Parliamentary Proceedings: Statistics

Lord Lisvane Excerpts

Wednesday 18th January 2017 Lords Chamber

[Lord Lisvane (CB)]

My Lords, my noble friend’s excellent Question is narrow, but its implications are wide. The rule of law is central to any civilised society. The quality of law is a determining factor in the respect in which the law is held, so it is central to the rule of law. The other side of the equation is just as important: how well does the legislature scrutinise the legislative proposals of the Executive?

One of my learned predecessors as Clerk of the House of Commons, Sir Thomas Erskine May, said in the first edition of the great work which still bears his name that there are no limits to the legislative authority of Parliament other than,

“the willingness of the people to obey, or their power to resist”.

So that legislative authority should be exercised with great care. Alas, I do not think we can make the claim that it is. The legislative process may not quite be broken, but it is certainly not working very well. The approach of Brexit legislation makes the need for improvement ever more urgent.

Despite words of comfort from the Government, too much of significance is still put into delegated legislation, with no firm and observed principles as to where the boundaries should be set. There is extensive quasi-legislation, such as codes and guidance, which have the force of law but are largely left to Ministers to make up their minds about after the event. Powers delegated to Ministers, including Henry VIII powers, are often much more extensive than they need to be, and generally with insufficient parliamentary scrutiny; for example, in the previous Session there were 14 government Bills, containing a total of 41 Henry VIII provisions.

When I was invited by the Statute Law Society to give its annual lecture in a few weeks’ time, I had no difficulty in choosing the title of my lecture. If noble Lords will forgive a moment of advertisement, it is: Why is there so much bad law? “Bad”, of course, refers both to the end product and the way in which it gets on to the statute book. In my previous life, I used to say to audiences outside Westminster, “Don’t for a moment run away with the idea that a Bill is draft legislation; it is not. It is, word for word, what the Government of the day want to see on the statute book”. The corollary of that, of course, is that Ministers, of whatever party, have a collective allergy to amendments. In a way, that is understandable. If a department has been thrashing out the contents of a Bill, clearing it with other departments and the devolved Administrations, dealing with potential difficulties within the party of government, getting it through the business managers and PBL, there may be a feeling, when the Bill is finally ready for introduction, that the job is done. But of course that is when the real job has to start, and that is where both Parliament and Government need to up their game.

My noble friend referred to draft Bills. I realise that Her Majesty’s Ministers have quite a lot on their plate for the foreseeable future, but I have been very disappointed that draft Bills appear to have become an endangered species. In this Session, only the ombudsman Bill was published in draft. In the Queen’s Speech, another was promised but it has so far failed to appear. Draft Bills can of course be heavy on drafting resources, because parliamentary counsel are involved with both the draft Bill and then the Bill as it is to be introduced. But they offer a real increase in the quality of legislative scrutiny, with a consensual approach, evidentially based amendment and public access to the legislative process—much greater access, and much more effective, than the evidence-taking phase of Commons Public Bill Committees.

Draft Bills should commend themselves to business managers because consideration by a Joint Committee should avoid double handling in the two Houses and make the passage of the Bill as introduced much smoother. If only the Higher Education and Research Bill had started life as a draft Bill. I remember from our enjoyable association in the House of Commons that the Minister used to think that draft Bills were really quite a good idea. I hope that he still does so and that he will be able to offer us some comfort and cause for hope this evening.