Legislation and Public Policy — Debate

Part of the debate – in the House of Lords at 11:58 am on 25th February 2010.

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Photo of Lord Norton of Louth Lord Norton of Louth Conservative 11:58 am, 25th February 2010

My Lords, I welcome the opportunity to introduce this debate. The subject is central to the health of our political system. Parliament is witnessing a period of crisis and it is important that we address that as a matter of urgency. There is clearly a crisis of confidence in the political class. That, to some degree, is being addressed. We also need to review how Parliament itself operates.

Parliament is the buckle that links government and people. As such, there are two fundamental relationships-that between Parliament and government and that between Parliament and the people. It is important that we address both and equally important to recognise that the two are not mutually exclusive. Parliament needs to be effective in calling government to account and in ensuring that there is rigorous scrutiny of legislation and public policy. It is crucial that it is seen to be doing so. However, the role of the public should not be passive, merely observing what we do. We need to bolster our relationship with the public by ensuring not only that we are open in our activities, but that we seek to engage with the public and draw on those who wish to have some input into our deliberations.

I refer to Parliament. It is important to recognise that the two Chambers are not in an adversarial relationship, but rather complement one another. In fulfilling our roles, we can learn from one another and enhance efficiency by not duplicating what the other does. This House can and does add value, and I believe it is considerable value. In my view, we fulfil well our core roles of scrutinising legislation and public policy. The House has attributes that distinguish it from the other place and which allow it to fulfil especially well those functions. There is, of course, always room for improvement. It is a case of enhancing what we already do; in effect, building on strength. How, then, can we enhance our capacity to scrutinise legislation and public policy? How can we engage with the public in order to fulfil these functions?

I begin with legislation. When I chaired the Constitution Committee of your Lordships' House, we published our report, Parliament and the Legislative Process. We looked at the legislative process holistically, addressing pre-legislative scrutiny, legislative scrutiny and post-legislative scrutiny.

Several Bills each Session are now subject to pre-legislative scrutiny, though there is a clear case for the number to be greater. When a Bill is submitted for pre-legislative scrutiny, it is normally sent to the relevant departmental Select Committee in the other place. However, Select Committees have busy schedules and may not always have time to examine a draft Bill. Joint committees have been used for some Bills-on the whole, very successfully-and we should be open to making greater use of such committees for pre-legislative scrutiny; indeed, we should make it clear that we welcome such a development. We should also explore in conjunction with the other place how Parliament can have a greater say over precisely which Bills are submitted for pre-legislative scrutiny and, indeed, press the Government to accept that pre-legislative scrutiny should be the norm and not the exception.

However, it is the legislative and the post-legislative processes on which I wish to focus. We are able to engage in detailed scrutiny of a Bill, not least because we do not have guillotine or programme Motions. We also consider all amendments that are tabled and can take amendments on Third Reading. We thus have attributes not enjoyed by the other place. However, the other place now has a feature that we lack: Standing Committees in the Commons have been succeeded by Public Bill Committees. In most cases, they are evidence-taking committees. They are thus able to ensure greater links with people outside the House and benefit from their input.

In Parliament and the Legislative Process, the Constitution Committee recommended that every government Bill should at some stage during its passage be subject to examination by an evidence-taking committee. Given that, and in the light of developments in the other place, it should be the norm for a government Bill introduced in your Lordships' House to be referred to an evidence-taking committee prior to the normal Committee stage. It could be a Special Public Bill Committee or a temporary Select Committee. A Special Public Bill Committee under our rules has to complete its evidence-taking within 28 days, but there is no time limit for subsequent proceedings. It should thus be possible to have time to take account of the evidence, avoiding a problem encountered in the other place.

The value of this change would be that our consideration of a Bill would be informed by engagement with experts and others who have knowledge relevant to its provisions. The evidence would be on the public record and it would be possible to probe it. It would also demonstrate to those outside the House the value of what the House is doing.

I turn to post-legislative scrutiny. Regular post-legislative review, checking to ensure that an Act of Parliament has fulfilled its intended purpose, was until recently not a feature of our parliamentary system. As the Constitution Committee noted in its 2004 report:

"Post-legislative scrutiny appears to be similar to motherhood and apple pie in that everyone appears to be in favour of it. However, unlike motherhood and apple pie, it is not much in evidence".

The committee recommended that Acts should normally be subject to review within three years of commencement or six years following their enactment. The Government referred the matter to the Law Commission, which recommended that there should be regular reviews by departments, with the reviews submitted to the relevant departmental Select Committees. It also endorsed the recommendation that there should be a Joint Committee on post-legislative scrutiny.

