Legislation

Baroness Smith of Basildon Excerpts

Thursday 8th September 2016 Grand Committee

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting and stimulating debate. I must admit, I made some notes before I came in but I wanted to hear the debate first before deciding in what direction to take some of my comments. I am grateful to the noble Lord, Lord Framlingham, who has done the Committee a service today. He has focused our minds on an issue which goes right to the heart of what we do. It feels slightly odd to welcome the noble Lord, Lord Young of Cookham, to his new responsibilities in government. The noble Lord, Lord Norton, described him as a poacher turned gamekeeper, but I always thought that the life of a Minister was more that of the quarry in many ways, so perhaps he has gone from poacher to gamekeeper and then, as Minister, back to being the quarry. However, I hope he will not feel that in this debate.

We understand that we are part of the legislature. Our role is different from that of the House of Commons, and as an unelected House it is rightly both constrained and specific. We are a scrutinising and revising Chamber. The proposal today is not to be taken literally—it would be a big leap to go from too much legislation to no legislation—but it is a mechanism to allow the experience in this House to consider the basic principles of why we legislate and how we can do it better. We have heard some of those principles already: we should legislate with care; we should bring in new legislation only if Parliament also ensures that there are the means to enforce it; and we should take post-legislative scrutiny far more seriously.

It is understandable that any potential Government set out the legislative programme on which they seek to be elected. Once elected, there is a duty on that Government to implement the commitments in that manifesto in the lifetime of the Parliament. It is the nature of the political system that new Governments have new programmes. I was interested in the list of legislation that the noble Lord, Lord Framlingham, referred to. I felt that he did not like the Labour Government’s legislation. Fox hunting and the death penalty are two causes particularly dear to my heart. He mentioned those as things that perhaps we should not have done. They would be at the top of my list of things that should be done. That is the nature of the political system: different parties will have different policies, which by nature will be contradictory. Obviously, some will have a higher priority than others, and issues will come along. Circumstances can change and make legislation in the manifesto more or less desirable, but there is also the matter that all noble Lords have referred to, which is that issues will arise and a response is needed. That response too often becomes a legislative response. “Legislate in haste and repent at leisure” might be worth adopting in this regard.

When looking at the amount of legislation, we have to look at both primary legislation and secondary legislation. Part of the picture is the number of Bills and the amount of delegated legislation, but that is only part of the picture; as we have heard, it is also its complexity. The noble Lord, Lord Framlingham, referred to “Christmas tree Bills”. There are not baubles and presents on those Bills. It seems to me that “kitchen sink Bills” might be a more appropriate term for them. It seems that as a Bill progresses through Parliament, more and more things are thrown into it. I remember dealing with the Immigration Bill and the Criminal Justice Bill, which got bigger and bigger—like snowballs rolling down a hill picking up more and more as they went along. That does not work. It also undermines scrutiny as things are introduced later.

We have not really talked about the use of secondary legislation and its complexity. Tax credits are a good example. Whether we consider that the Government were technically correct to bring the SI forward or were even wise to use an SI for that issue, there is no doubt that a controversial policy matter was brought to Parliament through a statutory instrument. We are seeing that now in primary legislation. The noble Lord, Lord Framlingham, quoted the Cabinet Office guidance on politically important Bills, which might not have been addressed in detail before they being introduced to the House. The Childcare Bill was in effect only a framework Bill. It lacked detail. It was a very cavalier approach.

It strikes me that perhaps that is sometimes one of the problems of a Lords starter. Governments always use Lords starters for the most non-controversial Bills, but because a Bill is non-controversial in its principle does not mean we will not want to look at the detail to ensure that the Bill carries out the policy intention that has been announced. The problem with the Childcare Bill was that it was thought it could be started in the House of Lords as it was not controversial, yet the lack of detail was embarrassing. There was no financial information, and we could not be confident that the detail supported the policy objective. There have been other examples in this Session. The Children and Social Work Bill and the Buses Bill have far too many pieces of secondary legislation attached to them, 20 or 30 pieces in both cases, and as we go down the line, we will see more.

We have heard some suggestions about the way forward. All legislation needs great clarity of purpose at the very beginning. I am sure the noble Lord, Lord Young, will also recognise that we need to be careful about Ministers coming back from Cabinet meetings boasting about how much parliamentary time they have got for legislation as a mark of honour.

We should also look at how much legislation is not properly enforced. There have been no prosecutions under the FGM legislation. So often now the police are telling us that they cannot implement or enforce certain laws. As there is so much legislation, they do not have the resources to implement it. We have ended up in a position where other agencies are making decisions about which laws to implement and which to not. That has been taken away from Parliament. Does that mean we have too much legislation? It may, in some cases, but it may just mean that we are passing legislation without ensuring that we have the means or resources to enforce it.

My final point is about the adequacy of post-legislative scrutiny. Once legislation is passed by Parliament, there is no automatic, systematic, effective mechanism to monitor its effectiveness. That might deal with some of the issues about how much legislation we have. It could be done through a Joint Select Committee of both Houses. I am not really fussed about the mechanism, but we have to address the issue and look much more seriously at post-legislative scrutiny.