Making The Law: Parliament’s Prime Function Speech To Hansard Society Forum

There is no doubt that Making the Law is a vital function of Parliament and I am delighted to take part in this forum 10 years after Geoffrey Rippon’s Report for the Hansard Society. Of course, the questioning, investigating and debating of Government actions and policies are important too. But making the law, particularly the law concerning tax is the root of parliament’s power.

I am new to the role of Shadow Leader, so my remarks are inevitably preliminary, but they are based on experience of taking through Government legislation, as well as leading for the Opposition on Bills and even successfully piloting through a Private Members’ Bill.

The considerations you have in mind are very different, depending upon which side of the House you find yourself. I am sure that Ministers and Opposition spokesmen (even if they oppose the measure) wish to see a proper well drafted practicable piece of legislation at the end of the parliamentary process. However, various pressures can interfere with this laudable aim. As a Minister, there is huge pressure to get your measure through its stages on time and not to slow things down for other Ministers and their Bills. It is considered a bad thing if at the end of the Session there is a shortage of time and the Government has to reach agreement with the Opposition on amendments. Indeed, in the ‘Times’ on Monday, there was speculation that the Government had been so irritated by what happened at the end of the last Session that they are considering abolishing the Annual parliamentary round and the Queen’s Speech in favour of a 5 year plan. 

In the last week of the Session, 2 substantial Bills remained. The House of Lords asked the Government to think again over Foundation Hospitals and the changes to Jury Trial in the Criminal Justice Bill. The Government held firm on Foundation Hospitals and the Lords conceded. But, on Criminal Justice, the Lords held firm and the Government accepted a compromise. 90 amendments were agreed. The Lords had huge majorities on all occasions it challenged the Government and the result would have remained the same regardless of the hereditary peers. The Home Secretary described the final agreement as an ‘honourable draw.’

If one looks in more detail at why the Bills came to the Lords so late on in the parliamentary year, it is instructive. The temptation and the reality of programming every Bill without taking account of opposition views, as the Government regularly does, is that legislation is often poorly scrutinised and that more legislation is brought forward. The Government now has a very large number of Bills each Session and then seeks to add very substantial numbers of amendments as Bills pass through. The Criminal Justice Bill was an example of this. It was published in November 2002 and entered a Standing Committee in December. The Committee met 32 times and reported in March. The Government then added 500 amendments and 28 New Clauses at Report Stage. This material was not considered in Committee. It is not therefore surprising that the Lords had to spend time scrutinising this new material. Yet, Ministers unreasonably complain about the delay, seemingly oblivious to the fact that they caused the delay in the first place. 

This situation has been developing over recent years. The Criminal Justice and Police Bill of the 2000/01 Session was timetabled at Second Reading. The Government offered 16 Committee sittings. It then went back on the number of Committee sittings, reducing them by 2. It then brought forward a whole raft of Committee amendments to deal with the Huntingdon Life Sciences issue. They were right to deal with the issue, but wrong to have reduced the time for Committee debate and wrong not to extend it to take account of the new material to be considered. They should have increased it. At the end of the Committee stage, 50 out of approx 130 clauses had not been debated at all. In fact Ann Widdecombe and others were so outraged that they held a sit-in at the Committee demanding more time. 

Another example of Government adding large new sections to Bills occurred last week, when on Wednesday, they added a new clauses to the Planning Bill to add a tariff system for planning gains. Bearing in mind that the Bill had already been so changed that it had been recommitted to a Standing Committee, was it right at report stage to add these new clauses at the very last minute? This was particularly inappropriate, since the principle behind the amendments is still the subject of a public consultation which is not due to end until 8th January. It seems a funny sort of consultation when you legislate first and then decide the principle. 

The effect of the Government failing to take account of opposition views on timing is that debates which should be extended are curtailed and measures which are not controversial are allowed time they do not need. The effect is that time is wasted and large numbers of clauses and amendments are never considered. On the Information Bill 1999/2000 Session, 77 amendments were not considered. In the same Session, 47 amendments to the Countryside Bill were not debated and a whopping 522 amendments to the Political Parties and Referendums Bill – all undebated in the House of Commons. With the Planning Bill, it did not prove possible to debate all matters, but the guillotine fell, nonetheless.

Government needs to schedule less legislation and to listen to reasonable opposition approaches on timing. On Bills which are not complicated, I question whether it is necessary to programme at all. Under the old system, it was rare for the Usual Channels to fall out over the timing of Bills. Perhaps, all that is needed is to fix an end date for the Committee. That way the Government has the security of knowing the overall timing, but the whips can agree in conjunction with the Committee Members how long to sit each day and what progress to make. This would ensure a better match between the time allocated and the importance of the issue to be debated. At present, the Government seems to work on the basis of about 8 clauses per Committee sitting. I am sure we can do better than that.

We strongly support pre-legislative scrutiny. One of the great concerns for opposition spokesmen is that interested parties affected by a Bill will only realise and call for changes at a late stage. I remember when I was our spokesman on the Regulation of Investigatory Powers Bill how slowly businesses realised the impact of the legislation on their use of the internet. It started off with a small number of approaches to us from internet enthusiasts, but as the Committee stage progressed more and more companies, banks and trade organisations contacted us with issues to raise. Luckily, we were able to pick up on these points at report stage and in the Lords. 

Pre-legislative scrutiny enables this process of information and consultation to start earlier. It narrows the issues and reduces the time wasted. It allows the Government to programme the business better. We proposed to the Modernisation Committee some years ago that all non-emergency Bills should be published in draft well in advance and have supported the idea of Select Committee scrutiny of many. Of course, Select Committees must also hold the Government to account, so it is important that the Government does not overload the system with too many Bills at one time.

We also consider that the use of Ad hoc Joint Committees and Ad hoc House of Commons Committees to scrutinise draft Bills can work well. This was certainly the case with the Joint Committee on the FSA Bill. I expect that many of this year’s draft Bills will be dealt with in this way. It is very useful to be able to call on the experience and expertise of Members who may not be currently serving on a Select Committee. In a wide range of areas including Law, Medicine and Finance, parliament is capable of putting together Committees of great knowledge and distinction. There are issues about the composition of Joint Committees : the ratio of Lords to Commons and the scope for minority parties to be represented. These should be dealt with on a case by case basis.

In the Hansard Society paper in July, it was suggested that there could be an in-built consultation stage after First reading and before Second Reading. This may happen, but it is perhaps more likely that Committee pre-legislative scrutiny of draft Bills will become normal procedure and will involve inviting written evidence and often hearing oral evidence from experts and interested parties. 

Finally, there is disquiet about Private Members Bills, a point made recently by the Procedure Committee. Most Bills which become law are Government hand-out Bills. There is much to be said for trying to give Members the support they need to break away from the Government’s Bills and to put forward their own. I welcome the Procedure Committee’s proposal to up-rate the financial help available.