Queen’s Speech

Lord Phillips of Sudbury Excerpts

Thursday 9th May 2013 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I wish to speak to the constitutional aspect of this debate and about the volume and complexity of legislation. I am encouraged to do so because it has preoccupied me since before I came into this House 15 years ago. I suppose that is partly, if not mainly, because I have been a general practitioner solicitor for a great part of my life and was for 24 years what was called the “legal eagle” on “The Jimmy Young Show”, fielding citizens’ concerns about the law from all round the kingdom. The other thing that has encouraged me to talk about this matter briefly is the report—I do not know how many of your Lordships have seen it—When Laws Become Too Complex, put out by the Office of the Parliamentary Counsel in March. I am not aware that a similar report on legislation has ever been produced by parliamentary draftsmen themselves. It is an important and readable document, and I urge it upon your Lordships.

The other encouragement for my few brief words is the state of politics in our country. That was manifested clearly by the local elections last week. Surprisingly, one may think, it is impossible to obtain from anywhere the level of turnout at those elections. It is quite bizarre, is it not? It is apparently left to two academics at Portsmouth University—

[Lord Smith of Clifton]

Plymouth.

[Lord Phillips of Sudbury]

Plymouth. I thank my noble friend Lord Smith very much for that vital piece of accuracy. I rather get the impression that the turnout throughout the country was hovering at around 30%, on average. If you consider that among voters aged under 30, of whom fewer than one in four turned out at the previous general election, possibly only one in 10 cast their votes last week. I do not think that anyone sitting here believes that we are in our prime as a democracy or a Parliament.

We should never forget that the expenses scandal is not a thing of the past. I did a bit of canvassing this time; and the expenses scandal has marked the mind of the British public much more deeply than we would wish, I fear. We all know well about the Leveson inquiry and what it showed in terms of the press, the police and so on. All in all, we are in a dangerous phase, particularly given the continuing crisis in the financial and banking sectors.

A significant element in this disillusion relates to the astonishing amount of complex law that we churn out from this place, year after year. It may also surprise your Lordships that our Library does not stock a complete set of statutes from this side of 2009. You cannot even obtain loose-leafed copies of statutory instruments from 2010, for example. However, those from 2009 are available. In that year, this place produced in excess of 16,000 pages of new statute law; the split was roughly one-quarter Acts of Parliament and three-quarters statutory instruments.

There are a number of lawyers here; all of us, I suppose, are lawyers of a sort because we legislate this stuff. However, we know very well how extraordinarily complex legislation has become because of the extent to which any new law has to fit into existing law. The situation becomes overwhelming, and I have noticed that in the course of our deliberations on Bills there has been a marked reduction in the number of Peers who sit here trying to grapple with amendments that tax the wisdom of Jove.

For example, since 1984, we have passed more than 100 criminal justice Acts of one sort or another and have brought into existence more than 4,000 criminal offences. I suspect that that represents rather more than were created in the whole of our previous history. EU law finds reference in 10% of our legislation, and on top of that we gold-plate EU legislation to an astonishing extent. These are not my statistics; they come from the fine document by the parliamentary draftsmen to which I referred. They provide an example of directive 2002/42, which consisted of 1,167 words in the English text issued from Brussels. By the time we had ploughed it into our own legislation, it had gone from 1,167 to 27,000 words. What is it about this Chamber, using God’s own language, English, that we manage to produce this—I am tempted to use a very rude word—excess of legislation? So far as the people of this country are concerned, it is oppressive, distancing, expensive, disillusioning, disengaging, centralising and dependency-making—you name it.

[Lord Thomas of Gresford]

Incomprehensible.

[Lord Phillips of Sudbury]

Incomprehensible, as my noble friend says—to lawyers, inter alia. There are a number of senior judges sitting here and I am sure that they would be able to relate wonderful tales about the stuff that has come before them. I heard from one justice of the Supreme Court the other day that they were about to give judgment when one of them suddenly thought, “Hey, wasn’t something passed in 1995?”. When they went back to look, sure enough there was, and they rewrote their judgment. I shall not name names.

