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Merits of Statutory Instruments Committee: Secondary Legislation

My Lords, I have worked man and boy in this building for 42 years and I spent a great many of them doing everything that I could to keep as far away as possible from secondary legislation. I did that successfully until three years ago when, out of nothing else but love for my Chief Whip, I agreed to serve on this new committee. Years ago, there was a time when I was responsible in another place for recommending Members of the rather desultory Statutory Instruments Committee that met down the other end of the Corridor. Mercifully, a great and good man, Sir Graham Page, whom some of my colleagues may remember, was the ultimate guru on statutory instruments and I was delighted to be able to recommend his appointment on to that committee down the Corridor. I have now spent some three years as a Memberof this committee and have found it immensely absorbing. We have been graced by two helpful and patient chairmen—I was particularly glad to see the noble Lord, Lord Hunt, pop in for a few moments earlier in this debate. We have been given outstanding help by our Clerks and advisers. Although I am not allowed to refer to people outside the House, they sit not as my personal advisers, but as advisers to the whole committee. One matter that has struck me forcefully in those three years is that even in this building there are few who realise the massive scale and scope of secondary legislation. I am glad that the committee has concentrated its thoughts and work over these first years by looking at secondary legislation in terms of how it will affect the individual citizen, the small businessman, the charity and the local authority. This is exactly the way that we should conduct ourselves, because secondary legislation often affects the individual citizen, the individual business and the small organisation much more heavily than does primary legislation. Parliament as a whole has been woefully inadequate over the years in the way in which it deals with secondary legislation. I want to talk about what I call ““the three cons””, all of which have been referred to. I do not mean confidence tricks; I mean consultation, consolidation and content. First, I cannot add very much to the wise things that have been said in the field of consultation. I believe that the work of the committee has already concentrated the minds of most departments on the need for consultation and the need to explain the result of that consultation in detail to Parliament. The noble Viscount, Lord Colville, spoke about the need to be more precise in these matters. Over the past few years, the quality of Explanatory Memoranda has improved notably. I agree with those who have said that proper and full consolidation is likely to mean that the legislation itself will be more sensible and workable. On consolidation, briefly, I was struck by the words of the noble Baroness, Lady Thomas of Winchester, just a moment ago. She said that she remembers having pored over some of these instruments and being able to make neither head nor tail of them; I hope that is what she meant—she nods. Looking at some of these things, you sometimes cannot begin to understand what they are all about. There is often a desperate need for more regular consolidation; you cannot say that there should be consolidation every year, or even every few years, but there must be much more regular consolidation of legislation than at present. So many people and organisations do not have the time, the facilities or the expertise to go progressively back into prior legislation to uncover all the implications. The third ““con”” is content. In my time on the committee, I have continually drawn attention to sloppy drafting, which has led to orders being reprinted free of charge after an error has been found in the original drafting. It is lamentable to see, on the back of our report, that no fewer than 62 negative instruments over the last Parliament—March 2005 to 9 November, a week or two ago—had to be reprinted. In addition, 21 instruments were laid including a correction, bringing the total up to 83. A number of departments are woefully inadequate when it comes to proper, careful, accurate drafting. The noble Lord, Lord Filkin, said that he was not going to refer to departments. I am afraid that I shall be less delicate. Four departments are really awful culprits. One in 16 of Defra’s orders has had to be reprinted free of charge. The figure for the Home Office is one in 15 and the figure for the Department of Health is one in 14. One in 12 orders from the Department for Work and Pensions—I cannot believe it—has contained errors. It is absolutely infuriating for the customers—the public and organisations that must note and deal with these things. When they have been through one, it is infuriating to find that a mess has been made of the drafting and that they must start considering what the orders are about all over again. It is not good enough. I hope that those four departments will take careful note of the black list on the back of our report, of which they should be most embarrassed. Some departments are better than others, but I must draw attention to two particular culprits. I declare an interest in Defra, as I was once a Minister at the Ministry of Agriculture, Fisheries and Food. I am shamed by how that department conducts itself nowadays. I will not weary your Lordships tonight with the dreadful scandal that it has brought about with the single farm payment, with the Rural Payments Agency continually in a state of collapse. The chief executive, our friend and colleague, was quoted in the press the other day as saying that he had been fired because of the mess. Strangely, the Secretary of State responsible for all of it becamethe Foreign Secretary. The Government conduct themselves in funny ways. I also note that, in one of our documents before the House, Defra is again a disgraceful culprit in laying instruments where the date in force is less than 21 days after the laying date. Of the 61 orders that have broken the 21-day rule, Defra is responsible for no fewer than 11. It certainly ought to be very ashamed indeed. Finally, the Home Office seems to show very little respect for Parliament as a whole. I shall cite two examples demonstrating its apparent indifference and contempt. In your Lordships’ House, the noble Lord, Lord Lester of Herne Hill, put down two Questions for Written Answer on 5 June. The rule is that they should be answered within two weeks. It took the Home Office until the very last day of the last Session, in excess of 22 weeks, to answer those Questions. That is the most lamentable record of idleness and contempt from that woeful department. I cite another case, from just over a year ago, where the Clerk of our committee wrote to the Home Office’s parliamentary and briefing delivery unit about four instruments that the committee was concerned about. It took this person, a parliamentary adviser whom I shall not name, just short of three weeks to reply to this, saying, "““the Home Office Parliamentary Briefing and Delivery Unit play no part in the drafting or laying of delegated legislation. This is dealt with by the Legal Advisers Branch and our role is to arrange and oversee the parliamentary debates required for Affirmative Orders or prayed against Negative Orders after they have been laid””." This is three weeks after we approached him, and I cannot remember whether the orders were held in abeyance or not. Then he has the impertinence to end his letter saying, "““having now received advice from the Legal Adviser’s Branch on this, I am advised that it is to these officials you should be approaching for the information sought””." The idle beggar did not even have the courtesy to say, ““I have passed your queries on to them and hope they will respond very soon””. That department is an absolute scandal in Whitehall. I hope somebody is doing something about it. It keeps writing letters saying, ““We are trying to do better; we are going to do better””. Yet it almost exactly analogous to a schoolboy I heard of some time ago, whose end-of-term report said, ““This boy sets himself lamentably low standards and usually fails to attain them””. The committee must continue this work. The importance of secondary legislation is huge, and this committee is doing a fine job in getting departments to help Parliament and the public to better understand the implications of these instruments.