Lord Bates
To ask Her Majesty’s Government what assessment they have made of the review by the Office of the Parliamentary Counsel, When Laws Become Too Complex, published on 16 April 2013.
Lord Bates
My Lords, in the report that we are considering, Richard Heaton observed:
“The volume of legislation, its piecemeal structure, its level of detail and frequent amendments, and interaction with common law and European law, mean that even professional users can find law complex, hard to understand and difficult to comply with”.
If Mr Heaton were an instantly forgettable Back-Bench Peer such as myself, that might be a mildly worrying but not an alarming observation. However, Mr Heaton is First Parliamentary Counsel and Permanent Secretary of the Cabinet Office.
Courageous though the admission may be, one might ask, if Mr Heaton finds the legislation piecemeal and hard to understand and to comply with, what hope has the classroom teacher, the doctor, the police officer, the small businessperson, the social worker, the homeowner or the benefits recipient for whom we spend our time legislating—let alone the legislators who are supposed to scrutinise the laws and the courts that struggle to interpret and apply them?
It is not just the complexity that baffles and bewilders but the volume. When Her Majesty made a historic visit to the Cabinet to mark her jubilee in December last year, it is reported that there was a forward item on the agenda relating to the Queen’s Speech. Her Majesty apparently suggested—I am not sure how constitutional it was to report this—that it should be,
“on the shorter rather than the longer side”.
At the time it was reported as a joke that everybody enjoyed, but, having read the report, I suggest that it should be seen not as a quip but as wise counsel from a Sovereign that should be heeded by her Government.
Halesbury’s Statutes is the nearest thing that we have to a statute book. At the beginning of Her Majesty’s reign in 1952, Halesbury’s Statutes ran to 26 volumes. This was the result of 740 years of legislating, stretching back to her predecessor King John and the Magna Carta. In the 60 years that she has been on the Throne, the number of statute volumes has increased from 26 to 74.
It is not just the number of Acts that has sharply increased but the number of pages. In 1952, the average number of pages for a government Act was 22. In 2009, the average number of pages for an Act was 122. The unrelenting rise in the volume of legislation was pointed out in the House of Lords brief. Reading the appendix at the back, one gets a momentary frisson of Thatcherite zeal when one comes to 1986-87 and sees that the tide of legislation momentarily abates, before resuming its upward course. Then one looks at the footnotes and finds that it was in that year that the Queen’s printer moved from using the A5 page size to A4.
Of course, Acts of Parliament are not the only source of legislation. Parliament has also seen a huge increase in the amount of secondary legislation presented to it. In 1952, 29 statutory instruments were laid before Parliament. By 2012, this number had risen to 3,328. Alarmingly, the trend has seen a very sharp increase under this Government. I would be grateful if my noble friend could explain why this has been the case. In 2008, the number of statutory instruments considered by Parliament was 1,395; in 2010 it was 2,971; in 2011 it was 3,133; and in 2012 it was 3,328.
We should consider also what happens to laws once they leave this place. Every year, new legislation results in more than 30,000 legislative effects, according to the report. One area where this is felt more than most is in the tax code. In opposition, I made a little bit of a living chipping away at the then Government and pointing out that, according to Tolley’s yellow and orange tax handbooks, the volume of the UK tax code had doubled between 1997 and 2010, and had overtaken the Indian code as the longest in the world. In a spirit of cross-party examination of these issues, I was alarmed to find that since 2010, the length of the Tolley’s guide has increased, and gone on increasing, by several thousand pages. What was intended on its launch some 50 years ago to fit into a pocket would now barely fit on to a shelf.
The Government came in with very good intentions. They announced the Office of Tax Simplification to cut a swathe through this complexity. We know that complexity reduces compliance and the tax take. If you simplify the system, you increase compliance and the take. I was amazed when researching for this debate to learn that the number of staff employed by the Office of Tax Simplification is, to quote the Minister, “slightly under six”. I presume by that he means five, or perhaps four. Perhaps he will give the figure today. It compares with 25,000 HMRC staff working on enforcement and compliance.
Other measures are under way to reduce the burden of legislation. I pay tribute to the Law Commission and the Scottish Law Commission, whose 2013 Act was the largest Statute Law (Repeals) Act ever. It did away with 817 whole Acts, along with sections of 50 other Acts. That was a great triumph. Noble Lords will be delighted to know that the Streets (London) Act 1696, which required Londoners to sweep and clean the area in front of their house every Wednesday and Saturday between 6 am and 9 am on pain of a 10 shilling fine, has itself been swept away. However, we should not get carried away and think that we are in a libertarian free-for-all, because between 1983 and 2009, Parliament approved more than 100 criminal justice Bills and added more than 4,000 offences to the criminal code. We are still pretty heavily regulated.
