CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 74-i

House of commons

oral EVIDENCE

TAKEN BEFORE THE

Political and Constitutional Reform Committee

Ensuring Standards in the Quality of Legislation

Thursday 10 May 2012

Daniel Greenberg

Evidence heard in Public Questions 1 - 28

USE OF THE TRANSCRIPT

1.

This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2.

The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the Political and Constitutional Reform Committee

on Thursday 10 May 2012

Members present:

Mr Graham Allen (Chair)

Mr Christopher Chope

Sheila Gilmore

Simon Hart

Mr Andrew Turner

Stephen Williams

________________

Examination of Witness

Witness: Daniel Greenberg, Parliamentary Lawyer, Berwin Leighton Paisner LLP, formerly of the Office of Parliamentary Counsel, gave evidence.

Q1 Chair: Hello, Daniel. How are you? Welcome. Nice to see you again. I think we last met at our seminar in here, didn’t we?

Daniel Greenberg: Indeed.

Chair: Probably in the same room. Very good to see you again, Daniel. You know you are among friends and we are trying to initiate this inquiry. You are our first witness, so it is a good agenda-setting opportunity for you. Is there anything you would like to say to kick us off?

Daniel Greenberg: Well, Mr Allen, if one were looking for a case study that brings together quite a lot of the issues that were raised at the seminar and has the advantage of being recent, I would strongly invite the Committee’s attention to the Legal Aid, Sentencing and Punishment of Offenders Act, which passed in the last few days. I think it involved almost everything that I suspect you will want to touch on.

It has the nature of a portmanteau Act. It includes a number of very key issues that are tucked away at the back-I don’t say that in a pejorative sense, but they happen to be at the back-like the new criminal offence of squatting. As Lady Miller pointed out, it is not an accident that it has not been a criminal offence for a few centuries, and here we are putting it in at midnight in the House of Lords.

The Act has rafts of amendments that were described as technical amendments, and there were lots of exchanges in the House of Lords between front benchers saying, "These are technical; I will write to the House"-mystic words that make the public think, "Oh, I wonder what that means. Where do we find that?" It has 320 Lords amendments, covering 90 pages. I think it will prove a fertile source of investigation for the Committee.

Q2 Simon Hart: I want to go back to a very simple fundamental, which is just an observation, I suppose, followed by a question. In most institutions, other than Parliament, if a policy idea is introduced by an executive, chief executive or management board, it is then subject to quite a lot of stress testing and goes before boards and committees and what have you. It might even be voted on by a membership, who knows, or shareholders, and the finished product will probably be quite a long way from the original proposal.

What seems to be odd in Parliament is that the Government will come up with a policy proposal and then devote every ounce of energy at its disposal for the foreseeable future in attempting to prevent anybody from changing any aspect of it at all, unless it is a sanction of a Government amendment. You mentioned the Criminal Sentencing Bill; for Andrew Lansley’s health reforms there were 1,000 Government amendments to a piece of legislation that had apparently been five years in the preparation. I think that strikes all of us as not only being odd; it also conjures up images of lack of forethought and expertise, perhaps.

But to get to the question, to what extent do you see a problem existing where the politics collide with the technical requirement for good quality legislation? I think there are quite a lot of examples where everybody in the room-everybody in the Chamber, everybody in the building-knows that something is wrong, but the politics prevent the Government from accepting that that thing is wrong and therefore from making some fundamental and basic changes that would improve the quality of the legislation under discussion. One, is that a problem, and two, how can it be resolved? That is a bit of an open-ended question. Is it purely a matter of time or is something else required as well?

Daniel Greenberg: To answer your last question first-in words similar to those I used on a previous occasion, Mr Allen-the solution will come when you all care enough. I discussed this with the National Assembly for Wales, who are a new legislature with the luxury of sitting around and thinking, "How shall we do this?"

I have had a number of really interesting sessions with committees, Members and staff there. I have said to them, "If something looks to you as though we just shouldn’t be doing it, then the answer is not how do we do it or how do we make it better; it is don’t do it". Interestingly, when I was in one of the committees there, somebody said, "Well, I would get into big trouble with the Whips if I just said this is too big an enabling power and I am not going to allow it". I said, "That’s true, yes, you would. If one person said it, they would get into trouble, but if a whole committee turned around and said, as a Parliament, as an Assembly, ‘We are not doing this; this is not right’, then you would be supported". My feeling is if as individual parliamentarians you all cared enough about not allowing things to happen that should not happen, you would find ways of doing it.

Moving back to the beginning of your question, I think you mentioned outside organisations and commercial organisations, and one of the things that I have noticed recently is that when commercial organisations test something, they don’t just test it internally. They test it partly internally, but they bring in the people who are going to use it and they go to customers and involve them, not through this business of consultation. Consultation is a troublesome exercise because at the moment so many organisations outside Parliament are drowning in government consultations; there are so many that they just find it impossible to respond to them. Consultation is fundamentally a passive process. It is not an active process of involvement just as, again, if you were the CEO of a large organisation and the profits depended on it, you wouldn’t just want to send letters back and forth-you would want to engage them and really get them tested.

