§ Motion made, and Question proposed, That the sitting be now adjourned.—[Mr. Ainger.]9.30 am
§ Ian Lucas (Wrexham) (Lab)
Good morning, Mrs. Adams. It is a pleasure to be opening this half-term's proceedings on such a fine morning and to begin discussing the interesting topic of pre-legislative scrutiny. It is a topic of great importance, but it perhaps labours under the least attractive nomenclature of any parliamentary procedure. As someone who labours under the burden of having been trained in the legal profession, I struggle to think of a more unattractive name for a legal process. After a few minutes' thought on the tube this morning, the best alternative that I could come up with was "reflective law making"—lawmaking that reflects opinions from various sources and which proceeds in a considered way.
§ Ian Lucas
My hon. Friend helpfully suggests that my version is even worse, so perhaps I should stick with "pre-legislative scrutiny".
It is rare indeed to find anyone with a bad word to say about the process of scrutinising draft laws, which involves considering improvements, refining the details and reintroducing laws in settled form. The Hansard Society says that itfully supports the continued use and extension of pre-legislative scrutinyIn an impressive Adjournment debate only last month, my hon. Friend the Member for Nottingham, North (Mr. Allen) highlighted the benefits of online consultation on draft legislation, which were demonstrated in the draft Communications Bill.
I do not propose to discuss the benefits of draft legislation, which have been well rehearsed. All parties agree that draft legislation has been a successful innovation, but it is time for us to move beyond general expressions of support for extending draft legislative scrutiny and to embed such procedures in the culture of Westminster. The burden of doing so falls to the Government, and we now need them to give a statement of intent and to give further momentum to the welcome process that began shortly after 1997.
What unites supporters of pre-legislative scrutiny is the belief that increased scrutiny makes for better laws, and few people dissent from that view. However, it would be useful for us to be clear about the Government's view of what such scrutiny should entail. We all want the vessel of pre-legislative scrutiny to be given a fair wind, but we need to be clear about the purpose of such scrutiny and about the Government's aims.
2WH The 2000 review of the scrutiny of draft legislation, which was sponsored by the Constitution Unit and the Hansard Society, noted that committees that considered draft legislationwere not clear whether they should challenge the underlying policy or concentrate on the technical detail.To take just one example, if a Government proposed to ban hunting with hounds, would a Committee that was appointed to consider the draft legislation be entitled to conclude that a ban was not justified, or would its role be to work out how to implement the ban? If we are to have pre-legislative scrutiny, we must resolve such issues and be clear about the Government's answer to such questions. I should be interested to hear the Minister's views.
I believe that the Government should retain control of the legislative programme. They are the elected Government. As the Modernisation Committee pointed out back in July 1997:The Government of the day must be assured of getting its legislation through in reasonable time (provided that it obtains the approval of the House).Does the Minister agree that the primary purpose of the scrutiny of draft legislation is not to challenge the purpose of the legislation but to ensure that that purpose is achieved fairly, efficiently and clearly?
If the purpose is established, it may help to introduce clarity to the process of choosing what legislation should be considered in draft. Pre-legislative scrutiny has been welcomed almost without exception. My view is that it is one of the most successful innovations since the Government came to power in 1997.
§ Mr. Oliver Heald (North-East Hertfordshire) (Con)
Does the hon. Gentleman concede that the Hansard Society commission headed by Lord Rippon thought of that in 1993, and that it was John Major who introduced it?
§ Ian Lucas
I am happy to concede that the Rippon commission reported on the matter in 1993 and that the matter was taken forward and introduced by John Major's Government. However, the hon. Gentleman has to concede that the real momentum behind the policy came about after 1997. I mean no disrespect to those who worked on it at an earlier stage. In fact, one can go back further to find examples of pre-legislative scrutiny in the 1970s. I believe that the devolution proposals introduced in the mid-1970s were originally to have been introduced in draft. However, for present purposes, and bearing in mind that other Members will have things to say, I have taken the 1997 general election as my starting point.
So why should not all legislation be considered in draft form? Clearly, there are circumstances in which emergency legislation is required and it is imperative that the Government act quickly. An obvious example was in the environment that followed the terrorist attacks in New York and Washington in 2001; it was clearly necessary for the Government to act quickly in response to a dramatically changed situation. That was a valid exception to the general rule that pre-legislative scrutiny should take place.
It would be welcome if the Government made a presumption that legislation should be considered in draft as a matter of course. If draft legislation is a good 3WH thing, it should be the rule, not the exception. If the Government believe that pre-legislative scrutiny should not take place, they should give their reasons, and those reasons should withstand scrutiny by Parliament.
§ Mr. David Heath (Somerton and Frome) (LD)
Does the hon. Gentleman agree that that decision should be in the hands of the legislature rather than the Executive? Parliament should decide which Bills would benefit from earlier scrutiny, not the Government who are asking Parliament for its assent.
§ Ian Lucas
I am not sure that I agree. As I said earlier, I have thought about the matter at some length and I believe that the Government need to retain control of the legislative programme. They have the democratic mandate. If they suggest that a particular piece of legislation should not undergo pre-legislative scrutiny, their reasons should themselves be subject to scrutiny. Parliament should have the opportunity to address those matters and to discuss them.
§ David Taylor
I support almost everything that my hon. Friend has said so far. However, does he accept that, when broadening consultation to the general public—perhaps using the internet—there is a difficult balance to be struck between the Government getting their own way and their accepting refinements and consulting on the detail of legislation? Could not a well-organised, well-resourced minority hijack the process and table wrecking amendments that would head off a policy for which the Government had a mandate? Did we not see that with my hon. Friend the Member for Ealing, North (Mr. Pound) and his attempt at wider democracy?
§ Ian Lucas
There may be difficulties with well-organised minorities trying to exert pressure on particular pieces of legislation, but the online consultation for the draft Communications Bill, for which the Hansard Society monitored the presentation of information to the Committee, worked very well. All my research to date indicates that that innovation was welcome. I am sure that there will be problems—my hon. Friend the Member for Ealing, North (Mr. Pound) clearly had problems with his consultation—but if we work out how it can best be achieved, it is a useful and potentially helpful innovation.
