Preparing Legislation for Parliament (Constitution Committee Report)

Lord Dunlop Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Dunlop (Con)]

My Lords, it is a pleasure to follow my noble friend Lord Cormack. I am afraid that I cannot compete with his 50 years of service. Nevertheless, I also support the remarks of my noble friend Lord Norton of Louth, particularly his recognition of the hard work and support that we get from our committee staff, which is hugely appreciated.

Today’s debate could not be timelier. In the 19th century, John Bright first coined the phrase “mother of parliaments” to describe England. This phrase is commonly but mistakenly attached to our Westminster Parliament itself. This reminds me of the burning question, previously posed by my noble friend Lord Norton: if England is the mother, who is the father? Perhaps as a Scot I will leave that question hanging in the air, but the phrase nevertheless captures the long-held and widespread admiration around the world for our system of parliamentary democracy. It is fair to say that the process of exiting the EU has tested perceptions of this pre-eminent standing as never before. It is therefore more important than ever to demonstrate the effectiveness of our democratic procedures. The parliamentary arithmetic means that the traditional balance of power between Parliament and the Government has now shifted. Parliament is now very much in the spotlight and we must demonstrate that our processes are fit for purpose.

What does this mean in the context of legislative process? The job of Parliament is to produce good law. As the noble Lord, Lord Beith, has already said, the classic tests of good law, as described by the Office of the Parliamentary Counsel, are that it is necessary, effective, clear, coherent and accessible. We are more likely to achieve good law when parliamentary scrutiny is transparent and effective, just as good government is more likely when the Administration in power are kept on their toes by strong and constructive opposition.

What is the current state of play? The evidence received by the committee suggests that the quality of legislation remains variable. Our report card can perhaps best be summed up as, “Some improvement, but could do better”. Against that background, I want to focus my remarks on two aspects covered in our first report: the first is legislative standards, which my noble friend Lord Norton touched upon in his introduction, and the second is consultation. The Government’s response to our report seems to regard the quality of legislation as simply a matter of drafting. I agree with my noble and learned friend Lord Mackay and others that good law also relies crucially on clarity of policy purpose. Even the very best parliamentary draftsman, adhering to the most rigorous guidance, cannot transform vague and ambiguous policy into clear, coherent and effective law. If there is a lack of legislative clarity, then the burden inevitably falls on the court to interpret and adjudicate—not something that either Parliament or the judges should wish for.

There are many reasons, identified in our report, why the policy intent might be vague or ambiguous. The policy might still be evolving, there might be unresolved ministerial differences or Ministers might wish to preserve their room for manoeuvre in how policy is implemented. There is a link here, as we have already heard, to our second report and the committee’s concern about the growth and use of delegated powers since the early 1990s. As the second report sets out, we are now averaging 3,000 to 3,500 statutory instruments a year, with a near doubling in the accumulative length, running to nearly 12,000 pages a year.

The desired standard is that all policy objectives be in the Bill, with only the technical details left to secondary legislation. However, there can be no doubt that often, significant policy choices are being left to delegated legislation. The Space Industry Bill, containing 100 delegated powers, is a recent example cited in our report. That is why it is so important to see the secondary legislation in draft when considering the primary legislation, to appreciate how the legislative scheme works overall. One approach to tackling this variability in quality is that legislation should not be brought before Parliament unless and until it has met a threshold of legislative standards, as we have heard. At present, prime responsibility for policing the quality of legislation before introduction lies with the Parliamentary Business and Legislation Committee of the Cabinet. Specific responsibility is placed on the shoulders of PBL’s chairman, the Leader of the House of Commons, and the law officers. This is a responsibility that the Constitution Committee regards as particularly important.

My own experience as a Minister attending PBL is that it often did challenge robustly whether legislation was necessary. It did worry about the extent of and justification for delegated powers, not least because of the certain knowledge that your Lordships’ House—and perhaps in particular, the noble and learned Lord, Lord Judge—would be forensic in its scrutiny of such powers. However, other aspects of parliamentary counsel’s good law test were perhaps the subject of less discussion. Unsurprisingly, political imperatives will always loom large, given the five-year electoral cycle and the 18-month average life—apparently—of a Minister in a particular post.

The Constitution Committee has reiterated its support for an external check, with the development of legislative standards applied by a legislative standards committee, supplementing and enforcing the gatekeeper role of PBL. As the House has already heard, this is not a new proposal, but it remains as relevant today. This should not become some tick-box exercise perhaps akin to impact assessments, which, I have to confess, as a Minister I always found less something to be desired than an after- thought in the preparation of legislation. One could envisage that over time, the reports of such a committee would acquire influence with government, thus helping to change behaviour and raise standards.

My second point is about consultation. Our first report highlights the importance of evidence-based policy-making while pragmatically recognising that sometimes, evidence will not exist. Of course, it is perfectly valid for Ministers to exercise their political and professional judgment in policy-making, for which they will be answerable to the voters. However, when an evidence base does exist, the committee believes that it should be routinely published. Perhaps the Minister could indicate when he responds whether he agrees with that. One way to build evidence is to consult those who are affected by a policy or a piece of legislation. The key here is that the informal and formal consultation processes should be accessible to a wide range of affected parties and not just the usual suspects, who already understand how the system works. For example, we will not create a fully dynamic economy if we listen only to incumbents and do not reach out to challengers too. Equally, in areas of social policy, the most vulnerable and disadvantaged might be the least organised and equipped to ensure that their voices are heard.

We therefore need to be proactive, as our report makes clear, to ensure that policy and legislation are informed by a diversity of views. Perhaps the Minister could say how the Government are addressing this point. Progress has been made to improve the quality of legislation, but more work is clearly required. I hope that the Government will engage positively with the recommendations in the two reports we are debating today.