2 What are the problems?|
8. Witnesses submitting evidence to us were unanimous
in calling for improved legislative standards. The Hansard Society
suggests that the problems with legislative standards are found
in a "confluence of factors primarily related to volume,
attitude, preparation and deliberation".
We wanted to establish whether this was correct, and have used
these four factors as the basis for our consideration of the problems
with the quality of legislation.
Volume of legislation
9. A concern of many of our witnesses was the increasing
volume of legislation.
Whilst the number of Acts has decreased since the 1980s, the mean
average number of pages per Act has increased significantly, from
37 and 47 pages during the 1980s and 1990s respectively, to 85
in the past decade. This continues a trend of an increasing number
of pages decade on decade since the 1950s when the average was
10. Richard Heaton, First Parliamentary Counsel and
Permanent Secretary at the Cabinet Office, however, urged caution
in using the page numbers as a guide, partly because of changes
in the style of drafting, and also because of changes to the way
Acts are laid out, with increasing amounts of white space and
bigger margins leading to 20% fewer words on a page.
The Public Bill Office warned against taking the volume of legislation
as an accurate guide to the quality of legislation.
11. "Omnibus", "portmanteau"
or "Christmas tree bills" attracted particular criticism.
These are large multi-topic bills, upon which a Department "hangs"
a number of areas of policy, like baubles on a Christmas tree.
Dr Ruth Fox, Director of the Parliament and Government Programme
at the Hansard Society, highlighted some of the problems this
type of bill can present:
If you look at the size of the bills that are
going through, the Conservative party, when it was in Opposition,
would talk strongly against the number of large Christmas-tree,
omnibus bills that the previous Government took through Parliament
after Parliament, yet we are seeing some of that happening again.
The Localism Bill had to be published in two parts, for example,
with a lot of disparate provisions.
She noted, however, that additional time had often
been allowed to consider such bills at Report stage.
12. First Parliamentary Counsel noted that the Government
"on the whole does not like big bills because the scope is
broad and amendments can come in on any subject". He stated
that "[a]mendments can come in on new subjects late in a
bill's passage and that is quite often an area where mistakes
creep in, so you might see more of that in a multi-purpose bill
than in a small confined bill".
13. The Rt Hon Mr Andrew Lansley MP, Leader of the
House, noted that "[t]here are substantially more candidates
for legislation than there is time available."
Some caution therefore needs to be exercised in criticising large
multi-topic bills, as they can enable Parliament to consider provisions
that would not otherwise find a place in the legislative timetable.
For example one of the amendments to the Crime and Courts Bill,
accepted by the Government, was to include section 24, Appeals
relating to the regulation of the Bar. This section was originally
included within a draft bill that the Ministry of Justice consulted
on, but which was not taken forward because of lack of time.
14. We recognise that legislation is not made
in a vacuum. The parliamentary legislative process reflects the
inherent constraints and negotiations present in the process of
turning policy into statute, and we accept that the introduction
of large multi-topic bills is, on occasion, a legitimate and appropriate
use of parliamentary time. We acknowledge that the greater breadth
of such bills allows greater scope for amendments by backbench
MPs, and that without such bills, some "worthy" but
"unglamorous" statutory sections might not become law
because of lack of parliamentary time. However, multi-topic bills
risk becoming simply too big to be scrutinised effectively.
15. We recommend that for large multi-topic bills,
the Minister in charge of the bill explain to Parliament why this
large scale format has been chosen. If there is a good reason
for the legislation being brought forward then Parliament can
be confident that the Government has given proper consideration
to the importance of parliamentary scrutiny.
Attitudes towards legislation
16. A number of witnesses questioned whether all
of the legislation passed by Parliament each year was necessary,
and if not, how parliamentary time could be better used. Lord
Maclennan of Rogart told us that the Government should be required
to set out why legislation was necessary.
The Better Government Initiative noted:
part or all of 77 Acts from 15 Departments, which
were passed in the 2005-10 Parliament, have not been brought into
force. This casts [...] doubt on the adequacy of current standards
and current arrangements. 
17. We asked Daniel Greenberg, Parliamentary Lawyer,
Berwin Leighton Paisner LLP, formerly of the Office of the Parliamentary
Counsel, how problems with the quality of legislation could be
resolved by Parliament, given the dual pressure on Members of
Parliament as parliamentarians and party members. Daniel Greenberg
said that for MPs the real answer was: "at the end of the
day [...] do you care or don't you?"
