Legislation: Complexity

Lord Phillips of Sudbury Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I thank my noble friend Lord Bates for this debate. I confess that, since I entered this place in 1998, I have been what some might call obsessed by excessive law-making and excessively complex law-making. That obsession has its roots in my earliest days in the law. I started in a country town solicitor’s practice in 1957. As I went around the local magistrates’ courts, within months it was blatantly clear to me that we already had a system of law that was way beyond the understanding of the normal citizen. Indeed, the lay magistrates had great trouble as well. That realisation led me to get a headmaster to allow me to teach bored 15 year-olds in his school in the 1960s. I found that they were not bored by the law; they were quickly enlivened and engaged. That in turn led me to set up the Citizenship Foundation in the 1980s with the financial support of the Law Society, and so it goes on.

We must not forget the late, lamented David Renton. Lord Renton was a lovely man who presided over a very thorough review of all this in 1975. When he asked me to give the Statute Law Society’s annual lecture in 2001, I spoke on excessive law-making. It is a massive, profound problem, and it is rather depressing that there are only 10 of us present in this debate, and six of those are speakers. Maybe it is because we follow on the heels of the sex debate, but it is depressing, because it is of the hugest, profoundest importance to us all.

We heard some vivid statistics from my noble friend Lord Bates. The statistic about the creation of 4,000 new criminal offences in the space of 16 years—far more than in the previous 1,000 years of our island history—is a warning. We would be more worried were we to know just how many of those laws have ever been implemented, which nobody does know. I enthusiastically congratulate Richard Heaton and his colleagues on their report, When Laws Become Too Complex. It is a brave report for the parliamentary draftsmen to produce, but it is from the horse’s mouth. What is more, it is a warning to us not to too easily blame the draftsmen for the situation we are in, which I am afraid we sometimes do too eagerly. It is not their fault. I think this report will answer anybody who doubts that.

Other Members of the House are perhaps aware that on 9 May the House of Commons Political and Constitutional Reform Committee produced a report, Ensuring Standards in the Quality of Legislation. To me, it is striking that neither report refers to our failure to contrive a system of legislation that contains that volume and complexity. I suspect the parliamentary draftsmen felt they had to hold back from criticising the functioning of Parliament as such. I shall go on to talk about the manifesto theory of government, by which we are plagued, and the use of the guillotine in the other place.

I will quickly read to the House what I thought was the sage nub of When Laws Become Too Complex. In the foreword, Richard Heaton writes that,

“we should regard the current degree of difficulty with law as neither inevitable nor acceptable. We should be concerned about it for several reasons. Excessive complexity hinders economic activity, creating burdens for individuals, businesses and communities. It obstructs good government. It undermines the rule of law”.

That last point is crucial: it undermines the rule of law. If we contrive a system in which the average citizen feels put upon by the law, resents the law and feels outside the law in the sense of any engagement with its passing, then that is all bad and it is too true of today’s society.

I quote again from the foreword:

“Good law is necessary, effective, clear, coherent and accessible”.

I want to talk about two of those characteristics, because I agree with that list of criteria. I start with effectiveness, because I do not believe that we can have effective laws if they are not fairly and equally implemented and enforced. As a lawyer in his 54th year, I can tell your Lordships that you would be scandalised if you knew both how uneven the enforcement of the law is, and how in some very important respects the law is not implemented at all. It is getting worse. We must address that, and part of doing so is to properly resource the law implementers. I was at the Charity Commission today. It was given huge responsibilities by the Charities Act 2006, and given many more since. What has happened? It has sliced its personnel, including its most senior personnel. How on earth can that commission do the job we force on it if we take away the resources it needs to do so?

Turning to accessibility, it has two aspects, does it not? First, there is the citizenry’s understanding of the laws by which they are supposed to lead their lives. Secondly, there is the question of access to legal advice when people need it. We cannot blather on about equality before the law if we leave poor people in the lurch when they desperately need legal advice. I am afraid that with the cuts in legal aid this has happened, and it is getting worse. I understand the problems of austerity, but I believe that if we constantly refer to the rule of law as the bedrock of our civilisation, we cannot then deprive needy citizens of essential advice when they are in deep trouble.

The issue of broad understanding of the law brings me back to the Citizenship Foundation and the few other organisations that seek to give pupils in our schools some broad understanding of the complex society of which they are supposed to be citizens and, most of all, the processes of the law, in terms of both its creation and its implementation. I am informed by the foundation’s chief executive, Andy Thornton, that over the past two years the number of schools that carry out schematic citizenship education has dropped by two-thirds. We need to be on our guard, because it is hopelessly hypocritical of us to go on about equality before the law and all the rest of it, yet not to give our young citizens any opportunity to come alongside and feel that it is their law, giving them an understanding of the law that is, of course, broad rather than detailed. In our time there is a huge problem of political disconnectedness, and we must deal with that.

I turn now to the component of necessity in the list of five criteria, and return to the number of laws we put before this place and the use of the guillotine. The guillotine has become a scandal. A quarter or a third of the Bills we see here have never been considered on the Floor of the Commons. That is a scandal. It is the primary House, for goodness’ sake. I ask the House to consider figures from the House of Commons office, showing that the effectiveness of the Commons in holding the Executive to account is now so enfeebled that over the past 11 years only six votes of over 3,000 went against the Executive. What sort of democracy is that? What sort of effectiveness is that? Here, I may say, we defeated the Government more than 500 times in the same period, and we are the inferior House.

Lastly, I make the point that we as legislators need more help. We cannot have these big, complex Bills without a Keeling schedule. We have not got the time to spend two days in the Library looking it all up. I hope that we will remember that as well.