Legislation: Complexity

Baroness Hayter of Kentish Town Excerpts

Wednesday 19th June 2013 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, I add my appreciation to the noble Lord, Lord Bates, for this debate. I gather that he has taken the Minister away from the Countryside Alliance summer ball and me from a farewell to the Fabian Society office where we have been for 80 years, but we shall forgive him. There is, of course, a difference between legislative burden and legislative complexity. I do not think that the former is the problem, it is the latter that is the subject for today.

We must remember that for consumers, legislation is about making roads, offices or homes safer, safeguarding children from danger or preventing consumers being ripped off. So we must stop the idea that legislation is a burden. It is not a burden to consumers if it means that they do not die from carbon monoxide poisoning, if children are protected or provided with decent schools, or if consumers have access to an ombudsman when a service or product goes wrong. It may be that some legislation should have stayed, such as cleaning the path outside our doors. I am not certain that that was the right one to get away. However, let us drop the idea that legislating is bad: it needs to be done, done well, and for a specific purpose.

Today we have heard a good debate, and along with others, I welcome the report—with the exception of one small line—and its analysis of an important area. Of course, it does not propose solutions for us, so I will take time to suggest a couple for the Government to think about. First, however, perhaps I may say that my one difference with the report, which echoes what has already been said, is the idea that the public is a new—and it uses that word—audience for legislation. On the contrary, in answer to the question, “Who is the user of legislation?”, I was going to use the word people. The noble Lord, Lord Phillips, used the word citizenry, and the noble Lord, Lord Bates, talked about small businesspeople and shopkeepers. Absolutely: surely, they are the real users of legislation.

The rest of us—legislators, judges, lawyers or advisers —are basically intermediaries, or maybe implementers. If we hold that in mind, which is what others have said today, our laws will be better drafted and understood. It is notable and, for me slightly regrettable, that the Good Law guidance produced in April by the Office of the Parliamentary Counsel, boasts that it is talking to,

“lawyers, the judiciary and legal educators”,

but it makes no mention of the general public. It is beginning to listen to users through a project run by the National Archives, but that does not feel core to its work. Surely if the Cabinet Office wants, as it states, to write laws that “can be readily understood”, then users ought to be one of the drivers of a new approach?

I turn to the report. As we know and has been said in the debate, unclear law often arises out of either unclear policy or perhaps an overhasty reaction to events. Even before drafting starts, it is important for politicians and policymakers to engage with relevant experts to ensure real clarity in thinking and in writing, including those who know the subject concerned and those in bodies such as the Law Society who have a wealth of experience in interpreting Parliament’s words. It also means not bringing clauses here, as is happening today in this House with the Energy Bill, before consultation on them has been completed.

There are some “to dos” or “to be thought abouts” that are ripe for government discussion and perhaps for cross-party attention, especially given that the quality of legislation and its scrutiny should be of concern to government as well as opposition. First, always set out the objective—or, in the words of the noble Lord, Lord Norton, the purpose—for each Bill whereby it is clear what it is meant to achieve, and drafters and legislators can check that it achieves those objectives and the reader knows what it aims to do.

Secondly, unless there is a very good reason or emergency, always have pre-legislative scrutiny, as the noble Lord, Lord Tyler, and others have stressed. We have witnessed the success of where it has happened, for example in the Defamation Act, on which the noble Lord, Lord Phillips, and I spent a good few hours. Such pre-legislative scrutiny ensures that a Bill’s drafting really provides for the Bill’s clearly stated objectives.

Thirdly, endorse the Commons Political and Constitutional Reform Committee’s recommendation last month that,

“the Government should publish the reasons why a bill has not been published in draft and cannot therefore be subject to pre-legislative scrutiny”,

where that is the case.

Fourthly, do not introduce “Christmas tree” Bills. Some of us spent a long time dealing with the Enterprise and Regulatory Reform Bill, which was actually five different pieces of legislation.

Fifthly, as the noble Lord, Lord Norton, said, do not revise existing Acts wherever you can but try to start from scratch. Some of us here, including my noble friend Lord Tunnicliffe and I, spent a long time on the Financial Services Bill, which was hung on to another Bill and sometimes left us none the wiser as to what it was seeking to achieve.

Sixthly, please think of the audience. It is interesting how a Draft Consumer Rights Bill should end up being 104 pages long.

Seventhly, do not try to legislate for 25 years hence. Here I do not blame the Government, but there was an interesting amendment to the Succession to the Crown Bill, not in the name of the Government, that tried to deal with what happened if a child yet to be born of the current Prince William turned out to be gay, have a gay marriage and then had a child. Trying to write such legislation was unnecessarily complicated 25 years off.

Eighthly, we should implement another recommendation of the Commons Select Committee, that there should be a code of legislative standards.

We have all heard that this subject is a matter for this House, perhaps even more than the other place, given how much time we spend on scrutiny. It is a matter for government as well as for opposition and I hope that we can move forward. I look forward to the Minister’s response.