In their response to the Law Commission report, the Government accepted the case for regular reviews. Most Acts, within three to five years of enactment, are to be reviewed. The first such reviews have already been undertaken and published as Command Papers. Other Acts are shortly to be reviewed, including, I understand, the Constitutional Reform Act 2005. I very much welcome this development, but it is two cheers rather than three: the Government have not accepted the case for a Joint Committee.

To my mind, the case for a Joint Committee is compelling. Departmental Select Committees in the other place, as I have mentioned, already carry a heavy workload; they are unlikely to have time to examine in any depth post-legislative reviews except on an exceptional basis. There is a case for a Joint Committee, drawing on the expertise of Members of both Chambers, to act as a longstop to ensure that no significant review is overlooked. Equally important, it can observe and disseminate cases of best practice, ensuring that departments are rigorous and consistent in their reviews. As the Study of Parliament Group noted in its evidence to the Law Commission, the primary purpose of post-legislative review should be to identify good practice, both in terms of process and the substantive content of legislation. A Joint Committee would thus be an important, standard-setting body. It would also help to concentrate the minds of Ministers and officials when considering legislation. The ideal is a Joint Committee, but if the other place is not interested in participating, we should consider setting up a Committee of this House.

Post-legislative review also has the benefit of requiring government to clarify the purpose of a Bill when it is introduced. There needs to be a clear statement of what a Bill is intended to achieve and the criteria by which it can be assessed to have fulfilled its purpose, criteria that will then form the basis of post-legislative review.

There is also a case for such a committee to examine post-implementation reviews of secondary legislation. The case for greater rigour by government in reviewing the impact of secondary legislation has been put forcefully by the Merits of Statutory Instruments Committee. In Grand Committee yesterday, the idea of a Joint Committee on post-legislative scrutiny encompassing post-implementation reviews of statutory instruments received cross-party support. I was gratified that the Minister, the noble Lord, Lord Davies of Abersoch, said that the proposal for a Joint Committee was,

"a very good idea that is worth considering".-[Official Report, 24/2/10; col. GC 313.]

I turn now to the other part of the Motion, the case for enhancing our capacity to scrutinise public policy. The committee work of this House has been a real success story. The sessional Select Committees have been successful, largely because of the commitment, expertise and thoroughness of their members in producing authoritative and influential reports, valuable in themselves as educative works as well as important means of shaping debate. The committees have already proved highly efficient bodies, producing high-quality reports at relatively little cost. They have also avoided duplicating the work of the other place, complementing departmental Select Committees of the Commons by addressing cross-cutting issues. It has been a case of the House playing to its strength. We can and should build on that strength.

There is a case for looking at our committees holistically. The Liaison Committee operates largely in reactive mode, recommending the appointment of a committee on the basis of a particular proposal put to it. We should examine our committee structure in a more proactive and rounded manner, looking to see whether there are any gaps in cross-cutting subjects that could be fruitfully covered by a Committee of this House.

On my theme of engaging with the public, existing Select Committees should be encouraged to do what many already do-that is, to get out and about to different parts of the United Kingdom in the course of taking evidence and to utilise moderated e-consultation as a way of encouraging evidence, especially from people who may otherwise be reluctant or not able to submit evidence in the normal way. There have been some examples where such online consultation has notably proved its worth. The Information Committee, in its excellent report entitled, Are the Lords Listening?, has drawn attention to the value of such exercises, not least in the context of draft legislation. The Constitution Committee also recommended that the committee should consider commissioning public opinion polls where it believed it useful to have awareness of public opinion on a particular issue. The committee also recommended looking at the communication strategies of other legislatures, including the Scottish Parliament, which devotes proportionately more of its resources to such activity than the Westminster Parliament. We tend to make a virtue of our frugality, but we should not let the need for economy prevent us doing a more effective job, especially not when engaging with the public, or engaged publics, is concerned. The House benefits from such engagement; the public benefit from such engagement.

I have not sought to provide a comprehensive list of what we could to do to strengthen our capacity to scrutinise legislation and public policy. I have no doubt that we will hear other proposals during the course of this debate. I have sought to be illustrative rather than exhaustive. My essential point is that we already do a good job but we should never be complacent. We can build on strength. The House has a good track record of examining and implementing new procedures. We have made some valuable changes in recent years. I believe we should, and can, move forward in order to strengthen our role as part of that essential buckle between government and people in the United Kingdom. I beg to move.