Pre-legislative Scrutiny

– in the House of Lords at 7:13 pm on 16th July 2008.

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Photo of Lord Goodlad Lord Goodlad Conservative 7:13 pm, 16th July 2008

asked Her Majesty's Government what is their response to the report of the Constitution Committee on Pre-Legislative Scrutiny in the 2006—07 Session.

My Lords, I am grateful to the Government for providing time for the House to ask for its response to your Lordships' Select Committee on the Constitution's report on pre-legislative scrutiny in the 2006-07 Session and to the Minister for being in his place to provide that response during an exceptionally busy time in the parliamentary year.

I had suspected that he might be a crypto-Stakhanovite; that suspicion is deepening a little. I shall not rehearse at length the case for pre-legislative scrutiny. Suffice it to say that it enhances Parliament's capacity to influence legislation at a formative stage and gives an opportunity to individuals and interested parties to contribute to the deliberations of committees. From the Government's point of view, it should lead to better legislation and save precious time during the later legislative stages of Bills.

In your Lordships' committee's 2004 report, it welcomed the use of pre-legislative scrutiny but wished to see it improved and extended. This enthusiasm is shared by others. Jack Straw told the committee in evidence on 23 October 2007:

"Business managers are always anxious to see bills go into pre-legislative scrutiny because it makes them on the whole better bills and it improves their chances of going through".

The noble Lord, Lord Rooker, recently introduced the Climate Change Bill by saying:

"I must take this opportunity to say how helpful the pre-legislative scrutiny has been in developing the Bill. It was incredibly helpful to civil servants and parliamentary draftsmen in Whitehall".—[Hansard, 27/11/08; col. 1124.]

The noble Lord also said that the Bill had benefited greatly from the Joint Committee's careful examination.

During the Second Reading of the Human Fertilisation and Embryology Bill, the noble Baroness, Lady Crosby, noted that the Bill, as introduced, was a,

"remarkable example of how the legislature should be brought into the drafting and scrutiny of Bills to a much greater extent than is generally true".—[Hansard, 19/11/07; col. 685.]

So we have the three distinguished scrutineers, and there are many d'Artagnans ready to join them, not least the noble Lord, Lord Norton, who is in his place and is a member of your Lordships' Constitution Committee.

In the years since the publication of the committee's 2004 report, the amount of pre-legislative scrutiny markedly declined. In response to that decline, my predecessor, the late Lord Holme of Cheltenham, wrote to the noble Baroness, Lady Amos, then Leader of the House, in January 2007, to ask whether she would agree to write a letter at the end of each Session enumerating the Bills published, wholly or partially in draft, and giving an explanation of the figures and any relevant trends. The noble Baroness rejected that request on the grounds that she was not convinced that it would add any real benefit. The committee, accordingly, announced that it would produce and publish statistics on the volume of draft Bills at the end of each Session, together with comment.

This is the first such report, and sorry reading it makes. The figures showing the decline are in the report before the House. They show that the ratio of draft Bills to government Bills fell from one in three in 2003-04 to one in nine in 2006-07. In the long 2005-06 Session, it was one in 15. The number of draft Bills dropped by two-thirds during that period, contrary to the Government's 2005 commitment at least to maintain the proportion of Bills published in draft.

In response to the strictures of the House of Commons Liaison Committee in its 2005-06 annual report, the Government stated that they were aware that the number of draft Bills published in recent years had not reached the same total as those published in one or two earlier years, but that they hoped that the number of draft Bills published each year would be above the number achieved in the 2005-06 Session. Yet, they introduced just four draft Bills in the 2006-07 Session, the same number as in 2005-06.

Your Lordships' committee, therefore, resolved to call on the Government to increase the number of draft Bills published per Session to at least the 2003-04 level, to ensure that all draft Bills were published in good time, allowing 12 weeks for scrutiny at the very minimum and, if possible, considerably more, and, where possible, to spread their release throughout the parliamentary year. We also resolved to urge the Government not to undermine the parliamentary scrutiny process by launching additional consultations once pre-legislative scrutiny is in process or, indeed, after it has been completed. No one appreciates the exigencies of parliamentary business management more than I do; I appreciate that we occasionally have emergency Bills—three, recently—but most are not emergency Bills. It would be comforting to know who in the Government is in charge of the pre-legislative scrutiny procedure.

