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Parliament and the Legislative Process

My Lords, the noble Lord, Lord   Dahrendorf, said that this was an important debate, and so it has been. I should like to join noble Lords in congratulating the noble Lord, Lord Holme of Cheltenham, on securing, at last, this debate, my noble friend Lord Norton of Louth, on chairing the committee in the past, and the other members of the Constitution Committee on producing an extremely valuable report. It is not just valuable: it has been useful and interesting. One has only to look at the political weight of the contributors: my noble friends Lord Wakeham and Lord MacGregor, the noble Lord, Lord Carter, the noble Lord, Lord Dahrendorf, and other noble Lords. I join the chairman of the committee, the noble Lord, Lord Holme of Cheltenham, and my noble friend Lord Norton of Louth in regretting that it is now seven months since the report was published. Meanwhile, the Government are, quite unacceptably in my view, telling this House that they will use the power of another place to require this House to scrutinise and pass all stages of government legislation in fewer than 60 sitting days, which is a far shorter period than we have waited for this debate. I join my noble friend Lord Elton in criticising that. I was not entirely certain whether the noble Lord, Lord Carter, was offering an alternative or a complement to the 60   days; I shall have to re-read his words on that. I wait to see how the debate on the 60 days unfolds over the course of the next few months. One of the principles of the Gareth Williams reforms was that more time should be found for Select Committee debates. Yet three Select Committee reports have been awaiting debate since last July. Perhaps the seriousness with which the Government take Select Committees might be a subject for a further study by the noble Lord’s committee, including what might be instructive post-report scrutiny into what notice the Government take of what is said. Having listened to the tone of this debate, I think that we all subscribe to the basic premise of the report: that scrutiny of legislation can and must be improved. I particularly agree with the report’s remarks in Chapter 7, to which the Government, perhaps significantly, have not responded. The report states, in paragraph 221:"““We have left to the end perhaps the most important point of all. That is, that quantity should not be confused with quality. There are imperatives within Government which have encouraged a significant growth in the volume of legislation””." That was the point made by the noble Lord, Lord   McNally. It was a good point when he made it, and it is worth repeating. Anyone who listened with a sinking heart to the dismal litany of Bill after Bill in the gracious Speech last month as the legislative gates opened again can agree on that. As Mr Tyler told the committee, Parliament passed more law in the past half-century than in the preceding four centuries put together, and the committee itself stated that the volume of new law in any year is now frequently twice that of before the 1990s. Only Ministers can call a halt to that, but have they the will to do so? The signs in this year’s programme are deeply discouraging. That is not to mention the torrent of secondary legislation, which is now quite out of control. Parliament, perhaps through the new Joint Committee being set up by the Government on relations between the two Houses, must seek ways to limit those frequently life-changing decrees. So I very much support the view taken by the noble Lord, Lord Dahrendorf. The sense of the sunset clause is becoming increasingly undeniable. We should seek to further that in the months ahead. So I welcome many wise prescriptions of the committee about quality, but I also agree that the real issue is quantity. We can use scrutiny to produce safer law, but what we really want is abstinence. Pre-legislative scrutiny, as exemplified in recommendations in the report, should be used on a wider scale. I am disappointed that the Government are not prepared to publish the reasons why they refuse to publish any non-emergency Bill in draft. I suspect that a frequent reason is worrying and obvious: Ministers have not got their thinking straight enough to publish a draft. Time and again rafts of amendments have been tabled late, when they cannot be given proper Committee consideration. We have seen whole new sections added to Bills; confused drafting; Bills in one Session to correct Bills in the previous Session; skeleton Bills on to which far too much unamendable regulation is attached; and, all too often, bone-headed refusal to listen to wise advice from parliamentarians not just in this House but in another place. All those things need to be put right. Pre-legislative scrutiny can help, but it will go only so far. While welcoming the main thrust of the report, I shall comment on aspects of the report about which I have some