Publications on the internet
CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 74-iv
House of commons
TAKEN BEFORE THE
Political and Constitutional Reform Committee
Ensuring standards in the quality of legislation
Thursday 5 July 2012
Dr Ruth Fox
Professor Dawn Oliver and Mr Mark Ryan
Evidence heard in Public Questions 149 - 202
USE OF THE TRANSCRIPT
Taken before the Political and Constitutional Reform Committee
on Thursday 5 July 2012
Mr Graham Allen (Chair)
Mr Christopher Chope
Mrs Eleanor Laing
Mr Andrew Turner
Examination of Witness
Witness: Dr Ruth Fox, Hansard Society, gave evidence.
Q149 Chair: Welcome, Ruth. I saw you the other evening, but I did not get a chance to speak to you at the Hansard reception in Speaker’s House. It was across a crowded room. It is nice to see you. It was a nice event, as always. Do you want to make some sort of opening statement about standards in the quality of legislation, before we ask questions?
Dr Fox: I will make a few comments. You have received our written evidence. The research on which we based that evidence and our book, Making Better Law, which I imagine a number of you will have seen, was based on research from 2009, and we published it in late 2010. We have done some limited work, it has to be said, but we have done further work looking at the last Session in terms of further bills that have come forward. We might want to talk about any improvements there have been, or not, in the last Session.
We recognise, as a Society, that the quality of legislation is in many ways highly subjective. It emerges from a political process so it is subject to negotiation. As a consequence, it is never going to be perfect. Our contention in our work as a Society has historically been that policy is subject to the partisan battle but, before you get to that, there are ways, in terms of procedure, that you can improve the quality of the product nonetheless. The focus of our work has been on how to improve the process and procedure to improve the product.
We recognise that procedural change alone is not going to be enough. If there is going to be change, there also needs to be cultural and attitudinal change in the approach to legislation, both in the Executive and in Parliament. What we have tried to do through our work, which I hope comes through in our evidence, is to develop ideas around what those procedural changes might be to try to give some effect to bringing about cultural and attitudinal changes and to providing some kind of restraint on the Executive’s desire to push as much legislation through as possible. That would be useful. That is the perspective that we come with.
Chair: Thank you.
Q150 Mr Turner: It seems to be assumed that Government will try to push extra work through constantly, almost. Do you think that is the case for this two-year-old Government?
Dr Fox: It is difficult to say, because we have only had one Session, albeit one of two years. You find at the beginning of every Parliament for a new government that you get a higher volume and a desire to legislate quickly. Inevitably, because of the way in which our system operates, you get bills that are prepared quite quickly and in haste. It is difficult to be absolute about it, but you can see the pattern of approach, for example, in the way in which the Academies Bill emerged very quickly, without any official policy consultation, immediately after the election. It went through the House very quickly, and there were concerns, including from the then Chair of the Select Committee on Education, about the haste with which that legislation went through.
If you look at the size of the bills that are going through, the Conservative party, when it was in Opposition, would talk strongly against the number of large Christmas-tree, omnibus bills that the previous Government took through Parliament after Parliament, yet we are seeing some of that happening again. The Localism Bill had to be published in two parts, for example, with a lot of disparate provisions.
There are issues about consultation not having concluded in that bill in respect of social housing provisions, yet those provisions were in the bill and had gone through four public bill committee sessions before the conclusion and recommendations of the consultation had been published by the department. You are seeing those kinds of issues again in this Parliament, so there are some similar problems.
Q151 Mr Turner: So the Coalition is making the same mistakes as were made by previous governments?
Dr Fox: Yes, there are many of the same mistakes but, in fairness to them, I would add that for a number of big bills the Government has provided more time at Report stage, for example. There have been more two-day Report stages than in previous Parliaments, where that did not tend to be the norm. The Government are trialling explanatory statements on amendments, albeit perhaps not on the bills I would like them to be trialled on. Nonetheless, there is a willingness to consider that kind of change.