The Minister may also wish to revisit the decision of the noble Baroness, Lady Amos, not to write to the committee on this matter at the end of every Session. I know that noble Lords look forward to the Minister's response to the report, as to all his contributions, with eager anticipation.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Ministry of Justice, Scotland, Scottish and Northern Ireland Affairs 7:20 pm, 16th July 2008

My Lords, we are greatly indebted to the noble Lord, Lord Goodlad, and his committee for their work in drawing close attention to the limitations of pre-legislative scrutiny in Parliament, and not merely for their recommendations but for eliciting factual information which has not always been forthcoming voluntarily from the Government. It has to be said that that rather restrictive attitude is somewhat surprising in view of the support that Ministers have generally given on a number of occasions—most notably that of the Lord Chancellor, Jack Straw, to which the noble Lord, Lord Goodlad, referred.

The importance of pre-legislative scrutiny scarcely needs to be emphasised. However, I think it is beginning to become a significant question whether our procedures are adequate to draw forth an in-depth examination of legislation that is not emergency. This House would do well to consider whether a system of pre-legislative scrutiny should be the norm not the exception. In a number of other developed democracies, committees exist purely for that purpose; they are not necessarily a chamber of parliament. In New Zealand there is a pre-legislative committee chaired by a former Prime Minister. In that case there is a predominance of lawyers examining the legislation, and I am quite sure that that would not necessarily commend itself to this Parliament. None the less, that committee's work is valued by the New Zealand legislature. There are in other democracies other examples of deliberate examination of legislative proposals, not necessarily as part of the amending process but as an attempt to view the fitness for purpose—to use that rather unattractive contemporary expression—of what is being proposed and to allow, before positions become entrenched, the opportunity for those interested in the subject matter to ventilate their views and to give the benefit of their advice.

One indication given by the Leader of the House in her response to the House of Lords Constitution Committee report which we are considering filled me with dismay. She said that,

"it will not be possible to give a general undertaking to publish most bills in draft or regularly to achieve the figures reached in 2003-04".

We all recognise that circumstances arise when it is necessary to enact legislation quickly, in an accelerated programme, where public necessity dictates, but, as the noble Lord, Lord Goodlad, said, that is certainly the exception. Most legislation is considered quite a long time in advance within government. It is not satisfactory to accept that there are administrative requirements that make it impossible to make pre-legislative scrutiny the norm. The flexibility of the ordering of Bills is entirely a matter for government. It is not beyond the bounds of Ministers to take a more ordered view of how they will proceed overall.

I would not wish to give the impression that the Government are not aware of these matters. It is highly desirable and commendable that they have published their legislative programmes in advance, as it gives at least some scope for public discussion before matters are set in concrete. There is growing awareness of the need to improve legislation, but, as the committee has drawn to the House's attention, these aspirational commitments have not been fully met by a follow-up, which would certainly be desirable.

It is a matter for consideration—perhaps particularly so at a time when the Government have published proposals for the reform of this House—whether pre-legislative deliberation and scrutiny should be thought of in that context. One of the notable functions of this House is that it is able, when it is given the opportunity, to do a very good job of such scrutiny. I think that that is widely recognised from a number of examples that I have personally witnessed, and am witnessing, of pre-legislative scrutiny. It is clear that this House is particularly well suited to this deliberative process.

It is not necessarily an adversarial process, but is about seeking to elicit information, test ideas and judge whether the draftsmanship is adequate to reflect the intentions behind the Bill. My judgment is that that is not necessarily a function that has to be carried out by an adversarial, elected House of Parliament. It could be conducted by an appointed council of state, and that could be ancillary to the role of an elected upper House. I throw that idea in the Minister's direction without expecting him to respond in any kind of detail at all. None the less, I consider that some response is required from the Government which goes some way to indicating how they would propose to extend, and extend the effectiveness of, pre-legislative scrutiny.

There is some public concern about the quality of our legislation that is not connected with hostile partisan political attitudes but with the practitioners who have to interpret it, the professionals who have to rely on it and the general consumer of legislation. Those are the concerns and interests that can be best dealt with before the matter becomes part of the cut and thrust of debate in the Committee and Report stages.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 7:30 pm, 16th July 2008

My Lords, I congratulate my noble friend Lord Goodlad on raising this important question. The Constitution Committee's report on pre-legislative scrutiny follows, as my noble friend mentioned, its report Parliament and the Legislative Process, which was published in 2004, when I was the chairman. It is important to put the present debate in the context of that report.

The 2004 report looked at the legislative process holistically, addressing pre-legislative, legislative and post-legislative scrutiny. At that time, the most significant developments had occurred in respect of pre-legislative scrutiny, and it looked as if that would continue to be the case. The value of pre-legislative scrutiny was widely recognised. The experience of Bills committed for pre-legislative scrutiny demonstrated its utility for improving the quality of legislation.

