House of Commons
Wednesday 13 December 1995
The House met at half-past Nine o'clock
PRAYERS
[Madam Speaker in the Chair]
Government Bills
Motion made, and Question proposed, That this House do now adjourn.--[Mr. McLoughlin.]
9.34 am
Mr. Robert Maclennan (Caithness and Sutherland): There is widespread dissatisfaction with the working of Parliament. Some reforms, such as the work of Select Committees and the introduction of television, have improved the effectiveness and visibility of Parliament's role in governance, but the changes have not gone nearly far enough.
I am glad to have this opportunity to raise in the House matters for which the Government have responsibility and which require attention if the efficiency of the House of Commons as a legislative assembly is to be improved. The reform that led to the procedure that allowed the possibility of a debate such as this is itself a useful development that I welcome.
The issues that I want to raise do not reflect the concern that is frequently expressed that the contents of legislation are unacceptable. That goes far beyond this debate. The issues that I want to touch on reflect concern that the enactments of Parliament are defective and that the citizen is too often not consulted and dissatisfied. Criticisms are often made, which reflect dislike of the policies behind legislation, but I shall not be dealing with that.
I invite the House to consider, and the Minister to respond to, some of the proposals made by the Hansard Society for Parliamentary Government commission's report on the legislative process, "Making the Law", which was published more than two years ago. The House has not yet had an opportunity of considering it, although a year ago almost to the day, in another place, there was an informed and valuable debate initiated by Lord Nathan. Many of these matters would be appropriately considered in this House. If the legislative process is to be improved, it falls to this House to take an initiative. I hope that the Government will welcome the opportunity of making clear their views about some of those matters and their willingness to consider some of the recommendations.
Perhaps a word is in order about the composition and working of the Hansard Society commission. It was chaired by Lord Rippon, and the hon. Member for Great Grimsby (Mr. Mitchell), Sir Michael Latham-- a distinguished former Conservative Member of this House--and I were members. The matters that the commission covered have been considered from time to time by authoritative bodies, some established by previous Governments. The Heap committee reported a quarter of a century ago and the Renton committee 20 years ago.
It is unfortunate that many of the recommendations made in those reports--and the public's grievances about the legislative process and the quality of legislation, its obscurity and user-unfriendliness, and the lack of consultation in its compilation, to which attention was drawn--remain effectively unaddressed. The problem has become more acute as there has been a great increase not only in the volume of primary legislation--although, in the past decade, Acts may not have greatly increased in number, they have hugely increased in quantity--but in the volume of subordinate legislation, for which adequate scrutiny processes are not, it must be admitted, in place.
The commission's report was thorough, comprehensive and based on a mass of evidence from a wide range of bodies. It all pointed to there being much wrong with our present legislative processes. I think it almost beyond the need to argue that the results have greatly exacerbated the sense of Parliament's incompetence and that, whatever view may be taken of the Government's aspirations in legislation, the product is too often so seriously defective that it requires early amendment. That cannot be a matter of satisfaction to the House or to any Government.
One need mention only the history of the introduction and ultimate abandonment of the poll tax to have a powerful example of what is wrong with the process. It is at least arguable, and was argued by David Butler, Andrew Dennis and Tony Travers in their book on the poll tax, that its defectiveness, not only in conception but in execution, with multiple steps to amend and ameliorate it taken by the Government, committed to trying to make it work, belatedly taking on board advice which had been given in consultation, but which had not been acted upon early, contributed to the Prime Minister of the day's downfall. That may have had a lot to do with the legislation's content and the policy that lay behind it.
Mr. Paul Tyler (North Cornwall):
Is not the phenomenon to which my hon. Friend draws attention especially obvious in cases where Parliament adopts a knee-jerk reaction to an immediate problem? I am thinking of the Dangerous Dogs Act 1991, which was rushed through this place and the other place at great speed, and now we are living with the consequences. Is there not something to be said for the saying, "Legislate in haste and repent at leisure"? Is not that a good lesson in relation to understandable responses such as that to the knife attack on the head teacher? We must be careful that we do not adopt a policy of reacting at such speed that legislation is defective.
Mr. Maclennan:
I entirely agree with my hon. Friend. Had he not done so, I would have drawn attention to the Dangerous Dogs Act, as it is an example of a measure that was too hastily introduced to the statute book and that has left serious problems. Recently, much criticism has been made of it by the judiciary. Almost inevitably, the measure will require amending legislation.