When I was Parliamentary Counsel, I used to think that I was working away writing an Act and there were clever lawyers in the City waiting to tear it to pieces and cunningly find holes in it. One of the most eye-opening experiences I have had as part of the parliamentary team in Berwin Leighton Paisner has been seeing that lawyers are not there waiting to pick holes in it. They are mostly sitting there waiting to make it work, and the frustrating thing-and we had this with the Localism Bill, for example-is that sometimes you have expertise sitting there wanting to help, being able to see that this is not going to work, being able to watch it go wrong, and not being able to play a real part in controlling it and helping to make it work.

Being on a list of consultees, putting in a paper, is not the answer. The answer is to involve people at an earlier stage. Pre-legislative scrutiny should be an active process in much the same way as it would be if you were the CEO of a large company testing a product to destruction before you tried it on your customers.

Q3 Simon Hart: I take your point entirely about that. Just to follow it up, do you see the way that we do the business here-and I have only been here two years, unlike everybody else who has been here forever. It seems to me odd that there is clearly such a high degree of political pressure involved in the process and the fact is that everything has a consequence. It either has a professional consequence or a legislative consequence and it has, ultimately I suppose, an electoral consequence.

That affects and infects our decision making. It certainly does with my end of the food chain-and, probably wrongly, I should have more of the background, but there we are-and I think that permeates further. We know we are doing things, we know we are verging on things-because of political pressure essentially-that we know fundamentally are wrong. The reason why we hold our noses and do that, it seems to me, is that we are conscious that someone else down the line will pick it up-I promised the Chair I would not mention second chambers, but I can’t really avoid it-and therefore there is a reasonable chance that the error that we might have made in the House of Commons will be corrected somewhere else. It might not be in the Commons, but it will be corrected somewhere else and hopefully some sort of sense of balance will be restored.

Going back to my original question, is it a matter of time? To what extent do you attach importance to time? Everything we seem to do appears to be done in a hell of a rush. I think I probably speak on behalf of quite a lot of colleagues here. When you are voting on chunks of amendments of a rather technical section of some rather technical bill, the chances that we are giving it proper analysis are pretty slim, to be honest. Some will-I am looking at Christopher Chope, who I know does-but some of us probably don’t give it the scrutiny we should. If that is a problem, how can it be resolved?

Daniel Greenberg: You have identified a solution yourself. It is all about time, but it is also about at what stage in the process the time is allowed. Generally speaking, I think we are allowing it at much too late a stage. As you say, the assumption that the Lords have the time and ability to pick up everything is clearly not true. The other problem is that by the time it gets to you, you are dealing with a finished product-an animal that has been created. It is very difficult to turn a giraffe into a hippopotamus without breaking bones. The Whips have a limit on the number of bones they wish to have broken because each broken bone is a potential debate and a potential vote. So if you have the wrong animal, you are basically stuck with it.

I come back to the issue I mentioned before-turning squatting into a criminal offence. Clearly, in one sense it is urgent; as a matter of social policy, it is urgent. In another sense, it is very important. Is it so urgent that it could not have been preceded by a Law Commission report for two years, by some other kind of commission report for two years, looking at all the potential consequences, good and bad? I don’t know; I am not a politician. Maybe it is so urgent, maybe it did have to be put through in that way. However, if it did have to be put through in that way-I doubt it, but if it did-let’s at least do it knowing that because we are putting it through that fast we probably have it wrong. So let’s have a planned system of post-legislative scrutiny that will pick up the errors and not just say, "Well, we got it through, the vote is done, it is all over. We got away with it again. The Lords did or didn’t pick up some stuff later on. We got away with it," put it away and forget about it.

The issue is about time and it is about where you give the time. I think the time needs to be before you draft a bill, while you are drafting a bill engaging people from the outside, not so much necessarily during the parliamentary process; let’s accept that Parliament is not a forum in which a lot of technical scrutiny can be given to difficult technical subjects. Then afterwards, proper scrutiny, proper checks that it has worked and an ability to come back if it has not.

Q4 Mr Chope: Thank you for your paper. I agree with almost everything in it. Do you know of any legislature that has a better way of doing things than we do?

Daniel Greenberg: Even if I had had notice of that question I might have found it difficult to give you really good examples, because most of the ones that I have had and have current experience of have the luxury of being very, very small, so they can do things in a relatively informal way. I think informality is the keynote here. I feel you may be able to give yourselves more ability to depart from the script than you sometimes do. No system you devise is going to be right for every bill. What worries me about the idea of inventing a new committee, for example-I know I am jumping around a bit, Mr Allen-is that that again will become a hurdle that you have to meet for every bill. For some it will work very well, for some it will not work very well, but it is a fixed system.

I would like to think that you would start with a bill and think, "Okay, what are the challenges? How difficult is it? What sort of a mechanism do we need for it?" long before it becomes a drafted bill. I do know of legislatures where they can do that. I am often consulted long before something is sent to the drafter. I am consulted on how a bill should be packaged and how they should begin to prepare it and how it should involve people with a view to facilitating its passage, and we are talking two years before.

So I would not give you a specific other legislature and say, "Do it like they do" but I would say that the ones that I have seen that work well work well because they have the luxury of informality and are able to devise a new system for each time.

