Summary of conclusions and recommendations
The policy development process
1.We recognise that the initiative for new policy may come from empirical evidence, political pressure or principles; and often a mixture of all three. This is an inevitable result of our democratic system. While we recognise that there are occasions on which it will be necessary for ministers to initiate legislation in the absence of a detailed evidence base (see paragraphs 31–37 later in this chapter), we do not believe that such decisions should be taken lightly, or be viewed as an easy option when the Government feels it must be seen to do something. We welcome the then Leader of the House of Commons’ assurance that he “tests” the necessity of legislation when considering the Government’s forward legislative programme. We consider later in this report whether there is a need for a legislative standards committee which would, among other things, require civil servants and ministers to justify, and be shown to justify, whether legislation is necessary to achieve a particular policy goal (see paragraphs 172–183). (Paragraph 14)
2.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. (Paragraph 19)
3.We recommend that the Government should routinely publish the evidence base for legislative proposals. If a robust evidence base is not available, the Government should explain why it is nevertheless appropriate to proceed. (Paragraph 22)
4.We recognise the value of piloting, both as a means of experimenting with different policy variations in order to create an evidence base for policy-making and as a way to trial the impact of new policies before they are rolled out nationwide. (Paragraph 27)
5.In some cases, piloting new policies will require the law to be applied differently in different areas—to take a high-profile example, the piloting of universal credit means that individuals will have different entitlements to benefits depending on whether they live in an area piloting universal credit. There are also, of course, variations in the law in different parts of the country as a result of devolution from which lessons could be learned. (Paragraph 28)
6.There are, however, areas of the law where such experimentation should only be undertaken after thorough consideration of the constitutional implications of introducing variation. For example, the equal and consistent application of the criminal law is a fundamental tenet of the constitution and an important principle of the rule of law. We would not wish to see that principle diminished. (Paragraph 29)
7.We recognise that Parliament may authorise the Government to pilot any policy it chooses, but it may help ensure a more consistent approach if the Government were to set out guidance as to when piloting is appropriate or desirable. (Paragraph 30)
8.We recognise that MPs and ministers receive valuable information and insight on policy issues through communications with constituents, businesses, interest groups and others. The political judgement they bring to bear on policy on the basis of that knowledge is beneficial to the legislative process. (Paragraph 31)
9.Ministers are responsible for the policies they oversee, and they are accountable to Parliament and to the electorate for their decisions. Empirical evidence, where available, is a valuable input in the policy-making process, but it is not the only factor that politicians may take into account. Civil servants have a duty to ensure that ministers are aware of any relevant evidence—even when that might be politically inconvenient. We recommend that the Government should routinely publish the evidence base for legislative or policy proposals, as recommended in paragraph 22, as this should help ensure that ministers have an accurate picture of relevant evidence before decisions are taken. (Paragraph 37)
10.We welcome the Prime Minister’s commitment to a greater use of Green Papers and White Papers. A more structured approach to policy development and consultation can only improve the quality and consistency of legislation. In addition, we draw particular attention to the recommendation in our 2011 report, The Process of Constitutional Change, in which we concluded that “We regard it as essential that, prior to the introduction of a bill which provides for significant constitutional change, the government … publish green and white papers.” This has not always been the case in the recent past, and we hope that in the future a more rigorous approach will be taken towards the process of legislating for constitutional change. (Paragraph 41)
11.The then Leader of the House of Commons commented that proper policy development processes are essential for taking legislation through a Parliament in which the “parliamentary arithmetic” is such that the Government cannot be assured of pushing legislation through. While a Government with a large majority will always have an easier time passing its legislation through Parliament, the quality of legislation should not be dependent on the composition of the House of Commons. 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. (Paragraph 42)
Consultation and legislative scrutiny
12.Informal discussions with stakeholders are an important element of the policy development process. Policy should not and cannot be developed in a vacuum, and early and sustained engagement with a wide range of stakeholders to capture a diversity of views can help ensure that policy meets the needs of those it most affects. (Paragraph 52)
13.We endorse the view of the Secondary Legislation Scrutiny Committee that six weeks should be considered a minimum feasible consultation period, save in circumstances which would be generally recognised as exceptional. (Paragraph 58)
14.We note that the Government publishes details of all government consultations on a single website which allows for the list of consultations to be filtered by subject area—this is a positive development. We would welcome, however, an explanation as to the recommended steps, if any, that must be taken by Government Departments to bring consultations to the attention of those with a relevant interest in the subject matter. (Paragraph 61)
15.Government departments should normally consult a wide range of stakeholders on the drafting of legislation. Once legislation has been introduced in Parliament, it is far harder for the wording to be changed. Early, informal consultation on the wording of draft legislation can mitigate the risks of unintended consequences and ensure that legislation has been thoroughly ‘stress tested’ by the time it is introduced. Yet, as with the earliest stages of policy development (see paragraph 52) it is also essential that departments have sufficient resource and expertise to ensure that they are not reliant on a narrow group of external stakeholders who may have a particular objective or interest in mind when contributing to the development of legislation. (Paragraph 65)
16.However, while Green and White Papers are welcome parts of the policy consultation and development process, they are not substitutes for pre-legislative scrutiny of draft Bills. Draft Bills provide not just the policy intention but also set out the detail of how it will be implemented in law. Where a draft Bill is referred to a committee for pre-legislative scrutiny, it provides a better opportunity and more substantial mechanism for parliamentarians to scrutinise and influence draft legislation than a Green or White Paper affords. (Paragraph 72)
17.We are convinced that pre-legislative scrutiny is also well-suited to technical bills. We see no reason why pre-legislative scrutiny by a committee would be any less effective at scrutinising technical legislation than the scrutiny of the legislative process itself. Indeed, the greater time and focused scrutiny that can be applied during pre-legislative scrutiny should make it better at dealing with technical issues and considering the wording of legislation when required. (Paragraph 77)
18.Green and White Papers provide an opportunity for public debate on proposed policy and pre-legislative scrutiny allows for a thorough examination of the details of that policy, and its implementation, in its legislative form. We believe, therefore, that pre-legislative scrutiny continues to be a valuable means of improving legislation. While not every Bill will require pre-legislative scrutiny, we recommend that the Government think critically about the value of pre-legislative scrutiny for all of its proposed legislation, irrespective of whether there have been prior policy papers or public consultations. (Paragraph 82)
19.At present, pre-legislative scrutiny is seen as an optional extra to the legislative process: it may or may not take place and it does so in relative isolation to the other stages of scrutiny which legislation undergoes. 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 when it occurs. We do not, in this report, prescribe how this might occur, but as one example we recommend that the business managers of the House of Commons and the House of Lords should 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 passing through Parliament. (Paragraph 87)
20.There is a case for greater resources to be made available for committees undertaking pre-legislative scrutiny, in order to facilitate a detailed legal, policy and financial examination of the proposals in a draft Bill and its associated documents, including impact assessments. (Paragraph 91)
21.The content of party manifestos is a matter for political parties and will heavily shape the legislative programme at the start of each new Parliament. (Paragraph 105)
The quality of legislation
22.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. (Paragraph 123)
23.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. (Paragraph 126)
24.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.” (Paragraph 144)
25.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. (Paragraph 145)
26.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. (Paragraph 147)
27.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. (Paragraph 150)
28.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. (Paragraph 165)
29.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. (Paragraph 168)
30.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” process, the extent to which the scope of a bill will affect Parliament’s ability properly to scrutinise the legislation. (Paragraph 171)
31.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. (Paragraph 176)
32.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. (Paragraph 182)