That this House takes note of the Report from the Constitution Committee The Legislative Process: Preparing Legislation for Parliament (4th Report, HL Paper 27).
My Lords, the noble and learned Lord, Lord Judge, finds himself addressing matters of sentencing in the Moses Room. By agreement through the usual channels, it has been arranged that the noble and learned Lord will speak after my noble friend Lord Dunlop. All relevant contributors to the debate have been informed.
My Lords, I beg to move the first of the two Motions standing in my name on the Order Paper. I do so in place of the noble Baroness, Lady Taylor of Bolton, who chairs the Constitution Committee, which has produced the two reports we are considering. She is very sorry to miss today’s proceedings.
It is a pleasure for me to open the debate. In 2004, the Constitution Committee, which I had the honour of chairing, published a report, Parliament and the Legislative Process. We looked at the legislative process holistically, examining not only the process once a Bill was introduced but what happened prior to a Bill’s introduction and after it had received Royal Assent. We took the view that success should be measured not by whether a Bill received Royal Assent—seen by some Ministers as the end of the process—but rather by whether it achieved its intended effect.
Among our recommendations were that Bills should be subject to pre-legislative scrutiny as the norm and not the exception, and that there should be a structured process of post-legislative scrutiny, assessing Acts against the criteria set for achieving their purpose. We also advanced proposals for the more effective examination of Bills as they pass through Parliament, including that every Bill should at some stage during its passage be subject to scrutiny by an evidence-taking committee. Some of our recommendations were subsequently adopted, and now form an integral part of the legislative process, such as improvements to explanatory materials and the Government undertaking a review of most Acts within six years of their commencement.
I fear that Governments have shown less enthusiasm for implementing some of our other recommendations, such as pre-legislative scrutiny of draft Bills being the norm and the establishment of a House business committee. Perhaps our most high-profile recommendation —that the Committee stage of each Bill should provide the opportunity for the public to give evidence—has been adopted for Bills that start in the House of Commons but not for those that start in your Lordships’ House. This is a matter to which the committee may return in a subsequent report.
My Lords, it is a pleasure to follow the noble Lord, Lord Norton of Louth, and to pay tribute to his work on constitutional issues on the committee, in his professional career and in various other organisations that focus on them. I endorse his comments on the staff and advisers to the committee.
The two reports that we are debating today are linked, and not merely because they are two of a sequence of four studies by the Constitution Committee into the legislative process. They are linked by cause and effect. Excessive and inappropriate use of the delegation of powers undermines the quality of legislation, leading to legislation that is unclear, incoherent, inaccessible or badly scrutinised. Furthermore, the excessive use of regulations to fill in the gaps in legislation is often a consequence of a failure to prepare legislation properly. The policy has not been worked through and properly consulted on, so the Bill leaves gaps to be filled by regulations. This is particularly the case when new elements are added to a Bill in the course of its passage through Parliament. All new laws should have to pass the tests suggested to us by the Office of the Parliamentary Counsel: is it necessary, effective, clear, coherent and accessible? Many new laws do not, at least in part, pass those tests.
The legislative landscape is littered with Christmas trees, skeletons and signals. For the uninitiated, Christmas trees are Bills on which departments hang a diversity of provisions that they have not managed to get into the programme as individual Bills; skeleton Bills contain none of the detail and depend on delegated powers; and signal Bills may have no practical effect because their only purpose is as a declaration that the Government want to be seen to be doing something but cannot think of anything particularly useful to do.
The committee sets out remedies for these failings. First, legislation should have an evidence base which has been the subject of wide consultation and thorough scrutiny. Then the norm should be, as the noble Lord said, for Bills to appear first as draft Bills, scrutinised by committees of either or both Houses of Parliament. Issues identified can then be dealt with before the Bills acquire the level of political and government commitment, which leads to a defensive attitude and an unwillingness to amend. Parliamentary counsel should, as it has traditionally done, make clear where a legislative mechanism is unworkable, inappropriate or confusing in its legal effect. If it does so, within government it is the job of the Leader of the House of Commons and the law officers to challenge colleagues over such defects.
My Lords, I declare my interests as set out in the register, in particular as a partner in the global commercial law firm DAC Beachcroft and of course as a member of the Constitution Committee. I very much welcome this debate. It is hard to believe that more than 18 months have passed since the publication of the fourth report, The Legislative Process: Preparing Legislation for Parliament, and more than six months since the 16th, The Legislative Process: The Delegation of Powers. I am proud to be associated with both excellent reports, but I hope the House will forgive me if my remarks focus on the latter and on the thorny question of the proliferation of secondary legislation—which has just been dealt with so effectively by my colleague, the noble Lord, Lord Beith—whether it matters and what to do about it if it does.
I pay tribute to my fellow committee members and to the excellent team, led by our clerk, who did such sterling work gathering evidence and drafting the report. I also pay tribute to the work of what I describe as our sister committee, the Delegated Powers and Regulatory Reform Committee, which frequently cuts off inappropriate and excessive proposals for delegation of powers at the pass, saving us all a lot of time, energy and aggravation later in the process. My noble friend Lord Blencathra, who I am delighted to see is to participate in this debate, together with his colleagues, has made that committee a vital part of our system of governance and proper accountability.
Of course, our 16th report makes some detailed recommendations that are well worth consideration, but it also touches on and draws on wider, deeper themes—vital themes for us all. Paramount among these is the great challenge we all face, and the responsibility we all share, of rebuilding public confidence in our institutions. Noble Lords will be relieved to hear that I have no intention of producing an extended exposition on the interminable matter of Brexit. However, I am relieved that the House of Commons has just rejected by 309 to 298—a majority of 11 votes—what I thought was an irresponsible Motion to try to rewrite the Standing Orders. I am sure it was right to reject that, but all of us in public life need to do everything in our power not only to understand the feelings that induced 17 million people to vote for Brexit in 2016 but now to address those profound concerns earnestly, comprehensively and with genuinely open minds.
