Ensuring standards in the quality of legislation

Written evidence submitted by Lord Norton of Louth, Professor of Government, University of Hull (BL 13)

STANDARDS IN LEGISLATION

1. The case for a Committee on Legislative Standards has to be put within the context of seeking to achieve a culture shift among both ministers and backbenchers.

2. The existing method of enacting legislation is flawed. There is nothing new in this. There has never been a golden age of legislative scrutiny by Parliament. If anything, the position has become marginally better-or at least less bad-in terms of the committee stage of bills in the Commons than was the case forty years ago when J. A. G. Griffith published Parliamentary Scrutiny of Government Bills. [1]

3. Problems with the process derive in large part from prevailing attitudes. For a minister, failure is not having a bill to bring forward. The starting point of the legislative process is seen as the First Reading of a bill. The timing of introduction is largely determined by what Robin Cook termed ‘the tidal wave’ principle, [2] with a continuing attachment (despite provision for carry-over) to the sessional cut-off. Legislative ‘success’ is seen in terms of Royal Assent.

4. The way in which we legislate is thus marked by a large volume of legislation (bigger bills rather than more bills)-incoming senior ministers wanting to make their mark through legislation, the Government wanting to show that it ‘has done something [3] -and a process that is constricted and rushed. Creating a Committee on Legislative Standards is desirable, even necessary, but it is not sufficient. It has to be set in this wider context. As such, it can fulfil a valuable role, helping address some of these problems.

5. When I chaired the Constitution Committee in the House of Lords, we produced a report on Parliament and the Legislative Process. [4] We were concerned to ensure that we moved away from the existing paradigm and look holistically at the process by which law is generated, encompassing pre-legislative scrutiny, the legislative process, and post-legislative scrutiny. The quality of legislation, we argued, would be improved by involving Parliament at all three stages and not simply the second. It would also be improved by redefining legislative success not in terms of whether a bill was passed, but rather it terms of whether it achieved what it was intended to achieve.

6. We argued that none of the three stages should be treated as discrete. We recommended that the Government should move from deciding which bills should be published in draft each session to deciding which bills should not be published in draft and publish the reasons why any bills were not to be published in draft. (We also recommended that pre-legislative scrutiny should then be determined not solely by government but by negotiation between government and the Liaison Committee.) Pertinent to the current inquiry into legislative standards, we recommended the use of a clear and transparent checklist by committees engaged in pre-legislative scrutiny as well as by committees at other stages of the legislative process. As Professor John McEldowney told the Committee, ‘Standard setting provides a focus beyond procedural scrutiny of legislation. This elevates Parliament’s role beyond adversarial exchanges and party political considerations’. [5] One already has a measure of standard setting already takes place through the Joint Committee on Human Rights and we drew on the evidence submitted to us by the then Chair of the Joint Committee, Jean Corston. As we reported:

The use of a checklist also has the advantage that it is likely to improve the quality of draft bills, since it would inject a greater discipline on officials. The value of this was revealed by the Chairman of the Joint Committee on Human Rights (JCHR), the Rt Hon Jean Corston MP. She believed that the JCHR had affected outcomes, directly and indirectly. "Here, it is the threat of parliamentary scrutiny, and an adverse opinion from us, that is the key factor. This threat, I believe, is much enhanced by the comprehensiveness of our coverage" (Vol. II, pp. 164-167). A clear checklist would deliver comprehensiveness in a range of areas. Officials would be aware of what a committee would be examining. [6]

7. Equally of relevance to the current inquiry, we recommended that the Explanatory Notes to each bill include a clear and developed explanation of the purpose of the bill, incorporating or accompanied by the criteria by which the bill, once enacted, could be judged to have met its purpose. This we believed would not only provide a valuable discipline-ensuring that ministers were actually clear as to what they were intending to achieve by a measure-but also providing an objective basis for post-legislative scrutiny. Such scrutiny would not be undertaken on the basis of what members of the relevant committee undertaking the inquiry thought was the purpose of the Act but the actual intention on the part of government in bringing the measure forward.

