Chapter 4: The quality of legislation
108.As we stated at the start of this report, the Office of Parliamentary Counsel describe ‘good law’ as law that is “necessary, effective, clear, coherent and accessible.” Of these, we addressed the criterion of ‘necessity’ earlier in this report (see paragraphs 7–14). The question of ‘effectiveness’ is affected by the quality of the policy development process (which we addressed in Chapters 2 and 3), but is a matter which we will consider in greater detail during the later stages of our inquiry on the legislative process. In this chapter, therefore, we will consider the extent to which legislation is clear, coherent and accessible.
109.Ensuring the clarity of legislation is not merely a matter of ‘good law’. The first of Lord Bingham of Cornhill’s eight principles of the rule of law, set out in his book on the subject, is that “The law must be accessible and so far as possible intelligible, clear and predictable.”137 And as the British Academy pointed out “intelligibility is of particular importance to English law … due to the role in the application of law played by non-specialist laypeople as members of a jury.” We therefore asked our witnesses to what extent the criteria set out by the Office of Parliamentary Counsel are actually being met.
The clarity of existing legislation
110.Much of the evidence we received commented on particular areas of the law—and we include some specific comments on tax law and immigration law below. From those witnesses who offered a more general appraisal, the overall message was that the quality of legislation was variable.138 The Bar Council, for example, told us that “On the whole, legislation introduced into Parliament is well drafted.” They noted, however, that there was “a great deal of variation” and that “even where amending legislation makes the law more effective, it might at the same time make the law less coherent or less accessible.”139 Robert Khan, Director of Public Affairs at the Law Society of England and Wales, commented that:
“I think legislation has improved over historical time. Certainly we do not see the ‘herewiths’ and ‘theretofores’ that we used to see. The language is far more accessible. However, a lot of our members say that, for example, when statutory instruments amend statutory instruments it becomes very hard to follow. There are particular examples in the tax field or in the Immigration Rules. There was a recent case where Lord Justice Jackson described the rules as having now ‘achieved a degree of complexity which even the Byzantine Emperors would have envied’, so there are certainly some issues.”140
111.These sentiments were echoed by the Institute of Chartered Accountants in England and Wales (ICAEW), who stated:
“Some radical and very welcome changes to the legislative framework have been made—for example we would highlight the Bribery Act 2010 which we consider to be exemplary … In other areas much is left to be desired. In particular we might highlight tax legislation.”141
112.The British Academy focused on the volume and complexity of legislation, noting that “Laws made too frequently undermine John Locke’s requirement for a society to have ‘known law’—if law changes too frequently it cannot be known. Whilst the parliamentary process is, in theory, more accessible than ever before, the laws thus resulting may not be, in part due to the sheer amount of law produced and the frequency of its production.”142
113.Witnesses pointed to immigration law, tax law and sentencing as examples of areas where the complexity of law had developed to the point that it was a serious threat to the ability of lawyers and judges to apply it consistently—not to mention raising rule-of-law concerns as to the ability of the general public to understand the law to which they are subject.
114.The ICAEW commented on the current state of tax law in the UK:
“ICAEW has been tracking the length of the Finance Acts for some years now, illustrating their increasing length and complexity. At 649 pages long, Finance Act 2016 is the second longest ever, and adds to a tax code that by 2009 had already been reported to have surpassed the length of India’s as the world’s longest. These lengthy documents highlight the increasing complexity for taxpayers of an ever expanding tax code. In our opinion this unduly lengthy and complex legislation is partly a reflection of it having been rushed through parliament, with an unfortunate lack of scrutiny.
It is also unfortunate that the lessons of the Tax Law Rewrite project have not been remembered. For a short period, legislation was drafted in better English, making it more manageable. Lack of resource is presumably why this is no longer happening, but the consequences for those who seek to apply it, accountants, lawyers and the general public who are governed by it, are that it takes longer to work with and interpret, and mistakes are made.”143
115.Likewise, the Chartered Institute of Taxation noted that “The quality of Tax Information and Impact Notes (TIINs) is felt by our members to have deteriorated.” They also expressed concerns about the legislation itself, drawing our attention to the increasing volume and complexity of tax legislation and adding specifically that: “One factor that makes tax law less clear than it might be is inconsistency of terms and definitions used in legislation. Terms such as ‘dwelling’ and ‘residential property’, for example, are defined differently for different taxes and sometimes even in relation to different sections of law relating to the same tax.”144
116.Witnesses were particularly scathing about the clarity of immigration law. Alison Harvey, Legal Director of the Immigration Law Practitioners’ Association (ILPA), noted that, quite aside from ILPA’s disagreement with the objectives of some immigration legislation, “there is a whole separate vein of frustration about the quality and clarity of legislation.”145 Judge Julian Phillips, a Resident Judge of the First-tier Tribunal in the Immigration and Asylum Chamber, described how the complexity of immigration law had grown over time: “When the current Immigration Rules, HC 395, were introduced as a consolidating set of rules in 1994, they were about 100 pages long. By 2004, they had grown to just under 150, so there was a 50% increase in the first 10 years, but in the next 10 years or so there was a 400% increase on top of that.”146
117.Peter Jorro, a Barrister in Garden Court Chambers, told us that the situation was so bad that “senior judges in the Court of Appeal … are criticising how abstruse the law has become in this area and are crying out for clarity.”147 Sir Ernest Ryder, Senior President of Tribunals, was equally forthright:
“We have had eight immigration Acts in 12 years, three EU directives and approximately—my apologies for being approximate—30 statutory instruments. The Immigration Rules themselves have been amended 97 times over the same period, which is approximately eight times a year, and are four times larger, and in a smaller typeface, than they were 10 years ago.