I am sure that Europe will be touched on in forthcoming speeches. For every one page of directive, we produce 2.6 pages of regulation and guidance, whereas Germany produces a page for a page—logically. It would be good to know what progress the Government are making here.
There are many reasons for the increase in the volume of legislation. I will mention a few. Some cynics might suggest that Governments of all persuasions find it useful to focus the attention and time of Parliament on considering future legislation rather than on determining whether past legislation has done what it said on the tin. However, there are other issues. The courts have played a part, as a result of the breakdown of trust in society between government and the governed, service providers and customers, and employers and employees. We have become much more litigious. As a result, an increasing volume of legislation is going before the courts. In return, the courts are showing some reticence in passing judgment and are referring back to Parliament for clarification—and so the circle goes on.
There are other drivers. The 24-hour news culture demands that something must be done every day. There are also a huge number of lobby organisations, such as trade unions, trade bodies and charities, all of which are well resourced and able to demand changes in the law to suit their particular concerns.
We should have one thing uppermost in our mind. Every time we add a law or a regulation, we incur a cost—not only monetarily and legislatively but morally. The more we legislate for what people should do and the less we trust them to behave as good citizens, the more we take away. Parliament is creaking at the seams as it seeks to digest the fruits of a burgeoning statute book and, almost 800 years after Magna Carta, the flow is increasing, not reducing. This is bad for the country, bad for business, bad for people and bad for Parliament. It is time to turn the tide, and I hope that the high calibre of contributions that will follow mine will help reverse the process.
Lord Phillips of Sudbury
My Lords, I thank my noble friend Lord Bates for this debate. I confess that, since I entered this place in 1998, I have been what some might call obsessed by excessive law-making and excessively complex law-making. That obsession has its roots in my earliest days in the law. I started in a country town solicitor’s practice in 1957. As I went around the local magistrates’ courts, within months it was blatantly clear to me that we already had a system of law that was way beyond the understanding of the normal citizen. Indeed, the lay magistrates had great trouble as well. That realisation led me to get a headmaster to allow me to teach bored 15 year-olds in his school in the 1960s. I found that they were not bored by the law; they were quickly enlivened and engaged. That in turn led me to set up the Citizenship Foundation in the 1980s with the financial support of the Law Society, and so it goes on.
We must not forget the late, lamented David Renton. Lord Renton was a lovely man who presided over a very thorough review of all this in 1975. When he asked me to give the Statute Law Society’s annual lecture in 2001, I spoke on excessive law-making. It is a massive, profound problem, and it is rather depressing that there are only 10 of us present in this debate, and six of those are speakers. Maybe it is because we follow on the heels of the sex debate, but it is depressing, because it is of the hugest, profoundest importance to us all.
We heard some vivid statistics from my noble friend Lord Bates. The statistic about the creation of 4,000 new criminal offences in the space of 16 years—far more than in the previous 1,000 years of our island history—is a warning. We would be more worried were we to know just how many of those laws have ever been implemented, which nobody does know. I enthusiastically congratulate Richard Heaton and his colleagues on their report, When Laws Become Too Complex. It is a brave report for the parliamentary draftsmen to produce, but it is from the horse’s mouth. What is more, it is a warning to us not to too easily blame the draftsmen for the situation we are in, which I am afraid we sometimes do too eagerly. It is not their fault. I think this report will answer anybody who doubts that.
Other Members of the House are perhaps aware that on 9 May the House of Commons Political and Constitutional Reform Committee produced a report, Ensuring Standards in the Quality of Legislation. To me, it is striking that neither report refers to our failure to contrive a system of legislation that contains that volume and complexity. I suspect the parliamentary draftsmen felt they had to hold back from criticising the functioning of Parliament as such. I shall go on to talk about the manifesto theory of government, by which we are plagued, and the use of the guillotine in the other place.
I will quickly read to the House what I thought was the sage nub of When Laws Become Too Complex. In the foreword, Richard Heaton writes that,
“we should regard the current degree of difficulty with law as neither inevitable nor acceptable. We should be concerned about it for several reasons. Excessive complexity hinders economic activity, creating burdens for individuals, businesses and communities. It obstructs good government. It undermines the rule of law”.