Even in the short time that I have been in the House—since 2001—there have been legion examples of legislation that it would have assisted Parliament to publish in draft. One such example that comes to mind is the Licensing Act 2003. Letters on that subject swelled my postbag for months on end, but the complaints were generally a result of misunderstanding, misrepresentation and—to pick up on what my hon. Friend the Member for North-West Leicestershire (David Taylor) just said—carefully constructed lobbying campaigns that were fuelled by the necessity of amending rigidly drafted legislation. People put forward numerous cases, such as church choirs singing for charity in chapel vestries, as matters that might be covered by the Act. I recall that the then Minister for Tourism, Film and Broadcasting, my hon. Friend the 4WH Member for Pontypridd (Dr. Howells), whose burden it was to deal with those particular difficulties, often loudly expressed his frustration. If there had been a consultation on a draft licensing Bill, similar to that for the draft Communications Bill, many of those difficulties would have been ironed out. That would have benefited not only the legislation but the Government and the poor Minister who had to deal with those problems —which he did competently, in his own way.
The proposed changes to the office of Lord Chancellor and the proposed creation of a supreme court should certainly be considered in draft. If one has confidence in one's argument, as I believe that the Lord Chancellor has, there should be no fear of scrutiny. We need to expose at an early stage, as often and as ruthlessly as possible, arguments such as the assertion that the supreme court cannot be introduced until it has its own building. That would be a helpful way of proceeding.
I accept that legislation will take longer to introduce if consideration of draft legislation becomes the norm, but if it is better, it will be worth waiting for. The Crime and Disorder Act 1998, which was generally very positive, introduced antisocial behaviour orders, but difficulties in their implementation meant that it had to be followed by the Anti-Social Behaviour Act 2003. If the 1998 legislation had been considered in draft, some of the difficulties with practical implementation would have been resolved during that process. Such problems have not only occurred under Labour Governments. When I was a practising solicitor, the Conservative Government introduced the Criminal Justice Act 1988, which had to be replaced by the Criminal Justice Act 1991 because it meant that the courts could not send young offenders into custody. Bad legislation requires replacement and uses valuable parliamentary time.
The Government need to define the role of pre-legislative scrutiny and drive it forward by creating a presumption that it should be used. However, Parliament is best suited to choosing which type of Committee should be used to scrutinise the legislation. I hold no hard and fast views on the matter. Indeed, I believe that there is much to be said for allowing flexibility. For example, when departmental expertise is especially important—perhaps with a piece of social security legislation—a Select Committee may be the most appropriate model. However, with a more broad-based piece of legislation, such as the Communications Bill, an ad hoc Committee could be appointed.
Speaking as an MP from Wales, I favour the flexibility of enabling MPs from Wales to sit with Members of the National Assembly for Wales to scrutinise draft legislation specific to Wales. I know that this approach secured some support from the Welsh Affairs Committee. Given that we sit on Joint Committees with unelected members of the other place, I see no reason why we should baulk at sitting with elected Members of the National Assembly for Wales. I was interested to read that members of the Joint Committee on the draft Financial Services and Markets Bill said in 1999:we have all enjoyed the experience of working closely with members of 'the other place"'.I, too, would welcome the chance to work with Members of another place, whether it be the Assembly or the House of Lords. It seems to me that in the context 5WH of possible changes to the second Chamber at Westminster and of the development of assemblies in the English regions, the prospect of working with a different type of representative should be left open. It is a way of widening further the pool of good ideas from which solutions can be sought. I favour leaving the decision on which type of body is most appropriate to scrutinise a piece of draft legislation to the scrutineer, namely, Parliament.
When I was preparing for this debate, I was struck by the impressive first report of the Modernisation Committee. It was produced in July 1997, which was fast work, given that the election was only at the beginning of May of that year. I was most struck by the following paragraph:The Committee stage of a bill, which is meant to be the occasion when the details of the legislation are scrutinised, has often tended to be devoted to political partisan debate rather than constructive and systematic scrutiny. On Bills where policy differences are great, the role of Government backbenchers on a Standing Committee has been primarily to remain silent and vote as directed. By contrast the Opposition has often set out to devise methods designed simply to extend debate. The Government has then been forced to bring in a guillotine which has often been draconian, as a result of which large sections of the Bill have not been considered.That was written just two months after 18 years of Conservative government. However, as a veteran of the Standing Committees that considered the Proceeds of Crime Bill, the Criminal Justice Bill and one Finance Bill, I can confirm that it still accurately represents Standing Committee life in 2004.
Scrutiny is limited, especially for Government Back Benchers, by its format on Second Reading and beyond. That is a political fact and it will be ever thus. I was made keenly aware of that by my experience of the Higher Education Bill, when political imperatives collided with proper consideration of the Government's proposals on Second Reading. Pre-legislative scrutiny of the Higher Education Bill would have helped the Government. In his Adjournment debate at the beginning of January, my hon. Friend the Member for Nottingham, North presented a compelling vision of how reflective law making, or pre-legislative scrutiny, could avoid many difficulties, such as those in which the Government found themselves on Second Reading. Pre-legislative scrutiny certainly would have denied critics the opportunity of saying that the policy had been sprung on them.
It is often said that Parliament is at its best when it is at its least partisan and when measured, studied debate takes place, as it did on stem cell research and same-sex adoption. That is certainly so in respect of the lawmaking process. The reality of the present Committee stages is that they are, at bottom, partisan and exist to carry forward the Government's legislative programme. This valid aim needs to be complemented by further development of pre-legislative scrutiny.
§ Mr. Heald
Does the hon. Gentleman agree that the Government should be patient and courteous to Select Committees in the process? I know that he is a member of the Transport Committee. The Government forced that Committee to rush out its report on the Traffic Management Bill because they said that it was vital to have the Second Reading before Christmas, yet the 6WH Committee that was to consider the Bill was not selected for several weeks because that suited the Government. Does he agree that that sort of thing has to be avoided?
§ Ian Lucas
That was unfortunate. The Transport Committee had to produce a report within, I believe, a week. The staff of the Committee did an excellent job and provided a very useful report before the Bill was introduced. Our difficulty is that the process of scrutinising legislation before it is introduced is not embedded in the culture of Westminster. The rules of its application are therefore not settled, which often leads to unfair and inappropriate ways of proceeding. What happened with the Traffic Management Bill was unfortunate. The Select Committee produced a detailed report on many issues that related to that Bill in the six months before its introduction. It would have been helpful if the Government had had more discussions with the Select Committee about the Bill.
