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16 July 2008 : Column 1306

We all recognise that circumstances arise when it is necessary to enact legislation quickly, in an accelerated programme, where public necessity dictates, but, as the noble Lord, Lord Goodlad, said, that is certainly the exception. Most legislation is considered quite a long time in advance within government. It is not satisfactory to accept that there are administrative requirements that make it impossible to make pre-legislative scrutiny the norm. The flexibility of the ordering of Bills is entirely a matter for government. It is not beyond the bounds of Ministers to take a more ordered view of how they will proceed overall.

I would not wish to give the impression that the Government are not aware of these matters. It is highly desirable and commendable that they have published their legislative programmes in advance, as it gives at least some scope for public discussion before matters are set in concrete. There is growing awareness of the need to improve legislation, but, as the committee has drawn to the House's attention, these aspirational commitments have not been fully met by a follow-up, which would certainly be desirable.

It is a matter for consideration—perhaps particularly so at a time when the Government have published proposals for the reform of this House—whether pre-legislative deliberation and scrutiny should be thought of in that context. One of the notable functions of this House is that it is able, when it is given the opportunity, to do a very good job of such scrutiny. I think that that is widely recognised from a number of examples that I have personally witnessed, and am witnessing, of pre-legislative scrutiny. It is clear that this House is particularly well suited to this deliberative process.

It is not necessarily an adversarial process, but is about seeking to elicit information, test ideas and judge whether the draftsmanship is adequate to reflect the intentions behind the Bill. My judgment is that that is not necessarily a function that has to be carried out by an adversarial, elected House of Parliament. It could be conducted by an appointed council of state, and that could be ancillary to the role of an elected upper House. I throw that idea in the Minister’s direction without expecting him to respond in any kind of detail at all. None the less, I consider that some response is required from the Government which goes some way to indicating how they would propose to extend, and extend the effectiveness of, pre-legislative scrutiny.

There is some public concern about the quality of our legislation that is not connected with hostile partisan political attitudes but with the practitioners who have to interpret it, the professionals who have to rely on it and the general consumer of legislation. Those are the concerns and interests that can be best dealt with before the matter becomes part of the cut and thrust of debate in the Committee and Report stages.

7.30 pm

Lord Norton of Louth: My Lords, I congratulate my noble friend Lord Goodlad on raising this important question. The Constitution Committee’s report on pre-legislative scrutiny follows, as my noble friend mentioned, its report Parliament and the Legislative Process, which was published in 2004, when I was the chairman. It is important to put the present debate in the context of that report.



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The 2004 report looked at the legislative process holistically, addressing pre-legislative, legislative and post-legislative scrutiny. At that time, the most significant developments had occurred in respect of pre-legislative scrutiny, and it looked as if that would continue to be the case. The value of pre-legislative scrutiny was widely recognised. The experience of Bills committed for pre-legislative scrutiny demonstrated its utility for improving the quality of legislation.

The case for extending scrutiny was recognised not only by the committee but also by the Government. Paragraph 28 of the 2004 report states:

I reiterate this direct quote from Mr Woolas, who said that,

What has happened since? There has been a major improvement in the legislative process and there has been a significant development in respect of post-legislative scrutiny. The Constitution Committee, in its 2004 report, recommended that a Bill should, at some point during its passage, be subject to scrutiny by an evidence-taking committee. The other place has introduced Public Bill committees. This is a very welcome development, albeit one that has been little noticed outside the Palace of Westminster, and indeed has perhaps not been fully appreciated by this House. It is something that we should be examining.

In its 2004 report, the committee also recommended that Acts should normally be subject to post-legislative review by departments, with those reviews then submitted to departmental Select Committees in the other place. The Government referred the proposal to the Law Commission, which reported in October 2006; its report largely followed that of the committee, but also recommended the creation of a Joint Committee to consider post-legislative reviews not taken up by departmental Select Committees. The Government took their time in responding but in the event produced a very welcome report in March this year. Though not endorsing the proposal for a Joint Committee, it did accept that departments should review Acts normally within three to five years of enactment and send the reviews to Select Committees. I trust that we shall, in due course, be debating the Government’s response.

