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We all know that there have been approaching 70 Home Office Bills in the past 10 years. As the noble and learned Lord, Lord Howe of Aberavon, has said, if the people could be given a voice, the cry which would be most likely to go up would be:
I have been working with an all-party group, the Better Government Initiative, preparing proposals in this area for Parliament and government to consider. The proposals are wide-ranging and interlinked, and can be found at the Better Government Initiative website, which is www.bettergovernmentinitiative.co.uk. The proposal to which I want to draw particular attention is the suggestion that the Government commit to accompanying their policy and legislative proposals with a public document that certifies that they have gone through the steps of: exploring why action is desirable and, in the case of legislation, operationally necessary; analysing the costs and benefits and defining the objectives in terms suitable for post-legislative scouting; setting out the reasons for the preferred action and showing its practicability; and carrying out consultation with those principally affected. I think that we would all agree that all those steps are good practice. In Germany, I understand, legislation requires the Government to satisfy these tests, but I do not propose that they should be added to the constitutional renewal Bill; for one thing, it would be yet more legislation.
A parliamentary resolution would be sufficient to have an effect. It would be similar to that which the Government are proposing in order to commit the
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Above all, such a move, like other proposals in the Governance of Britain White Paper, would be in the interests of good governance and the public, which is the point of government itself. I urge the Government to consider this move as part of their proposals for improving government, and I urge colleagues in both Houses of Parliament to press them to do so.
5.10 pm
Lord Howe of Aberavon: It is a pleasure and a privilege to follow the noble Lord in this debate. I underwrite and agree with everything he has said and I share his respect for the relationship between government and the Civil Service. I have had the privilege of working alongside him for longer than I care to remember—certainly from my first Budget of nearly 20 years ago. As I say, I underwrite his search for improved preparation in legislative proposals, starting with his emphasis on the need to improve the quality of law in that sense. I also underline his subsidiary point of the need to consider not only the quality of the law that is introduced but also the quantity. The sheer volume under all Governments has been, and continues to be, excessive.
A long time ago a young man, here depicted, produced a pamphlet entitled Too Much Law? That was in 1977, when I committed the incoming Conservative Government to make fewer laws and to make laws fewer. We did not do too well at it but my commitment remains unchanged.
However, it is not only the quality or quantity of law that I am concerned about. I underline the interest of the noble Lord, Lord Butler, in this matter; in regard to the quality and quantity of the underlying policy. The quality of law, the draftmanship and so on are important and need to be improved, but it is the extent to which the underlying policy proposals have been thought through, examined and scrutinised by Parliament ahead of their introduction that is the main concern.
That is why I was slightly less than polite when we had the Statement this week on the Government’s proposed constitutional consolidation or reform. The sheer volume of that alarmed me, as did the prospect of a torrent of what could so easily be half-baked upheaval. In an example I gave at the time, I said that the abolition of the Lord Chancellor’s office involved 150 subsidiary provisions in the legislation. I apologise for having misled the House: it was not 150 but 250. That is a measure of the scale of change foreshadowed in that Bill.
It is important not to have too much faith in too much law. Indeed, I hesitate to enthuse over the formula proposed by the noble Lord, Lord Butler, because I am wary of the belief that by merely passing a code of that kind we might persuade ourselves that we have solved the problem. I have often repeated my proposition
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- “there are three great domains of human conduct. The first is where our actions are limited or forbidden by law. Then there is the domain of free personal choice. But between these two is a third domain, that in which there is neither law nor unfettered freedom ... where people do right although there is no one and nothing to make them do right but themselves.”
Judge Learned Hand, a notable American judge, said:
“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts”.