The case for extending scrutiny was recognised not only by the committee but also by the Government. Paragraph 28 of the 2004 report states:

"We not only welcome the use of pre-legislative scrutiny but wish to see it improved and extended. The Modernisation Committee in 2002 stressed that it wished to see publication in draft become the norm. The Deputy Leader of the House, Phil Woolas, has stated that 'a bill should be published in draft form unless there are good reasons for not doing so' and has made clear that 'it is the Government's intention and policy to increase the amount of legislation that is subject to pre-legislative scrutiny'".

I reiterate this direct quote from Mr Woolas, who said that,

"it is the Government's intention and policy to increase the amount of legislation that is subject to pre-legislative scrutiny".

What has happened since? There has been a major improvement in the legislative process and there has been a significant development in respect of post-legislative scrutiny. The Constitution Committee, in its 2004 report, recommended that a Bill should, at some point during its passage, be subject to scrutiny by an evidence-taking committee. The other place has introduced Public Bill committees. This is a very welcome development, albeit one that has been little noticed outside the Palace of Westminster, and indeed has perhaps not been fully appreciated by this House. It is something that we should be examining.

In its 2004 report, the committee also recommended that Acts should normally be subject to post-legislative review by departments, with those reviews then submitted to departmental Select Committees in the other place. The Government referred the proposal to the Law Commission, which reported in October 2006; its report largely followed that of the committee, but also recommended the creation of a Joint Committee to consider post-legislative reviews not taken up by departmental Select Committees. The Government took their time in responding but in the event produced a very welcome report in March this year. Though not endorsing the proposal for a Joint Committee, it did accept that departments should review Acts normally within three to five years of enactment and send the reviews to Select Committees. I trust that we shall, in due course, be debating the Government's response.

My point for the moment is that there has been very welcome progress with both the legislative process and post-legislative scrutiny. What has happened with pre-legislative scrutiny? There has been, in effect, as my noble friend indicated, a regression. The Government have clearly abandoned the policy announced by Phil Woolas. As the data in the report that is the subject of this debate makes clear, the highpoint for the number of Bills subject to pre-legislative scrutiny was 2003-04.

What justification do the Government offer for this post-2004 regression? In their response to the latest report, they state:

"The Government also has been disappointed at the lower numbers of draft bills published in recent sessions".

It is written as though this is something external that is happening to Government, for which they have no responsibility. It continues:

"But, as has been indicated in the past (for example in the reply to the Commons Liaison Committee in 2007), it will not be possible to give a general undertaking to publish most bills in draft or regularly to achieve the figures reached in 2003—04. The main practical obstacle remains the need to have the freedom to bring forward much legislation on a timetable which does not allow for publication of the proposed legislation in draft form. As the Committee notes, the number planned for publication in the current session is significantly higher than in the preceding sessions".

I have asked before, but received no answer: what on earth does this mean? I ask the Minister to explain what is meant by the following sentence:

"The main practical obstacle remains the need to have the freedom to bring forward much legislation on a timetable which does not allow for publication of the proposed legislation in draft form".

Why does it need that freedom? Why is it a practical obstacle, as opposed to political resistance from Ministers to having their Bills examined in draft? There is no justification offered for the Government's statement in their response either to the committee's report or to the Liaison Committee in the other place.

Why do the Government then go on to say:

"As the Committee notes, the number planned for publication in the current session is significantly higher than in the preceding sessions"?

That does not obviously flow from what has gone before; if anything, it undermines it. It is possible to publish several Bills in draft, more so than in the immediately preceding Sessions. Why can this not be maintained and extended?

As the Constitution Committee recognises, certain Bills obviously cannot be published in draft; for example, the Criminal Evidence (Witness Anonymity) Bill. However, as my noble friend said, emergency legislation is the exception and not the norm. The Government have provided no clear principled or practical reason why there should not be more Bills published in draft and committed to pre-legislative scrutiny. The case for such publication and pre-legislative scrutiny is generally accepted, including by the Government, so why are they not delivering on what in 2004 was their declared policy? I know there is some incentive for departments to publish in draft, yet there seems to be a reluctance to go down this route and a failure on the part of senior Ministers to impose such a policy.

The Government have failed to justify this step backwards. They have made progress in other areas of the legislative process, so why not in respect of pre-legislative scrutiny?

I conclude by referring to the time provided for pre-legislative scrutiny. When Bills are referred for pre-legislative scrutiny, the committee should normally have at least three months to consider the Bill. That is included in the Cabinet Office guidance to departments. Like the noble Lords, Lord Maclennan and Lord Tyler, I serve on the Joint Committee on the draft Constitutional Renewal Bill. We began work in May and we have to report by 22 July, when we are meeting—this is for legislation that is essentially five Bills in one. The pressure on the Joint Committee has been enormous.