There does need to be more consultation. I believe that the House broadly agrees on the success of pre-legislative scrutiny, which always depends on courtesy and on the Opposition not scoring party political points. What is sauce for the goose must be sauce for the gander. Politicians on both sides of the House must be mature about these things. There are times when I, too, am tempted to try to score points. We all do that from time to time, but we need to be more grown up if we are to take a measured approach to law making—a key role for any MP.
I believe that Committees in their current form are partisan bodies, although they scrutinise legislation well. The hon. Member for Somerton and Frome (Mr. Heath) and I were members of the Committee that considered the Proceeds of Crime Bill. We were fortunate in that there was much mature and considered reflection in that Committee, and in the Committee that considered the Criminal Justice Bill. However, the format of Standing Committees makes it difficult for Committees to scrutinise legislation in the right way. I am therefore strongly in favour of considering all legislation in draft form.
My right hon. Friend the Member for Livingston (Mr. Cook) deserves great credit for driving forward the process of scrutinising draft legislation after the 1997 election. The fact that the Select Committee on Modernisation produced a report so quickly in July 1997—a report that still reads so well—is testament to the momentum that existed on this issue. Pre-legislative scrutiny commands respect across the House, as I hope this debate will show. I know that the current Leader of the House is a reformer at heart. It falls to him to promote the cause, because it is for the Government to assert the value of pre-legislative scrutiny and to provide the momentum necessary to embed pre-legislative scrutiny into the culture of Westminster. If he does that, it will mark him out as someone who contributed hugely to the development and improvement of Parliament, and this place will once again be a model for others abroad to follow rather than a place that is treated with disdain by those whom we represent.
§ David Taylor
I am grateful to my hon. Friend for giving way. He has made a compelling case for greater pre-legislative scrutiny by parliamentary Committees. Does he have any thoughts on how and when wider 7WH public involvement via the internet and in other ways can be introduced into this process? Should it parallel the process that he is describing or should it follow the establishment of pre-legislative scrutiny as an effective tool within this place?
§ Ian Lucas
Parliament is still working out the different ways of making pre-legislative scrutiny operate most effectively. We should continue with it, but we need strong signals from the Government that they are committed to introducing it as a matter of course in the legislative process. We need to have a strong and clear presumption that pre-legislative scrutiny will take place. We need to have wide consultation on how interest groups and individuals with particular expertise can contribute.
My hon. Friend Member for Nottingham, North indicated that pre-legislative scrutiny was a very exciting opportunity to engage with the general public about laws, what can be done to improve them and their potential down side. This is something that can reconnect Parliament with the people whom we represent. It is a huge issue; a very important issue. It falls on the Government to make it clear that they are committed to the concept, that they want to draw the public into it and that they are committed to developing the good work that has been carried out.
§ Tony Baldry (Banbury) (Con)
The proof of pre-legislative scrutiny is what the Government do with it. One of the best examples recently of such scrutiny was the report on the Asylum and Immigration (Treatment of Claimants, etc.) Bill by the Home Affairs Committee. The Committee was chaired by a former Home Office Minister, and the report was unanimous. Let us look at the Second Reading debate, however. Did the Home Secretary take any notice whatever of any of the recommendations resulting from the pre-legislative scrutiny? Not a jot. There was not a single concession, nor a single example of the Government leaning towards the points made by the right hon. Member for Southampton, Itchen (Mr. Denham) and his colleagues.
I suspect that I am about to make a very liverish, self-indulgent and bad-tempered speech, but I want it on the record, before everyone forgets what life used to be like here. I acknowledge right away that I am one of those who do not see anything good having come out of the Modernisation Committee.
My concern about pre-legislative scrutiny is that, like so many things now in this place, it gives the impression that something is happening, when in fact it is not, and that Back Benchers have greater opportunity to scrutinise, when in fact they do not. When I was first elected to the House, Standing Committees were genuinely important, and they put Ministers under considerable scrutiny. The hon. Member for Wrexham (Ian Lucas) is absolutely right to say that Government supporters on a Standing Committee were exhorted to remain quiet, but it was a foolish Minister who did not 8WH meet daily with all his Back-Bench colleagues on that Committee and go through any individual concern that they might have.
§ Tony Baldry
I shall finish my point, and then I will give way to the hon. Gentleman, who is a self-admitted mushy pea member of the Labour party.
Ministers would carefully go through everything with Government Members, and that meant that when a Minister went to Committee, he or she was effectively standing pretty much alone at the wicket being lobbed balls by Opposition Front-Bench spokesmen and Opposition Back Benchers. They had an interest in thinking up probing amendments, amendments on policy or detail and other amendments that outside interest groups had suggested. That is a perfectly legitimate occupation for an outside group, whether it be the Law Society, licensed victuallers or others concerned about licensing legislation.
That process put Ministers on their mettle. They were obliged to consider legislation in detail and to explain in detail why the Opposition spokesman had got it wrong, forcing him to withdraw the amendment. Opposition Members knew that, within reason, they had limited time and that if they abused it, consideration of the Bill would be guillotined. Equally, Ministers had an interest in coaxing the Opposition into co-operating and getting the Bill through the House in reasonable time. The system worked, and one felt by and large that Bills had been scrutinised by the time they went to the House of Lords.
Now everything is timetabled. How has that changed things? By definition the more time that Ministers and Government Members take up on a Committee, the less time Opposition Members have to scrutinise the Government. If Ministers make long speeches, they wallpaper time that would otherwise be available for Opposition Members to submit amendments and probe Ministers. Increasingly, the House of Lords is dealing with Bills of which large chunks have never been scrutinised or even seen the light of day in Standing Committee. We do not yet know what will happen with House of Lords reform, so perhaps even the scrutiny that their lordships do effectively will be undermined.
We even see the problem increasingly on the Floor of the House—again, I shall make a bad-tempered comment, although I am probably in order. The other day we had a debate on the council tax which was unique, because it went from the opening speeches to the wind-up without ever touching the Back Benches: no Opposition Back Bencher had the opportunity to contribute. This year, my local authority and many others face being capped, so it would have been nice to put on the record the fact that I was present at that debate. If Ministers are allowed to wallpaper time and reduce the opportunity for scrutiny, such practices will become pervasive in the culture of this place.
