Question for Short Debate
My Lords, I start by confessing that behind this dry request to the Government for statistics lies an ulterior motive. However, it is one that should commend itself to all true parliamentarians. The suggestion in the Question is one I owe to Daniel Greenberg, a former parliamentary counsel and a campaigner for high legislative standards. I declare a personal interest as a member of the executive committee of the Better Government Initiative. I am very grateful to the most distinguished galère of participants for giving up their dinner to take part in this short debate, which I attribute to the general issue of the importance of our parliamentary legislative processes—particularly relevant as we approach the challenges of Brexit.
Making law is central to our job as parliamentarians, but it is not a job that the Executive always helps Parliament to do well, although I think we all feel that the House of Lords does it more thoroughly than the House of Commons. Even so, the results are not reassuring. There is a widespread feeling that, under pressure from the Executive, Parliament makes too much law. To give one illustration, in 2010, legislation covering 2,700 pages was added to the statute book. This was more than three times the amount of legislation passed 50 years before. That takes no account of all the guidance and other notes issued to specify the application of such legislation.
So much of this legislation is unsatisfactory. Some time ago I asked a Question about how many Acts passed by Parliament between 2005 and 2010 had never been brought into effect. The answer was that part or all of 77 Acts passed by 15 departments had never been brought into effect, despite being passed by Parliament. They had been found to be impracticable or had been overtaken by second thoughts.
It should be the job of Parliament to prevent or improve such defective legislation, but in truth Parliament is overwhelmed. Your Lordships’ House does its best, but one sometimes feels that, with the introduction of programme orders and family friendly hours, the House of Commons has virtually given up. To take one particularly flagrant example, the Finance Act 2005 contains 106 sections and 11 schedules, covering 202 pages of legislation relating to income and corporation tax, trusts, film relief, stamp duty and various anti-avoidance measures. It was passed by the House of Commons in four hours and two minutes of one day and by the House of Lords in 40 minutes on the following day. Admittedly, this was in the rush before a Dissolution, but that is surely no excuse for allowing complicated legislation, affecting the lives of citizens, to pass with such blithe lack of detailed scrutiny.
To take another more recent example, the Immigration Bill in the last Session started in the Commons with 56 clauses, eight schedules and 107 pages. It left the Commons with 65 clauses, 12 schedules and 168 pages. When the guillotine fell at the end of Report, eight new clauses, one new schedule and 10 amendments were added to the Bill with no debate whatever.
There are honourable exceptions. I have spoken in this House of my admiration of the process to which the then Investigatory Powers Bill was subjected. This included three reports by independent bodies, pre-legislative scrutiny of a draft Bill, and many hours of detailed scrutiny in the Lords and Commons. But that was the exception.
This Question asks whether the Government, when publishing—as they do—Explanatory Notes on Acts of Parliament after they are passed, will include the parliamentary time spent by each House of Parliament on each part of the Bill. These post Royal Assent notes already include a schedule of Hansard references for the different stages of the Bill, and, as we know, Hansard shows the times at which debates start and conclude. This information is readily available. The House of Commons already publishes such information for each Bill in its sessional returns, but that information is lost in a plethora of other information. The House of Lords’ statistics on business and membership include time spent on the various stages of Bills, but in aggregate, not for individual Bills.
The Cabinet Office recently introduced a new format for these Explanatory Notes, intended to be simpler and easier to navigate, but that format does not include the time spent on each stage of parliamentary proceedings. It can be easily added. I should also like the information to include new provisions added during each Bill’s process without debate.
I repeat that this is purely factual information, already gathered and easily available. The purpose of publishing it is, of course, to bring to light where parliamentary scrutiny has been inadequate and, by doing so, to encourage more effective procedures. I believe that neither government nor Parliament would want it to be shown that legislation had been passed by Parliament with ineffective scrutiny. If the result was that more parliamentary time was given to a smaller volume of legislation, that would be no bad thing.
This is only one small contribution to improving parliamentary scrutiny of legislation, on which I am delighted that the Constitution Committee of your Lordships’ House is currently conducting a major inquiry. It is practicable and a virtually costless change simply in the method of publication of material already collected.
I find it difficult to envisage how the Government could refuse a request to publish this readily available information in this more convenient form. I suppose that I could always get it by putting down a Parliamentary Question after every Act received Royal Assent, but that would give everybody more trouble and I hope that I will not have to.
My Lords, I confess to having put down my name for this debate for the ulterior motive that the noble Lord who introduced it has explained. I think it important from the point of view of this House to compare the situation here with that in the House of Commons.