18. The Constitution Society told us that the primary
reason for poor-quality legislation was political: "There
are very strong political pressures on governments, and individual
ministers, to push through large quantities of new legislation
on tight timetables and with insufficient preparation."
19. The Rt Hon Mr Nick Raynsford MP noted that there
was no consensus on the role of legislation:
There is widespread confusion about the purpose
of legislation, with many media and political commentators seeing
it as evidence of action ("something must be done")
or as a test of a government's political standing (the ability
to secure passage through both Houses of Parliament) rather than
its likely effect and impact.
20. First Parliamentary Counsel said that he recognised
the concept of "initiative-itis" where legislation is
brought forward because a Minister wishes to be seen to be doing
something. However, he suggested that most legislation was "pretty
solid, worthy stuff".
21. We asked witnesses whether there had ever been
a golden age of legislative standards and scrutiny by Parliament.
Lord Norton of Louth, Professor of Government, University of Hull,
there has never been a golden age, either in
Parliament or particularly in legislative scrutiny,[...]. If anything,
it is slightly less bad now than it was 30 or 40 years ago. The
biggest change, I suppose, is the switch from Standing Committees
to Public Bill Committees. There is slightly more time devoted
to Committee Stage than there used to be, and the Government are
slightly more willing to consider amendments, but the points are
relative. In other words, you are starting from an incredibly
low base of bills being rushed through and the Government not
being willing to consider amendments.
22. The Hansard Society considered the role of Parliament
in setting and ensuring standards. It argued:
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 constraintssome
checks and balancesto the legislative process at the parliamentary
end such that they might restrain the executive from bringing
forward hastily prepared, ill-thought out legislation.
23. The Better Government Initiative told us that
"changes in Parliament and changes in the Executive [are
a] single complementary package with two elements of equal importance.
Both are needed."
Similarly, Lord Maclennan of Rogart emphasised the importance
of improving the public's perception of Parliament and parliamentarians,
and that this could be assisted by showing Parliament and the
Executive working together effectively and efficiently to produce
better quality legislation.
24. An example of a recent legislative innovation
which we were told merits further improvement was provided by
Lord Norton, the Rt Hon Mr Nick Raynsford MP, the Hansard Society
and the Parliament First All Party Parliamentary Group. They suggested
that after oral evidence has been heard by a Public Bill Committee,
there should be a break in the Committee's timetable to allow
the Committee time to reflect upon what it has heard, as well
as considering written submissions and any Public Reading Stage,
rather than immediately beginning line by line scrutiny.
This would allow time for amendments to be drafted based upon
the evidence heard, and submitted in good time, thereby increasing
the likelihood of the amendments being selected for debate.
25. We recommend that a week should elapse between
the conclusion of Public Bill Committee evidence sessions and
the start of line by line scrutiny, to allow Members enough time
to consider the evidence they have heard, and for amendments to
be drafted and selected for debate.
26. We also received evidence from the Better Regulation
Executive who suggested that the greater use of Impact Assessments
by Parliament during the legislative process could help to improve
legislative standards, and highlighted the importance of Impact
Assessments as a
"genuine challenge" within Government.
The quality of Impact Assessments is overseen by the independent
Regulatory Policy Committee (RPC), and it is rare for Ministers
to proceed with measures that have not been cleared as acceptable
by the RPC. We were told that "the existence of the RPC has
ensured better analysis is provided for many policies and has
caused some to be rethought entirely."
27. Impact Assessments are also used effectively
in the scrutiny of secondary legislation by the House of Lords
Secondary Legislation Scrutiny Committee, but there is less information
as to Parliament's use of Impact Assessments to scrutinise primary
28. Parliament must have a stronger role as a
partner with the Government in setting and monitoring standards
of legislation. This will require a change of attitude by parliamentarians
in asserting their role and "caring more" about legislative
standards, and in using existing processes and documents, such
as Impact Assessments, more effectively. It may also require the
creation of new mechanisms to assist them in the performance of
their legislative duties. A change in attitude by Government is
also required in its work with Parliament.
Preparation of and deliberation
on legislative proposals
29. The Better Government Initiative highlighted
preparation as key to ensuring high quality legislation. They
separate the production of legislation into three stages: preparatory
work by the Government; drafting by Parliamentary Counsel; and
parliamentary scrutiny. They commented:
Our concern is with the first and third stages:
setting standards for preparatory work on policy development that
will ensure that the instructions to Counsel are capable of being
turned into high quality legislation and providing Parliament,
as an input to the scrutiny process, with an explanation of how
those standards have been applied.
