Legislation: Complexity

Lord Norton of Louth Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Norton of Louth]

My Lords, I, too, congratulate my noble friend Lord Bates on raising this important and timely Question. In the time available, I want to focus on a number of points arising from, or prompted by, the useful review by the Office of the Parliamentary Counsel.

As the report acknowledges, and as my noble friend stressed, legislation is complex both in its form and in the manner by which it becomes law. The complexity is multifaceted and is an impediment to members of the public—indeed, anyone, as my noble friend stressed—wishing to make sense of our law.

Like my noble friend, I want to focus on the volume of legislation and the problems with the means by which we enact it. As we heard, there is by common consent too much legislation. We generate too much law as a result of a “something must be done” mentality and by individual Ministers wanting to get through their own big Bills. Until we get the Government to accept that sometimes more legislation is part of the problem, not part of the solution, we will continue to overburden Parliament not only with too much legislation, but rushed legislation.

As the noble and learned Lord, Lord Judge, said of criminal law:

“For too many years now the administration of criminal justice has been engulfed by a relentless tidal wave of legislation. The tide is always in flow: it has never ebbed”.

The problem is not just quantitative but also qualitative. There is not just more law, but more complex law, especially where one is dealing with regulation. This creates problems for Parliament. There is more complex legislation, but there is no commensurate increase in the time and resources available to deal with it. There is a finite number of Members available to sit on committees. There is only so much time available for the different stages of Bills.

There is also a problem with government in how it views Parliament and the legislative process. This is acknowledged in the report, which states on page 27:

“The legislation secretariat within the Cabinet Office is working with Parliamentary Counsel to promote learning within departments about legislation and the legislative process”.

That is a pretty stark admission that government departments are not well versed in the legislative process. Officials and parliamentary counsel do not always appreciate one another’s difficulties, but it is not simply a case of each needing to understand the other: there is a need for officials to understand how Parliament works. I have been pursuing this for some time. There is still a considerable way to go in educating officials about the significance and the processes of Parliament. The replacement of the National School of Government with Civil Service Learning has not necessarily enhanced the capacity for such learning. Given that, it will be helpful if my noble friend the Minister can explain what steps are being taken by government to ensure that officials who advise Ministers are fully aware of the importance of Parliament and the legislative process as well as the difference between the two Houses.

The legislative process is also flawed. There has never been a “golden age” of legislation, and the present procedures actually have some benefits over what went before, but they remain inadequate. Let me adumbrate what in my view needs to be done.

The way in which we undertake legislation, frequently by amending earlier legislation, makes for some complex and impenetrable Bills. One means to aid parliamentarians is that referred to by my noble friend Lord Phillips, which is to produce Keeling-like schedules—he referred to Keeling schedules, but it is more appropriate to refer to Keeling-like schedules—showing how the proposed changes affect extant legislation. Where they have been produced, they have been enormously helpful. I think there is a strong case for arguing that where most of the clauses of a Bill amend legislation, and where that particularly is one or two Acts, the expectation should be that the relevant department will produce a Keeling-like schedule. Perhaps my noble friend could take back to his colleagues the value of such schedules.

It would also aid Parliament and act as a valuable discipline on government if Ministers were required to publish with a Bill the purpose of the measure and the criteria by which it can be assessed to determine if it has fulfilled its intended purpose.

More generally, pre-legislative scrutiny should be the norm and not the exception. I welcome the number of Bills submitted for pre-legislative scrutiny in this Parliament but would like to see the use of such scrutiny taken further. As we have heard, there needs to be a joint legislative standards committee as recommended by the Political and Constitutional Reform Committee of the other place. Such a Joint Committee would oversee the application and effectiveness of a code of legislative standards. I know that the First Parliamentary Counsel has doubts about the value of such a Joint Committee, but my view is that it would ensure consistency and provide a useful discipline for government.

I also commend another recommendation of the Political and Constitutional Reform Committee, namely that there should be agreement between Parliament and government as to what constitutes constitutional legislation. This builds on the report of the Constitution Committee of your Lordships’ House that there needs to be a distinct process in government for identifying and dealing with measures of constitutional significance. The position of government at the moment, namely that measures of constitutional significance should be treated in the same way as all other Bills, is unsustainable and, indeed, dangerous in terms of ensuring adequate consideration of changes to our constitutional framework. Not surprisingly, I endorse the Political and Constitutional Reform Committee’s endorsement of the test I produced when I was chairman of the Constitution Committee, namely the two P’s test: does a measure affect a principal part of the constitution and does it raise an important issue of principle? If both tests are met, it should trigger special consideration.

We also need to look beyond the process of passing a Bill into law. For too long, both Ministers and Parliament treated legislative success as Royal Assent. That was the end of the process. We should be treating success as when an Act of Parliament achieves its intended purpose. We now have post-legislative review, which I greatly welcome, but we need a committee on post-legislative scrutiny. In this House, we have now established ad hoc committees to undertake post-legislative scrutiny of particular measures, which again is a great step forward, but a dedicated post-legislative scrutiny committee would ensure that nothing fell between the gaps and serve as a body for ensuring best practice in departments in undertaking post-legislative review.

Those are but some of the things that need to be done. We are making some progress. Having clearer Bills will be a major step forward. Having fewer Bills will be an even greater one.