Legislation: Complexity

Lord Gardiner of Kimble Excerpts

Wednesday 19th June 2013 Lords Chamber

[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.