Law Society further submission (M 61(a))
THE LEGISLATIVE PROCESS
A. PREFACE
The Law Society
The Law Society is the professional body for
solicitors in England and Wales. The Society regulates and represents
the profession and in its public interest role works for reform
of the law and improving access to justice.
The Better Law-making Programme
Through its Better Law-making Programme, the
Law Society is seeking improvements in the way the law is made
and in its accessibility, from preliminary and consultation stages
to publication and implementation of a new measure. The Society
is calling on and encouraging Government, and the political parties,
to build on the changes to Parliamentary procedure already instituted
and to continue to make reforms to the law-making process.
Given its significance for both individuals
and for business, it is vital that legislation is understandable,
accessible and effective. Too often it is hard to use, find, understand
and apply. Welcome changes, such as publishing some Bills in draft,
have already been introduced. More however needs to be done. The
Society argues that improving the process could improve the product.
B. PRELIMINARY
POINTS
Solicitors' role
The Law Society warmly welcomes the Modernisation
Committee's examination of the legislative process. Solicitors
of course deal with the "output" of this process every
day, explaining the issues and problems to clients, and are well
placed to consider the effect of the various stages on the end
product.
Problems of legislation
Problems with legislation, both primary and
secondary, and indeed with soft law, which may be needed to amplify
a measure, are varied. But for individuals and organisations,
working out what the law is, and its impact on them, can drain
time, energy and money. Such problems can cause distress and anxiety
to those caught up in them.
The difficulties posed by legislation can be
roughly grouped into three (although there is considerable overlap):
— problems of content, such as unclear
wording;
— problems of structure and form, for
instance a complicated organisational approach; and
— problems of access: finding what
and where the law on a topic is.
(a) Problems of content
This covers obstacles such as the uncertain
meaning of a word or phrase. This type of problem can arise for
example when an EU directive is transposed into domestic provision,
if the original wording is not sufficiently precise. 1 Another
range of problems centres on the way in which the EU provision
is transposed. 2 Problems can arise of course in purely domestic
legislation as well. 3,4
Alternatively, old and new legislation may not
work well together or may be incompatible or require reconciliation.
5
Whatever the source of the problem, court action
may be necessary (possibly after many years of difficulty for
those concerned). Such litigation, whether supported by private
or public funds (through bodies such as the equality commissions
as well as by legal aid), is expensive, stressful and time consuming.
An alternative to litigation is provided in
some cases by a regulator, for example the Financial Services
Authority, empowered to issue guidance or soft law on the meaning
and interpretation of the statutes within their ambit. However
soft law is not without its own problems (discussed briefly below),
and in any event it may be challenged in court and possibly overturned.
(b) Problems of form and structure
The Identity Cards Bill contains a number of
examples of both textual and structural complexity, a failing
not unique to this measure. 6 Another recent provision regarded
as particularly difficult is the draft Mental Health Bill 2004.
7
On a practical level, much legislation is simply
difficult to use. There is usually, for instance, no index in
paper versions of Bills, Acts or Statutory Instruments (SIs),
and no typological indication, such as bold print, that a word
is defined in the measure (or in another).
(c) Problems of access
Finding what and where the law is poses problems
of a different order and of many different kinds. We return to
this topic in more detail in section 9 below and make some preliminary
comments here.
Parliament's approval of a Bill and Royal Assent
are rarely the last stages in the matter. Much EU legislation
for instance comes in the form of a framework Directive, implemented
domestically by a series of regulations. 8 Soft law, such as departmental
guidance and circulars, is often needed to make an Act of Parliament
and regulations ultimately workable on the ground. This will be
issued by the Department and other bodies, such as a local authority,
and may be extensive. 9
Further, primary legislation may not come into
force until long after Royal Assent. 10 The fact that a section
or sub-section is not in force is not clear on the face of the
original Act. Some provisions may have been amended repeatedly,
creating a chain of primary and secondary legislative texts, and
case law, that even well-resourced legal specialists find hard
to unravel. 11 (While it is important that such material remains
available on paper of course, using the internet could help bring
it together in one place, thus greatly improving its accessibility.)
Another hazard is delay in publication of regulations
and soft law. Users and their advisers need time to prepare for
new legislation and late publication of the relevant material
may make this very difficult. 12 Poor anticipation of how provisions
will work in practice, or fit in with existing requirements, may
lead to other problems. 13
More rarely, provisions are found in unexpected
places. For instance, repeal of a requirement to notify local
authorities about storage of celluloid film can be found in an
employment measure. 14 For those with internet access, the availability
online of statutory and other material now makes tracing such
material much easier, but even so, there may apparently be no
need to make extensive searches and so such scattered provision
may not be found.
Amended legislation and legislation in force
Once amended, legislation is not officially
republished by the Office of Public Sector Information (OPSI)
unless it is consolidated. As the OPSI website puts it, "[a]ll
Public General Acts appear as originally passed by the UK Parliament".15
Thus there is little to warn the unsuspecting user that a measure
may have been substantially amended or even repealed. The amending
measure itself may simply be a series of opaque statements such
as to "delete from section x to section y". Commercial
publications are available which set the law out as it now stands,
but these can be costly and are usually only easily available
to professional advisers. Again, the internet could make a vast
difference in showing the law as it currently stands, and which
measures have been brought into effect.
Some solutions
Clearly existing ways of producing legislation
can present many problems. However, a good proportion of these
can be resolved or ameliorated by relatively simple steps. In
answering some of the questions posed by the Committee, we set
some of these out.
C. ANSWERS TO
QUESTIONS
(For convenience the questions posed are included in italics
and headings have been added.)
Parliament and Public
1. How we can improve on communicating
the content of bills to a wider public. How Parliament informs
the public of the legislation it is considering. What measures
we need to put in place to encourage the public to contribute
to procedures such as pre-legislative scrutiny.
Recent research
1.1 Many of these issues have been thoroughly
researched by the recent Hansard Society Commission on the Communication
of Parliamentary Democracy, chaired by Lord Puttnam. 16 The report
of the Parliament First group, Parliament's Last Chance,
also considered this matter. 17 Our comments in this connection
are based on the presumption that the widest possible and highest
quality participation and communication between the public and
their Parliamentary representatives can only benefit both democracy
and the rule of law, and so result in improved law-making.
1.2 In our recently published Better
Law-making Charter we made suggestions about making it easier
to find out what is happening in Parliament and on a particular
measure—for instance: the Parliamentary website should be
designed to help users understand and follow the progress of current
and forthcoming legislation. Hansard, long Bills and SIs should
be printed with an index; after each parliamentary stage, Bills
should be reprinted on paper of a different colour, and made available
online, showing the deletions and additions made to the text in
debate. A shorter version of Hansard should be published, to show
the effect of votes on the Bill. 18
1.3 It can be extremely difficult to follow
in detail the progress of a Bill, even using the Parliamentary
website. Giving each significant Bill its own web pages would
help. These could show how proposed and actual amendments agreed
in debate would affect the text, rather than using the formal
but opaque "in line x delete from and to but. . ." model,
which leaves the average user little wiser.