That last point is crucial: it undermines the rule of law. If we contrive a system in which the average citizen feels put upon by the law, resents the law and feels outside the law in the sense of any engagement with its passing, then that is all bad and it is too true of today’s society.
I quote again from the foreword:
“Good law is necessary, effective, clear, coherent and accessible”.
I want to talk about two of those characteristics, because I agree with that list of criteria. I start with effectiveness, because I do not believe that we can have effective laws if they are not fairly and equally implemented and enforced. As a lawyer in his 54th year, I can tell your Lordships that you would be scandalised if you knew both how uneven the enforcement of the law is, and how in some very important respects the law is not implemented at all. It is getting worse. We must address that, and part of doing so is to properly resource the law implementers. I was at the Charity Commission today. It was given huge responsibilities by the Charities Act 2006, and given many more since. What has happened? It has sliced its personnel, including its most senior personnel. How on earth can that commission do the job we force on it if we take away the resources it needs to do so?
Turning to accessibility, it has two aspects, does it not? First, there is the citizenry’s understanding of the laws by which they are supposed to lead their lives. Secondly, there is the question of access to legal advice when people need it. We cannot blather on about equality before the law if we leave poor people in the lurch when they desperately need legal advice. I am afraid that with the cuts in legal aid this has happened, and it is getting worse. I understand the problems of austerity, but I believe that if we constantly refer to the rule of law as the bedrock of our civilisation, we cannot then deprive needy citizens of essential advice when they are in deep trouble.
The issue of broad understanding of the law brings me back to the Citizenship Foundation and the few other organisations that seek to give pupils in our schools some broad understanding of the complex society of which they are supposed to be citizens and, most of all, the processes of the law, in terms of both its creation and its implementation. I am informed by the foundation’s chief executive, Andy Thornton, that over the past two years the number of schools that carry out schematic citizenship education has dropped by two-thirds. We need to be on our guard, because it is hopelessly hypocritical of us to go on about equality before the law and all the rest of it, yet not to give our young citizens any opportunity to come alongside and feel that it is their law, giving them an understanding of the law that is, of course, broad rather than detailed. In our time there is a huge problem of political disconnectedness, and we must deal with that.
I turn now to the component of necessity in the list of five criteria, and return to the number of laws we put before this place and the use of the guillotine. The guillotine has become a scandal. A quarter or a third of the Bills we see here have never been considered on the Floor of the Commons. That is a scandal. It is the primary House, for goodness’ sake. I ask the House to consider figures from the House of Commons office, showing that the effectiveness of the Commons in holding the Executive to account is now so enfeebled that over the past 11 years only six votes of over 3,000 went against the Executive. What sort of democracy is that? What sort of effectiveness is that? Here, I may say, we defeated the Government more than 500 times in the same period, and we are the inferior House.
Lastly, I make the point that we as legislators need more help. We cannot have these big, complex Bills without a Keeling schedule. We have not got the time to spend two days in the Library looking it all up. I hope that we will remember that as well.
Lord Norton of Louth
My Lords, I, too, congratulate my noble friend Lord Bates on raising this important and timely Question. In the time available, I want to focus on a number of points arising from, or prompted by, the useful review by the Office of the Parliamentary Counsel.
As the report acknowledges, and as my noble friend stressed, legislation is complex both in its form and in the manner by which it becomes law. The complexity is multifaceted and is an impediment to members of the public—indeed, anyone, as my noble friend stressed—wishing to make sense of our law.
Like my noble friend, I want to focus on the volume of legislation and the problems with the means by which we enact it. As we heard, there is by common consent too much legislation. We generate too much law as a result of a “something must be done” mentality and by individual Ministers wanting to get through their own big Bills. Until we get the Government to accept that sometimes more legislation is part of the problem, not part of the solution, we will continue to overburden Parliament not only with too much legislation, but rushed legislation.
As the noble and learned Lord, Lord Judge, said of criminal law:
“For too many years now the administration of criminal justice has been engulfed by a relentless tidal wave of legislation. The tide is always in flow: it has never ebbed”.
The problem is not just quantitative but also qualitative. There is not just more law, but more complex law, especially where one is dealing with regulation. This creates problems for Parliament. There is more complex legislation, but there is no commensurate increase in the time and resources available to deal with it. There is a finite number of Members available to sit on committees. There is only so much time available for the different stages of Bills.