5:04 pm
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.
My Lords, I am delighted to contribute to this debate, particularly in relation to the second of these impressive reports, the Constitution Committee’s report on the delegation of powers. As chairman of your Lordships’ Secondary Legislation Scrutiny Committee—a post I have had the honour to occupy since 2015—secondary legislation obviously holds a particular interest for me. As your Lordships can no doubt imagine, over recent months it has been the almost exclusive diet of my reading and has occupied much of my time.
Yesterday my committee published its second interim report, describing our work from April 2018 to April 2019. While it is too early for the Minister to comment on our findings, I hope the report has been of interest to your Lordships and has helped to inform today’s debate.
It will come as no surprise when I say that the past year has been a particularly demanding one for the SLSC. Over 1,000 instruments were laid during the period, compared with 659 in the previous 12 months. Nearly 690 were laid between October 2018 and March 2019, and 36% of the total during the first quarter of 2019—an unusually heavy workload. But this was anticipated, and arrangements were put in place to ensure that our capacity could meet the demand. In July 2018, as a result of the expected 800 or so Brexit instruments—a figure later revised downwards—and the extension of our remit to include the withdrawal Act sifting function, my committee was given the power to appoint sub-committees and to co-opt new members. That power was exercised in October 2018 when we formed two sub-committees. The noble Lord, Lord Cunningham of Felling, chaired one and I the other. We also co-opted an additional 11 members to the sub-committees and increased our staff complement. I am pleased to take this opportunity to thank the co-opted members for their invaluable contribution to the scrutiny work of the committee. We have now resumed sitting as one committee, albeit ready to return to two committees should the need arise.
My Lords, I have the privilege of being the chairman of the Delegated Powers and Regulatory Reform Committee, and in this capacity, I will focus my remarks on the second of the Constitution Committee’s two excellent reports, on the delegation of powers. It is an impressive piece of work, and not just because it praises my committee on numerous occasions.
I thank my noble friend Lord Norton of Louth for his excellent presentation of the reports today, and the chairman of the Constitution Committee, the noble Baroness, Lady Taylor of Bolton, and all the members of that committee, not only for their generous recognition of the work of the Delegated Powers Committee in their report and elsewhere but for the collaborative working relationship which the two committees, and their officials, have developed over the years, to the benefit of the House and the greater good of rigorous scrutiny of legislation.
The Delegated Powers Committee’s role is to examine the appropriateness of every delegation in a Bill, and the level of scrutiny applied to it, while the Constitution Committee adopts a constitutional perspective. There is a complementarity in our relationship which serves the House well. I thank my noble friend Lord Hunt of Wirral for his exceptionally kind remarks about my committee and me, but I assure him that the Delegated Powers Committee was doing a fantastic job long before I became chairman, and it will continue to do a fantastic job long after I have gone. The reason for that is that we have some superb colleagues serving on it, one of whom will be speaking in the wind-up tonight, and we are served by an excellent clerk and four superb counsel with more than 100 years’ experience as barristers between them. They all know what they are talking about, and I would not survive without their expertise.
We share the view of the Constitution Committee that the proper balance between primary and secondary legislation is “not always respected”. It is because of this that the Delegated Powers Committee is needed, and more often than not, our reports include important recommendations on the delegation of powers or the level of scrutiny applied to them. Policing that boundary is our raison d’être and, as we said in our report on the Strathclyde review, events giving rise to the review,
5:40 pm
Lord Cope of Berkeley (Con)
My Lords, in view of that last speech, I should first declare an interest: I am a resident of Somerset. Judging from what my noble friend said, I am probably in the 99% but there it is.
I congratulate the chair and members of the committee on these valuable reports. They are of interest to me because, like others here, I have been a legislator for 45 years. As a matter of fact, I was involved in the preparation and passage of legislation even before I became an MP in 1974. I am a chartered accountant and a considerable part of my earlier experience was with finance Bills and taxation. One of the advantages of being in the House of Lords is that I am no longer required to take part in Bills on taxation as long as I am here.
The report on delegated legislation seems the latest episode of that long-running saga, “The struggle for power between Parliament and the Crown and its Government”. Having played on both sides, I was interested to read the latest twists in the game, but the scoreboard on page 25 of the report should worry us all. So indeed should the extra information in the report of my noble friend Lord Trefgarne’s excellent Secondary Legislation Scrutiny Committee, which was published yesterday and gives a lot more information.
On the scope of statutory instruments, the Constitution Committee asserts:
“Broad or vague powers, or those sought for the convenience of flexibility for the Government, are inappropriate”.
I agree with that, but the Government’s response—provided by the then Leader of the House of Commons —in paragraph 13 was:
“The Government does not agree that broad powers are, by definition, inappropriate”.
That sweeping statement is modulated a little by some of the following sentences but it still seemed to me, to say the least, cavalier, not only in the sense of taking a swashbuckling cavalier attitude towards rules, but in the more direct 17th century sense of the Crown or Executive attempting to evade the scrutiny of a Round- head Parliament.
I was also interested in the other report that we are debating on the preparation of legislation, particularly the passages about drafting legislation. My noble and learned friend Lord Mackay of Clashfern is right that it is most important that the policy is clear before the parliamentary draftsmen can do their work. I have a high respect for the skills of parliamentary draftsmen, although I have to say that while I was a Minister, at the Treasury and elsewhere, I found them pretty elusive. Sometimes, for example, I thought that legislation I was being asked to take through Parliament could be worded in plainer English. But my dealings with the parliamentary draftsmen concerned were usually indirect, being filtered through the departmental solicitors and so on, and usually unavailing. I gather that they are more open these days, as Sir Richard Mottram indicates in his quote in paragraph 158.