Q5 Mr Chope: In paragraph 2.2 of your evidence, you say you are worried that setting up this Legislative Standards Committee could be seen as a substitute for addressing the problems directly and it could come to be used as an excuse for inaction rather than as part of the solution. You mentioned this Legal Aid Bill, and I think a number of us are concerned about the amount of legislating that was done in the very short space of time without anybody being able to get a handle on what was going through.

If I could ask you a general question, how do you think that process could have been improved? Do you think, for example, that there is a case for saying that a carry-over should have been permitted? In a sense, it was all concertinaed right at the end of a Session, and the excuse was that we had to deal with it by Monday otherwise Her Majesty was going to be inconvenienced and so on.

Daniel Greenberg: With apologies for slightly ducking both of your first two questions, carry-over always makes me nervous because, as Mr Hart said, it is such a political issue. If we were talking about a commercial product, I would agree with you absolutely. My answer to your second question would have been yes. I am nervous because I am conscious that the end of the Session is one of the few checks and balances that still remain within the system and for you as politicians to decide to give that up in the interests of taking a little more time over legislation is a very tricky call. I would be nervous about saying yes to that.

If you want me to stick my neck out a little bit more, I think the answer is, no, don’t carry over but don’t wash up either. Say, "Time’s up. It clearly was too long, too difficult, too portmanteau for this session, therefore we look forward to seeing it again in a few weeks’ time". But I acknowledge, as Mr Hart says, this is an entirely political process and I speak only as a technician.

When I started in government more than 20 years ago, it was more common than I think it was towards the end of my time to have proposals simply being sent back internally within government because of not being ready. You are confronted with things where the department say, "Basically, it is nearly ready. Here are 5,000 amendments to make it actually ready". But when you decide to say as a result of that, "We are just not letting it through" it becomes very difficult, particularly for a portmanteau bill where you are told, "We have this that you need, we have that that you need, people are waiting for this section, they are waiting for that section". Are you really going to pull the plug on the whole thing? I am telling you what you know much better than I do. These are political judgments that are very hard to make, but at the end of it someone is waiting for the legislation who is going to have to live with it.

Q6 Mr Chope: Going back to the example of the Legal Aid Bill, who do you think should be held responsible for that? Is it Parliament’s responsibility that the bill came forward in a bad way, is it the Government’s responsibility? Under our constitutional arrangements, who do you think should take the buck for that?

Daniel Greenberg: Within the context of this Committee, I have no difficulty at all in saying that you are responsible-indeed, I would say even this as a Select Committee of the House of Commons and the House of Commons is responsible because, as Mr Hart says, it may be tempting to say, "Down the passage they will also look at what we have to say", but once it leaves here you have signed off on it and when it comes back with 90 pages of amendments and you let them through, you have signed off on it. That question I do not need to duck. You are responsible.

Q7 Mr Chope: Do you think we as a legislature should be insisting on more sunset clauses, for example? You have referred to post-legislative scrutiny. That would not be much use unless you were going to control the legislative changes arising from that, which would still belong to the Executive to control.

Daniel Greenberg: I am strongly in favour of sunset clauses, partly for that reason, partly for the very closely related reason that ministers very often justify policy by reference to essentially temporary considerations-"We have a huge problem with people squatting in London. We have an issue that has to be tackled". Again, I am expressing no judgment about the politics of this at all: it may be true or it may not be true, but even if it is true it is an argument at best for rushing through legislation for dealing with an immediately urgent problem. It is not any argument for rushing through legislation that will sit on a statute book for 20, 30, 40 years and deal with changed circumstances without ever being looked at again.

I think a sunset clause is a fantastic way of ensuring that people have to come back and look at whether the circumstances are the same. How has it worked in the meantime? You are not going to get your sunset clause debate if you have-as we used to with the Northern Ireland legislation, where you had to come back and debate it every single year or every period and you had to brief the minister on how it had worked in the interval, because if you didn’t you wouldn’t get your extension. I am very strongly in favour of them.

Q8 Mr Chope: Final question. How do you think MPs can be held to account for this? You say it is our responsibility, and I agree with you-the buck must stop with the legislators. But how can we be held to account? We were told, for example, by the Prime Minister before the general election that he was very much in favour of allowing MPs the freedom to move amendments to try and improve bills, but what has happened in practice is that everything is politicised-even the most modest amendment is regarded as an issue of confidence for the coalition Government. So that is very difficult. How do you see parliamentarians being able to break out of this yoke that is preventing them from doing what most of us think is our core business?

Daniel Greenberg: I agree about the politicisation of the process. Mr Hart impliedly asked whether it was more common in the old days for amendments to be accepted where they were not intended to be hostile amendments. Certainly that is my impression. It is a purely anecdotal impression, but yes. I don’t think it was a point of dishonour to accept an Opposition amendment; indeed, I think it was the reverse. With good ministers it was a point of honour that you came out saying, "I really feel I have done my job as a parliamentarian today because I have facilitated a backbencher, from whichever part of the Chamber, in doing his or her job". I think some of them wore it as a badge of pride. I think there are political and institutional reasons why that has changed and it certainly is not my job to lecture you on those.

The second part of your question is: how do you get out of it? Well, possibly one way is by enhancing the constituency side of the pressure by engaging, as I said before, organisations and groups that have real expertise to offer. A tiny bee in my bonnet, a little mini-rant, is that backbenchers sometimes seem to be slightly nervous of saying who has briefed them. This has changed a little since we now have written submissions to the Public Bill Committee, so you can often see where an amendment has come from in effect, but there is no formal way of registering that your amendment is on behalf of an organisation.