My point for the moment is that there has been very welcome progress with both the legislative process and post-legislative scrutiny. What has happened with pre-legislative scrutiny? There has been, in effect, as my noble friend indicated, a regression. The Government have clearly abandoned the policy announced by Phil Woolas. As the data in the report that is the subject of this debate makes clear, the highpoint for the number of Bills subject to pre-legislative scrutiny was 2003-04.



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What justification do the Government offer for this post-2004 regression? In their response to the latest report, they state:

It is written as though this is something external that is happening to Government, for which they have no responsibility. It continues:

I have asked before, but received no answer: what on earth does this mean? I ask the Minister to explain what is meant by the following sentence:

Why does it need that freedom? Why is it a practical obstacle, as opposed to political resistance from Ministers to having their Bills examined in draft? There is no justification offered for the Government’s statement in their response either to the committee’s report or to the Liaison Committee in the other place.

Why do the Government then go on to say:

That does not obviously flow from what has gone before; if anything, it undermines it. It is possible to publish several Bills in draft, more so than in the immediately preceding Sessions. Why can this not be maintained and extended?

As the Constitution Committee recognises, certain Bills obviously cannot be published in draft; for example, the Criminal Evidence (Witness Anonymity) Bill. However, as my noble friend said, emergency legislation is the exception and not the norm. The Government have provided no clear principled or practical reason why there should not be more Bills published in draft and committed to pre-legislative scrutiny. The case for such publication and pre-legislative scrutiny is generally accepted, including by the Government, so why are they not delivering on what in 2004 was their declared policy? I know there is some incentive for departments to publish in draft, yet there seems to be a reluctance to go down this route and a failure on the part of senior Ministers to impose such a policy.

The Government have failed to justify this step backwards. They have made progress in other areas of the legislative process, so why not in respect of pre-legislative scrutiny?

I conclude by referring to the time provided for pre-legislative scrutiny. When Bills are referred for pre-legislative scrutiny, the committee should normally have at least three months to consider the Bill. That is included in the Cabinet Office guidance to departments. Like the noble Lords, Lord Maclennan and Lord Tyler, I serve on the Joint Committee on the draft

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Constitutional Renewal Bill. We began work in May and we have to report by 22 July, when we are meeting—this is for legislation that is essentially five Bills in one. The pressure on the Joint Committee has been enormous.

The Government’s response to the Constitution Committee’s observations on this point is wholly inadequate. In effect, it is that it is “one of those things”. If the political will is there, the situation can be improved. I am aware of the pressures on parliamentary counsel, but more can be done to stagger the introduction of Bills and make greater use of the provision for carryover. These points are covered in the Constitution Committee’s 2004 report. There is scope for improvement. What is lacking is not necessarily the resources but rather the resolve to improve the situation. The Government’s response is indicative of that. I look forward to the Minister offering far more this evening than is embodied in this rather sorry response.

7.38 pm

Lord Hunt of Chesterton: My Lords, with your permission I shall speak in the gap. I have been sitting on the pre-legislative Joint Committee on the Marine Bill and endorse some of the points made by other speakers. The process has been very effective, and witnesses have been able to appear, including a fascinating witness from the EC who enabled us to take an alternative view on what we are doing. That should happen more often. The consensus emerged about the changes needed to the Bill which, I hope, will be incorporated.

I half-endorse the grumbling of previous speakers, although we should always remember that the best should not be the enemy of the good. Our committee has been able to sit for eight weeks this summer and has done very useful work, even though we did not have the ideal 12 weeks. With those points I should like to endorse the committee.