The Government's response to the Constitution Committee's observations on this point is wholly inadequate. In effect, it is that it is "one of those things". If the political will is there, the situation can be improved. I am aware of the pressures on parliamentary counsel, but more can be done to stagger the introduction of Bills and make greater use of the provision for carryover. These points are covered in the Constitution Committee's 2004 report. There is scope for improvement. What is lacking is not necessarily the resources but rather the resolve to improve the situation. The Government's response is indicative of that. I look forward to the Minister offering far more this evening than is embodied in this rather sorry response.

Photo of Lord Tyler Lord Tyler Spokesperson in the Lords, Ministry of Justice 7:38 pm, 16th July 2008

My Lords, with your permission I shall speak in the gap. I have been sitting on the pre-legislative Joint Committee on the Marine Bill and endorse some of the points made by other speakers. The process has been very effective, and witnesses have been able to appear, including a fascinating witness from the EC who enabled us to take an alternative view on what we are doing. That should happen more often. The consensus emerged about the changes needed to the Bill which, I hope, will be incorporated.

I half-endorse the grumbling of previous speakers, although we should always remember that the best should not be the enemy of the good. Our committee has been able to sit for eight weeks this summer and done very useful work, even though we did not have the ideal 12 weeks. With those points I should like to endorse the committee.

Another criticism was that scrutiny committees should not be meeting if there are additional reports in the pipe-line. Our committee had additional reports in the pipeline. We should just live with that; it is better to have pre-legislative scrutiny than none at all.

Photo of Lord Tyler Lord Tyler Spokesperson in the Lords, Ministry of Justice 7:40 pm, 16th July 2008

My Lords, I am glad to contribute to the debate, not least because I entirely endorse the comments of the noble Lords, Lord Goodlad and Lord Norton of Louth, and my noble friend Lord Maclennan. As the noble Lord, Lord Norton, has already said, three of us are involved in the pre-legislative scrutiny of the draft Constitutional Renewal Bill, to which I shall come back in a moment; this has been an important exercise and it has conditioned my thinking on this.

I note in passing how important it is to have a few poachers turned gamekeepers in this House. There are two former Chief Whips, members of the old boys' club, here this afternoon. In the notable case of the noble Lord, Lord Goodlad, we have a former government Chief Whip. As such, he comes with all the experience of the business managers of the other place, which will stand us in good stead in his committee and in his service to your Lordships' House. Useful work is clearly being undertaken. So many of the recommendations of the Norton report, to which we go back at regular intervals, are still relevant to what we are doing here today.

It is important to step back for a moment to remind ourselves why we undertake pre-legislative scrutiny: to improve the eventual product of Parliament. The quality of what we produce in this building is often justifiably criticised, but pre-legislative scrutiny is one way in which we can make dramatic and useful improvements. It is therefore important that we are concerned not only with the number of Bills that go through this process, but their importance and significance—indeed, somebody mentioned their length. Although I take seriously the point of the noble Lord, Lord Goodlad, about the reduction from a total of 15 in the year to which he referred to one in three, the significance of that legislation is also important. It is not just quantity but quality.

I have a long commitment, as do my noble friends, to improving pre-legislative scrutiny and making it more applicable and work better. Indeed, in the other place, I worked closely with the late Robin Cook on these issues. I see that the Minister indicates that Robin Cook applied considerable energy and effort, and attempted to bring Members of all parties along with him to make a success of this exercise.

It is significant, as the noble Lord, Lord Goodlad, has pointed out, that a great many more Bills went into pre-legislative scrutiny when Mr Cook was Leader of the House of Commons, not least those undertaken by Joint Committees. In passing, I point out, as I am a member of the Joint Committee looking at the draft Constitutional Renewal Bill, that a special role can be played in Parliament by Joint Committees. They bring together the ethos of this House with some of the expertise available in the other place. We accelerate the process because we bring together the analysis of both Houses in one exercise, rather than having to do it sequentially and thereby lose some time.

Reference has been made to the Joint Committee on which we are serving having been given an extraordinarily short time to deal with incredibly complicated matters, diverse to the point of disruption. Some of the issues that we have been addressing are so peculiar in their own way that they do not happily fit into a coherent draft Bill. Without betraying any of the likely consequences of our examination, we may well make that comment. To do it in just 10 weeks! We are meeting twice a week, on Tuesdays and Wednesdays, with our amazing Clerks from both Houses updating us between the meetings. It is extraordinary, and I pay tribute to the Clerks for that exercise, but it cannot be said to be a well organised process if we are putting them under that pressure.