Over the years, Members of the House of Commons have become ever more burdened by the questions and cases that constituents raise with them in order that they should deal with them in such a way as to alleviate their constituents’ problems. That applies in all sorts of cases. You have only to send an email to a Member of Parliament to find out exactly what happens in that respect. The number of requests for help they receive over a parliamentary Session is huge. They cannot be expected to have available more than the 24 hours per day that we have allotted to us. It therefore stands to reason that the amount of time that individual Members have available to study Bills before the House becomes more limited.
In that situation, the role of this House as a revising Chamber is made even more important than it would otherwise have been. It is extremely important that we concentrate on that aspect of our business because of the need to make sure that legislation when passed is workable. As the noble Lord, Lord Butler, said, we make laws that apply very generally. He mentioned tax law—that applies to a lot of people. It is very important that it should be workable. The consequences of bad legislation are so significant that we must do everything we can to avoid it.
As has been said, the volume of Bills presented has gone up, which increases the problem. This situation needs to be highlighted. Publishing the statistics which the noble Lord has asked for would be a considerable improvement in that connection.
The obligation on this House to scrutinise legislation is extremely important. It is not altogether easy, because Bills when they come here are not the most readable pieces of literature one has ever seen. Very often, a good deal of work is required to see what is being modified. My four minutes is up. That concludes what I have to say.
My Lords, I agree with the noble and learned Lord, Lord Mackay, that the pressures on Members of Parliament these days in terms of constituency work, emails and so forth are quite astonishing. That is part of the problem and I do not think that family-friendly hours have helped.
I congratulate the noble Lord, Lord Butler, on initiating this debate and go along fully with what he suggests regarding transparency and information. The figures he gave about the number of Bills and the fact that the amount of time has not expanded in the same way are significant. I am sure that the nature of the legislation is also important—not just the number of Bills but the number of pages and clauses in them—but I know he would not suggest that we look just at the amount of time spent, because you can spend your time well or not very well.
I want to defend the concept of programming legislation—timetabling by another name. I remember the days when, as an opposition spokesperson, I would spend hour after hour on Clause 1 in Committee to force the Government to have a guillotine. I would gain some political kudos, but we would not make any progress in terms of getting every bit of that Bill debated. However, it was an important political ploy and a method of putting pressure on the Government. I admit culpability for our having programming, because when I was Leader of the House of Commons I chaired the Modernisation Committee and we came up with the idea that, as an alternative to the incentive of dragging out the first clauses of Bills, we should have a system whereby the Government and the Opposition—the usual channels—sat down together and decided which were the major issues and which required the most detailed scrutiny. The Opposition were given priority as to the debates they wanted, in exchange for the Government knowing when a Bill would come out of Committee.
That system is in principle a good one, but it has been quite significantly abused over the years and probably needs revisiting. But however good the system of scrutiny, if we do not assure the basic quality of legislation coming to us, Members of Parliament in either House are faced with an impossible task. I do not want to say too much about what should be done on the quality of legislation, because as a member of the Constitution Committee with the noble Lord, Lord Norton, I know that is something we are looking at.
The pressures on Parliament today are intense. The pressures on Members of Parliament are desperately intense and people expect quick solutions to complex problems—I fear we will see that on Brexit as well. We all have a responsibility to do what we can to scrutinise where we can, but government has a responsibility to look again at the quality and readiness of the legislation it brings forward in both Houses.
My Lords, I too congratulate the noble Lord, Lord Butler of Brockwell, on securing this debate and on the masterly way in which he has revealed what it is really about. I have to confess that I was attracted to it for reasons that have very little to do with the issue to which he addressed his remarks. My reasons go back to the time which I spent here when preparing judgments as a Lord of Appeal in Ordinary. One of our tasks was to interpret the legislation which emerged from both Houses. From time to time, appeals would come before us which required a close examination of the words used in order to find out what they really meant when they were applied to the facts of the case before us. That was not always easy, as one might imagine. It is the product of the difficulty that I think confronts every legislator, which is that it is difficult to predict every situation to which the words may have to be applied when the legislation takes effect. The words chosen may matter a great deal, and the words used will always deserve careful scrutiny.
One of the tricks of the trade that we who were engaged in this exercise learned from the noble and learned Lord, Lord Steyn, was to look to the Explanatory Notes for assistance. We as Law Lords had the advantage over the justices in the Supreme Court in that all we had to do was to go downstairs to the Printed Paper Office, where they were readily available. Today the preamble to the notes says:
“They do not form part of the Bill and have not been endorsed by Parliament”.