Of course, backbenchers are your own people and you stand up for yourselves, but I think you could use more effectively than you do, if I may say so, the fact that you have backing from people who really know what they are talking about when you stand up and debate with ministers in the Public Bill Committee or in similar arenas. Ministers do listen to that.

As I said, I see my colleagues now preparing to have to deal with something about to fail and getting on the phone to MPs and peers, saying, "Do you realise how badly this is going to work?" When they stand up and perform in committee, when they have the time to do it, they don’t tend to say, "So and so told me this is going to happen and so and so told me that is going to happen" in the way that you do, for example, at Question Time. You stand up and say, "This is a letter from my constituency post bag, Mrs So and So and Mr So and So are worried about this". You do not do that enough on technical issues. If I have any helpful answer to your last question it is, yes, engage support from outside the House in facing up to ministers. I think you could certainly be doing more of that.

Q9 Chair: Daniel, isn’t the problem-the elephant in the room, as they say-the fact that Members of Parliament are members of the legislature and they are also members of the supporters’ club for the Government, or the anti-Government club, and therefore there is a dual pressure on an individual? So it is not a matter of seeing what we know to be right and getting on with it; there is a permanent dichotomy while we do not have an effective separation of powers between the legislature and the Executive.

Daniel Greenberg: Well, you don’t have a formal separation of powers but you do have an informal separation of powers and it is becoming, if I may say so, a little more formal as committees like this begin to be recognised more as-if I may put it this way-career options for politicians. This is being talked about openly in the House. You have always had politicians who regard themselves first and foremost as parliamentarians. They are not always beloved of governments, but on the whole those who have built up a reputation as really believing in Parliament get a lot of respect from their front bench, and one sees this in the time they are given and the way they are approached.

I wonder whether you really need to give up quite so readily and say, "Because we are all part of the club" because different members of the club behave very differently, and I think if it is going in any direction it is going more towards that. I think you have younger Members of Parliament who are at an earlier stage in their career deciding that they possibly are more parliamentarian than party political, and I think that is only to be welcomed.

The second part of my answer is, fine, at the end of the day, like I said, do you care or don’t you? If you care enough as parliamentarians to say, "Our loyalty to the Government is secondary to our loyalty to Parliament when we are passing legislation and we simply must not pass legislation that we cannot warrant to our constituents as being good or bad because we haven’t got the foggiest what it is about", then do it. I don’t believe membership of a political party stops you from doing that.

Q10 Chair: No, but there are two cultures and you are trying to serve two cultures as a Member of Parliament. That is undoubtedly true. If I may just give you one personal example. As a backbencher, in amending the Criminal Justice Bill-I think it was around 2002 or 2003-I proposed various amendments on the back of my experience as a constituency Member of Parliament and made significant changes with the then minister’s consent and with all-party consent. It did not require votes to extend the Sentencing Guidelines Council to non-judicial members or to allow the testing of 16-year-olds for class A drugs if they were arrested on an acquisitive offence. These are sensible things that were driven by a lot of interest outside that I was a conduit for. There were a number of other questions. I was not then put on a Bill Committee for three years, having achieved those things that I thought were absolutely what a backbench Member of Parliament should do.

So in a sense, as well as the divided loyalties because of two cultures coming together, there are also penalties that are exacted on people who stand out as individual parliamentarians. Yes, sometimes your colleagues give you respect, but I can say-we had a little discussion before you came in about writing in the Whip’s book when you are sitting on the front bench-as someone who has been in that seat as well, often the view is, "These people are a complete pain, we wish they would go away. How do we discipline them?"

It is not quite a matter of giving up or not seeing the possibilities. It is a matter of the fact that the institution that we are meant to be holding to account dominates us as a force, and that makes it rather difficult.

Daniel Greenberg: Okay, but take your example and turn it on its head. You mentioned the Sentencing Council. Let’s say that, as a result of the changes you made, a policy of rehabilitation has worked its way more effectively into sentencing policy than it would without it. When you retired from politics, you would probably be able to be prouder of that one achievement, if that was the only legislative achievement you had made, than most ministers would be able to be of the 50 bills that they had shoved through without really knowing what was in them. So I don’t take your example as a story of despondency; I take it as an example to your colleagues. If the result is that you all have a shot and the Whips do not like it, they have to put someone on Committees so other people will come on, and if you all do the same thing then you will find that everybody ends up doing it. It is about culture.

All right, maybe, Mr Allen, you were a little bit ahead of your time and maybe your colleagues did not back you up so maybe some of the ones who were put on committees after you were a bit quieter and less inclined to make improvements. But hopefully this is now where you send the message to everybody that that is the way it should be and the Whips shouldn’t have people to choose from who are going to sit there and do nothing. Again, having worked with a range of Whips over the years, I know that many good Whips genuinely welcome people who get involved in things that they know about, have briefed themselves about or are representing people about. So I think even if that is all you achieved, it shows how it can be done.

Q11 Chair: I would like it not to be a one-off but to be a way of life and a culture of making legislation better, that 650 or 600 MPs felt that was their primary duty. Nonetheless, I take your point.