doubt. I support greater use of evidence-taking committees. The House has seen their value on both the Constitutional Reform Bill, where the committee’s work was commended by the noble and learned Lord the Lord Chancellor, and the Assisted Dying for the Terminally Ill Bill. However, I question whether that procedure can be generally applied to Bills that have not had pre-legislative scrutiny. I also have doubts about the idea that Commons Select Committees should normally conduct pre-legislative scrutiny. The noble Lord, Lord Holme of Cheltenham, made that point. I believe, with him, that there is at least a risk of Select Committees in another place being sucked too much into the process of delivering the Queen’s business and finding the free-ranging independence, which is the strength that they should bring to Parliament, being diluted. The report is right to ask for improvements in Explanatory Notes to Bills; for more effort to demonstrate clearly the effect of amending legislation on existing statute; and the case for regular reviews of legislation. Indeed, surely the wisest of many wise things that the report states is that insufficient thought is given to post-legislative scrutiny of Bills and their effectiveness. Dozens of Bills passed with great éclat by this Government are already moribund and obsolete. Sunset clauses could well be used on sections within Acts. That would also be of great value. I should like to have seen a far more positive and creative response by the Government to all those parts of the report. It has been a valuable debate. Many positive ideas have issued from the report and this evening’s debate. I cannot end without saying how outstanding and essential is the part that this House plays in the scrutiny of legislation—without this House, much legislation would barely be scrutinised at all—although I also agree with those who said that sometimes we miss; we do not catch everything before it gets through. So I would be very cautious about accepting too easily any second-class status for this House in the process of pre-legislative scrutiny, especially if it is to be linked to a time limit. This is a House of Parliament; why should it not be equally engaged in pre-legislative scrutiny? The noble Lord, Lord Carter, challenged me to say something about the Salisbury convention. He referred to the letter that I sent him before the 1997 election, when we had a House that was largely hereditary and the Conservative Party had about 40 per cent of the membership. That House has now changed. As the noble Lord, Lord McNally, explained, the Parliament Acts ensure that the Commons can prevail. But those Acts have rarely been used since this House does not seek to wreck core government legislation. That remains the position. As I said, however, the House of the Salisbury convention does not exist any more. Today’s House was created by this Government in 1999. Labour is now the largest party and no one sits by right of birth alone. Inevitably a different House will behave differently. The Government said at the time that it should be more assertive and so it has been. You cannot put the clock back to before 1999 or even as far back as 1945. I am one of those who very much welcome the strengthening of this House and believe that the process should go further. But while I still accept the essence of   Salisbury—namely, that the principle of Bills foreshadowed in the manifesto should be honoured—in this changed world, we will not allow the doctrine of a single party’s manifestos to override the powers of this House or the pledges given to this House in 1990. I think that that very much echoes what has been said by the noble Lord, Lord McNally. It is also worth noting that nothing within the Salisbury convention should stop this House from proposing, agreeing and improving amendments to manifesto Bills. After all, that is what we are for. The noble Lord, Lord Carter, should not be too po-faced about the manifesto. After all, only this afternoon the Government have broken a manifesto pledge. On 5   May, Labour’s manifesto said on the EU Treaty:"““It is a good treaty for Britain and for the New Europe. We will put it to the people of Britain in a referendum and campaign wholeheartedly for a ‘Yes’ vote””." Note the verb ““will””. And of course that pledge has now been broken. I finish with one final thought. This debate has shown the value of discussing the role of Parliament and the legislative process. So, may we look forward—and I think that this is the point that the noble Lord, Lord   McNally, was going to make—to an early debate on the important report by the noble Lord, Lord   Puttnam, and the Hansard Society on the communication of parliamentary democracy? It was also mentioned by the noble Baroness, Lady Gould of Potternewton, and other noble Lords. I believe that both the Government and Parliament would gain from early consideration of it, as I am sure we could from the report that we are debating today.