Another criticism was that scrutiny committees should not be meeting if there are additional reports in the pipeline. Our committee had additional reports in the pipeline. We should just live with that; it is better to have pre-legislative scrutiny than none at all.

7.40 pm

Lord Tyler: My Lords, I am glad to contribute to the debate, not least because I entirely endorse the comments of the noble Lords, Lord Goodlad and Lord Norton of Louth, and my noble friend Lord Maclennan. As the noble Lord, Lord Norton, has already said, three of us are involved in the pre-legislative scrutiny of the draft Constitutional Renewal Bill, to which I shall come back in a moment; this has been an important exercise and it has conditioned my thinking on this.

I note in passing how important it is to have a few poachers turned gamekeepers in this House. There are two former Chief Whips, members of the old boys’ club, here this afternoon. In the notable case of the noble Lord, Lord Goodlad, we have a former government Chief Whip. As such, he comes with all the experience of the business managers of the other place, which will stand us in good stead in his committee and in his service to your Lordships’

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House. Useful work is clearly being undertaken. So many of the recommendations of the Norton report, to which we go back at regular intervals, are still relevant to what we are doing here today.

It is important to step back for a moment to remind ourselves why we undertake pre-legislative scrutiny: to improve the eventual product of Parliament. The quality of what we produce in this building is often justifiably criticised, but pre-legislative scrutiny is one way in which we can make dramatic and useful improvements. It is therefore important that we are concerned not only with the number of Bills that go through this process, but their importance and significance—indeed, somebody mentioned their length. Although I take seriously the point of the noble Lord, Lord Goodlad, about the reduction from one in three in the year to which he referred to one in 15, the significance of that legislation is also important. It is not just quantity but quality.

I have a long commitment, as do my noble friends, to improving pre-legislative scrutiny and making it more applicable and work better. Indeed, in the other place, I worked closely with the late Robin Cook on these issues. I see that the Minister indicates that Robin Cook applied considerable energy and effort, and attempted to bring Members of all parties along with him to make a success of this exercise.

It is significant, as the noble Lord, Lord Goodlad, has pointed out, that a great many more Bills went into pre-legislative scrutiny when Mr Cook was Leader of the House of Commons, not least those undertaken by Joint Committees. In passing, I point out, as I am a member of the Joint Committee looking at the draft Constitutional Renewal Bill, that a special role can be played in Parliament by Joint Committees. They bring together the ethos of this House with some of the expertise available in the other place. We accelerate the process because we bring together the analysis of both Houses in one exercise, rather than having to do it sequentially and thereby lose some time.

Reference has been made to the Joint Committee on which we are serving having been given an extraordinarily short time to deal with incredibly complicated matters, diverse to the point of disruption. Some of the issues that we have been addressing are so peculiar in their own way that they do not happily fit into a coherent draft Bill. Without betraying any of the likely consequences of our examination, we may well make that comment. To do it in just 10 weeks! We are meeting twice a week, on Tuesdays and Wednesdays, with our amazing Clerks from both Houses updating us between the meetings. It is extraordinary, and I pay tribute to the Clerks for that exercise, but it cannot be said to be a well organised process if we are putting them under that pressure.

In addition, we should recognise that one of the huge values of pre-legislative scrutiny is that we take evidence. As the noble Lord, Lord Hunt of Chesterton, said, it is extremely important that we take evidence from outwith the parliamentary estate on important issues that we address. I note, for example, that when the Joint Committee under the noble Lord, Lord Puttnam, looked at the Communications Bill, evidence

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was taken from experts that could possibly not have been brought together by the normal process of examination.

In that context, my noble friend Lord Maclennan is right to say that, when taking evidence in a Joint Committee, you get well away from the normal adversarial process so often seen at the other end of the building—and occasionally in your Lordships’ House. In this process, you would not know what party or group those taking the evidence or those giving it were from. That effective, impartial assessment of complicated issues was especially apparent in the pre-legislative scrutiny of the Communications Bill.

