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Legislation and Public Policy

My Lords, I, too, greatly welcome the initiative of the noble Lord, Lord Norton of Louth, and agree with just about everything he said. Therefore, my remarks will be mainly a form of endorsement of his proposals. I also welcome very much the strong statement from the noble Lord, Lord Rooker, that the time has now come to act. However, when we say that we want to act on these proposals, we have to ask ourselves the question which we tend to avoid—although the noble Lord, Lord Butler of Brockwell, did not avoid it—which is, are we giving ourselves the time to do what we can do, what we want to do and what we are asked to do? Time is an important issue and I shall certainly refer to it again. I begin by endorsing strongly the point already made that high-quality scrutiny of legislation and public policy takes time. If we are not prepared to find that time, we must accept that as a revising Chamber we will normally fall short of achieving our potential and fulfilling our mandate. When Labour came to power in 1997, the Government promised to bring forward more Bills in draft. The numbers went up for a while and the Modernisation Committee in another place stressed in 2002 that publication of Bills in draft should become the norm. In 2004, your Lordships’ Constitution Committee made a strong case for more Bills to be published in draft and subjected to pre-legislative scrutiny. The problem is that the increasing flow of legislative proposals—which worries me as much as I think it worries the noble Baroness, Lady Shephard—has not been matched by an increase in Bills published in draft. In fact, as has already been noted, there has been a decline both in the absolute number and in the proportion of Bills published in draft in each Session. This is highly regrettable. To make matters worse, the few published in draft are often published leaving far too little time for meaningful scrutiny. A minimum of 12 weeks or more should be allowed, which is the principle set out in the Cabinet Office guidelines. As the noble Lord, Lord Norton, told the Wright Committee, the Government appear to favour the use of draft Bills in principle but in practice cannot persuade Ministers to utilise the procedure on a more systematic basis. My enthusiasm for pre-legislative scrutiny is fuelled by three desires: to have better legislation; to save, one hopes, some time during the later stages of Bills; and—very important in my view—to see more public input into our legislative process. Scrutiny cannot be truly effective where the legislative proposals are not considered in evidence-taking committees, but how often do we refer Bills to a Special Public Bill Committee or to a Select Committee here? That happens pretty rarely. I most strongly endorse what our Constitution Committee wrote in its 2004 report. It stated: ""Scrutiny should not take place in a parliamentary vacuum. Parliamentarians need to have access to expert opinion to know if there are potential flaws in a bill. They need to be aware of any views strongly held by citizens"." It follows therefore to my mind that every Bill should be subject to some detailed scrutiny, with the taking of evidence from informed and interested bodies, including online consultation, which, as the noble Lord, Lord Norton, knows, we do rather well here. Such scrutiny should take place at the pre-legislative stage. Governments must accept that every Bill should be published in draft form unless there are compelling reasons for not doing so, and that much more legislation should be made subject to pre-legislative scrutiny. I am only quoting what the Government themselves have said more than once in the not-so-distant past. But that, of course, means that we have to ensure adequate time for Members to absorb, analyse and discuss the evidence they have read and heard. Look at the experience in the other place following the very welcome introduction of evidence-taking Public Bill Committees, to which the noble Lord, Lord Norton, referred. As he noted in his memorandum to the Wright Committee, these committees are generally given too little time to assemble a good range of witnesses and too little time for Members to digest the evidence and apply it to the probing and amending process. What are we to do about time constraints? The use of Grand Committee these past five years as a virtual parallel Chamber has undoubtedly reduced the pressure, but not enough. I thus fully agree with the noble Lord, Lord Norton, that we need greater use of carryover and a 14-month, instead of a 12-month, cut-off point from First Reading if we are to relieve the pressure and weaken the lack of time argument deployed by Governments in defending the failure to publish more Bills in draft and accept more pre-legislative scrutiny. A more systematic resort to carryover is one obvious way of partly resolving the time problem. I add another, at the risk of drawing the scorn of many, if not all, noble Lords present. We really need to sit for two weeks in September. I know this is not popular but I know of no other Parliament in Europe—I have been to just about all of them—which grants its Members so long a summer break. If we cannot bring ourselves to do that, at least we should consider a later Summer Recess start or an earlier return. I have heard it argued in the other place that by the time the Summer Recess starts, most controversial legislation has moved from the House of Commons to the House of Lords, so why interfere with the recess? But that is precisely the point: the burden passes to us and the pressure builds up. The other place should be understanding of that, but we cannot go on complaining that we have too little time for proper scrutiny unless we grasp that particular nettle. Finally, no matter how much you change or refine procedures to enhance our scrutiny role, the quality of that scrutiny still depends heavily on the expertise applied to it. I wonder what will happen if and when this Chamber is converted into a wholly or largely elected body. Nothing made my job as chairman of your Lordships’ European Union Select Committee easier than the knowledge that the Select Committee and its seven sub-committees were drawing on a pool of experience and expertise unrivalled in any other legislative body in Europe, and that, of course, applies to the totality of our work here in the House. Let us ponder deeply—the noble Baroness, Lady Shephard, and others present have obviously done so—on the consequences for scrutiny of abandoning the appointed House model. If we abandon it, the House will need to draw on more expertise and experience outside the House to help it maintain a proper level of scrutiny of legislation and public policy, and that will demand still wider use of evidence-based committees. The supporters of an elected Chamber must accept the resource implications of that and the need for more time to do the work properly. Rigorous, high-quality scrutiny is a constitutional imperative. I would rather we did not imperil the precious capability we now have, which is the envy of Parliaments around the world.