There is also a problem with government in how it views Parliament and the legislative process. This is acknowledged in the report, which states on page 27:
“The legislation secretariat within the Cabinet Office is working with Parliamentary Counsel to promote learning within departments about legislation and the legislative process”.
That is a pretty stark admission that government departments are not well versed in the legislative process. Officials and parliamentary counsel do not always appreciate one another’s difficulties, but it is not simply a case of each needing to understand the other: there is a need for officials to understand how Parliament works. I have been pursuing this for some time. There is still a considerable way to go in educating officials about the significance and the processes of Parliament. The replacement of the National School of Government with Civil Service Learning has not necessarily enhanced the capacity for such learning. Given that, it will be helpful if my noble friend the Minister can explain what steps are being taken by government to ensure that officials who advise Ministers are fully aware of the importance of Parliament and the legislative process as well as the difference between the two Houses.
The legislative process is also flawed. There has never been a “golden age” of legislation, and the present procedures actually have some benefits over what went before, but they remain inadequate. Let me adumbrate what in my view needs to be done.
The way in which we undertake legislation, frequently by amending earlier legislation, makes for some complex and impenetrable Bills. One means to aid parliamentarians is that referred to by my noble friend Lord Phillips, which is to produce Keeling-like schedules—he referred to Keeling schedules, but it is more appropriate to refer to Keeling-like schedules—showing how the proposed changes affect extant legislation. Where they have been produced, they have been enormously helpful. I think there is a strong case for arguing that where most of the clauses of a Bill amend legislation, and where that particularly is one or two Acts, the expectation should be that the relevant department will produce a Keeling-like schedule. Perhaps my noble friend could take back to his colleagues the value of such schedules.
It would also aid Parliament and act as a valuable discipline on government if Ministers were required to publish with a Bill the purpose of the measure and the criteria by which it can be assessed to determine if it has fulfilled its intended purpose.
More generally, pre-legislative scrutiny should be the norm and not the exception. I welcome the number of Bills submitted for pre-legislative scrutiny in this Parliament but would like to see the use of such scrutiny taken further. As we have heard, there needs to be a joint legislative standards committee as recommended by the Political and Constitutional Reform Committee of the other place. Such a Joint Committee would oversee the application and effectiveness of a code of legislative standards. I know that the First Parliamentary Counsel has doubts about the value of such a Joint Committee, but my view is that it would ensure consistency and provide a useful discipline for government.
I also commend another recommendation of the Political and Constitutional Reform Committee, namely that there should be agreement between Parliament and government as to what constitutes constitutional legislation. This builds on the report of the Constitution Committee of your Lordships’ House that there needs to be a distinct process in government for identifying and dealing with measures of constitutional significance. The position of government at the moment, namely that measures of constitutional significance should be treated in the same way as all other Bills, is unsustainable and, indeed, dangerous in terms of ensuring adequate consideration of changes to our constitutional framework. Not surprisingly, I endorse the Political and Constitutional Reform Committee’s endorsement of the test I produced when I was chairman of the Constitution Committee, namely the two P’s test: does a measure affect a principal part of the constitution and does it raise an important issue of principle? If both tests are met, it should trigger special consideration.
We also need to look beyond the process of passing a Bill into law. For too long, both Ministers and Parliament treated legislative success as Royal Assent. That was the end of the process. We should be treating success as when an Act of Parliament achieves its intended purpose. We now have post-legislative review, which I greatly welcome, but we need a committee on post-legislative scrutiny. In this House, we have now established ad hoc committees to undertake post-legislative scrutiny of particular measures, which again is a great step forward, but a dedicated post-legislative scrutiny committee would ensure that nothing fell between the gaps and serve as a body for ensuring best practice in departments in undertaking post-legislative review.
Those are but some of the things that need to be done. We are making some progress. Having clearer Bills will be a major step forward. Having fewer Bills will be an even greater one.
Lord Tyler
My Lords, I congratulate my noble friend Lord Bates and endorse enthusiastically not only what he said but what has been said by my other two colleagues who have contributed to this very timely debate.
