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The committee must continue this work. The importance of secondary legislation is huge, and this committee is doing a fine job in getting departments to help Parliament and the public to better understand the implications of these instruments.

8.20 pm

Lord Forsyth of Drumlean: My Lords, I apologise to the noble Lord, Lord Methuen, for barging in ahead of him. That was an example of failure to self-regulate, and I am grateful to the Front Bench for regulating me appropriately. I wished to indicate that, when I was the Minister in the Department of

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Employment responsible for health and safety, I thought it might be a good idea to read all the regulations that applied to small and medium-sized businesses. After about three months, no regulations had arrived, and when I made queries I was told that the Health and Safety Executive would have to hire a special van to deliver them. That illustrates the extent of the problem.

I am greatly encouraged by this report, for a number of reasons that were eloquently spelt out by my noble friend Lord Norton of Louth. It makes a series of recommendations which, if taken seriously and implemented with zeal by Ministers in their departments, would make a huge difference. I am not making a partisan point when I say that the Government’s response is a little disappointing. I understand why it is disappointing; it is because it is part of the culture of government, whichever party is in power. I plead guilty to it. There is a story in the newspapers, there is a campaign or there is a need for action, so Ministers give a commitment that they will produce a Bill. The Bill is rushed through the House; it comes to this place; the detail has not been thought through and is left to secondary legislation. The caravan moves on, and Ministers are no longer interested in the detail.

Wherever I go in the country—not just in business, but in sport or other aspects of everyday life—I see that there is a real head of steam about regulation and a resentment that it seems to be out of touch and insensitive. The Merits Committee is an innovation and an example of the sort of work that is done by this House of which we should be proud, but around the Chamber its importance is not always recognised. This is one of the most important reports to come before the House. In terms of the impact on the country, this issue is of the greatest importance and is the single issue that is causing concern in business and throughout society, so I welcome the report.

There is a tendency for us to assume, when looking at regulation, that it is all the fault of Europe. People will say, often in error, that regulations that they do not like were produced by the European Union. It has also been suggested that the problem is caused by civil servants in government departments gold-plating legislation—that may be partly true. The noble Lord, Lord Filkin, made the extraordinarily important point that it is difficult to reverse decisions of the Council of Ministers. It is difficult not only to get agreement on a change but to get agreement even to put it on the agenda. That is a fundamental failure of the operation of the European Union.

I have only one more minute, but I want to say to all the members of the committee that their work is valued greatly by those of us who are concerned about the problem of regulation, and I hope that the Government will think about instructing Ministers to take these recommendations seriously and to change the culture by which they operate. I know what it is like to get four red boxes at night, with the statutory instruments at the bottom. The tendency is just to sign them off and not read through them, even if you can understand what they are about. If the Prime Minister is serious, he and the whole Government

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should read this report, tell all the Permanent Secretaries that they should act on its recommendations and hold them to account for so doing.

8.24 pm

Baroness Maddock: My Lords, I am pleased to be able to take part in this debate, which was so ably introduced by our chairman, the noble Lord, Lord Filkin. I have been on the Merits Committee for only a relatively short time, but two things struck me very forcibly when I became a member. One has already been mentioned by the noble Lord, Lord Jopling: the incredible workload of the committee advisers. They get on top of a huge raft of information. There are thick agendas each week, and they get on top of them and are always there, being very helpful and giving us excellent advice. Secondly, individual members of the committee—and I am sorry that, at the last minute, the noble Lord, Lord Armstrong, was unable to be with us—have a wealth of experience and knowledge.

I have been a Front-Bench spokesman for the Liberal Democrats for most of my parliamentary career, here and in another place, so the majority of my time has been spent on primary legislation. However, to echo the comments of the noble Lord, Lord Jopling, it has been fascinating to look closely at how secondary legislation is scrutinised and dealt with. As a Front-Bencher, I rarely had much time for it, and in this House, where I am unable to pay a researcher to work for me full time, trying to keep up with the progress of secondary legislation has been difficult. Our committee is a good aid for people in this House.