The Immigration Rules no longer contain all or indeed most of the policy that is to be implemented, which is of course their primary purpose. The policy is separately provided in—if I may say so—rather dense and unconsolidated guidance that one can access through the Home Office website, but that generally does not show you the previously existing guidance on the same topic, or how the guidance has changed. If you are an unwitting litigant whose first language is not English and you have no recourse to public funding, because this is an immigration case, not an asylum case, your chances of accessing any of that material and putting it together in a coherent way are negligible.”148
118.Judge Michael Clements, President of the First-tier Tribunal in the Immigration and Asylum Chamber, explained the impact of such law on the judiciary: “The complexity of the law is such that, when I first started some 15 years ago, one would expect to deal with a number of appeals every day. Nowadays, one is pushed to do more than two. The work is more complex and the rules are more complex, and that has a knock-on effect on workload and dealing with listing.”149
119.Professor David Ormerod explained for us some of the consequences of such complexity:
“To go back to sentencing, there has been an independent survey that suggests that around 30% of appeals in the Court of Appeal Criminal Division on sentencing involve an unlawful sentence. That is because of a mistake by the judge as to the powers available in relation to the sentencing determination. The cost of that is astronomical.”150
120.Sir David Bean, Chairman of the Law Commission, agreed: “Legislation should be sufficiently clear to avoid money being wasted on pointless litigation or appeals that would never have happened if the drafting had been better in the first place.”151
121.We recognise that parliamentary counsel face conflicting pressures when drafting legislation. Mark Ryan set out the issue clearly:
“There is … an inherent tension in drafting legislation which is crystal clear (but somewhat simplistic and lacking in necessary detail with the result that the courts become involved in the lacuna) and legislation which is so detailed (for the purposes of the law/courts) that it becomes impenetrable to the non-lawyer. Ultimately, the question is who is the clarity aimed at: the lawyer/courts or the lay general public?”152
122.There is clearly a strain in attempting to achieve both accessibility and precision. Yet we agree with Professor Ormerod, Commissioner for Criminal Law and Evidence at the Law Commission, who argued that it was necessary, as far as possible, to bear both audiences in mind: “Clearly, the policy must be robust and the representation of that policy in the legislative formula must be faithful. You have to look beyond that, however, to the ultimate user of the legislation. The litigant, the citizen, the trader, the businessman or whoever it may be must have the capacity to understand that legislation.”153 Valerie Vaz MP also stressed the importance of ensuring that the public “understand new legislation.”154
123.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.
124.Concerns have also been raised about the inaccessible nature of legislation with respect to the needs of those scrutinising it in Parliament. Lord Lisvane, in his Statute Law Society lecture noted that while the term “accessibility” was generally used in the context of public access to an up-to-date statute book, he was concerned about a “different sort of accessibility; an uncertainty at the primary legislation stage about what the law will actually end up saying on matters of real importance to the individual.” He used the example of the Childcare Bill 2015, quoting the House of Lords Delegated Powers and Regulatory Reform Committee which stated of that Bill that “it contains virtually nothing of substance beyond the vague ‘mission statement’ in Clause 1(1).” Lord Lisvane added that “Parliament [was] asked to accept that the nature of childcare, the terms on which it was to be made available, what it was going to cost, and who was going to administer it, should all be contained in subordinate legislation to be consulted upon after Royal Assent.”155
125.This is not a new issue, and it is one which this Committee has drawn attention to numerous times in recent sessions, including in relation to the Childcare Bill 2015 referenced above.156 Indeed, in our Sessional report 2015–16, we noted that:
“broadly drawn delegated powers leave ministers with significant discretion as to the content of subsequent delegated legislation. This can inhibit parliamentary scrutiny of primary legislation as members of both Houses are unable to assess how key elements of the policies before them will be implemented. Allied to this is a tendency for delegated legislation to be used for policy changes that would be more appropriately be carried out through primary legislation, subject as it is to more thorough parliamentary scrutiny and amendment.”157
126.We have highlighted in many of our recent legislative scrutiny reports our concerns about the use of delegated powers and we will return to these issues in more detail at a later stage of this inquiry. We have consistently stressed our concerns about the extent and nature of the use of delegated powers in primary legislation. This is not only in the context of ensuring an appropriate division of power between Parliament and the Executive, but also in terms of ensuring that Parliament can fulfil its responsibility of effectively scrutinising legislation and holding the Executive to account. This is a key political issue in respect of the legislation to deliver Brexit.