My Lords, it is a great pleasure to follow my noble friend Lord Cope of Berkeley. I was fascinated to hear his confession and that of my noble friend Lord Blencathra—that wonderful account of being present when a Bill he was due to present was forensically destroyed in front of him. I am particularly glad to be taking part in a debate opened by my noble friend Lord Norton of Louth, to whom the House, and indeed Parliament, owes a very great deal, for the clarity of his expositions and his extremely sensible approach to legislation.
Next week, on 19 June, I shall enter my 50th year as a parliamentarian. I have been here a very long time, in a career unblemished by ministerial office, so I am taking a special look at the root cause of our having to debate these things, which of course lies in our constitution. My noble friend Lord Hunt of Wirral referred to it in his excellent and admirable speech: the separation of powers. Unlike our great democratic partner, the United States, the Executive here are always drawn from the legislature. This has led to many bouts of schizophrenia over the years. I have noticed how the most forceful of Ministers become the best of poachers when they lose office or find themselves in opposition. I could give many examples but will refrain from doing so because I do not want to lose any more friends.
Fundamental to today’s debate are the conclusions in the two admirable reports before us. My noble friend Lord Norton made two particularly interesting comments when he gently but firmly criticised the general quality of legislation. It is frequently, to use the famous and often-used words of the noble Lord, Lord Reid of Cardowan, “not fit for purpose”. My noble friend also very gently but firmly demolished the replies by the then Leader of the House on behalf of the Government when he said something that really struck a chord with me: they were assertions, not justifications. That is precisely what they are. Sometimes we forget—certainly Governments forget—that Parliament does not exist for the convenience of the Government. That is a fundamental proposition that we should all recite every night: Parliament does not exist for the convenience of government. It is not an arm of government; it is not a servant of government. Parliament is not doing its job adequately unless it is constantly challenging the Government and holding them to account. That may be uncomfortable, but you are not attacking the man or the woman, you are attacking the measure or the proposal—and we ought to be much more rigorous in doing both those things. Delegated powers are not there to enable the Government to circumvent Parliament.
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We felt that more than a decade after our first report, it was time to take a step back from individual Bills, to look again at the entirety of the legislative process and examine how laws are developed, drafted, scrutinised and disseminated. Rather than producing one report, we decided to publish four focused reports, targeted at discrete aspects of the legislative process: preparing legislation for Parliament; the delegation of powers; the passage of Bills through Parliament; and after Royal Assent. Two of those have now been published, and are the subject of today’s debate.
The first of these, The Legislative Process: Preparing Legislation for Parliament, was published in October 2017. The purpose of this stage of our inquiry was to look at the policy preparation undertaken by the Government before legislation is introduced to Parliament. In this report, we are broadly positive about how the Government develop policy using embedded mechanisms to gather and evaluate evidence. We also welcome the Prime Minister’s commitment to a greater use of Green and White Papers.
We reiterate the conclusion of our 2004 report—that it should be the norm for Bills to be published in draft, to afford more opportunities for pre-legislative scrutiny. It is regrettable that Governments have generally seen draft Bills as an optional extra, when, in our view,
“pre-legislative scrutiny should be considered an integral part of the wider legislative process”.
Although several Bills have undergone pre-legislative scrutiny in this elongated Session, they constitute the exception, not the rule.
Perhaps the biggest area of our concern is the quality of legislation that the Government introduce to Parliament. This is not a reflection on the standards of the drafting of legislation and the work carried out by parliamentary counsel. Our concern is with the quality control function of the PBL Committee of the Cabinet. That control is not what it could and should be. In our report, we endorse the proposal for the creation of a legislative standards committee, to develop and monitor a set of standards that legislation must meet before it can be introduced. This work would ensure that Bills introduced to Parliament are ready for its scrutiny, and that the essential explanatory materials accompanying Bills are complete and satisfactory.
We also address the important parts of the statute book that have become inaccessible to practitioners and the public alike because of a succession of Bills that have amended previous Acts. One has to think only of the changes in immigration law in recent decades. The challenge of navigating that area of the law is now considerable. We urge the Government to consider the pressing need for greater consolidation of the law. With that in mind, we strongly welcome the introduction of the Sentencing (Pre-consolidation Amendments) Bill, paving the way for the Law Commission’s sentencing code to simplify sentencing legislation. The standard line from the Government on consolidation and Law Commission Bills is that they might happen when parliamentary time allows. Given the current lull in legislative activity, this might be an especially appropriate time to introduce more consolidation measures.
I turn to our second report, The Legislative Process: The Delegation of Powers. Delegated powers are, of course, an important and necessary part of the legislative process. When they are used appropriately, they provide the Government with the flexibility to fill in some of the blanks or update aspects of the policy detail without the need to go through the extensive and rigorous primary legislation process. The Delegated Powers and Regulatory Reform Committee does an outstanding job in policing such matters. If the Government heeded its advice more frequently, the quality of legislation would improve markedly. Regular readers of the Delegated Powers Committee’s reports, as well as our own, will know that the Government’s use of delegated powers is regularly found to be inappropriate. It is constitutionally unacceptable that the Government seek to create criminal offences as well as new public bodies by secondary legislation, to which only limited parliamentary scrutiny applies.
The Government’s response to our report suggested that such uses of delegated powers are,
“likely to be few and far between”.
We do not find this persuasive. Indeed, on Monday we published a report on the Rivers Authorities and Land Drainage Bill—a Private Member’s Bill supported by the Government—which contains a delegated power to create new public bodies in the form of river authorities. It is not clear why the Government acknowledge that these powers,
“must be approached with caution”,
yet they continue to appear in Bills.
