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Chapter 1 of the Government’s 2008 draft legislative programme states that its aim is,

Given this aim, why are the Government so reluctant to let Parliament conduct detailed pre-legislative scrutiny of their proposed measures?

Moreover, the Government were unwilling to give the committee any comfort on its specific requests, as my noble friend Lord Goodlad explained. They declined

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to provide guidance on the compiling and publishing of statistics for draft Bills and draft clauses; were not prepared to furnish a general undertaking to publish most Bills in draft form; and refused to agree to guarantee that a committee engaged in pre-legislative scrutiny should have at least three months at its disposal.

The Minister will no doubt tell us, on the one hand, that the Government remain committed to the principle of pre-legislative scrutiny for most Bills; but, on the other, that constraints such as the availability of parliamentary draftsmen, competing demands on civil servants within departments and, quite simply, events, make specific commitments on numbers or timing impossible to make.

My response is that, despite these constraints, the Government always respect the legislative timetable and procedures of each of the two Houses of Parliament with respect to the passage of Bills in circumstances where the above-mentioned constraints are just as relevant. Why should pre-legislative scrutiny not be regarded in most cases—as I believe all speakers said this evening—as an additional mandatory stage in the passage of a Bill?

7.54 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, I thank the noble Lord, Lord Goodlad, for instituting the debate and for chairing the committee which produces excellent reports. Although we have had a limited number of speakers, this has been a high-quality debate.

I was disappointed to hear that the Government’s response was deemed negative. I assure noble Lords that we respond positively to pre-legislative scrutiny where it is appropriate. We will continue to look at these matters in the light of the committee’s report and our discussion tonight. The Government remain committed to the use of pre-legislative scrutiny and certainly understand the benefits it can have in terms of the quality of the legislation that is eventually passed, engagement with stakeholders and increased knowledge gained by Members of both Houses who take part in it. When the substantive Bill is produced, the debates on it in your Lordships' House and the other place are inevitably enhanced because of the experience that Members bring to them.

Eighteen months ago, I well remember suddenly finding myself in the Department of Health. On almost my first day in the new job I had to deal with the first Committee day of the Mental Health Bill, which would have been a challenge in itself. However, it turned out to be even more of a challenge because many of the noble Lords who took part in the debates on that Bill had served on the pre-legislative scrutiny committee. Therefore, they came to those debates armed with huge knowledge and expertise, and sometimes with preformed judgments on some of the issues. Therefore, I experienced at first hand the benefit of pre-legislative scrutiny and have no doubt at all that it can be very beneficial for some legislation.

I very much enjoyed the speeches of the noble Lords, Lord Norton, Lord Tyler and Lord Maclennan, and the way in which they placed this debate in a much

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wider context. Mention was made of the 2004 report, which took a holistic view of the legislative process; of the work of the Modernisation Committee of the House of Commons; and of the late Robin Cook, who was such an energising moderniser of Parliament. If one looks at the changes that have taken place in the past 10 years, one is in no doubt that there has been impressive progress in improving parliamentary scrutiny. It is easy to forget that detailed Explanatory Notes to Bills have been with us for only a few years. Prior to 1997, Members had to rely on notes on clauses, which were not widely disseminated. Impact assessments are also published with Bills. In the wider scrutiny sense, we have the Westminster Hall debates and Public Bill Committee hearings in the other place, to which the noble Lord, Lord Norton, rightly drew attention. Topical questions were introduced in the other place, no doubt following the experience of your Lordships’ House, which increased the number of such questions that can be asked. In addition, the draft legislative programme is published in advance of the Queen’s Speech.

The noble Lord, Lord Kingsland, rightly referred to the statement by my right honourable friend the Prime Minister last summer, The Governance of Britain Green Paper and the draft constitutional reform Bill, to which my noble friend Lord Hunt also referred. That shows that considerable progress is being made. However, I accept that we ought not to be complacent. The noble Lord, Lord Tyler, was absolutely right to say that the opportunity that we have to debate House of Lords reform in the light of the White Paper issued on Monday also gives this House an opportunity to look at its own procedures and the way in which it deals with legislation.

I modestly—or not modestly at all—refer to the Labour Peers Working Group on Lords reform. One of the sections in it suggested an alternative way of dealing with legislation. I cannot say that it has got very far, but we have an opportunity in the next year or so, particularly leading up to the election, and following on from the White Paper, to think rather more about whether there are ways in which this House could improve the way in which it scrutinises legislation. I would very much welcome that.