The Internet and digital TV
1.4 The internet, while being the obvious
medium for improving communication, has the major drawback of
not yet being available to everyone. Without equal attention to
conventional means of communication, greater use of the internet
risks widening the digital divide, and excluding those whose work
or daily life does not make them familiar with computers, those
who left work before their use became widespread and those who
cannot afford them or cannot easily get access to or use them.
While all the varied opportunities the internet offers should
be used to the full, it cannot yet be relied on as the only or
main means of contact with the public. Of course, even those with
access may not think of checking the Parliament website, however
improved it may be or become (as the Puttnam Commission recommends19).
1.5 Similar considerations apply to digital
television, but perhaps the familiarity and ubiquity of TV suggests
that the digital Parliament channel may be slightly more accessible.
Constituency activity
1.6 MPs may still be better able to bring
current issues to public attention, and thus obtain the public's
views, on a constituency basis. There, local networks, regional
newspapers and meetings may help show how national issues will
have immediate impact.
1.7 Despite the comments above about the
dangers of over-reliance on the internet, MPs should be encouraged
to make use of it—a check on the Parliamentary website shows
that not all MPs have their own site and others do not even have
email.
Pre-Legislative Scrutiny
2. Has pre-legislative scrutiny resulted
in better legislation? Could its use be extended and, if so, what
consequences would there be for the legislative process?
Desirability of pre-legislative scrutiny
2.1 It would probably be difficult to prove
scientifically that more pre-legislative scrutiny has improved
legislation, but it would seem unarguable in practice that it
has. Both the Hansard Society20 and Parliament First21 support
it, as did the Modernisation Committee in its First Report in
1997. 22 Effective consultation procedures and processes such
as publication and consideration of Bills in draft would appear
to have greatly improved the text which is presented to Parliament
or to have identified drawbacks in the draft text which require
its rethinking.
2.2 An excellent example of the process
working well is the draft Corruption Bill 2003. This Bill, as
the Joint Committee on it reported, 23 was a long time in the
making. "Its provenance" started with the Salmon Commission
on Standards in Public Life in 1975. 24 Further developments led
to a Law Commission Consultation Paper in 199725 followed by its
report, Legislating the Criminal Code: Corruption, in 199826 which
included a draft Bill "in essentially similar terms"27
to the Bill before the Committee in 2003. Even so, the Committee
said,
"The written and oral evidence we have received
has been highly critical of the Bill from a wide range of different
viewpoints. While no one has challenged the need for new legislation,
there have been many adverse comments on the approach adopted
in the Bill and its drafting, clarity and comprehensibility".28
2.3 The evidence the Joint Committee was
given was interesting, in that it highlighted the need for outside
contributions from those with real experience of coping with the
problem. For example, one contributor said, "I do not believe
that the drafters of the Bill understand the workings of corruption".29
2.4 The Committee thought "the Bill
[did] not proceed on the right basis"30 and concluded that
the underlying conceptual approach of the Bill needed wholesale
change, not mere modification: "In the light of the criticisms
which have been made of it, we do not consider that the draft
Bill should be left as it stands on the essential issue. The choice
is between modifying the Bill by trying to improve it marginally.
. .the Bill would still be obscure and unsatisfactory. . . On
the other hand we can adopt acompletely different approach. .
. This alternative course is, we believe, the right one".31
2.5 The Committee asked for a revised Bill
taking its comments into account. Their comments were heeded,
the Bill was duly scrapped and in December 2005 the Home Office
issued a further consultation paper on bribery. 32
2.6 As the history of the Corruption Bill
shows, the improvements may be in both conceptual structure, content
and drafting. Occasionally a proposal will be regarded as so misconceived
that the only way out is to start again—and perhaps engaging
the expertise and experience of outsiders is the best and quickest
way of finding this out before too late in the Parliamentary process.
Almost inevitably outsiders will bring to the discussion practical
ideas and suggestions, based on direct knowledge, that would not
otherwise have been available to Parliament.
2.7 Thus these crucial pre-legislative stages
should allow fundamental matters to be raised and addressed in
time for them to be resolved before a Bill formally enters the
relatively inflexible law-making timetable. If necessary this
would involve withdrawal of the proposals and re-drafting or re-structuring.
RIAs and Legal Aid Impact Tests
2.8 In addition, new pre-legislative steps
such as regulatory and other impact assessments (for instance
the Department for Constitutional Affairs' new Legal Aid Impact
Test33 (LAIT)) also help identify and tease out issues which might
otherwise be overlooked.
2.9 Examples of factors which the LAIT should
identify for attention include the cost of a new measure in terms
of legal aid funding for more cases (both advice and representation),
similar calls on the resources of bodies such as the Equality
Commissions and ACAS, and the cost to the court and tribunal system
of additional hearings, as well as whether the projected number
of new cases will create longer delays for existing users.
2.10 In addition at RIA stage the arrangements
for any cross-departmental working, prior to implementation as
well as afterwards, could be set out. For example, a new offence
punishable by fines, created by a Home Office measure, may mean
implications for the work level of court bailiffs, the responsibility
of the Department for Constitutional Affairs. Responsibilities
for operation should be clear, as should liabilities for costs.
2.11 Finally, the utility of RIAs could
be improved if they included indicators by which the success of
the measure could be assessed in any post-legislative scrutiny.
Dovetailing of new and existing legislation
The example of the Criminal Justice Act 2003
2.12. One other aspect which needs to be
attended to far more than it has been is the inter-relationship
of the new measure with existing ones. Special attention should
be given to this, otherwise very severe and costly difficulties
can result. An instance is the Criminal Justice Act 2003.
2.13 It is important that all legislation
is clear, but this is particularly so where criminal offences
are concerned, as the liberty and reputation of the individual
may be at stake. Unfortunately the Criminal Justice Act 2003 has
caused numerous problems in this respect (and was a measure subject
to many late amendments during its passage). The comments of Lord
Justice Rose, Vice President of the Court of Appeal (Criminal
Division), in a recent case34 graphically illustrate some of the
problems which can arise if careful attention is not paid to the
dovetailing of new and old legislation.
2.14. Quoting the Court of Appeal's reference35
to parts of the 2003 Act as "labyrinthine", Lord Justice
Rose said that in the present case,
"the provisions are not merely labyrinthine,
they are manifestly inconsistent with each other and we have every
sympathy with lay Justices, their clerks and District Judges who
are having to grapple with them" (para 3).
2.15 He referred to the "legislative
morass" (para 5) with which the Court had to deal, and
"other anomalies . . . For example, section
24(1)A of the Magistrates' Courts Act 1980, as currently in force,
refers to subsection 91(2) of the Powers of Criminal Courts (Sentencing)
Act 2000, albeit that that has now been repealed . . . And the
sending for trial provisions of section 51A(3) of the Crime and
Disorder Act do not yet apply to offences concerning firearms
and homicide or offences concerning serious or complex fraud"
(para 13).
2.16 He continued,
"The most inviting course for this Court
to follow, would be for its members, having shaken their heads
in despair to hold up their hands and say: "the Holy Grail
of rational interpretation is impossible to find". But it
is not for us to desert our judicial duty, however lamentably
others have legislated. But, we find little comfort or assistance
in the historic canons of construction for determining the will
of Parliament which were fashioned in a more leisurely age and
at a time when elegance and clarity of thought and language were
to be found in legislation as a matter of course rather than exception"
(para 14).
