Ensuring standards in the quality of legislation

Written evidence submitted by the Hansard Society ( BL 09)

1. Whether or not legislation is deficient in policy terms is a matter of subjective interpretation and political perspective. However, there is now a growing body of evidence to support the view that legislation is often technically deficient. There is no single cause for this deficient legislation. The explanation lies in a complex confluence of factors primarily related to volume, attitude, preparation and deliberation.

2. For a detailed analysis of the deficiencies we refer the Committee to the Hansard Society’s report, ‘ Making Better Law. Reform of the Legislative Process from Policy to Ac t’ written by Ruth Fox and Matt Korris and published in December 2010. The recommendations set out in this response are drawn largely from this report.

3. Among the first questions that ought to be asked of any legislative proposal are, is it necessary, and has it been technically well-prepared? Do the powers sought already exist in another Act on the statute book thus making new legislation superfluous? Can the issue be dealt with by administrative action alone?

4. Parliament has a right to expect that a bill presented to it for scrutiny will be of good quality; that it will be technically sound; that appropriate consultation will have taken place (including wherever possible pre-legislative scrutiny); that the policy objectives will be clearly stated; and the provisions are fit for purpose.

5. At present, however, there is no means within the legislative process simply to evaluate and confirm the need for fresh legislation and there is no way of imposing a quality standard on the production of a bill before it is sent to Parliament. A strong case therefore exists for establishing new ground rules to rebalance the legislative relationship between Parliament and government, establishing a consensual approach predicated on mutual acceptance of common standards of legislative consultation, preparation and scrutiny.

6. Parliament should at least be a partner in the process of setting the standards of what constitutes a well prepared piece of legislation, rather than permitting the executive to determine this from bill to bill. If Parliament is serious about checking the growth of the statute book and improving the quality of law-making, then it must be both more imaginative and muscular in asserting its role and function vis-à-vis the executive. The goal should be to build in some incentives and constraints-some checks and balances-to the legislative process at the parliamentary end such that they might restrain the executive from bringing forward hastily prepared, ill-thought out legislation.

What changes to existing processes in Parliament or government would contribute to improved legislative standards?

7. A Legislative Draft Readers Panel should be established on a trial basis to provide light-touch external oversight of the work of the Office of the Parliamentary Counsel (OPC).

8. The OPC should agree a protocol with government departments to ensure technical issues are included in all future draft bill consultation documents.

9. All relevant Cabinet Office and departmental guidance (e.g. the Cabinet Office Guide to Legislation) should be amended to ensure that the quality of legislation-technically and procedurally-is a matter of priority in the bill preparation process.

10. The move to fixed-term Parliaments provides an opportunity to manage legislative business better and think more radically about how this might be done. Greater use of the carry-over procedure should be used to avoid the scrutiny of legislation being rushed due to the arbitrary nature of the sessional cut-off date. But an alternative solution to the management of time problem would be to take an entirely new approach and move consideration of bills to a legislative rather than a sessional cycle. Time constraints could be determined differently for each bill in accordance with their date of introduction, in effect providing a rolling session for each bill up to an agreed maximum number of months. This would address the current problem whereby detailed consideration of many bills comes to an abrupt end at the close of the session when many measures are rushed through their remaining stages to avoid the legislation being lost. It would also retain the cut-off feature-which government and opposition can find advantageous for different reasons-but the actual cut-off date would be determined by the timing of the bill’s introduction, not the arbitrary, government imposed dates of the parliamentary sessional calendar.

11. A review of the operation of programming should be undertaken (probably by the Procedure Committee) with a view to rebalancing the timetabling of business in favour of Parliament and improved time for scrutiny (ideally, this should be linked to any future inquiry the Procedure Committee undertakes into the operation of the proposed House Business Committee).

12. Pre-legislative scrutiny should be used to a greater extent than at present. Currently decisions about which legislative proposals will be subject to pre-legislative scrutiny are wholly a matter for the executive. As part of the process of agreeing with government a mutually acceptable set of standards for legislative consultation, preparation and scrutiny, this decision should be agreed in consultation with Parliament.

13. A new House of Commons Business Committee should determine whether a draft bill should be scrutinised by a House of Commons Select Committee or by a Joint Committee.

14. The trialling of Legislative Committees should be considered. A long-standing criticism of committee stage is that the expertise built up by select committees is not sufficiently utilised in the legislative scrutiny process and there is well-founded suspicion that the whips sometimes prevent Members with interest and expertise from joining committees where their knowledge and expertise could be effectively deployed if they suspect they will not be entirely loyal. In trialling Legislative Committees the House should seek to appoint or elect a proportion of those select committee members who took part in pre-legislative scrutiny of a bill to its subsequent Public Bill Committee.

