Government and Parliament

Lord Norton of Louth Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, like other noble Lords, I welcome this timely debate initiated by the noble Baroness, Lady Smith of Basildon. There is much that needs to be done to strengthen Parliament in scrutinising the Executive and their legislation. However, before addressing what is wrong with the process, I will just say a few words about what is right with it.

Parliament is now arguably at its strongest in modern political history in scrutinising the Executive. MPs are much more independent in their voting behaviour. Both Houses are much more specialised, utilising investigative Select Committees, and better informed as well as more open. Government no longer has a stranglehold on the timetable in the Commons. The House has acquired the Backbench Business Committee and a Petitions Committee. The Whips in the Commons have lost their patronage in terms of the chairs and members of Select Committees. The prerogative power in committing forces abroad is now constrained by the need for Commons approval.

In terms of legislative scrutiny, the Commons, as Louise Thompson’s research has shown, has far more impact than is reflected in the small number of non-government amendments accepted. The Commons has introduced Public Bill Committees, and in this House we now utilise ad hoc committees for important post-legislative scrutiny, a development that plays very much to our strengths. This House is to the fore in scrutiny of secondary legislation. The Constitution Committee does excellent work in reporting on Bills of constitutional significance.

There is thus good news. What, then, is the problem? The primary problem is the sheer volume of legislation. The growth in the volume, both of Acts and statutory instruments, dates from the 1990s, with the greatest increase taking place in the number of pages of statutory instruments—it is not numbers, it is length. There were two step changes, first in the 1990s and then from 2005 onwards. The problem is qualitative as well as quantitative: it is not just the length, but also the complexity and scope. The noble and learned Lord, Lord Judge, has called attention to the growth of Henry VIII provisions. Governments are trying to do too much and seek to manipulate the legislative process to achieve their goals.

The Constitution Committee, in its 2004 report Parliament and the Legislative Process, looked at the legislative process holistically. It made the case for pre-legislative scrutiny to be the norm, which fits very much with the wording of today’s Motion. There was a notable increase in the number of Bills submitted for pre-legislative scrutiny in the last Parliament, but the number has varied over time and remains reliant on the Government to determine which of their own Bills merit such scrutiny.

The committee also made other recommendations of relevance to the Motion today. It recommended that all Bills should be subject at some point to detailed examination by a parliamentary committee empowered to take evidence. Government Bills starting life in the Commons now go to evidence-taking Public Bill Committees, although Bills introduced in this House do not get sent to an evidence-taking committee, either here or in the other place. The Committee also recommended that Explanatory Notes should set out clearly the purpose of the Bill and how it should be judged in future to have achieved its purpose. That would be very good discipline on government. Linked to that, as the noble Lord, Lord Butler, has said, there is a case for a legislative standards committee to ensure that Bills brought forward by a Government meet set standards and that the check is undertaken in Parliament and not solely by government.

The problem, however, is writ large with secondary legislation. As the Hansard Society observed in its report on Parliament and delegated legislation:

“the use of delegated legislation by successive governments has increasingly drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail”.

That is why secondary legislation is presently on the political agenda, but it is important to understand the cause of the mischief. The report of my noble friend Lord Strathclyde addressed the symptom and not the cause, and in any event was based on a false premise. Indeed, it opened by defining the convention and then proceeded to ignore it. It is not clear why this House should be penalised for the Government using secondary legislation for purposes for which it was not intended. The Government are in effect saying, “We wanted to use secondary legislation to achieve policy goals without sustained parliamentary scrutiny, and we intend to legislate to try to restrict the House of Lords in order that we can do so in future without challenge”.

The noble Lord, Lord Cunningham, has already quoted the Public Administration and Constitutional Affairs Committee in the other place, which concluded:

“Such legislation would be an overreaction and entirely disproportionate to the House of Lords’ legitimate exercise of a power that even Lord Strathclyde has admitted is rarely used”.

The Government should be reviewing their own procedures. Can my noble friend the Leader of the House tell us what the Government are doing to ensure that departments do not misuse delegated legislation and what constraints they plan to introduce to ensure statutory instruments do not drift into areas of principle and policy? Those are the questions we should be addressing. We should not be distracted by the Government’s attempts to blame this House for their own failings.

There is a lot that we need to do. We should acknowledge what has already been achieved—we are much stronger than many realise—but we need to build on that and ensure that Parliament is truly effective in calling government to account. The bottle of parliamentary scrutiny may be filling up, but there is still an awful long way to go.