30. Ms Alison Seabeck MP thought one problem contributing
to poor quality legislation was the limited amount of information
given to Members:
what frustrates me most is the fact that we are
being asked to legislate time and again, 'blind'without
being able to see the relevant accompanying documents and guidance
because they either aren't available at all or are the subject
of a consultation running in parallel with the Bill.
31. A number of witnesses highlighted the importance
of timely and effective consultation, with the Better Government
Initiative suggesting that once a bill has received a slot in
the legislative timetable it is often too late in the legislative
process to consult because by that point the policy is often fully
formed. Dr Ruth Fox
argued that "a draft can only be as good as the policy that
32. Some of our witnesses criticised the omission
of a specific reference to the need for legislation to be of a
good standard in the Civil Service's Guide to Making Legislation
and also within the description of the functions of the Cabinet's
Parliamentary Business and Legislation Committee.
Adam Pile, Head of the Parliamentary Business and Legislation
Secretariat, Economic and Domestic Secretariat, Cabinet Office,
told us he had considered the criticisms, but did not think they
were fair because in his opinion, the need for legislation to
be of a good standard was taken by the Civil Service as a "given"
within the "real stress-testing process" undertaken
on each bill.
33. We asked Daniel Greenberg to set out what he
thought was the ideal process for the passage of legislation.
He highlighted the importance of allowing time for proper preparation,
scrutiny and discussion of policy before a bill is introduced,
including Green Papers, Select Committee inquiries, White Papers
and pre-legislative scrutiny,
although he cautioned against overuse of consultation as "at
the moment so many organisations outside Parliament are drowning
in government consultations; [...] they find it impossible to
respond to them."
34. Proper preparation of policy is crucial. Clear,
coherent policy which has been subject to challenge and revision
will aid Parliamentary Counsel in drafting comprehensive and comprehensible
bills. To require a formal draft to be produced before the policy
preparation process has finished is to put the cart before the
horse, necessarily increasing the risk of error and need for parliamentary
time to be taken up with amendments.
35. Good quality preparation should begin at an
early stage and include proper consultation, timetabled to conclude
before a bill is introduced; such consultation may need to be
targeted to avoid overloading individuals and organisations with
Government consultations. Responses to consultations should be
available for Parliament before first reading.
36. We think that a legislative process that
involves a Green Paper, followed by consideration of expert advice,
a White Paper and pre-legislative scrutiny prior to introduction
would produce high quality legislation. We do not think that this
is achievable or desirable for every bill because of the time
and resources required to complete all of the stages. However,
we consider that, as stated in our Report on the Fixed-term
Parliaments Bill, the Government should and can utilise the
potential greater certainty provided by fixed terms for effective
and efficient legislative planning. This would allow enough time
for these preferred processes for legislation to be adopted for
the majority of bills.
37. We were interested in the suggestion that for
the Civil Service the need for legislation to be of "good
standard" is "a given".
However, there is a difference between something being "a
given" in principle, and "a given" in practice.
This means that a civil servant should know what good law looks
like, not simply that good law is a good idea. We recommend
that the Cabinet Office's Guide to Making Legislation should
adopt and set out a Code of Legislative Standards as agreed with
Parliament, and emphasise the need to work with Parliament to
ensure those standards are met.
Drafting and the Office of the
38. We commend the Office of the Parliamentary Counsel
for its clear commitment to the pursuit of excellence in drafting.
Previous reports on the quality of legislation have focused on
the quality of legislative drafting.
However, our witnesses did not consider that technical drafting
skills were the principal cause of or contributor to poor legislative
39. Richard Heaton, First Parliamentary Counsel,
and David Cook, Second Parliamentary Counsel, described some of
the changes made by the Office of the Parliamentary Counsel to
improve legislative standards. They told us that the Office has
worked to make legislation more accessible, by focusing on plain
language drafting techniques. They have also made changes to the
formatting of legislation, including breaking down sentences into
shorter paragraphs, together with increasing amounts of white
space to improve readability.
They emphasised that this was an ongoing process, and that they
remain open to new ideas for improvements.
40. Parliamentary Counsel are civil servants employed
by the Government, not employees of Parliament; but they do have
a particularly important relationship to Parliament, acting as
a bridge between the Civil Service and Parliament and parliamentary
example, discussing the scope of a bill and the grouping of amendments
tabled to a bill, and liaising between Parliament and the Civil
Service Bill Team.
41. We asked First Parliamentary Counsel whether
there would be advantages in creating parliamentary counsel for
Parliament to advise on and draft amendments and legislation.