Making the law clearer and more accessible
Consultation during the drafting phase
127.We heard various suggestions as to how the clarity of legislation could be improved. We have already stated the benefits of consulting stakeholders about the policy aspects of draft legislation, including on how it is drafted (see above paragraphs 62–65). It may also be helpful, however, for consultation to take place on the way in which legislation is framed (as opposed to on the policy it contains). This does not appear to be a common occurrence at present. Robert Khan told us simply: “I cannot say that in recent memory the Law Society in England and Wales has ever been consulted directly or has interacted with a parliamentary draftsman.”158 Andrew Walker, Vice Chairman-Elect of the Bar Council, told us that the Bar Council was similarly uninvolved in the drafting process:
“Our law reform committee had one session a few years ago with parliamentary counsel to seek an interchange on the way things were drafted. My feeling was that there was so much awkwardness on the part of parliamentary counsel that its usefulness was limited. They did not really want to engage for fear that we were seen to be influencing them in some way.”159
128.Dr Farrington from the University of Cambridge suggested the use of “a substantial group of volunteers who could read draft legislation and identify issues regarding clarity.”160 Daniel Greenberg, meanwhile, put forward the idea of “giving intervener status in the legislative process to key stakeholders … so that their contributions at drafting level, policy level and enforcement level are not just one more consultation response, but are actually treated as key components of the legislative process as it takes place as you scrutinise the Bill.”161
129.The ICAEW meanwhile noted that the law contained a “number of inconsistencies or contradictions. In the insolvency world for example, (heavily EU influenced) employment law requires insolvency practitioners to ‘meaningfully’ consult employees, which, if followed, might be at odds with their legal obligations to act in the interests of all creditors.” They suggested that the solution was more analysis early in the process to consider whether existing legislation could be amended to cover the point and to ensure that all potential implications have been taken into account.162
130.Sir Stephen Laws, former First Parliamentary Counsel, was sceptical of the value of consulting on the drafting of legislation. He explained why:
“I remember drafting privatisation Bills in the 1980s when all the parties to the sell-off were represented by firms of solicitors, and we had some very difficult meetings at which solicitors for the companies or existing corporations came along. We had long discussions that purported to be about the drafting but were in fact about the policy. It would have been much better if we had not been there so that both the department and the consultees could not divert the discussion in our direction to talk about something that was made out to be drafting when the real issue was one of policy.”163
Clearer departmental instructions
131.Other witnesses felt that the problem lay not with the clarity of drafting, but with the clarity of policy. Andrew Walker noted that “Policy clarity seems to me something that we really require … If the policy is clear, the drafting will be easier. It is the same as any other legal exercise. If your instructions are clear, you know where you are heading and you can perform the task much more easily.”164 Dr Fox agreed, stating that parliamentary counsel “can produce a good draft only if their instructions are clear.”165 Likewise, Daniel Greenberg told us that the key factors influencing the quality of the drafting of legislation were “clear policy and proper training. If the policy is not clear, no drafter can produce a decent piece of legislation; and very often the policy is not clear.”166 Other witnesses expressed similar views.167
132.Lord Lisvane has expressed similar views, stating that “[i]n my experience the drafting of Government Bills is of a uniformly high standard … What often gets in the way is the obscurity of drafting instructions from Government Departments.” He concluded that the result is often that ambiguity in policy, or unresolved differences within Government, are subsequently sidestepped by inserting wide regulation-making powers “in the hope that later agreement can be given effect by subordinate legislation.”168 The Chartered Institute of Taxation suggested publishing departmental instructions provided to the Office of Parliamentary Counsel as a way of clarifying the “intention” behind tax legislation.169
Consolidation
133.Witnesses generally agreed that consolidation was still a “desirable activity”,170 and in the most complex areas of the law we were told it was now “increasingly imperative.”171 Alison Harvey emphasised that “consolidation … would make a huge difference” to immigration law.172 Sir Ernest Ryder agreed, noting that “codification” would be the simplest route to improving the quality of immigration law.173
134.Professor David Ormerod, meanwhile, described the situation in relation to sentencing law:
“Sentencing is a good example in that it is an area in which there is almost perennial amendment. However, that does not diminish the need for consolidation; in fact it could be argued to enhance that need. Officials have been very candid in telling us that they can no longer accurately and confidently predict the impact of further legislative change, given that the sentencing landscape is so confused, spread across hundreds of statutes … So clearing the landscape and having a single statute in which all the provisions relating to sentencing procedure appear will make it easier in future for valuable policy changes to be identified and assessed for their impact.”174
135.Yet despite widespread agreement as to the value of, and need for, consolidation, there has been little progress in recent years. As the Law Commission noted, “It is striking to note that in the period between the 1965 Act [which founded the Law Commission] and the end of 2006 Parliament passed over 200 consolidation Acts, but in the last ten years there have only been two such Acts: the Charities Act 2011 and the Cooperative Societies and Community Benefits Act 2014.”175
136.The Law Commission stated that over the last half century since it was founded “the value of consolidation has in our view if anything increased.” They gave two reasons for this:
“The first is that unlike a Queen’s Printer’s copy, a statute in digital form can be readily updated when the legislation is amended. Secondly, statute law is accessible free of charge on the internet, so that (provided that the website is kept up to date) a single Act of Parliament containing all the statute law on one subject can be a useful resource available to the public as well as to lawyers.”176
137.Although the legislation.gov.uk website can track changes made to legislation, this does not help those seeking to understand the law in a particular area if relevant legislation is spread across a number of different statutes and instruments. As Sir David Bean noted in relation to immigration law, “There is no way that you could know what to look for on legislation.gov.uk since the primary statutes are in 14 different places.”177 Once an area of law is consolidated, however, a single statute can then be amended consistently by future legislation.178
138.It was clear, however, that there is little appetite in Government for consolidation.179 The Law Commission felt that “there is now little support for devoting the scarce and expensive resource of parliamentary counsel to the drafting of traditional consolidations.”180 Robert Khan suggested lack of political enthusiasm was a prime consideration, noting that: “we need to be realistic. No Minister ever made their reputation by saying, ‘I think I want to … bring in more consolidation’, even though perhaps they should have that aspiration.”181 Sir Ernest Ryder noted that attempts had previously been made to consolidate immigration law “which sadly failed, almost certainly on the basis that it was just too difficult to achieve the end result.”182
139.David Lidington MP acknowledged “that immigration law has become very complex and spread between many different statutes and regulations.” He put forward, however, two arguments against consolidation. First that, following the consolidation of education law in the Education Act 1996, “Within two years, more than half of its 580 clauses and 39 schedules had been replaced by legislation brought in by a different Government … [I]t just shows that you can commit a lot of resource to consolidation and, if the politics changes, you question whether it really got you anywhere at all.”183
140.Second, he suggested that “there is discomfort, particularly I think among Commons politicians with their voters in mind, in resorting to consolidation on areas which are intrinsically areas of political controversy”, noting that a consolidation bill denies Parliament the opportunity “to debate and to consider amendments, rather than just consolidation, on areas of policy that are of acute political interest to parliamentarians.”184 The Bar Council also suggested to us that, conversely, the tendency of politicians to focus on policy debates is why “departments are unwilling to risk re-stating areas of law for fear that old battles will be reopened.”185
141.The first argument misses the point of consolidation which is, in the words of the Law Commission “to draw together different enactments on a topic into a single Act”186 with the aim of clarifying the statutory landscape. So long as subsequent legislation amends the consolidated act, the benefits persist regardless of any subsequent legislation. As regards the Minister’s second argument, we are unconvinced that the law should be denied the very real benefits of consolidation because politicians want to be free to debate controversial issues. The consolidated bill procedure187 was introduced precisely to ease the passage of consolidated legislation that does not make substantive changes to law.
