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In New Zealand there are two advisory committees in place to try to achieve some of this betterment. Sir Geoffrey has admitted that he does not think that they are sufficient and has suggested that they should be “melded”, to use his word, into one.

Another example that we should look at is that of the Council of State in the Netherlands, which is a body considered to be one of the high councils of state, appointed by the Government. It is a relatively small body but it has a very large staff; it provides a very useful service, considering whether the problem being addressed is one that could or should be solved by legislation. It asks whether a Bill is necessary and whether its necessity has been demonstrated, whether the proposed legislation will be effective and the proposed solution efficient and balanced as regards costs and benefits. It asks, too, whether it will be possible to apply and enforce the Bill or to monitor its effects. This comes at a time when the future of this Chamber is under consideration and its very important revising role is to some extent at risk. Let no one imagine that a representative body of elected Peers will perform its revising role in anything like the same manner as the present House of Lords does, because it—like the House of Commons—will be looking for the political headlines. Should we consider a third institution as part of Parliament? I believe that we should.

Sir Geoffrey Palmer, in looking at the experience of New Zealand’s advisory council said that the trouble with it was that it was not at the heart of the legislative process. I think that that is what we need; there should be a council of state of people appointed who reflect the kind of expertise that there is in this Chamber—not only lawyers, as in New Zealand. The body would have pre-legislative and possibly post-legislative scrutiny role. The elected second Chamber could then act as it will, as a political Chamber, holding the Government to account and ending—even blocking—legislation, without the close, detailed work on legislation being sacrificed by those political considerations. I saw it reported this week that 450 Members would be elected to an upper House. That may be utter nonsense, but you would need something like that to bring together the expertise that you have. It is inconceivable that we would have an elected Parliament of 1,000 Members.

I commend that in outline to the Lord Chancellor as a field of inquiry.

5.38 pm

Baroness Neville-Jones: I, too, thank the noble Lord, Lord Butler, for bringing this matter to the attention of your Lordships. Like him, I have had the privilege to take part in the Better Government Initiative, where this issue, which affects the relationship between the Executive and Parliament, was extensively discussed. It is important because that relationship in turn affects the attitude of the public to their institutions and the extent to which they think that representative democracy serves their needs.



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There have been a number of reviews and reports on this subject produced by both governmental and non-governmental bodies over the years. It is a reflection of the intrinsic importance of the issue being discussed, even if it does not immediately grab widespread attention. It is regarded as something with which the experts are inclined to deal, but we are not necessarily wrong in being interested. The quantity of law is going up, which I do not regard as particularly beneficial, but the quality of law is not keeping pace. As my noble and learned friend Lord Howe—this bird of plumage next door to me—said, the underlying policy can be affected by that and a situation could arise in which the Executive can pay the price of poor law being passed, because poor law is harder to implement in good policy.

Let me give some practical illustrations of the kind of difficulties we can get into. The number of Bills published in draft form has fallen since 2004. Only seven out of the 30 Bills in this Session were so presented. I hope that this debate will revitalise the Government’s commitment to enforcing their own proposals, for which I commend them. It is important to live up to your standards and not just rest on fine words.

There has been a thorough exploration of how pre-legislative scrutiny can be expanded and clear proposals have been made. The noble Lord, Lord Butler, rightly, has again put forward guidelines of a kind which the Government should take seriously. But the 2003 standard text on parliamentary procedure, Griffith and Ryle on Parliament, states that the development of pre-legislative scrutiny,

We can say what we like, but it crucially depends upon the Government taking seriously their role in relation to Parliament. The Government’s enthusiasm, or lack of it, for implementing these proposals will be key to them becoming standard.

You can see the price paid when this does not happen. Look, for instance, at the Government’s legislative timetable for this Session and you realise how badly prepared Bills can damage the Government’s programme. In 2004, the Pensions Bill took nine months to proceed through both Houses. In the process it had 78 new clauses inserted and 450 government amendments were made to it. As the shadow pensions Minister of the time commented in another place,

I am sure one could say the same thing about other legislation. Another example with which we are living now is the Criminal Justice and Immigration Bill, which has limped through eight days in Committee and has just started Report. It has had countless clauses and whole parts added and removed at all stages. The Government have admitted that many of their amendments are to correct flaws resulting from lack of consultation. It is time that we learnt some of the lessons.