I cannot recall whether those words were there when we were looking at them 10 or more years ago. But we thought it was proper to look at them for such assistance as they might give, on the view that they were part of the travaux préparatoires, as the Europeans would say, to the Bill. We were accustomed to using the travaux when construing international conventions so it did not seem a very big step to look at the Explanatory Notes, and it was information that was readily available. So I take this opportunity to assure those who prepare these documents that they are read and that there are occasions, although perhaps not all that many, when they are particularly helpful.
As for the question that lies at the heart of this debate, it follows from what I have been saying that there is a real value in line-by-line scrutiny. As I have said, we all find it hard to predict the future, and it is hard for even the most experienced and skilful drafter to examine the effect of a clause from every possible angle. The benefit that comes from line-by-line scrutiny is that it offers the opportunity for these angles to be explored in debates to which people from all sides can contribute. The policy objective, the practical effect and the meaning of the words used all need to be examined. But parliamentarians need to be given the time and opportunity to do this. This is not really a serious problem in this House, given the way that we organise our business. I am sure that the Minister knows very well how much value the Government attach to the work that is done here because of the way we work, and how essential our contribution is to the quality of our legislation.
However, there are grounds for concern about what happens in the other place. The best example that comes to my mind relates to what happened last year on the then Scotland Bill. It was exacerbated by the fact that the SNP, which played an active part in the debates in the House of Commons, has for reasons of principle no Members in this House. Coming as I do from north of the border, I tried to trace what its position had been on the various clauses that we were examining here, just in case there were points that it was seeking to make which we might overlook. I found this very hard to do, as it seemed that many of the amendments that it had tabled were not reached. The consequence was that some of the provisions in the Bill were not debated at all in the other place, and I fear that on a number of points of importance that party’s voice was not heard at all in either House. That is an example of the kind of problem to which the noble Lord referred, and I support everything he said in his opening remarks.
My Lords, I too congratulate the noble Lord, Lord Butler, on raising this important Question. I appreciate that the Question addresses quantity, in terms of the time devoted to consideration of a Bill, rather than the quality of debate, but without adequate time it is difficult if not impossible to subject a Bill to adequate scrutiny.
It is important to acknowledge that there have been improvements in the legislative process in each House. The use of pre-legislative scrutiny is a notable advance, albeit limited in terms of the number of Bills subject to such scrutiny. The use of Public Bill Committees in the Commons is an improvement on what existed before. In this House, the main advance has been in the use of ad hoc committees for post-legislative scrutiny. We should recognise that there is more we could do to improve the quality of our legislative scrutiny, not least employing evidence-taking committees.
Providing the data recommended by the noble Lord, Lord Butler, would be helpful, for the reasons he has given. As he said, they are not difficult to provide. For the Commons, the Sessional Diary provides the timings for each stage of a Bill, so it is a fairly straightforward task to reproduce the data for each Bill once it has completed its passage. I want to add to what the noble Lord, Lord Butler, has recommended. There is a case not only for publishing in the Explanatory Notes on an Act the time taken to consider the stages of the Bill, but for publishing in the Explanatory Notes to regulations the time taken for debate on those regulations.
Of course, the key point is not how much time is devoted to discussing regulations but rather the fact that most statutory instruments are not accorded any parliamentary time. In terms of consideration, as opposed to debate, the contrast between the two Chambers is notable, given that we have the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee to examine the input and output side of statutory instruments, and the other place has no equivalent bodies.
On the rare occasions that SIs are debated, little time is taken. In the other place in the previous Session, just over seven hours were devoted in the Chamber to the consideration of statutory instruments subject to the affirmative resolution procedure and a grand total of 22 minutes to statutory instruments subject to the negative resolution procedure. The normal practice is to refer SIs to a Delegated Legislation Committee, but it is rare for a Committee to sit for more than 30 minutes. I noticed that one in the previous Session sat for a grand total of 11 minutes. Ruth Fox of the Hansard Society has drawn attention to the fact that prayers against SIs tabled by the leader of the Opposition or a Front-Bencher are not automatically debated in the House; in the previous Session only five out of 19 were debated. In this House we spent a total of 67 hours on secondary legislation, either in the Chamber or in Grand Committee, but that figure is notably lower than in preceding Sessions.
The Question of the noble Lord, Lord Butler, provides a useful nudge, emphasising the lack of attention given to ensuring full and adequate scrutiny. It highlights a problem rather than tackling it, but it reminds us of the need to tackle it.
