given the very positive developments that have taken place in pre-legislative scrutiny, which the committee has warmly welcomed, could the noble Baroness explain why there appears to be this move away from the position previously taken? What exactly is the justification for apparently disavowing Mr Woolas’s statement that Bills should be published in draft unless there are very good reasons not to? On the issue of a business committee—I can keep my comments short because the points have already been made by the noble Lord, Lord Holme of Cheltenham, and by the noble Baroness, Lady Gould—the Government essentially ignore all the evidence offered in the report. It states in paragraph 40:"““The Government does not believe it would offer significant advantage over current arrangements””." Given the evidence amassed in the committee’s report, perhaps the noble Baroness can tell the House why the Government hold to that belief. No reason is provided in the response. On the recommendation that Bills should normally stand referred to an evidence-taking committee after second reading, three reasons are offered for rejecting it. The first is that some Bills have already been widely   consulted on. This is a point already taken on board in the committee’s report. The second is that for   some   Bills there is no time. This is true in some   circumstances, in which case the House can vote to de-refer them. The third is that some Bills are essentially partisan measures. This is the argument normally trotted out and one which was dealt with by the Rippon commission. In fact, very few Bills can be deemed ““partisan”” Bills if one employs the criterion analogous to that employed for the certification of money Bills. Given that, perhaps the noble Baroness can provide the House with reasons—which are not already taken into account in the committee’s report—as to why Bills should not normally be referred to evidence-taking committees. I might add that, far from being overly ambitious in its recommendation, the committee may have been too modest. After I spoke recently to the Statute Law Society on the committee’s report and the Government’s response, some tax lawyers approached me to ask why the committee’s report excluded Finance Bills from the recommendation. In their view, it is quite feasible for Finance Bills to be considered by an evidence-taking committee, a point reinforced by the speech in this debate of my noble friend Lord Wakeham in reference to the work of the Economic Affairs Select Committee of your Lordships’ House. Employing evidence-taking committees has the potential to improve the quality of Bills, not least through enabling those outside the House to have a say on them. It is important that government recognise that their Bills are likely to benefit from such scrutiny. Adopting a defensive position reflects a lack of confidence. A government confident in their own measures should welcome parliamentary scrutiny. I turn to the good part of the egg. The Government express a willingness to consider ways in which the criteria by which a Bill may be deemed to have fulfilled its purpose can be made known. They do not consider the Explanatory Notes to be the appropriate place but they will consider ways in which it may be possible to provide a statement of the criteria. Why this positive element? The reason is that it forms part of the Government’s approach to post-legislative scrutiny. This is the very welcome feature of the Government’s response. The Government, at both paragraphs 31 and 47, accept the case for more post-legislative scrutiny. They state in paragraph 31 that,"““the Government believes that strengthening post-legislative scrutiny further could help to ensure that the Government’s aims are delivered in practice and that the considerable resources devoted to legislation are committed to good effect””." They have therefore given close consideration to how post-legislative scrutiny can best be achieved and have asked the Law Commission to undertake a study of the options and to identify, in each case, who would most appropriately take on the role. They recognise that the commission itself may have a role to play in such scrutiny. This is a notable move forward. I reiterate the question asked by the noble Lord, Lord Holme of Cheltenham: perhaps the noble Baroness can expand on what will now happen? In particular, can she tell the House when the Law Commission has been asked to report by? It is important that we move forward as expeditiously as possible. In moving forward, it is essential that we do not rely solely on the Government. Parliament has a role to play independent of government. The committee’s report is addressed as much to Parliament as to government. We will move forward only if there is the political will in Parliament to do so. It is a point that I have been making for the past 25 years. Political will is fundamental to achieving effective parliamentary reform. To conclude, on the issue of post-legislative scrutiny the Government appear willing to move forward in a way that they appear unwilling to do in respect of the other stages. This failure to be more positive on the recommendations for pre-legislative and legislative scrutiny are disappointing—and, in part, irritating—but if one is not to have the whole package then some movement in respect of post-legislative scrutiny is welcome and, in some respects, is potentially the most important. The implementation stage of legislation constitutes a parliamentary black hole. By addressing it, by moving forward in a way similar to that in respect of pre-legislative scrutiny, there is the potential to develop a new and significant role for Parliament, ensuring that it plays a role at all stages of the legislative process. That, for the reasons developed in the report, has the potential to enhance the quality of legislation in this country. That would be a massive step forward. It is still not the ideal—there is a long, long way to go—but if the report of the Constitution Committee has moved us closer towards improving the quality of legislation, then it will have made a notable contribution, one that will affect everyone in this country.