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It is a remarkable fact, for example, that the provisions inserted to place the Commissioner for Prison Complaints on to a statutory footing were so ill thought through that even the commissioner publicly opposed them while supporting the intention that lay behind them. That must be a waste of time.

The properly managed resources and expertise of the private and charity sectors form an important part of the consultation process. We all recognise that these days the charity sector or the voluntary sector—the Government call it the third sector but I prefer to call it the voluntary sector—plays an increasingly important part in our public life. How is it brought in? How are its views heard? One of the important ways in which that can be done is through the process of pre-legislative consultation. If the Government are able to develop and implement rather more thoroughly their own guidelines in future, that would be a very good thing.

I contrast with that the benefits of pre-legislative consultation. I take as an example the Human Fertilisation and Embryology Bill, which deals with enormously controversial issues, as we now see in another place. However, the quality of the debate in this House has been widely commented on and was very great. One reason why it was so good was that the Bill had been through a process of pre-legislative consultation, so the issues had been identified and clarified to a greater extent. The quality of the debate here and of the service that this House was able to give to the legislative process was accordingly greatly enhanced. It is interesting that the Bill came to public notice and got picked up by the media only when it reached the Commons, but I have no doubt that the other place will benefit greatly from the work that we were able to do in this House on the basis of pre-legislative consultation. The case is made for greater effort and attention being given to that stage of the process.

A previous speaker rightly said that, even if it is very careful and diligent in its scrutiny of Bills, this House or a future House cannot compensate for defects that could be remedied in other ways. Bad-quality legislation causes enormous difficulties for those trying to implement and enforce it. The noble Lord, Lord Butler, set out some steps that could be taken to improve all this and they seem to me to be good guidelines for this Government and future Governments. It would be helpful if the Minister could say why the Government have not published more Bills in draft and whether she feels that they will be able to remedy the situation in future. It would be good to hear that the Government’s intentions in this area will be reflected in their future conduct.

5.47 pm

Lord Jenkin of Roding: I am extremely grateful because, although this is not the gap, the Minister has invited me to speak. As one who served on the Joint Committee that examined the draft Human Tissue and Embryos Bill, I have come to the conclusion that pre-legislative scrutiny should be an essential part of every complex Bill. As I said on the Floor of the House, it does not replace the line-by-line, clause-by-clause

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examination by the House as a whole but, as my noble friend rightly said, we were able to deal with a vastly better Bill than the one that was introduced to the Joint Committee.

5.48 pm

The Lord President of the Council (Baroness Ashton of Upholland): I am grateful to the noble Lord and agree with what he said. I, too, pay tribute to the noble Lord, Lord Butler, who was kind enough to give me an indication of the issues that he wished to discuss, both in the context of the work that he and others have been doing and also specifically for today. I thank all noble Lords who have contributed and agree that this subject is worthy of greater discussion. It may feel a little introspective at times but it is very important. As my noble friend Lord Richard said, as Leader of the House I cannot possibly commit to anything in terms of time, but there may be many opportunities where we can do more on this, and I would welcome that.

The noble Lord, Lord Butler, began extremely well in describing what The Governance of Britain was trying to do to redress the balance between government and Parliament and with regard to accountability to Parliament. That is precisely where my right honourable friend the Prime Minister was seeking to take this debate. I think the noble Lord said that it is good for governance and for the people of this country and therefore it is good for the Government. I endorse that. We achieve that by anything that we do that ensures that Parliament and accountability are put in a proper framework—a better framework, perhaps.

I also agree that there is more to be done—this is an ongoing process. Noble Lords have taken a slightly different view from that of my noble friend Lord Lipsey about how Parliament has progressed, although I saw noble Lords nodding when my noble friend talked about what is happening in another place—for example, Public Bill Committees receiving evidence—but we should be ever watchful because there is more to be done.

