Legislation: Complexity

Lord Bates Excerpts

Wednesday 19th June 2013 Lords Chamber

Asked by

[Lord Bates]

To ask Her Majesty’s Government what assessment they have made of the review by the Office of the Parliamentary Counsel, When Laws Become Too Complex, published on 16 April 2013.

[Lord Bates]

My Lords, in the report that we are considering, Richard Heaton observed:

“The volume of legislation, its piecemeal structure, its level of detail and frequent amendments, and interaction with common law and European law, mean that even professional users can find law complex, hard to understand and difficult to comply with”.

If Mr Heaton were an instantly forgettable Back-Bench Peer such as myself, that might be a mildly worrying but not an alarming observation. However, Mr Heaton is First Parliamentary Counsel and Permanent Secretary of the Cabinet Office.

Courageous though the admission may be, one might ask, if Mr Heaton finds the legislation piecemeal and hard to understand and to comply with, what hope has the classroom teacher, the doctor, the police officer, the small businessperson, the social worker, the homeowner or the benefits recipient for whom we spend our time legislating—let alone the legislators who are supposed to scrutinise the laws and the courts that struggle to interpret and apply them?

It is not just the complexity that baffles and bewilders but the volume. When Her Majesty made a historic visit to the Cabinet to mark her jubilee in December last year, it is reported that there was a forward item on the agenda relating to the Queen’s Speech. Her Majesty apparently suggested—I am not sure how constitutional it was to report this—that it should be,

“on the shorter rather than the longer side”.

At the time it was reported as a joke that everybody enjoyed, but, having read the report, I suggest that it should be seen not as a quip but as wise counsel from a Sovereign that should be heeded by her Government.

Halesbury’s Statutes is the nearest thing that we have to a statute book. At the beginning of Her Majesty’s reign in 1952, Halesbury’s Statutes ran to 26 volumes. This was the result of 740 years of legislating, stretching back to her predecessor King John and the Magna Carta. In the 60 years that she has been on the Throne, the number of statute volumes has increased from 26 to 74.

It is not just the number of Acts that has sharply increased but the number of pages. In 1952, the average number of pages for a government Act was 22. In 2009, the average number of pages for an Act was 122. The unrelenting rise in the volume of legislation was pointed out in the House of Lords brief. Reading the appendix at the back, one gets a momentary frisson of Thatcherite zeal when one comes to 1986-87 and sees that the tide of legislation momentarily abates, before resuming its upward course. Then one looks at the footnotes and finds that it was in that year that the Queen’s printer moved from using the A5 page size to A4.

Of course, Acts of Parliament are not the only source of legislation. Parliament has also seen a huge increase in the amount of secondary legislation presented to it. In 1952, 29 statutory instruments were laid before Parliament. By 2012, this number had risen to 3,328. Alarmingly, the trend has seen a very sharp increase under this Government. I would be grateful if my noble friend could explain why this has been the case. In 2008, the number of statutory instruments considered by Parliament was 1,395; in 2010 it was 2,971; in 2011 it was 3,133; and in 2012 it was 3,328.

We should consider also what happens to laws once they leave this place. Every year, new legislation results in more than 30,000 legislative effects, according to the report. One area where this is felt more than most is in the tax code. In opposition, I made a little bit of a living chipping away at the then Government and pointing out that, according to Tolley’s yellow and orange tax handbooks, the volume of the UK tax code had doubled between 1997 and 2010, and had overtaken the Indian code as the longest in the world. In a spirit of cross-party examination of these issues, I was alarmed to find that since 2010, the length of the Tolley’s guide has increased, and gone on increasing, by several thousand pages. What was intended on its launch some 50 years ago to fit into a pocket would now barely fit on to a shelf.

The Government came in with very good intentions. They announced the Office of Tax Simplification to cut a swathe through this complexity. We know that complexity reduces compliance and the tax take. If you simplify the system, you increase compliance and the take. I was amazed when researching for this debate to learn that the number of staff employed by the Office of Tax Simplification is, to quote the Minister, “slightly under six”. I presume by that he means five, or perhaps four. Perhaps he will give the figure today. It compares with 25,000 HMRC staff working on enforcement and compliance.

Other measures are under way to reduce the burden of legislation. I pay tribute to the Law Commission and the Scottish Law Commission, whose 2013 Act was the largest Statute Law (Repeals) Act ever. It did away with 817 whole Acts, along with sections of 50 other Acts. That was a great triumph. Noble Lords will be delighted to know that the Streets (London) Act 1696, which required Londoners to sweep and clean the area in front of their house every Wednesday and Saturday between 6 am and 9 am on pain of a 10 shilling fine, has itself been swept away. However, we should not get carried away and think that we are in a libertarian free-for-all, because between 1983 and 2009, Parliament approved more than 100 criminal justice Bills and added more than 4,000 offences to the criminal code. We are still pretty heavily regulated.

I am sure that Europe will be touched on in forthcoming speeches. For every one page of directive, we produce 2.6 pages of regulation and guidance, whereas Germany produces a page for a page—logically. It would be good to know what progress the Government are making here.

There are many reasons for the increase in the volume of legislation. I will mention a few. Some cynics might suggest that Governments of all persuasions find it useful to focus the attention and time of Parliament on considering future legislation rather than on determining whether past legislation has done what it said on the tin. However, there are other issues. The courts have played a part, as a result of the breakdown of trust in society between government and the governed, service providers and customers, and employers and employees. We have become much more litigious. As a result, an increasing volume of legislation is going before the courts. In return, the courts are showing some reticence in passing judgment and are referring back to Parliament for clarification—and so the circle goes on.

There are other drivers. The 24-hour news culture demands that something must be done every day. There are also a huge number of lobby organisations, such as trade unions, trade bodies and charities, all of which are well resourced and able to demand changes in the law to suit their particular concerns.

We should have one thing uppermost in our mind. Every time we add a law or a regulation, we incur a cost—not only monetarily and legislatively but morally. The more we legislate for what people should do and the less we trust them to behave as good citizens, the more we take away. Parliament is creaking at the seams as it seeks to digest the fruits of a burgeoning statute book and, almost 800 years after Magna Carta, the flow is increasing, not reducing. This is bad for the country, bad for business, bad for people and bad for Parliament. It is time to turn the tide, and I hope that the high calibre of contributions that will follow mine will help reverse the process.