142.Elizabeth Gardiner, First Parliamentary Counsel, introduced another concern: that of resourcing. She told us that consolidation is “incredibly resource-intensive”, and that Government is always “looking to prioritise that resource.” Asked specifically about immigration consolidation, she responded that: “I am not aware that it is on the agenda just now. The Law Commission has a consolidation programme, but I am not aware it is on the agenda.”188 The Law Commission meanwhile, suggested that its funding was “very limited”, and that if it was “to undertake a new consolidation or codification project, it would almost certainly have to be funded by the department making the request.”189
143.In the absence of any real governmental effort to take forward consolidation, Elizabeth Gardiner detailed some of the steps the Office of Parliamentary Counsel are taking to try and overcome the increasing complexity of the statutory landscape. She told us that “if we thought an area had got particularly messy, and it was contained and we were making amendments in that area, we might decide that we could repeal a run of sections and restate them in a better way, which would be a mini-consolidation.” She stated that parliamentary counsel were also framing new legislation, where possible, as amendments to existing legislation; in effect “consolidating as we go.”190
144.We welcome the efforts made by the Office of Parliamentary Counsel to ‘tidy up’ the statutory landscape. Nonetheless, these do not replace the clear need for consolidation in a number of increasingly complex areas of the law. It cannot be seen as a satisfactory state of affairs when the Senior President of Tribunals states that his judges “cannot find” relevant law, and when they do find it “they do not necessarily understand it.”191
145.We recognise that consolidation is not a politically attractive use of parliamentary time and the scarce resource of parliamentary counsel. Yet consolidation is a more valuable activity 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. Likewise 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. Weighed up against these benefits, the Government’s arguments seem thin indeed.
146.Sir David Bean, Chairman of the Law Commission, made clear that in his view “consolidation remains a desirable activity.”192 He told us that the Law Commission’s work on consolidation is currently limited because its “funding is very limited.”193 He elaborated:
“If we were to undertake a new consolidation or codification project, it would almost certainly have to be funded by the department making the request. You have had a good deal of evidence, for example, about immigration law; both the primary statutes and immigration rules are in a terrible state, as witnesses have told you. There are two jobs to be done. One is the streamlining of the rules and the other is the consolidation of the primary statutes. For either of those, we would need funding from the Home Office to be able to do it because it is a big task—but a very worthwhile one, I think.”194
147.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 consistent application of the law is now under threat from the sheer complexity of the existing statute book. The Government should subsequently ensure that the small amount of parliamentary time required is made available to pass the necessary consolidation bills to implement the Law Commission’s work. The evidence we received suggested that consolidating immigration 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.
The use of technology
148.Drafting new legislation so that it simply amends existing law improves the accessibility of enacted law (since everything is collected in one place). It can, however, make the legislation itself more inaccessible, since it can only be understood in the context of the law that it amends. Daniel Greenberg demonstrated this by referring to the Small Charitable Donations and Childcare Payments Bill 2016 (now an Act), which amended the Small Charitable Donations Act 2012. He stated:
“Is it clear and coherent? The first proposition: “In section 2 … in subsection (1) for the words from ‘if—’ to the end substitute ‘if it is not an excluded charity for that tax year (see subsection (3))’”. There is no real chance that you or other readers have the foggiest idea what is going on.”195
149.If, as we recommend, there is a move to maintain a single authoritative Act relating to a particular field of law which is amended by subsequent legislation, thought will need to be given to ways in which legislation passing through Parliament can be made more accessible to those seeking to understand its effect. Clearly the explanatory notes to bills address these issues to some extent, setting out what the effect of a bill’s provisions will be and providing the necessary context in the case of the Small Charitable Donations and Childcare Payments Bill. Yet the technology is clearly available to consider more innovative ways of approaching this issue. For example, could an interactive website allow both the public and law-makers to peruse the text of a bill alongside a Keeling schedule (i.e. the text of any legislation as it would be amended by that bill)?