I have one other question before I ask Andrew to come in. One of the things that I think the Prime Minister deserves most congratulations for is a fixed-term Parliament because that allows some degree of certainty, not least for Parliamentary Counsel but also those who plan the timetable. It allows a greater degree of certainty than the old "there could be a snap election at any time" culture that we have come from. We have not had the first full fixed-term Parliament yet, but do you agree with that sentiment? Do you think we should be exploiting the fact that we do have a known beginning and known end in a way that we have never had before and that should facilitate better planning of legislation?

Daniel Greenberg: Again, as I said before, I don’t think those are the beginnings and the ends. The beginning for legislation should not be an introduction of the bill-it should not even be the introduction of a draft bill, the presentation of a draft bill, because that is still a draft elephant and its basic bone structure is settled. It should be the policy commission, the policy process, something more than pure consultation, which, as I say, can be very passive. That should be the beginning and that should be part of the planning.

The departmental Select Committees should be asking, in my opinion, not what bills are you bringing forward next Session or what draft bills are we seeing next Session but what proposals are you working on now that you are thinking might become bills in three or four years’ time. That is the beginning of the process and then we will think about the start of when the thing is introduced. I see the time for the bill in here as actually not the most important period. It comes in, it is here for a few weeks and it is out, and then people have to live with it for decades. Too much focus, in lots of different ways, is placed on what goes on in here rather than all the stuff that goes on beforehand and all the stuff that ought to go on afterwards.

So five years fixed-term, five years not fixed-term, you know more about this than I do, all of you, but am I expecting it to make a lot of difference? No, frankly. How many big important bills have been lost in a surprise wash-up in my time that I saw? Very, very few. How many have pushed through in a planned wash-up? Lots, and that is something that again I don’t think should happen at all. To me it is not a big issue, but you may be right.

Q12 Chair: Excuse me, Andrew, I will just do one more.

I do not think that we are disagreeing. You are saying the process itself is much more important than the time limit, and I take for granted that is true. But once you have settled on a new process, to know when you can start the process inside and when it finishes allows you-I mean, Roy Stone, permanent secretary to the Whips Office-he has a more grandiose title than that-sits down and I am sure he plans much more than the next parliamentary year. I am sure that he has a view about some of the big things that are going to come in, and that is a moveable feast.

The closer you get to today, the tighter and less flexible that becomes. So if you can plan for a five-year Parliament, you are giving yourself a little bit more leeway and that allows some of those process things that you are talking about, which I tend to have a lot of sympathy with, to come into play more effectively. We could, for example, have had a very serious discussion about parliamentary boundaries and alternative votes in the way that we were not able to do because we have to do this quickly, we have to get it going, this is a big priority. If we had said, "Stop the music for a second; we have five years to do this. We must deliver the Government its bill but what shape is it going to be in? Let us take the first six months to really look at this very carefully"-I am leading you terribly, but I am trying to get your opinion.

Daniel Greenberg: I hear all that, and of course I agree with all of it; I even, like you, Mr Allen, believe that the Whips plan further ahead than next week. I have always, like you, believed that they have a 10-year plan and I am sure it always gets stuck to. However, I am worried that, again, you over-formalise things and "legislation should not happen because we have been planning to have a bill about X in the fourth Session of the coming Parliament".

It should happen because there has been a growing social issue, a growing problem and it has been addressed by the appropriate kinds of policy development organisation. They have come up with the view that it cannot be dealt with without a certain amount of legislation, and it should be a process where you are sometimes taken by surprise. Sometimes the reason why bills get full of nonsense is that we have announced a big bill, we are going to have a big bill about this, and then you go to the department and say, "What are we going to do?" They say, "There isn’t very much that needs to be done" and it gets full of stuff that does not need to be done at all.

So yes and no. Yes, I think some things need planning in advance. Will the five-year fixed term give you a greater ability to plan in advance? Yes, it will. Some things do not benefit from planning in advance and are harmed by being planned too far in advance. Is there a danger that things will become too rigid and therefore be harmed? Yes, there is.

Q13 Mr Turner: The answer to the question appears to be some things go down one route and some things go down another and we may know beforehand which things we are planning to take fast and which ones we are planning to take more slowly. I can’t quite work out which proposals are passed through and which are taken rather more slowly and gently.

Daniel Greenberg: Are you asking me in terms of classes of legislation?

Mr Turner: Yes, I think I am.

Daniel Greenberg: Perhaps this is the time for brief rant number three on the subject of there being no such thing as technical legislation. Will you allow me a brief rant about that, Mr Allen? At the end of the day, as I say in my submission to you, political importance and practical importance do not always coincide; in fact, they very often don’t. I think the difference is this. Some legislation needs to be prepared very, very slowly because it is complicated and difficult and needs to be got right at a practical level. All the things that I have been talking about until now would apply to that kind of legislation.

Other legislation is not complicated or difficult to prepare but it is politically incredibly sensitive and it is, as you were saying, Mr Allen, something where you know you are going to have to have a long and careful political debate about it, as with voting systems. That does not need to be prepared very carefully because it can be sometimes very easy to draft but it needs a lot more handling at your end.

