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Parliament and the Legislative Process

My Lords, this is an important debate on an important report. Both the report and now the debate owe a very great deal to the noble Lord, Lord Norton of Louth. I am honoured and pleased to follow him in the debate. It is 13 years since the Rippon report was submitted. It made an important difference to the legislative process, some traces of which are still with us. Since then, as the noble Lord, Lord Holme, in his impressive and thoughtful introduction told us, a number of reports have been published by public and private bodies. It is to be hoped that what I might call the ““Norton/Holme”” report will follow the Rippon report in making a difference to the legislative process. It is also entirely appropriate that we should have this debate in your Lordships’ House. Perhaps I may make an observation here—which not   all of your Lordships will like—based on my membership of this House over now more than 12 years. Parliament has a number of functions, three of which stand out. The first function concerns the accountability of government, both in the sense of supporting government, if that is what one wishes to do, and in the sense of holding government to account from a critical and opposition perspective. The second function is to provide a link between the political centre and the electorate—the citizens, the constituencies. The third function concerns legislation. These three tasks are more than any one Chamber seems able to satisfy. In most continental countries, what has been dropped by Parliament is the contact with the electorate, with constituencies. In some continental countries, even the accountability of government is virtually invisible. In my experience over the years, while the other place—the House of Commons—is comparatively strong in the accountability field and in its connection to the constituencies, it has to some extent neglected, or had to neglect, the legislative process. I am simply taking up what the noble Lord, Lord MacGregor, said earlier. The result, which was not written into the constitutional history of the country, is that your Lordships’ House has become in one of its functions—just one—the legislative Chamber of Parliament. That is an interesting development; one would not have found it in any textbook, but in my view it has worked, and is working, surprisingly well. We can do this in your Lordships’ House in part because, as a non-elected Chamber, we have no obligation to spend time on constituency weeks and on maintaining contact with citizens. However, saying that we have no obligation is not to say that we leave out of consideration what people think. Indeed, I am often surprised at how extremely well informed, in a non-partisan way, your Lordships are about the views of those for whom we ultimately work—the citizens of this country. Having said that and thereby underlining the importance of this report, I should like to make two brief observations. I make them because their tone, at any rate, is slightly different from the apparently prevailing sentiment of the House. They are about pre-legislative and post-legislative scrutiny. Pre-legislative scrutiny is an interesting invention. All of us, or almost all of us, welcomed it when it was first introduced, but questions can be raised about it. We are not the United States Congress. In other words, we are not a Parliament in which legislation is created and where the Government are not in a position to create legislation. It could therefore be argued that one must make sure that the responsibility, at least for government-sponsored legislation, remains with government. One can at least raise the question of the limits of the usefulness of pre-legislative scrutiny in a parliamentary system of the kind in this country. I   also observe in passing that one of the results of pre-legislative scrutiny seems to be that Bills get longer, sometimes much longer. This may be a good thing; it may lead to good legislation, or it may not. Above all, I have to emphasise from my experience as chairman of the Delegated Powers and Regulatory Reform Committee that it puts that committee in a slightly difficult position. The committee initially welcomed pre-legislative scrutiny in its report in 2000 and called it,"““a valuable part of our work””" to have to comment at an early stage. Since then, for those who have read our reports carefully, and that of course includes all of your Lordships, it will not have gone undetected that the tone of our comments on pre-legislative scrutiny has changed somewhat. We find it difficult to scrutinise something that is essentially a moving target. Your Lordships will therefore find in our recent comments to pre-legislative scrutiny committees—whose reports are published not by us but by them—sentences such as:"““We would like to make some observations in respect of those areas which the Committee would look at especially carefully were a Bill as eventually introduced to be in the form of the draft””." In other words, certain kinds of scrutiny are not possible at the pre-legislative stage. It remains necessary, however long and detailed the pre-legislative stage is, to undertake the scrutiny with all the seriousness to which your Lordships and the committees of this House are accustomed. My second comment is on the post-legislative situation. I note with interest that, at one point at least, the Constitution Committee report mentions sunset clauses. In this regard, I am not speaking as chairman of the Delegated Powers and Regulatory Reform Select Committee, although I know that some of the members of the committee share my view. In many, many cases, we should give much more serious consideration to the possibility, feasibility and usefulness of sunset clauses or, at any rate, of procedures which move in the direction of sunset clauses; that is, reviews in set periods and at particular times. That is by far the most effective way of deregulating and reducing the continuing burden of regulation. Those who gave evidence to the Constitution Committee—I believe that only one person gave evidence in support of sunset clauses—made an important point, certainly so far as secondary legislation is concerned. My personal preference would be for every piece of secondary legislation to contain a sunset clause or, at any rate, a severe review clause. In quite a few cases, it would be useful for primary legislation as well. It would offer our scrutiny process an additional weapon, as it were, to that of negative and affirmative resolution. Perhaps it could be employed to serve the people for whom we work; that is, the citizens of the country. I hope that in due course the House will find the time to give serious consideration to this issue. Perhaps the Constitution Committee will find the time to have a look at this instrument for controlling legislation and making sure that it serves people in the best possible way.