150.We will return to this issue in more detail at a later stage of our inquiry, when we consider the passage of legislation through Parliament, but we note that both Houses of Parliament should see it as a priority to improve the accessibility and clarity of legislation passing through Parliament—not just for the benefit of the wider public, but in order to assist parliamentarians in scrutinising the increasingly complex and voluminous legislation coming before it.
151.The opportunity also exists, at this stage, for Parliament to consider whether the capabilities offered by technology are being restricted by the fact they are being used within the context of existing processes which have been in place for, in many cases, hundreds of years. Professor Susskind, President of the Society for Computers and Law and IT Adviser to the Lord Chief Justice of England and Wales, told us in his opening remarks that:
“the least likely outcome in our world is that nothing will change as a result of technology. Yet that is the premise upon which many organisations base their future strategy. I am urging you to say, ‘We can expect considerable change, so the question is about the next step and how to take our thinking further—how we can both automate and innovate in the legislative process’.”196
152.There is no doubt that changes have been made over the years to take advantage of developing technologies: some small, others significant. Opportunities for public engagement with the work of Parliament have developed significantly, while Parliament is vastly more transparent about its work and processes. Yet little thought has been given at a more strategic level to considering how Parliament might incorporate and adapt to developing technologies. Professor Susskind suggested a number of possibilities to us. In the short term, these include using technology to improve the way existing legislative processes run: integrated bill management tools or systems to analyse public sentiment in relation to particular policy proposals or bills. In the longer term, a paradigm shift may be necessary. Potential developments include “personalised updating” when systems “will automatically notify people of new laws or changes in old law that directly affect them”; “embedded legislation” when laws are built into the technology running organisations, processes and products—meaning they cannot be broken (for example, by ensuring that cars cannot be driven above the speed limit); and “real-time monitoring of the actual impact of legislative changes (using social media and machine learning).”197
153.We do not intend in this report to try to set out how, or whether, the legislative process might be revolutionised or transformed by technology. We note that, to date, technology has been used to evolve existing processes, rather than revolutionise the way Parliament works and legislates. While we will consider some of these issues in more detail at a subsequent stage of this inquiry, any move to change more drastically the underlying processes of the legislative process would have to be a collaborative effort between the Government and both Houses of Parliament.
The role of the Office of Parliamentary Counsel
154.Our witnesses were generally in agreement that parliamentary counsel had a particular role in upholding both the quality of legislation and in ensuring that legislation was constitutionally appropriate. Sir Stephen Laws, former First Parliamentary Counsel, explained how parliamentary counsel shaped legislation in anticipation of parliamentary scrutiny:
“You make the decision on the basis that there will be some things that Parliament will want to subject to the full range of scrutiny that it applies to a parliamentary Bill. There are some things that Parliament will be content to see approved by statutory instrument. That is the basis on which you decide what goes in the clause and what goes in the schedules; that is the basis on which you decide whether or not it would be acceptable to make a particular topic the subject of subordinate legislation.”198
155.Parliamentary counsel were seen as being able to speak frankly to ministers in a way that civil servants could not always do. Dr Ruth Fox told us that:
“parliamentary counsel see themselves as the guardians of the statute book. They would not draft in such a way that they thought was fundamentally wrong, and if they were pushed by Ministers to do so they have the same recourse that accounting officers have in registering a concern and effectively seeking ministerial instruction to do it, even if they do not wish to.”199
156.Sir Richard Mottram added that “In my experience, they can say things to Ministers that civil servants in the department are not willing to say, which may or may not make them popular, for example that the Bill is a complete mess, dressed up in parliamentary counsel language.”200 Valerie Vaz MP agreed that parliamentary counsel had a role upholding the quality of legislation. She told us that counsel “can revert to ministers” if new legislation did not conform to the standards of ‘good law’.201
157.Former parliamentary counsel Daniel Greenberg agreed that parliamentary counsel had an important role in this regard, stating that they saw themselves as “the front line in maintaining the rule of law.” He was less convinced, however, by the effectiveness of counsel in maintaining those standards, telling us that there was “a lack of evident rigour.”202 He concluded that over the 20 years he worked for parliamentary counsel he felt that the ability or willingness of counsel to stand up to ministers had declined.203
158.Other witnesses also told us that the role of parliamentary counsel had changed over time, although they generally regarded those changes as positive. Sir Richard Mottram recalled that:
“There used to be a time when parliamentary counsel were considered to be incredibly austere figures to be consulted only when necessary, and they were themselves slightly separate from others … In my experience, all this changed. We created joint teams that were working on policy development with the [departmental] lawyers … and often parliamentary counsel would be consulted at a very early stage informally.”204
He concluded that parliamentary counsel were now “much more open and proactive in championing the importance of good law-making.”205
159.Dr Ruth Fox agreed, but suggested that the involvement of parliamentary counsel “varied from Bill to Bill.” It depended upon “the willingness of draftsmen to want to engage at ministerial level and be willing to sit around a table with Ministers, the Bill team and departmental lawyers and thrash it out. Some liked that; some really did not.”206 Yet, she added, early involvement by parliamentary counsel might ease some of the tensions that could appear between ministers who felt “the draftsmen were being too conservative in their approach” and counsel who perceived that ministers “wanted to draft their own legislation … and perhaps did not understand the legal realities of the way in which our legislation is drafted.”207 David Cook agreed that by working as a team with departments, it was usually the case that issues could be resolved at an early stage.208
