Legislation

Lord Norton of Louth Excerpts

Thursday 8th September 2016 Grand Committee

[Lord Norton of Louth (Con)]

My Lords, it is a pleasure to follow the noble Lord, Lord Beith, who started his professional life as a politics lecturer before being deflected by other interests. I congratulate my noble friend Lord Framlingham on raising this important question. I appreciate the sentiment that underpins the question and want to reinforce some of the points advanced by my noble friend and indeed touched upon by the noble Lord, Lord Beith.

We certainly need sound administration, but also good legislation. I have some sympathy for the position of Governments, as they are in a situation that they cannot win. If a Government bring forward a full legislative programme for a session, they are criticised for legislating too much and we hear calls for less legislation. If they fail to produce a full legislative programme, they are accused of running out of steam. We have accusations of a “zombie Parliament”, with parliamentarians filling time by debating issues instead of being able to get to grips with legislative measures.

We could well do with less legislation, but better legislation. Governments are too prone to legislate in haste, usually on the basis that “something must be done”, responding to a moral panic by seeking not to educate but to placate. Too much rests on hope or beliefs and not enough on evidence.

I want to follow up on my noble friend’s speech and identify some ways in which we can move forwards to achieving an improvement in the quality of legislation. As has been mentioned, Parliament clearly has a role to play in ensuring effective scrutiny. I too welcome the use of pre-legislative scrutiny. It is a means of ensuring that a Bill is tested prior to the Government becoming too committed to its provisions while allowing for engagement with those outside Parliament who understand or are affected by the measure.

There are problems in terms of the timeframe for such scrutiny and in the fact that pre-legislative scrutiny is not the norm for Bills. When the Constitution Committee undertook its review Parliament and the Legislative Process in 2004, it was envisaged by government that it would become the standard practice. Since then, the number of Bills subject to pre-legislative scrutiny has fluctuated from Session to Session. There was a welcome increase in the last Parliament; I know that is something in which my noble friend Lord Young of Cookham can rightfully take some pride. Indeed, in replying to this debate perhaps my noble friend could give some indication of the Government’s plans for, and commitment to the principle of, pre-legislative scrutiny.

It is an extremely positive development that your Lordships’ House now has a role to play in post-legislative scrutiny. Post-legislative review by departments has been the norm since 2008. I very much welcome that, as it derives from the recommendation of the Constitution Committee’s 2004 report. However, no mechanism was set in place for post-legislative scrutiny by either House. That has changed, with at least one ad hoc committee being appointed in this House each Session to review one or more Acts covering a subject. That scrutiny has proved productive and we should seek to build on it. Post-legislative scrutiny can improve the quality of legislation, in that if a department knows that a measure will be subject to it, it is more likely to focus on ensuring that the provisions are crafted to deliver what is expected of the measure. In short, the measure of success will shift from being Royal Assent to whether it has achieved its purpose. Stipulating how one will know that a measure has been successful will also help to concentrate minds, providing a clear basis for assessment when an Act is scrutinised.

Like the noble Lord, Lord Beith, I am persuaded that there is a case for a legislative standards committee to ensure that Bills meet clear standards when introduced. The Leader’s Group on Working Practices recommended in 2011 that such a committee be created. In 2013, the Commons Political and Constitutional Reform Committee identified various standards that could be applied, including that a policy should be well tested, for example through the use of internal and external consultation. I know my noble friend Lord Young will argue that there is in effect such a committee within government: the Parliamentary Business and Legislation Committee, where Bills are checked against certain standards before introduction. However, I fear that that argument is not persuasive in light of some of the Bills that have been brought forward in recent years.

There is much that both Houses can do to ensure that legislation is improved but the fundamental challenge lies with government. Parties tend to out-promise one another at elections and believe that problems can be solved by legislating them away. We are in danger of moving towards measures that impose obligations that are essentially aspirational—“By such and such a date, sin must be eradicated”—and without any attendant penalties. They do not keep to the Cabinet Office’s own guidelines, a point that my noble friend touched upon. They seek to take action but in a way that is not appropriate to legislative propositions. Like my noble friend, I shall quote the Cabinet Office Guide to Making Legislation. It states at paragraph 10.9:

“It can sometimes be tempting to ask the drafter to prepare a provision that is not intended to change the law but is instead designed to serve some political purpose or to explain or emphasise an existing law. However, non-legislative provisions of this sort are likely to go wrong because the courts will be inclined to attribute legal effect to them on the grounds that that Parliament does not legislate unnecessarily—and the legal effect attributed may be one the Government could not have predicted”.

What is needed is a culture shift in government so that legislation, as my noble friend has already said, is seen as a last resort, not as a useful political tool for giving the impression that something is being done. In the long term, the use of legislation for this purpose undermines the impact of legislation.

I fear that the defence that the number of Bills introduced by government has not increased in recent years will not work. It is the volume of legislation that counts, and that applies to primary and secondary legislation. Nor is the defence open to government that the quality of legislation is improving. That is belied by looking at some of the Acts that have made it on to the statute book in recent years. Tomorrow we shall be debating a Private Member’s Bill designed to correct some of the failings of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014. That is a prime example of how not to legislate. Part 1 is supposedly to do with transparency of lobbying. If the short titles of Acts of Parliament were subject to the Trade Descriptions Act, the Government would not have a leg to stand on. The 2014 Act is not concerned with lobbying—it focuses on the person, the lobbyist, and not the activity—and does nothing to enhance transparency.

On the face of it, the Cabinet Office Guide to Making Legislation is a model of best practice, but it comes up against Ministers wanting to get their big Bills on to the statute book and against successive Governments wanting to be seen to be taking action. As has been touched upon, my noble friend Lord Young has gone from poacher to gamekeeper—I estimate four times—in his distinguished parliamentary career. He is ideally placed to recognise the scale of the problem, so I look forward to him telling us what the Government are doing to achieve that essential culture shift and to produce not more but better legislation.