8. When a bill was introduced, especially one that extensively amended earlier legislation, we felt there was a strong case for a Keeling-like schedule to facilitate Members understanding of how the measure changed the existing law-something not always clear on the face of a bill. We also contended that every bill introduced into Parliament should, at some stage during its passage, be considered by an evidence-taking committee.

9. We also recommended the greater use of the carry-over of bills, but subject to an important qualification: namely, that ‘bills carried over should be subject to a stipulated cut-off period from the time of their introduction. We suggest 14 months would be appropriate.’ [7] This thus addresses some of the concerns expressed about maintaining the leverage inherent in the sessional cut-off. Such a discipline is maintained while providing for bills to be introduced on a more staggered basis, thus reducing the pressure in terms of pre-legislative scrutiny and providing for a better distribution of committee allocation during the session. In short, it makes it possible to get rid of the ‘tidal wave’ principle.

10. We also recommended that Acts should be subject to post-legislative scrutiny. Our recommendation was referred by the Government to the Law Commission. The Commission in 2006 endorsed the Committee’s proposals [8] and in 2008 the Government agreed to instigate departmental reviews of (most) Acts three to five years after enactment. That is now the practice, with reviews sent to the relevant departmental select committee. However, our recommendation-and that of the Law Commission-for a Joint Committee on Post-Legislative Scrutiny has not yet been implemented and so far only one select committee has taken up a review for the purpose of post-legislative scrutiny and that in a particular context. [9] Although what has taken place has been very welcome, the creation of a Committee on Post-Legislative Scrutiny remains unfinished business. The role of such a committee would be to disseminate best practice and to ensure that no Act that merited post-legislative scrutiny was neglected because of the overload on departmental select committees. Such a committee should remain separate from a Legislative Standards Committee.

The case for a Legislative Standards Committee

11. Should Parliament or government be responsible for ensuring standards in legislation? I do not regard the choice as necessarily either/or. Government may generate its own criteria, but it is important that Parliament has ownership of its own standards criteria and processes for scrutinising legislation. The criteria may be the same or overlap substantially with those of government, but it is essential that Parliament is not simply taking the standards the Government has set for itself.

12. The case for a Legislative Standards Committee has been put in evidence to the committee by the Institute for Government and by the Hansard Society and endorsed by Nick Raynsford. It was also one of several proposals embodied in the Report of the Leader’s Group on Working Practices in the House of Lords, which reported last year. As it recognised, such a committee would be vested with the task of ensuring all government bills complied with best practice. As for the standards themselves, the Committee offered an extensive but not necessarily exhaustive list:

94. The exact content of the legislative standards form would be for further discussion. However, we expect it to include:

· A clear and unambiguous statement of the policy intention or intentions of the legislation, and of the desired outcomes;

· An explanation of why legislation, rather than other means, was necessary to fulfil the policy intention, and why such legislation is being brought forward at this time;

· A summary of the Government’s response to pre-legislative scrutiny on the bill, and, in cases where a bill was not published in draft, an explanation of why it was not;

· An outline of how the bill relates to existing Acts, and whether opportunities to consolidate such legislation have been considered;

· An informal Keeling Schedule (not part of the bill) showing in greater detail the effect of amendments to earlier Acts;

· A list of any new criminal offences created by the bill, and a summary of how they relate to existing offences;

· A summary of any consultation undertaken in preparing the bill;

· An estimate of the costs of preparing and implementing the policy set out in the bill (including a regulatory impact assessment);

· An indication, where appropriate, of targets and performance measures for implementation. [10]

13. As will be apparent, the list dovetails with the recommendations of the Constitution Committee, drawing together and supplementing the criteria adumbrated by the Committee. It helps put some flesh on this particular aspect of enhancing Parliament’s role in the legislative process and derives from seeing the process as a whole. The Group’s recommendation was for a Joint Committee and for it to report before the Second Reading of a bill.

14. In response to the other questions posed by the Committee in its current inquiry, I would just elaborate on one point and make another. First, there is, as I have already mentioned, some degree of standard setting undertaken by Parliament. This is not confined to the Joint Committee on Human Rights. It is also undertaken to some degree by the Secondary Legislation Scrutiny Committee in the House of Lords (previously the Merits of Statutory Instruments Committee) and the Constitution Committee. The latter is not only required to keep the operation of the constitution under review but also to report on bills of constitutional significance.