Guidance
2.17 The court noted that guidance had been
drawn up informally by local justices' clerks because of the problem
of the "conflict between section 51A(3)(d) and section 24
of the Magistrates' Courts Act 1980". The guidance offered
"an interpretation of the provisions [which] provides a compromise
solution. It has received fairly wide support amongst CJS practitioners
including the Judicial Studies Board and some parts of the Justices
Clerks Society" (para 7). The court then went on to give
guidance to justices on the operation of "these two inconsistent
sections in a particular case" (para 17) and "pending
the implementation of paragraph 9 of Schedule 3 of the 2003 Act,
which we understand is not contemplated for many months"
(para 17).
2.18 A more satisfactory, formal, and national
means of dealing with such problems is surely urgently needed.
2.19 This difficulty is exacerbated when
two provisions touch on related matters. In such cases it becomes
all the more important that pre-legislative scrutiny is especially
thorough and in particular that the resultant measures neither
overlap nor leave a gap in provision. For example, the Mental
Health Bill was a proposal put forward by the Department of Health,
with involvement of the Home Office on certain aspects. The Mental
Incapacity Act was a measure from the Department for Constitutional
Affairs. Although the Mental Health Bill has now been withdrawn,
changes are likely to existing legislation and the Society is
concerned that, when implemented, the two statutes will dovetail.
The risk of problems if this is not resolved will be borne by
a particularly vulnerable group of people and those involved in
their care.
The Need for Improved Pre-legislative Stages
2.20 In the light of problems like these,
therefore, we recommend increasing and improving pre-legislative
scrutiny. Ideally, the text of the Bill which is presented to
Parliament would consist of matters which are as broadly agreed
as possible and where the outstanding and contentious issues are
clear. 36 The extensive preparatory work in relation to the Sexual
Offences Act appears to be a useful model for the consultative
stages. In addition there should be no doubt about the inter-relationship
of the new measure with existing provision clear. 37 More time
may need to be allowed for these stages to be completed—in
this connection the carry-over provisions may be helpful.
Standing Committees
3. Is there scope for modernising the work
of standing committees, making them more effective in scrutinising
the detail of bills and more accessible to the wider public (including
organisations with an interest in the legislation)? Would alternative
models of scrutiny be more effective in some cases?
3.1 Again, the Hansard Society has recently
considered this topic, 38 and briefly reviewed the "widespread,
and often trenchant criticism" Standing Committees have received
in the past. The Modernisation Committee itself, in its first
report, also noted that "large sections of the Bill [may
not be] considered" in certain Standing Committees. 39
3.2 This is a major concern. 40 The Hansard
Society has noted that,
"Scrutiny is often patchy and haphazard;
many clauses can pass through a [Committee] without any scrutiny
at all, even when the provisions are of major importance and might
have direct effect on the financial well-being or the liberties
of the public".41
3.3 The basic questions which "should
always be asked", says the Hansard Society, are:
— Is the proposed law as clear and
unambiguous as possible?
— Are the measures practical and likely
to be administratively sound?
— What will be the law's consequences?
42
3.4 However a Standing Committee in its
present form may not be the best way to answer such questions.
At a minimum, evidence from potential users is likely to be necessary.
Unless the Bill has been changed from earlier stages, there is
a risk of asking respondents to repeat comments given already
(which may be a burden for individuals and smaller organisations,
thus perhaps increasing the influence of larger and better-resourced
bodies).
3.5 It may therefore be worth considering
a substantial change to the pre-legislative stages of Bills, to
ensure that stakeholders' views are properly taken into account
at the right point in the process. Some pre-legislative stages
might be combined, for instance, using special standing committees
(as the Hansard Society recommend43) so that evidence may be taken
from interested outsiders. Joint Committees of the Commons and
the Lords may also be a useful model. Further, changing the way
the Bill is approached might be possible, for example dividing
consideration of the underlying policy from the expression of
that policy in the written text once the policy is clear.
Report Stage and Lords' Amendments
4. How could proceedings at report stage
and consideration of Lords Amendments be improved?
4.1 Substantive amendments introduced by
government at a late stage should not escape detailed scrutiny.
For example, if a substantial amendment is introduced by government
at Report Stage there could be a requirement to reconvene the
Standing Committee to consider it, and in appropriate cases to
receive evidence from outside bodies. This could encourage the
promoters of Bills to introduce them only when thinking on all
aspects is as complete as possible before they start their passage
through Parliament.
Programming and Carry-Over
5. What has been the impact of programming
and carry-over on the Government's legislative timetable? Could
carry-over be used to establish a more regular, less cyclical
annual pattern of legislative business in the Commons? Could programming
be used more effectively to target scrutiny on the parts of a
bill which most require it?
5.1 Carry over, while negating end of session
effects, has undoubtedly been useful in allowing greater and more
considered attention to be given to Bills. We think that workable
effective legislation, which gets things right the first time
as far as possible, should be the priority of both sides of the
House at this and other stages.
Post-Legislative Scrutiny
6. How could more systematic use of post-legislative
scrutiny contribute to improving existing legislation?
6.1 We have submitted two papers to the
current Law Commission study and strongly support the concept
of systematic post-legislative scrutiny. However, a number of
difficult issues need to be resolved before this can be generally
effective.
Post-legislative scrutiny now
6.2 Of course, post-legislative scrutiny
already takes place in an informal way. Individuals and organisations
affected by a measure will know whether new legislation is working
effectively—or not, resulting in problems which are all
too familiar: uncertainty, delays, cumbersome procedures, badly
thought out forms, additional costs, information which is difficult
to find and unhelpful when you do and so on. When this happens,
Parliament and government may become aware of the difficulty,
through complaints from users such as constituents, or representative
bodies and similar groups. But they may remain unaware of many
others, for example if users do not know how, or to whom, to report
problems. In any event, individual MPs may find it impossible
to do anything to put the matter right.
6.3 Another kind of review is litigation.
This may be necessary to clarify the law (usually at considerable
public or private expense and often taking some years to conclude).
Legislation may even be passed by Parliament with the clear intention
that judicial decisions will be necessary to enable it to work.
For example a case may need to be brought to clarify the meaning
of "reasonableness" in the context of an employment
provision. (Whether this is still desirable or necessary, given
the availability of soft law measures such as codes of practice,
is another matter.)
6.4 Compliance and conviction rates in criminal
cases are also rough and ready tests of whether a new law works
as expected.
6.5 Sunset clauses may be regarded as a
means of post-legislative scrutiny. (These set dates on which
provisions will cease to have effect, and so bring measures back
to Parliament if governments seek their renewal.) While sunset
clauses do offer Parliament an opportunity to review and reconsider,
they can give a false sense of security: they are not a real alternative
to systematic post-legislative scrutiny. 44 Generally we think
that a sunset clause should bring a complete end to the provision
and if Government wishes to continue with it, the matter should
be reintroduced through further primary legislation and not merely
renewed by a simple vote.
