Ensuring standards in the quality of legislation - Political and Constitutional Reform Contents

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".[5] 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.[6] 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 16.[7]

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.[8] The Public Bill Office warned against taking the volume of legislation as an accurate guide to the quality of legislation.[9]

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.[10]

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".[11]

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."[12] 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,[13] 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]

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.[15] 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. [16]

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?"[17]

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."[18]

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.[19]

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".[20]

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, told us:

    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.[21]

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 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.[22]

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."[23] 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]

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.[25] 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[26] as a "genuine challenge" within Government.[27] 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."[28]

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 legislation.

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.[29]

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.[30]

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.[31] Dr Ruth Fox argued that "a draft can only be as good as the policy that underpins it."[32]

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.[33] 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.[34]

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,[35] 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."[36]

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".[37] 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 Parliamentary Counsel

38. We commend the Office of the Parliamentary Counsel for its clear commitment to the pursuit of excellence in drafting.[38] Previous reports on the quality of legislation have focused on the quality of legislative drafting.[39] However, our witnesses did not consider that technical drafting skills were the principal cause of or contributor to poor legislative standards.[40]

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.[41] 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 Authorities:[42] for 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.[43]

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.[44]

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."[45] 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.[46]

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.[47]

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.[48]

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 complexity;
  • talk to the judges who authoritatively interpret the law and to the universities which teach it, to avoid confusion and facilitate interpretation.[49]

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. [50]

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:[51]

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.[52] 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.[53]

50. The recent judgment in R (Noone) v The Governor of HMP Drake Hall[54] 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 burdens.

    [...]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 through Parliament.

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

6   Q 112 and Ev w53 (Ryan) Back

7   Volume of Legislation, LLN 2011/028, House of Lords Library, September 2011 Back

8   Q 64 Back

9   Ev w8 Back

10   Q 150 Back

11   Q 65 Back

12   Q 283 Back

13   Introduced in the House of Lords and received its first reading in the House of Commons on 19 December 2012 Back

14   Official Report, 4 December 2012, columns 605 to 607 Back

15   Q 212 Back

16   Ev w10 Back

17   Q9 Back

18   Ev w16 Back

19   Ev w1 Back

20   Q 67 Back

21   Q 203 Back

22   Ev w18 Back

23   Ev w10 Back

24   Q 206 Back

25   Q 214, Ev w19 and Ev w57 Back

26   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

27   Ev w38 Back

28   Ev w38 Back

29   Ev w10 Back

30   Ev w3 Back

31   Q 100 Back

32   Q 166 Back

33   Ev w23 Back

34   Q 302 Back

35   Ev 90 Back

36   Q 2 Back

37   Q 302 Back

38   Q 29 Back

39   Report of the Renton Committee on the Preparation of Legislation (Cmnd. 6053) Back

40   For example, Q 104 Back

41   Qq 34-35 Back

42   Q 43 Back

43   Ev w7 Back

44   Ev 92 Back

45   Ev w50 Back

46   Q 275 Back

47   Ev w30 Back

48   Q 55 Back

49   Cabinet Office and the Office of the Parliamentary Counsel, When laws become too complex, March 2013 Back

50   Q 165 Back

51   The detailed response provided by Dr Fox can be found at Q 149 Back

52   Q 25, Inco Europe Ltd. v First Choice Distribution [200gvb0] 1 WLR 586 Back

53   Ibid p.592F Back

54   [2010] UKSC 30 Back

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Prepared 20 May 2013