Pre-legislative scrutiny is of course important: how could one object to giving colleagues the opportunity to examine Bills, particularly technical ones, in draft? However, let us not start singing the Hallelujah chorus until Ministers start taking notice of pre-legislative scrutiny. When Select Committees submit their pre- 9WH legislative scrutiny reports to the House at the end of the year, it will be interesting to see how many, if any, recommendations on their specialist areas the Government have incorporated in legislation. I now give way to the hon. Member for North-West Leicestershire (David Taylor).
§ David Taylor
The hon. Gentleman refers to council tax. When he examines the halcyon days of his jeunesse dorée in this place with his rose-tinted telescope, does he recall the role that the Standing Committees played in the development of the predecessor to the council tax, the poll tax? One presumes that the flaws of that tax were apparent to many Government Back Benchers then, yet it was passed into law with those flaws, which ultimately resulted in the downfall of the right hon. Lady to whom I believe the hon. Gentleman was Parliamentary Private Secretary.
§ Tony Baldry
Aeons ago I did a stint as PPS to the then Leader of the House. I have no quarrel with the general principle that the Government of the day have the right to get their legislation through the House. My concern is that the amount of scrutiny available to Members of Parliament now is considerably less than it was 10 or 20 years ago, because of the way in which Standing Committees have been undermined as a consequence of timetabling every Bill. That gives an incentive to Ministers and Government Back Benchers to wallpaper time, reducing the time available to Opposition Front-Bench spokesmen to put Ministers under test. Being in a Standing Committee as a junior Minister, or any kind of Minister, and having balls lobbed at one from all directions is fairly challenging, but if one simply gets soft, under-arm passes and dolly balls from one's own Back Benchers all the time, with amendments being tabled to and fro, that is not scrutiny.
Let us have pre-legislative scrutiny, but let us check at the end of the year how much notice the Government have taken of it. Let us also acknowledge that the way in which Bills are timetabled substantially reduces rather than enhances the opportunities for genuine probing scrutiny.
§ 10.5 am
§ Mr. David Heath (Somerton and Frome) (LD)
I congratulate the hon. Member for Wrexham (Ian Lucas) on securing this debate. It is a subject that we have considered with care over the past few years, but we still await a positive resolution of the question of the structure that we seek. The hon. Gentleman's comments were cogently framed and contained much that I could agree with.
I also agreed with some of the mini-rant from the hon. Member for Banbury (Tony Baldry). He said before he came into the Chamber this morning that he wanted to let off steam and he has done so. He was right to do so, because there are many frustrations in the present system. Although I do not agree with everything that he said, the conduct of Standing Committees still leaves a lot to be desired.
An unfortunate coincidence occurs when a Standing Committee is timetabled but there is unreconstructed behaviour on the part of its members, who still believe that their prime function is to extend debate pointlessly. 10WH When there is a timetable, that practice is entirely pointless, and we end up with a lack of scrutiny. We must all learn new ways of behaving to maximise the opportunity to put Ministers under pressure to justify the proposed legislation.
The hon. Member for Wrexham did not like the term "pre-legislative scrutiny" and tried "reflective law making", which did not meet with the approval of the hon. Member for North-West Leicestershire (David Taylor). We do not want to reflect what is happening elsewhere; we want to refract the input that we receive and concentrate it into better legislation. The sole argument for pre-legislative scrutiny is that it allows a period of genuine consideration rather than confrontation, which should give both the House and the Government an opportunity to get things in better order. That is where I share some of the frustrations of the hon. Member for Banbury. There is scant evidence that pre-legislative scrutiny has to date been used in the most effective way to improve legislation and, importantly, to extend or reduce its scope by taking into account observations from outside this place.
The process has gone so far, but it must now move forward, taking a leap into the unknown. The Modernisation Committee produced an excellent report early on in the Government's life. To give the Government credit, they were prepared to run with those concepts and give them life. However, the Liaison Committee's important report "Shifting the Balance" has not yet been properly reflected in the structures of the House.
I believe that we all felt, as I think the hon. Member for Wrexham reflected, a sense of forward impetus when the right hon. Member for Livingston (Mr. Cook) was Leader of the House. That is no reflection on the present Leader of the House, the right hon. Member for Neath (Mr. Hain), or indeed on the Deputy Leader, the hon. Member for Oldham, East and Saddleworth (Mr. Woolas), who is with us today. The clear agenda for change that existed when the right hon. Member for Livingston was Leader is not entirely dissipated, but it is now less focused. That needs to be addressed.
At the moment, we have a mish-mash. Far too many Bills receive no pre-legislative scrutiny whatever. The two Departments with which I have regular dealings—the Home Office and the Department for Constitutional Affairs—are prime villains in this matter. They produce legislation like a sausage factory produces sausages. Every year we revisit the same subjects with new legislation, and often a Bill is introduced before the previous legislation has taken effect. That is a quintessentially valuable area for pre-legislative scrutiny because we are dealing with structures of the law and personal freedoms. Those matters are of such importance that they need the most careful scrutiny, but such Bills receive less scrutiny than others that are considered interesting to talk about, which are happily given to Select Committees for consideration and are improved as a result.
There are Bills that are clearly not of the same import with regard to people's livelihood and liberties, but are still important to their way of life. The hon. Member for Wrexham mentioned the Licensing Bill, and I agree with him about that. I was one of the people who caused problems about that Bill and for the then Minister, the hon. Member for Pontypridd (Dr. Howells). I believed 11WH that, in drafting the Bill, insufficient care had been taken in considering the interests of live music. In the end, compromises were made in the House of Lords, and we ended up with a better Bill as a result. That process could have been avoided if there had been a sensible period of pre-legislative scrutiny.
We need a clear structure in which such matters can be arranged and determined in future. I take the view—I make no apologies for this—that that is the property of Parliament, not Government. It is not for Government to decide how we scrutinise legislation. It is for Parliament to decide that and it is for Government to propose legislation, which we shall consider. We need much more clarity in the process of scrutiny, and we need to decide what is the best way to achieve that. Are departmental Select Committees the right way to do it? Is it better to set up ad hoc Select Committees for the scrutiny of a draft Bill or is it better for cross-departmental committees to take on aspects of a Bill?
The Joint Committee on Human Rights does a superb job. When I am dealing with home affairs issues, I always welcome a report from that Committee because it raises points that I would not otherwise have considered. Often, those points are very valuable to our considerations. There are other cross-departmental committees, and perhaps we should have more. I used to be a member of the Select Committee on Science and Technology, which is not used nearly enough to advise on matters that have a scientific impact. The expertise that is contained in that Committee and available to it could be used to good effect.
