Government: Draft Legislative Programme

My Lords, in the time available, I wish to comment on three issues: pre-legislative scrutiny, post-legislative scrutiny, and the proposed Constitutional Reform Bill. As I said at the time of the Statement, a draft legislative programme is not the same as draft Bills. Chapter 3 addresses draft Bills. What it says is good as far as it goes, but I can see two problems with it. First, there is an apparent mismatch between intention and practice. The Government say that they are committed to publishing as many Bills as possible in draft and to submitting them for pre-legislative scrutiny. Yet of the 23 Bills listed, how many have been published in draft and subject to pre-legislative scrutiny? A total of four, with another published in draft. How many other Bills do the Government envisage publishing in draft? On page 20, we are told: "““At this stage the Government is considering publishing in draft, bills concerning Marine, Heritage Protection and Single Equality””," and that the Leader of the House of Commons will list others in a Written Ministerial Statement in November. That, it may be argued, is not the most ambitious of lists. Bills of high political contention are not published in draft, but that does not mean that they should not be. As Dr Meg Russell of the Constitution Unit told the Constitution Committee of this House in 2004, such Bills, "““are arguably the bills that most need proper scrutiny””." The second problem is that it represents something of a retreat on the position taken by the Government in 2004. On 24 February 2004, the then Deputy Leader of the House of Commons, Phil Woolas, said that the Government intended to increase the number of Bills submitted for pre-legislative scrutiny, and declared: "““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””.—[Official Report, Commons, 24/2/04; col. 19WH.]" The Government appear now to have moved away from that position. Given that, I invite the Minister to urge his colleagues to reconsider the number of Bills to be published in draft and to press for the November Statement to embrace the principle accepted by the Government in 2004. If not, it will look like the Government’s position is the result of Civil Service capture. Enhancing the extent of pre-legislative scrutiny, however, constitutes only one prong in the enhancement of legislative scrutiny by Parliament. Another crucial prong, on which the draft legislative programme is silent, is that of post-legislative scrutiny. This may seem a separate issue but, as the Constitution Committee argued, post-legislative scrutiny has the capacity to improve the quality of Bills introduced to Parliament. If Bills have to be accompanied by a list of the criteria by which they can be judged to have met their objectives, departmental thinking about a Bill is likely to be much sharper than at present. In terms of generating such criteria, why not start with the Bills listed in the draft legislative programme? A commitment to providing clear criteria and to submitting such Bills, as appropriate, to post-legislative scrutiny would be a very positive move consistent with the aim of strengthening Parliament. It would also strengthen the Government’s credentials if they were to publish as a matter of some urgency their response to the Law Commission report on post-legislative scrutiny, published in October last year. As I said in the House on Tuesday, the Government are expected to respond with an interim report within six months of publication of a commission report. Nine months on, we are still waiting. The Minister said earlier that it is actively being considered. I remember the programme ““Yes, Prime Minister””, in which ““being considered”” meant that the Government had lost the papers, while ““actively considered”” meant that they had found them. At least there is some progress, I suppose. Can the Minister tell us precisely when the Government’s response will be published? I conclude by focusing on the proposed Constitutional Reform Bill, which is designed to strengthen Parliament in relation to the Executive. This is a wholly desirable goal, but it is put in the context of constitutional reform. We are promised not a ““Strengthening of Parliament Bill”” but a Constitutional Reform Bill. The distinction is important. It raises the question of where this measure is located within a coherent framework of constitutional change. We have seen significant reforms to the constitutional framework of the United Kingdom over the past decade, but each has been pursued as a discrete change. The measures have not been set within a clear view of the particular constitution favoured for the United Kingdom. The Green Paper states that the Government wish to, "““begin the journey towards a new constitutional settlement””," and offers a set of proposals, but without identifying the destination. When we debated the constitution in this House in December 2002, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, was unable to say what the Government thought a constitution was for, and hence whether the Government embraced negative or positive constitutionalism. Indeed, he said that the Government did not even have a definition of a constitution. There has been no attempt to look at our constitutional arrangements holistically. What precisely is the constitutional framework that the Government wish to achieve? If we are moving away from the Westminster model, which of the alternatives to it—and there are several—do the Government embrace? We need a clear view of the destination in order to assess the utility of measures ostensibly designed to get us there. In short, it will be very helpful if the Minister can tell us the intended future shape of the British constitution.