It is easy to believe that by having established a code one has achieved what one wants to achieve, but it is the way in which one responds to the spirit of that and the way in which one conditions one’s approach to policy change that is so important. We need, therefore, not much less law but, in my judgment, much less change. The temptation to say, “We are a reforming Government”—there is a temptation for the candidates in the American election now to say, “We stand for change”—implies that one should be living in a period of constant institutional upheaval. We have seen a great deal of that under the present Government—not uniquely—in the whole of the licensing legislation, the whole of the gaming legislation and the whole of electoral law; and, as the noble Lord, Lord Butler, pointed out, the whole of criminal justice has been changed so much and so decisively that a great deal of wisdom has been cast to one side. One very striking example of that arrived helpfully in my mail this morning. It is the document produced by the demised Commission for Patient and Public Involvement in Health. Its document started by saying:
“The Commission may be unique as a public body in that only months after it became operational it was informed that following a review of ‘arms-length’ bodies—it would be quickly abolished. This change in Government strategy ... was followed by five Government postponements of the actual closure date ... Over the five year period there was little clarity of direction and Government leadership”,
and so on. That is one example of upheaval before one round of constitutional change had even set.
My concern, therefore—I come to what the noble Lord, Lord Butler, said—is that we need not just fuller consideration of policy and pre-legislative consideration, but fuller, deeper and more patient consideration in advance of policy by Parliament, ahead of the production of a White Paper or a Green Paper. There is a huge mount of talent in both Houses of Parliament. Governments should have greater confidence in the ability to consult with that talent and to slow down the pace of change and upheaval. As the noble Lord said, when I go into any boardroom, committee room or staff room as a politician and ask, “What would you like us to do?”, the response is invariably, “For God’s sake, leave us alone”. I do not mean do nothing, but be thoughtful and careful, and be ready to consult with Parliament at a measured pace before one proceeds, with or without legislation.
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5.16 pm
Lord Richard: This is, indeed, a timely debate for all the reasons the noble Lord, Lord Butler, gave. I congratulate him on his choice of subject and for raising it this afternoon.
It is always a little daunting to follow the noble and learned Lord, Lord Howe, with his great experience in all sorts of fields; it is even more daunting when he honours us by appearing in front of us so splendidly arrayed.
Recently, there has been increasing concern about how legislative proposals are put to Parliament and, flowing from that, the relationship between Parliament and the Executive. I share those concerns. There are two stages: first, how is policy formulated; and, secondly, how is it enacted when it gets to the parliamentary stage? I am concerned that so much legislation comes from the House of Commons in a form that has not been sufficiently scrutinised and, indeed, in some cases has not been scrutinised at all. The illustration given by the noble Lord, Lord Butler, of the Finance Act is certainly not unique. The result is that the quality of legislation overall produced by Parliament depends increasingly on the efforts made by the second Chamber to remedy the faults of the first. That is no way to legislate properly. It throws on the Government a greater obligation to produce legislation in the first instance which is comprehensive, precise and thorough. Unfortunately, as we all know, that is not always the case.
However, if there is a perceived need for reform, how do we best go about it? Merely to complain that the House of Commons does not do its job properly is no real answer. The issue raises fundamental questions about the relationship between Parliament and the Executive.
For some years now, the power of the Executive has increased and the consequent power of Parliament has declined. Furthermore, within the Executive, the power of the Prime Minister and the diminution of power by the Cabinet has produced a constitutional distortion. It surely should be basic that in any major decision the Cabinet should be consulted on the basis of proper Cabinet papers and proper discussion in Cabinet itself. While I realise that that may be time-consuming, even frustrating, for Prime Ministers, cabinet government is after all supposed to be the fundamental principle of our parliamentary constitution. Fortunately, I understand that the present Prime Minister is infinitely more assiduous in implementing this principle than perhaps was his predecessor.
Even if cabinet government were to be properly restored, as I think it is now on the way to being, there remains the issue of what the relationship between Parliament and the Executive should be. I share the views of the noble Lord, Lord Butler, and the noble and learned Lord, Lord Howe, on the desirability of a parliamentary resolution. That would seem to be an admirable way of establishing the scope and nature of the relationship between the Executive and Parliament.
Reading the text of a possible resolution, there is very little in it with which Ministers could disagree. On the other hand, it is easy to pay lip service to the
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“Ministers have a duty to Parliament to ensure that their policy and legislative proposals to Parliament have been thoroughly prepared”.