Similarly, the committee found that “skeleton Bills”—Bills comprising little more than delegated powers—“inhibit parliamentary scrutiny”. We concluded that it was,
“difficult to envisage any circumstances in which their use is acceptable”.
Perhaps the most egregious recent example of this is the Agriculture Bill. I quote from the report of the Delegated Powers Committee:
“Parliament will not be able to debate the merits of the new agriculture regime because the Bill does not contain even an outline of the substantive law that will replace the CAP after the United Kingdom leaves the EU. Most debate will centre on delegated powers because most of the Bill is about delegated powers. At this stage it cannot even be said that the devil is in the detail, because the Bill contains so little detail”.
The Government’s response on skeleton Bills was that the term was sometimes used to describe Bills in which the overall policy framework was clearly set out, and states that,
“there have been and will continue to be sound reasons”,
for the use of skeleton Bills in a limited number of cases. It is not clear what the sound reasons are. The response is one of assertion and not justification. I shall return to its inadequacies.
Henry VIII clauses were another area we considered,
“a departure from constitutional principle”,
and we concluded:
“Widely drawn delegations of legislative authority cannot be justified solely by the need for speed and flexibility”.
Although, as the Government acknowledge,
“a full and clear explanation and justification”,
is clearly helpful, Henry VIII powers should be sought much less frequently than has been the case in recent years.
This House has shown notable restraint towards the Government’s approach to delegated legislation. Indeed, the House has shown remarkable flexibility in accommodating several hundred EU exit statutory instruments. We pay tribute to the work of the Secondary Legislation Scrutiny Committee for undertaking that task on top of its other important work. However, there are limits. We call on the Government to be more responsive to issues raised about statutory instruments and to use the flexibility of the system to withdraw and re-lay amended instruments when parliamentary scrutiny has identified concerns. We suggest that if the Government do not use their delegated powers appropriately, the restraint shown by this House may become unsustainable.
I turn to the Government’s responses to the reports. The two responses were clearly written by different hands; one, on the delegation of powers, addressing each recommendation, and the other, on the legislative process, being more general and thematic. Both, though, have one thing in common: they seek to defend existing practice and concede nothing. The way in which they are written is not persuasive. Some of our proposals are matters for the House, not the Government, such as the recommendation for a legislative standards committee. I very much hope that this recommendation will be taken up by the Liaison Committee as part of its current review of committees, and likewise with the proposal for a post-legislative scrutiny committee.
On matters that are within the remit of the Government, I have a number of questions for my noble friend Lord Young of Cookham. What do the Government now do that they did not do before because of the committee’s reports? Following my earlier comments, can he confirm that the Government will maintain the practice of publishing Green and White Papers? What is the Government’s strategy for pre-legislative scrutiny: is it integral or an optional extra to the legislative process? Do the Government have plans to introduce any further consolidating measures, and in what circumstances does he think skeleton Bills are appropriate?
I conclude by putting on record our thanks to all those who gave evidence to us, our staff and our two legal advisers, Professor Mark Elliott and Professor Stephen Tierney. Professor Elliott is about to step down from his role to take on enhanced responsibilities in the law faculty at Cambridge, and I place on record the committee’s thanks to him for his outstanding contribution to the work of the committee. I beg to move.
The Constitution Committee, as the noble Lord, Lord Norton, has pointed out, supports and reiterates the proposal for a legislative standards committee to test proposed legislation—not on the merits of its policies, but on whether new legislation is needed, whether its impact has been properly assessed and whether it creates coherent law. That process would sit alongside the work of the Constitution Committee and of the Delegated Powers and Regulatory Reform Committee in their examination of new Bills on the issues for which they are each responsible. The Constitution Committee also strongly commends accelerating the process of consolidating Bills. It is satisfying that, as we speak, the Grand Committee in the Moses Room is looking at the pre-consolidation legislation on sentencing, which accounts for the noble and learned Lord, Lord Judge, today demonstrating his ability to be and speak in two places almost at once.
If new Bills have been well prepared and have gone through the tests we recommend, they will be less likely to have the inappropriate recourse to delegated powers, which we have identified and criticised in our 16th report—the other report we are considering today. There will still be issues about delegated powers and the inadequate scrutiny which so often applies when they are exercised, particularly in the Commons. Some of us have experience of the brief and inconsequential Committee process which attends negative instruments in particular in the Commons.
We need also to reconsider how inappropriate or defective statutory instruments are dealt with in our own House. We were concerned that the question asked by departments and Ministers when considering whether to use secondary rather than primary legislation for important features of a Bill is not always an objective test of appropriateness, but a question of what Parliament will allow—what powers can be pushed through, perhaps on the back of general support for the policy objectives of the Bill.
Delegated powers are a necessary part of the legislative process, but the committee said:
“It is constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken”.
The DPRRC said that the Childcare Bill in Session 2015-16 contained,
“virtually nothing of substance beyond the vague ‘mission statement’ in Clause 1(1)”.
Our committee, like the DPRRC, has raised strong objections to the use of delegated powers to create criminal offences legislation or to set up public bodies. The Children and Social Work Bill presented to this House in the 2016-17 Session did both these things and was strongly criticised by us at the time. As the noble Lord, Lord Norton, referred to, we may be faced with a rivers authorities Bill which allows numerous public bodies to be created by delegated powers.
Henry VIII powers, by which statutory instruments can change primary legislation, are necessary for minor tidying—for example, to make sure that the law correctly cross-references legislation passed subsequent to the introduction of the Bill in question. However, their use should be strictly limited. If the Government continue to fail on this test, they will have my noble and learned friend Lord Judge to answer to.