So the question is: how do you get effective guidance as to what kind of legislation needs to be prepared laboriously before it comes to you and what kind of legislation needs to be handled laboriously once it gets to you? I would say, back to your departmental select committees-I think they are the places where you can probe. I say this deliberately because, as Mr Chope rightly said, if you can avoid creating another six committees I think that would be a good thing. You have an effective committee for every single policy area that has the ability to discuss with departments, decades in advance if you want to, what their plans are. I would say that is the point at which you can begin to decide into which class the legislation falls.

Q14 Mr Turner: Are you suggesting-I think you are-that there is stuff that these committees are doing that gets in the way of their making decisions about legislation?

Daniel Greenberg: No, I don’t think that. I am suggesting in addition to their agenda.

Q15 Mr Turner: What I am really saying is, is there time? All these committees are full of things we want to do with a very small amount of time to do them and something would have to go if you are putting something else in. That is my fear.

Daniel Greenberg: Okay, if that is the case, do I think that it is worth dropping an inquiry or two in order to be sure that legislation, coming from a department on a particular issue, has had the scrutiny from you at the policy stage? Yes, I think it is worth it.

Q16 Mr Turner: Another issue is this one of stuff brought in at the last minute, usually in the House of Lords. Could that not be made less dangerous if it had a limit of, say, two or three years-not the whole bill, but certainly the bits that are brought in at the last stage? Then they would have to bring it through again in the form they wish to make permanent.

Daniel Greenberg: If the question is building on Mr Chope’s question about sunset clauses and saying should you be imposing more and shorter sunset clauses on legislation that you know was passed particularly fast with a particularly large number of amendments, I would say yes. I think that builds on my answer to Mr Chope earlier.

Mr Turner: Thank you very much.

Q17 Sheila Gilmore: One of your suggestions was that bill teams might be kept together after the bill becomes an Act. How do you see that working, given it is just the political Executive that is responsible for legislation, not civil servants?

Daniel Greenberg: Can I address the "how" in a minute? Can I just do a little bit on the "why", because I think they do feed into each other? My answer earlier to the Committee about what do I think is the key to this was when you all care enough it will be resolved.

That feeds back into the Civil Service as well. I have a fear that sometimes the individual civil servants who are working on a bill don’t care enough about how it is going to operate because they know it is going to be someone else’s problem. That is only human. It is in no way meant to be a criticism of them as civil servants; it is an observation about human nature. If it is going to be my problem, I care about it more than if it is going to be someone else’s problem.

Yes, of course, there is a distinction between the Executive and Parliament and you are not directly responsible, you can’t give instructions to departments about how they are to structure these things. But you could indicate that, for example, when you are doing your post-legislative scrutiny of a particular Act, you would like to meet again civil servant X by name, who you discussed the policy with before the bill was introduced, even if they have moved on in their responsibilities, to discuss how they think that particular thing has developed under the Act as it was passed.

That is one little example directly to your question of how you might achieve something like that, because then clearly the briefing within the Executive would have to follow the questioning by the committee, and civil servants would know, "I’m going to be called back in a year’s time. They’re going to ask me how this thing has worked". I think that would focus minds a great deal.

Q18 Simon Hart: That goes back to an earlier comment I made; it is connected to it, but not identical. It has been suggested by some that perhaps one way of improving the overall standard is a statement of compliance. You have to meet a certain pre-agreed standard. Is that something that has any realistic chances of succeeding, given the system that we have at the moment?

Daniel Greenberg: I think people would love it and I think it would be a very bad thing, because anything that is just tick-box-"Right, we have to get through this committee, we have to get our certificate of compliance, we have to get this"-is a way of forgetting the first golden rule of legislative drafting, which is that there are no rules of legislative drafting. There is no such thing as precedent, there is no such thing as manuals, there is no such thing as, "Does this match this standard? Tick off this box". It is, "Is it fit for purpose?"

If there is a theme in what I am saying today, Mr Allen, I think it is about reconnecting the technicalities with the policy, going back to your policy discussions in select committees and not saying, "Right, that one is all over, that was the policy development stage. Now we have a new angle called a bill". A bill is just policy on the paper. Anything that looks at technical compliance and says, "Now that bill is fit for purpose", and divorces it from the policy, is not the real world. That is not the way legislation works.

Q19 Simon Hart: You mentioned earlier on that you were very keen on sunset clauses. It seems to me as a result of all these conversations that the only real way of ironing out some of the difficulties that we have highlighted, or that you have highlighted, is by having some sort of sunset clause written into pretty well every piece of legislation. If we look even at the last two or three years, most of the embarrassing problems that confronted the previous Government towards the end of its tenure, and this one in its early stages, have been the unforeseen consequence. Is a sunset clause the only way we can get round that?

Daniel Greenberg: It may not be the only way but, as I said before, I strongly support them. One should never imagine there is a real distinction between primary and secondary legislation. It is all law. I still go to prison if I break it, so it is entitled to the same consideration.

The Government have increasingly introduced review clauses into secondary legislation that implements European Union legislation. They are not sunset clauses because they don’t carry a cut-off, but they do require formal review of the legislation at particular intervals and a report to Parliament, so that is another way of doing it. You could have reviews. I was advising people on a recent bill and pressing them to put statutory reports and reviews into the bill, and they got a few of them in. I think that is great because it means that you come back and you have a formal look at it after the event.

