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Pre-legislative Scrutiny

My Lords, I congratulate my noble friend Lord Goodlad on raising this important question. The Constitution Committee’s report on pre-legislative scrutiny follows, as my noble friend mentioned, its report Parliament and the Legislative Process, which was published in 2004, when I was the chairman. It is important to put the present debate in the context of that report. The 2004 report looked at the legislative process holistically, addressing pre-legislative, legislative and post-legislative scrutiny. At that time, the most significant developments had occurred in respect of pre-legislative scrutiny, and it looked as if that would continue to be the case. The value of pre-legislative scrutiny was widely recognised. The experience of Bills committed for pre-legislative scrutiny demonstrated its utility for improving the quality of legislation. The case for extending scrutiny was recognised not only by the committee but also by the Government. Paragraph 28 of the 2004 report states: "““We not only welcome the use of pre-legislative scrutiny but wish to see it improved and extended. The Modernisation Committee in 2002 stressed that it wished to see publication in draft become the norm. The Deputy Leader of the House, Phil Woolas, has stated that ‘a bill should be published in draft form unless there are good reasons for not doing so’ and has made clear that ‘it is the Government’s intention and policy to increase the amount of legislation that is subject to pre-legislative scrutiny’””." I reiterate this direct quote from Mr Woolas, who said that, "““it is the Government’s intention and policy to increase the amount of legislation that is subject to pre-legislative scrutiny””." What has happened since? There has been a major improvement in the legislative process and there has been a significant development in respect of post-legislative scrutiny. The Constitution Committee, in its 2004 report, recommended that a Bill should, at some point during its passage, be subject to scrutiny by an evidence-taking committee. The other place has introduced Public Bill committees. This is a very welcome development, albeit one that has been little noticed outside the Palace of Westminster, and indeed has perhaps not been fully appreciated by this House. It is something that we should be examining. In its 2004 report, the committee also recommended that Acts should normally be subject to post-legislative review by departments, with those reviews then submitted to departmental Select Committees in the other place. The Government referred the proposal to the Law Commission, which reported in October 2006; its report largely followed that of the committee, but also recommended the creation of a Joint Committee to consider post-legislative reviews not taken up by departmental Select Committees. The Government took their time in responding but in the event produced a very welcome report in March this year. Though not endorsing the proposal for a Joint Committee, it did accept that departments should review Acts normally within three to five years of enactment and send the reviews to Select Committees. I trust that we shall, in due course, be debating the Government’s response. My point for the moment is that there has been very welcome progress with both the legislative process and post-legislative scrutiny. What has happened with pre-legislative scrutiny? There has been, in effect, as my noble friend indicated, a regression. The Government have clearly abandoned the policy announced by Phil Woolas. As the data in the report that is the subject of this debate makes clear, the highpoint for the number of Bills subject to pre-legislative scrutiny was 2003-04. What justification do the Government offer for this post-2004 regression? In their response to the latest report, they state: "““The Government also has been disappointed at the lower numbers of draft bills published in recent sessions””." It is written as though this is something external that is happening to Government, for which they have no responsibility. It continues: "““But, as has been indicated in the past (for example in the reply to the Commons Liaison Committee in 2007), 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. The main practical obstacle remains the need to have the freedom to bring forward much legislation on a timetable which does not allow for publication of the proposed legislation in draft form. As the Committee notes, the number planned for publication in the current session is significantly higher than in the preceding sessions””." I have asked before, but received no answer: what on earth does this mean? I ask the Minister to explain what is meant by the following sentence: "““The main practical obstacle remains the need to have the freedom to bring forward much legislation on a timetable which does not allow for publication of the proposed legislation in draft form””." Why does it need that freedom? Why is it a practical obstacle, as opposed to political resistance from Ministers to having their Bills examined in draft? There is no justification offered for the Government’s statement in their response either to the committee’s report or to the Liaison Committee in the other place. Why do the Government then go on to say: "““As the Committee notes, the number planned for publication in the current session is significantly higher than in the preceding sessions””?" That does not obviously flow from what has gone before; if anything, it undermines it. It is possible to publish several Bills in draft, more so than in the immediately preceding Sessions. Why can this not be maintained and extended? As the Constitution Committee recognises, certain Bills obviously cannot be published in draft; for example, the Criminal Evidence (Witness Anonymity) Bill. However, as my noble friend said, emergency legislation is the exception and not the norm. The Government have provided no clear principled or practical reason why there should not be more Bills published in draft and committed to pre-legislative scrutiny. The case for such publication and pre-legislative scrutiny is generally accepted, including by the Government, so why are they not delivering on what in 2004 was their declared policy? I know there is some incentive for departments to publish in draft, yet there seems to be a reluctance to go down this route and a failure on the part of senior Ministers to impose such a policy. The Government have failed to justify this step backwards. They have made progress in other areas of the legislative process, so why not in respect of pre-legislative scrutiny? I conclude by referring to the time provided for pre-legislative scrutiny. When Bills are referred for pre-legislative scrutiny, the committee should normally have at least three months to consider the Bill. That is included in the Cabinet Office guidance to departments. Like the noble Lords, Lord Maclennan and Lord Tyler, I serve on the Joint Committee on the draft Constitutional Renewal Bill. We began work in May and we have to report by 22 July, when we are meeting—this is for legislation that is essentially five Bills in one. The pressure on the Joint Committee has been enormous. The Government’s response to the Constitution Committee’s observations on this point is wholly inadequate. In effect, it is that it is ““one of those things””. If the political will is there, the situation can be improved. I am aware of the pressures on parliamentary counsel, but more can be done to stagger the introduction of Bills and make greater use of the provision for carryover. These points are covered in the Constitution Committee’s 2004 report. There is scope for improvement. What is lacking is not necessarily the resources but rather the resolve to improve the situation. The Government’s response is indicative of that. I look forward to the Minister offering far more this evening than is embodied in this rather sorry response.