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Lord Howe of Aberavon: My Lords, perhaps the noble and learned Lord will allow me to respond to that point in an interrogatory fashion. Is it not remarkable that in this House—without Standing Committees—we are able to carry out more effective scrutiny of primary and European legislation than the other place? The noble and learned Lord has refrained from making the comment, but the fact is that we undertake nearly all the scrutiny. That does not mean that we should not continue to do that, but it indicates that it is a much wider matter for both Houses. Underlying that is the need for better preparation of legislation before it reaches this House.
Lord Williams of Mostyn: My Lords, I entirely agree with the noble and learned Lord, Lord Howe of
Aberavon. Limiting myself to this House, my proposition is that we do not carry out our work sufficiently well because we work in an absurdly archaic manner. When we come to some modest propositions that I hope to be able to put before the House about our working practices, I hope that every noble Lord who is present this evening will support what I say.It is idle to say that we are a House of volunteers. It is fruitless to say that we have other work to do. If your Lordships want the negative batting-back of all propositions for improvement that have been put forward this evening, I shall say that I have other work to do in the morning and that I am only a part-time volunteer. That is the answer that is offered with the icy hand of history upon it. It is no good noble Lords correctly defining matters, as the noble and learned Lord, Lord Howe, has done.
We know the prescription, but we do not put it into effect. We will not be able to put anything into effect until we attend to our working practices. That means working sane hours, using the mornings and using two-and-a-half months in the summer and not tottering through the night, as we frequently have. I shall give way to both noble Lords as I intend to be entirely non-controversial. The answer is not to totter through at midnight and at two o'clock in the morning, failing to do our work because we are too tired and exhausted.
Lord Renton: My Lords, I confess that I am puzzled by what the noble and learned Lord has said. Bear in mind that for years we have been making several thousand amendments a year to government legislation that has come to us from the House of Commons. That is a sign of our industry, our expertise and our determination.
Lord Williams of Mostyn: My Lords, as I always know, the noble Lord, Lord Renton, has the figures at his fingertips. On many occasions the amendments are government amendments and government amendments of a technical and textural kind tend to imply that there has been an original failure and possibly even an original sin.
Lord Kingsland: My Lords, I believe that there is a distinction between the drafting of legislation and the scrutiny of legislation. As I understand it, this debate is about the drafting of legislation, its clarity and its usefulness to the general public. The noble and learned Lord has raised issues about the scrutiny of legislation and the manner in which this House scrutinises it. I make no complaint about that; but I hope that the noble and learned Lord will accept that there is a distinction. The two issues are obviously related but they are nevertheless distinct.
Lord Williams of Mostyn: My Lords, I do not accept that for a moment. I do not think that they are distinct. If we continue along that path we shall never achieve decent legislation. I listened most carefully, as I always
do, to the noble and learned Lord, Lord Brightman. His six categories are irretrievably and rightly linked with drafting because drafting cannot be distinguished from scrutiny. Once we have proper, effective scrutiny in this House, which means changing our working practices, that will have an inevitable consequence. Legislation will be better drafted.One of the answers is to increase the resource in parliamentary counsel. They are extremely highly skilled technicians. Their work is of the highest quality but there are too few of them. We ask them to do too much too late in the day. One remedy is to increase their number. We have increased the number from 36 in 1997 when this Government came to power to 43 today. We are therefore on target to 47 full-time counsel. They are exceptionally highly gifted and skilled. One of the dangers in all governments is putting too late to parliamentary draftsmen their policy instructions. I shall give way to the noble Lord, Lord Hooson, in a second, because I do not want to lose my next invaluable pearl.
I put this forward to your Lordships in a genuinely co-operative spirit. One way to improve scrutiny which would undoubtedly improve drafting is to wonder whether the carry-over rule has any sensible function. If we do not have that rigid carry-over rule and, nevertheless, have done extremely good work on Bills, would it not be wiser to accommodate at least some Bills in a carry-over system?
Lord Hooson: My Lords, does the noble and learned Lord also think that there is inadequate scrutiny and inadequate time for scrutiny in another place? I recollect from my days in another place that the process there is more streamlined and does not achieve as much. There is, therefore, more work to be done in your Lordships' House. But part of the remedy surely lies in another place.
Lord Williams of Mostyn: My Lords, that may well be so. However, at this time when we are defining our functions, our critical function should be the scrutiny of new legislation. As the noble Earl, Lord Attlee, indicated, it may well be the review of existing legislation. One of the reasons why we should be composed differently from the House of Commons—in other words, not wholly elected—is that we bring a different range of skills, experience and expertise to a different category of work. It may well be that the House of Commons fails to give adequate scrutiny but that should be no excuse why we should not redouble our efforts.
The noble Earl, Lord Attlee, asked about the attachment to statutory instruments of diagrams and so on. I put it generally; I think that it is a fair paraphrase. He knows that where appropriate maps and diagrams are sometimes attached. Where they are not, it is because of the fear of ambiguity which, as he knows with his experience, obtain in technical drawings as easily as in verbal descriptions.
The noble and learned Lord, Lord Howe of Aberavon, said that we need the machinery to make these desirable consequences occur. I agree entirely.
But that is in the hands of this House. If we are determined to set up machinery which will work, it means extra financial resources, extra clerking resources for the committee—again, that is a difficult skill—and the extra resource of noble Lords determined to do the work for which we are supposed to be here. I had thought that the noble and learned Lord, Lord Mackay, was about to intervene.
Lord Howe of Aberavon: My Lords, I do not question the validity of the noble and learned Lord's point. Of greater importance surely is the continued enhancement on a much larger scale of the offices of parliamentary counsel. It is the time and resources that they are given that enables the product to be in a far better condition when it reaches either House. The six principles of the noble and learned Lord, Lord Brightman, have to be applied when preparing the primary product.
I agree with the noble and learned Lord that we may have to enhance our own resources. But of far greater importance is the enhancement of the primary workforce.
Lord Williams of Mostyn: My Lords, I have already made that point. We are not in disagreement. I repeat the figures. There were 36 parliamentary counsel when we came into office. Our target is 47. We have got up to 43. Parliamentary counsel have a distinct and rare skill.
I do not believe that these topics are capable of being distinguished. They must work together. I have heard nothing today with which I fundamentally disagree as a matter of principle. The noble Lord, Lord
Goodhart, said that we do not use IT effectively these days. Most speeches in the House of Lords, sitting judicially, are available on the Internet that afternoon. That is a distinct forward step.I was grateful to the noble Lord, Lord Kingsland, who mentioned that Explanatory Notes have been a success. They were somewhat derided by those who were able to remember that it was never like that when they were a pupil. That is normally the conclusive argument that one hears on these occasions. Advance drafting is now more available. Pre-legislative scrutiny is also available. A number of Bills have been the successful objects of pre-legislative scrutiny. Noble Lords will not want me to give too many illustrations but, for instance, the Welfare Reform and Pensions Bill, the Limited Liability Partnerships Bill, the Financial Services and Markets Bill and the Food Standards Bill were all helped by pre-legislative scrutiny. A vast raft of Law Commission material is still available. I know that the noble and learned Lord, Lord Mackay, will point out to me that, although it appears non-politically controversial, some of it is: a good deal of it is not and it should be capable of being looked at in the fallow, arid dead times of the summer.
I am sorry that I have gone over my 11 minutes but it was deliberate to address the principled approach your Lordships have all expressed. The gloomy consequence to which I come is that we do not do our work properly. The better, more hopeful, conclusion is that we could. I believe that we can only do that if we attend to the way we work in a rather more efficient, realistic and—dare I say it?—modern way.
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