When substantial issues come before Parliament in the form of statutory instruments, with very rare exceptions, they cannot be amended. If they are defective, or if they include provisions which are deeply controversial and might be rejected if presented separately, the House faces a take it-or-leave it decision on the instrument as a whole. Although it would be technically possible to allow for amendments, it would be a significant change. It would require different procedures and the committee is not recommending such a course.
The appropriate response in such circumstances is for the Government to withdraw the instrument and relay it in amended form or, in case of urgency, to bring forward an amending instrument at a later date. It does happen, but Governments are too reluctant to do it. Again, they are defensive: the instrument is their baby and they will not hear a word said against it, although I remember the late Patrick Mayhew, when he was Solicitor-General, announcing in a committee sitting that a Bill he was taking through was not capable of fulfilling its intended purposes and could not be made so, so would not be further proceeded with. That kind of refreshing honesty is something we could do with a little more of. The natural instinct of government, I fear, is not to admit it has got it wrong.
This House has a device to identify and object to failings in statutory instruments—regret Motions—but these have no direct effect; they are not fatal. They may be appropriate, but an expression of opinion is all that your Lordships intend. They are not adequate to prevent the fundamentally inappropriate use of a statutory instrument, which brings me to the case of the tax credits regulations of 2015, which had far-reaching effects. This House passed a delaying Motion. The Government had a blue fit and called in the noble Lord, Lord Strathclyde, to act as a sort of one-man fire brigade, but then abandoned the proposed regulations—an appropriate course of action in the end. In paragraph 109 of our report we set out why we think it is wrong to frame discussions on the question of what happened in that instance as if it were about the balance of power between the two Houses of Parliament, the Lords and the Commons. It is not; it is about the balance of power between Parliament and the Executive, about whether and how the Executive should be held to account.
As we have explained, the Government have the means at their disposal to confine delegated powers to the purposes for which they are legitimately intended and to correct faults in them identified by Parliament. If they fail to do so, they should recognise that an occasional defeat is neither momentous nor necessarily fatal to their policy objective. This House exercises great restraint in these matters, but the committee makes it clear in its unanimous conclusions that:
“If the Government’s current approach … persists … the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained”.
Those words were not chosen lightly.
For some time now, our nation has been suffering a serious and deepening loss of confidence in our social and political institutions. The causes of that are certainly economic as well as political—arguably, primarily economic—but the time has surely come for us to go back to first principles and examine why we are all here in this place and how we might best fulfil our responsibilities to the British people.
Some might grandly dub this a new constitutional settlement. I see it more as a reassertion of time-honoured and tested values and processes. Even before the great deluge unleashed by Brexit, the volume of legislation coming to this House and the other place had become daunting—even overwhelming and, dare I say it, excessive. As a consequence, the process of serious and effective scrutiny has become grievously overloaded.
I was first elected as a Member of Parliament in March 1976. I served in that office for 21 years, and the duration of my service in this House has just overtaken that. Soon after coming into Westminster I found myself appointed a party spokesman, on the Front Bench straightaway, and after the Conservatives won the 1979 election I spent 16 years without a break in various roles on the government payroll, for which I thank the public very much indeed. I recount this not in praise of myself, but to tease out an argument about the role and responsibility of parliamentarians, especially in a system such as ours where members of the Executive are also members of the legislature.
Through all those years, I hope I never lost sight of the primary role of the legislature as distinct from the Executive, of which I was also part. We are here principally to hold the Executive to account. Those dogged maverick Members whose relationship to Ministers is rather like that of a dog to a bone are heroes of our system, relentlessly tiresome to those whom they pursue but vital to the operation of our democratic system. I am glad to see one or two in their places in this House today.
Ultimately, both reports are about ensuring that we have a system of effective accountability that is both methodical and, when the occasion demands, operates in the buccaneering spirit of those great free-spirited parliamentarians. Yes, there is far too much legislation and a concomitant danger of overload, but there is no excuse for the Executive seeking to push significant measures—including some, as my noble friend Lord Norton pointed out, that create new criminal offences, or yet more public bodies, as my colleague the noble Lord, Lord Beith, has just pointed out—into the parallel, all too convenient and faster track of secondary legislation.
Whether or not Brexit happens, and regardless of the shape it ultimately takes, we must realise that our parliamentary system has largely lost its former reputation, domestically and internationally, as the very model of how a free nation should govern itself. We now have to rebuild our systems of accountability, our will to challenge in the public and national interest and, thereby, our collective reputation.
As part of that process of restoration, the clear and discernible upward trend in the accretion of delegated powers must stop now and be clearly reversed. Otherwise, our task of holding the Executive to account will simply become impossible. Of course, it is only human that we worry about these matters much more when we are in opposition. When it is our own noble and right honourable friends who take the decisions, perhaps we have tended to become too blasé.
That makes it all the more important that we should take this question as far as possible out of the normal jousting match of partisan politics. I well know from experience that precedents matter and they carry across from one Administration to the next, regardless of party. That is why we must all, regardless of affiliation, take an honest and open look at how and why these so-called Henry VIII powers are creeping back into our lives on a worrying scale.
As our report reminds us, unlike our system for primary legislation, that for statutory instruments contains no mechanism at all for making amendments. We can, of course, reject them, but only Ministers can revise them. The reality is that, for a number of reasons, we hardly ever do reject them. According to the report, since the last war, the two Houses combined have done so in fewer than 0.01% of cases—just 16 out of 169,000. In practice, except where an eagle-eyed Member happens to spot something offensive or deleterious and divides the House, the passage of SIs is little more than a weary and routine process of rubber-stamping.
I was particularly disappointed with paragraph 7 of the Government’s response to our report on delegated powers, in which the Leader of the House of Commons said:
“It is not always possible to set a clear dividing line as to what amounts to a matter of policy and what constitutes ‘filling in the detail’”.