We must consider how we decide what legislation goes through the process in the first place. Again, that is a matter for Parliament, with some exceptions in the case of emergency legislation, although the House does not have a good record on that, and rushed legislation is often bad legislation. It should be the presumption that matters are subject to pre-legislative scrutiny. Often, urgency is assumed but it is of the Government's creation, rather than a product of external events.
There is also the issue of how we widen consultation. The House does best when it listens to those outside with repositories of knowledge that we do not have. That does not mean that we substitute the knowledge of the technologist or the special interest group for our opinion as legislators. It means that we listen to the expertise that is available to us before coming to a view. That does not happen very often, and we should find effective mechanisms for accomplishing it, whether through Select Committees or by widening access via the internet, for example. We should not seek to establish some sort of Athenian democracy, because that is not our governmental structure, but we should seek to benefit from the advice of those who understand specific areas of legislation better than we can within the confines of the available expertise in the House.
There are implications for the process of government. The Leader and Deputy Leader of the House must consider the matter in depth. I am looking not for a three-tier process of consideration in the House, but for a first stage where ideas are brought in, considered and, if possible, incorporated—an important point made by the hon. Member for Banbury. We might then move in Committee to table amendments that deal with areas 12WH that have not been considered or extend further the detailed consideration of legislation, to which we might then agree.
The process will inevitably be extended for the best of reasons. If it is to take place without the Government losing their legislative direction— and it is not our intention that they should, because they must retain the ability to direct their programme— they must extend their legislative horizon. Bills must not be introduced in an almighty rush in the Queen's Speech, tumbling out of the civil service before they are ready and while they are half thought-out and missing huge chunks, which are introduced in Committee or on Report, or, worse, never come to the House because they are introduced in another place. That cannot be the right way to present legislation. Departments must look a little further ahead; the planning process must be extended that bit more; and we must have more order to the legislative process. I accept that it is not easy, but the Government must consider it.
I will finish by mentioning two other areas that we must consider. We do not do a very good job of analysing legislation derived from elsewhere, in particular European legislation, which impacts more and more as years go by. If we are to do right by the citizens of this country, we must have much better, more focused and less peripheral consideration of European legislation.
§ David Taylor
I agree with that point. Does the hon. Gentleman have any suggestions about how scrutiny of European legislation, which from my observations is too often tokenistic, marginal and ill-informed, could be improved within the existing Committee structure?
§ Mr. Heath
I am not sure that I have a pat answer. I will be honest with the hon. Gentleman: it is very difficult within the current structures to graft on a whole new raft of legislation. It is important that we attempt to do so, and we should make it more central to our considerations so that we have more time in the House to consider important issues arising from European legislation. It would provide an opportunity to send the views of the House, and thereby those of the country, to those creating that legislation.
Many other legislatures have much better and more refined pre-summit and pre-treaty scrutiny. We are bound by the royal prerogative in that area, although I think that the royal, prerogative has had its day. I see that the Deputy Leader of the House is grimacing. The making of treaties that bind the British people and the making of war and of peace on their behalf is a matter in which Parliament should be intimately involved. It is not good enough for Parliament to be bypassed on everything other than the effects on domestic legislation. Other countries' Parliaments do this much better. When I was on the Foreign Affairs Committee we looked at their processes in some depth. Ministers from other countries who attend the negotiations in Europe have a much clearer idea of what their Parliament thinks about an issue than our Ministers could possibly have, because ours do not have the opportunity of discussing it, other than by making a brief statement in the House, and even that is of limited effect.
The last point that I want to make, and I hope that by doing so I am not straying too far from the subject of the debate, concerns post-legislative scrutiny. Looking at 13WH the effect of legislation, and reflecting on whether it has done the job that it was purported to do by Ministers at the time, whether it has worked in practice, and whether further amendments are necessary, is another key area. I said earlier that, in home affairs, we now have the extraordinary situation whereby we often repeal legislation before it has even come into effect, simply because another wheeze has come from America or from the tabloids and has to be put into effect. That is a bad way for us to do business. A sensitive and sensible Parliament would wish not only to look in detail at legislation that it proposes to pass and see its potential consequences, but to reflect after the event, and audit its effect, learning from its mistakes and, hopefully, occasionally celebrating its success.
§ Mr. Oliver Heald (North-East Hertfordshire) (Con)
It has been an exciting debate so far, although my hon. Friend the Member for Banbury (Tony Baldry) is rather grumpy and out of sorts. However, I am sure we all found it reassuring that he was prepared to come here today and explain the problems that he experienced in the Committee considering Asylum and Immigration (Treatment of Claimants, etc) Bill and in other Committees.
It is right that we should be considering the role of the Standing Committees, as well as examining pre-legislative scrutiny. There is no doubt that the effect of wider pre-legislative scrutiny is felt in the Standing Committees. We need to look at the interaction of those two elements in the coming period. Two to three draft Bills a year were published under the Conservative Government whereas about 12 will be published this year. I agree that the former Leader of the House of Commons, the right hon. Member for Livingston (Mr. Cook), took the process some way forward, and he is to be congratulated on that. However, the Government must decide on the template for the future, and it may be that a certain amount of experience must be gained before it is possible to see a clear way forward.
I congratulate the hon. Member for Wrexham (Ian Lucas) on securing this debate. He made a good point when he said that there was a question to be asked about whether pre-legislative scrutiny should concentrate on issues of policy, or be restricted to issues of detail. It is quite difficult to separate the two. To give an example, the Joint Committee on the Draft Civil Contingencies Bill looked in great detail at that Bill, which obviously affects human rights and involves the Government declaring a state of emergency, being able to damage one's property without compensation, and so on. That Committee reached the conclusion that the definition of an "emergency" in the draft Bill was far too wide, and would enable the Government to exercise those powers in too many circumstances. The Committee suggested changes, which have narrowed down that definition.
It also suggested that the lack of safeguards requiring the Government to show that such action was necessary and proportionate needed to be addressed. To give the Government their due, they were prepared to look at those issues and have improved the Bill on that basis. However, the question whether something is or is not a national emergency is a mixed issue—it is not just one of detail but one of principle.