In addition, we should recognise that one of the huge values of pre-legislative scrutiny is that we take evidence. As the noble Lord, Lord Hunt of Chesterton, said, it is extremely important that we take evidence from outwith the parliamentary estate on important issues that we address. I note, for example, that when the Joint Committee under the noble Lord, Lord Puttnam, looked at the Communications Bill, evidence was taken from experts that could possibly not have been brought together by the normal process of examination.

In that context, my noble friend Lord Maclennan is right to say that, when taking evidence in a Joint Committee, you get well away from the normal adversarial process so often seen at the other end of the building—and occasionally in your Lordships' House. In this process, you would not know what party or group those taking the evidence of those giving it were from. That effective, impartial assessment of complicated issues was especially apparent in the pre-legislative scrutiny of the Communications Bill.

Briefly, on parallel consideration of these issues between the two Houses, it would be inappropriate to comment in detail on what happens in the other place. However, I note—because I was involved in it—that this House was looking at these issues from 2002 to 2004 when the modernisation Select Committee, on which I served for a number of years, was doing so in the other place. I take seriously the work done in this House by an interesting group of party leaders while this was being discussed by the modernisation committee. It was referred to as the Leaders' Group on working practices in the House of Lords, and produced a report on 29 April 2002 that went into a great deal of detail about the working practices of the House.

We all know what happens with the London bus syndrome: Bills all appear immediately after the Queen's Speech in December or November, and they all need a Second Reading. A number come to this House; perhaps too few, but that is a separate issue. A great number go the House of Commons, and then they all go into Committee. As a result, there is a blockage; we have a number of Bills coming at the same time. Sometimes there are 10 or a dozen Bills for Second Reading in just a few weeks, and then they all go into Committee.

Those pressures can be alleviated, partly by better spreading of the draft legislation for pre-legislative scrutiny, partly by allocating in which House they should start, but also by ensuring that carryover is used in appropriate cases. In 2002, this House made the sensible decision of linking the issues of pre-legislative scrutiny with carryover. Clearly, if you are to have appropriate time set aside for pre-legislative scrutiny, you may find that the resulting Bill needs to be carried over into the following Session. Unfortunately, against the pressures that I and others—particularly Robin Cook—tried to steer through in the other place, the same deal was not struck, nor was the same link made. I therefore fear that the other place is far less clever in organising pre-legislative scrutiny and the resulting link with carryover. That is an important link, for better digestion of the legislative programme through the year and—where necessary, by agreement between the parties—carryover into the following Session. I hope that the Minister will allude to that issue. Even if he cannot give a definitive view, I hope that we can go back to it.

We owe a great debt, not only to the noble Lord, Lord Goodlad, for what he has done with this committee in more recent months on behalf of your Lordships' House, but also to previous chairs: the noble Lord, Lord Norton, and our much lamented former colleague, the late Lord Holme of Cheltenham, who made a signal contribution to the improved working of this House. This is a useful report. I hope that we will have a positive response from the Minister this evening. More than that, however, I hope that we will see some of the improvements that have been alluded to by all noble Lords who have spoken this evening.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 7:49 pm, 16th July 2008

My Lords, I congratulate my noble friend Lord Goodlad on bringing his report to your Lordships' House and on explaining it with his customary incisiveness.

Generally speaking, pre-legislative scrutiny is a desirable constitutional development. The members of a scrutiny committee have a real opportunity to influence the Government's thinking. Moreover, the existence of the committee, sitting in public, animates and engages outside interests and individuals who have preoccupations about one or more of the draft Bill's provisions. By the time it becomes a Bill, and begins its journey through the legislature, many more people than would otherwise be the case have become familiar with its contents and the issues to which it gives rise. This increased awareness goes a little way to redress the balance of power between Parliament and the Executive. Faced with a better informed House, the Government will usually have to work harder to achieve the passage of a Bill, and to give more ground than they would otherwise have done.

Soon after the right honourable gentleman the Prime Minister became Prime Minister, he committed himself to changing the balance of power between Parliament and the Executive. Indeed, there is a draft Bill on constitutional renewal presently under consideration by a joint legislative committee—as we have heard more than once tonight—much of the contents of which purport to contribute to achieving this constitutional objective. However, as my noble friends Lord Goodlad and Lord Norton of Louth powerfully said, in the arena of pre-legislative scrutiny there seems little or no sign of the Government pursuing the Prime Minister's declared aim.