15. Split committal of bills should be used more regularly, scrutinising contentious clauses in the Chamber and the remainder of the bill in Committee.

16. Public Bill Committee (PBC) procedures should be reformed. PBCs have now been in operation for several years and ideally a House Committee would undertake a review and recommend necessary reforms. We would suggest the following at least are required:

i) Consideration should be given to the election rather than the appointment of PBC members, with the exception of those reserved for the representatives of the Government and opposition;

ii) Programme motions should be delayed to allow for a better assessment of the needs of the PBC to be made on the basis of the second reading debate;

iii) An ‘injury time’ provision should allow extra time at the end of a PBC to return to clauses where debate was cut short;

iv) During sittings where multiple witnesses are scheduled, it should be left to the discretion of the Chair to manage time;

v) Given the complexity of legislation, experts, lawyers and even officials should be permitted to speak;

vi) More time is required between the evidence-gathering phase of a PBC and the line-by-line consideration of the bill.

17. If government tables a significant number of amendments at report stage that substantially alter the nature of a bill, then the House should be able to return it to committee stage. Where a bill has been heavily amended a full third reading should take place. Such decisions should be within the remit of a new House Business Committee.

18. When the Government tables amendments to its own bill it should have to explain, in writing, the reasons for doing so. In addition to the benefit provided by clarity, there may also be some small time-savings to be made, as it might mean shorter opening statements from ministers in support of the amendments.

19. All Acts eligible for post-legislative review between three and five years after enactment should be considered by a departmental select committee or a new Joint Committee for Post-Legislative Review.

Should a new mechanism designed to ensure improved legislative standards (such as a Legislative Standards Committee) be introduced?

20. A limited number of benchmarks-pre-introduction tests-that have to be met before legislation can proceed through Parliament might usefully help to offset the pressures caused by the impetus to legislate that bear down heavily in Whitehall. Parliament needs a system to ‘kitemark’ bills, establishing standards of quality and best practice to demonstrate that the legislation being delivered is, at least in technical and procedural terms, fit for purpose. A Legislative Standards Committee could provide a gateway mechanism for assessing the necessity of legislation and whether the technical quality of a bill has met those standards Parliament has a right to expect and demand from government.

21. Empowered to call ministers to account before it and with the ultimate sanction to recommend to both Houses that they defer consideration of the bill because it does not meet mutually agreed qualifying standards of preparation, the existence of a Legislative Standards Committee would provide, over time, an important restraining influence on government and a means to rebalance the relationship between Parliament and the executive in the legislative area.

How would a Legislative Standards Committee (LSC) work?

22. There are a number of ways in which the LSC might operate. It could be convened as a Commons-based committee only, performing its role at a new parliamentary stage between first and second reading. A bill would therefore be formally introduced to the House by the Government but whether it progressed to the second reading stage would be dependent upon successfully navigating an examination by this new LSC. The weakness of this model is that it would not apply to those bills introduced into the House of Lords. As such, it might even have the negative effect of encouraging governments to introduce more bills into the House of Lords.

23. It could be convened as a Commons-based committee only, performing its role prior to introduction of a bill in either House. To proceed to introduction in either the Commons or the Lords the Government would therefore need to navigate this new pre-introduction stage.

24. It could, alternatively, be convened as a bi-cameral committee of members from both Houses. This committee would consider any bill put forward by the Government prior to it actually being sent for first reading at this new pre-introduction stage.

25. Ideally members of the Committee would be elected rather than selected by the party whips. As the Committee is designed to perform technical rather than policy scrutiny we have no preference as to the chairmanship; it could be held by a backbench member of the governing party(s) though it may be deemed preferable for it to be held by a member of the opposition.

26. The Committee’s role would be to judge each bill according to a narrow, tightly drawn set of qualifying criteria, assessing the legislation purely on the basis of whether the legislative standards of bill preparation have been met, not whether they believe the policy objectives are likely to be realised or whether the principles and policies enshrined in the legislation are appropriate.

27. Before legislation is presented to the LSC the Government (either the relevant departmental Secretary of State or the Leader of the House) would be required to certify that it believes the bill does indeed meet the qualifying standards.

28. As part of the scrutiny process, the LSC would have the option to call ministers to appear before it to account for their department’s preparation of the bill.

29. Following completion of their deliberations, the Committee would compile a report confirming whether or not they believe the bill meets the required legislative standards.

