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I am out of time. The message to government departments: please attend to this—it matters. Please own the need to improve. Please give it serious attention at the top of departments in the way that I have already suggested. Seek to avoid such legislation when you can, and evaluate the effectiveness. In other words, have some process where, periodically, you take an instrument—perhaps a controversial one—and see whether there is evidence that it actually worked or did not. All too often, that is not done, so there is no learning process within government.

The message to the House is: please engage; please support us, because it is a lonely and sad life we lead in our little gulag; please also do not mistake the convention of the House. I think that the noble Lord, Lord Kingsland, for whom I have the greatest respect, misquoted the convention on secondary legislation. The Companion states:

It does not say it should not; it does not say it could not. It makes the statement of fact that it happens “only occasionally”.

I think the view of the committee is that the House has probably too infrequently rejected delegated legislation. Without wishing to cause a heart attack to the Chief Whip, I should add that there are occasions when it should be rejected. That does not collapse Parliament or the Government. It usually leads to the Government rushing back with an amending piece of secondary legislation which sorts out the problem. It does not half concentrate the attention. So, without wishing to upset my very good friend the Chief Whip, I do not think we should misquote the Companion in this respect. We should use our powers in the interests of the public with discretion, but periodically.

Moved, That this House takes note of the report of the Merits of Statutory Instruments Committee on the Management of Secondary Legislation [29th Report, HL Paper 149, Session 2005-06].— (Lord Filkin.)

7.20 pm

Lord Norton of Louth: My Lords, it is a pleasure to follow the noble Lord, Lord Filkin, and to congratulate him and other members of the Merits Committee on producing what in my view is an excellent report, and one that I believe may come to be recognised as a seminal document. I shall be reinforcing some of the points that the noble Lord has made in opening.

It has long been recognised that there are problems with our legislative process and with parliamentary scrutiny of legislation. The problems have been quantitative as well as qualitative. As the noble Lord said, there has been a growth decade by decade in the volume of legislation. Bills are getting longer. More and more statutory instruments are being promulgated. Many provisions are complex and not easy for Members of either House, let alone the

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public, to understand. We know from experience that they do not always work in the way they are intended to work. Unfortunately, we usually know that only when they have gone badly wrong. We lack any systematic means of post-legislative scrutiny.

There have been some improvements in recent years. With primary legislation, there has been the very welcome growth of pre-legislative scrutiny. At the beginning of this month the other place resolved that Bills should normally be referred to evidence-taking public Bill committees, in my view a major advance and possibly the most important reform of the legislative process in recent history. The Law Commission has made recommendations for post-legislative scrutiny.

In respect of delegated legislation, the most important changes have taken place in your Lordships' House. We have the Delegated Powers and Regulatory Reform Committee and now the Merits Committee. Both are doing a superb job. This report alone demonstrates the worth of the Merits Committee.

The committee is part of the answer to the problem of delegated legislation and, in this report, it has succinctly and effectively identified what the problem is. There is, as it shows, a systemic failure in government in promulgating delegated legislation. With primary legislation, there is at least some central co-ordination. Bills have to be agreed by the Cabinet and the Ministerial Committee on Legislative Programme. There is a means of ensuring that measures are appropriate and fit in with the time available in the Session. With delegated legislation, there is no central co-ordination and responsibility is dispersed to departments. As the report shows, departments deal with such legislation in different ways.

As a result, delegated legislation is generated in what is essentially a disparate and discrete manner. There is no co-ordinated mechanism for ensuring that each statutory instrument achieves its goals efficiently, that it is necessary and that it is clear to those at whom it is addressed. The absence of such a mechanism also makes difficult effective parliamentary scrutiny. Consultation and parliamentary scrutiny are means to an end; namely, ensuring that delegated legislation is fit for purpose. There is thus something of a vicious cycle. Because there is no central co-ordination, delegated legislation may be brought forward late and there can be bunching at a particular time of the year. That limits the capacity of the two Houses to consider the legislation. The problem is compounded by limitations of time in the other place, thus putting a particular onus on this House to ensure that delegated legislation is fit for purpose.