160.As we noted above, the clarity of drafting instructions is one of the key ingredients contributing to clearly drafted legislation. Daniel Greenberg was clear on parliamentary counsel’s responsibility in this regard: “Our primary role in drafting legislation is to help them go back and unpick what they are really trying to do, and rewrite the instructions, in effect.” He added that instructions could be “batted … backwards and forwards” between the Office of Parliamentary Counsel (OPC) and the departments, but “that is the way it ought to work. Things have not gone wrong when the drafter looks at something and says, ‘Hold on, I do not understand this’. That is working right, and it is fine.”209 Sir Stephen Laws, a former First Parliamentary Counsel, agreed, telling us that “If we cannot understand what people want, obviously we have to ask them. Part of the skill of the job is to try to elicit what the real intention is.”210
161.In the event that parliamentary counsel are unable to resolve such issues at departmental level, it is vital that they have access to political ‘back-up’. One source of such support is the Attorney General, whom witnesses described as having a function supporting parliamentary counsel in their role ensuring that legislation was constitutionally appropriate.211 David Cook explained that “There is always the long-stop option of being able to consult the Attorney General” on such matters.212 Daniel Greenberg told us that Counsel’s ability to refer matters to the Attorney General could be effective and “was taken very seriously by departmental lawyers.”213 David Lidington MP agreed, noting that in the case of constitutional issues such as retrospectivity or Henry VIII powers, he “would expect the Attorney or the Advocate General to challenge a department to demonstrate the necessity.”214
162.In addition, our witnesses suggested that the Leader of the House of Commons had a particular responsibility for the quality of legislation introduced to Parliament, by virtue of their chairmanship of the PBL Cabinet Committee. Sir Stephen Laws added that the relationship went further, because “since 2010 the First Parliamentary Counsel has been head of the Government in Parliament group in the Cabinet Office. The Leaders and Chief Whips of both Houses see First Parliamentary Counsel as their permanent secretary, so there is a much closer relationship.”215 The then Leader of the House of Commons agreed that he had a responsibility to champion the quality of legislation, and that the Government was “making a very conscious effort to apply rigorous standards.”216 He described his relationship with parliamentary counsel:
“I will have a regular relationship with Elizabeth and her team and the legislation team in the Cabinet Office, who will brief me regularly on the progress of the preparation of Bills as they are going through the preparatory stage and of the Bills that are actually before Parliament. We will try to sort out any difficulties at the official working level, if possible, but sometimes we will conclude, “I need to speak to the Bill Minister or to the Secretary of State direct”, to try to get a particular decision fixed.”217
163.Some witnesses suggested that the degree of political influence wielded by the Leader was an important aspect in his ability to uphold legislative standards in the face of pressure from his political colleagues. Sir Richard Mottram suggested that the Leader of the House of Commons could be “outranked by some very big beasts” who simply overruled any concerns that might be raised about the quality of their legislation.218 Daniel Greenberg told us that the dynamics of influence in the Cabinet were “critical to ensuring that people care about the quality of legislation.”219 He suggested that the “The Leader needs to be a big beast”, and one who recognised “the importance of legislation … [and] the rule of law.”220 He summarised the situation as: “If I do not care about the quality of legislation, I appoint a small beast as Leader of the House. If I care about it, I appoint a big beast.”221 Sir Stephen Laws disagreed, arguing that the influence wielded by the Leader of the House depended more on “how difficult parliamentary handling is.”222
164.It is clear that the Office of Parliamentary Counsel has relatively limited resources. The Bingham Centre noted that: “the Office of Parliamentary Counsel only has a team of around 50 lawyers … whereas Government as a whole is estimated to have around 2,000.”223 The then Leader of the House of Commons David Lidington MP acknowledged that while the OPC formally reported to the Prime Minister as Head of the Cabinet Office, he also had responsibilities in this regard: “I see it as part of my responsibility both to flag any concerns I might have about the capacity of the OPC and to make clear to the Cabinet and to the Prime Minister if I believe there are any constraints in relation to the OPC.”224
165.Parliamentary counsel have a duty to ensure that legislation introduced into Parliament meets their own criteria for ‘good law’, as well as ensuring that legislation is constitutionally appropriate. There is an established mechanism that ensures that, where they have concerns about either the content or drafting of legislation, they are able to call upon the support of the Leader of the House of Commons and the Attorney General in discussions with the relevant department. We support this process—and it underlines, once again, the obligation on those two ministers in upholding the quality and integrity of the legislative process.
The use of external parliamentary counsel
166.The Committee heard evidence about the occasional efforts in the past by ministers to use external parliamentary counsel. Dr Ruth Fox explained that:
“in a couple of instances in our legislative case studies there were clearly tensions … where Ministers felt the draftsmen were being too conservative in their approach to the way in which they were drafting, and there were suggestions from Ministers that they wanted to bring in external drafting assistance to put pressure on draftsmen to draft more in the direction they wanted.”225
167.Witnesses generally felt that this had not worked well. Sir Richard Mottram noted that such experiments “were not very successful for all sorts of reasons.”226 Sir Stephen Laws suggested that his experience during the 1990s demonstrated that drafting was “a specialist trade. What you get from a central service is a cadre of people with a consistent approach; and consistency is a large part of how to achieve coherence and clarity.”227
168.The drafting of legislation is a specialised skill. While there is no doubt that external expertise and advice can be used to good effect to inform the drafting of legislation, this should not be done as a way of sidestepping the concerns of parliamentary counsel.