I love the idea that the Civil Service get very excited about the cockpit of Parliament. That has cheered me up no end.

On the specific point about passing Bills before elections, a lot of work goes on with what we lovingly describe as the “usual channels”. These are not deeply controversial Bills. Some Bills that I would have expected to have gone through that process—for example, the Charities Bill—did not as there were issues to be resolved. So it is not quite as simple as was perhaps suggested.

I will not comment on the length of Bills as I do not have the statistics, so do not trip me up on that. On the number of Bills, in 1979 a new eager Government came in and there were 251 Bills between 1979 and 1983. In 1997 to 2001, there were 159 and in the last full Session there were 136. So, in theory, the number of Bills is dropping. I take the point, which I know somebody will leap up and say if I do not—the noble Lord, Lord Norton, is nodding at me—about the length of Bills. None the less, it is important that we get the perspective on what the Government seek to do.



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Noble Lords have talked a lot about the importance of recognising the Bill as part of a package. For a Minister in a different department, it is often difficult to explain to other organisations—this is particularly true of the voluntary and charitable sector in many but not all cases—that a Bill is merely a part of what one is offering in terms of policy for government. People tend to focus on the Bill as being the way we take forward a policy. But noble Lords are completely right that the package is important. One of the things that I feel quite strongly about is that as parliamentarians and politicians in government we need to get better at explaining where a Bill fits into a package that is on offer to people, because it is often only a narrow part of what is there.

My noble friend Lord Richard supported the noble Lord, Lord Butler, as did the noble Baroness, Lady Neville-Jones, and other noble Lords on the idea of a resolution. The noble Lord, Lord Maclennan of Rogart, said that it was a simple proposal that did not go far enough. My difficulty with it is that I cannot see—but this may be my fault—how it could be enforced. I wonder whether one would not fall into the trap of looking at how you would assess whether it is implemented, because it could in a sense be a political judgment. Whether we have implemented something depends on where you sit in the grand scheme of things, or it can on occasion. I do not accuse the noble Lord, Lord Butler, of that, but I will accuse my colleagues in the political parties of looking at what happens post-legislation in the wider context of thinking through what has happened. Those are my reservations about the idea of a resolution as a solution. I thoroughly endorse the principle behind what the noble Lord seeks to do in terms of trying keep a watch on ensuring that we have better legislation. I shall talk a little about that in a moment.

The noble and learned Lord, Lord Howe of Aberavon, who is looking stunning, had a fabulous pamphlet with a very attractive young man on the front of it. I was wondering who he was. I want to say something about the underlying proposals. Consultation is a very important part of what government should and, I believe, do—certainly in my experience—to try to get to the point of working out what is the package and what within it should be the essence of the law that needs to be changed or added to, if that is what has to be done. I agree with noble Lords about the value and importance of pre-legislative scrutiny. The noble Lord, Lord Jenkin, in his tiny intervention, and the noble Baroness, Lady Neville-Jones, described the particular role of the committee that was looking at what became the Human Embryology and Fertilisation Bill. I agree that the work done on that committee and in your Lordships’ House will be of immense importance to another place as it begins its discussions and deliberations on it. The noble Lord, Lord Norton, spent a bit of time focusing on that.

The noble Baroness, Lady Neville-Jones, and other noble Lords asked about the numbers of Bills that have pre-legislative scrutiny and the reasons why we do not always do that. There are many. One reason, which noble Lords would accept, is that there is not time. With proposals that are considered urgent—Northern Rock is perhaps the latest example, but there

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are others—it is not possible to do so. We encourage departments to publish draft Bills when we do not get a successful bid for legislative time. Indeed, the courts and tribunals Bill, which I consider to be one of my greater triumphs, was published ready for a programme in which it did not have a place. I relied on the fact that not all Bills are ready at the right moment, and indeed I was right. Noble Lords may recall it was the very first Bill into your Lordships’ House in the previous Session. It was a good example and was held up as such to departments of how they can get the legislation into either House by having it ready to roll, as it were.