30. In the event that the LSC concluded that the bill did not meet the standards, two possible next steps would be available:

i) the Government could be invited to voluntarily withdraw its bill, remedy the deficiencies identified by the LSC, and re-submit it in within a matter of weeks; or

ii) if the Government declined to voluntarily withdraw its bill the LSC’s findings could be referred to either House as required (depending on where the Government proposed to introduce the bill), with the members of that House left to decide on deferral. Alternatively, it might be deemed preferable if the LSC’s findings were automatically sent to the House of Commons for the final decision on deferral; this would be possible for all bills if the LSC’s work was performed at a new pre-introduction stage (rather than between first and second reading).

31. All Members of the House would then be invited to vote on whether or not to endorse the LSC report and defer the bill pending improvements, or reject the LSC recommendation and allow the bill to proceed to the next legislative stage in the normal way.

32. This ‘gateway’ mechanism is not intended to be a means to disrupt or obstruct the parliamentary legislative timetable. Indeed, by getting the technical and procedural detail right from the outset we believe it should be possible to make some time-savings at later stages of the legislative process.

33. If the LSC works effectively the number of times when it recommends deferral of a bill should be small; no minister would wish to suffer the embarrassment of having their bill deferred, and the LSC process should strengthen the hand of those in Whitehall who also wish to see improvements in legislative standards.

34. Ultimately the decision about whether to proceed with the legislation would rest with Members, and the Government could whip the vote and proceed regardless of the LSC’s view. However, there are important reputational risks associated with such an approach that might mitigate in favour of a more consensual and co-operative approach on the part of the government. If not, then the House collectively will at least have had an opportunity to reflect and decide on the issue. If it then chooses to allow a bill that the LSC has concluded is deficient to nonetheless proceed then that is its right to do so. However, in most instances it would be unlikely, in our view, for the legislation to get to the stage of a vote in the House.

Legislative Standards Committee: criteria to be considered

35. At present, any bill should be accompanied by a number of supporting documents, primarily: the explanatory notes; an impact assessment including the statutory Equality Impact Assessment; a memorandum on compatibility with the European Convention on Human Rights; and a memorandum on delegated powers.

36. The explanatory notes are deliberately neutral in tone and must not seek to ‘sell’ the bill or introduce a ‘political’ perspective; although drawn up by departments, copyright is assigned to Parliament and they have to be approved by the relevant House authorities. The notes are intended: ‘to make the proposed legislation accessible to readers who are not legally qualified and do not have specialist knowledge of the subject area’. [1] The Cabinet Office guidance states that whilst there are no fixed rules governing the contents of the notes, they should usually contain the following: ‘Introduction; summary and background; overview of the structure of the Bill; territorial extent and application; commentary; financial effects; public sector manpower; summary of the impact assessment; compatibility with the European Convention on Human Rights; transposition notes; commencement dates.’

37. In contrast, the impact assessment is owned by the department and there are no restrictions on tone or language in relation to seeking to ‘sell’ the policy/legislation. The Cabinet Office describes an impact assessment as ‘an analysis of the likely impact of a range of possible options for implementing a policy change’. It ‘must set out the risk or problem to be addressed and the options available-addressed against a ‘do nothing’ option and any non-legislative or non-regulatory options, such as Codes of Practice, industry standards or information campaigns. It must also set out the likely costs and benefits of each option. Its aim is to answer the question ‘Is this the best way of achieving the objective?’’ [2]

38. The impact assessment is not just about assessing the regulatory burden. It includes specific assessments on competition, small firms, legal aid, sustainable development, carbon, other environment, health, human rights, rural proofing, and must also be accompanied by the statutory equality impact assessment.

39. However, the quality of these documents is highly variable and they do not require departments/ministers to provide parliamentarians with detailed information about many of the decisions taken, particularly in relation to the legal context and technical standards of the legislation.

40. As part of the pre-introduction process, Parliament should therefore require more detailed information from government regarding the bill. In Scotland, for example, Executive Bills must be accompanied not only by an explanatory note and impact assessment but also by a policy memorandum, a financial memorandum and a memorandum on delegated powers. Aspects of these are already contained within the Westminster explanatory notes and impact a ssessment; the existing information therefore needs to be rationalised and augmented by new material to form a ‘business case’ for the legislation.

41. In determining the qualifying criteria that should be examined by the LSC, consideration should be given to the ‘principles of good legislation’ outlined by the Better Government Initiative in its report, Good Government.

42. To give effect to these principles through the development of a set of criteria for consideration, the LSC might reasonably expect the Government to address at least (though not exclusively) the following questions and issues when bringing forward a new bill:

· What is the history of past legislation in this policy area? Why is legislation deemed necessary at this time?