He suggested some pros and cons:
a. You would need to consider value for money
quite carefully. Drafting resource is quite expensive, and [...]
amendments and bills are prepared to a high level by this office
already before they reach the statute book, there is a risk that
the extra resource would be spent on drafting to a professional
standard things which are not destined to become law. There is
indeed an advantage in non-government amendments being drafted
in non-technical and readily understandable terms, [...]
b. You would need to manage expectations of what
a professional drafting office would deliver. Drafters cannot
by themselves guarantee a high standard of amendments or bills:
policy and legal analysis is also needed.
c. On the other hand, a system of exchanges between
my office and a parliamentary drafting office would certainly
improve our understanding of the pressures and demands on parliamentarians
(and vice versa). It might in time lead to a greater sense of
ownership by Parliament of the legislative process.
42. The Northern Ireland Assembly told us about a
new system it had introduced that "has been operational
since September 2011 under which the Speaker will grant access
to professional drafting services conditional upon the Member
adhering to guidance."
We asked the Leader of the House for his view on whether such
resources should be made available to Parliament. He told us that
he did not see the Office of the Parliamentary Counsel as being
reserved for Ministers. He saw the relationship of Counsel with
the House authorities as an instrumental part of enabling the
House to do its job properly, as well as Government.
43. We were also interested in the role of Parliamentary
Counsel at the Law Commission, where Parliamentary Counsel are
embedded. The Law Commission explained how helpful this was:
The embedded Parliamentary Counsel team is responsible
for drafting the Law Commission's law reform bills on the instructions
of the relevant law reform team.
[...] the discipline of translating our ideas
for law reform into legislation is also of enormous benefit in
our development of good law, in that it provides us with an opportunity
to test the viability of our provisional proposals.
Our Parliamentary Counsel are also available
to give advice on questions relating to legislation and parliamentary
procedure arising in the course of the Commission's work. This
has been particularly valuable on the occasions when we have supported
the implementation of Law Commission bills.
44. In considering the role of the Office of the
Parliamentary Counsel in ensuring standards, Richard Heaton, First
Parliamentary Counsel, told us:
I think there is something my office can do in
terms of promoting quality of legislation and good law principles
within government, talking to parliamentarians, talking to users,
talking to judiciary. I think there is a role for Parliamentary
Counsel in saying, "This is what good legislation looks like
and these are the upstream things that will help make better legislation."
There is an area there that I would like my office to be a bit
more visible and to have a greater leadership role in. It is early
days and we are treading quite cautiously, but I do think there
is a good law championship role that this office can help to lead.
45. On 16 April 2013, the Office of the Parliamentary
Counsel launched its "Good law" Initiative to consider
and analyse the challenges of producing legislation and, as a
first step, published a review into the causes of "complexity"
in legislation. The Initiative aims to:
- build a shared understanding
of the importance of good law;
- ensure that legislation is as accessible as possible,
and consider what more can be done to improve readability;
- reduce the causes and perception of unnecessary
- talk to the judges who authoritatively interpret
the law and to the universities which teach it, to avoid confusion
and facilitate interpretation.
46. We agree that there is a "good law championship
role" for the Office of the Parliamentary Counsel and welcome
the launch of their "Good law" Initiative. Their position
as specialists in the drafting of legislation and knowledge of
parliamentary procedures, as well as their connection to the Law
Commission, means that they are ideally placed to undertake this
championship role. We look forward to working with them to take
forward the recommendations in this Report, and to build upon
the preliminary work of the "Good law" Initiative.
The effect of poor quality legislation
47. Throughout our inquiry witnesses have provided
examples to explain how the procedural and parliamentary problems
they identify can create bad quality legislation. Dr Ruth Fox
provided some case studies for us; for example, the Department
for Communities and Local Government, which did not consult other
relevant Departments on the 2008 Planning Bill and as a consequence
produced 70 pages of late technical amendments at Report stage,
or the Coroners and Justice Act 2009, which she suggested was
too large to be properly scrutinised by Parliament. 
48. From the examples provided by our witnesses we
have identified some common principles which, if applied to legislative
proposals, would minimise the risk of such problems occurring:
a) Policy should be well-tested, for example,
through the use of internal and external consultation;
b) Pre-legislative scrutiny is an important stage
in refining a bill and in ensuring that changes made post-consultation
have been effectively and appropriately incorporated. It should
also minimise the occurrence of late substantive amendments;
c) Legislation must be necessary, without duplicative
powers or remedies;
d) Legislation should be to the point, with proper
justification for extraneous material or large multi-topic bills.