Mrs. Ann Taylor (Dewsbury):
Will the hon. Gentleman be somewhat more cautious about what he is saying about legislating in haste? The House should take prompt decisions when problems arise such as the recent knife attack and dangerous dogs. Surely the problem in that case was not the speed of the legislation, but the degree of consultation that went into the preparation of the measure that went through the House.
Mr. Maclennan:
The Hansard Society's report recognised that there were occasions when it was
not in every circumstance an overruling priority, but it should be the norm. That view was well expressed in evidence time and again to the commission. I refer to the evidence of the Association of British Insurers and Lloyd's, which said:
Another example of legislation that proved to be defective through lack of appropriate consideration and consultation was the Child Support Act 1991. I do not make these points as partisan points, as all parties participated in passing that Act and the Dangerous Dogs Act, although, in the case of the latter Act, the Opposition parties offered alternative proposals to establish a registration system that might deal with many of the problems raised by dangerous dogs. What is clear, however, is that too many significant Bills dealing with real problems are introduced in a half-baked form. That is what we must deal with, and the Government can play the most significant role in tackling it.
The first point of substance is that it should be recognised, as the commission put it, that
I imagine that the Government would have no difficulty in accepting that general proposition, but what is lacking is an institutional requirement that, in a governmental sense, that consultative process be built into Bills' preparation to allow the public fully to participate in the construction of legislation, to know when it is appropriate to intervene, and to have an opportunity to intervene, to influence both the direction of policy and the practicality of the proposals that are made.
That consultation process should be as open as possible, involving all the relevant bodies, especially those that are directly affected by the legislation proposed. There should be, as the commission put it, the minimum secrecy and the maximum feedback to those consulted.
For major policy reviews, it is sensible to involve inde pendent inquiries. The practice that grew up during the lifetime of the Governments led by Lady Thatcher of not establishing such inquiries and of avoiding the appointment of royal commissions, for example, was much to be regret ted. The examples of work carried out by such commissions and introduced as a result of their recommendations, some times backed by the detailed work of other bodies such as the Law Commission, can be of immense help in avoiding errors that vitiate the purposes of Acts.
The worst Department in recent years for neglecting to follow such advice, where it has existed, is the Home Office, which has produced a number of seriously defective criminal justice Bills that have been extensively criticised in the higher courts and, in some cases, have had to be subsequently amended. The knee-jerk reaction to capture the headline "Crackdown on Crime" has become a way of life under successive Home Secretaries.
On the requirement of consultation, it is right that there should be quite clear and specific questions inviting specific responses. There should also be consultation on draft Bills and draft clauses and not merely on Green Papers and White Papers. The commission found it astonishing that the Law Society was under the misapprehension that it was a constitutional impropriety to disclose the precise contents of a Bill to members of the public. The Law Society, of all bodies, genuinely believed that to be the case. I hope that that view does not prevail, because such consultation is proper and desirable. However, it is a reflection of the widespread view that the language of legislation is couched in arcana, the secrets of which are to be divulged only on the date of a Bill's publication. That is not satisfactory if the end product is to be the result of consideration. There is some welcome evidence that the Government have taken that point on board.
There is still concern about rushed consultation, which can certainly be embarrassing to parties whose interests are directly involved. Complaints about the time that is allowed for consultation on Bills were made to the commission by the Trades Union Congress, the Law Society, the Magistrates Association, the National Trust, Shelter, the BBC, the British Railways Board, the community council of Humberside, the National Consumer Council and the Industry in Parliament Trust. The evidence was that in too many cases consultation was effectively pro forma. That must be avoided. It is desirable that, as far as possible, copies of consultation documents should be freely available to those who are affected by legislation or to their representatives. That is a further recommendation by the commission.
There is good practice upon which to draw in setting guidelines for consultation, which all Departments should prepare. The Department of Trade and Industry has drawn up such guidelines and that is extremely welcome. In that context, there has been one hopeful development on consultation since the Hansard Society commission reported, and it is contained in the provisions of section 3 of the Deregulation and Contracting Out Act 1994. I am not in sympathy with the whole of that legislation, but at least in respect of the required consultation and the publication of the results it marks a creep forward, which I welcome.