We heard a lot about New Zealand yesterday. We were going to send the noble Lord, Lord Thomas of Gresford, there to investigate the way in which it deals with witness anonymity. It would be interesting to look at the approach suggested by the noble Lord relating to pre-legislative scrutiny.

I asked officials for a list of the Bills where pre-legislative scrutiny has taken place and the impact that it has had, and it is very positive. I shall mention three of them. On the Legal Services Bill, the Government accepted a large number of the Joint Committee’s recommendations; the reckoning is approximately three-quarters. We have already heard the tribute paid by the noble Baroness, Lady Williams, on the Human Fertilisation and Embryology Bill. The majority of recommendations in the committee’s report on the Climate Change Bill were accepted. There is no doubt at all that that strengthened the Bill in terms of policy and legislative handling.



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On the question of numbers, ratios and the Government’s current approach, the Government published 58 draft Bills between 1997 and the beginning of the current Session. We have published a further seven so far this Session: the Cultural Property (Armed Conflict) Bill; the Constitutional Renewal Bill; the Marine Bill; the Heritage Protection Bill; the Marine Navigation Bill; the Immigration Bill and the Apprenticeship Reform Bill. The draft legislative programme flagged an intention to publish two further Bills on construction contracts and on communications data.

If we take the seven Bills published so far this Session, in the current Session, the Government have introduced some 23 main programme Bills for Royal Assent. One-third of those were either emergency Bills—the Banking Reform Bill and the Criminal Evidence (Witness Anonymity) Bill—or Bills that were previously published in draft. One must be careful about the ratios.

I know that noble Lords think that there should be more than seven, and I accept that every noble Lord who has spoken would like there to be more, but that is evidence that the Government have not backed away from the general principle of wishing to publish Bills in draft where it is appropriate and where there will be real benefit from it. However, there are sometimes good reasons why—

Lord Kingsland: My Lords, I am grateful to the Minister for giving way with his customary kindness. He has just said that the Government support the use of pre-legislative scrutiny where appropriate. My understanding was that the Government had accepted the principle of exercising the pre-legislative scrutiny procedure in the case of most Bills; and that what held the Government back were factors such as the lack of parliamentary draftsmen and difficulties within government departments about priorities. Which is it? Is it that the Government simply take the view that it is entirely at the discretion of the Government as to which Bills they subject to pre-legislative scrutiny; or is it only because of those constraints that the Government do not subject most Bills to pre-legislative scrutiny?

Lord Hunt of Kings Heath: My Lords, there are a series of factors and considerations that need to be taken into account. The noble Lord is not going to get me to answer in the way that he wants me to answer.

Lord Kingsland: My Lords, does not this go to the heart of the debate and in particular the speech made by my noble friend Lord Norton of Louth? He suggested that the Government were going backwards in this matter. I suspect that the Minister would not be prepared to accept that allegation. It seems to me, from the noble Lord’s reaction to my first intervention, that the Government do not know what their policy is on pre-legislative scrutiny and, even if they do, they are not prepared to tell your Lordships’ House.

Lord Hunt of Kings Heath: My Lords, I really think that that is rather unfair. I thought that I had made the Government’s policy on pre-legislative scrutiny very

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clear. After all, it was this Government who introduced and developed pre-legislative scrutiny, alongside other modernisations and improvements—

Lord Norton of Louth: My Lords, I may be able to help the noble Lord. He is saying that there are reasons why Bills are not published in draft. Part of the problem is that we are not told what those reasons are. One way to completely change the emphasis and address that very point is embodied in a recommendation of the Constitution Committee in 2004. Paragraph 34 states:

That would get at the point, we would know the reason, and it would provide a much clearer emphasis on what the Government are seeking to achieve.

Lord Hunt of Kings Heath: My Lords, I am not sure that I agree with that. In the end, it has to be for the Government to decide—

Lord Tyler: My Lords—

Lord Hunt of Kings Heath: My Lords, what is so fascinating here is that we are developing the concept of debate within a Question for Short Debate; so be it.

Lord Tyler: My Lords, I am grateful to the Minister for giving way; I am going to come to his aid. Very useful evidence was given to the Select Committee on Modernisation about what the problem was. It was not the problem of manpower among parliamentary draftsmen. Indeed, it was recognised that spreading the load would be more effective. It was not the problem of producing draft Bills rather than complete Bills, because that, too, was recognised. If the Minister is finding it difficult to find suitable alibis for the position that the Government have taken, I suggest that he looks at the evidence given to the Modernisation Committee in the other place.