Briefly, on parallel consideration of these issues between the two Houses, it would be inappropriate to comment in detail on what happens in the other place. However, I note—because I was involved in it—that this House was looking at these issues from 2002 to 2004 when the modernisation Select Committee, on which I served for a number of years, was doing so in the other place. I take seriously the work done in this House by an interesting group of party leaders while this was being discussed by the modernisation committee. It was referred to as the Leaders’ Group on working practices in the House of Lords, and produced a report on 29 April 2002 that went into a great deal of detail about the working practices of the House.

We all know what happens with the London bus syndrome: Bills all appear immediately after the Queen’s Speech in December or November, and they all need a Second Reading. A number come to this House; perhaps too few, but that is a separate issue. A great number go to the House of Commons, and then they all go into Committee. As a result, there is a blockage; we have a number of Bills coming at the same time. Sometimes there are 10 or a dozen Bills for Second Reading in just a few weeks, and then they all go into Committee.

Those pressures can be alleviated, partly by better spreading of the draft legislation for pre-legislative scrutiny, partly by allocating in which House they should start, but also by ensuring that carryover is used in appropriate cases. In 2002, this House made the sensible decision of linking the issues of pre-legislative scrutiny with carryover. Clearly, if you are to have appropriate time set aside for pre-legislative scrutiny, you may find that the resulting Bill needs to be carried over into the following Session. Unfortunately, against the pressures that I and others—particularly Robin Cook—tried to steer through in the other place, the same deal was not struck, nor was the same link made. I therefore fear that the other place is far less clever in organising pre-legislative scrutiny and the resulting link with carryover. That is an important link, for better digestion of the legislative programme through the year and—where necessary, by agreement between the parties—carryover into the following Session. I hope that the Minister will allude to that issue. Even if he cannot give a definitive view, I hope that we can go back to it.

We owe a great debt, not only to the noble Lord, Lord Goodlad, for what he has done with this committee in more recent months on behalf of your Lordships’ House, but also to previous chairs: the noble Lord,

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Lord Norton, and our much lamented former colleague, the late Lord Holme of Cheltenham, who made a signal contribution to the improved working of this House. This is a useful report. I hope that we will have a positive response from the Minister this evening. More than that, however, I hope that we will see some of the improvements that have been alluded to by all noble Lords who have spoken this evening.

7.49 pm

Lord Kingsland: My Lords, I congratulate my noble friend Lord Goodlad on bringing his report to your Lordships' House and on explaining it with his customary incisiveness.

Generally speaking, pre-legislative scrutiny is a desirable constitutional development. The members of a scrutiny committee have a real opportunity to influence the Government’s thinking. Moreover, the existence of the committee, sitting in public, animates and engages outside interests and individuals who have preoccupations about one or more of the draft Bill’s provisions. By the time it becomes a Bill, and begins its journey through the legislature, many more people have become familiar with its contents and the issues to which it gives rise. This increased awareness goes a little way to redress the balance of power between Parliament and the Executive. Faced with a better informed House, the Government will usually have to work harder to achieve the passage of a Bill, and to give more ground than they would otherwise have done.

Soon after the Prime Minister became Prime Minister, he committed himself to changing the balance of power between Parliament and the Executive. Indeed, there is a draft Bill on constitutional renewal presently under consideration by a joint legislative committee—as we have heard more than once tonight—much of the contents of which purport to contribute to achieving this constitutional objective. However, as my noble friends Lord Goodlad and Lord Norton of Louth powerfully said, in the arena of pre-legislative scrutiny there seems little or no sign of the Government pursuing the Prime Minister’s declared aim.

This is evident from the Government’s response to your Lordships’ Select Committee’s report. It is resoundingly negative. The Government refused the committee’s request to give a,

Yet the Government’s legislative plans for the coming session were published in May. Surely there could be greater use of pre-legislative scrutiny within this timescale, as the noble Lord, Lord Tyler, emphasised.

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