My answer is: of course it is possible—and vital, too. Why on earth cannot Governments see that, whatever their complexion? As the Secondary Legislation Scrutiny Committee of this House—I pay tribute to my noble friend Lord Trefgarne and his colleagues who are setting the gold standard in producing reports of this nature—warned in paragraph 26 of the 51st report of Session 2017-19,
“significant policy developments should not be merged with a mass of minor adjustments to the extent that they risk being overlooked”.
Quite right.
In conclusion, I am well aware that replacing secondary legislation with primary legislation will necessitate more work, both here on the Floor of the House and in Committee. However, in some instances I believe that it is simply vital to the good function of our system of accountability—our very democracy—that this happens. We must step up and make it happen. As we state:
“This House has exercised a remarkable degree of constitutional restraint in this matter”.
I am sure it is also correct to warn that this restraint cannot be taken for granted indefinitely.
I warmly commend both reports to the House. I hope that in their small way they contribute to the restoration of the good name of our great Parliament.
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 of 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 a 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.
In its report, published in November 2018, the Constitution Committee noted that the sifting procedure was “in its infancy” and that it was then,
“too early to assess its efficacy”.
To some extent that remains the case. However, we are beginning to take stock of how well it is working. I am sure that others, in and out of Parliament, will do the same. Meanwhile, it is notable that of the 228 siftable instruments—what we call proposed negative instruments —laid up to April 2019, the SLSC recommended that 41, some 18%, should be upgraded from the negative to the affirmative procedure. I am pleased to report to your Lordships that the Government accepted all our recommendations without exception.
Brexit has dominated our work, but it has also dominated the work of Parliament more generally. However, as the Constitution Committee’s report and my committee’s second interim report show, a number of issues concerning the use of secondary legislation are of more general significance. For example, the Constitution Committee comments on the nature of guidance published alongside legislation—my noble and learned friend Lord Mackay has just referred to this—deprecating its use to assist the interpretation of legislation or to fill what it calls “policy lacunae”. In our annual report at the end of the 2016-17 Session, we echoed this concern when we called for a clear distinction between guidance and secondary legislation, and for legislation to be sufficiently clear,
“to avoid the need for interpretative guidance”.
The Constitution Committee is also critical of skeleton Bills—also referred to by my noble and learned friend—a matter on which my committee commented in our response to the Strathclyde review in 2015 when we said we supported,
“those who caution against the use of skeleton bills and skeleton provision in bills”.
But the most fundamental issue in relation to the delegation of legislative power is the boundary between primary and secondary legislation. It is, as was amply demonstrated in the debates on the tax credits regulations and the subsequent Strathclyde review, at the very heart of the relationship between Parliament and the Government—between the legislature and the Executive.
The Constitution Committee expresses concern that the balance of power is tipping away from Parliament. It refers to how the boundary is “not always respected”, and that statutory instruments may be used,
“to give effect to significant policy decisions”.
Over the last year, my committee and the sub-committees have dealt with a number of instruments which may be classified as giving effect to significant policy decisions. They included, to name just a few, regulations about the teaching of relationships, sex and health education in schools, about which we received over 430 submissions from members of the public; universal credit regulations which involved the migration of about 3 million people on long-term benefits to universal credit; regulations changing the maximum stake for fixed-odds betting terminals from £100 to £2; and regulations to set up a stand-alone UK regulatory regime, REACH UK as it was called, for the regulation and control of chemicals. Most recently, following an evidence session with the Minister and submissions from interested organisations, we reported on regulations relating to the Government’s decision to cease operating a statutory adoption register.
Finally, I pay special tribute to the staff who have provided unfailing support to my committee and sub-committees and, as a result, a considerable benefit to your Lordships, despite the burden of an exceptional workload over the months. We are all truly grateful.
“provided a stark reminder of the importance of our work”.
Since Strathclyde we have had the referendum and the decision to leave the EU. Brexit-related Bills have been introduced which have included the delegation of powers to Ministers that have been nothing short of breath-taking in some instances.
On the withdrawal Bill, the Delegated Powers Committee described,
“the distribution of power between Parliament and Government”,
as being at the very heart of the Bill—a distribution weighted in favour of the Government by significant Henry VIII powers ranging over, as we said, “an unprecedented number” of policy areas. I think we all accept that some Henry VIII powers were necessary in the European Union (Withdrawal) Bill, but where they were needed there should have been explicit sunset clauses to limit their duration. I am in no doubt now that government departments, including Ministers, civil servants in charge of policy and parliamentary draftsmen, saw the incredible potential advantages of Henry VIII clauses in that they could change any law they liked without having to bring primary legislation before Parliament. Thus we now get Henry VIII clauses routinely tacked on to Bills where they are not necessary.
Departments are also drafting regulations, making clauses of such width that again Ministers would be able to change whole rafts of law with little say by Parliament and to make laws which went much wider than the stated purpose of the primary legislation. Let us take the Healthcare (International Arrangements) Bill. My committee said that,
“the scope of the regulations could hardly be wider”.
The Bill, as stated by the Government, was supposed to make reciprocal arrangements as we left the EU to take care of Brits in Europe and Europeans in this country—a simple, sensible provision. However, it went much further than EU and UK reciprocal arrangements. My committee pointed out in our report that there was no limit to the amount of the payments which could be made, no limit to who could be funded worldwide and no limit to the types of healthcare being funded. The regulations could confer functions, powers and duties, including discretions, on anyone worldwide; and the regulations could amend or repeal any Act of Parliament ever passed. That is far more extensive than the Government’s stated purpose.
Then we had the Haulage Permits and Trailer Registration Bill, which we said was,
“wholly skeletal, more of a mission statement than legislation”.
We said we were “dismayed” at the Government’s approach to delegated powers in the Agriculture Bill, which we described as,
“a major transfer of powers from the EU to Ministers”.