The truth is that this state of affairs is brought about by a combination of circumstances, one important aspect of which the noble Lord, Lord Cormack, recently referred to—the production-line legislation in the other place and the guillotining Motions that render much of the legislation there not merely inadequately considered but not considered at all. Large chunks of legislation come here never having been debated. Added to that, there is the manifesto theory of government—that if it is in your manifesto, you are entitled to legislate for it. The fact that nobody reads or buys the manifesto is neither here nor there. In the 1945 election, the manifesto for the Attlee Government was, I think, 15 pages long, whereas for the current Government it is 115 pages, but that is apparently of no importance.

Incidentally, the Queen’s Speech talks about bringing in 15 new statutes, and I believe that we have five carry-over Bills. I hope that under the health and safety legislation, which we are going to simplify, we will be allowed to have back the brushes in our gentlemen’s toilets. Noble Lords may not have noticed but they have been withdrawn on health and safety grounds. Therefore, one major improvement will be coming our way, God willing.

As I said, all this creates confusion in the minds of the public because we are endlessly changing things. We are not content to leave a law in place for 10 or 20 years. A new Minister in a new Administration says, “I’d like a new Education Act”, or whatever it might be. The poor old public are punch drunk. I repeat that there is a degree of resentment at what, too often, are seen as impositions by us. What is more, they are careless and unnecessary impositions. One sometimes has the feeling that some of this legislation is trophy stuff that Ministers can paste to their lavatory walls back home.

[Lord Thomas of Gresford]

Or use it.

[Lord Phillips of Sudbury]

Indeed, or use it. There is a serious issue of demoralisation in a literal sense—de-moralisation. The more law you have, the more you take from the citizens of the state, in whatever situation, the need to reach their own decisions or to think through the consequences of acting in this way or that. In effect, you provide a rule that all must abide by, and too often the statutory rule is the rule. As I said, it discourages businesses, societies and organisations from taking responsibility for their own affairs, and all that has had an indirect impact on the public service ethos. I do not think it is at all contentious to remark that in this age community life is under severe attack. There is a real dilution of the strength of communities throughout our land, and those communities are the building blocks of a good society—I do not think that anybody disputes that. Consider today how few of what one might call the natural elite are engaged in their communities. My own profession which used to be the classic pillar of local communities is today far less engaged in community life than it has ever been—to the great loss of community life and lawyers as a group because there is huge fulfilment and respect to be gained. It is not just lawyers, but everyone. This is a deep matter.

I shall finalise by quoting from When Laws Become Too Complex. Its conclusion is headed:

“Conclusions and a Vision for Good Law … Mitigating causes of complex legislation”.

It states that,

“there needs to be a shared ownership of, and pride in, our legislation”.

How I agree. Consultation today is too often superficial, if not insincere. Too often Governments of all persuasions make their minds up and at the last toss of the dice say, “We’ll consult”. They do and vast numbers of people reply, but nothing changes and the legislation goes on. We have consulted ha, ha. The conclusion continues:

“There also needs to be a stronger incentive on all involved in the process to avoid generating excessively complex law, or to act positively to promote accessibility, ease of navigation, and simplification”.

That is from the parliamentary draftsmen who too often are blamed in this House and the other place for the state of our Bills when more often than not it is our fault, not theirs. Despite those unanswerable recommendations by the draftsmen, we need to look much more at implementation and enforcement of the laws that we have. It seems to me that we legislate because we have not implemented what is already there, or implemented it fairly, effectively or comprehensively.

Education in citizenship is not a voluntary or optional extra in our schools. If we have created a society of such barbaric complexity that very often we ourselves cannot understand quite where things are, how can we expect ordinary, decent young kids to feel part of this enterprise, to feel ownership of it or to feel responsible for it, if we do not equip them with the basic amount of information, knowledge and understanding to grapple with it and develop a will to be citizens? It is not just a name. I hope that in our deliberations over the next few years we will try always to think how Bills will impact on the good, ordinary citizens of this country and how we can improve.

Lastly, I must say a word about enforcement on legal aid. I shall not labour the point as my noble friend Lord McNally has had enough of it. He and the Government have said that they are committed to looking carefully at the impact of the legal aid changes that we have made. I think that after a year there is a commitment to look at sensitive aspects, and I hope that we will do that. To have all this law, which is not voluntary or optional, and then not provide citizens in most need with legal help, and without which the rights we legislate for them are cynical, is the worst of all worlds.