‘Christmas tree’ bills
169.We asked our witnesses about ‘Christmas tree’ bills—that is, bills which seem intended to focus on a specific area of the law but then incorporate multiple provisions that deal with matters not directly related to the principal purpose of the legislation, or bills with a scope which is so widely defined as to allow a very broad range of topics to be included. Witnesses suggested that ‘Christmas tree’ bills were the result of “the dynamics of departments”, as departments took the opportunity to add proposals to the bill that had not previously been considered important enough for space in the legislative timetable. Sir Richard Mottram described the process within departments:
“Departments often have lots of stuff lying around that they have been dying to get into a Bill for ages. Again, this will be very familiar to the former Ministers round the table. They will say, “I have this thing. I can never get it to the top of the list, but now I have a Bill”, as Lord MacGregor said, “that has real political imperative behind it, so I am definitely going to get it in”, and then civil servants come along and say to the Minister, “Why not add these few clauses about this? It is sort of related.” Then some awkward person says, “You have to change the title”, and so it is changed. This is very bad practice, is it not? A Bill should be about something that has a defined set of purposes and everything not related to it should not be in the Bill. But it is a bureaucratic dynamic … [These proposals] are not just baubles; they are valuable.”228
170.The Bingham Centre acknowledged that these kind of bills were “understandable given constraints on parliamentary time” before concluding that “they should be discouraged as bad practice … [bills] should avoid covering a diversity of unrelated reforms.”229 Among the concerns raised by such large, sprawling bills is the risk that controversial clauses will pass without proper scrutiny simply because of the size of the bills being considered by both Houses. This risk can be exacerbated when significant policy changes are added as amendments to a bill late in the process—and this often seems to happen at report stage in the House of Lords.
171.Parliamentary time is a scarce resource, and there is an incentive for departments with a slot in the legislative programme to incorporate as many legislative proposals as possible in each of their bills. However, it is harder for Parliament properly to scrutinise wide-ranging legislation that covers a number of diverse and disparate issues—particularly when some of those issues may have been introduced at a late stage during the parliamentary process. We recommend that the Parliamentary Business and Legislation Cabinet Committee should consider, as part of its “testing”230 process, the extent to which the scope of a bill will affect Parliament’s ability properly to scrutinise the legislation.
Oversight of legislative standards
Parliamentary Business and Legislation Cabinet Committee
172.The importance of the Leader of the House of Commons and the Attorney General is underscored by their membership of the PBL Cabinet Committee. This Committee, which also includes the Leader of the House of Lords and the chief whips of both Houses, considers issues “relating to the Government’s parliamentary business and implementation of its legislative programme.”231
173.The then Leader of the House of Commons assured us that “It is certainly the intention of the current crop of business managers that we bring forward Bills in a state that means that their policy intent is clear and that they have been tested and examined internally by the departments to make sure that they deliver what they say on the tin … [W]e are making a very conscious effort to apply rigorous standards.”232 Elizabeth Gardiner agreed, stating that “the testing through the PBL process helps us to keep the Bills on track and to ensure that to the greatest degree they meet all those requirements [of ‘good law’].”233
174.Lord Lisvane explained in his lecture to the Statute Law Society that a “Bill’s first significant encounter is with the Parliamentary Business and Legislation Committee of the Cabinet … I think that there is general agreement that that encounter should be a demanding one. Certainly the Prime Minister has said that she sees PBL as the most difficult committee for a Minister to appear before.” He concluded however, that “The area in which I remain to be convinced is, simply, the quality of what is to be put before Parliament. If PBL were an effective gatekeeper for this, some legislative turkeys would never appear in the form they did.”234 In reaching this conclusion, he cited concerns (referred to above in paragraph 124) about legislation that was introduced without sufficient detail to allow Parliament properly to scrutinise it. Ruth Fox also suggested to us that the PBL Committee was not an effective brake on “ministers who want to push their bills through … in effect Parliament has to take from government whatever it throws at it whenever it decides it is ready to throw it.”235
175.The PBL Committee is the main gatekeeper for Parliament in this regard. While we suggest below (paragraphs 177–183) additional mechanisms to safeguard the quality of legislation, the PBL Committee will remain the primary obstacle which legislation must pass before it enters Parliament. We welcome the recognition of the former Leader of the House of Commons of the importance of his then role in this regard, and yet we recognise that the effectiveness of the PBL Committee depends to a large extent on the personal attitude and influence of the Leader of the House of Commons in particular. As Lord Lisvane noted, “is PBL really an effective gatekeeper? Or, perhaps more accurately, is it looking out for the right things; and, if it does not do so, who will? … this is not about individuals but about changes in Parliamentary and political culture.”236
176.We concluded in paragraph 42 that “it is in the interest of all parties that there are procedural mechanisms to protect the quality of legislation, regardless of the political ‘strength’ of any particular government.” One of these procedural mechanisms is the scrutiny of legislation before introduction by the Parliamentary Business and Legislation Cabinet Committee. Its members, and its Chair, the Leader of the House of Commons, have a particular 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 properly to scrutinise the legislation laid before it.