This is evident from the Government's response to your Lordships' Select Committee's report. It is resoundingly negative. The Government refused the committee's request to give a,

"general undertaking to publish most bills in draft or regularly to achieve the figures reached in 2003-04".

Yet the Government's legislative plans for the coming session were published in May. Surely there could be greater use of pre-legislative scrutiny within this timescale, as the noble Lord, Lord Tyler, emphasised.

Chapter 1 of the Government's 2008 draft legislative programme states that its aim is,

"to set out the Government's current proposals for legislation, to be considered by Parliament in its next session, for comment and consultation before the final programme is published in the Queen's Speech towards the end of the year".

Given this aim, why are the Government so reluctant to let Parliament conduct detailed pre-legislative scrutiny of their proposed measures?

Moreover, the Government were unwilling to give the committee any comfort on its specific requests, as my noble friend Lord Goodlad explained. They declined to provide guidance on the compiling and publishing of statistics for draft Bills and draft clauses; were not prepared to furnish a general undertaking to publish most Bills in draft form; and refused to agree to guarantee that a committee engaged in pre-legislative scrutiny should have at least three months at its disposal.

The Minister will no doubt tell us, on the one hand, that the Government remain committed to the principle of pre-legislative scrutiny for most Bills; but, on the other, that constraints such as the availability of parliamentary draftsmen, competing demands on civil servants within departments and, quite simply, events, make specific commitments on numbers or timing impossible to make.

My response to that is to say that, despite these constraints, Government always respect the legislative timetable and procedures of each of the two Houses of Parliament with respect to the passage of Bills in circumstances where the above-mentioned constraints are just as relevant. Why should pre-legislative scrutiny not be regarded in most cases—as I believe all speakers said this evening—as an additional mandatory stage in the passage of a Bill?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 7:54 pm, 16th July 2008

My Lords, I thank the noble Lord, Lord Goodlad, for instituting the debate and for chairing the committee which produces excellent reports. Although we have had a limited number of speakers, this has been a high-quality debate.

I was disappointed to hear that the Government's response was deemed negative. I assure noble Lords that we respond positively to pre-legislative scrutiny where it is appropriate. We will continue to look at these matters in the light of the committee's report and our discussion tonight. The Government remain committed to the use of pre-legislative scrutiny and certainly understand the benefits it can have in terms of the quality of the legislation that is eventually passed, engagement with stakeholders and increased knowledge gained by Members of both Houses who take part in it. When the substantive Bill is produced, the debates on it in your Lordships' House and the other place are inevitably enhanced because of the experience that Members bring to them.

Eighteen months ago, I well remember suddenly finding myself in the Department of Health. On almost my first day in the new job I had to deal with the first Committee day of the Mental Health Bill, which would have been a challenge in itself. However, it turned out to be even more of a challenge because many of the noble Lords who took part in the debates on that Bill had served on the pre-legislative scrutiny committee. Therefore, they came to those debates armed with huge knowledge and expertise, and sometimes with preformed judgments on some of the issues. Therefore, I experienced at first hand the benefit of pre-legislative scrutiny and have no doubt at all that it can be very beneficial for some legislation.

I very much enjoyed the speeches of the noble Lords, Lord Norton, Lord Tyler and Lord Maclennan, and the way in which they placed this debate in a much wider context. Mention was made of the 2004 report, which took a holistic view of the legislative process; of the work of the Modernisation Committee of the House of Commons; and of the late Robin Cook, who was such an energising moderniser of Parliament. If one looks at the changes that have taken place in the past 10 years, one is in no doubt that there has been impressive progress in improving parliamentary scrutiny. It is easy to forget that detailed Explanatory Notes to Bills have been with us for only a few years. Prior to 1997, Members had to rely on notes on clauses, which were not widely disseminated. Impact assessments are also published with Bills. In the wider scrutiny sense, we have the Westminster Hall debates and Public Bill Committee hearings in the other place, to which the noble Lord, Lord Norton, rightly drew attention. Topical questions were introduced in the other place, no doubt following the experience of your Lordships' House, which increased the number of such questions that can be asked. In addition, the draft legislative programme is published in advance of the Queen's Speech.

The noble Lord, Lord Kingsland, rightly referred to the statement by my right honourable friend the Prime Minister last summer, The Governance of Britain Green Paper and the draft constitutional reform Bill, to which my noble friend Lord Hunt also referred. That shows that considerable progress is being made. However, I accept that we ought not to be complacent. The noble Lord, Lord Tyler, was absolutely right to say that the opportunity that we have to debate House of Lords reform in the light of the White Paper issued on Monday also gives this House an opportunity to look at its own procedures and the way in which it deals with legislation.