I want to take up the point made by my noble friend Lord Phillips about the context and the consequence for the public of some of the work that has been undertaken for this report. In doing so, I refer to the Audit of Political Engagement published recently by the Hansard Society, of which I am a vice-chair, which I think is extremely important and, in some respects, encouraging. Mostly, however, it is discouraging. Mostly it says that people are disengaged for some of the reasons to which my noble friends have referred. However, in a number of ways there is new engagement and increased engagement. For example, 42% of the public say that they would like to be involved in national decision-making—up 9% compared with the previous year—and 47% agree that Parliament holds government to account, up from 38% last year. Fifty-five per cent agree that Parliament debates and makes decisions about issues that matter to them, up from 49% the previous year. But most important of all, 55% of the public agree that politics and government seem so complicated that,
“a person like me cannot really understand what is going on”.
That is the critical consequence of the complexity to which this excellent report refers.
I want to refer to one or two of the examples given in the report. Incidentally, the authors of the report show that they are masters of complexity. I am not allowed to wave about my visual aid but page 16 sets out the legal effects of the Companies (Audit, Investigations and Community Enterprise) Act 2004. I do not understand how that got past anybody seeking to reduce complexity.
Mr Heaton’s foreword to the report is extremely salutary. I hope that your Lordships will forgive me if I refer again to his absolutely critical paragraph. He says:
“Excessive complexity hinders economic activity, creating burdens for individuals, businesses and communities. It obstructs good government. It undermines the rule of law”.
That is the context in which we should look at this issue. I pay tribute to the work that has already been done, I understand, as a result of this activity by the parliamentary draftsmen. I shall refer to one particular example of the way in which they have looked at this issue: gold-plating, which my noble friend Lord Bates spoke about briefly. Gold-plating has been around for a long time and I congratulate the Government on seeking to deal with it. When I was responsible for agriculture for my party in the other place, I recall looking at a number of directives as they emerged from Brussels, then looking at the regulations as they appeared in the United Kingdom.
I was not at all surprised to read in this document that in 2003 there was an average “elaboration ratio” for the UK of 330%. In an extreme example, directive 2002/42/EC consisted of 1,167 words in its original English text, but resulted in 27,000 words of implementing regulation in the UK. I recall talking to a previous Minister of Agriculture shortly before that, who told me that he got so fed up with the gold-plating going on in his department that he instituted a format for reviewing every directive that came from Brussels. Alongside it, his civil servants had to put what they proposed to add and the resulting consequences in terms of length and complexity. He or one of his Ministers then had to tick off and approve the sequence as acceptable.
The most significant thing he told me was that within three days of losing office, the civil servants abolished the system that he had instituted, because they were so pleased with the way in which they could add excessive requirements to what emerged from Brussels. It is a well-known fact that throughout the other member states of the European Union, directives, for example on abattoirs that I was concerned with, were a matter of reducing responsibilities at a more local level, but in the United Kingdom everything was centralised and imposed much more rigorously.
As has already been said, pre-legislative scrutiny is an extremely important way in which we should take responsibility for removing unnecessary complexity. It should be absolutely explicit at the outset that one of the responsibilities of a Joint Committee is to reduce complexity in draft legislation. I am an enthusiastic supporter of Joint Committees—I sat on several of them—because MPs and Peers educate each other when we sit together. As my noble friend Lord Norton has said, it is also true that both Houses have been asked to think carefully about improving the quality of legislation, most recently by the Select Committee in the other place, but before that the committee chaired with such distinction by Dr Tony Wright. Our own Leader’s Group, chaired by the noble Lord, Lord Goodlad, looked hard at this and made a substantial suggestion, which I am afraid has so far not been implemented in this House. It is about improving the quality of legislation and recommended a legislative standards committee in recommendation 16 of its report. Sadly, that has not been pursued, which is a great pity.
I have one simple, practical suggestion to make. Again, I am not allowed to wave my visual aid, so I shall have to ask the Minister to look at it later and take it seriously. In preparing a recent draft Bill with assistance from Members of the other two parties in the other place, my extremely able and far more technically competent assistant Alex Davies, found it was quite possible to put the Explanatory Notes alongside the clauses. That one small step, allowing you to read across from Clause 9 to what Clause 9 actually means, would be hugely more accessible to the general public—indeed to professionals and those in business outside this House—than the present arrangements. With draft Bills, government Bills, Private Members’ Bills and secondary legislation, the Explanatory Notes can without great difficulty be side-by-side with the appropriate part of that legislation.
That is a very practical suggestion which I give to your Lordships’ House. I will sell it to the Government for only a penny, but I would like to make sure that the credit is not given to me, but to my extremely able assistant. This is a timely debate. What is so interesting about it, referred to by the three previous speakers and me, is that we in this House could do more to improve the situation. It is not just a question of passing the buck to the professional parliamentary draftsmen. It is not even just a government responsibility, it is the responsibility of the two Houses of Parliament to make our legislation more accessible and less complex.