A Legislative Standards Committee
177.The PBL Committee, and the Leader of the House of Commons in particular, will continue to play an important role in upholding the standard of legislation. Yet it is also in the interest of all parties to ensure that standards of legislation do not depend so heavily on the regularly changing holders of the office of the Leader of the House of Commons.237
178.In our 2004 report, we recommended the employment of a “clear and transparent checklist” to ensure that draft bills met “certain standards.”238 This recommendation was built upon in 2011 by the House of Lords Leader’s Group on Working Practices, which recommended “the establishment of a Legislative Standards Committee, either as a Joint Committee or as a Select Committee of the House of Lords, to assess, immediately after introduction and before second reading, the technical and procedural compliance of Government bills with standards of best practice in bill preparation.”239 A very similar proposal was put forward by the House of Commons Political and Constitutional Reform Committee (PCRC) in 2013.240
179.A number of witnesses were supportive of this proposal, including the Bingham Centre, which supported the “adoption of parliamentary-endorsed benchmarks and standards that can be applied at all stages of the legislative process”,241 and the Better Government Initiative, which had previously supported the idea during the PCRC’s inquiry in 2013. The Better Government Initiative told us that:
“There is a broad measure of agreement among those with an interest in improving the quality of legislation about the scope of any standards. In our view either the Bill itself or accompanying material should provide adequate information on:
- the purpose of the Bill;
- the reason why new legislation is needed;
- the costs, risks and intended benefits in terms suitable for post-legislative scrutiny;
- the consultation process, explaining why the proposed option has been adopted and providing evidence, including from the front line, of how it will work in practice;
- the effects, if any, on Scotland, Wales and Northern Ireland.”242
180.Dr Ruth Fox and Sir Richard Mottram both suggested that Parliament should take steps to enforce certain legislative standards, before it considered legislation introduced by the Government—perhaps by means of a legislative standards committee. Dr Ruth Fox argued that: “government should not be able to bring forward a Bill that does not have the impact assessments ready and accompanying it at the time it is brought forward. It should not be able to bring a Bill where the consultational aspects of it are still going on.”243
181.Some witnesses were sceptical of the value of such a committee,244 such as Jill Rutter, who was concerned that any set of standards might “degenerate” into a tick-box exercise. She added that:
“We have seen that with impact assessments, to an extent; you make all your policy decisions and then commission the impact assessment from a bunch of outside consultants at the end of the process, because you know you have to do it … You know that it is done right at the end of the process, rather than what you really want, which is people regarding it as an integrated part of the conversation.”245
182.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.
183.The recommendations in this report aim to ensure that when legislation is introduced in Parliament it is (where possible) evidence-based; it has been subjected to thorough public and expert scrutiny; and it has been tested by both Government and Parliament with an eye to constitutional propriety and the importance of facilitating proper parliamentary scrutiny. In the later stages of this inquiry we will turn our attention more closely to the passage of legislation through Parliament and its publication and dissemination after Royal Assent.
137 Tom Bingham, The Rule of Law (London, Allen Lane, 2010)
141 Written evidence from the Institute of Chartered Accountants in England and Wales (ICAEW) (LEG0024)
143 Written evidence from the Institute of Chartered Accountants in England and Wales (ICAEW) (LEG0024)
155 Lord Lisvane, ‘Why is there so much bad legislation?’, Statute Law Society Annual Lecture, 28 February 2017
156 Constitution Committee, Childcare Bill [HL] (3rd Report, Session 2015–16, HL Paper 16)
157 Constitution Committee, Sessional Report 2015–16 (1st Report, Session 2016–17, HL Paper 9)
162 Written evidence from the Institute of Chartered Accountants in England and Wales (ICAEW) (LEG0024)
167 See, for example, Q 57 (Andrew Walker) and written evidence from the Immigration Law Practitioners’ Association (LEG0029)
168 Lord Lisvane, ‘Why is there so much bad legislation?’, Statute Law Society Annual Lecture, 28 February 2017
170 Q 103 (Sir David Bean). See also, for example, Q 59 (Andrew Walker) and written evidence from the Law Society of Scotland (LEG0025)
178 This clearly relies on the legislation.gov.uk website being kept up to date, which is not the case at present (see, for example, Daniel Greenberg’s comments in response to Q 49). We will consider the extent to which the law is made available to the public at a later stage of this inquiry.
184 Ibid.
186 Law Commission, ‘Consolidation’: http://www.lawcom.gov.uk/consolidation/ [accessed 19 October 2017]
187 Bills which do nothing more than consolidate legislation without changing the law (‘consolidation bills’) are subject to special parliamentary procedures which are intended to allow them to pass through Parliament with little or no debate. The only substantive debate such bills receive is at second reading in the House of Lords (in which all consolidation bills are introduced), following which they are committed to a Joint Committee for detailed scrutiny. Subsequent stages in the House of Lords and all stages in the Commons are usually formal and without debate.
194 Ibid.
205 Ibid.
207 Ibid.
217 Ibid.
231 Cabinet Office, List of Cabinet Committees and their members as at 20 July 2017: https://www.gov.uk/government/publications/the-cabinet-committees-system-and-list-of-cabinet-committees [accessed 19 October 2017]
234 Lord Lisvane, ‘Why is there so much bad legislation?’, Statute Law Society Annual Lecture, 28 February 2017
236 Lord Lisvane, ‘Why is there so much bad legislation?’, Statute Law Society Annual Lecture, 28 February 2017
237 There have been 13 different holders of the office of the Leader of the House of Commons in the 17 years between 2000 and the publication of this report.
238 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–4, HL Paper 173), page 21
239 House of Lords Leader’s Group on Working Practices, Report (Session 2010–12, HL Paper 136) para 97
240 House of Commons Political and Constitutional Reform Committee, Ensuring standards in the quality of legislation (First Report, Session 2013–14, HC Paper 85), Chapter 4