Equally, deciding what is necessary and proportionate when human rights are under threat is a matter of principle. Of course, we do not think that the 14WH Government have gone anywhere near far enough in the Civil Contingencies Bill. One of the problems is that the Minister for the Cabinet Office felt that, by allowing pre-legislative scrutiny, he had moved some way. When, in Committee, I asked him to move further, he said, "You have had the pre-legislative scrutiny. Enough's enough." That affects the role of the Standing Committee.
My view is that there should be a two-stage process. The pre-legislative scrutiny should tease out the key issues. Some of them are issues of policy, others issues of detail. Yes, the Government make concessions at that stage, but that should not be the end of the process. There is still room in Standing Committee for consideration to be a worthwhile process in which everyone knows the key issues and the debate is much better than the sort of wallpaper-style debates that have been described by my hon. Friend the Member for Banbury and the hon. Member for Wrexham. It should be possible, with that more honed-in approach, to produce a better Bill.
At the moment, if some ground is given on pre-legislative scrutiny, there is a tendency for the Government to say, "We've done our bit." Members of Parliament have a special role in scrutinising a Bill that deals with fundamental human rights. It is not enough to say, "We've listened to Justice and Liberty and various other pressure groups." The fact is that each Member represents 65,000 to 75,000 individuals. We have to ensure that our constituents' human rights are considered and respected. It is against that background that the role of the Member of Parliament has to be protected and viewed as important.
There have been some notable successes for pre-legislative scrutiny, and we support the process. The Financial Services and Markets Act 2000 was mentioned. My right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) was a member of the Joint Committee that considered that Bill. He certainly felt that a good deal of expertise from both Houses was brought together—people with a background in banking and financial services who understood the issues—and that it was possible to move the process forward and create a better Bill. The Government made some suitable concessions: as usual, not enough, but some progress was made.
An online forum was set up on the Communications Bill. It was generally considered to be a model of its type. The pity is that we have not had more such examples. The Hansard Society moderated the online forum. It distilled the information so that members of the Committee were able to see the sensible ideas that had come forward displayed properly. Everybody felt that people's views had been properly taken into account.
Even with online forums, there is a problem with what exactly one is asking for people's opinions on. Some parts of a Bill are essentially matters of detail; others are matters of policy about which there is a political argument. When the Modernisation Committee talked to individuals around the country on the "Connecting with Parliament" report, people said that the online form was far too complicated because all that they wanted to say was that they did not agree with clause 16. Others said that filling in a detailed form was what they wanted, as they were providing an expert view on large parts of the Bill. Both views are valid. It is worth the 15WH Government's knowing that there is huge opposition to a clause; equally, it is worth having the benefit of the expertise of the profession or interest that is dealt with by the Bill. The question is how to arrive at a way of dealing with online forums that provides for both the cry of outrage about clause 16 and the detailed briefing.
It is a pity that there is not more scope for using online forums. Part of the trouble is that the infrastructure is not in place—a point that I have put to the Minister before. I believe that the Hansard Society is not geared up to manage online forums for every draft Bill; if it is, I would be grateful if the Minister would explain why it is not doing so. I suspect that to run such forums needs more investment and planning, but I would certainly welcome more of them.
We also need to consider whether the law-making process should be a little more accessible. Many members of the public find it difficult to understand legal language. I should have thought that pre-legislative scrutiny could allow for the main provisions of a Bill and the scope of the argument to be expressed in simpler language. Certainly, when it comes to Standing Committee, it should be possible to timetable debates on key issues that are the subject of substantial public debate so that those who wish to catch the debates online can do so. Equally, material should be available to explain the process.
§ Ian Lucas
Does the hon. Gentleman share my experience, which is that a huge number of constituents have no idea about the accessibility of parliamentary proceedings through the internet? For example, even those who have access to the internet are wholly unaware that transcripts of debates and Committee proceedings are available the following day. Does he agree that we have a huge job to do to inform our constituents of that?
§ Mr. Heald
I agree with the hon. Gentleman, but the website itself needs further consideration. Five years ago, our system was considered to be cutting edge. Everyone said that it was marvellous and very accessible—but that was judged by the standards of the time. Many of those who have given evidence to the Modernisation Committee say that the websites of some other Parliaments are more accessible than ours and that it is easier to get into a debate on a particular Bill. There is scope for some form of virtual tour of the House of Commons, with an explanation of what is done by each part.
§ Mr. Heald
My hon. Friend speaks sotto voce about the Whips Office, but we may have to leave the Whips out. It is suggested in the Civil Contingencies Bill that Her Majesty's Lords Commissioners to the Treasury—the senior Whips—should be able to declare a state of emergency, close roads, damage properties without compensation and so on; it seems extraordinary, but it is true.
Yes, we could do a lot more to make this place more accessible, and some of it would be fairly simple. It seems extraordinary that a full list of draft Bills is not 16WH produced at the beginning of each Session. This year, we had the farcical situation in which I had to ask the Leader of the House, "Are we going to have a draft Bill on X?" If I got the question right and mentioned a Bill that might be coming up, he would say, "Yes."
§ Mr. Heald
Yes. This is now known as the Kelly approach. We played "Guess a Bill" for three weeks. It seems daft, because there was no reason why the Government could not produce a list of their draft Bills. I see the Minister looking a bit cagey. Perhaps he could have told us about most of them. There were seven that I had to guess, and I managed to guess about five before the Leader of the House finally buckled and put a list in the Library. We could do better on this, I am sure.
The Select Committees cannot do all the pre-legislative scrutiny. They play a vital role in scrutinising Departments, and I would not want to see them becoming so overburdened with pre-legislative scrutiny that they could not do so effectively. Joint Committees, which bring together the expertise of both Houses, seem to us to be a good way of easing the burden on the Select Committees and ensuring that the necessary expertise is available.
We are also anxious to see more ad hoc House of Commons Committees used. They have not been used very much, but the Modernisation Committee identified them as a way forward. We see Joint Committees, more ad hoc Committees and Select Committees as the way forward for pre-legislative scrutiny, but we must also not lose the possibility of using Special Standing Committees. I called for one of these recently on the Human Tissues Bill, although in the event the Government were able to satisfy me that it was not appropriate. If a Bill is fairly short in compass but involves a significant ethical issue, or a particular amount of specialism, there is a case for having a Special Standing Committee rather than going through pre-legislative scrutiny, which can be quite a substantial process for a small measure. We would like to leave that option open.
