Preparing Legislation for Parliament (Constitution Committee Report)

Baroness Smith of Basildon Excerpts

Wednesday 12th June 2019 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting debate, and the experience and knowledge of this House has been extremely evident. It is hard to do great justice in one day to these two very detailed reports. I thank all those on the committee who took part, particularly the noble Lord, Lord Norton of Louth, who gave a very concise and precise introduction to today’s debate.

This may be a futile suggestion, but I wonder whether we should suggest that these reports be read by every Minister, aspiring Minister, parliamentary draftsperson and civil servant. If we were to act in accordance with the principles held within these reports, our process of legislation might be slightly slower but it would also be more effective and prevent problems further down the road. Both reports are largely about process, but they also rightly acknowledge the political environment we operate in and that political judgments have to be made. Inevitably, this will create tensions from time to time, but good process—as outlined in the reports—can minimise that.

We must recognise that there has been progress with process. I have been reflecting on my time in Parliament since I was elected to the House of Commons in 1997. Back then, Explanatory Notes were perhaps a sentence or two about what the clause did—they were not really Explanatory Notes at all. That has changed. We have seen progress in pre-legislative and post-legislative scrutiny. I served on one of the first standing committees that started its deliberations on a Bill with evidence sessions before moving on to the Bill’s clauses.

We are making steady progress, but when reading through the reports what struck me was that Ministers, in their evidence and discussions with the committee, clearly understand the value of good process. There was very little disagreement about how things should be done, but there seemed to be a complacency in how close the Government think they get to good practice. Given the agreement on basic principles, the key question is why, given the agreement from Ministers when giving evidence to the committee, the legislation brought before Parliament often falls short of those principles.

I was disappointed by the Government’s response to the committee. We have to get defensiveness out of the government mindset on this. I hope that the Minister tonight, who is not known for being defensive or rejecting good ideas, will perhaps be more positive.

There is a wealth of information here, but I shall make a few comments about three broad themes. My first point is on the issues around evidence and judgment. Good evidence and process cannot replace political judgment, but they do enhance it. Whether we agree or disagree with an actual decision obviously depends on our own political perspective—that goes to the heart of the political principle of a Bill—but most of our deliberations in this House are on the viability of legislation and whether it achieves what it aims to do. We examine any possible unintended consequences and the evidence for that proposed course of action.

Although there are some examples, which are in the report, where legislation was unnecessary to enforce a policy, I am not automatically critical of a Government who feel that the importance of an issue is so great that legislation is perhaps not strictly necessary but is nevertheless desirable or helpful. It may be just to send a very public message about the commitment on an issue, which is not ideal, but they may also consider that the longer-term sustainability of that policy requires a legislative base. We cannot dismiss a public demand or political desire to do something in response to an issue, but that is not to give permission to ignore evidence or introduce badly drafted legislation.

I think it was on the Immigration Act 2016 that the Government sought to outsource immigration checks to landlords. This House was able to force the Government to introduce a pilot scheme first, although I am not convinced about a pilot scheme that seeks to prove that something can work rather than to test the viability of whether it will.

The passing of the Trade Union Act in the 2015-16 Session was a really good example of political views taking precedence. Even after passing all its stages in the House of Commons, we still had no sight of any impact assessment. I was grateful when the House overwhelmingly supported my proposal to allow a very controversial, highly political part of the Bill to go to a separate but parallel Select Committee. The evidence sessions that took place brought more light than heat to the debate; interestingly, as we moved back on to the Floor of the House, one Peer, who had strongly supported the Bill throughout, later candidly admitted how little he had previously known about trade unions.

Another example of politics overriding evidence was the Parliamentary Voting System and Constituencies Bill. During the course of the Bill, I asked for the justification and evidence base for reducing the number of MPs to 600. I was told by the then Leader of the House that it was “a nice round figure”. We never had any other explanation for how that number was arrived at, but I sometimes wish the Minister had been talking about himself and not the number of MPs that he was reducing the House to.

However, that does not denigrate all political judgments. As a Minister, I recall being informed that I had to authorise a certain course of action because legal advice had been taken—unbeknown to me—and the lawyers said that I had to sign it off. It was completely against my principles to do so and I took the view that I was entitled as an elected representative and as a Minister to make a value judgment on the evidence before me and my own views—so I did.

After two days in court, when I was judiciously reviewed, the judge fortunately agreed with me. It is an important judgment because it says that if you have the evidence, you can bring political judgment to bear as well—it is not just a legal decision. If it is to be just a legal decision, we might as well do away with politicians and just have lawyers. However, those value judgments and political judgments have to be made transparently and with evidence. Clearly, the committee’s recommendation for producing the evidence base or explaining the justification is the right one.

In some ways, I should like us to look more at impact assessments; that is one way in which we could get better evidence. I regret that the Government do not often follow their own guidance on the availability or content of impact assessments. At times, the content has been of little value. When one looks at the alternatives, it just says, “It doesn’t achieve the objective”. It does not say why or what other options have been looked at. A good impact assessment could be a great tool for examining legislation and a real help to the Government and Parliament.

I apologise to the noble and learned Lord, Lord Mackay of Clashfern, for being briefly out of the Chamber while he was speaking. My noble friend Lord Stevenson took some notes for me and I look forward to reading them. The noble and learned Lord made a wise speech, talking particularly about delaying the implementation of a Bill to give further consideration—a point certainly worth considering.