Baroness Hayter of Kentish Town
My Lords, I add my appreciation to the noble Lord, Lord Bates, for this debate. I gather that he has taken the Minister away from the Countryside Alliance summer ball and me from a farewell to the Fabian Society office where we have been for 80 years, but we shall forgive him. There is, of course, a difference between legislative burden and legislative complexity. I do not think that the former is the problem, it is the latter that is the subject for today.
We must remember that for consumers, legislation is about making roads, offices or homes safer, safeguarding children from danger or preventing consumers being ripped off. So we must stop the idea that legislation is a burden. It is not a burden to consumers if it means that they do not die from carbon monoxide poisoning, if children are protected or provided with decent schools, or if consumers have access to an ombudsman when a service or product goes wrong. It may be that some legislation should have stayed, such as cleaning the path outside our doors. I am not certain that that was the right one to get away. However, let us drop the idea that legislating is bad: it needs to be done, done well, and for a specific purpose.
Today we have heard a good debate, and along with others, I welcome the report—with the exception of one small line—and its analysis of an important area. Of course, it does not propose solutions for us, so I will take time to suggest a couple for the Government to think about. First, however, perhaps I may say that my one difference with the report, which echoes what has already been said, is the idea that the public is a new—and it uses that word—audience for legislation. On the contrary, in answer to the question, “Who is the user of legislation?”, I was going to use the word people. The noble Lord, Lord Phillips, used the word citizenry, and the noble Lord, Lord Bates, talked about small businesspeople and shopkeepers. Absolutely: surely, they are the real users of legislation.
The rest of us—legislators, judges, lawyers or advisers —are basically intermediaries, or maybe implementers. If we hold that in mind, which is what others have said today, our laws will be better drafted and understood. It is notable and, for me slightly regrettable, that the Good Law guidance produced in April by the Office of the Parliamentary Counsel, boasts that it is talking to,
“lawyers, the judiciary and legal educators”,
but it makes no mention of the general public. It is beginning to listen to users through a project run by the National Archives, but that does not feel core to its work. Surely if the Cabinet Office wants, as it states, to write laws that “can be readily understood”, then users ought to be one of the drivers of a new approach?
I turn to the report. As we know and has been said in the debate, unclear law often arises out of either unclear policy or perhaps an overhasty reaction to events. Even before drafting starts, it is important for politicians and policymakers to engage with relevant experts to ensure real clarity in thinking and in writing, including those who know the subject concerned and those in bodies such as the Law Society who have a wealth of experience in interpreting Parliament’s words. It also means not bringing clauses here, as is happening today in this House with the Energy Bill, before consultation on them has been completed.
There are some “to dos” or “to be thought abouts” that are ripe for government discussion and perhaps for cross-party attention, especially given that the quality of legislation and its scrutiny should be of concern to government as well as opposition. First, always set out the objective—or, in the words of the noble Lord, Lord Norton, the purpose—for each Bill whereby it is clear what it is meant to achieve, and drafters and legislators can check that it achieves those objectives and the reader knows what it aims to do.
Secondly, unless there is a very good reason or emergency, always have pre-legislative scrutiny, as the noble Lord, Lord Tyler, and others have stressed. We have witnessed the success of where it has happened, for example in the Defamation Act, on which the noble Lord, Lord Phillips, and I spent a good few hours. Such pre-legislative scrutiny ensures that a Bill’s drafting really provides for the Bill’s clearly stated objectives.
Thirdly, endorse the Commons Political and Constitutional Reform Committee’s recommendation last month that,
“the Government should publish the reasons why a bill has not been published in draft and cannot therefore be subject to pre-legislative scrutiny”,
where that is the case.
Fourthly, do not introduce “Christmas tree” Bills. Some of us spent a long time dealing with the Enterprise and Regulatory Reform Bill, which was actually five different pieces of legislation.
Fifthly, as the noble Lord, Lord Norton, said, do not revise existing Acts wherever you can but try to start from scratch. Some of us here, including my noble friend Lord Tunnicliffe and I, spent a long time on the Financial Services Bill, which was hung on to another Bill and sometimes left us none the wiser as to what it was seeking to achieve.