That is unarguable. Everybody could accept it because it is, of course, true, but it would be very difficult to implement. It would require a heightened degree of political commitment to ensure that Parliament was placed in a realistic position to consider that legislation properly. The terms of a possible resolution would also have to include the main elements of the thorough preparation that would be necessary for legislative proposals to be properly considered. They are again basic and difficult to disagree with but, if implemented, they would undoubtedly have a profound effect on the quality of legislation produced by Parliament.
I shall illustrate that by taking two of the possibilities: First,
“Defining the problem and explaining why action is desirable or, in the case of legislation, why it is operationally necessary”.
That is again unarguable and everyone would accept it, but if it were implemented it would help Parliament enormously, and at present it does not happen. Secondly,
I have made the point twice already and will not repeat it. Indeed, one is sometimes driven back to the somewhat mournful conclusion that what is required more than anything else is a decision by the Executive that relations between them and Parliament have to improve. Once that is accepted, a great deal becomes obvious and possible that is at present opaque.
I am pleased that my noble friend the Leader of the House will respond to this debate, but I urge her and the Government to be open and generous in their response. A great deal depends on it, but the issue must not be left here. A one-hour debate in the Moses Room late on a Thursday afternoon is no substitute for proper consideration by the House as a whole. Indeed, if ever there was a matter that should be considered by the House as a whole, this is it. While I understand, of course, that my noble friend will not be able to commit herself to the expenditure of parliamentary time—no Leader of the House ever can, although he or she is often asked—nevertheless an indication that the Government would like the issue to be further discussed would be very helpful.
5.23 pm
Lord Norton of Louth: I, too, congratulate the noble Lord, Lord Butler of Brockwell, on raising this important Question. In terms of the preparation of legislative proposals, the time may be coming when we need to review fundamentally the way in which we draw up legislation in this country. Despite improvements in recent years, the basic nature of the process lends itself to confusion, certainly to the public and even to Members of both Houses. However, in the limited time available, I wish to focus on the process as it exists. Out of the several points I would have liked to make, let me focus on two. They stem from the premise
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My first point first relates to pre-legislative scrutiny. The Constitution Committee in its 2004 report on the legislative process—I chaired the committee—stressed the value of pre-legislative scrutiny. The Government accepted the value of such scrutiny and have continued to do so. However, there has been something of a regression. In 2003, the Deputy Leader of the House of Commons, Phil Woolas, said that it was the Government's intention to increase the amount of legislation that was subject to pre-legislative scrutiny and in a Westminster Hall debate the following year he stated that,
- “a Bill should be published in draft form unless there are good reasons for not doing so”.—[Official Report, Commons, 24/2/04; col. 19WH.]
However, that particular Session—2003-04—proved to be the high point as 12 Bills were published in draft. As the more recent report of the Constitution Committee on pre-legislative scrutiny in the 2006-07 Session has shown, the number has declined since then. In the 2003-04 Session, the ratio of draft Bills to Government Bills was 1:3. In 2005-06 it was 1:15, and in 2006-07 it was 1:9.
Why are more Bills not published in draft? In response to the committee’s latest report, the Leader of the House in a letter of 20 March, somewhat echoing the Government’s response to the Liaison Committee in the other place, said:
“The main practical obstacle remains the need to have the freedom to bring forward much legislation on a timetable which does not allow the publication of the proposed legislation in draft form”.
Can the noble Baroness explain exactly what that means? I can understand the Government not wishing to tie their hands by committing themselves to publishing every Bill in draft. The Constitution Committee recognised that that was not always possible. However, it does not really explain why more Bills are not published in draft. If Bills are introduced on a staggered basis and subjected to pre-legislative scrutiny, then they are eligible for carry-over. The so-called “practical obstacle” to more Bills being published in draft is not really an obstacle at all. Following the point made by the noble Lord, Lord Richard, I suspect that the obstacle is the culture in some departments or the attitude of certain Ministers. It may be that the Leaders of both Houses are keen on pre-legislative scrutiny but that they face resistance from particular departments—hence the noble Baroness’s expression of disappointment in her letter at the number of Bills published in draft.
Is it not time that the Government embraced the recommendation of the Constitution Committee and, in effect, the words of Phil Woolas to ensure that every Bill is published in draft unless there is a compelling reason not to do so? If a Bill is not published in draft, can we ensure that in the Explanatory Notes there is a statement by the sponsoring Minister explaining why that has not been done? That, at least, will constitute a useful starting point.
