Legislation

Lord Beith Excerpts

Thursday 8th September 2016 Grand Committee

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Framlingham, has done us a great service—I would expect no less from a distinguished former Deputy Speaker of the House of Commons—by focusing attention on legislation and the alternative, which is getting on with the job of running the country. In that respect, I am delighted to be debating once again with my old friend the noble Lord, Lord Young of Cookham, who has never left office without buying a return ticket. No Government in which his party is involved can really cope without him, and we well understand why. We have worked together in the past, including during the coalition, and I hope he will agree that one of the benefits of the coalition proved to be a degree of extra restraint in some areas of legislation. If you have to get two parties to agree to proceed with a Bill, you have another hurdle over which to climb.

The noble Lord, Lord Framlingham, referred to the size and complexity of the statute book. As chairman of the Justice Committee, I visited the National Archives. It is a wonderful place in that you see all the records that you expect to see, but tucked away in the corner is a small group of people whom I did not know about until I went there. Their job is to know what the law actually is because they are the people who assemble the statutes, statutory instruments, commencement orders and modifying orders. They are probably the only people in the country who really know what the law is and which bits of it are in force at any one time, because it has become so complex.

In some respects we have improved legislative scrutiny to try to prevent some of these problems, but for much of the time it is like trying to climb up a down escalator. Pre-legislative scrutiny by Parliament has brought about a real improvement. Public Bill Committees in the Commons have also offered some significant advantages, and then there is the essential work that this House does on so much legislation.

As a Liberal Democrat, I believe that some degree of restraint is needed when you decide to bring in new laws. By nature, law tends to restrict the individual and therefore you should think twice and have a strong justification for it. You should not bring in laws because you have to be seen to do something. We are entering that rather dangerous season of the party conferences, when Ministers, in particular, feel that they have to throw some meat to the assembled ranks. Out of that come commitments to bring in legislation.

Nor should you legislate as a signal. When I hear laws described as a signal that things have to change, I know that the content of the legislation will probably not be much use at all. It is really just another way of saying that we have to be seen to do something. That is a particular problem in the area of criminal law, where we have so much criminal justice legislation. I will not even bother to go into the statistics—we all know them. Much of that legislation simply makes the task of those in the criminal justice system more difficult by increasing the number of mandatory sentences, for example.

However, I also believe that law is needed for some purposes. It is needed to establish rights and to protect citizens from violence, fraud, abuse of power and environmental or health damage. It is also how we define the structure of governance—for example, how we might reform the House of Lords, which the coalition proved unable to do. That requires changes in the law. Taxation also requires law. It is better to be regulated by law than by the arbitrary use of executive power. There are some countries that delight in not having many laws because the Executive have an enormous capacity to rule by decree, but that is not what we want. Laws are also required to provide a framework for commerce and trade—in the sense of not just commercial companies but private individuals. At the moment I am one of those pressing for the Government to do what they say they want to do when the legislative opportunity arises and provide legislation on the guardianship of the property of missing persons. These detailed matters are often dealt with in Private Members’ Bills, which are important.

However, legislation can be a distraction from vital things such as enforcement by departments, resourcing in departments and the delivery and provision of services—the things that departments really should get on with. There is an elephant in the room, though, and departments will have to stop devising new laws pretty soon. When I listened to the Queen’s Speech, I thought about what version might have been written if the referendum had already been held and gone the way it eventually went. It would go roughly: “My Government will be wholly occupied with bringing forward legislation to implement our exit from the European Union, and no other measures will be laid before you”. That is not too far from the reality, because there will be a gargantuan programme of legislative change, including repeal of the 1972 Act and replacement of the vast range of EU laws which apply directly in this country. If there are things that have to be temporarily retained, there will need to be measures relating to subsequent changes to EU law in areas on which we continue to rely on what was previously EU law.

It is a massive programme, and anyone who wants to know a bit more about it only needs to look at the report from the European Union Committee on withdrawing from the European Union, which records Sir David Edward as saying that the Government,

“would need to enact in law everything that it wanted to keep in law, which is currently either the consequence of the direct effect of the EU Treaties or, for example, the product of a Directive”.

It really is a massive legislative task. Departments are already finding that their civil servants are being borrowed by the Department for Exiting the European Union, whose Ministers now proudly proclaim that they are increasing the size of their bureaucracy all the time, which is not what Conservative Ministers are supposed to say. Not only that, but their time and energy within the department will be involved in reviewing the whole corpus of European law which affects them. It may please the noble Lord, Lord Framlingham, that at least there will be some restraint on other laws being brought forward, but it is a bigger block in our system even than that.

What can we do to improve the laws that we do pass? Before we start, we should ask: is there anything this Bill can do that cannot be done at least as well under existing law? That is the primary question we should always ask. Then, is the Bill fit for purpose? Has it been discussed in detail with those whom it will affect and their elected representatives in Parliament? Has it been through pre-legislative scrutiny and other processes that allow it to be examined by people who really know what its impact would be? Has previous law in this area had adequate post-legislative scrutiny and are there any lessons to be learned from that? Has the proposed new law been tested for unintended impact and legislative clarity?

That, of course, is an argument for the quite often canvassed idea of a legislative standards committee, which is not about the substance of law but about whether the law is framed in such a way that it can achieve its intended purpose. When I think about that proposal, I cast my mind back to the late Lord Renton—Sir David Renton—and the committee that I served on with him years ago, which looked at trying to improve the standard and quality of legislation. We have to apply tests like that and recognise that sometimes in this country we rush to legislation when really Governments should simply be doing their job properly.