Q20 Simon Hart: It is all very well just having a formal look at it, but what are the criteria, what assessment is going to be made? Once that assessment is made, does it compel anybody to do anything about it other than shrug their shoulders and say, "Well, it didn’t work quite as we anticipated"?

Daniel Greenberg: Yes, it does, for the reason that all of you have mentioned this morning-practical politics. You get your provision about making it an offence to squat because the minister says you have to do it. You vote, whipped vote-you have to do it. Fine. Then there is a year. During that year you get constituency correspondence. You get a pile of letters from people saying this has gone wrong-exactly what you were saying, Mr Hart, unintended consequence number one, unintended consequence two.

Going back to what I said to Mr Chope, you get a reputable organisation coming to you and saying, "We can build up more anecdotal evidence for you and turn it into a paper". Come the debate in a year’s time, and it is just a formal review, that is true, and the minister says, "What am I facing? I am facing a barrage of my colleagues and parliamentarians from all sides of the House with solid political reasons why this does not play well politically because it is flawed, because it is wrong. Therefore we have to do something about it". It turns technical issues into genuine political pressure and helps you to bridge the gap that Mr Allen was talking about between the political process and the Executive.

Q21 Simon Hart: But my point is this, and you have absolutely put your finger on it. The problem is it is political pressure rather than technical pressure. If I put a different example to you-the legislation on handguns. By everyone’s recognition, that did not turn out the way people wanted. The people who mainly suffered as a consequence of the legislation were legitimate handgun owners, and criminals carried on getting access to handguns in much the same form they always have done.

Politically, that was very difficult. There wasn’t a clamour of people saying, "Relax the laws on handguns"-in fact, quite the opposite. So we sat there with our arms folded basically, watching a piece of legislation not work because of political pressure. My question is if you are putting in a sunset clause, surely it should compel people to correct it, even if in correcting it there is an unpopular political decision to make.

Daniel Greenberg: I totally agree with that. But, again, let’s imagine the minister’s briefing before the debate a year later on the formal review. The Minister comes in and he or she has a pile of backbench correspondence. That is the backdrop against which the meeting with the Executive then takes place and that is serious political pressure.

I hear what you say; that is not always going to be enough and it is not always going to be in the right direction, but it is going to work, I would say, more often than not and at least it gives you something. Before the event the minster says, "This is our policy". You say, "I’m worried about it". The minister says, "Tough, I know more about it than you. We are going to do it". What do you have? You have no ammunition. A year later the minister says, "This was our policy" and you say, "We have all had 600 letters from constituent organisations. It is not working". The minister does not want to be presiding over legislation that is shown not to work and the minister will be saying within that briefing, "We have to give an undertaking to change it because I can’t turn to my backbenchers and say, ‘I agree it is not working and I don’t care’". It comes back to caring.

Q22 Simon Hart: Yes. One last question, a slightly different one. Do you think we should approach constitutional matters differently? Do you think, in terms of the scrutiny and time devoted to constitutional measures, that we should look at them in the same way as we do other measures, or should there be an enhanced or upgraded form of scrutiny that we can apply?

Daniel Greenberg: Law is law is law is law. A temporary order to close a road for six months during the course of the Olympics-local legislation, technical, minor, of no interest to anybody so it does not need to come to Parliament, does it? But what if I am the newsagent on the corner whose business is dependent on the footfall and I think they could have closed a different road and I am going to go bust if they don’t? Law is law and very often the more important that it seems at the political coalface, so to speak, the less important it is to people out there. I believe your responsibility as legislators is to the citizen who is going to abide by your legislation and you have to be able, in one way or another, to warrant every piece of legislation that you are responsible for to your constituents and others as being fit for purpose.

Simon Hart: Thank you.

Q23 Chair: When we were at school, we were told that there would be the presentation of a bill, second reading, committee stage, House of Lords and then Royal Assent. Daniel, what is your O-level syllabus? How does the line run in the ideal way of having proper scrutiny of legislation? What are your stages?

Daniel Greenberg: I could have done with notice of that one as well-indeed, so much so that I might write to you with some thoughts on that. When I do so, however, Mr Allen, I fear I will be boring and repeat myself. It would not start at First Reading, but years before.

Chair: Excellent.

Daniel Greenberg: I think, joking aside, the most sensible thing I can do by way of answering that question is to agree to write to you.

Chair: Please feel free to do it graphically with some visual aids, which I think actually might help.

Q24 Mr Turner: The legislation that we passed within six months or whatever it was-the AV boundaries legislation-was done so quickly, we were told, because it would not go through before the next election. It was impossible. I think we could probably have given it, as we now know, an extra six months to get that through and maybe that is enough for what you, Mr Chairman, are suggesting, although I rather suspect it is not. You could not do the work before because someone else was in government. There really was a race to get the legislation through and still they managed to change some bits of it for my benefit, among others. I come back to ask the same question, really. How are you going to ensure that it gets through under a Conservative-Liberal Government?

Daniel Greenberg: Okay, two things. First, you can do the work before; there is no reason why policy work should not begin before a government comes to power-indeed, the civil service resources are often made available to some significant extent, not entirely, in relation to policy development before a general election. Obviously, that is at the discretion of the Cabinet Secretary at the time, but it certainly has been used, I think fairly importantly.