To ensure that delegated legislation is fit for purpose, there needs to be action not just by Government but also by the House. The action to be taken by Government is very clearly laid out in the report. I endorse all the recommendations that are made.

The Government's response to the recommendations is, I fear, disappointing. Here I echo what was said by

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the noble Lord, Lord Filkin. The Government recognise the importance of what the committee is arguing but primarily commit themselves to beefing up the guidance and extending some of the existing practices. In so far as there is an improvement in the existing guidance and in practices, I welcome the changes. But they do not go far enough to deal with the problems identified by the committee. The Government's response does not really engage as much as it should and could with the recommendations. It is a missed opportunity. It really should do more to ensure that there is co-ordination. I believe that the same principle that applies to primary legislation should apply to secondary legislation. I disagree with the Government on the point that they make in their response.

In terms of laying orders at least 21 days before they are to come into force, it is not enough simply to remind departments that the 21-day period is a minimum period. There needs to be some mechanism for ensuring compliance. Simply reminding departments is not going to change the culture within departments. The Government's response appears to be driven from the bottom up, from departments, rather than from the top down, from the Cabinet.

The point that I would stress to the Minister is that it is in the Government’s interest to implement these recommendations. The Government want legislation that achieves its intended goals. They are also committed to ensuring better regulation. I draw attention especially to the opening sentence of paragraph 80 of the report, where it notes that central co-ordination will not be effective,

As it goes on to note, the Better Regulation Executive cannot distance itself from the matter as being of no more than procedural interest to HMSO. This has to be seen as part of the process of better regulation and not as somehow detached from it. I am not sure that in their response the Government have fully grasped that point.

I very much endorse the recommendations on simplicity and consultation in addition to the core recommendations covering co-ordination and post-implementation review. The committee's recommendation on post-implementation review mirrors the recommendation of the Constitution Committee in its 2004 report on the legislative process. The Constitution Committee, which I chaired, argued the case for post-legislative scrutiny to be undertaken by departments and for Parliament itself to have some mechanism for reviewing whether Acts have fulfilled their purpose. The Law Commission has recommended the creation of a Joint Committee to undertake post-legislative scrutiny. It sees the committee as evolving and it could be that it—or the Merits Committee—could come to engage in oversight of post-implementation review of delegated legislation.

I wish to raise one particular point in respect of government. The Merits Committee wants to encourage officials responsible for producing delegated legislation to see the process from the

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perspective of Parliament. That will enable them to appreciate the need for laying instruments in a timely manner and to avoid congestion. That touches on a wider problem; namely, the fact that officials often have a limited grasp of Parliament in terms of both its significance and its procedures. That can result in the sort of problem identified in this report, but it results also in problems encountered by other committees. Though senior civil servants often understand the role of Parliament, less senior officials sometimes do not and it is the less senior officials who are frequently responsible for producing statutory instruments as well as other material laid before Parliament. It would therefore be helpful to hear from the Minister what the Government are doing to address this problem. Is there a role for the National School of Government, not least in ensuring that officials responsible for delegated legislation are schooled in understanding Parliament and its procedures?

I turn to the role of Parliament. As the report shows, one of the explanations of why delegated legislation is not given the attention it deserves within government is the fact that there is no strong incentive to do so. Delegated legislation is not subject to the same scrutiny by Government or by Parliament as primary legislation is. Instruments subject to the negative resolution procedure are usually not debated in the Commons; time cannot be found even if they are prayed against. In this House, even if debated, they are not usually subject to a vote. Instruments subject to affirmative resolution are debated, but usually briefly and again without a vote. There is no scope for amendment and, as there is usually no Division, few members take an interest. Delegated legislation is very much the poor relation in the legislative process.