6.6 More generally academics, campaigners,
commentators, lobbyists, pressure groups, research units and "think
tanks", as well as voluntary, representative and professional
bodies, critique the law and propose change and thus provide further
informal post-legislative scrutiny. The Law Society for example
produces an annual review of Tax Law, which covers, amongst other
topics, "correction of anomalies and remedies for practical
problems"45 experienced by practitioners.
6.7 However this huge amount of experience
and information is not collated and marshalled, nor are all the
issues always addressed. Concerns are scattered and may be only
vaguely articulated. They may not even be identified as problems
with a particular piece of legislation. A systematic process of
post-legislative scrutiny would have to capture as much of this
experience of the operation of a measure as possible as well as
conducting more rigorous, formal, standardised analyses and assessments.
Post-legislative scrutiny, time and policy differences
6.8 Time and policy differences pose major
difficulties for a new system of post-legislative review by Parliament.
The Hansard Society refers to the probable and "understandable"
reluctance of governments "to revisit an area, to which it
has devoted time and political capital, only to find that its
actions have not worked out as hoped or promised".46 Some
measures may fail to work well because they are simply under-financed
and under-resourced, as a result of budgetary constraints (or
simply poor planning). In these cases, the basic legislation may
be perfectly satisfactory and there may be a general appreciation
of the nature of the problem. It may be thought by business managers
that little would be gained by repeating complaints which would
already have been aired, if further resources will not be made
available: but the difficulty created may be genuine and acute.
6.9 Review of politically difficult measures
is also likely to be problematic, especially when a change of
government takes place between enactment of a controversial measure
and the time for its review. Governments would need to reach an
accord about not using a "review" to, in effect, repeal
or undermine measures to which they have policy objections. Further,
governments are unlikely to agree to delay their own future programmes
in order to put right the errors or omissions of a politically
opposed predecessor. However it may be that from time to time
this nettle will have to be grasped: some measures may simply
have failed to work and need to be scrapped and redone.
Which measures would be reviewed?
6.10 Time and resources will be limited.
So which measures should be chosen?
6.11 One initial question is whether there
would be any point in undertaking a review of measures which were
working well. In principle the answer must be yes, because lessons
could be learnt and applied elsewhere. However this approach increases
the number of candidates for review, rather than reducing it.
6.12 Could measures be selected on an annual
(or departmental) or sessional basis? This would help address
a concern raised by Professor the Lord Norton of Louth, 47 former
Chairman of the House of Lords Constitution Committee, that single
measures, if reviewed, are reviewed in isolation, while the aggregate
output and impact of a Parliament is not assessed.
6.13 Post-legislative scrutiny would need
input from all users of the measure. With this additional call
on their time, would stakeholders and consultees suffer "consultation
fatigue", meaning that only the largest and most persistent
(but not necessarily the most representative) of lobbyists would
have the necessary resources?
6.14 Is "he who shouts loudest"
the most likely to be heard? The criteria for selecting which
issues to review should ensure that those whose voices are most
likely to be drowned out—the socially excluded, the old,
the poor, the non-organised, the unglamorous and the unrepresented—are
not disregarded. While many significant problems for individuals
and organisations reach the attention of MPs and peers, others
may not, nor will they receive significant media coverage. The
adage "absence of evidence is not evidence of absence"
should be borne in mind.
6.15 The first issue therefore is to ensure
that measures which genuinely need attention, and not just those
which attract the most, are identified and brought within the
scope of potential review.
When?
6.16 We would argue against a fixed period
generally applying. Some time between two to five years after
implementation would seem reasonable, allowing for shorter or
longer periods as appropriate. The timetable for review would
need to be agreed during the passage of the Bill.
Scope of post-legislative scrutiny
6.17 We first touched on this topic in the
preliminary points at the start of this paper. Given the extent
to which operational detail is dealt with not by primary but through
secondary legislation, post legislative scrutiny should logically
extend beyond the Act to encompass any regulations and soft law
made under it. Both the regulations made and the appropriateness
of the extent of the power (as things have turned out) might be
addressed, along with any need for Ministerial assurances and
explanations given in debate to be formally incorporated into
statute and factors affecting the accessibility and usability
of the relevant soft law.
6.18 These issues arise particularly in
relation to framework bills, which are increasingly common. They
introduce often very significant changes through a relatively
straightforward piece of primary legislation and leave much of
the detail about day-to-day operation to regulations (and regulators)
and soft law. We return briefly to this issue in paras 9.5 below.
What action would follow?
6.19 Governments should at least be required
to respond to formal post-legislative scrutiny reports and, if
not acting on the recommendations, to say why not.
6.20 It may also be possible to obtain a
commitment that some recommendations, perhaps concerning human
rights and civil liberties, or other key issues such as matters
relating to payment of welfare benefits, would at least be debated
in Parliament. Nor presumably there would be anything to stop
an MP or peer using existing procedures, such as adjournment debates
and questions, to bring a report to the attention of the House.
6.21 Some of the recommendations made might
not require government action. Recommendations about the adequacy
of impact assessments, for example, could be acted on directly
by departments. This would be particularly so if a measure was
found to be working well and lessons could be learnt elsewhere
as a result.
Ping-Pong
7. The impact of the procedures for waiting
for, receiving, printing and distributing Lords Messages and related
Motions and Amendments (ie "ping-pong") have on the
House. Is the fact that the House towards the end of a session
has to suspend to wait for Lords messages the best use of Parliamentary
time?
End of session ping-pong may be regarded as
one of the areas where the political and legislative processes
most noticeably collide, with government and opposition perhaps
negotiating outcomes on the basis of a somewhat different set
of considerations than at other times. At the end of the session,
governments seek to salvage as much of their incomplete legislation
as they can; opposition parties value the leverage the lack of
time offers them. Such factors give this stage of the legislative
continuum more prominence and constitutional significance than
many others. The changes to legislation which result should be
made with the main aim of putting effective, workable provisions
on the statute book.
While a more measured resolution of matters
outstanding at the end of the session may be desirable, as long
as the Parliamentary timetable works in the way it does, problems
will inevitably arise. Given the importance of this stage for
the balance of power between government and opposition parties,
we are reluctant to propose changes to this stage alone. We would
suggest issues such as this might be the subject of separate consideration.
Indeed, we suggest that there should be further detailed, public
consultation on the Committee's preferred options and proposals.
Deferred Divisions
8. The House has already adopted the use
of deferred divisions in some areas, in response to previous recommendations
from the Modernisation Committee. Divisions are not deferred during
proceedings on bills (or on certain other types of Motion). Could
the use of deferred divisions be extended? Are there ways in which
the timing and organisation of divisions could be made more predictable,
reducing disruption to other aspects of Parliamentary work?
We understand that in some circumstances this
is already possible and that the practice in the Scottish Parliament
is to deal with all votes at the end of the day. This would certainly
prevent Select Committee (and in particular Joint Committee) and
other proceedings being interrupted by divisions and would be
advantageous to witnesses whose evidence is interrupted, and those
who are waiting to speak, for example. A change would almost certainly
save time. Essentially this is a matter for Members.
First Report of the Modernisation Committee
9. The overall effectiveness of the recommendations
from the First Report (1997) of the Modernisation Committee on
The Legislative Process (HC 190, Session 1997-98).