The last Bill that I dealt with as a Front-Bencher was the Housing Act 2004, which was so thick that I decided that I did not want to be a Front-Bencher any more. The trouble with local government and housing is that those concerned have to fight to get time in Parliament therefore the Bills become very thick. As with many Bills, the detail of large parts of secondary legislation was not available during the passage of the Bill, which meant that, after the Act was passed in 2004, a large number of statutory instruments came forward. They were still coming forward when I arrived on the committee in 2006, which was quite helpful because at least I knew about them already. We have discussed the required processes and the importance of consultation, which was addressed by the noble Lord, Lord Jopling, and the noble Viscount, Lord Colville of Culross, who explained how we should try to be better at it. However, what I described illustrates our passion as a Parliament for long, complicated legislation.

I have not clocked up 42 years like the noble Lord, Lord Jopling. I discovered yesterday that the noble Viscount has clocked up 52 years. I have done only 13 years across the two Houses, but in that time I have seen huge growth in the amount of legislation. In this Session’s Queen’s Speech we have the 11th education Bill, the 12th health and social care Bill, the 8th terrorism Bill and the 24th criminal justice Bill since Labour came into Government in 1997. What is more,

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52 sections and five schedules of the Criminal Justice Act 2003 have still not been brought into force, two sections were repealed without having been brought into force and a further three were brought into force and then repealed, so some of the comments made by the noble Lord, Lord Jopling, are borne out in my experience. Since 1997, 365 Acts have been passed and there have been 32,000 statutory instruments, so there has been no shortage of work for our committee, and there will be lots to come.

Our chairman, the noble Lord, Lord Filkin, referred to the Prime Minister wanting to do something about regulation, and we were all disappointed by the evidence from the Better Regulation Task Force to our committee. Despite its intentions, it did not seem to be taking this terribly seriously, so one of the things that I particularly support in our committee’s report is that we urge all government departments to do something about consolidation. We have heard graphic descriptions of the problems of trying to understand Bills that amend this, that and the other, going a long way back. Some departments do better than others. As the noble Lord, Lord Filkin, said, we have been very critical, but we try to praise people when they get it right. There is no doubt that our committee and the House of Lords play a vital role in scrutinising secondary legislation, as reflected in the comments of the noble Lord, Lord Norton of Louth.

When writing this speech I was reminded of the comments of the noble and learned Lord the Lord Chancellor last week, when he was talking to us about the future of the House. He said:

Every week there are jolly dedicated members on the Merits of Statutory Instruments Select Committee, I can tell you. The Lord Chancellor continued:

His words are very relevant to the debate tonight.

How we scrutinise legislation has been looked at recently not only by our own committee but also by the Joint Committee on Conventions. The noble Lord, Lord Norton of Louth, referred to that as well. He and other noble Lords pointed out that, although we often have debates on instruments and Ministers are required to reply—sometimes very constructively and at other times not quite so constructively—the House can reject a statutory instrument by Motion. It is not the usual practice; more often than not it is a non-fatal Motion. Even if we win a vote on a non-fatal Motion, the Government are completely at liberty to ignore what we have said. Sometimes they do take notice—I give praise where it is due.

The Joint Committee on Conventions addressed that matter and the noble Lord, Lord Norton of Louth, referred to it. The committee also obliquely referred to the fact that we are not allowed to amend statutory instruments here. The noble Viscount, Lord Colville of Culross, thought that we would grind to a

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halt if we tried to do that, but the matter was raised in the committee’s report and we should look at it again when considering Lords reform. I think that many of us would agree that, if the process is not working properly, we should use our powers more boldly. That came out in much of the evidence to the Joint Committee on Conventions. I remind the House that that committee has members from both Houses. That is very important.

I hope that this short debate will inform the House and a wider audience of the important and very useful role played by the Merits of Statutory Instruments Committee. As the noble Lord, Lord Forsyth, said, many people do not understand how secondary legislation operates. Every instrument we deal with affects individuals; the committee was very conscious of that in making its recommendations. We need to ensure that the laws are fair and effective and that those affected by them have the information they need to respond in the right way. One of our members explained graphically the terrible legal difficulties for people who do not understand that they might be committing a heinous crime and who must try to find their way through the legislation to discover what it is they have done.

The committee has been trying to find ways to get its reports circulated more widely. This week I rang the local government solicitor on Northumberland County Council, of which I am now a member. In our conversation it emerged that he reads our reports weekly. That was very encouraging. I am not surprised, because a great deal of what passes through our committee affects local government.

