Preparing Legislation for Parliament (Constitution Committee Report)
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Lord Young of Cookham (Con)
My Lords, I begin by thanking the noble Baroness, Lady Taylor of Bolton, in her absence, and the members of her committee for their excellent reports, and my noble friend Lord Norton of Louth for introducing them. They have provided the basis for a well-informed, thoughtful debate on a specialised subject that may not feature on “Yesterday in Parliament” but which is vital to the effective holding of the Executive to account and, as a result, the operation of our parliamentary democracy—a point well made by my noble friends Lord Hunt, Lord Cormack and Lord Dunlop. That is the context in which we should approach this debate: these documents are essential to what Parliament is all about.
Some of the recommendations—such as for a legislative standards committee, mentioned by my noble friend Lord Dunlop—are for the House to reflect on. I shall try to address the recommendations directed to the Government. The noble Baroness, Lady Taylor, and I have much in common when it comes to the subject, both of us having held the office of Leader of the House of Commons, and so chair of the PBL Committee, and that of Government Chief Whip, who has a key role to play in the deliberations and conclusions of PBL. Although I am standing here in my capacity as spokesperson for the Cabinet Office, I hope to respond to the debate with the experience I just mentioned at the forefront of my mind. I hope this means that I can address the issues from a similarly well-informed position to that of the noble Baroness who chaired the committee.
I will start with the committee’s fourth report, The Legislative Process: Preparing Legislation for Parliament. The Government considered the report carefully and provided a written response addressing specific areas of interest. I will set out some of the steps we are taking to improve the preparation of legislation for Parliament, and respond to some of the suggestions made in the debate. The committee said that the decision to legislate should not be taken lightly, and I could not agree more. At the moment, we find ourselves in atypical times in which it would be hard to say that we are overburdened with legislation. When I recently appeared before PBL with a Bill in my hand, the committee was actually pleased to see me.
In normal times, the PBL Committee remains a very strict gatekeeper. Demand for legislative time greatly exceeds supply—a point made by the noble Lord, Lord Beith. I am sure that any Minister, former or current, would agree that appearing before PBL is one of the most challenging experiences of being in office—a point made by my noble friend Lord Dunlop. It is a rigorous cross-examination, conducted without the Minister having recourse to any professional advice from his or her department and in which ignorance of the details of his Bill can result in delay or loss of the slot. Ministers have certainly left empty-handed, and any Minister looking to use legislation as a way to shine or to introduce legislation that is purely declaratory would have a very hard time. I can also say as a former Chief Whip that failure to impress PBL can also have an adverse consequence for the career of a Minister, however senior.
I was asked whether pre-legislative scrutiny was just an option. PBL asks all Ministers whether they can publish a draft of a Bill or go through pre-legislative scrutiny, so it is much more than an option: it is infinitely preferred. As the committee also observed, legislation is only ever as good as the policy development underpinning it. Evidence is vital—a point just made by the noble Baroness, Lady Smith. As acknowledged, this Government are placing renewed importance on ensuring that their policies have a sound evidential base. The case was excellently made by my noble and learned friend Lord Mackay when he spoke about how the Children Act was improved by access to expert evidence and experienced social workers, and that legislation has endured the test of time as a result.
We are now placing renewed importance on ensuring that our policies have a sound evidence base. For example, the What Works Network, set up in 2015, provides government departments, Ministers and front-line professionals with independent assessment of the available evidence in specific policy areas. There is now a central team in the Cabinet Office that helps bring these findings to the attention of policymakers. In its first five years, the What Works centre has produced 288 evidence reviews, including 48 systematic reviews on a wide range of topics.
I was interested to read the complaints by the Tobacco Manufacturers’ Association—here I want to settle some old scores—that,
“the loss of in-house departmental expertise as a result of central government retrenchment … has led to a situation in which policy development is informally contracted out to other organisations”,
leading to what it describes as,
“regulatory capture by politically-oriented and often taxpayer-funded campaign groups”,
That drew a hollow laugh for me as I recalled that when I was a Health Minister 40 years ago, public health measures to reduce the number of deaths caused by smoking, supported by the health department, were systematically blocked by the TMA’s lobbyists and its supporters in the House of Commons, but I must now move on to the serious issues addressed.
The committee welcomed the Government’s commitment to a greater use of Green and White Papers —a question asked by the noble Lord, Lord Tyler. The committee’s report notes that the Prime Minister recently indicated that,
“she would normally expect a Minister, before having legislation, to have gone through a Green Paper stage for discussion and then a White Paper stage to set out policy”.
I can tell the noble Lord, Lord Tyler, that we remain committed to that process and agree that it is a feature of good and proper policy development. However, time pressures to deliver legislation do not always make it possible.