9.1 The First Report of the Modernisation
Committee48 set out
". . . the essential criteria which must
be met in making any reforms. These may be summarised as follows:
(a) The Government of the day must be assured
of getting its legislation through in reasonable time (provided
that it obtains the approval of the House).
(b) The Opposition in particular and Members
in general must have a full opportunity to discuss and seek to
change provisions to which they attach importance.
(c) All parts of a Bill must be properly considered.
(d) The time and expertise of Members must be
used to better effect.
(e) The House as a whole, and its legislative
Committees in particular, must be given full and direct information
on the meaning and effect of the proposed legislation from those
most directly concerned, and full published explanations from
the Government on the detailed provisions of its Bill.
(f) Throughout the legislative process there
must be greater accessibility to the public, and legislation should,
so far as possible, be readily understandable and in plain English.
(g) The legislative programme needs to be spread
as evenly as possible throughout the session in both Houses.
(h) There must be sufficient flexibility in
any procedures to cope with, for example, emergency legislation.
(i) Monitoring and, if necessary, amending legislation
which has come into force should become a vital part of the role
of Parliament".49
9.2 We will not comment on all of these
criteria, but have contributions to make on some, as follows:
9.3 (c) All parts of a Bill
must be properly considered and
(e) The House as a whole, and its
legislative Committees in particular, must be given full and direct
information on the meaning and effect of the proposed legislation
from those most directly concerned, and full published explanations
from the Government on the detailed provisions of its Bill.
9.4 It would seem that these have not wholly
been achieved. Time and procedural constraints continue to limit
consideration of Bills (and secondary legislation, which was also
discussed elsewhere50). Notes on clauses and the regulatory impact
assessments now available have greatly improved the background
information available about proposals, but if time does not permit
the issues identified to be explored, their effect is limited.
Beyond primary legislation
9.5 While the Modernisation Committee's
inquiry is mainly concerned with primary legislation, we consider
that the next point is so important it must nonetheless be raised.
The effect of developments such as notes on clauses is limited
if they cannot bring to the attention of both Houses (and others)
the detail of the operation of the measure, which may be crucial
for users. Such detail is often included in regulations, which
receive far less scrutiny than primary legislation. Further requirements
about good practice etc may also be included in guidance (soft
law), with which users are also expected to comply.
9.6 As far as regulations are concerned,
these are rarely published along with a draft Bill. More often
they are published in final form late in a Bill's passage through
Parliament, or even after Royal Assent, so that there may be little
or no opportunity for users to make submissions about the measure's
future day-to-day operation while the Bill is before Parliament.
51 This is a major concern in the case of framework bills in particular,
where much of the substance of the measure will be introduced
through statutory instruments52 and probably much soft law. Even
when regulations are published in time for comments to be made
on them, in the ordinary course statutory instruments are not
amendable and a change may not be possible within the time available.
Soft law is rarely published in draft or scrutinised by Parliament.
53 Similar concerns arise when European measures are introduced
via regulations under the European Communities Act 1972.
9.7 While a certain amount of late revision
work, based on government or opposition amendments, is inevitable,
we think a more comprehensive approach to a major new measure
from the outset would be welcome, with an indication (if not drafts)
at an early stage of the likely content of both statutory instruments
and soft law, as the Modernisation Committee suggests. 54 This
would maximise the information available to future users and is
thus likely to make their contributions to the debate fuller and
more helpful.
9.8 (f) Throughout the legislative
process there must be greater accessibility to the public, and
legislation should, so far as possible, be readily understandable
and in plain English.
9.9 Part of this topic—information
for the public about what is happening in Parliament—is
dealt with in our response to the first question raised by the
Committee. However much could be done to improve the accessibility
of legislation, in passage through Parliament and once passed.
9.10 The Society's Better Law-making Charter
called for:
Each main measure [to] have a site or page of
its own, with Acts and SIs in both "as passed" and "as
amended" forms. This should include essential information
such as dates of implementation and links to relevant regulations,
amendments, departmental guidance and caselaw, other relevant
primary legislation and the lead Department. Departmental websites
should alert regular users to news and include all current guidance
and circulars, archiving outdated material but keeping it available
free of charge.
9.11 A further issue of concern to solicitors,
legal researchers and other practitioners is the ease or otherwise
with which legislative history can be traced, to advise clients
on the meaning of a word or phrase, or for litigation or other
purposes. This has become more significant since, as a note from
the House of Commons Library55 points out, the 1993 decision in
Pepper v Hart. 56 This permits the courts to consider
"statements made in Parliament by Ministers or other promoters
of a Bill in construing" ambiguous legislation. 57 Subsequently
the note goes on to show that Notes on Clauses are also admissible,
whether or not the legislation is ambiguous. 58
9.12 Researchers therefore need to be able
to access all the relevant references to the particular provision
in question. This has proved to be time consuming and costly.
The experience of the Law Society's Library is that researching
the history of a single clause can take six hours or more.
9.13 For instance, a clause may be debated,
amended, divided, rephrased and, often causing the greatest difficulty,
renumbered or removed in the course of the various legislative
stages it will pass through. There may or may not be a reprint
of the Bill (for example, there is no reprint at Commons/Lords
consideration of Lords/Commons amendments stages so reference
needs to be made to the lists of amendments tabled). Not all law
libraries (let alone solicitors' firms) will have access to all
the necessary material in which the clause is mentioned. While
some material is available on the internet, statutes before 1988
for instance are not available online through the Office of Public
Sector Information. 59 In any event, because of the way it is
made available online, paper versions may be quicker and easier
to use.
9.14 Much could be done using information
technology to remove these difficulties. Clauses and their destinations
could be trackable online, for example, with a history of their
derivation (as is done in consolidation measures).
9.15 Improving trackability also applies
to amendments to Acts and Statutory Instruments. In the document
accompanying the Better Law-making Charter we said:
The internet could be an excellent means of making
the law more accessible. For instance, many statutes have been
amended or added to several times so that a chain of separate
measures has to be marshalled to establish the current law. This
can be a difficult task, even for the expert familiar with the
material. Instead, each main measure could have a site or page
of its own, with hyperlinks to related legislation, guidance,
court decisions and other material. Acts and SIs could be available
on these sites in their "as passed" form, and "as
amended", showing the latest, revised current text of the
Act and any related SIs. Dates of implementation and sections
not in force should be clearly shown60
9.16 As to "readily understandable"
legislation and the use of "plain English" there is
still a long way to go. We commented above (see note 7) on the
"impenetrable lack of clarity" the Society's Mental
Health and Disability Committee found in the draft Mental Health
Bill 2004. Other jurisdictions such as Australia, the US and
Canada have done a great deal of work on plain language in legislation
and we recommend following their example. Even simple measures
such as design, layout, structure and signposting (such as emboldening
defined words) would assist.
D. OTHER ISSUES
Administrative Burden Reduction and other initiatives
10.1 While this topic may be outside the
scope of the enquiry, we think this is another issue of sufficient
significance to raise briefly.