As we start this new Session, membership of the committee has changed slightly. I am very pleased to be able to welcome my noble friend Lady Thomas of Winchester. I am sure noble Lords will agree with me that she has added greatly to our debate. I am sure that she will be an enthusiastic member of the committee. There will clearly be plenty of business this Session. As we say on page 3 of our most recent report about the work of the previous Session,

I am sure we will continue to do so under the very good leadership of our chairman, the noble Lord, Lord Filkin.

Tonight we have seen around the Chamber cross-party consensus about where we go on this. I sincerely hope that we will get a satisfactory response from the Government and that they will look again at our recommendations. There has been huge agreement around the Chamber tonight.

8.36 pm

Lord Henley: My Lords, many years ago I was asked by the then government Chief Whip, my noble friend Lord Denham, to serve on the Joint Committee on Statutory Instruments. Being a dutiful and relatively new Member of this House of course I agreed, only to find that on that committee there was no discussion of the merits of the statutory instruments, but it was merely a question of looking at their vires. It was all what one might call pretty dry

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stuff. I think that it was the noble Lord, Lord Filkin, who referred to his own committee as being something of a gulag. Well, the Joint Committee on Statutory Instruments in those days was positively the outer Siberia of committees. I discovered that even more, like my noble friend Lord Jopling, many years later when I was Chief Whip and trying to find people to go on to that committee. One really had to approach them at a very early stage in their career in this House if they were to be persuaded to serve on it.

I remember one or two keen enthusiasts. The noble Baroness, Lady Thomas of Winchester, will remember the late Lord Airedale, who was certainly a very enthusiastic member of that committee, and probably kept it going. But its particular problem was that it could not discuss the merits of the statutory instruments put before us. That is why I welcome the fact that this committee was created some years ago. I am very grateful for the explanation we have had from its chairman, the noble Lord, Lord Filkin, about exactly what it does and how it goes about it.

I would like from these Benches to pay our tribute to the work of that committee. One particular innovation it has brought in in the way committees are run is that regular e-mails are sent out. I do not know whether they are sent to all Members of the House or only to those who request them—I must have requested them at some stage because I receive them—but to receive e-mails highlighting the statutory instruments to which the committee wants to draw the House’s attention is very useful, and leads one to go down to get hold of the statutory instrument if it is relevant to one’s sphere of work in the House.

I remember, when first in opposition, sharing an office with my late friend Lord Mackay of Ardbrecknish, finding as one went through the Order Paper—this was especially true when we returned after the long Summer Recess—that a vast number of statutory instruments were laid. We had no idea where to start or how to set about doing the proper job that anyone in opposition or, for that matter, anyone in this House other than those on the government Front Bench, should do—the proper job of scrutinising what comes before us—because of the sheer size and number of instruments brought before the House.

That brings me to my first point, which is that, as we all know, there is far too much delegated, secondary legislation. It is easy to say that; we have all said it; and those of us who have been in government, like my noble friends Lord Forsyth and Lord Jopling, have probably been as guilty as anyone else in putting it about. But it is still worth reminding the Government again, again and again that they are the guilty ones and must do something to reduce it.

To give just one example from the primary legislation that we were debating only this afternoon, we have a Bill, the Tribunals, Courts and Enforcement Bill. It is a thick, heavy, large Bill. It has 290 pages; it has 140 clauses; it has 23 schedules. But it still manages rightly to be described by my noble friend Lord Kingsland at Second Reading, only a few hours ago, as a skeleton Bill. That was not denied by the

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Government. Far too much in it is left to secondary legislation. I thought that he was probably exaggerating, so I opened it at random. First, I opened page 130 in Schedule 5. I counted up to 12 occurrences of:

It may be quite appropriate that rules should be made, but it is jolly difficult to consider all these matters in advance of seeing the rules. Those may be matters that should quite rightly be left to secondary legislation.

Turning to page 86 of the Bill—Clauses 103 and 104—in a short space, without trying to, I found “Regulations may make” or “Regulations under this section” four times. No doubt if we went through the rest of the Bill, we would find even more and I am sure that someone fairly assiduous will, by the time that the Bill goes into Committee, have counted the number of order-making powers that the Government are giving themselves and can then offer some advice to the Merits of Statutory Instruments Committee on how much extra work that Bill will provide in due course.

