Parliament should be more assertive in the face of poorly prepared legislation – and a new Legislative Standards Committee is needed, says Ruth Fox.
The quality of law is ultimately shaped by the scrutiny it receives in Parliament. But the tidal wave of often hastily prepared, deficient legislation that Parliament has been asked to scrutinise over the last decade and more has severely stretched the capacity of parliamentarians to perform their constitutional function effectively.
In the 1950 parliamentary session, 3,690 pages of legislation became law; in recent years it has not been unusual for legislation to fill 16,000 pages. This raises questions about whether all the legislation is needed and if not what – if anything – can be done to prevent unnecessary growth in the statute book. Linked to this, the monumental scale of government amendments indicates problems with the standards of legislative preparation.
It is not unknown for government to prepare dozens of pages of amendments to its own bills and in recent parliamentary sessions over 5,000 government amendments have been laid. The number of amendments does not automatically denote intellectual or preparatory rigour. Some amendments are undoubtedly a consequence of government listening to comments and concerns. But the sheer number of amendments, often tabled close to the deadline at report stage such that it is virtually impossible for members to scrutinise them effectively, does suggest, in the absence of any other adequate explanation, that something has gone awry in the government’s preparation and drafting of the legislation.
But at present the terms of political engagement between Whitehall and Westminster require that Parliament consider whatever legislation the government sends them, whenever they send it, and regardless of the condition in which it is sent. This is a certain recipe for the continued receipt of poorly prepared bills and therefore the production of defective laws. If the quality of legislation is to be improved Parliament must be more assertive in its approach. The right of the executive to implement its legislative programme should be qualified only by the right of Parliament to decline to scrutinise legislation that is not in a fit state for consideration.
Some constraints – checks and balances in the legislative process – are needed at the parliamentary end to restrain the executive from bringing forward hastily prepared, ill-thought-out legislation. A limited number of benchmarks, or pre-introduction tests, that have to be met before legislation can proceed through Parliament would help to offset the pressures caused by the impetus to legislate that bear down heavily in Whitehall. Parliament needs a system to ‘kitemark’ bills, establishing standards of quality and best practice (mutually agreed with government) to demonstrate to MPs, peers and the public that the legislation being delivered is, at least in technical and procedural terms, fit for purpose, before it shifts to being considered in the political cauldron of both Commons and Lords where the policy issues can then be put to the test.
Establishing a new Legislative Standards Committee, ideally convened on a bi-cameral basis, would provide a gateway mechanism for assessing the necessity of legislation and the technical quality of a bill. Empowered to call ministers to account before it and with the ultimate sanction to recommend to both Houses that they defer consideration of the bill because it does not meet the agreed qualifying standards of preparation, the committee would provide, over time, an important restraining influence on government.
Despite assurances to the contrary, the legislative record of the coalition so far demonstrates that Parliament cannot and should not rely on government to change its ways when it comes to improving the legislative process. If it is serious about improving the quality of law-making, Parliament needs to change its own culture and procedures and be more muscular in asserting its role and function vis-à-vis the executive. A Legislative Standards Committee would be powerful proof of its intent.
• Making Better Law: Reform of the Legislative Process from Policy to Act, published December 14, is available from the Hansard Society (www.hansardsociety.org.uk) Dr
Ruth Fox is director of the parliament and government programme at the Hansard Society
Dods Parliamentary Communications Ltd