The number of Bills that we expect to publish in draft this Session is seven. It is not, as the noble Lord, Lord Norton, said, the three-to-one ratio that we had in 2003-04, but at least it is heading back in the right direction. We encourage departments to try to do it as far as possible; I cannot give one explanation that would cover why Bills are or are not presented in that way. I agree particularly with what the noble Lord, Lord Jenkin, said, when he used the phrase “complex Bill”. The examples that we have seen, particularly this latest example of the human embryology Bill, demonstrate the value of having that pre-legislative scrutiny on something that is complex to understand but needs to be understood for people to be able to reach the conclusions that they need to reach, whatever they may be, rather than be bombarded—as can happen with issues such as this—by external media or others, who wish to put a particular point of view that may or may not be one that noble Lords would agree with. So we are pushing to ensure that we do as many Bills as possible in draft—and I shall use the fact that your Lordships have pushed me even further on this to take that back as a business manager and say that we really need to do more. That way, as noble Lords have said, we end up with a better Bill that can potentially go through more smoothly—although I flag up the case of the Legal Services Bill. It had pre-legislative scrutiny, but that did not help me one bit when it came to putting it through your Lordships' House.

At the other end of the spectrum, on post-legislative scrutiny, the noble Lord, Lord Norton, made a very important point about making sure that we look at what happens. Noble Lords will have seen proposals that have been published for memorandums to be produced between three and five years post the legislation and for the Select Committees in either House to have the opportunity to determine which they wish to scrutinise, for obvious reasons. I hope that those will go some way to ensuring that we do this, as I have always believed that it is very important to look back and to see what happened as a consequence, not least because I am sure that over the history of legislation there are occasions when consequences that have come about are not necessarily those intended. It is also good to go back and to see what has been successful and how it can be built on. I take the point that occasionally that means not amending but going back to the beginning and saying that it is better if we look at that more effectively.

The noble and learned Lord, Lord Howe of Aberavon, said that we should remember what a “reforming Government” means and not just change things for change’s sake. I agree with that—but I am very mindful,

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too, that circumstances change all the time. We live in a world that I would argue becomes faster and faster in terms of the changes that take place, which means that one has to be mindful of the law that follows. It does not mean change for change’s sake. But there is a balance to be struck there.

The noble Lord, Lord Norton, talked about the impact assessments. There is a whole history of better regulation that goes back to the previous Government, the Deregulation Task Force and so on. I completely accept that the previous regulatory impact assessment process had its faults; we reviewed it and the process that we have put in its place is a much better one. It answers some of the points that have been raised, such as what the objectives of the policy are, why we need to intervene, what options were considered and when the benefits will be reviewed to establish what actually happened, as well as what the costs and benefits were, doing the cost-benefit analysis to underpin it. That will take us in the direction that noble Lords are looking for, not using it as an excuse to justify but rather to confirm that the process is proper and the outcome is to be desired—in other words, that it is the best way in which to achieve what is proposed.

I agree with my noble friend Lord Lipsey that the programme that is now in operation, particularly in another place, is better. I take his point about guff

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and White Papers, although I shall not comment further on that. The noble Lord, Lord Maclennan of Rogart, has addressed his point to me before, with regard to his ideas. The problem is that it is worthy of a debate in itself. Sir Geoffrey Palmer’s words are very important; we should not make legislation too easily, we need to assess whether it is successful and so on. I do not accept the premise that revision cannot be done by an elected Chamber, but I take the point of ensuring that it has the right role and responsibilities to do it effectively.

As the noble Baroness, Lady Neville-Jones, says, we are trying to move to the point when we do not have poor law. I agree that if you have poor law, it is much harder to understand, never mind implement.

I cannot comment on the Pensions Bill. Sometimes we have lots of amendments because, in your Lordships' House for example, lots of good ideas come forward, so I cannot always say that amendments are a negative thing—quite the opposite. My experience is that we get far better amendments when we sit down and work out together what ought to happen. Sometimes government amendments are noble Lords’ amendments transferred. The business managers are important players in this and do their very best to ensure that the legislative programme runs smoothly.

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