Merits of Statutory Instruments Committee: Post-implementation Reviews

My Lords, I shall speak briefly, mostly because my former colleagues will give me a further hard time if I do not, but also because I do not wish to repeat what is in the report or has been set out eloquently by my noble friend Lord Rosser. I very much welcomed the way in which he presented the report. I want to address three points—first, why this subject matters; secondly, the primary/secondary debate; and, thirdly, some lessons on this, and perhaps my reflections on the Merits Committee more generally, which may be relevant to debates on the House’s role itself, as touched on by the noble Lord, Lord Norton of Louth. Why this matters has already been expressed well by a number of speakers, but let me try to underline a few particular reasons. First is what I call policy naivety, which applies to Ministers, civil servants, legislators and lawyers without excuse—the belief that in some way having a good intention and making a law leads to the wished-for policy result. It is a profound cultural attitude within Westminster, and we are not immune from it ourselves. It leads to the most naive forms of legislating at times, whereby you produce something without thinking through—with an understanding of the real world—whether anybody will take significant notice of it. One of the best examples of this that I can think of, without wearying the House, is where I as a householder am liable if I fail to make sure that my builder does not tip my building refuse over the fence. The intention is perfectly good but the problem is, first, that none of us is aware of the abuse and, secondly, the builder will just say, "Of course, guv". As a mechanism for controlling an abuse, it is naive. It is a silly example, but it shows that thinking that such mechanisms will get the result is naive. This subject also matters because legislation and policies that do not achieve their result waste taxpayers’ money. If you get a 30 per cent compliance rate when your success level was 70 per cent or whatever, you might as well not have got it. Governments ought to specify their success criteria as part of both their primary and their secondary legislation before it moves forward. They do not, for all sorts of good and bad reasons that you can spot for yourselves. Linked to that is that within the next decade, or even sooner, there will be much less public expenditure than we have been used to. We are going to have to be more chary about when we launch new policies and initiatives and there will have to be a far more rigorous investment—if I may call it that—in the analysis of approaches to legislation to see whether the mechanisms are actually going to work. This is necessary for all those reasons, but above all for the learning culture so that we know better in the future how to make policy work in practice, and therefore can better identify what is not working and knock it on the head because it is a waste of money. That learning culture is not deeply embedded in either civil servants or Ministers. We are going to have to have more of it in the future, and even if there had been no fiscal crisis, it would be healthier. Secondly, I turn to the secondary/primary debate. I personally welcomed the Government’s response, which is a positive one, when I met the Minister for a good discussion. The point they make, however, is why look at secondary legislation without looking at primary legislation since they are part of the same carpet. Sometimes that is a perfectly valid response, but one would warm towards it more if one had seen more signs of life on post-legislative scrutiny by the Government more generally. We saw the Government’s approach to PLS in March 2008. It came out covered in blood from battle because the behind-the-scenes fights to get that far were horrifying to behold; I am glad that I did not see them. However, we have not really heard a great deal since. I ask the Minister what is going to happen in the specific terms of a programme for post-legislative scrutiny by Government themselves for the future. Where are the explicit plans setting out what will be done, where, and by which department, so that we are able to see a programme of PLS presented to Parliament, which we believe ought to be the proper process of response by the Government? What are the Government going to do to honour those statements? I wish to make a further point here. A Joint Committee of both Houses would be a good thing and I hope I live long enough to see that happen, but if it does not, we should not wait. The noble Lord, Lord Norton of Louth, is absolutely right to say that while the Select Committees do some of the plenty that is to be done, there is a need for one body which not only looks at what is not being done by the Select Committees, but—perhaps more importantly—takes the holistic or thematic approach to these lessons. I hope that that would be a joint body but we should do it if that does not happen, Even if the Select Committees reviewed every single piece of legislation, they would not be taking a holistic or thematic approach. I think we have seen the benefits of having a go at these issues in the early and stumbling attempts under my chairmanship. This is a call to the House itself to wake up and be a bit bolder by getting on with it, after making a proper offer to the Commons, saying that we would like to do this with them. Thirdly, I want to cover one or two lessons that are relevant to this report from my time with the Merits Committee. It is getting to be a bit of a habit, but again I strongly agree with the noble Lord, Lord Norton, that the House is too cautious about its own terms of reference, which are that the Government should not normally or usually—I have forgotten the exact wording—defeat secondary legislation. That is for a very good reason, because primary legislation sets the policy and you cannot constantly rewash the clothing without purpose. However, the emphasis is on "normally or usually". The frequency with which the House has rejected secondary legislation is, I think, supine. I say that particularly because if the Government feel that they want to have their way, they can bring the same instrument back a week later having tweaked it slightly. Given how well behaved we are in this House, we always or virtually always give in. I can think of very few examples of where it has not done so. But actually saying "This will not do", or "It will not achieve the policy objectives", or "It is flawed", which is fundamentally what the House can do, having read the judgments of the Merits Committee, acts as a wake-up call to officials and Ministers. It catches attention. Perhaps I may make the reverse point. While those big shocks to the system are occasionally essential and ought to be seen as part of our role rather than something that we think somehow confuses our constitutional position—which I do not believe they do—the distinct alternative is the less visible response that I will call "grinding away". The most significant impact of the Merits Committee over the past few years has been a process almost of attrition, whereby our excellent officials, supported I hope by their committee, sought to get the Cabinet Office to strengthen and clarify the guidance to departments about what they should do when making Explanatory Memoranda and SIs. These should then be policed against those standards on individual cases. The consequence of that, and of the occasional big bang, was that the attention given by Ministers—I speak as a culprit—and of Permanent Secretaries to secondary legislation went from about zero to quite significant over a period of time. Some Permanent Secretaries—I think of Sir David Normington—put their back into recognising that their departments were really failing and committed themselves to doing something about it. We could apply that principle to other areas of our legislative process—on which we might touch tomorrow—whereby there are standards and principles which are policed in almost a non-histrionic way. But the officials, and their Ministers behind them, know that if these things are not done well, the House will properly bring them to account. The effect is not usually massive rows but a gradual improvement in the process by which legislation is made and, I hope, the policy that goes to make legislation. That is more than enough from me. I am delighted that my noble friend is taking this debate. I look forward to touching on some of these issues in the debate to be introduced by the noble Lord, Lord Norton of Louth, tomorrow.