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Earl Howe: My Lords, subsidiarity on this issue would not be helpful. In essence, this is a single market issue, and the single market is something that our food and agriculture industry is keen to maintain and build upon. We have to ensure that amended proposals come forward, and that those proposals are based on sound science and take full account of the special conditions which apply in the UK. Those messages have been received in Brussels loudly and clearly.

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The Legislative Process

3.8 p.m.

Lord Nathan rose to call attention to the Hansard Society report on the legislative process, and in particular to consultation on and preparation of legislation, its passage through the House of Lords, and to the lapse of time between the passage of legislation and its implementation; and to move for Papers.

The noble Lord said: My Lords, the debate arises from luck in the Ballot. I am especially glad that it has, because I have witnessed with increasing concern the fall in Parliament's public esteem in recent times. I put down the Motion relating to the processes of legislation not because I have any deep knowledge of the subject upon which so many of your Lordships have great experience, but because of that concern which is, I believe, shared widely.

Worries about the volume and quality of legislation and the processes and procedures by which it enters the statute book are of long standing. The committee under the noble Lord, Lord Renton, examined them and made recommendations in a report published in 1975, but little was done. I am delighted to see him now recovered from some serious ill health, and taking part in the debate. That report was followed of course by the Hansard Society's report of a major investigation by a commission chaired by the noble Lord, Lord Rippon, which was published in 1992. I should like to express my great sorrow that due to his ill health, as he informed me, he is unable, as he would have wished, to take part in the debate.

Our most ancient institutions, which are deeply embedded in our history and culture, are under close scrutiny and attack. That is not surprising, in view of the fundamental changes during the last 40 years or so in cultural, social and political attitudes and modes of thought; a greater change in so short a period, it has been said, than in any other period in history.

My purpose in putting down this Motion for debate is to consider the broad issues in the hope that they will not be confined to your Lordships' House but will extend into wide public discussion. In view of the large number of speakers on the list today, I shall confine myself to two issues. The first is the involvement of the public in the law-making process by pre-legislative consultation. The second is the development of law, which is not mandatory on government but permissive, by the use of commencement provisions exercisable without limit of time. These derogate from the authority of Parliament, whose prime function is to make law.

As the Hansard Society emphasised in its report,

    "All the processes by which statute law is made and published should be governed by the needs of users and not by the needs of those who pass legislation".

It follows that involvement of the public in consultation prior to the introduction of legislation is a key requirement. Increasingly, the interest and energy of those active in matters of public concern confine their talents to support single issues by participating in pressure groups and campaigns. Consultation engages them in the processes of legislation. Furthermore, their expertise will help to formulate good law which will

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work effectively. A good example of success is the Human Fertilisation and Embryology Act 1990—a subject of great difficulty—which was enacted after extensive public consultation.

There are many means for such consultation. The most formal is by a Royal Commission. I had the privilege of serving on the Royal Commission on Environmental Pollution for some 10 years. Part VI of the Environmental Protection Act 1990, which relates to genetically modified organisms, did not give rise to the controversy which might have been expected because, I believe, of the Royal Commission's report on the subject and the related consultation. Public disquiet could have stultified all activity in genetic engineering. I suggest that the more extensive use of Royal Commissions and departmental and inter-departmental inquiries should be promoted.

The less formal consultations on the environment agency legislation—that is now Part I of the Environment Bill—and the publication of draft clauses as well as the willingness of the department to discuss them are further examples of how these matters should be dealt with. The Second Reading of the Bill, which takes place tomorrow, will demonstrate whether that is so.

There are, alas, all too many instances of bad legislation. Bad legislation diminishes Parliament and alienates the public. An example is the provision of the Criminal Justice Act 1991 substituting a predefined penalty for discretion of the court. These provisions, which were central to the policy of the Act, proved unworkable and generated such strong public hostility as to require repeal within seven months of introduction. The Child Support Act 1991 generated serious hardship when applied and public hostility resulted in the changes announced in December 1993. Certain provisions in the legislation relating to football stadiums had to be withdrawn—more accurately, not brought into force and abandoned—within two months of Royal Assent.

It is a matter of some anxiety as to whether cuts in the Civil Service have given rise to these errors and whether the cuts presently in view will have an adverse effect on the quality of advice given to Ministers and the quality of legislation. Will the noble Viscount the Leader of the House comment on this in his reply? The statute book is littered with abandoned legislation which should be repealed. It has been suggested that such legislation should be retained in case it is required at some unknown future date. If it is required later it should be reintroduced.

I turn to commencement orders, which are now found in most Acts, by exercise of which alone their provisions or any of them are brought into force. There is normally no time limit within which an order must be made and, therefore, a provision may never come into force. Legislation is thus now not mandatory on government but permissive. For instance, after long and exhaustive debate, Section 143 of the Environmental Protection Act 1990 and associated sections relating to contaminated land were enacted. Now, nearly five years later, they have not been brought into force. The Government have

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decided to abandon them and to start afresh, as they have done in the Environment Bill the Second Reading of which is to take place tomorrow.

I am told that we coined the expression "optional legislation" in the 10th report (1984) of the Royal Commission on Environmental Pollution in the context of delays—which at that time ran for some 10 years—in bringing into force Part II of the Control of Pollution Act 1974, which was central to the purpose of the Act. We used it to describe the practice by which the unfettered discretion of Ministers over the commencement of key provisions of an Act was used effectively to frustrate Parliament's intentions in enacting the Act.

Various suggestions have been made to limit the period during which a commencement order can be made. It could be provided that the provisions of an Act shall come into force a specified time after Royal Assent unless previously brought into force by order. That was suggested in the 12th report (1993-94) of the Delegated Powers Scrutiny Committee. Alternatively, it could be provided that the provisions of an Act shall lapse if not brought into force by order within a specified time. That is favoured in Australia and is to be found in its legislation; for instance, the Fisheries Legislation (Consequential Provisions) Act 1991. In Australia it seems to be recognised that the Administration should not include provisions in Bills which cannot commence within a reasonable time and that existing provisions which have not been brought into force for years should be repealed.

In the Memorandum from the Chairman of Committees to the Select Committee on Procedure of the House, dated 1st December 1994, the idea was canvassed that the Government should report to the House from time to time what legislation has yet to be brought into force, giving reasons for delay and an indication of the Government's intentions. This will not do. The present parlous situation, whereby the authority of Parliament has been undermined, would continue.

Your Lordships may well ask what provisions in recent Acts remain to be brought into force under orders of this kind. So I asked the Government about Acts passed between 1989 and 1992. (I gave the noble and learned Lord the Lord Chancellor notice that I intended to refer to this matter today). He replied in writing stating:

    "It is not possible other than at disproportionate cost to identify specific provisions of Public General Acts enacted, with commencement provisions, between 1st January 1989 and 31st December 1992 which have not yet been brought into force. However the percentage of such provisions not yet in force is, I believe, around 1 per cent.".

The point is, which 1 per cent.? It is very odd and worrying that government cannot find the answer—and nor, therefore, the public without disproportionate cost. Will the database, on which I believe the Lord Chancellor's Department is working, help and, if so, when can we expect that to mature?

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I was prompted to put down this Motion for debate because of my concern that Parliament should remain the bulwark of freedom and the source of sound law on which that freedom rests. My Lords, I beg to move for Papers.

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