I modestly—or not modestly at all—refer to the Labour Peers Working Group on Lords reform. One of the sections in it suggested an alternative way of dealing with legislation. I cannot say that it has got very far, but we have an opportunity in the next year or so, particularly leading up to the election, and following on from the White Paper, to think rather more about whether there are ways in which this House could improve the way in which it scrutinises legislation. I would very much welcome that.

We heard a lot about New Zealand yesterday. We were going to send the noble Lord, Lord Thomas of Gresford, there to investigate the way in which it deals with witness anonymity. It would be interesting to look at the approach suggested by the noble Lord relating to pre-legislative scrutiny.

I asked officials for a list of the Bills where pre-legislative scrutiny has taken place and the impact that it has had, and it is very positive. I shall mention three of them. On the Legal Services Bill, the Government accepted a large number of the Joint Committee's recommendations; the reckoning is approximately three-quarters. We have already heard the tribute paid by the noble Baroness, Lady Williams, on the Human Fertilisation and Embryology Bill. The majority of recommendations in the committee's report on the Climate Change Bill were accepted. There is no doubt at all that that strengthened the Bill in terms of policy and legislative handling.

On the question of numbers, ratios and the Government's current approach, the Government published 58 draft Bills between 1997 and the beginning of the current Session. We have published a further seven so far this Session: the Cultural Property (Armed Conflict) Bill; the Constitutional Renewal Bill; the Marine Bill; the Heritage Protection Bill; the Marine Navigation Bill; the Immigration Bill and the Apprenticeship Reform Bill. The draft legislative programme flagged an intention to publish two further Bills, on construction contracts and on communications data.

If we take the seven Bills published so far this Session, in the current Session, the Government have introduced some 23 main programme Bills for Royal Assent. One-third of those were either emergency Bills—the Banking Reform Bill and the Criminal Evidence (Witness Anonymity) Bill—or Bills that were previously published in draft. One must be careful about the ratios.

I know that noble Lords think that there should be more than seven, and I accept that every noble Lord who has spoken would like there to be more, but that is evidence that the Government have not backed away from the general principle of wishing to publish Bills in draft where it is appropriate and where there will be real benefit from it. However, there are sometimes good reasons why—

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

My Lords, I am grateful to the Minister for giving way with his customary kindness. He has just said that the Government support the use of pre-legislative scrutiny where appropriate. My understanding was that the Government had accepted the principle of exercising the pre-legislative scrutiny procedure in the case of most Bills; and that what held the Government back were factors such as the lack of parliamentary draftsmen and difficulties within government departments about priorities. Which is it? Is it that the Government simply take the view that it is entirely at the discretion of the Government as to which Bills they subject to pre-legislative scrutiny; or is it only because of those constraints that the Government do not subject most Bills to pre-legislative scrutiny?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, there are a series of factors and considerations that need to be taken into account. The noble Lord is not going to get me to answer in the way that he wants me to answer. Clearly, there are a series of considerations that need to be taken into account.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

My Lords, does not this go to the heart of the debate and in particular the speech made by my noble friend Lord Norton of Louth? He suggested that the Government were going backwards in this matter. I suspect that the Minister would not be prepared to accept that allegation. It seems to me, from the noble Lord's reaction to my first intervention, that the Government do not know what their policy is on pre-legislative scrutiny and, even if they do, they are not prepared to tell your Lordships' House.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I really think that that is rather unfair. I thought that I had made the Government's policy on pre-legislative scrutiny very clear. After all, it was this Government that introduced and developed pre-legislative scrutiny, alongside other modernisations and improvements—

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

My Lords, I may be able to help the noble Lord. He is saying that there are reasons why Bills are not published in draft. Part of the problem is that we are not told what those reasons are. One way to completely change the emphasis and address that very point is embodied in a recommendation of the Constitution Committee in 2004. Paragraph 34 states:

"Acknowledging that this entails an important shift of emphasis, we recommend that the Government should move from deciding which bills should be published in draft each session to deciding which bills should not be published in draft. Where the decision is taken not to publish a bill in draft, then the reasons should appear in the Explanatory Notes to the bill".

That would get at the point, we would know the reason, and it would provide a much clearer emphasis on what the Government are seeking to achieve.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I am not sure that I agree with that. In the end, it has to be for the Government to decide—

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, what is so fascinating here is that we are developing the concept of debate within a Question for Short Debate; so be it.