49. It is important to determine the practical effect
of "bad quality" legislative standards once an Act has
received Royal Assent. We were told that judges were making increasing
use of the "Inco rule" which allows Courts to correct
obvious drafting errors by, in suitable cases, adding, omitting
or substituting words to discharge the Court's interpretive function.
Lord Nicholls of Birkenhead set out the test. He said that the
power was confined to "plain cases of drafting mistakes":
Before interpreting a statute in this way the
court must be abundantly sure of three matters: (1) the intended
purpose of the statute or provision in question; (2) that by inadvertence
the draftsman and Parliament failed to give effect to that purpose
in the provision in question; and (3) the substance of the provision
Parliament would have made, although not necessarily the precise
words Parliament would have used, had the error in the Bill been
noticed. The third of these conditions is of crucial importance.
50. The recent judgment in R (Noone) v The Governor
of HMP Drake Hall
provides an example of a case where poor quality legislation resulted
in what should have been a simple question necessitating an appeal
to the Supreme Court. The case concerned the inter-relationship
between the sentencing provisions of the Criminal Justice Act
1991 and the Criminal Justice Act 2003 for prisoners serving consecutive
sentences of above and below 12 months. The Court was attempting
to work out the date on which the Appellant became eligible to
be considered for a home detention curfew. The answer was dependent
upon which of the two schemes contained in the two Acts applied,
or whether a third scheme pursuant to the transitional provisions
applicable between the two Acts applied.
51. The Supreme Court held that an interpretation
of the transitional provisions had "wholly implausible and
unacceptable consequences". Lord Judge commented:
Ill considered commencement and transitional
provisions, which have to negotiate their way around and through
legislation which has been enacted but which for one reason or
another has not or will not be brought into force, add to the
[...]The explanation for the problem is simple.
For too many years now the administration of criminal justice
has been engulfed by a relentless tidal wave of legislation. The
tide is always in flow: it has never ebbed.
[...]It is outrageous that so much intellectual
effort, as well as public time and resources, have had to be expended
in order to discover a route through the legislative morass to
what should be, both for the prisoner herself, and for those responsible
for her custody, the prison authorities, the simplest and most
certain of questions - the prisoner's release date.
52. This case is a clear example of bad quality legislation
requiring time and money to be expended to rectify problems which
could and should have been identified during the preparation of
the policy or at the very least rectified during the Bill's passage
53. We conclude that the majority of poor quality
legislation results from either inadequate policy preparation
or insufficient time being allowed for the drafting process, or
a combination of the two. This is not to point the finger at the
Office of the Parliamentary Counsel, which neither produces policy
nor determines the speed with which policy is to be transformed
into legislative proposals.
5 Ev w18 Back
Q 112 and Ev w53 (Ryan) Back
Volume of Legislation, LLN 2011/028, House of Lords Library,
September 2011 Back
Q 64 Back
Ev w8 Back
Q 150 Back
Q 65 Back
Q 283 Back
Introduced in the House of Lords and received its first reading
in the House of Commons on 19 December 2012 Back
Official Report, 4 December 2012, columns 605 to 607 Back
Q 212 Back
Ev w10 Back
Ev w16 Back
Ev w1 Back
Q 67 Back
Q 203 Back
Ev w18 Back
Ev w10 Back
Q 206 Back
Q 214, Ev w19 and Ev w57 Back
Impact Assessments are documents published with a bill which show
the potential positive and negative consequences of an Act, and
the weight that the Government has applied to each potential consequence. Back
Ev w38 Back
Ev w38 Back
Ev w10 Back
Ev w3 Back
Q 100 Back
Q 166 Back
Ev w23 Back
Q 302 Back
Ev 90 Back
Q 2 Back
Q 302 Back
Q 29 Back
Report of the Renton Committee on the Preparation of Legislation
(Cmnd. 6053) Back
For example, Q 104 Back
Qq 34-35 Back
Q 43 Back
Ev w7 Back
Ev 92 Back
Ev w50 Back
Q 275 Back
Ev w30 Back
Q 55 Back
Cabinet Office and the Office of the Parliamentary Counsel, When
laws become too complex, March 2013 Back
Q 165 Back
The detailed response provided by Dr Fox can be found at Q 149 Back
Q 25, Inco Europe Ltd. v First Choice Distribution [200gvb0]
1 WLR 586 Back
Ibid p.592F Back
 UKSC 30 Back