· Whether the proposed legislation contains duplicate or similar powers/criminal offences which are already in force and why the new powers/criminal offences are therefore justified;

· Why the provisions in the bill could not be dealt with by administrative action alone;

· Whether there are any legislative precedents for what is proposed;

· The justification for the inclusion of Henry VIII powers;

· The justification for the creation of any new forms of Orders/delegated legislation procedure, and an explanation of why an existing Order/delegated legislation procedure model is not deemed suitable for adoption;

· Why the bill has not been subject to pre-legislative scrutiny;

· If the bill has been subject to pre-legislative scrutiny whether the Government has satisfactorily responded to the key issues raised during the scrutiny process;

· What public and stakeholder consultation has taken place with regard to the bill, what key issues were raised and what the Government’s response is to these points;

· Where relevant, why the legislation is a ‘Christmas Tree’ bill, bringing together an array of ‘miscellaneous provisions’, or why it is an ‘omnibus bill’ which is, in effect, several bills in one, some of which are so large they have to be published in two parts (e.g. Criminal Justice Act 2003 or Coroners and Justice Act 2009);

· Why purpose or overview clauses have/have not been included to aid the scrutiny process;

· Why Keeling Schedules have/have not been introduced to accompany the bill;

· Whether the explanatory materials are sufficiently detailed and of appropriate quality;

· Whether and when consolidation may be required;

· Whether there are any implications in relation to devolved powers to Scotland, Wales and Northern Ireland.

Should all legislation be treated in the same way, or is there a case for differentiating between different types of legislation?

43. In general, all legislation should, wherever possible, pass through the LSC to be quality assured prior to detailed scrutiny being undertaken by either House.

44. There are, of course, instances when the Government brings forward ‘emergency’ or ‘fast-track’ legislation; though in many instances the nature of the emergency rarely justifies the speed of the fast-track and real emergencies would be covered by the Civil Contingencies Act.

45. Over the last two decades more than 30 bills have been deemed ‘emergency’ legislation and fast-tracked through Parliament. When emergency provisions in relation to terrorism, particularly in Northern Ireland, are removed from the mix, two factors stand out. Much of this emergency legislation was brought in to: remedy an anomaly, oversight, error or uncertainty that has come to light in legislation; or respond to the effects of a court judgement which are often rooted in poor drafting of legislation which leaves the wording of the Act unclear or open to misinterpretation. Both reasons are rooted in the fact that the scrutiny process for the original legislation was not good enough. It is illogical to suggest that the solution to poorly drafted and poorly scrutinised legislation is further legislation that is poorly drafted and even more poorly scrutinised.

46. However, in some cases it may be in the public interest for Parliament to treat a bill expeditiously (e.g. the Witness Anonymity Bill in the last Parliament). Here, it would be best to avoid being prescriptive and the LSC should adopt a flexible approach.

47. In determining whether to give a bill accelerated passage, the LSC should be mindful of the following issues:

· Do the circumstances justify the fast-track approach? There may be a case for expediting the passage of a bill through Parliament but is the degree of acceleration that is sought really necessary? Would a slower timetable impede the overall goal of resolving the particular administrative, legal or financial problem?

· Parliamentary procedure is designed to allow for time between different stages of a bill in order that reflection and consultation can take place-do the merits of circumventing this procedure outweigh the disadvantages?

· Is the proposed law as clear and unambiguous as possible?

· Are the measures practical and likely to be administratively sound?

48. If legislation is to be fast-tracked then the following measures might be considered:

(i) Changes to the timetabling process to smooth the speed of the fast-track and ensure

sufficient time is provided for scrutiny. Generally, debate on most emergency bills could be extended-e.g. beyond the planned adjournment time or by extending the sitting into recess. Debate and divisions on timetabling motions cut into the time available for wider debate of the substance of emergency legislation and should therefore be avoided or at least reduced wherever possible.

(ii) Sunset clauses and renewal clauses should be incorporated where appropriate, and

particularly in relation to civil liberties.

(iii) Automatic post-legislative review should be carried out by a Joint Emergency Legislation Committee at an agreed date after Royal Assent (which may need to be earlier than the automatic three to five year wait for the Government’s own post-legislative review), to determine whether or not the legislation has sufficient constitutional and policy implications to justify being referred back to Parliament for further consideration. For accountability and transparency a reporting requirement could be included in the bills, requiring the Government to report to the Joint Emergency Legislation Review Committee, setting out its view on issues such as whether the legislation had met the Government’s aims and whether it had unintended consequences that were not foreseen at the time of its passage through Parliament.

(iv) Renewal, if necessary, by non-emergency primary legislation, rather than affirmative resolution, as this does not allow for amendment. Non-emergency primary legislation would incorporate the normal processes and procedures of good scrutiny.

April 2012

[1] Cabinet Office, Guide to Making Legislation , chapter 11, ‘Explanatory Notes’.

[2] Cabinet Office, Guide to Making Legislation , chapter 14, paragraph 14.1.

Prepared 23rd May 2012