So, without trespassing too much on the good will of the Chamber, may I say that we support pre-legislative scrutiny, but we are worried about the impact of it on the Standing Committees. I agree with my hon. Friend the Member for Banbury that some Standing Committees are not satisfactory. The timetabling is not working well, substantial numbers of clauses are not being properly considered, and the Government are not always showing the patience with the Select Committees that they should to ensure that pre-legislative scrutiny reports are available in time for debate. The House of Lords is having to pick up a lot of problems that we are creating in this place.
My hon. Friend the Member for Banbury has pointed out that the Government are taking liberties with the Standing Committee system by creating amendments that do not really scrutinise the Bill, and talking far more than is necessary in order to curtail the time available to the Opposition. All these tactics are obviously wrong and should not be used. Having said that, I thank the hon. Member for Wrexham for giving us the chance to say so.
§ The Deputy Leader of the House of Commons (Mr. Phil Woolas)
I thank hon. Members who have taken part in this interesting and important debate. Congratulations are due to my hon. Friend the Member for Wrexham (Ian Lucas) on obtaining it and I am grateful to you, Mrs. Adams, for allowing a fairly broad discussion on not just pre-legislative scrutiny, but the other side of the coin as well—the Standing Committees and their operations.
I shall try to answer as many questions as I can within the themes of my speech. I hope that what I say will move the position forward and provide signposts for hon. Members who asked about the Government's intentions on pre-legislative scrutiny. It is, I think, widely accepted that the Government are committed to it. We have shown that by our actions and have greatly increased the number of Bills that are published in draft form. Hon. Members may be interested in the figures: there were three draft Bills in 1997–98, followed by six in each of the following two years, two in the election year, six in 2001–02, nine in the last Session and, as has been said, possibly 12 in the current Session. We are committed to increasing the number of draft Bills. The phrase "the presumption of norm" was used and, with the few exceptions that I shall explain later, that is our goal.
Bills were occasionally published in draft before 1997. It is not wholly a new Labour idea, but the new Government took it forward most effectively. Bills were published in draft in the 1992–97 Parliament. Hon. Members might be interested to know that public consultations were held on clauses of the Copyright, Designs and Patents Bill in 1987 under the then Government. With the benefit of hindsight, it is interesting that the Child Support Bill of 1991 was subject to publication in draft form and to pre-legislative scrutiny. Perhaps that is not always the model we want to follow. I make no party political point because my party supported that Bill. All constituency MPs have regretted that day.
The Government have demonstrated their commitment to pre-legislative scrutiny because they believe that it enhances the quality of the laws that are passed. Pre-legislative scrutiny gives Parliament and stakeholders in the wider society an opportunity to influence the Bill's content when the Government's views have not been firmly set—the so-called set-in-stone stage. Examples given include the Civil Contingencies Bill, which is a good one, the Gambling Bill and the Communications Bill. Hon. Members on both sides of the House have acknowledged that all were improved by the process of pre-legislative scrutiny. It has been alleged that the Government have taken no notice of other examples. Some may think that that is two steps forward and one step back, but it is progress none the less. I shall explain in detail how pre-legislative scrutiny gives opportunities to Parliament and stakeholders and why that is a good thing.
One purpose of pre-legislative scrutiny and draft publication is to connect better the process of law making with the public. It cannot be right that the intent of Parliament, which it is the purpose of law making to reflect, should more often be subject to interpretation by the courts rather than the clarity of the laws that are passed in this place. If we wish t o connect the public with 18WH Parliament and encourage public consent for, and better understanding of, the laws that we pass, we must ensure that people have an opportunity to influence the law, either directly or through their various representatives in the form of pressure groups and interest groups, as well as their MP. We must ensure, first, that they believe that they can have an input and, secondly, that they better understand the law and its intent.
All MPs regularly experience in their constituency criticisms of the law, of what is believed to be the law and of what is believed to be the intent of Parliament. Unless the courts and the public have an opportunity clearly to understand that intent, the consent for Parliament will diminish and the political process will be damaged. Pre-legislative scrutiny is an opportunity to improve the law in its intent and clarity. That is the important point. We are striving to improve the process and to answer the important questions posed this morning about the criteria used to decide which Bills are published in draft and about the Committee's scope and remit, including whether a Select Committee, a Joint Committee or a special ad hoc Committee should consider the proposals.
The Government have taken note of the concern expressed by the Liaison Committee and others about the short notice of the publication of draft Bills. We appreciate that that can and has created difficulties for Committees in planning their programmes. We want to work with the Liaison Committee and the Select Committees to improve the process. Immediately after the Queen's Speech, in response to that concern, my right hon. Friend the Leader of the House provided the Liaison Committee with a provisional list of draft Bills expected to be published this Session and a copy was placed in the Library.
It is not always possible in the sausage factory production of legislation to be precise. I am happy to place on the record that Departments rightly have to take advice from parliamentary counsel, whose function it is to probe and to seek clarification of intent. Sometimes there are unforeseen consequences in the preparation and sometimes it is not always possible to publish in draft form. That is a long-winded way of saying that it is not a perfect world.
The Government have demonstrated their commitment to openness. In return, however, the House must understand that our legislative programme must have some flexibility and that the provisional list of draft Bills will be subject to change. The Government's proposals are subject to discussion in the usual channels in both Houses of Parliament—the Lords and the Commons—both of which we must take into account. For example, following such discussions it was agreed to introduce the civil partnerships Bill in this Session rather than as a draft Bill as the Government originally proposed. That was a good example of us responding to concerns.
Drafting resources may need to be diverted to other priorities and slippage may mean that there is insufficient time for publication in draft.
§ Mr. Heald
On the need to have a sensible list of possible draft Bills at the beginning of the Session, the Cabinet Office said that it would introduce a draft civil 19WH service Bill this Session in response to the Public Administration Committee's report. Why is that not on the list of draft Bills for this Session?
§ Mr. Woolas
For the very good reason that in planning the legislative programme we have to plan our resources. in terms not only of parliamentary counsel but of Departments as well. The Select Committees have had concerns over their ability to plan and the Government have provided significant extra resources, which I will mention if I have time. We have also provided parliamentary counsel with extra resources in recent years to try to increase its capacity and therefore introduce greater flexibility. It is a statement of common sense that the preparation of Bills, whether they be draft Bills or full Bills, requires a great deal of resources. The implementation of drafting is not always predictable because of unforeseen complexities and difficulties.