Recent examples of such documents include the domestic abuse and online harms White Papers, and Green Papers on our integrated communities strategy and mental health provision for children and young people. Not only do those papers show the Government’s workings for their legislative proposals, they facilitate vital engagement with stakeholders, including parliamentarians. Many noble Lords have made the point that you cannot develop legislation in a vacuum, and the committee stressed the value of consultation, both formal and informal, as well as pre-legislative scrutiny by parliamentarians.
I was slightly surprised by what the noble Baroness, Lady Smith, just said about the regard that Ministers have for consultation. She has been a Minister, as have I. I have certainly paid attention to the results of consultation on policy areas for which I had responsibility, be it housing, transport or taxation. One advantage of modern technology is that it is now easier for government to reach stakeholders and the general public and engage them in consultation.
The noble Baroness asked me a number of detailed questions, and I will of course reply to her, but the report noted that the Government now collate all open consultations on a single webpage and that this is an important step in attracting extensive, diverse and expert input. This was a point raised by my noble friend Lord Dunlop. Our consultation principles stress the importance of targeting a full range of stakeholders. The committee notes that the department should consider targeting specific groups and suggests tailoring consultation to the needs and preferences of particular groups.
The committee rightly attached great importance to pre-legislative scrutiny. I reassure noble Lords that the Government hugely value Parliament’s scrutiny and the contribution it makes to the development of draft legislation. Noble Lords will be aware that in this Session, Bills that have undergone this scrutiny include the Parliamentary Buildings (Restoration and Renewal) Bill, the draft registration of overseas entities Bill and the draft domestic abuse Bill. So far this Session we have published 10 Bills in draft, nine of which have been scrutinised by either a Joint Committee or the relevant Select Committee in the other place; the 10th is the draft finance Bill. We hope to do even better. I thank all noble Lords who have been involved in the process of pre-legislative consultation. The hours of detailed scrutiny have led to the introduction of better legislation and an easier passage through both Houses.
A number of noble Lords mentioned post-legislative scrutiny. As noble Lords will know, departments produce post-legislative review memorandums for every Act three to six years after its commencement, as my noble friends Lord Norton and Lord Cormack mentioned. This is an initiative of the committee whose report we are discussing today and is now embedded practice. These documents provide a valuable opportunity to improve our process further by reflecting on whether legislation is operating as intended. If I could express a personal view, I am sorry that these memorandums, which the Government take very seriously, do not attract greater attention from those who follow the legislative process.
Finally, on this report, I would like to say a few words about the quality of legislation, an issue raised by my noble and learned friend Lord Mackay and my noble friend Lord Dunlop. The committee stressed the importance of clear, well-drafted and accessible legislation, to which the Government also attach great importance. We have come a long way in the clarity and accessibility of our legislation. My noble friend Lord Cope welcomed that improvement. The skilled lawyers within the OPC are constantly working to improve on this. For example, they have revised and updated their drafting guidance, strengthened their internal quality assurance processes and invested heavily in training new counsel, operating an apprenticeship model so that experience is shared. I place on record my thanks for their ongoing efforts to achieve this goal. Progress is still needed, particularly in the area of taxation, as mentioned by my noble friend Lord Cope.
Many noble Lords mentioned the work of the Law Commission, which has pointed to the particular value of reform and consolidation in the fields of immigration and sentencing law in England and Wales. Our commitment to tidying up our statutory landscape is reflected in the recent introduction of the Sentencing (Pre-consolidation Amendments) Bill, mentioned by my noble friend Lord Norton. This legislation is the first step towards making this complex area of law simpler, fairer and quicker to operate. First, we need to deal with the Bill; the sentencing code will be announced in due course. I note the suggestion that in this lull in parliamentary activity, we might use any spare capacity to make further progress with consolidation.
My noble friend Lord Cope mentioned the online statute book, which is delivered by the National Archives and is free to access. This is continually being updated to consolidate textual amendments into existing Acts. I am pleased to say that the update of primary legislation is almost completely up to date.
While we sometimes disagree on the content of legislation, our aspirations for the process are well aligned. We have come a long way in how we prepare and bring forward legislation, and remain committed to producing good law. As the committee’s fourth report set out, it is in everyone’s interest for our legislation to be evidence-based, influenced by diverse and expert input, scrutinised effectively and of the highest quality in drafting.
On skeleton Bills, the Government agree that Bills that contain vague powers because policy decisions have not yet been taken are usually not acceptable. However, a Bill setting out policy framework clearly, but using delegated powers to fill in details or implement part of it, may be justifiable in some cases.
Turning to the other report, on the delegation of powers, I pay tribute to my noble friend Lord Blencathra and his Delegated Powers and Regulatory Reform Committee. I take on board his warning about the Rivers Authorities and Land Drainage Bill, on which he has proposed summoning the author before his committee to discover exactly what is going on with it. The committee made a number of recommendations on the important role of delegated legislation in the legislative process. We have carefully considered the committee’s report and provided a detailed written response to each of its recommendations. As a Government, we very much endorse the committee’s emphasis on the valuable role we all play here in scrutinising delegated powers.