Photo of Lord Tyler Lord Tyler Spokesperson in the Lords, Ministry of Justice

My Lords, I am grateful to the Minister for giving way; I am going to come to his aid. Very useful evidence was given to the Select Committee on Modernisation about what the problem was. It was not the problem of manpower among parliamentary draftsmen. Indeed, it was recognised that spreading the load would be more effective. It was not the problem of producing draft Bills rather than complete Bills, because that, too, was recognised. If the Minister is finding it difficult to find suitable alibis for the position that the Government have taken, I suggest that he looks at the evidence given to the Modernisation Committee in the other place.

Finally, in that respect, it would certainly help if there was better discussion between the parties at a very early stage after the Queen's Speech about what was and was not appropriate for pre-legislative scrutiny. Again, that was one of the recommendations of Mr Robin Cook.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, it is not that I do not have answers to these questions; it is that every time I start to read out my brief, noble Lords intervene. I am quite happy to carry on in this very entertaining way. I have often thought that rather than having staid, officially written responses to Questions for Short Debate, it would be much better to have this kind of discussion. That is particularly so when it comes to such an important matter as how we can improve the job that we are here to do, particularly in your Lordships' House, which is to get better scrutiny of legislation.

I will not read through the list, but there are clearly substantive reasons why the Government would consider that it is not appropriate to have pre-legislative scrutiny for some Bills. Clearly, some Bills have external time constraints. The noble Lord, Lord Goodlad, referred to the emergency Bills that we have recently debated in your Lordships' House. There may be other Bills that are implementing policies following a review and extensive consultation. Where that has occurred, there may be some hesitation in also having pre-legislative scrutiny, due to time factors and the fact that it would cover ground that had already been extensively covered in a consultation.

There are time pressures in the government timetable. I have had experience of dealing with many Bills in different government departments. While of course it is important that there should be sufficient time for pre-legislative scrutiny, proper drafting and proper consultation, the reality of government is that, with the best will in the world, sometimes there is not the time. Sometimes Governments have to make decisions that lead to legislation for which it is simply not possible or practical to undertake pre-legislative scrutiny.

There will be some occasions where publishing Bills in draft may not add greatly to the knowledge of the proposed legislation. Some short Bills, for example, may legislate for the implementation of international agreements.

Photo of Lord Goodlad Lord Goodlad Conservative

Can the Minister say whether there is a Minister in the Government with overall responsibility for pre-legislative scrutiny and, if so, who that is?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Yes, my Lords, I was going to come to that. In fact, I have gone over my time. I do not know whether the House is happy for me to do that. My understanding is that pre-legislative scrutiny is the responsibility of the business managers in the two Houses. The Leader of the House of Commons is also chair of L Cabinet Committee—the Cabinet committee that all Ministers are in fear of, because it is in charge of the legislative programme. Therefore, it is L Cabinet Committee that must clear legislation. Noble Lords may not believe it, but it keeps a very tight rein and close eye on Ministers preparing Bills and on the legislative process. I certainly have the scars on my back to prove it.

A number of other questions were raised. I know that there is an issue about statistics and how they should be measured. I hope that officials from government may meet the officials who service the noble Lord's committee to see whether there can be further discussion about statistics. Clearly, there is a question about how you measure pre-legislative scrutiny.

On the House of Lords White Paper, the noble Lord, Lord Tyler, asked on Monday whether the intention was to publish draft clauses. The Government have signalled that, depending on the outcome of the White Paper deliberations, it may be possible to publish draft clauses. How should they be measured in terms of whether they are considered to constitute a Bill? There are some interesting matters that we might discuss.

On the question about my noble friend Lady Amos, when she was Leader of the House, and the publication of the information for which the noble Lord asked, the noble Lord will have read the response from my noble friend. I am happy to talk to my noble friend Lady Ashton about what information the Government might publish that would be of help to the House and the committee. The Government want to be co-operative in this matter.

Let me reiterate by, first, thanking the noble Lord and his committee for their invaluable report. Despite what may be perceived as the negativity of the response, I hope that he will not see it in that way. The Government remain committed to pre-legislative scrutiny. There is clearly a debate between us as to the extent of pre-legislative scrutiny and the criteria under which the Government decide which Bills are appropriate for it. I have no doubt that we will continue to have that debate. I also suspect that the work that will now take place on post-legislative scrutiny will throw up some interesting conclusions, which will be of help in improving the legislative process as a whole.

I pay tribute to the noble Lord, Lord Norton, for his championing of post-legislative scrutiny, which I believe offers much hope for the future. In the mean time, I assure noble Lords that the Government will continue to look with favour on pre-legislative scrutiny and will continue to evaluate Bills to ensure that, where appropriate, they will be considered for that process.

House adjourned at 8.15 pm.