§ Mr. Heald rose—
§ Mr. Woolas
The hon. Gentleman is trying to have his cake and eat it. He pushed us to introduce a civil service Bill. We responded to that concern and said that we would have one. That is evidence of openness, flexibility, transparency and democratic government.
§ Mr. Woolas
If the hon. Gentleman wants to move to a Stalinist five-year plan, the logical consequence of the discussions that he proposes would mean the abolition of annual Sessions, the increased carrying over of Bills and one Prorogation every five years. I am sure that his colleagues in the Opposition Whips Office would not support that aspect of modernisation.
To be fair, there are good reasons why flexibility and a rolling programme would be advantageous to the House.
§ Ian Lucas
Talking of Stalinism, may I return to the usual channels and the civil partnerships Bill? My hon. Friend said that, as a result of discussions among the usual channels, the Government have forgone a draft Bill in favour of the civil partnerships Bill. Does he think it right that an issue that will generate interest and discussion among my constituents is not presented in draft form simply because the usual channels believe that that is inappropriate?
§ Mr. Woolas
My view and, more importantly, the Government's view is that a Bill should be published in draft form unless there are good reasons for not doing so. Such reasons may be broader than my hon. Friend suggested. He talked about the need to respond to 20WH emergencies and about the 11 September tragedy, but other forces majeures may require a legislative response from the Government. There may also be financial pressures, and the financial year is a key determinant in planning the legislative programme. I can also reveal that the business managers set about the timetable for the Higher Education Bill because of demands by the printers of university prospectuses. It was therefore a real-world timetable, which had little to do with the parliamentary timetable.
Some Bills are timetabled in response to decisions by our courts and the European courts. The timetable for the Gender Recognition Bill, which had its Second Reading yesterday, was drafted in response to the need to protect the British taxpayer against liabilities as a result of the judgment by the European Court of Human Rights. Those are examples of real-world pressures on timetables. Famous "events" can also change things. However, on the basis of a shared understanding of that framework, the Government's objective is to move towards the presumption of a draft Bill.
I understand why hon. Members have not gone into detail about the consequences of the greater use of draft Bills for other aspects of the parliamentary legislative process. The Government have given Select Committees greater resources, including staff resources. The new scrutiny unit is now fully functioning, and one of its primary functions is to assist with pre-legislative scrutiny. Following an independent review, the number of staff working directly for Select Committees will be increased over a three-year period. Hon. Members will also know that the payment of Select Committee Chairmen has been introduced. Those are some of the implications. Of course, Select Committees and the Liaison Committee have advised us formally and informally that the scrutiny of draft Bills has increased their work load extensively. That is why Joint Committees may be used increasingly and why we must be flexible in learning lessons at this stage. We should not tie our hands too tightly if we are to ensure that we can proceed.
The proposals also have implications for carry-over. If one is to have a successful programme for scrutinising draft Bills and for legislating subsequently, it is advantageous to have the facility to carry Bills over from a Session. Of course, the timetables and Standing Orders of the House of Lords and the House of Commons are not in sync.
We have touched on the important issue of programming in Standing Committees and on Report, and I am a big fan of programming, as are the Government in general. However, we recognise, as the Modernisation Committee did in its advice, that the current arrangements are not perfect. The hon. Member for Somerton and—
§ Mr. Woolas:
I apologise. My Lancastrian ignorance of the south-west is coming to the fore.
As the hon. Member for Somerton and Frome (Mr. Heath) said, programming, or timetabling as I prefer to call it, requires consent if it is to work. I readily admit that Front Benchers do not always co-operate, which is to be regretted. My main argument in favour of 21WH programming, however, has nothing to do with how this place functions, but with the need for the public and stakeholders to know more about the process of legislation, as has been explained. I was a member of the Committee that considered the National Minimum Wage Bill. We discussed key parts of that at 3 o'clock in the morning, which is ridiculous. A few of my constituents who use the internet late at night might have had access to those proceedings, but we could not tell them, as we could when the Local Government Bill was considered in the previous Session, that important aspects would be discussed in the morning and afternoon on Tuesdays and Thursdays at pre-designated times. Such information helps people to be involved in the legislative process, to follow it and to have an input. We need a commitment from Members on both sides of the House if we are to make progress and set signposts, and if programming is to work. I readily admit that that also applies to the Government and the usual channels.
My hon. Friend the Member for Wrexham argued for greater involvement in the pre-legislative scrutiny of Bills that affect Wales—what we might call Wales-only Bills. The Government agree that it is desirable that Bills containing significant Wales-only clauses should be published in draft form whenever practical for scrutiny by Parliament and the National Assembly for Wales. My hon. Friend is already working to achieve that. We have a good record on that. The National Health Service (Wales) Bill and the Public Audit (Wales) Bill were both published in draft form in the previous Session.
In the case of Bills that relate to both England and Wales, it is not usually practical to separate out the parts that relate to Wales for separate scrutiny or for earlier publication. We are, however, committed to publishing those Bills in draft form whenever we can, so long as that is consistent with the overall needs of the legislative 22WH programme. Last November, following the publication of the report of the Select Committee on Welsh Affairs, my right hon. Friend the Leader of the House met the Presiding Officer of the Welsh Assembly. A working party has been established to see how we can make progress.
On the very important question of whether the Committee's remit is to consider the principle, the policy or the implementation of a Bill, a Committee of politicians will always want to consider the principle. It should be free to consider the coherence of draft legislation, to examine the policy and to disagree with it if it so chooses, but it should concentrate on the successful implementation of that policy by consulting stakeholders.
In anecdotal terms, the objective is to diminish the law of unintended consequences. The hon. Member for Banbury (Tony Baldry) pointed out many times in Committee that there are laws of unintended consequences, and that legislative scrutiny exists to tease them out. That can be done particularly well when considering draft Bills. We have drawn the remit wide, but encourage the emphasis to be placed on testing the successful implementation of policy and examining the unintended consequences.
The hon. Gentleman said that he was going to make a bad-tempered speech. It is always a good idea to tell people if one is going to make a bad-tempered speech because then no one thinks that it is. He made his point effectively without upsetting anyone. There was no golden age of scrutiny, as the Procedure Committee and the Modernisation Committee pointed out. It is nice for him to look back through rose-tinted glasses, but the truth is that we scrutinise more clauses and more Bills, and have a more modern and effective process, as a result of pre-legislative scrutiny. I commend hon. Members on the points that they made.