It would be worth the Government's while to study the practice in some other countries, notably that in New Zealand where, for the purposes that I have described, a legislative advisory committee monitors legislation before Bills are published. Systematic and thorough consultation as part of the legislative process is not a pipe dream. It is a reality in the Deregulation and Contracting Out Act and it should be the practice for Bills and major items of delegated legislation. On that issue in particular, I should be grateful to hear the Minister's thoughts at the end of the debate.
More time and care must be devoted to the drafting of Bills. My ministerial experience occurred some time ago, although it extended over more than five years. I was concerned about the issue of ministerial responsibility for the work of parliamentary counsel. I understand that parliamentary counsel are answerable to the Prime Minister. Even a Prime Minister with an assiduous interest in detail--perhaps Lady Thatcher was an example--must find that the supervision of parliamentary counsel lies outside his daily interests and sphere of operation. The
case for assigning to the Attorney-General responsibility for parliamentary counsel and for ensuring that legislation conforms to best constitutional practice and best legal drafting practice should be seriously considered.
In drafting the Consumer Credit Act 1974, I sought to make the language of the legislation more consumer friendly, but that was difficult to accomplish. The right hon. Member for Northavon (Sir J. Cope) may remember that legislation, because he was interested in some parts of it. Each step involved enlisting the support of the lawyers in one's Department, and the argument, which was nearly always difficult to sustain, was that parliamentary counsel could have drafted a passage with greater clarity and without reference to other Acts. That would have avoided complex legislation that was less helpful to those who required to use it.
As a general principle, parliamentary counsel should be pulled rather more into the supervisory overview of those within government who are responsible for the law, and their work should be assisted by some addition to their resources, because if the problems have not been tackled in the years since we received evidence on them, there are difficulties with recruitment, training and staffing.
The style of drafting should be based on the requirements of the main users of the Bill, and draftsmen should seek clarity, simplicity and brevity. The commission took the view that certainty should be paramount, and cautioned against too great a reliance on statements of principle that left too much interpretation to the courts. However, we have tended to err in the opposite direction, and greater clarity is certainly to be sought.
Achieving those ambitions will require a considerable push from the Government, not mere aspiration and generalised instruction. The commission suggested that notes on sections should be published with Acts, and that they could be used by the courts as an aid to understanding. I know that, when the Broadcasting Act 1990 was considered, such notes were provided to members of the Committee. However, we still have to rely on the practice, which is not entirely satisfactory, of dealing with ambiguities in the manner of the ruling in Pepper v. Hart. It would be preferable to avoid the type of ambiguities that arose in that case by the Government assisting the process of comprehension in the way that I have described.
The commission took the view that, on balance, it would be right to make greater use of delegated legislation, but that was under the conditions of the provision of greater scrutiny for delegated legislation, and improved arrangements being made for the publication of statute law. The failure of Parliament to scrutinise that delegated legislation effectively is very troubling. The new procedures of the Deregulation Select Committee, to which I have already referred, in scrutinising deregulation orders for their approval by the House could be applied to major delegated legislation.
The commission also welcomed, and urged on, the Government's plans to establish a statute law database. Can the Minister say what has happened to that? It was originally intended to be ready by September 1993.
We also made a number of recommendations to reform the way in which Parliament should examine and pass legislation, including, for example, more pre-legislative examination of legislation by Select Committees; more evidence from experts and the public on Bills and in
Committee; and systematic post-legislative examination of how Acts have worked out in practice. Those are matters for the House, and perhaps for another debate. However, it is unfortunate that those matters do not appear to have been considered or reviewed by the Procedure Committee recently.
The points that I have made depend on the Government taking the initiative to improve our legislation. None of this--better consultation, better and less hasty drafting, and proper scrutiny--would be possible without changes in the way in which the legislation is programmed. However, that also depends on the Government.
There must be acceptance of the need for timetabling of legislation in the House of Commons to ensure the passage of the Government's legislation, but as a concomitant of that, the commission recommended a move towards the adoption of a two-year legislative programme, leaving proper time for consultation and drafting. With longer and more complex Bills, that would not only avoid the total domination of the parliamentary timetable by such Bills, which is undesirable, but would allow proper scrutiny as they passed through Parliament.
"getting a bill right should always have priority over passing it quickly"--
"it is better for legislation to be clear and workable than for it to be enacted at the earliest possible opportunity and, before long, have to be changed by further legislation or interpretation by the courts".
"proper consultation should play a central part in the preparation of bills".
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