My second point—some comments have already been made about this—concerns being clear about the objectives of a Bill and how its effectiveness can be
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However, on the preparation of legislation, the commitment to identify policy objectives and the criteria for review following enactment is to be welcomed. The crucial point, as I think the Minister will concur—I believe this is the point that the noble Lord, Lord Richard, was making—is to ensure that the Government’s good intentions are translated into practice. Here, I revert to the recent report of the Merits of Statutory Instruments Committee on The Management of Secondary Legislation: Follow-up. The key comment to which I wish to draw the Minister’s attention is in paragraph 35. Referring to failings in respect of establishing clear and realistic criteria in two particular cases, it stated:
“This is poor management and demonstrates a tendency by Departments to use IAs as a tool ‘to justify policy rather than a policy-making tool’”.
It is vital that this does not become a formulaic or ticking-the-box exercise. The good intention is there but it is essential to ensure that departmental cultures change if the setting of objectives and measurable outcomes are to be achieved.
The Government’s response—in effect, their stated good intentions—is a necessary but not sufficient condition for improving the preparation of legislation to Parliament. Again, I think that is the point that the noble Lord, Lord Richard, was making. There has to be the political will to deliver. That is the real challenge. I look forward to hearing how the Government intend to ensure that departments do deliver.
5.29 pm
Lord Lipsey: Good things often come in small packages and the quality of the debate this afternoon has amply justified the initiative of the noble Lord, Lord Butler, in calling it. As I reflect back on what has changed over the years, it seems to me that Parliament has, if anything, improved its act over legislation. Pre-legislative scrutiny is a vital and important breakthrough. In the Commons now, although not alas in your Lordships’ House, Public Bill Committees—what used to be the useless Standing Committees—take evidence before they go through a Bill, which is a tremendous step forward. In your Lordships’ House, we spend much more time on Bills and are far less willing to accept a ministerial “no” than used to be the case, with the result that Commons Ministers are finally waking up to the fact that they must take account of the views of this House if they are to get their legislation through. Therefore, it seems to me that Parliament is doing better than it did.
The problem arises with the raw material with which Parliament is asked to work in the form of legislative proposals that come before us. I am not a
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It would be wrong to claim that White Papers never contain unclarities—even in the 1970s, when I first came into Whitehall and government. However, you knew then that, if there was an unclarity in a White Paper, it was there for a reason. There may have been something that had to be disguised or papered over but which might later be resolved. However, when you read White Papers now, I am afraid you feel that a lot of the unclarities are there not for a reason but because someone could not be bothered or did not have the ability to write the right words to encapsulate what they were trying to say. Too often today, I pick up a new White Paper in a spirit of hope only to find that I have in my hands, once again, an exercise in vacuity, a triumph over reasoned argument of contentless guff. Parliament and the people deserve better.
5.32 pm
Lord Maclennan of Rogart: I, too, am grateful to the noble Lord, Lord Butler of Brockwell, for initiating this debate. Because it is a very short debate, I begin by accepting both his diagnosis and his principal recommendation to deal with what is wrong in our legislative process. In my opinion, his recommendation that Parliament should pass a resolution put before it by the Government has the merit of being a simple proposal that could be grasped without legislation and advanced quickly. Having said that, I do not think that it goes far enough. I would wish it to happen but I do not think that it goes nearly far enough to address a number of the issues that were alluded to very forcefully in the committee’s recommendations on the Better Government Initiative, to which the noble Lord belonged and which was chaired by Sir Christopher Foster.
This is not a problem unique to this parliamentary democracy. It is, I think, sensible to consider what is done in other countries and to consider whether at this time, when the Government are contemplating a considerable process of constitutional reform designed to strengthen Parliament, there are ideas and lessons to be learnt in other parliamentary jurisdictions. I draw the Government’s attention, in particular, to the experience in New Zealand. In a notable speech made about a year ago, Sir Geoffrey Palmer, former Prime Minister of New Zealand, concluded—he might have been talking about the United Kingdom—
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