If officials responsible for delegated legislation are to take Parliament seriously, Parliament has to take seriously delegated legislation. We have the Merits Committee, but by itself it cannot ensure that officials take Parliament seriously. We have to be prepared to act on reports from the committee and if a statutory instrument is not fit for purpose to reject it. We will in due course debate the report of the Joint Committee on Conventions. It recognises that there is no convention that prevents the House from rejecting a statutory instrument. As the noble Lord said, it may be exceptional for it to do so, but its ability to do so—as the Merits Committee noted in its evidence to the Joint Committee—gives the House some leverage in ensuring that instruments are fit for purpose. As I argued in my evidence to the Joint Committee, I see no reason why we should not reject statutory instruments. They do not usually deal with great issues of principle and they can be relaid. I do not go along with the recommendations of the Wakeham commission. I think that existing powers to reject an SI should remain, but we should be prepared to use those powers. As the noble Lord said, rejecting an SI that is not fit for purpose will concentrate the minds of Ministers and, especially, officials.

I am not arguing that we should regularly reject SIs. Once there is a clear awareness on the part of departments that poorly drafted and inadequate

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statutory instruments—those that do not meet the criteria specified by the Merits Committee—will not be approved by the House, I have no doubt that SIs will be better drafted and that they will be more likely, in the words of the Merits Committee at the end of paragraph 119, to be,

The publication of the report of the Joint Committee on Conventions prior to this debate is timely. If we put the two reports together, we have the basis for ensuring that we use our power to support the work of the Merits Committee and that delegated legislation is fit for purpose. I reiterate that this is an excellent report. It is essential that we see this debate not as an end point but as the beginning of the process in ensuring that the report’s recommendations—all its recommendations—are implemented.

7.32 pm

Lord Methuen: My Lords, I welcome this debate on the report the Merits Committee on the management of secondary legislation, produced under the guidance of our chairman, the noble Lord, Lord Filkin. I came on to the committee at its inception in 2003, not knowing precisely what I had let myself in for. It was extremely interesting to be there from the start, as we had to decide how we were to operate and report to the House. We were lucky to have such an excellent first chairman in the noble Lord, Lord Hunt of Kings Heath, backed up by our first clerk, Christine Salmon, and our excellent secretariat, who were especially recruited for us from the Civil Service—truly a case of poacher turned gamekeeper.

I say to the noble Lord, Lord Norton, that one task that has been carried out is educating members of the various departments concerned with making statutory instruments on how we wish to have things presented to us and how to improve the general quality. Forums have been run to enable departments to achieve this.

During my three years on the committee, I was amazed at the broad range of subjects covered by statutory instruments, ranging from a single sheet of A4 paper from the Electoral Commission, stating that no party shall call itself “None of the Above”, to hundreds of pages reorganising the medical or dental professions. There was even one on the preservation of Antarctic monuments such as Scott’s hut.

On a more serious note, it is noticeable that the quality of SIs, particularly the Explanatory Memorandum, has improved dramatically, and our insistence on full details of the consultation carried out by the relevant department is starting to achieve our objectives. However, as has been said, there are still too many occasions when the required 12-week period for consultation is not achieved. It is a pity that the Explanatory Memorandum is not—on grounds of cost—a part of the official statutory instrument document and is available only on the departmental website. The Explanatory Note, which is part of the document, is totally useless.



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Many of the SIs that we see are completely incomprehensible, consisting solely of amending references to the primary legislation or preceding amending SIs. It is with regard to this that I think a consolidated version of the primary legislation with all the amendments made by the relevant SIs incorporated should be freely available on the relevant departmental website or on the Department for Constitutional Affairs’ proposed statute law database. Such a baseline version must exist, as otherwise it would be impossible to produce the SI.

We had evidence from the Kent Police College concerning the difficulty of knowing which sections of primary legislation had been activated by an SI. An example was quoted whereby a section of a 33 year-old Act—the Criminal Justice Act 1972—still had unactivated sections which could be brought into force at 21 days’ notice, giving the police new powers of which they might be unaware.

Another issue that concerned us was ensuring that adequate publicity was given to SIs affecting the general public. There was one instance, to which I believe the noble Lord, Lord Filkin, referred, concerning the use of licensed waste disposal operators or skip hirers, where we felt that very inadequate provision was made to inform the public of their responsibilities in this matter. Similarly, we had misgivings on the varying impact of SIs on large firms with comprehensive legal departments versus an SME or voluntary organisation where there may be nobody available to be made aware of the significance of the SI or to take any action to implement it. In many cases, it will just be ignored.