My Lords, my noble friend’s excellent Question is narrow, but its implications are wide. The rule of law is central to any civilised society. The quality of law is a determining factor in the respect in which the law is held, so it is central to the rule of law. The other side of the equation is just as important: how well does the legislature scrutinise the legislative proposals of the Executive?
One of my learned predecessors as Clerk of the House of Commons, Sir Thomas Erskine May, said in the first edition of the great work which still bears his name that there are no limits to the legislative authority of Parliament other than,
“the willingness of the people to obey, or their power to resist”.
So that legislative authority should be exercised with great care. Alas, I do not think we can make the claim that it is. The legislative process may not quite be broken, but it is certainly not working very well. The approach of Brexit legislation makes the need for improvement ever more urgent.
Despite words of comfort from the Government, too much of significance is still put into delegated legislation, with no firm and observed principles as to where the boundaries should be set. There is extensive quasi-legislation, such as codes and guidance, which have the force of law but are largely left to Ministers to make up their minds about after the event. Powers delegated to Ministers, including Henry VIII powers, are often much more extensive than they need to be, and generally with insufficient parliamentary scrutiny; for example, in the previous Session there were 14 government Bills, containing a total of 41 Henry VIII provisions.
When I was invited by the Statute Law Society to give its annual lecture in a few weeks’ time, I had no difficulty in choosing the title of my lecture. If noble Lords will forgive a moment of advertisement, it is: Why is there so much bad law? “Bad”, of course, refers both to the end product and the way in which it gets on to the statute book. In my previous life, I used to say to audiences outside Westminster, “Don’t for a moment run away with the idea that a Bill is draft legislation; it is not. It is, word for word, what the Government of the day want to see on the statute book”. The corollary of that, of course, is that Ministers, of whatever party, have a collective allergy to amendments. In a way, that is understandable. If a department has been thrashing out the contents of a Bill, clearing it with other departments and the devolved Administrations, dealing with potential difficulties within the party of government, getting it through the business managers and PBL, there may be a feeling, when the Bill is finally ready for introduction, that the job is done. But of course that is when the real job has to start, and that is where both Parliament and Government need to up their game.
My noble friend referred to draft Bills. I realise that Her Majesty’s Ministers have quite a lot on their plate for the foreseeable future, but I have been very disappointed that draft Bills appear to have become an endangered species. In this Session, only the ombudsman Bill was published in draft. In the Queen’s Speech, another was promised but it has so far failed to appear. Draft Bills can of course be heavy on drafting resources, because parliamentary counsel are involved with both the draft Bill and then the Bill as it is to be introduced. But they offer a real increase in the quality of legislative scrutiny, with a consensual approach, evidentially based amendment and public access to the legislative process—much greater access, and much more effective, than the evidence-taking phase of Commons Public Bill Committees.
Draft Bills should commend themselves to business managers because consideration by a Joint Committee should avoid double handling in the two Houses and make the passage of the Bill as introduced much smoother. If only the Higher Education and Research Bill had started life as a draft Bill. I remember from our enjoyable association in the House of Commons that the Minister used to think that draft Bills were really quite a good idea. I hope that he still does so and that he will be able to offer us some comfort and cause for hope this evening.
My Lords, I too thank the noble Lord, Lord Butler, for initiating this important debate. Our constitution has emerged over centuries without plans or planners, yet checks and balances to it have evolved all the while. The noble Lord has proposed a modest constitutional balance tonight and I wholeheartedly support it.
My support stems partly from the decision taken at the turn of the century by the then Administration of Mr Tony Blair to impose House of Commons guillotine Motions, euphemistically known as programme Motions, on government Bills. This has led to vast segments of Bills receiving no scrutiny at all in the other place. Even those parts of Bills examined by elected Members often confirm a lack of rigour and attention to the detail on their behalf. Here I disagree with the noble Baroness, Lady Taylor, for whom I have great respect. I was the Chief Whip in the other place for six years before automatic guillotines came about and it simply was not the case that a huge number of Bills were guillotined. In my six years, very few Bills ever were, and had I been subjected, as I often was, to the attitude of stopping on Clause 1 and forcing the Government to guillotine a Bill, I rejected that attitude. Once it was clear that I rejected it, you did not have to try again.
I come to the point—I was unaware of it—raised by the noble Lord, Lord Butler, about four and a half hours being allocated to a Finance Bill. This House, of course, is not allowed to go line by line through a Finance Bill. Again, if I may use some personal experience, 30 years ago when I was a Treasury Minister speaking on Finance Bills, I received the most difficult time that I have ever had as a politician in answering detailed questions for 60, 70 or 80 hours—line by line—on those Bills. I did not realise which example the noble Lord would raise, and I feel that it is deeply regrettable.