On pre-legislative scrutiny, the reports—and noble Lords tonight—have commented on consultations. Governments set great store by consultations. I am not sure why the consultation period has been reduced and hope the Minister will explain that. However, perhaps a more serious point is that, as consultations have become more embedded in our political culture, they have become largely meaningless. They are sometimes an exercise that must be gone through, with no one taking note of what they contain.

If the Minister does not have the information to hand, perhaps he could write to let us know the number of Government consultations in any one year; the average and longest time it takes the Government to respond; and—a point drawn out in the report—how consultees are chosen or informed of the consultation.

I recall meeting officials to consider consultation responses before signing off a final report on a particular issue. We had a good response, with several good suggestions within the overall policy framework set by the report. However, no changes were proposed to the final report. I asked, “Are there no suggestions worthy of change?” There were, but they were not put in until I raised the question. We made those changes, but too often I fear that good suggestions go into the paper shredder because there is not enough desire to make the changes—it is too much bother once the draft has been printed.

I also recall a time when the consultation response was not even available in time for consideration of the Bill. If we are to have consultations, they have to be meaningful. Let us not pretend that we are consulting when all we do is go through the motions.

I welcome the comments on draft Bills. I know how well this works and that it avoids later problems. I appreciate that, immediately post-election, it can take time for a new Government to get legislation ready, as we saw with the skeleton Bills this House received in 2015. The Childcare Bill started in this House because it was considered non-controversial. In policy terms, it was completely non-controversial, but with a skeleton Bill policy was unacceptably left to delegated and secondary legislation—as the noble and learned Lord, Lord Judge, pointed out—just because it had not been worked out. That Bill had highly controversial detail, although the policy framework was not controversial. It had a pretty rough ride in your Lordships’ House.

There is a way round that. In most cases, discussion between the Government and Opposition can take the Bill in segments or take part of the Bill and come back to it. We can get good scrutiny without trying to derail the Government’s programme. I entirely endorse the value of Green Papers and White Papers.

A point was made about the role of the Law Commission. I wrote an article for the Times Red Box recently, saying that, given the current hiatus in legislation, we should be asking the Law Commission whether there is an opportunity to do more consolidation, with sentencing Bills welcome. We all know that legislation is hard to decipher. It causes mistakes, in sentencing, for example, and in interpretation. There is an opportunity here to use the time when we are not doing as much legislation as we could be to look at some of those consolidation Bills.

On the appropriate use of delegated powers, I can recall, back in the day, about four years ago, when even the most experienced of political journalists had no knowledge of and showed no interest in secondary legislation. Then came tax credits and the Government’s wildly exaggerated response to the actions of your Lordships’ House in the form of the report of the noble Lord, Lord Strathclyde. I take a slightly different view from the noble and learned Lord, Lord Judge, on this. This House did not reject the tax credits—it tried to find another way without rejecting them completely. The fatal Motion was rejected by your Lordships’ House. The Motion passed asked the Government to have another look. It was the late, great Patricia Hollis’s Motion that said, “Have another look at this”. This House provided a breathing space for the Government to reconsider and they took the opportunity to do so. We had to be creative to do that, but perhaps we should look at building that into our processes on secondary legislation, so that we do not have an all-or-nothing approach of either accepting or rejecting, as the noble Lord, Lord Tyler said. There is something else we can do to be constructive.

That problem was of the Government’s own making. It was not that the previous Government had allowed for the changes; the Government were abusing the system. I think the noble and learned Lord, Lord Judge, made that point as well. When the Government misuse the delegated powers procedure—it has been abused once—we have to be creative in our response. The content of the tax credits SI—the significance of the change that was being made—was far more appropriate to primary legislation. That is why this House responded as it did.

We are now in a position where the number and range of SIs, as shown in the charts and documents, is unsustainable. Something I have suggested in the past, particularly in relation to Brexit but it applies across the board, is to have an earlier sight of drafts of SIs so that public and House consultation can take place. The report makes the point that amendments can be made before they get to the House. However, as I said, secondary legislation has been used when policy has not been worked out. A trusting and generous person might suggest that this is to provide additional time for the Government to bring forward the detail. But a suspicious person—I would not put myself in that category—might suggest that it is to evade proper scrutiny and the possibility of amendments.

Looking at the committee’s recommendations, I may be wrong, but I sense that the House would be reluctant to end the constitutional restraint that we respect. We are an unelected House; we recognise the primacy of the Commons and the value we bring to legislation. That restraint, however, must not be abused by the Government. That is the problem at the moment. If we keep to our side of the deal, there is an obligation on the Government to do the same and I do not think that is happening at the moment.

The current position is deteriorating and it is in no way due, as the Strathclyde report tried to make out, to any tension between the two Houses of Parliament. The only tension is between the Government and this House when the Government use statutory instruments inappropriately. It was Patricia Hollis who proposed to the Procedure Committee that there should be a middle way—a different way of looking at SIs—and I think that is something we should revisit. I entirely agree that a Motion to Regret is a way of putting something on the table and making a point, but the Government rarely listen, except in the most extreme cases. I should like that to be further considered by the Procedure Committee and this House.

I have gone on for slightly longer than I intended, partly because of the quality of the debate. I hope we will hear a positive response from the Minister tonight, but we have work here. This is not something that we will debate today and walk away from. Two further reports are to come. The message is that this House is restrained. We play our part and undertake our role seriously, but we expect the Government to hold to their obligations and responsibilities as well.