However, to be fair, the Fisheries Bill, which looked like it had been written by a completely different department or bunch of civil servants, we commended as one of the finest Bills we had come across. So sometimes the Government can get it absolutely right and I am pleased to commend them for that. In referring to a provision in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, we commented that Parliament was,
“being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton”.
Then, in addition to inappropriate secondary legislation, we get tertiary legislation, and raising taxes by tertiary legislation, and we had that wonderfully unique lawmaking power in Schedule 5 to the European Union (Withdrawal) Bill, a power last used in 1539, making law by proclamation—or, in the words of the schedule, by “direction”. Paragraph 2 of Schedule 5 permitted a Minister of the Crown to change the law by giving a direction with no parliamentary procedure applying to it whatever. We stated that a direction is what Henry VIII would have called a proclamation— there is a no real difference—and that the Statute of Proclamations 1539, which gave proclamations the force of statute law and later gave rise to the term “Henry VIII power”, was repealed in 1547 after the King’s death. We found it extraordinary that the Government should try to bring it back in this small area of a Bill 470 years later.
The exigencies of Brexit may have led Parliament into accepting some extraordinary delegations but we need to maintain our vigilance on policing the boundary between primary and secondary legislation. It is essential that we apply the same high standards of scrutiny to all Bills introduced into Parliament. The Delegated Powers Committee operates under a fundamental principle that powers are judged not on how the Government say they will use them at the moment but on what the law allows them to do at any future time—what any future Government could do with the powers created.
There are Bills other than Brexit Bills where the appropriateness of the delegation of powers is called into question. One of our most recent reports, which has already been referred to today, was on the Rivers Authorities and Land Drainage Bill, a so-called Private Member’s Bill of immense complexity but supported by the Government. That Bill caused our committee serious concerns for a number of reasons, not least our view that the Bill was, in effect, in our words, a “ploy” to avoid having to pass a hybrid Bill.
The Government even admitted in the Commons that the Bill applied only to Somerset but that, if they made it a Somerset-only Bill, it would be a hybrid Bill and would take, in the Minister’s words, three to 10 years to get through Parliament—a nonsensical claim in itself. They came up with this ruse to ostensibly make the Bill one which applied nationally to get around the hybrid Bill procedure. I consider that to be a gross abuse of our parliamentary procedures. It deprives the people of Somerset the chance to have a proper say, which they would normally get with a hybrid Bill. Even if 99% of the people of Somerset think that the substance of the Bill is the best thing since sliced bread, the other—hypothetical—1% should still have the right to have their case considered. We welcome the Constitution Committee’s unreserved support for this criticism. I hope the whole House will support me in moving amendments so that this Bill is converted back to a proper hybrid Bill, which it is in reality.
I want to conclude on the point made by the Constitution Committee in its first conclusion in its summary of conclusions and recommendations, where it says:
“It is a responsibility for all, including Parliamentary Counsel, to uphold constitutional standards in relation to delegated powers”.
On reflection, that is an exceptionally good point, which needs emphasis. In my opinion, criminal defence lawyers will lie, cheat and connive to get their client off. That is what they are paid to do. We expect different and much higher standards of government policymakers and parliamentary draftsmen.
Who thought of the ploy of dehybridising the Somerset land drainage Bill? There cannot be more than a dozen MPs in the other place who know about hybrid Bills—they are the unlucky ones who have been forced to serve on the hybrid Bill committee. I am therefore certain that Ministers did not come up with this scam, although they must take ultimate responsibility. It had to be lawyers who thought of this ploy to get around parliamentary procedures.
Of course, Ministers will want to build fairly wide powers into a primary Bill for secondary legislation, but did they dream up this power of making law by declaration or taking powers from the EU healthcare Bill that would have permitted the Government to pay for a Texan having a hip replacement in Dallas? I think not. I am giving notice to departmental policymakers and parliamentary draftsmen, as well as to Ministers, that we may summon them before our committee not simply to justify the extraordinary powers being sought but to find out who dreamed up these attempts to get around our procedures in the first place. I think it is a very valid question.
I was about to conclude there, but my noble and learned friend Lord Mackay of Clashfern has prompted me to tell a little story from about 1996, when I was a Minister of State in the Home Office and we were signing off yet another massive criminal justice Bill. I was invited to go to LEG committee and was briefed by civil servants. It was agreed around all the departments: “Minister, there’s nothing to worry about. Everyone’s content. It’s a routine matter”. I had in my beautiful red folder a one-page note to that effect and a draft copy of the Bill.
I got to LEG committee and the room said, “It’s all straightforward. It’s all agreed. Nothing to worry about. We’ll introduce the Bill tomorrow.” The then Scottish Secretary—my noble friend Lord Forsyth of Drumlean —piped up to say, “Could the Minister of State please answer this point? The age of criminal consent is different in Scotland. In Clause 56(5), could he explain why this is the case?”. I pretended to flick through my notes but knew I had nothing on it. I had to say, “Well, I think it is probably not a material point. It’s probably some misunderstanding”.
At that point, the then Lord Chancellor—my noble and learned friend Lord Mackay of Clashfern—piped up to say, “Well, it is a material point. The Bill could be fatally flawed. The Minister of State must be able to answer this point”, which the Minister of State could not. The then Lord Privy Seal, the late Tony Newton MP—the late Lord Newton—had a cigarette in both hands by this time, saying, “Oh my God, this is terrible. The Bill is fatally flawed. We cannot lay it tomorrow. The Minister must go back to the Home Office”. I was sent with my tail between my legs because the Bill was apparently not properly prepared. Within 30 minutes of getting back to the Home Office, after some strong words, it was all cleared by the department; it was a misunderstanding. But the point of this little story is to reinforce the point made by my noble and learned friend Lord Mackay of Clashfern that Bill—and ministerial—preparation is everything.
