Summary
In 2004 this Committee published a report on Parliament and the Legislative Process which made a series of wide-ranging recommendations covering the passage of legislation through Parliament. In 2016 we decided to follow up that report with a more wide-ranging inquiry into the legislative process, covering the entirety of the processes by which laws are developed, drafted, scrutinised and disseminated.
This report, the first arising from that inquiry, focuses on the preparation of legislation before it enters Parliament, as better policy preparation should result in better legislation. It is also important to recognise that Parliament’s capacity to scrutinise legislation is limited, and therefore the process by which legislation is developed before it enters Parliament is key to ensuring the quality of the laws on the statute book.
Policy development within Government
The policy development process has been the subject of scrutiny by many parliamentary committees and other organisations over the years. The importance of ensuring that government policies are based on high-quality evidence is now better understood, although it still faces significant challenges. We welcome the fact that the process of policy development within Government now includes embedded mechanisms that place an emphasis on gathering and evaluating evidence. We also welcome the Prime Minister’s commitment to a greater use of Green and White Papers—a more structured approach to policy development and consultation can only improve the quality and consistency of legislation.
The development of policy within Government has to be recognised as taking place within the context of a political environment. Ministers are responsible for the policies they oversee and they are rightly subject to political pressures from fellow politicians, the media and the public. They are accountable to Parliament and the electorate for the policy decisions they make. Empirical evidence is a valuable input to the policy development process but it cannot be the only factor on which politicians will make their decisions—that is an inevitable result of our democratic system of government. Ultimately, the Parliamentary Business and Legislation Cabinet Committee, and the Leader of the House of Commons, have a particular responsibility to ensure that the legislation presented to Parliament is necessary.
The evidence underlying government policies should normally be accessible for scrutiny by outside organisations—this is clearly not always the case at present. We also recognise, however, that there are situations in which evidence will not be available on which to base necessary policy choices: in such situations, the Government should make clear how it intends to develop an appropriate evidence base and when it intends to review the policy in light of that evidence. We recommend that the Government should routinely publish the evidence base for legislative or policy proposals. If a robust evidence base is not available, the Government should explain why it is nevertheless appropriate to proceed.
Piloting the application of policy is an important way of developing effective policies over time. Piloting is valuable both as a means to experiment with different policy variations to develop an evidence base for future policy-making and as a way of trialling the impact of new policies. There does not appear, however, to be a consistent approach to piloting, and we recommend that the Government develop guidance for departments setting out when piloting is appropriate or desirable.
Consultation and pre-legislative scrutiny
We identify a number of points in the policy development process at which the Government should actively seek to engage stakeholders in the policy development process. These include informal discussions with stakeholders during the process of formulating policy proposals; formal consultation by means of Green and White Papers; and additional consultation during the legislative drafting process. We also draw attention to the conclusions of the House of Lords Secondary Legislation Scrutiny Committee on consultation mechanisms, including in particular its recommendation that six weeks should be considered a minimum feasible consultation period, save in circumstances which would generally be regarded as exceptional.
Once a draft legislative text is prepared, pre-legislative scrutiny by a parliamentary committee offers further opportunity for scrutiny and revision before it is introduced. In our 2004 report, Parliament and the Legislative Process, we recommended that it should be the norm for bills to be published in draft to afford more opportunities for formal pre-legislative scrutiny.
At present, pre-legislative scrutiny of draft bills is seen as an optional extra to the legislative process: it may or may not take place and it does so in relative isolation from the other stages of scrutiny which legislation undergoes. We conclude that pre-legislative scrutiny should be considered an integral part of the wider legislative process. This may mean adapting other parts of the process to take account of pre-legislative scrutiny. We do not prescribe how this might occur, but as one example we recommend that the business managers of both Houses take into account whether a bill has undergone pre-legislative scrutiny when considering how much parliamentary time to allocate to the bill when it is formally introduced.
The quality of legislation
There are areas of the law where significant strides have been made in drafting clear, accessible legislation. It is evident, however, that there remain large bodies of law which are remarkably inaccessible and difficult for practitioners to comprehend, let alone the average citizen. Quite aside from the obvious rule of law concerns that arise such law leads to costly and unnecessary strains on the resources of the justice system.
Consolidation offers at least a partial solution to this complexity, offering a route by which complex areas of the law can be gathered together in one place and made more accessible. It is also likely to have a more lasting effect now than ever before. The legislation.gov.uk website will, in effect, allow the law to be consolidated on a rolling basis in the future. This is a positive development. It will, in the longer term, make the law more accessible to both practitioners and the wider public. However, this will only be effective once an area of law is consolidated—it will not help resolve a situation where the relevant legislation is spread across the statutory landscape. In addition, it is clear that at a time when the resources of the court system are under pressure, both in terms of finance and in terms of staffing, consolidation offers the possibility of cost savings and increased efficiency. Whilst we recognise that consolidation is not a politically attractive use of scarce parliamentary time, special parliamentary procedures exist to enable the smooth and swift passage of consolidation legislation that does not make substantive changes to law. These are currently, sadly, underused.
It is clear that consolidation is urgently needed in several areas of the law. We recommend that the Government should, as a priority, provide the Law Commission with the necessary resources to start consolidating those areas of the law where the consistent application of the law is under threat from the sheer complexity of the statute book. The evidence we received indicates that consolidating immigration law and sentencing law in particular would offer real benefits not only in relation to the clarity and ease of application of the law, but in terms of cost and efficiency savings within the justice system. We note that there are also opportunities for the creative use of technology to present complex areas of the law more clearly, where the time and resources for consolidation are not yet available.
Parliamentary counsel have a duty to ensure that legislation introduced into Parliament meets their own criteria for ‘good law’. The established mechanism by which they are able to call upon the support of the Leader of the House of Commons and the Attorney General where they have concerns about either the content or drafting of legislation underlines the obligations on those two ministers in upholding the quality and integrity of the legislative process.
Both ministers are also members of the Parliamentary Business and Legislation (PBL) Cabinet Committee, which scrutinises legislation before its introduction to Parliament. Its members, and its Chair in particular (the Leader of the House of Commons), have a responsibility to ensure that they not only consider the interests of the Government in seeing its legislation pass through Parliament, but that they apply standards that promote the development of ‘good law’ and uphold the interests of Parliament and its ability to scrutinise properly the legislation laid before it.
Whilst the PBL Committee, and the Leader of the House of Commons especially, will continue to play an important role in upholding the standard of legislation, we believe it is in the interests of all parties to ensure that standards of legislation do not depend so heavily on the changing holders of the office of the Leader of the House of Commons. The concept of applying a set of legislative standards to government bills, perhaps through a new legislative standards select or joint committee, is not new. The principle has been endorsed by a series of select committees and other institutions over more than a decade. We continue to believe that there would be merit in producing a set of standards that legislation must meet before it can be introduced. We endorse the recommendations of the House of Lords Leader’s Group on Working Practices and of the House of Commons Political and Constitutional Reform Committee and support the creation of a legislative standards committee.