Lord Young of Cookham (Con)
My Lords, I thank the noble Lord, Lord Butler of Brockwell, for this debate and for the array of big hitters he has tempted away from the long table. With some double-counting, we have a professor of government, a Cabinet Secretary, a Clerk of the House of Commons, three government Chief Whips, the Convenor of the Cross Benches, a Lord Chief Justice, a Lord Chancellor, a Lord of Appeal in Ordinary, two Leaders of the Commons, the Leader of the Opposition and a Lord Privy Seal. Between us, we could provide the entire cast for “Iolanthe” and “Trial by Jury”.
The noble Lord, Lord Butler, has long been associated with initiatives to promote better scrutiny of legislation, and he and I have spent many weekends at Ditchley Park, with others, as part of the Better Government Initiative considering reform in this area. In the words of Sir Humphrey, it would be a brave Minister who refused to consider a proposal with the impressive pedigree of the noble Lords who have spoken this evening.
I want to reverse the normal order in which Ministers respond to these debates by addressing head-on the specific and narrow proposal from the noble Lord and then considering the broader context in which it is placed and addressing some of the other points raised in the debate.
The noble Lord asked whether the Government had any plans to include in the Explanatory Notes statistics on the time taken to debate each part of a Bill. The short answer is that we do not—but that does not, of course, rule out further consideration of the proposition put forward so eloquently this evening by him and others. The reason we do not is, first, because the Explanatory Notes are designed to help the readers of legislation understand its legal effect. Secondly, the notes to Acts already include the Hansard column references to debates at each stage, so the Act is permanently accompanied by a record of how each House scrutinised the legislation in its various stages.
The raw data which the noble Lord is after on the actual time spent on each part, which goes beyond what is currently published, are already available in the public domain, as he said, since Hansard includes the times when consideration of each part of the Bill begins and ends. So, against the background of what I have said about the Government’s proposals, perhaps the noble Lord, Lord Butler, as a first step might want to ask the authorities in both Houses to conduct a pilot to publish the data he is after in respect of some suitable Bills.
Another option would be to see whether the Hansard Society might produce some historical data, and we could then see whether this adds value to the legislative process or produces the outcomes that the noble Lord seeks in terms of influencing behaviour. I will certainly bring to the attention of colleagues in government the proposition we have been considering, and I noticed the veiled threat that if action is not taken a whole series of Parliamentary Questions might be tabled to elicit, at some cost, the information that he has asked to be included in the Explanatory Memorandum.
I shall add a health warning at this stage and echo some of the points made by others as the publication of these data may give an incomplete picture of the time spent. A Bill that has been published in draft first, that has been extensively considered and amended and has had the wrinkles ironed out may need less time than a Bill not published in draft. Key clauses in a Bill may have been considered elsewhere, for example in an opposition day debate, or may have been examined in detail by a Select Committee. A good example of this was the work of the Home Affairs Select Committee into the Psychoactive Substances Bill when the Bill was before Parliament. Simply taking at face value the time spent on a specific Bill might underestimate the volume of scrutiny that it had attracted.
I turn now to some of the broader issues that were raised. In doing so, I recognise the force of many of the criticisms that have been made about how legislation is considered. I am sure that your Lordships will agree that this Prime Minister’s aspiration to publish more Green and White Papers can only be a good thing—a point underlined when my right honourable friend the Leader of the House of Commons recently gave evidence to the Constitution Committee and said he was keen to see more legislation preceded by Green and White Papers. That committee is currently conducting an inquiry into the legislative process, and two members of it have spoken in our debate today.
Lord Young of Cookham
Three members. Again, I will ensure that members and officials note the contributions that have been made in this debate. Were the Constitution Committee to be persuaded by the arguments that have been put forward this evening and to include that in its final report, that would of course be a significant step forward.
At the same evidence session, the Leader also expressed his support for pre-legislative scrutiny. So far in this Parliament, we have seen several major pieces of legislation published in draft, including the Wales Bill and the then Investigatory Powers Bill. It is the Government’s intention to publish legislation for pre-legislative scrutiny wherever possible. The draft Public Sector Ombudsman Bill was published only last month, following hot on the heels of draft tax legislation at the Autumn Statement.
I endorse what the noble Baroness, Lady Smith, and others have said about the value of scrutiny by your Lordships’ House, which the Government value enormously. I recognise that it may be possible to make further progress, and I will deal with some of the suggestions in a moment. I know that many of your Lordships are concerned that Bills are not subject to enough scrutiny in Parliament, particularly in the other House. I just ask your Lordships to remember that each House has its own style, and we should be diplomatic in discussing how the other place conducts itself, not least so we do not precipitate a domestic dispute and retaliatory action from down the Corridor.