The Conservative Opposition promised to abolish the automatic guillotining of Bills before the 2010 general election, but they reneged on the pledge by caving into elected Members who confused, and still confuse, an efficient House of Commons with an effective House of Commons. Efficient it may be, effective it is not. I fear that the other place is becoming an arena assembly, and arguably only a part-time one at that, and that it no longer functions as an effective, transformative legislature.
Another consequence of the absence of rigorous scrutiny in the other place is an increase in the number of judicial reviews, leaving aside the implications of Pepper v Hart in 1993. The resurgence of judicial reviews has irritated Ministers and officials and it is small wonder that the Cabinet Office has published, and republished, a pamphlet for use by civil servants entitled The Judge over Your Shoulder. That pamphlet could also be distributed to Ministers and Members of Parliament and I think it would help them, too.
I also want to emphasise, as other noble Lords have, the importance of ensuring that statistics on hours spent in parliamentary proceedings on each part of what becomes an Act should include the time taken on Bills in their draft form as well as in pre-legislative scrutiny. In my experience, the procedure of pre-legislative scrutiny has enhanced the quality of Acts of Parliament. In particular, I recall in your Lordships’ House the Communications Bill of 2003 and the Civil Contingencies Bill of 2004, which were prime examples of the success of this procedure. In contrast, I also recollect the chaos caused by the Public Bodies Bill of 2010, which was not subjected to pre-legislative scrutiny and was deficient on almost every count.
I am pleased that my noble friend Lord Young is answering this debate from the Front Bench. Few people in either House have as much knowledge as he does about the subject under consideration and I share the hope of the noble Lord, Lord Butler, that he may answer this debate in a very positive fashion.
My Lords, when I saw what the noble Lord, Lord Butler, was asking the House to consider in the Question I realised that there must be some ulterior motive. I share his ulterior motive, which is why I wish to say a little.
Although we constantly assert that we are carrying out our scrutinising responsibilities, it is very rare that Parliament is scrutinising the legislation. We have heard about having 2,700 pages of primary legislation in every year for the last however many years—it is certainly four or five—for which the statistics are available. We have also allowed 11,000 to 12,000 pages of statutory instruments to go through and out into the public, telling them how they must live their lives. In the Digital Economy Bill, we have 46 clauses which include no fewer than 12 Henry VIII clauses. They will all come into force as statutory instruments. They will go through a process of not being really much scrutinised. When they come here, if in our scrutiny we say anything about any provision in it, the whole instrument goes. We then have a Strathclyde review telling us that we have interfered with the scrutinising process carried out in the other place and are somehow acting unconstitutionally.
I want all your Lordships to try to imagine my noble and learned friend Lord Hope of Craighead wondering what a statute meant. Is it a few words in a statute; a few words which appear in a number of places in the same statute and are nearly the same; or a few words that are nearly the same appearing in two, three, four or five statutes? He may put a wet towel around his head and wonder, “What on earth does this mean?”. He does not of course think, as I always did when I had a wet towel around my head, “What did Parliament think it meant?”, with the follow-up question, “Did Parliament think about it at all?”. Of course you cannot say that as a judge, because you are bound by the Bill of Rights and cannot question anything that has happened in the process of the parliamentary proceedings, so you struggle to find the answer.
This issue has to be addressed. If I may say so to the noble Lord, Lord Butler, I take the view that this is a tiny step forward to consideration of how we legislate—how we in both Houses seek to control the Executive. That is what we are here for.
My Lords, this has been a very interesting debate—I am sure that the Minister will say the same. I certainly welcome the confession by the noble Lord, Lord Butler, that the title of the debate requesting statistics was in fact a ruse to raise a broader and wider issue of some significance. After his many years at the highest levels of the Civil Service, perhaps we should ask whether the noble Lord, Lord Butler, has picked up some political tricks in your Lordships’ House or has imported some clever “'Yes Minister” tricks to your Lordships’ House from the Civil Service. Either way, we are grateful to him as this is a welcome opportunity to debate our core functions, role and work and how we could perhaps do it better.
I want to raise three points. The first is about the value of parliamentary scrutiny. The noble Lord, Lord Lisvane, commented that Bills are seen as being absolute when they leave the department rather than when they leave Parliament. Noble Lords who were present for the Minister’s response in the previous debate will unfortunately have seen that in practice.