Another problem that we observed, and into which no doubt the noble Viscount, Lord Colville of Culross, will go in some detail, is the transposition of EU legislation by SIs imposing undefined penalties for undefined offences that can be determined only by extensive trawling through the parent EU legislation—something quite impractical for most members of the public, such as a farmer who may well be affected by such an SI. Details of the offences and penalties should be clearly defined on the face of the SI in such instances.

Management of the SI process and ensuring that adequate time is allowed for scrutiny and subsequent debate have been constant subjects for concern. On too many occasions the 21-day rule between the laying of the SI and its coming into force has not been observed. While there may be some emergency occasions when this is justified, in most cases it is not. The situation becomes even more acute in the run-up to the common commencement dates in April and October—the latter occasion being aggravated by the long Summer Recess preceding it. Departments must plan to ensure that there is always time for adequate parliamentary scrutiny.

Other suggestions in our report were that more consideration should be given by departments to whether an SI was the best way to achieve the objective required, or whether a non-legislative approach was possible and desirable.



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I have enjoyed my time on the Merits Committee. I thank the noble Lord, Lord Filkin, for introducing the debate.

Lord Forsyth of Drumlean: My Lords, not having been involved or having any great expertise in this area, I hope that the House will forgive my intervening. However, I do so if only to thank the noble Lord, Lord Filkin, and his committee for their excellent report. I despair as I listen to the Government say that they will reduce the regulatory burden by 25 per cent. I remember saying the same thing when I was in government, and failing to do so. When I was first appointed a Minister in the Department of Employment, with responsibility for health and safety, I recall asking officials if they would get me all the regulations that applied to small and medium-sized businesses, with which request they had to comply.

Lord McKenzie of Luton: My Lords, I hope that the noble Lord will forgive me but, so far as I am aware, he is not included in the speakers list. He may speak in the gap, but not otherwise.

7.39 pm

Viscount Colville of Culross: My Lords, I must say that I thought I was next, but if the noble Lord, Lord Forsyth, wishes to intervene briefly, I will not object.

Lord Forsyth of Drumlean: My Lords, I am most grateful to the noble Lord, but I am at fault and in error.

Viscount Colville of Culross: My Lords, I shall just say briefly to the noble Lord, Lord Methuen, that I am not going to resurrect the point about transparency of criminal offences that are imposed under EU regulations. The happy outcome of our previous discussions on that is that it is in the hands of the noble and learned Lord, Lord Davidson of Glen Clova, and he will include something about it in his review. I believe it is relevant to what he is doing, and I look forward very much to the results.

I am happy to support my chairman, the noble Lord, Lord Filkin. He said that the Better Regulation Executive did not go in any depth into statutory instruments. The same of course applies to the Joint Committee on Conventions. It dealt with the rejection of statutory instruments, about which various things have been said. It said, in terms, that it had not been asked to consider amendments. Very few statutory instruments can be amended. This is a point that a number of noble Lords are interested in. In fact, it simply is not feasible to have a system of amending statutory instruments in Parliament; the volume alone would preclude that. On the Library shelves, as an example, the statutory instruments from 2001 run to 10,800 pages and, looking at a slightly smaller set of books, those from 2005 go to 8,800 pages. Not all of those are subject to the parliamentary process, but quite a lot of them are, and it just would not be possible for either House to contemplate amending them.



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If the departments that produce statutory instruments are going to be immune from a process of detailed scrutiny and amendment in the House, we must ask for compensation by return. It has already been mentioned by previous speakers, and it comes in the form of consultation. The experience so far is that if there is adequate consultation, changes can be made before the instrument is made or laid. It depends entirely on the adequacy of the consultation. This must be particularly important, with the ever-increasing number of framework Bills where, on the hangers, will come an enormous number of details in the form of statutory instruments. Some Ministers are better than others at giving the House notice when the actual Bill is being discussed of what those details are going to be. We need more consultation.


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