10.2 At present a wide-ranging exercise
is being undertaken throughout departments to identify areas where
administrative burdens could be removed or have been unnecessarily
imposed. 61 Members of the public and businesses are being asked
to help identify such measures and departments are working with
consultants to simplify existing regulation. 62 While this is
not a formal process of post-legislative review as discussed above,
it has some of the same characteristics.
10.3 In addition to this review, Neil Davidson
QC is undertaking a Review of the Implementation of EU Legislation.
63 This Review is considering "goldplating"—or
"going beyond the minimum necessary to comply with an EU
Directive" as the Davidson Review puts it. An example is
the Operating and Financial Review (OFR) regulations which the
Chancellor announced in November 200564 would be withdrawn on
these grounds. Further consultations are now taking place.
10.4 The Review is also considering measures
which have been "double banked" (ie "EU legislation
covers the same ground as domestic legislation and the two regimes
have not been made fully consistent or merged into one"65)
or subject to "regulatory creep" ("where rules
are unclear and where there is confusion between standards, guidance
and regulation . . . [so that] stakeholders are not clear whether
the requirements in a piece of guidance produced are statutory
or best practice".66 It is also seeking "instances where
the benefits of over-implementation and higher regulatory standards
justify the extra costs".67
10.5 In the light of these developments,
we are inclined to argue that:
(1) if Parliament had had a greater overview
of the whole of the legislative process, from Green Paper to regulation,
soft law and implementation;
(2) if the legislative process made it clear
from the outset what regulatory and soft law measures were likely
to be imposed at the end;
(3) if, at every stage, individuals and organisations
had been able to have their views and reasoning fully considered;
and
(4) if there had been a structured process
of review, with a commitment to act promptly on problems such
an elaborate—and no doubt costly—unravelling process
would be unnecessary, or, at least, much reduced in scale.
10.6 While lifting administrative burdens
may be desirable, it should not be forgotten that even beneficial
change is rarely without cost. The new provisions must be clear
and helpful and in future processes must be put in place to ensure
that difficulties can be promptly resolved. In addition, there
must be a process of public discussion to consider and if possible
agree principles for the ways in which EU measures will be implemented
domestically in future.
E CONCLUSION
1. Much good work has been done by MPs and
others over many years in looking critically at the legislative
process and at Parliamentary procedures. The Modernisation Committee's
current initiative is an excellent example.
2. Clearly there is a wide consensus that,
to meet modern conditions, changes to the way legislation is brought
into existence are necessary. While many of the problems of the
legislative process—for example political factors which
affect legislative proposals—are inherent, and desirable,
in a democratic system, some relatively straightforward, simple
steps could be taken to achieve significant improvements in the
short term, pending further reaching change. The most important
factor is a positive commitment to bring such alterations about.
3. As we indicated at the start of this
evidence, much legislation is vitally important. Long after the
dust of Parliamentary battle has settled, legislation goes on
to bring about real, substantial changes, impacting on the everyday
lives of individuals and businesses. It requires people to do
things, or to refrain from doing things, and can result in people
losing their liberty, or pursuing new opportunities they had not
previously imagined. It means that the need to get legislation
right first time—even if it requires considerable change
to the way it is made—is imperative.
F ISSUES FOR
FURTHER CONSIDERATION
(a) To make speedier progress in reforming the legislative
process, it may for instance be worth separating the work currently
within the remit of the Modernisation Committee vis-a"-vis
internal matters (such as sitting hours), from more outward-facing
work (such as that on streamlining the legislative process). The
two work-streams could then progress concurrently.
(b) The Committee may be able to identify
issues from its own experience and from the evidence submitted
to this inquiry which indicate where progress might most easily
be made. Effort and further detailed work might be concentrated
on those matters in the shorter term while longer term plans for
more substantial change are considered.
(c) Parliament and its Committees could
consider whether, in the light of the extension and complication
of the legislative process, they should take a more active role
in its preparation, implementation and review. For example, at
an early stage in the process Members and Committees could ask
for information which would allow systematic consideration to
be given not only to the primary legislation but to the nature
and content of the regulations (and perhaps soft law) which will
also be introduced. These aspects are often crucial to workability
and should not be left until the final stages, nor should they
escape scrutiny.
(d) Another potential new area of work could
involve reviews of issues which cross more than one Department.
For example, issues arising from provision for children and mental
health, mentioned above, may involve several departments. Problems
in the way these departments work together on such matters are
unlikely to be in evidence if enquiries are channelled through
departmental select committees only.
(e) We value the opportunity to respond
to this important inquiry, and look forward to responding later
to more detailed proposals.
March 2006
NOTES
1 For example, Mr Robin Bellis's November
2003 report for the Foreign and Commonwealth Office, Implementation
of EU legislation, describes at p11-12 as "vague" the
meaning of the phrase "working time" in the Working
Time Directive (3/104/EC). The report is at http://www.fco.gov.uk/Files/kfile/EUBellis.pdf
2 The implementation of the 2nd EU Money
Laundering Directive, through the Proceeds of Crime Act 2002 (POCA)
and the Money Laundering Regulations 2003, illustrates a number
of these problems. The EU Directive sets out minimum standards,
leaving to the discretion of Member States the imposition of stricter
provisions. Many argue that the UK's domestic provision has gone
far beyond the requirements of the EU legislation, a process known
as "goldplating".
Some of the areas where the UK legislation
has taken a much stricter line are:
(a) The application of criminal sanctions
to the reporting obligations for professionals and financial entities.
There are no criminal sanctions attached to any of the offences
in the Directive;
(b) The UK legislation attaches a "negligence
test" to the "failure to report" offence;
(c) All crimes are potentially within the
ambit of the legislation, as opposed to the limitation in the
Directive to drug trafficking and serious organised crime;
(d) The scope of legal professional privilege
is interpreted more narrowly than in the EU Directive;
(e) POCA has an extra-territorial application
based on a single criminality test which is not in the Directive.
A number of problems identified at the
consultation stage have arisen in cases already brought to clarify
the legislation.
Another question is whether the ability
to put limitations on concepts such as legal professional privilege
should be restricted. While the scope of privilege may vary from
State to State, should EU measures contain safeguards to protect
the concept?
3 As Lord Nicholls of Birkenhead commented
in a 2004 House of Lords case on compulsory purchase:
" . . . Unhappily the law in this country
on this important subject is fraught with complexity and obscurity.
To understand the present state of the law it is necessary to
go back 150 years to the Lands Clauses Consolidation Act 1845. From
there a path must be traced, not always easily, through piecemeal
development of the law by judicial exposition and statutory provision.
Some of the more recent statutory provisions defy ready comprehension."
(Paras 1 and 2, Waters and others v. Welsh
Development Agency [2004] UKHL 19). The judgement is available
at http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm?
4 The Law Society's Tax Law Committee say,
at para D1 p25 of their 2004/5 Tax Law Reform Memorandum, of the
law on stamp duties:
"The multiplicity of sources of legislation,
conflict between them, problems defining the intention behind
primary legislation, and access to secondary sources are causing
uncertainty and thus delays, and increased costs for practitioners
and clients."