I hope that the Government realise that not only is that unsatisfactory in that it makes it harder for end-users to know what will come out, but it makes it very difficult to discuss the primary legislation—the Bill itself—when all we have is a skeleton on which will be tacked all the orders in due course. I hope that the Government will take some note of that.

I welcome the fact that the Government responded to the 29th report of the Merits of Statutory Instruments Committee. I must say that I found it difficult to find that response. In fact, when I went to the Printed Paper Office, I was assured that it did not exist. I was given the response to another report. So, as I always do, I went to the Library, which is rather good at these things, and someone dug out the response for me. There it was in some other volume, where it was supposed to be.

I had a sneaking suspicion that the Government would not mind if their response was not noticed that much. It has not received what one would call a wholehearted welcome. The words that I seem to remember being used by the noble Lord, Lord Filkin, were that the committee's response was “somewhat lukewarm”. I think that another expression that he used was that the committee was “not exactly overwhelmed” by the government response. Perhaps I misunderstood him; but listening to the reaction of other noble Lords who have spoken in the debate, his words might have been an understatement. The noble Lord made, if I may say so, an excellent speech but one that was moderate, calm and considered. He was very careful, as he put it, not to name names. I was grateful that my noble friend Lord Jopling took it on himself to name names, and mentioned what we might call some of the guilty departments. It is quite right that they should be named, and one hopes that will have some effect.

I have been only the second non-member of the committee to speak in this debate, and I am grateful to have been joined by my noble friend Lord Forsyth,

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who brings a great deal of experience to these matters. I think both of us would hope that many other Members of the House who are not members of the committee will take part in any future debate, or even if not taking part in the debate will listen to it. It is rather sad that it is happening late at night, and that there are very few Members here. We would like the Government to be held properly to account, and to hear their response in due course.

My noble friend stressed, and the noble Baroness, Lady Maddock, echoed, the great importance of the report. Others have underlined the weakness of the Government’s response. I simply hope that we can now have a slightly stronger response from the Minister on behalf of the Government, and an assurance from him that, even after his response, the Government will continue to take notice of the report and to push all departments—in particular the guilty departments named by my noble friend Lord Jopling—to get their act together and try to ensure that there is proper consultation on statutory instruments, and that statutory instruments are properly drafted, properly brought before the House, and can be used by everyone, whether or not they are called stakeholders, in due course.

8.46 pm

Lord Bassam of Brighton: My Lords, I thank my noble friend Lord Filkin for introducing his report, and for the very constructive and challenging way in which he did so. I also thank all other members of the committee who have attended the debate this evening and who have made their telling contributions. It might surprise some Members of your Lordships’ House to know that I have enjoyed listening to the comments and commentary on the content of the report, and have found the debate very valuable.

I reassure my noble friend Lord Filkin that I, and other members of the Government, do not see the Merits of Statutory Instruments Committee as a gulag. That denial is very important and we should have it on the record because the committee is certainly not a gulag. The Merits Committee, with the Delegated Powers and Regulatory Reform Committee, does first-rate work. Indeed, it does exactly what my noble friend says it should do: it considers, and makes telling points about, whether key statutory instruments achieve the policy objectives behind them—something that is very important to the development and implementation of policy.

I should also tell your Lordships’ House that I struggled this morning when I was explaining to my 16 year-old daughter Lauren, who is a politics student, what the content of the debate might be. She was not entirely convinced that my time would be well spent, but I intend to return home this evening and advise her that she was quite wrong and that an urgent study of Hansard will demonstrate that to her satisfaction.

To the debate. It is worth noting that, since the committee published its report and following a machinery of government change, ministerial responsibility for the management of the statutory

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instruments procedures recently transferred to the Department for Constitutional Affairs as a consequence of the merger of Her Majesty’s Stationery Office, the Office of Public Sector Information and the National Archives. I suppose I should take some joy in that, because it means that I may no longer have to respond to these points. Having heard the quality of the debate, however, I should add that that would be a disappointment for me. As a result of this, many of the issues discussed in the committee’s report will henceforth be matters for the DCA, as I said.


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