This House takes its responsibilities as a scrutinising and revising Chamber very seriously. We act within the conventions that guide and inform the role of a second Chamber, although that role of scrutiny and revision is not always welcomed by Governments. The work we undertake is at the heart of a functioning democracy; it is the process of scrutiny, challenge and holding the Government to account. Again looking at the previous debate, scrutiny is not just a tool to provide Governments with a fig leaf of legitimacy for legislation, but neither should it be a Trojan horse for political challenge.
Other noble Lords may disagree or agree on this, but there is a disappointing political trend that some take the view that any challenge from your Lordships’ House is some kind of constitutional outrage. The noble and learned Lord, Lord Judge, referred to this on the tax credits SI and Strathclyde. We have seen sabre-rattling around the tax credits issue and on Brexit. We have heard that the Lords should be abolished or suspended and there have been bizarre calls for 1,000 new Peers. I have to admit that I have found this dialogue very frustrating. Debate on serious issues needs perspective and adult consideration, not threats. Let us put on record again, in order to be absolutely clear, that we will always continue to act within the conventions of this House. We value and respect our role as a scrutinising and revising Chamber. We fulfil our responsibilities with diligence. We will not exceed our responsibilities, but neither will we be bullied into abdicating them. We will do our job: no more and no less than that.
We have also looked at who has responsibility for scrutiny. Obviously it is a matter for Parliament. Perhaps we have been little hard on the other place tonight, because this House has a special responsibility in that, unlike the other place, scrutiny is our sole focus without the competing demands of constituency representation. But, as the noble Lord, Lord Butler, and my noble friend Lady Taylor said, the Government also have a responsibility. Too often we have seen badly drafted legislation on which the Minister responsible has been unable to provide adequate information to allow for proper consideration. When we had the Trade Union Bill, there was no impact assessment until after Second Reading in your Lordships’ House, yet it had been through all its stages in the House of Commons. That was clearly against Cabinet Office guidelines. However, we can scrutinise well. The noble Lord, Lord Butler, used the then Investigatory Powers Bill as an example in terms of the scrutiny it received. The parallel Select Committee set up by your Lordships’ House to look at the then Trade Union Bill brought cross-party forensic examination to the most vexatious and politically controversial parts of that Bill.
Can we do better? Yes, of course. In tonight’s debate we have heard that we want to do better within our remit. A number of suggestions have been made. I shall concentrate on a couple in the time available. The noble Lord, Lord Butler, suggested, slightly tongue-in-cheek, I think, stating the time for debate in the Explanatory Notes. As the noble Lord, Lord Norton, and my noble friend Lady Taylor indicated, time alone is not an accurate indicator of the quality of scrutiny that a Bill receives. We can all think of examples, some fairly recent, where debate has been long but wisdom short—and 10 people making a similar point is not 10 times the scrutiny of only one noble Lord making that point.
There are other examples where a short, focused speech has raised a new perspective or issue. The noble Lord, Lord Ryder, shared his personal experiences in Committee. I was a member on the government side on the National Minimum Wage Bill. The Conservative Opposition tried to prevent the minimum wage coming in and kept us up not just late into the night but through the night into the next day for the longest ever sitting of a House of Commons committee.
The substantive point made by the noble Lord, Lord Butler, was about being able to assess whether a Bill has been properly examined. I think he is on to something here. One of the things I would find really useful—the then Housing and Planning Bill is a really good example of this—is that when a Bill comes from the other place to your Lordships’ House, it would be nice to know easily, at a glance, what parts of the Bill have been added on without being debated. A number of clauses were added to the Housing and Planning Bill on Report in the House of Commons which were never debated. Had we had that information easily available, we could have focused our attention and energies on the parts of the Bill that had had no consideration.
I shall make one other very brief point about the consideration of secondary legislation. This is going to be particularly important as we move forward on Brexit. Our committees on SIs are invaluable, and if we are going to have an avalanche of thousands of SIs to give effect to EU legislation, we need to consider how best to do this. If we fail, Parliament could stand accused of being little better than a sausage machine where all the ingredients are tipped in at one end and emerge from the other end wrapped up without any thought or modification.
This has been a useful debate. I hope the Minister will be able to respond positively. We value what we do, we know we can do it better and we would like to do it better.