The Committee goes on (p26):
". . . there are examples where the legislation
is plainly "wrong". Paragraph 33 of Schedule 15 FA 2003
effectively imposes a charge to Stamp Duty where there is a transfer
of a partnership interest in circumstances where the partnership
owns stock and marketable securities . . . However, the formula
is back to front. This means that if someone transfers 90% of
his interest in a partnership which owns stock and multiple securities,
he would be subject to Stamp Duty as if he had only transferred
10% and vice versa.
"The Inland Revenue has said this is not
what is intended. However, they have also apparently said that
there is no intention to change the legislation. They will simply
monitor the position, and if people are taking advantage of it,
will apply the legislation as if it had been properly drafted.
"This is a most bizarre way of proceeding,
and evidences a somewhat cavalier approach towards legislation.
It is symptomatic of their view that the wording of the legislation
is less important than the intention behind it. This goes beyond
a purposive approach and leads to more practical difficulties."
The memorandum is at:
http://www.lawsociety.org.uk/influencinglaw/policyinresponse/
view=article.law?DOCUMENTID=218249
5 For instance, the House of Lords recently
had to decide, to quote Baroness Hale of Richmond:
"whether the new scheme providing for how
child witnesses are to give their evidence in criminal cases is
compatible with the right of the defendant to a fair trial under
article 6 of the European Convention on Human Rights, in particular
when that defendant is also a child"
in R v Camberwell Green Youth Court ex
parte D (a minor)) and R v Camberwell Green Youth Court (Respondents)
ex parte Director of Public Prosecutions, [2005] UKHL 4, para
18. The judgment is at http://www.parliament.the-stationery-office.co.uk/pa/ld200405/ldjudgmt/jd050127/camb-1.htm
6 An instance of textual complexity can
be taken from clause 3 of the current Identity Cards Bill (the
Bill is at:
http://www.publications.parliament.uk/pa/cm200405/cmbills/008/2005008.pdf
"3. Information recorded in Register
(2) Information about an individual must be
recorded in his entry in the Register (whether or not it is authorised
by Schedule 1) if—
the information is of a description identified
in regulations made by the Secretary of State as a description
of information that may be made the subject of such a request
. . ."
The Identity Cards Bill is complex both
in text and structure (for an example of structural complexity
in another measure see note 7 below) and it allows the Secretary
of State to create further regulations, which have not yet been
published, on a number of topics. This is a matter of concern
as this Bill, when in force, will affect almost every individual
in the country. "Civil penalties" (ie monetary fines)
may be imposed for non-compliance. It should be a priority therefore
that the provisions are as simple and easy to follow as they can
be, and that as much as possible should be included in the primary
legislation and not in regulations. Arguments which are sometimes
put forward in defence of difficult statutory drafting, for example
that difficult language and construction are acceptable because
the matter is technical and directed to those who would automatically
seek, and are well able to afford, extensive legal advice, clearly
do not apply in this case.
7 In its response to the Draft Mental Health
Bill (now withdrawn) at p7, para 4, the Law Society said,
"As to whether the proposals are clear,
the Law Society refers the Committee to Schedule 5 of the Bill
as just one of many examples of impenetrable lack of clarity."
To bear this out, the first few lines of
Schedule 5 are as follows:
SCHEDULE 5 RELATIONSHIP BETWEEN PARTS 2 AND
3 ETC PART 1
RELATIONSHIP BETWEEN PARTS 2 AND 3
Disapplication of this Part
1 (1) None of the provisions of
this Part applies to a person to whom any provision of Part 3
applies, except as expressly applied by a provision of Part 3.
(2) A patient or person who is subject
to any of the provisions of this Part ceases to be so subject
if he becomes a person to whom any provision of Part 3 applies;
and, accordingly, none of the provisions of this Part applies
to him, except as expressly applied by a provision of Part 3.
Cases in which this Part re-applies
2 (1) None of the provisions of this
Part applies to a patient or person falling within paragraph 1(2)
on the provisions of Part 3 ceasing to apply to him, except as
provided by any of paragraphs 3 to 5.
(2) References in sub-paragraph (3)
and paragraphs 3 to 5 to a patient are to a patient falling within
paragraph 1(2) to whom the provisions of Part 3 cease to apply
. . .
The Society's response to the draft Bill
is available at: http://www.lawsociety.org.uk/influencinglaw/currentbillactivity/briefingsandupdates/view=briefingdetails.law?DOCUMENTID=208167
8 For example, the Water Framework Directive
2000/60/EC and regulations made under it—see http://www.defra.gov.uk/environment/water/wfd/
9 For example, child care and adoption law
is frequently implemented via regulations and often in a piecemeal
fashion. The Care Standards Act 2000 has been subject to at least
15 sets of amending regulations in two years. These and other
measures are often supported by departmental guidance, much directed
to local authorities. These documents need to remain accessible
and be archived when overtaken, remaining free of charge.
10 Section 46 of and Schedule 13 to the
Companies Act 1989 came into force on 1 January 2005.
11 For example the law on transfers of business
has been frequently amended (and there have been numerous court
cases). New regulations come into force on 6 April 2006—see
http://www.opsi.gov.uk/si/si2006/20060246.htm and guidance at
http://www.dti.gov.uk/er/individual/tupeguide2006regs.pdf. Until
then the existing guidance on the DTI website (http://www.dti.gov.uk/er/individual/tupe-pl699a.htm)
is valid. This introduces the background and states:
"Provisions relating to employment rights
on the transfer of an undertaking are contained in the Transfer
of Undertakings (Protection of Employment) Regulations 1981 (SI
1794), as amended by the Transfer of Undertakings (Protection
of Employment) (Amendment) Regulations 1987 (SI 442), the Trade
Union Reform and Employment Rights Act 1993, the Collective Redundancies
and Transfer of Undertakings (Protection of Employment) (Amendment)
Regulations 1995 (SI 1995 No. 2587) and the Collective Redundancies
and Transfer of Undertakings (Protection of Employment) (Amendment)
Regulations 1999 (SI 1925)."
"These Regulations" it adds "implement
the European Community Acquired Rights Directive (77/187/EEC,
as amended by Directive 2001/23/EC)."
12 An example is the Licensing Act 2003. This
was due to come into force on 7 February 2005, but regulations
were only available at the end of January 2005 and then only in
draft.
13 For example, measures in compliance with
the EU Money Laundering Directive 2001/97/EC have resulted in
numerous practical difficulties including many more reports to
the National Criminal Intelligence Service (NCIS) than anticipated
and consequential delays. A report in the Law Society's Gazette
of 6 January 2005 stated:
"Solicitors are likely to account for 8.8%—or
13,200—of all reports made [to NCIS] . . . The number of
reports made by UK lawyers stands in contrast to those made by
their European counterparts. Research by the Gazette has found
that in Denmark only between 10 and 15 reports were passed on
to the police last year by the Danish National Bar . . . only
eight reports have been made by lawyers to the German Federal
Bar—the country's competent authority for money laundering
reporting—while in France, the national bar estimates that
less than 50 have been made."
The full report is at:
http://www.lawgazette.co.uk/news/breaking/view=newsarticle.law?GAZETTENEWSID=213374
14 s21 of the Employment Act 1989. The
Act otherwise implemented the EU Equal Treatment Directive (No.76/207/EEC)
and made various other changes to employment law. Some of its
provisions have now been consolidated in the Employment Rights
Act 1996.