I will briefly set out some of the key points from the Government’s response. The noble and learned Lord, Lord Judge, expressed surprise that no statutory instruments had been rejected. I think he will find that quite a lot have been withdrawn and then resubmitted. This is probably a better process to go through than actually having them defeated. I know that some have been introduced, subsequently been found to be incorrect and a separate SI introduced to put them right. So it is not quite as black and white as the noble and learned Lord implied.
The committee observed that all involved in the legislative process have a responsibility to uphold what it referred to as “constitutional standards” in relation to delegated powers. The Government agree that a number of broad principles can be applied when considering delegations of power, although ultimately, it is for this House and the other place to consider whether a particular delegation is appropriate. It is impossible to prescribe a hard and fast set of rules to be applied uniformly to all delegations of power, as each delegation must be considered on its merits. In this respect, the Government agree with the committee’s observation that it is the constitutional obligation of Parliament to decide whether a proposed delegation of power is acceptable.
One of the committee’s key concerns is that delegated powers are increasingly being used by the Government for the purposes of legislating for policy and other major objectives, whereas they should be reserved for minor and technical matters. The Government agree that delegated powers should generally be reserved for prescribing matters of detail. I note my noble friend Lord Hunt of Wirral’s comment that it is not always possible to draw a clear dividing line between policy and detail. He takes the opposite view, and we will reflect on that particular point. I assure your Lordships that the Government always seek to ensure that the balance between what is contained within primary legislation and what is left for secondary is struck in an appropriate way.
A further concern expressed by the committee is the Government’s perceived use of broad, or even vague, powers on occasion. The Government agree that vague powers are to be avoided and we make every effort to ensure that proposed powers are formulated with a sufficient degree of precision and certainty. In any given case, it is for your Lordships to determine whether they are satisfied that the Government have justified the level of detail in a proposed power. As for broad powers, there may be some occasions where these are unavoidable. In these cases the Government aim to assist your Lordships by producing draft secondary legislation alongside the proposed power so that noble Lords can better assess how the power may be used in future.
The committee raised particular concerns over powers enabling the creation of criminal offences and the establishment of public bodies—a point made by the noble and learned Lord, Lord Judge. The Government agree that the cases for such powers are likely to be rare, although they may be appropriate occasionally if their use can be justified to your Lordships.
The committee also raised concerns over Henry VIII powers, and stressed the need for these to be fully justified. It is worth reading out what the committee said about Henry VIII powers. Henry VIII powers are,
“a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided”.
The Government agree that such powers should be taken only where they are strictly necessary. We are committed to providing a full and clear explanation to the House when taking such powers through information provided in the memo to the DPRRC. Each Henry VIII power needs to be considered individually on its merits. Sometimes, use of Henry VIII powers will produce a clearer legislative result than prescribing things in secondary legislation. Paragraph 19 of our response makes that point.
A number of noble Lords suggested that it should be possible to amend statutory instruments. That is not proposed by the committee, but the noble Baroness, Lady Smith, made a suggestion that the committee might like to reflect on—that it look again at the “take it or leave it” position of SIs. I would be interested in its reflections on that.
I am conscious that time is running out, but if I was asked to provide one example from my short time in your Lordships’ House—and to answer a question posed by my noble friend Lord Norton about what has changed—it is the effectiveness of scrutiny here. I would point to our recent debates about Henry VIII powers. I personally have no doubt that the trenchant criticism we have received, often from members of the Select Committee and usually from the noble and learned Lord, Lord Judge, has caused us to be more considered and cautious in our approach to utilising Henry VIII powers. I bear the scars of some of those debates and I believe that they have altered the terms of trade between primary and secondary legislation, and certainly business managers and the PBL will look carefully at any proposed Henry VIII powers even more so than they do at the moment. I think someone said that it was all a rubber stamp. Certainly, when taking these SIs through, the only thing that is stamped on is usually the Minister.
Finally, perhaps I might say a quick word to my noble friend Lord Trefgarne and thank the SLSC for the work it does. As he said, we will be providing a response to his report in due course, but we have gone further than any previous Government in being open and transparent about our plans regarding secondary legislation.
The Government’s responses to the reports have met with some headwind from noble Lords, and criticism of the Government is not unusual in Select Committee reports. However, the subject of these reports is different in some respects from others in that it focuses on a continuous process—namely, legislation—rather than, for example, a controversial policy decision that is difficult to reverse. To that extent, it is possible for the Government to take on board the gist of the criticisms in these reports, and indeed in our debate today, and seek to do better. That is what the Government propose to do and we will be incentivised in so doing by the threats from the noble Lords, Lord Tyler and Lord Beith, my noble friends Lord Hunt, Lord Cormack and Lord Norton, and the noble and learned Lord, Lord Judge, that the patience of your Lordships’ House is not unlimited. The Government have been warned.