My Lords, I thank the noble Lord, Lord Butler of Brockwell, for this debate and for the array of big hitters he has tempted away from the long table. With some double-counting, we have a professor of government, a Cabinet Secretary, a Clerk of the House of Commons, three government Chief Whips, the Convenor of the Cross Benches, a Lord Chief Justice, a Lord Chancellor, a Lord of Appeal in Ordinary, two Leaders of the Commons, the Leader of the Opposition and a Lord Privy Seal. Between us, we could provide the entire cast for “Iolanthe” and “Trial by Jury”.
The noble Lord, Lord Butler, has long been associated with initiatives to promote better scrutiny of legislation, and he and I have spent many weekends at Ditchley Park, with others, as part of the Better Government Initiative considering reform in this area. In the words of Sir Humphrey, it would be a brave Minister who refused to consider a proposal with the impressive pedigree of the noble Lords who have spoken this evening.
I want to reverse the normal order in which Ministers respond to these debates by addressing head-on the specific and narrow proposal from the noble Lord and then considering the broader context in which it is placed and addressing some of the other points raised in the debate.
The noble Lord asked whether the Government had any plans to include in the Explanatory Notes statistics on the time taken to debate each part of a Bill. The short answer is that we do not—but that does not, of course, rule out further consideration of the proposition put forward so eloquently this evening by him and others. The reason we do not is, first, because the Explanatory Notes are designed to help the readers of legislation understand its legal effect. Secondly, the notes to Acts already include the Hansard column references to debates at each stage, so the Act is permanently accompanied by a record of how each House scrutinised the legislation in its various stages.
The raw data which the noble Lord is after on the actual time spent on each part, which goes beyond what is currently published, are already available in the public domain, as he said, since Hansard includes the times when consideration of each part of the Bill begins and ends. So, against the background of what I have said about the Government’s proposals, perhaps the noble Lord, Lord Butler, as a first step might want to ask the authorities in both Houses to conduct a pilot to publish the data he is after in respect of some suitable Bills.
Another option would be to see whether the Hansard Society might produce some historical data, and we could then see whether this adds value to the legislative process or produces the outcomes that the noble Lord seeks in terms of influencing behaviour. I will certainly bring to the attention of colleagues in government the proposition we have been considering, and I noticed the veiled threat that if action is not taken a whole series of Parliamentary Questions might be tabled to elicit, at some cost, the information that he has asked to be included in the Explanatory Memorandum.
I shall add a health warning at this stage and echo some of the points made by others as the publication of these data may give an incomplete picture of the time spent. A Bill that has been published in draft first, that has been extensively considered and amended and has had the wrinkles ironed out may need less time than a Bill not published in draft. Key clauses in a Bill may have been considered elsewhere, for example in an opposition day debate, or may have been examined in detail by a Select Committee. A good example of this was the work of the Home Affairs Select Committee into the Psychoactive Substances Bill when the Bill was before Parliament. Simply taking at face value the time spent on a specific Bill might underestimate the volume of scrutiny that it had attracted.
I turn now to some of the broader issues that were raised. In doing so, I recognise the force of many of the criticisms that have been made about how legislation is considered. I am sure that your Lordships will agree that this Prime Minister’s aspiration to publish more Green and White Papers can only be a good thing—a point underlined when my right honourable friend the Leader of the House of Commons recently gave evidence to the Constitution Committee and said he was keen to see more legislation preceded by Green and White Papers. That committee is currently conducting an inquiry into the legislative process, and two members of it have spoken in our debate today.
Three members. Again, I will ensure that members and officials note the contributions that have been made in this debate. Were the Constitution Committee to be persuaded by the arguments that have been put forward this evening and to include that in its final report, that would of course be a significant step forward.
At the same evidence session, the Leader also expressed his support for pre-legislative scrutiny. So far in this Parliament, we have seen several major pieces of legislation published in draft, including the Wales Bill and the then Investigatory Powers Bill. It is the Government’s intention to publish legislation for pre-legislative scrutiny wherever possible. The draft Public Sector Ombudsman Bill was published only last month, following hot on the heels of draft tax legislation at the Autumn Statement.
I endorse what the noble Baroness, Lady Smith, and others have said about the value of scrutiny by your Lordships’ House, which the Government value enormously. I recognise that it may be possible to make further progress, and I will deal with some of the suggestions in a moment. I know that many of your Lordships are concerned that Bills are not subject to enough scrutiny in Parliament, particularly in the other House. I just ask your Lordships to remember that each House has its own style, and we should be diplomatic in discussing how the other place conducts itself, not least so we do not precipitate a domestic dispute and retaliatory action from down the Corridor.