15 http://www.opsi.gov.uk/acts.htm
16 Members Only? Parliament in the Public
Eye, Hansard Society, London, 2005.
17 Parliament's Last Chance, published
by the Parliament First Group, 2003, p70-71.
18 The Better Law-making Charter Leaflet,
point 7, The Law Society, November 2005—amplified in the
accompanying Charter document.
19 recommendations 15-17.
20 Parliament, Politics and Law-making,
the Hansard Society, 2004, Chapter 4.
21 Parliament's Last Chance, p11.
22 Modernisation Committee, First Report:
The Legislative Process, HC 190, Session 1997-98, para
20; see http://www.publications.parliament.uk/pa/cm199798/cmselect/cmmodern/190i/md0102.htm
23 para 1 p9, Report of the Joint Committee
on the Draft Corruption Bill, HL Paper 157, HC 705, published
on 31 July 2003 (the Joint Committee Report) at http://www.publications.parliament.uk/pa/jt200203/jtselect/jtcorr/157/157.pdf
24 Royal Commission on Standards in Public
Life 1976 Cmnd 6524.
25 Law Commission paper Legislating the
Criminal Code: Corruption 1997 Consultation Paper no 145.
26 Law Commission report Legislating
the Criminal Code: Corruption 1998 Report no 248.
27 Summary Joint Committee Report.
28 Summary Joint Committee Report.
29 Mr Bob McKittrick, President, Institute
of Structural Engineers (Ev 31 McKittrick DCB 4 para 4.1).
30 Conclusions and Recommendations, para
4, p59 Joint Committee Report.
31 para 98 HL Joint Committee Report.
32 http://www.homeoffice.gov.uk/documents/2005-cons-bribery?version=1
33 http://www.dca.gov.uk/laid/impact-test.htm
34 The Crown Prosecution Service (Claimant)
-V- South East Surrey Youth Court (Defendant) And X (Interested
Party) [2005] EWHC 2929 (Admin), brought to our attention by Andrew
Keogh, editor of CrimeLine.
35 in R v Lang & Ors [2005] EWCA Crim
2864.
36 following the model of preliminary stages
in litigation, which are designed to see that only genuinely contentious
issues remain for considering at the hearing.
37 Further consideration of these dovetailing
issues should of course take place if the Bill is changed during
debate.
38 Parliament, Politics and Law-making,
Chapter 2.
39 Modernisation Committee, First Report:
The Legislative Process, HC 190, Session 1997-98, para
8; see http://www.publications.parliament.uk/pa/cm199798/cmselect/cmmodern/190i/md0102.htm
40 The Hansard Society also refer to the
Criminal Justice Bill in this connection, mentioning the "almost
500 [late] amendments and 28 new clauses"40 introduced before
Report Stage. These were not considered by the Standing Committee
and the provision of more time for Report "did not appear
to satisfy the critics" (p16).
41 p19-20.
42 p20.
43 p18.
44 Indeed, Ruth Kelly, when Minister of
State at the Cabinet Office, pointed out that sunset clauses are
suitable precisely for situations in which there is no Parliamentary
scrutiny of the exercise of powers. She said:
"Sunsetting legislation is appropriate when
the powers it contains . . . should be reviewed by Parliament
. . . [this] may be appropriate where the exercise of powers is
of legitimate parliamentary interest but their exercise is not
subject to parliamentary scrutiny".
(Debate on the Civil Contingencies Bill,
Clause 34, 17 November 2004 at
http://www.theyworkforyou.com/debates/?id=2004-11-17.1364.2)
45 P5 of the 2004-05 paper. See: http://www.lawsociety.org.uk/secure/file/137179/d:/teamsite-deployed/documents//templatedata/Internet%20Documents/Non-government%20proposals/Documents/taxlawmemojan05.pdf
46 See the May 2005 Hansard Society Briefing
Paper Issues in Law-making No 6: Post-Legislative Scrutiny
p1.
47 See the report of the Better Law-making
Debate, Law Society, June 2003.
48 Available at
http://www.publications.parliament.uk/pa/cm199798/cmselect/cmmodern/190i/md0102.htm
49 First Report, para 14.
50 For example, the Fourth Report from the
Select Committee on Procedure, Session 1995-96, Delegated Legislation,
HC 152 (1995-96); First Report from the Procedure Committee,
Session 1999-2999, Delegated Legislation, HC 48 (1999-2000).
51 Late publication also makes compliance
with guidance on implementation periods for measures affecting
in particular small businesses difficult. The guidance states:
"Business and particularly small firms should be allowed
sufficient time to prepare for the implementation of new legislation.
You should issue guidance on new legislation at least 12 weeks
before the legislation comes into force"—see http://www.sbs.gov.uk/SBS—Gov—files/regulations/REG—implementationguidelines.pdf
(p3).
52 For instance, the NHS Redress Bill 2005.
53 Although this is not invariably the case.
For instance, under section 182 of the Licensing Act 2003, guidance
had to be approved by both Houses. In addition the Annual Report
of the Liaison Committee for 2004 states that the Home Affairs
Committee undertook "formal scrutiny of draft sentencing
guidelines issued by the Sentencing Guidelines Council . . . within
the sentencing framework established by the Criminal Justice Act
2003". (http://www.publications.parliament.uk/pa/cm200405/cmselect/cmliaisn/419/419.pdf
para 44, p20-21).
54 Cited in Parliament, Politics and
Law-making, edited by Alex Brazier, Hansard Society 2004,
p36.
55 House of Commons Library Standard Note:
SN/PC/392, 2005.
56 Pepper (Inspector of Taxes) v Hart
[1993] AC 593.
57 Standard Note: SN/PC/392 p1.
58 The Standard Note says at p4,
"In his ruling on R (Westminster City Council)
v National AsylumSupport Service, 2002] UKHL 38 [2002] 1 WLR 2956
Lord Steyn [said]: ". . . Insofar as the Explanatory Notes
cast light on the objective setting or contextual scene of the
statute, and the mischief at which it is aimed, such materials
are therefore always admissible as aids to construction . . .
Explanatory Notes will sometimes be more informative and valuable
than reports of the Law Commission or advisory committees, Government
green or white papers, and the like . . . What is impermissible
is to treat the wishes and desires of the Government about the
scope of the statutory language as reflecting the will of Parliament.
The aims of the Government in respect of the meaning of clauses
as revealed in Explanatory Notes cannot be attributed to Parliament.
The object is to see what is the intention expressed by the words
enacted'".
59 http://www.opsi.gov.uk/legislation/about—legislation.htm
60 re Charter point 9, explanatory
document p9.
61 http://www.cabinetoffice.gov.uk/regulation/reducing—admin—burdens/index.asp
62 http://www.betterregulation.gov.uk/
63 http://www.cabinetoffice.gov.uk/regulation/davidson—review/
64 http://www.hm-treasury.gov.uk/newsroom—and—speeches/press/2005/press—99—05.cfm
65 http://www.cabinetoffice.gov.uk/regulation/documents/davidson—review/evidence.pdf
p3
66 ibid.
67 ibid.
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