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Pre-legislative Scrutiny

My Lords, we are greatly indebted to the noble Lord, Lord Goodlad, and his committee for their work in drawing close attention to the limitations of pre-legislative scrutiny in Parliament, and not merely for their recommendations but for eliciting factual information which has not always been forthcoming voluntarily from the Government. It has to be said that that rather restrictive attitude is somewhat surprising in view of the support that Ministers have generally given on a number of occasions—most notably that of the Lord Chancellor, Jack Straw, to which the noble Lord, Lord Goodlad, referred. The importance of pre-legislative scrutiny scarcely needs to be emphasised. However, I think it is beginning to become a significant question whether our procedures are adequate to draw forth an in-depth examination of legislation that is not emergency. This House would do well to consider whether a system of pre-legislative scrutiny should be the norm not the exception. In a number of other developed democracies, committees exist purely for that purpose; they are not necessarily a chamber of parliament. In New Zealand there is a pre-legislative committee chaired by a former Prime Minister. In that case there is a predominance of lawyers examining the legislation, and I am quite sure that that would not necessarily commend itself to this Parliament. None the less, that committee’s work is valued by the New Zealand legislature. There are in other democracies other examples of deliberate examination of legislative proposals, not necessarily as part of the amending process but as an attempt to view the fitness for purpose—to use that rather unattractive contemporary expression—of what is being proposed and to allow, before positions become entrenched, the opportunity for those interested in the subject matter to ventilate their views and to give the benefit of their advice. One indication given by the Leader of the House in her response to the House of Lords Constitution Committee report which we are considering filled me with dismay. She said that, "““it will not be possible to give a general undertaking to publish most bills in draft or regularly to achieve the figures reached in 2003-04””." We all recognise that circumstances arise when it is necessary to enact legislation quickly, in an accelerated programme, where public necessity dictates, but, as the noble Lord, Lord Goodlad, said, that is certainly the exception. Most legislation is considered quite a long time in advance within government. It is not satisfactory to accept that there are administrative requirements that make it impossible to make pre-legislative scrutiny the norm. The flexibility of the ordering of Bills is entirely a matter for government. It is not beyond the bounds of Ministers to take a more ordered view of how they will proceed overall. I would not wish to give the impression that the Government are not aware of these matters. It is highly desirable and commendable that they have published their legislative programmes in advance, as it gives at least some scope for public discussion before matters are set in concrete. There is growing awareness of the need to improve legislation, but, as the committee has drawn to the House's attention, these aspirational commitments have not been fully met by a follow-up, which would certainly be desirable. It is a matter for consideration—perhaps particularly so at a time when the Government have published proposals for the reform of this House—whether pre-legislative deliberation and scrutiny should be thought of in that context. One of the notable functions of this House is that it is able, when it is given the opportunity, to do a very good job of such scrutiny. I think that that is widely recognised from a number of examples that I have personally witnessed, and am witnessing, of pre-legislative scrutiny. It is clear that this House is particularly well suited to this deliberative process. It is not necessarily an adversarial process, but is about seeking to elicit information, test ideas and judge whether the draftsmanship is adequate to reflect the intentions behind the Bill. My judgment is that that is not necessarily a function that has to be carried out by an adversarial, elected House of Parliament. It could be conducted by an appointed council of state, and that could be ancillary to the role of an elected upper House. I throw that idea in the Minister’s direction without expecting him to respond in any kind of detail at all. None the less, I consider that some response is required from the Government which goes some way to indicating how they would propose to extend, and extend the effectiveness of, pre-legislative scrutiny. There is some public concern about the quality of our legislation that is not connected with hostile partisan political attitudes but with the practitioners who have to interpret it, the professionals who have to rely on it and the general consumer of legislation. Those are the concerns and interests that can be best dealt with before the matter becomes part of the cut and thrust of debate in the Committee and Report stages.