Whether it is Brexit legislation or no, vigilance in respecting the critical boundary between primary and secondary legislation must be at the forefront of this House’s concerns. The Delegated Powers and Regulatory Reform Committee has a vital role to play in that and we will be undaunted in discharging our responsibilities.
I think it is true, as the committee suggests, that legislation is sometimes more clearly worded now than it was. Sir Ernest Gowers did not write entirely in vain in 1948. His great work is apparently still in print and I think it should be on every civil servant’s desk.
The Select Committee is right to single out taxation legislation as one area that is not clear. Indeed, it is appallingly complex in places. Some might think that this benefits accountants and tax lawyers, and of course, people from both categories have been the reason for extra complexities being introduced in the cause of anti-avoidance. Both the Institute of Chartered Accountants in England and Wales, to which I still belong, and the Chartered Institute of Taxation complained in their evidence to the Select Committee about the lack of clarity and inconsistent definitions. The problem is recognised by government; the existence of the Office of Tax Simplification demonstrates that. I wish its new chairman, Kathryn Cearns, and all involved every success.
I note in passing that one of the candidates for leadership of my party wants to replace VAT with a so-called simpler sales tax. As it happens, I was in at the birth of British VAT and it was then regarded as a huge simplification of and improvement on purchase tax, the sales tax collected at the wholesale stage. Purchase tax lost favour, to put it mildly, because of the inherent definitional problems inevitably involved in practice when you came to write it into law and vary it over the years. VAT remains an excellent, ingenious, clear concept and its replacement would not lead to simplification for long, if at all, and meanwhile there would be huge disruption. I mention this because it is a special example of the problems of proposed legislation being written into manifestos. This is discussed in the committee’s report in respect of changes in government after general elections, but it has some relevance this week too.
Clearly, like the committee, we all welcome consolidation in principle, but recognise that not enough of it is done in practice, notwithstanding the Bill in Grand Committee this afternoon. My noble and learned friend Lord Mackay of Clashfern spoke much more expertly and eloquently than I can, and I agree with him about this. I was interested in the reference to “rolling consolidation”—namely, making use of the valuable website legislation.gov.uk. I find it extremely useful when considering legislation. I was delighted to see the First Parliamentary Counsel, Elizabeth Gardiner, explaining on page 41 of the report that her office is trying to draft new legislation which alters existing legislation through clauses that could replace the existing legislation—in her words, “consolidating as we go”.
An example may explain the concept a little more clearly. A change in the law may be proposed by an amendment saying something such as, “except that subsection (5)(b) will not apply in the following circumstances”. Is it not better to have an amendment that proposes to leave out subsection (5)(b), or whatever it is, and insert a new subsection altogether, incorporating the changes required? That technique leaves the legislation in a cleaner position, and a consolidated one, to a degree. Footnotes on the website can direct readers to the old version in case that is required. There will not always be a choice between the two ways to frame a change but, where there is, the First Parliamentary Counsel is quite right to prefer it.
The subject of these reports will for ever be with us, and, for that matter, with our successors, but the Constitution Committee has made a most useful contribution to the current debate, and I commend it.
I am delighted that we will hear later from the noble and learned Lord, Lord Judge, who has done perhaps more than anyone in this Parliament to draw our attention constantly to this. He talked in one debate about his grandchildren saying that he “banged on”, but he has banged on brilliantly about delegated legislation, about Henry VIII powers and about Governments having frequently treated Parliament with disdain—and, frankly, never more so than during the agonising years since 23 June 2016. When we have a new Prime Minister and a new Government, I hope there will be a re-evaluation of priorities, a recognition that Parliament is not here to serve a Government but that a Government are here to serve Parliament. Parliament collectively represents the people, and the Government are constantly answerable to those who are in Parliament as the representatives of the people.
I was privileged to have the noble Lord, Lord Beith, as a colleague in the other place for many years, after he won that spectacular by-election in Berwick-upon-Tweed, way back in the early 1970s. He held his seat because he was a very good parliamentarian. In his very interesting and rather witty speech, he referred to those catchphrases that we use—the skeleton Bills, the Christmas tree Bills and signal Bills. It is the duty of a Government to bring forward legislation that has been properly thought out and properly drafted. My noble friend Lord Cope of Berkeley referred to the parliamentary draftsmen. As a very young Member of Parliament, I remember being told by a very sage Member, sadly now no longer with us, that a parliamentary draftsman appears to need an “MO degree”. When I asked what that was, he said, “Master of Obfuscation”.
We need to rebalance the Executive and Parliament, and to have a Government who will bring forward legislation that is always subject—as our committees have recommended in the past—to pre-legislative scrutiny and, after the passage of a year or two, to post-legislative scrutiny. Has what has been enacted been properly enforced and has it achieved what those who brought the legislation before Parliament wanted?
I shall say two other things. We have to flex our muscles a little more. My noble friend Lord Norton referred to Parliament being very restrained. Perhaps we must reconsider our excessive restraint; the time when we should do so has long passed. I use those words particularly in the context of statutory instruments. My noble friend Lord Hunt talked about the statistics—how, of well over 100,000, only 16 instruments had been voted against in the years since the war. It should become normal to amend statutory instruments. They are crucial; they are a vital part of the legislative armoury of any Government, and Parliament should not merely meekly acquiesce whenever a statutory instrument is brought before it.
The two reports that are the subject of tonight’s debate are representative of the signal service that the committees of this House provide for us. We owe the Constitution Committee under the noble Baroness, Lady Taylor of Bolton, and the committees under my noble friends Lord Blencathra and Lord Trefgarne a very real debt of gratitude. If we are to repay that debt of gratitude, we all—individually and collectively—have to flex our muscles a little more.