Sixthly, please think of the audience. It is interesting how a Draft Consumer Rights Bill should end up being 104 pages long.
Seventhly, do not try to legislate for 25 years hence. Here I do not blame the Government, but there was an interesting amendment to the Succession to the Crown Bill, not in the name of the Government, that tried to deal with what happened if a child yet to be born of the current Prince William turned out to be gay, have a gay marriage and then had a child. Trying to write such legislation was unnecessarily complicated 25 years off.
Eighthly, we should implement another recommendation of the Commons Select Committee, that there should be a code of legislative standards.
We have all heard that this subject is a matter for this House, perhaps even more than the other place, given how much time we spend on scrutiny. It is a matter for government as well as for opposition and I hope that we can move forward. I look forward to the Minister’s response.
Lord Gardiner of Kimble
My Lords, I thank my noble friend Lord Bates for the opportunity to debate the important matter of complexity in law. The report is part of parliamentary counsel’s good law programme, which aims to improve the quality of legislation by identifying ways to improve further its drafting, reduce complexity and make the law more accessible.
I have sympathy with my noble friend Lord Phillips of Sudbury who previously spoke of never-ending “cascades of legislation”. Indeed, my noble friends Lord Bates and Lord Norton of Louth spoke of volume. However, this is clearly a long-term trend, as demonstrated by the statistics cited in the report. In 1959, Parliament agreed to 1,163 pages of primary legislation. By 2009, 50 years later, the figure had doubled to 2,247. That is why the report by the parliamentary counsel is timely and will help us to understand why the statute book has grown so much. I am mindful also of what my noble friends Lord Bates and Lord Tyler said about Europe, and I am pleased that the Government are committed to ending the so-called gold-plating of EU rules.
I can assure your Lordships that we do not find ourselves in a unique situation in the United Kingdom. Expanding statute books and complex laws are a problem encountered around the world. Parliamentary counsel’s report helpfully cites examples of some European countries that have set up processes, or even whole ministries, dedicated to simplifying legislation.
I am very conscious of the eight-point plan of the noble Baroness, Lady Hayter. Indeed, the Government are currently considering the report by the House of Commons Political and Constitutional Reform Select Committee on its inquiry into standards in legislation, and we hope to respond to this next month.
A number of noble Lords raised the question of a standards committee. My right honourable friend the Leader of the House of Commons has said that it is not clear exactly what it would add to the processes we already have, whereby Bills are often published in draft for consultation and scrutiny. Nor is it clear at what stage a legislative standards committee would be involved. It would add another layer of process, duplicating the efforts of other committees that already examine both the policy and the drafting. However, the point has been made by noble Lords tonight, and we will need to await the response next month.
We should be clear that a conversation about good law is not the same as a conversation about policy. This issue should not be clouded by partisan politics about the merits of policies in specific Bills or orders. Parliamentary counsel’s report aspires to “good law”, which is defined as,
“necessary, effective, clear, accessible and coherent”.
This is a sentiment I am sure we share across all sides of the House.
This Government are committed to legislating in a better way. While there is always more that can be done, in recent years we have taken a number of steps to tackle complexity in legislation. Parliamentary counsel are now drafting legislation in plainer language. My noble friend Lord Bates raised secondary legislation, and we do seek to stem the tide. The Red Tape Challenge is taking stock of unnecessary regulations, and the “one in, two out” rule is limiting the new burdens that can be imposed. This Session, we will be publishing the draft deregulation Bill for pre-legislative scrutiny by Joint Committee. The purpose of this Bill is to remove a raft of unnecessary burdens on businesses and individuals. I trust my noble friend Lord Bates will approve of that.
The noble Baroness, Lady Hayter, referred to the National Archives. It has greatly improved its website, legislation.gov.uk, which 2 million people a year use to access the statute book. I agree with the noble Baroness: we are talking about people—our fellow citizens—who wish to be more engaged with seeing what is on the statute books. It is a good move. Within government, we have been working to increase the capability of Bill teams and make sure we learn from previous lessons. I hope this will go some way to reassuring my noble friend Lord Norton of Louth, although perhaps not in full, but this includes best practice on how to engage with Parliament. The Legislation Secretariat in the Cabinet Office and parliamentary counsel run a regular “lessons learnt” exercise, and we need to continue with that. Obviously, where there are gaps in knowledge, we need to fill them.