I would like to address my noble friend Lord Ryder’s concerns about programming. Like him, I would not support the use of the guillotine by any Government unilaterally to curtail discussion on controversial Bills in an overprogrammed legislative Session. This is what has happened in the past, and I have voted against such Motions. But here I find myself in agreement with the noble Baroness, Lady Taylor, in that this does not mean that it is wrong for business managers to seek agreement among themselves and then to put to the House a proposal for the passage of a particular Bill. This can avoid wasting valuable time on procedural Motions and enable the House do to its job properly.
I had to sit opposite the noble Baroness, Lady Taylor, on the right-to-buy legislation, I think, discussing at length the timetable Motion in Committee. I think we would both agree that that was not the best use of time for either of us. Indeed, as shadow Leader of the House in the other place in the late 1990s, I added my name to some programme Motions tabled by the noble Baroness where I thought adequate time had been proposed, as did the then shadow Leader from the Lib Dems, the noble Lord, Lord Tyler. Both MPs and stakeholders outside value the certainty that programme Motions deliver, so that they know when particular measures will be debated in a Bill and can plan their lives appropriately. That is the model that has been put in place for the last five years and is in marked contrast to my earlier years in another place. The noble Lord, Lord Butler, referred to the 2005 Finance Bill, and I very much hope there will be no recurrence of what happened then.
No programme resolutions have been divided on since the 2012-13 Session. Although I was either Leader or Chief Whip for part of the time, the credit goes as much to opposition parties for not making unrealistic demands. Nor was it the case that this is all a Front-Bench stitch-up between the major parties. Back-Benchers, who are more independent than at any time previously—as I know to my cost as a former Chief Whip—could have forced a Division on these programme Motions, as could have the minor parties. But they did not. The fact that this and the previous Government have relied less on draconian programme Motions is testament to the more mature approach now adopted in the other place, exemplified by the lack of Divisions on those Motions. Things have changed since my noble friend left the House in 1997.
Following on from this, the Government have consistently allocated a more generous amount of time for Bill stages in the Commons. If we look at the current Session, three Bills had multiple days for Report in the other place, something which was previously very rare. On the 12 Bills which have had Report in the Commons, all groups of amendments were reached. Twelve Bills have been committed to Public Bill Committee, and all but one Bill has reported early. Only the Public Bill Committee on the Digital Economy Bill was still debating new schedules when time ran out, but all the other provisions in the Bill as proposed by the Government had been scrutinised. No knives have been used to control debate in Public Bill Committee in any programme resolutions since the 2012-13 Session.
Time spent is the subject of this debate and, by the end of last year, the amount of time spent in this Session in the Commons scrutinising Bills in Committee was 151 hours and six minutes. Oral evidence has been heard from 124 witnesses, in eight Public Bill Committees. By the time Parliament rose for the Christmas Recess, it had spent a total of 472 hours and 15 minutes debating the Government’s legislative programme. This averages out to more than 23 hours per Bill. Although exact comparisons between the two Houses are difficult, your Lordships may be interested to know that the Whips estimate that the Commons spent 247 hours and 22 minutes debating government legislation, while your Lordships’ House spent 224 hours and 53 minutes.
We should not forget that the other place has often been more innovative and introduced reforms that have aided parliamentary scrutiny. These include carryover Bills, which in practice mean that Parliament has more time to scrutinise such Bills, but also public evidence sessions before Commons Committee stage, which have been popular with stakeholders and MPs.
A number of issues were raised, which perhaps I can deal with briefly. A number of noble Lords referred to the legislative process and delegated powers, as well as to Henry VIII. My right honourable friend the Leader of the House has written to the Constitution Committee in connection with its inquiry a letter headed “The legislative process: delegated powers”. It is a six-page letter and Henry VIII features quite prominently. I hope that in due course the letter will get into the public domain because it addresses some of the issues raised in this debate about the scrutiny of secondary legislation and Henry VIII powers.
On the volume of legislation, in the 2014-15 Session there were 26 Bills, while in the current one there are also 26. Looking back, in 1997-98 there were 53 and in 2001-02 there were 39. We are actually at the lower end of the spectrum. In terms of pages there is similar progress: in 2014 there were 2,640 pages but in 2000 there were 3,865. So it is not the case that there have been a huge number of extra pages of legislation when one looks broadly over the last 15 years.
I am conscious that I am already into injury time. I would like to write to noble Lords to deal with some of the issues that have been raised. I recognise that there is scope for improvement and I am interested in many of the suggestions that have been made in this debate. Once again, I thank the noble Lord, Lord Butler of Brockwell, for instituting this very agreeable exchange of views.