I would like to address my noble friend Lord Ryder’s concerns about programming. Like him, I would not support the use of the guillotine by any Government unilaterally to curtail discussion on controversial Bills in an overprogrammed legislative Session. This is what has happened in the past, and I have voted against such Motions. But here I find myself in agreement with the noble Baroness, Lady Taylor, in that this does not mean that it is wrong for business managers to seek agreement among themselves and then to put to the House a proposal for the passage of a particular Bill. This can avoid wasting valuable time on procedural Motions and enable the House do to its job properly.
I had to sit opposite the noble Baroness, Lady Taylor, on the right-to-buy legislation, I think, discussing at length the timetable Motion in Committee. I think we would both agree that that was not the best use of time for either of us. Indeed, as shadow Leader of the House in the other place in the late 1990s, I added my name to some programme Motions tabled by the noble Baroness where I thought adequate time had been proposed, as did the then shadow Leader from the Lib Dems, the noble Lord, Lord Tyler. Both MPs and stakeholders outside value the certainty that programme Motions deliver, so that they know when particular measures will be debated in a Bill and can plan their lives appropriately. That is the model that has been put in place for the last five years and is in marked contrast to my earlier years in another place. The noble Lord, Lord Butler, referred to the 2005 Finance Bill, and I very much hope there will be no recurrence of what happened then.
No programme resolutions have been divided on since the 2012-13 Session. Although I was either Leader or Chief Whip for part of the time, the credit goes as much to opposition parties for not making unrealistic demands. Nor was it the case that this is all a Front-Bench stitch-up between the major parties. Back-Benchers, who are more independent than at any time previously—as I know to my cost as a former Chief Whip—could have forced a Division on these programme Motions, as could have the minor parties. But they did not. The fact that this and the previous Government have relied less on draconian programme Motions is testament to the more mature approach now adopted in the other place, exemplified by the lack of Divisions on those Motions. Things have changed since my noble friend left the House in 1997.
Following on from this, the Government have consistently allocated a more generous amount of time for Bill stages in the Commons. If we look at the current Session, three Bills had multiple days for Report in the other place, something which was previously very rare. On the 12 Bills which have had Report in the Commons, all groups of amendments were reached. Twelve Bills have been committed to Public Bill Committee, and all but one Bill has reported early. Only the Public Bill Committee on the Digital Economy Bill was still debating new schedules when time ran out, but all the other provisions in the Bill as proposed by the Government had been scrutinised. No knives have been used to control debate in Public Bill Committee in any programme resolutions since the 2012-13 Session.
Time spent is the subject of this debate and, by the end of last year, the amount of time spent in this Session in the Commons scrutinising Bills in Committee was 151 hours and six minutes. Oral evidence has been heard from 124 witnesses, in eight Public Bill Committees. By the time Parliament rose for the Christmas Recess, it had spent a total of 472 hours and 15 minutes debating the Government’s legislative programme. This averages out to more than 23 hours per Bill. Although exact comparisons between the two Houses are difficult, your Lordships may be interested to know that the Whips estimate that the Commons spent 247 hours and 22 minutes debating government legislation, while your Lordships’ House spent 224 hours and 53 minutes.
We should not forget that the other place has often been more innovative and introduced reforms that have aided parliamentary scrutiny. These include carryover Bills, which in practice mean that Parliament has more time to scrutinise such Bills, but also public evidence sessions before Commons Committee stage, which have been popular with stakeholders and MPs.
A number of issues were raised, which perhaps I can deal with briefly. A number of noble Lords referred to the legislative process and delegated powers, as well as to Henry VIII. My right honourable friend the Leader of the House has written to the Constitution Committee in connection with its inquiry a letter headed “The legislative process: delegated powers”. It is a six-page letter and Henry VIII features quite prominently. I hope that in due course the letter will get into the public domain because it addresses some of the issues raised in this debate about the scrutiny of secondary legislation and Henry VIII powers.
On the volume of legislation, in the 2014-15 Session there were 26 Bills, while in the current one there are also 26. Looking back, in 1997-98 there were 53 and in 2001-02 there were 39. We are actually at the lower end of the spectrum. In terms of pages there is similar progress: in 2014 there were 2,640 pages but in 2000 there were 3,865. So it is not the case that there have been a huge number of extra pages of legislation when one looks broadly over the last 15 years.
I am conscious that I am already into injury time. I would like to write to noble Lords to deal with some of the issues that have been raised. I recognise that there is scope for improvement and I am interested in many of the suggestions that have been made in this debate. Once again, I thank the noble Lord, Lord Butler of Brockwell, for instituting this very agreeable exchange of views.