Finally, in that respect, it would certainly help if there was better discussion between the parties at a very early stage after the Queen’s Speech about what was and was not appropriate for pre-legislative scrutiny. Again, that was one of the recommendations of Mr Robin Cook.

Lord Hunt of Kings Heath: My Lords, it is not that I do not have answers to these questions; it is that every time I start to read out my brief, noble Lords intervene. I am quite happy to carry on in this very entertaining way. I have often thought that rather than having staid, officially written responses to Questions for Short Debate, it would be much better to have this kind of discussion. That is particularly so when it comes to such an important matter as how we can improve the job that we are here to do, particularly in your Lordships’ House, which is to get better scrutiny of legislation.



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I will not read through the list, but there are clearly substantive reasons why the Government would consider that it is not appropriate to have pre-legislative scrutiny for some Bills. Clearly, some Bills have external time constraints. The noble Lord, Lord Goodlad, referred to the emergency Bills that we have recently debated in your Lordships’ House. There may be other Bills that are implementing policies following a review and extensive consultation. Where that has occurred, there may be some hesitation in also having pre-legislative scrutiny, due to time factors and the fact that it would cover ground that had already been extensively covered in a consultation.

There are time pressures in the government timetable. I have had experience of dealing with many Bills in different government departments. While of course it is important that there should be sufficient time for pre-legislative scrutiny, proper drafting and proper consultation, the reality of government is that, with the best will in the world, sometimes there is not the time. Sometimes Governments have to make decisions that lead to legislation for which it is simply not possible or practical to undertake pre-legislative scrutiny.

There will be some occasions where publishing Bills in draft may not add greatly to the knowledge of the proposed legislation. Some short Bills, for example, may legislate for the implementation of international agreements.

Lord Goodlad: My Lords, Can the Minister say whether there is a Minister in the Government with overall responsibility for pre-legislative scrutiny and, if so, who that is?

Lord Hunt of Kings Heath: Yes, my Lords, I was going to come to that. In fact, I have gone over my time. I do not know whether the House is happy for me to do that. My understanding is that pre-legislative scrutiny is the responsibility of the business managers in the two Houses. The Leader of the House of Commons is also chair of L Cabinet Committee—the Cabinet committee that all Ministers are in fear of, because it is in charge of the legislative programme. Therefore, it is L Cabinet Committee that must clear legislation. Noble Lords may not believe it, but it keeps a very tight rein and close eye on Ministers

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preparing Bills and on the legislative process. I certainly have the scars on my back to prove it.

A number of other questions were raised. I know that there is an issue about statistics and how they should be measured. I hope that officials from government may meet the officials who service the noble Lord’s committee to see whether there can be further discussion about statistics. Clearly, there is a question about how you measure pre-legislative scrutiny.

On the House of Lords White Paper, the noble Lord, Lord Tyler, asked on Monday whether the intention was to publish draft clauses. The Government have signalled that, depending on the outcome of the White Paper deliberations, it may be possible to publish draft clauses. How should they be measured in terms of whether they are considered to constitute a Bill? There are some interesting matters that we might discuss.

On the question about my noble friend Lady Amos, when she was Leader of the House, and the publication of the information for which the noble Lord asked, the noble Lord will have read the response from my noble friend. I am happy to talk to my noble friend Lady Ashton about what information the Government might publish that would be of help to the House and the committee. The Government want to be co-operative in this matter.

Let me reiterate by, first, thanking the noble Lord and his committee for their invaluable report. Despite what may be perceived as the negativity of the response, I hope that he will not see it in that way. The Government remain committed to pre-legislative scrutiny. There is clearly a debate between us as to the extent of pre-legislative scrutiny and the criteria under which the Government decide which Bills are appropriate for it. I have no doubt that we will continue to have that debate. I also suspect that the work that will now take place on post-legislative scrutiny will throw up some interesting conclusions, which will be of help in improving the legislative process as a whole.

I pay tribute to the noble Lord, Lord Norton, for his championing of post-legislative scrutiny, which I believe offers much hope for the future. In the mean time, I assure noble Lords that the Government will continue to look with favour on pre-legislative scrutiny and will continue to evaluate Bills to ensure that, where appropriate, they will be considered for that process.

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