But there is no reason why any political party should not be engaging with people. There are plenty of people out there who are happy to help. As I say, I genuinely get frustrated by seeing how many people are desperate to help at policy formation stages, who would be perfectly happy to come and talk to any political party about the formation of their policy, whether or not they have a bill in the programme. I don’t believe that you couldn’t start-I don’t mean you personally, or indeed your party specifically-much earlier.

My second comment in relation to your question is, yes, it is true that sometimes there are going to be things that are going to have to go through fast, and maybe not even as considered as you would like, because they are urgent. But, if I may say so, just keep a rather closer eye than I think you do at the moment on how many legislative provisions are sneaking in through with them as the door shuts. Every time you are told a bill is needed, how many provisions in the bill are actually needed now? If the answer is that there is a real-world need to have clause 63, fine, then let’s have a bill with clause 63 in it. Every time that shutter comes down, how many other provisions are sneaking through? I would encourage you to look at that.

Q25 Mr Chope: In paragraph 6.3 of your paper, you talk about this issue of the use of purpose clauses. You say that, in the light of developing judicial approaches and other changes, you think this should be evaluated. Obviously, this is quite a technical subject in its own right, but can you tell us where these developing judicial approaches are to be found and whether you think that it would be for Parliament to try and introduce these things or whether it is a matter for interpretation? Exactly what did you have in mind?

Daniel Greenberg: Yes. There was once a very strong presumption that legislation was passed in pretty much perfect form. It did not include mistakes, presumptions of meaning, presumptions of correct law, but they are changing. They are changing quite fast, and one of the issues for an inquiry into the quality of legislation is how much more use is being made of what is called "the Inco rule".

I will give the correct citation in due course or include it in my letter, but in the Inco case the conditions were laid down for the courts to correct an error in primary or secondary legislation, and that rule appears to have been invoked increasingly. The courts are showing less deference to the form of legislation, and I think rightly so. The courts are partly influenced by the fact that they have to be increasingly teleological as a result of the amount of legislation that is transposed in the European legislation, so there is no point applying a hard letter approach to our law if the underlying legislation requires, under European law, a purposive construction. But that is only part of the influence. They are generally applying a more purposive construction and you have to meet that by exerting influence over the purpose that they identify. The way that you meet that is by ensuring you set out the purpose in a clear statement of purpose on the face of the Act.

So it is about matching the increasing judicial willingness to apply the law in a purposive way, in a contextual way, by increasing the ways in which you show the context and the purpose in an authoritative way on the face of the bill itself. I think that is one way in which you ensure that some of the technical imperfections that you suspect may lie underneath the surface can at least be construed, should it come to it, in the light of your avowed clear social policy purposes.

Q26 Mr Chope: In that way, there are two ways. The legislature would get more control, because we would be able to stop the judges going off and interpreting for us, and we would be setting out more clearly what our intentions were and hoping that would be followed through.

Daniel Greenberg: One can put it even more positively than that. One of the problems with skeleton legislation is that not only does Parliament not know what is going to be done with it when you pass the enabling powers, but sometimes you are not giving the courts any guidance as to how you want those enabling powers to be exercised. Again, in working with interested groups in relation to bills, as well as putting in review clauses, one of the things that I encourage them to try and get in, sometimes successfully, is statements of purpose.

So if the minister says, "This may look a wide power, but don’t worry I need it because of X", let’s say, "Good, the Secretary of State can do this if he or she is satisfied that having regard to X it is necessary to do A, B and C". Yes, it is about exerting control in relation to the legislation that you pass, and I think it is just another technique that we have touched on today. There are other ways in which you can exercise control and make sure that the legislation is construed in accordance with the policy intention that you have when you pass it.

Q27 Chair: One last question from myself, Daniel, and then I think we are just about done. Over the next 18 months or so, we have the advent of a House Business Committee. That will build on the Wright report on the improvements necessary in Parliament. All parties are committed to bringing this forward, but at the moment they are discussing how that can be done, and clearly the battle that I referred to about executive and legislative authority will play out. Looking at this as a technician, do you see that as an opportunity to do some of these things that you have raised with us this morning?

For example, could a House Business Committee decide the direction, as Andrew pointed out, in which a bill goes: should it go to a select committee, a special committee, a standing committee? Do you see the advent of the House Business Committee as being an aid to all of us in getting better legislation?

Daniel Greenberg: Responding as a technician and not passing a political judgment, absolutely, yes. As I said earlier, anything that means you have fewer rigid structures that have to apply, not inventing new classes-"This is constitutional law, this is not constitutional law"-but having more ability, as you would in a commercial situation, to match the process to the product on an individual situation, is only going to be good.

Q28 Chair: In the Wright Committee, we were very keen not to offend government, because government could stop any proposal, of course, and we came up with the cliché of "the Government must get its business, but let it be good business". I guess, in a way, we are going to "the Government should always get its bill, but let it be a good bill".

Daniel Greenberg: The Government is entitled to pass the legislation that it wants to pass. You are obliged to the citizens but also to government to make sure that, when it passes, it is going to work. That is not an obstruction of government, but part of your responsibility to government.

Chair: Excellent-a very good point at which to conclude. Thank you so much for your time today. You have been illuminating, as always. Thank you very much for coming and being our first witness.

Daniel Greenberg: Thank you.

Prepared 25th May 2012