This Government want to give Parliament the opportunity to scrutinise legislation in full. If we are to achieve better legislation, we need to tap into the wealth of expertise that exists in Parliament, particularly in your Lordships’ House. To this end, more legislation is now published in draft for pre-legislative scrutiny, a point made by my noble friend Lord Norton of Louth and the noble Baroness, Lady Hayter. In the previous Session of this Parliament, 17 Bills or measures were published in draft, more than ever before. Of those 17, six were scrutinised by Joint Committees, again more than ever before. This Government have also continued the practice of providing post-legislative scrutiny memoranda, usually five years after an Act has been passed. This is a useful opportunity to take stock of legislation and consider how it has worked in practice. In the other place, committees have started to make use of these memoranda and publish post-legislative scrutiny reports. These are valuable and I hope that this activity will continue and increase.
In the previous Session, at the instigation of the then Leader of the House, and on the recommendation of the Liaison Committee, your Lordships’ House appointed the first dedicated post-legislative scrutiny committee, to look at adoption legislation. Two more such committees have been established in this Session to consider mental capacity legislation and the Inquiries Act 2005.
Of course, there is always more that can be done. The parliamentary counsel report found that users of legislation often expect it to be more complex and more difficult to use than it actually is. Clearly, there is a challenge for the Government and Parliament to be more open and accessible. To this end, the Government are already reviewing—I hope this will be music to many of your Lordships’ ears—Explanatory Notes, which should help make legislation more accessible to the lay reader.
I now turn to Keeling or as my noble friend Lord Norton of Louth described it, “Keeling-like”. We will also consider whether there is scope to provide “as amended” texts of Bills more frequently, for example as we did for part of the Education Act 2011. By reaching out to users of legislation, we can assist them, allay some of the concerns and give people the confidence to use the statute book, which we all want.
There is no single cause for overly complex legislation. The report acknowledges that sometimes complexity can be introduced by the drafting. Parliamentary counsel have made great progress in their use of plainer language and are committed to drafting effective legislation that is easier to navigate and understand. However, complexity can be added to legislation at all stages of the process, not just in the drafting. The good law programme is looking at the way in which policies are taken from inception to the statute book. It is not a finite project and it will not present all the answers any time soon, but it has begun a dialogue about how we can improve legislation and shows the Government’s willingness to work with everybody to improve the quality of the legislation produced.
Sometimes complexity can be the product of a robust scrutiny process. There is an understandable tendency for Parliament to seek further safeguards and more assurances in a Bill. Each instance is no doubt for a good reason, but in total these can add to complexity and result in laws which are hard to use. The growth of judicial review has also had an impact. As a result, the Government may draft cautiously or include more detail on interpretation and intention. As such, further legislation, occasionally fast-tracked, may be required following a court case, which again can add layers of complexity.
Throughout this process, we in government and Parliament often forget who makes use of the statute book. The noble Baroness, Lady Hayter, and my noble friend Lord Bates in a lengthy list mentioned this point. It is not just lawyers and judges; small businesses, charities, volunteers and consumers, to name only a few, also use the statute book. A new small business does not have a large legal department to rely on and must itself deal with the legislation. Overly complex law hampers enterprise, deters entrepreneurs and adds to the general weight of red tape. There is, therefore, a strong economic case for good law, to which my noble friend Lord Phillips of Sudbury referred. There is also a strong moral case. Citizens should have ready access to the laws of the land which set out their rights and responsibilities. When the law is too complex and inaccessible, it can be held in contempt by the public, again a point highlighted by my noble friend Lord Phillips of Sudbury. It also diminishes respect for the rule of law, which is necessary for a civilised and well functioning society.
The Office of the Parliamentary Counsel’s report represents the start of a collaborative process that will need to include parliamentarians, lawyers, the judiciary and academia to understand and tackle what are often long-standing problems. It is self-evident that Parliament has a crucial role to play in forming the laws of the land, but Parliament and the Government need to work in partnership to create better laws. Your Lordships’ House has a strong track record in scrutinising and, indeed, improving legislation. As a revising Chamber, it has an important role in ensuring that the legislation it passes is necessary, effective, clear, accessible and coherent.
I am conscious that I have not answered fully, or indeed some questions in their entirety, and I will write to noble Lords to ensure that there is a full record of what has been asked. However, I am grateful to all the noble Lords because this debate forms part of a dialogue, and I have taken away a great deal that needs to be considered. We have made a good start, but there is always more to do to ensure that legislation is proportionate and appropriate to its aims, and that the statute book is accessible and understandable.