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Parliament: Legislative Proposals

I, too, congratulate the noble Lord, Lord Butler of Brockwell, on raising this important Question. In terms of the preparation of legislative proposals, the time may be coming when we need to review fundamentally the way in which we draw up legislation in this country. Despite improvements in recent years, the basic nature of the process lends itself to confusion, certainly to the public and even to Members of both Houses. However, in the limited time available, I wish to focus on the process as it exists. Out of the several points I would have liked to make, let me focus on two. They stem from the premise that there needs to be greater rigour in the legislative process, and they follow the distinction made by the noble Lord, Lord Richard. My first point first relates to pre-legislative scrutiny. The Constitution Committee in its 2004 report on the legislative process—I chaired the committee—stressed the value of pre-legislative scrutiny. The Government accepted the value of such scrutiny and have continued to do so. However, there has been something of a regression. In 2003, the Deputy Leader of the House of Commons, Phil Woolas, said that it was the Government's intention to increase the amount of legislation that was subject to pre-legislative scrutiny and in a Westminster Hall debate the following year he stated that, "““a Bill should be published in draft form unless there are good reasons for not doing so””.—[Official Report, Commons, 24/2/04; col. 19WH.]" However, that particular Session—2003-04—proved to be the high point as 12 Bills were published in draft. As the more recent report of the Constitution Committee on pre-legislative scrutiny in the 2006-07 Session has shown, the number has declined since then. In the 2003-04 Session, the ratio of draft Bills to Government Bills was 1:3. In 2005-06 it was 1:15, and in 2006-07 it was 1:9. Why are more Bills not published in draft? In response to the committee’s latest report, the Leader of the House in a letter of 20 March, somewhat echoing the Government’s response to the Liaison Committee in the other place, said: "““The main practical obstacle remains the need to have the freedom to bring forward much legislation on a timetable which does not allow the publication of the proposed legislation in draft form””." Can the noble Baroness explain exactly what that means? I can understand the Government not wishing to tie their hands by committing themselves to publishing every Bill in draft. The Constitution Committee recognised that that was not always possible. However, it does not really explain why more Bills are not published in draft. If Bills are introduced on a staggered basis and subjected to pre-legislative scrutiny, then they are eligible for carry-over. The so-called ““practical obstacle”” to more Bills being published in draft is not really an obstacle at all. Following the point made by the noble Lord, Lord Richard, I suspect that the obstacle is the culture in some departments or the attitude of certain Ministers. It may be that the Leaders of both Houses are keen on pre-legislative scrutiny but that they face resistance from particular departments—hence the noble Baroness’s expression of disappointment in her letter at the number of Bills published in draft. Is it not time that the Government embraced the recommendation of the Constitution Committee and, in effect, the words of Phil Woolas to ensure that every Bill is published in draft unless there is a compelling reason not to do so? If a Bill is not published in draft, can we ensure that in the Explanatory Notes there is a statement by the sponsoring Minister explaining why that has not been done? That, at least, will constitute a useful starting point. My second point—some comments have already been made about this—concerns being clear about the objectives of a Bill and how its effectiveness can be measured once enacted. We now have impact assessments, and the template process requires policy-makers to be mindful of post-implementation review and to identify policy objectives and the intended effects of the policy. This is clearly relevant to post-legislative scrutiny, and I very much welcome much of what is contained in the Government’s response to the Law Commission report on post-legislation. I say ““much”” because there is one omission that I will deal with when we debate the Government’s response. However, on the preparation of legislation, the commitment to identify policy objectives and the criteria for review following enactment is to be welcomed. The crucial point, as I think the Minister will concur—I believe this is the point that the noble Lord, Lord Richard, was making—is to ensure that the Government’s good intentions are translated into practice. Here, I revert to the recent report of the Merits of Statutory Instruments Committee on The Management of Secondary Legislation: Follow-up. The key comment to which I wish to draw the Minister’s attention is in paragraph 35. Referring to failings in respect of establishing clear and realistic criteria in two particular cases, it stated: "““This is poor management and demonstrates a tendency by Departments to use IAs as a tool ‘to justify policy rather than a policy-making tool’””." It is vital that this does not become a formulaic or ticking-the-box exercise. The good intention is there but it is essential to ensure that departmental cultures change if the setting of objectives and measurable outcomes are to be achieved. The Government’s response—in effect, its stated good intentions—is a necessary but not sufficient condition for improving the preparation of legislation to Parliament. Again, I think that is the point that the noble Lord, Lord Richard, was making. There has to be the political will to deliver. That is the real challenge. I look forward to hearing how the Government intend to ensure that departments do deliver.