Preparing Legislation for Parliament (Constitution Committee Report)

Lord Mackay of Clashfern Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is with the greatest pleasure that I follow my noble friend in this debate. I agree with all that he said, I think, without exception. I am also grateful for the reports which are the subject of this debate and for the Constitution Committee which, with its staff and advisers, produces such excellent reports. I join my noble friend in thanking the members of the committee who have helped to keep this show on the road, although that has become more difficult with the amount of work that has been pushed into their trays.

It is possibly right for an elderly gentleman to look back a bit, and I am inclined to do that this afternoon in relation to two Bills that I had the honour of presenting to this House a long time ago. The first of these was the Children Bill, which became the Children Act 1989. The first report that we are considering comments on the necessity for policy to be clear, because you cannot draft a clear statement of something that is not originally clear. If you do not know what the policy is, it is mighty difficult to express it clearly; you have to find that out first. That is important.

The first Bill, which became the Children Act 1989, came out of a detailed consideration by the Law Commission. I believe that the Law Commission, under the chairmanship of the late Lord Scarman, developed the idea of consultation as a way of developing the law. He and his early colleagues—I was glad to have a chance to chair with him later on, because I was a Law Commissioner in Scotland for some little time—made the point that, as members of an independent body, it was difficult for them to frame policy, because as soon as they did so they became less than independent. Therefore, they have to try to analyse what people feel is required, and proper consultation in detail, and with time, is an important part of that.

The Law Commission had done extremely good work in collating the various views on a very complicated system of child welfare in this country, and put it into an extremely clear report. It was my particular privilege at the time that the commissioner was none other than the present President of the Supreme Court, so my acquaintance with her goes back quite a long time. I believe that the resulting Bill was extremely good, but it was good not because I presented it but because it was well prepared. I very much commend that.

It is not always open to get the Law Commission to do something. Fortunately, it has done something that is the subject of debate in the Moses Room this afternoon. I am glad to see that my noble and learned colleague, Lord Judge, has been able to change the rules so that he can be in both places at once, which is part of his skill that I am glad to admire.

The Children Bill went through with a lot of detailed consideration. I was fortunate, in that not only did I have the Law Commission’s support but an extremely good, very experienced social worker to help me with proposals for dealing with delicate matters. One of the most delicate in the whole Bill was the threshold for interruption by the state in family relationships. That is an extremely important and difficult area. Ultimately, together with both Houses of Parliament, a formulation was made.

As far as I know, that formulation has stood the test of time. Reference has been made to various Bills that have come along in the children and social care business since. I venture to think that the main structure of the 1989 Bill has never been improved upon, and was extremely effective.

There is quite a lot discussion in the report about post-legislative scrutiny. One of the things we did, which I think was right, was not to bring the 1989 Act into effect immediately, but to help the people who were going to put it into effect to understand what was wanted and to assimilate the principles, which were very basic, structured and well expressed. They were given time to do that and as a result, when the Act came into force two years later, it worked pretty well. One of the doubts I have—doubts accumulate with the passage of time—is the amount of time that some of these difficult cases took in the family court. Delays became higher than I would have liked. That was partly, at least, due to the amount of expert evidence that was taken in children’s cases. I am left in little doubt as to the value of such evidence in all such cases. The time that was taken to set up the Act was very good; it is not customary now to have that kind of interval.

The other Bill I want to mention is connected to embryology and was passed in 1990. We had a brilliant committee report under the chairmanship of the late Lady Warnock. It dealt with a difficult subject involving lot of what you might call theological difficulty, as well as difficulty arising from the science that lay behind the particular problems. The Warnock committee report was a brilliant account of what should be done. A shadow authority was set up under the chairmanship of the late Lady Donaldson, who was the first female Lord Mayor of London. That gave us a good deal of help in formulating the basic structure of the authority, which to this day has stood with very little change in the way it is run. That Bill shows that good preparation is the answer to getting a good Bill. Very little change has taken place in that area of the law either, except to try to keep up with the rapid changes taking place in the basic science. There is a discussion going on just now about other aspects of family life that were dealt with in the Bill but require reconsideration in the light of developments.

These two Bills show that the precise way in which preparation is done is not quite so important; it depends on what is available at the time, who is available to do it, and so on. But it does demonstrate that if you want to get a good Bill, you must know what you want in the way of policy before you start.

The Constitution Committee has suggested a standards committee for legislation. I wonder whether that can be done in the abstract. I would prefer to make it a binding obligation, so far as that is possible, on the committee of the Government who authorise a Bill to be placed before Parliament to have regard to the standards required to make the Bill reasonably capable of being dealt with under the available parliamentary procedure.

The other point I want to make in that connection concerns consolidation. I agree with what was said earlier about some of the most important areas of our law; I think particularly of immigration law, which requires very sensitive handling, and yet the law is complicated. Recently, I had occasion to try to understand what it says, on behalf of a relative. I am not without a little experience in looking at these matters, but it was extremely difficult to find out exactly what the relevant provision was in connection with that problem. Consolidation strikes me as a vitally important process in keeping the statute book reasonably accessible.

When I was a Law Lord, I served for a time on the consolidation committee. I have to say that the length of time it takes for a consolidation Bill to go through Parliament is next to nothing. The idea that there is no parliamentary time to deal with it is less than adequately borne out in practice. However, one of the difficulties is that the consolidation committee is a Joint Committee and for some reason, which your Lordships may be able to guess, it is quite hard to persuade Members of the other place who are members of the committee to come along timeously. We spent a lot of time waiting—I hope patiently—for our colleagues to arrive so that we had a quorum and could start. Here, I want to pay particular tribute to the late Lord Brightman, who was the committee chairman when I was first a Law Lord. That responsibility ultimately passed to me, but I was delivered from it by becoming the Lord Chancellor. The detailed consideration that Lord Brightman gave to consolidation matters was extraordinary. He was able to show exactly what was required and where, and he had all of that done before the committee met, and of course he was able to explain it to us. We were all so confident in his work that the time taken was really very short.

The last thing I want to talk about relates to the second report. There has been a terrific, absolutely extraordinary growth in what is called guidance. Whose guidance is it, I ask? My late good friend, a Permanent Secretary at the Scotland Office, used to say that guidance was usually couched in the mysterious passive, which you can see if you look at it. The “mysterious passive” is a favourite expression. It is not “my” opinion or “my” guidance; it is written as, “it is thought that”, “it is required that” or “it is considered that”. The amount of that has grown beyond all recognition and it is at least as fatal to good lawmaking as any kind of Henry VIII clause. A recent, fairly good example is lessons for schoolchildren. I make no comment on the substance, but the actual nature of the guidance is quite remarkable.

I thank the Constitution Committee for these reports. The subject matter is of fundamental interest and I am glad to have had the opportunity to take part in the debate.