15. This leads to my additional point. One of the questions posed by the Committee is whether there is a case for differentiating between different types of legislation. This, of course, already happens in the Commons inasmuch as bills of constitutional importance are taken for committee stage on the floor of the House. The determination of what constitutes a bill of constitutional importance is determined on the ‘elephant’ approach: that is, you know one when you see one. However, of more salience in the present context, is that the Constitution Committee in the Lords has, for the purposes of reporting to the House, to distinguish bills of constitutional significance from those that are not of constitutional significance. For this purpose, it utilises the test I devised when the Committee was first appointed, namely the two P’s test: that is, that in order to merit a report a bill has to affect a principal part of the constitution and to raise an issue of principle. [11] This entails having a view on what constitutes the principles and over time the Committee has enunciated various principles, which at one stage Professor Dawn Oliver helpfully sought to codify.

16. My point here is that it is possible to distinguish types of legislation as well as to generate sets of criteria by which to assess legislation. It may be argued, though, that the legislation that may require enhanced scrutiny-legislation affecting human rights and the constitution-is already subject to such scrutiny through appropriate committees (the real problem here is not Parliament, but government) [12] and that the focus should be on creating a Legislative Standards Committee to ensure that best practice is applied to all legislation. Generating and applying such standards would impose a greater rigour on the part of government and provide Parliament with a means of ensuring best practice. It would provide the essential framework within which the two Houses could then test the merits of government proposals. If it helped, even in a small way, to help government recognise that legislation is not for the purpose of responding to a clamour for something to be done, then it will also have served a valuable purpose. However, it will only be part of what is needed. It will, though, constitute a notable step forward.

17. I conclude with the observation that changes to how Parliament works, however meritorious, do not implement themselves. Looking to government to implement changes is inherently problematic. Government is not always enthusiastic to embrace changes that may result in it being subject to more rigorous scrutiny and challenge. If it implements change, then to some degree it has ownership of that change. If Parliament is to strengthen its capacity to scrutinise government legislation, there has to be the political will on the part of Members to carry through change. [13] Generating the political will to establish a Legislative Standards Committee may be possible in a way that it is not in respect of some other changes because one is dealing primarily with process rather than substance. Some significant reforms have been achieved in recent years, notably in the Commons in 1979 and 2010: there is a case, I believe a compelling, case for building on them and now is an opportune time to act.

September 2012


[1] J. A. G. Griffith, Parliamentary Scrutiny of Government Bills (London: George Allen & Unwin , 1974). See also S. A. Walkland , The Legislative Process in Great Britain (London: George Allen & Unwin , 1968). A comparable study of the situation today is being undertaken by PhD student Louise Thompson at the University of Hull.

[2] Robin Cook, The Point of Departure (London: Simon & Schuster, 2003), p. 11.

[3] Ruth Fox and Matt Korris , Making Better Law (London: The Hansard Society, 2010), p. 13.

[4] Constitution Committee, House of Lords, Parliament and the Legislative Process, 14 th Report, Session 2003-04, HL Paper 1973-I.

[5] Parliament and the Legislative Process, para . 52.

[6] Parliament and the Legislative Process, para.56.

[7] Parliament and the Legislative Process, para . 163.

[8] Law Commission, Post-Legislative Scrutiny, Law Com No 302, Cm 6945, 2006.

[9] The Justice Committee in respect of the Freedom of Information Act 2000.

[10] Leader’s Group on Working Practices, Report of the Leader’s Group on Working Practices, Report, Session 2010-12, HL Paper 136, para . 94.

[11] Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working, 1st Report, Session 2001-02, HL Paper 11, para . 52.

[12] See Constitution Committee, The Process of Constitutional Change, 15 th Report, Session 2010-12, HL Paper 177.

[13] See Philip Norton, ‘The Norton View’ in D. Judge ( ed ), The Politics of Parliamentary Reform (London: Heinemann Educational Books, 1983).

Prepared 17th September 2012