At the end of the day, if the policy process is flawed, there is only so much that procedure can do. The Health and Social Care Bill illustrates that. If the policy problems are there, there is only so much that the procedural changes can accommodate in terms of improvements, no matter how long you spend discussing it.
Q152 Mr Turner: So the problem, in a way, is not what would a legislative standards committee do, but what would the Government do to make it possible for a legislative committee to be involved?
Dr Fox: That relates to our point about cultural and attitudinal change. It has always struck me, particularly when we do our research seminars and so on, that there are people in government who recognise some of the problems, but they will make a strong defence about why they are unavoidable. There are people in Parliament who are concerned about the quality of information that is provided to support bills, some of the drafting issues that they are concerned about, the lack of time and so on. There is a whole set of problems that parliamentarians have.
You then have parliamentary counsel who will have concerns, perhaps about the quality of drafting instructions, the timescales for the bills that are being produced, and there is a debate about the degree of complexity or simplicity in drafting that takes place, yet there does not seem to be any kind of forum for the parties to the process to have a dialogue or discussion about it. I do not think that a committee inquiry of this kind is the forum for that dialogue to take place, but there needs to be some kind of mechanism or means to have a dialogue about what the difficulties are and what difficulties parliamentarians find when scrutinising bills.
There is then a discussion with counsel, bill teams, and ministers about those problems. I do think some of them can be ironed out. Sometimes, however, some of them cannot be ironed out: because the difficulties that parliamentarians have with drafting issues, for example, might arise because of an expectation in the law and the fact that there is precedent, and there are issues about how it might be legally interpreted. Sometimes you get problems of drafting for popular parlance, which does not necessarily help with the drafter’s other audience, which is the judiciary and lawyers.
If we could have a broader dialogue to bring together people to talk about those issues and talk them through, you might be able to cut through some of this. The legislative standards committee alone is not a mechanism for that, but you need to have that dialogue before setting up such a committee because that is the mechanism by which you would engage in what the standards are.
Q153 Mr Turner: So it is not that we need a committee operating a certain standard by getting involved in all the bits of legislation; it would be more about having an examination of a particular bill, trying to make it better and trying to make some changes? I would have thought that that would be more useful than having a tick-box exercise, as it has been described. Do you agree?
Dr Fox: Yes. We certainly do not want a tick-box exercise. I acknowledge that, if there is no cultural and attitudinal change, there is a risk that it could become that. At that point, you have to say, "We’ve trialled this and it doesn’t work, so we will stop." I think where it would become a tick-box exercise is if you agree a set of criteria and standards, if ministers or departments have to certify them and if there was just a certification process.
It is about trying to push upstream and changing attitudes in Whitehall about the process and to think a little bit more about Parliament’s needs in the legislative process. It is about your ability to scrutinise and what you need at your disposal in order to undertake effective scrutiny. It will inevitably depend on the committee’s membership, how the members conduct it and their approach. If it is seen as a mechanism for guerrilla warfare to thwart the Government’s legislative programme, whichever government it may be, it will not work. If that is the approach that is taken, it will not work, and we should not start.
If you can get to a situation where a committee of Members is engaged in these issues, looking at them in the broad sweep, bill to bill, and engaging constantly with departments about criteria that have been drawn up in advance mutually with government officials and ministers, about what your needs are, what their needs are, what counsel’s needs are, and if an agreement is reached at least about minimum standards of levels of information-as we outlined in our evidence, there are a number of questions you might want answered about the proposed legislation-you end up with a situation where, upstream in Whitehall, they have to think, as they are beginning the process of developing the bill, about what will happen when they get to the final stage. The evidence in the House of Lords-purely on delegated powers, it has to be said-is that the Lords Delegated Powers Committee-from my engagement with government officials, is that they are thinking about the needs of that committee quite upstream in the process. We want to get a situation where they are thinking about other things as well.
Q154 Mr Turner: Last question. Tell me if I am wrong, but I get the impression that you feel it is something that we could do-it would not be a decision that these things are piled up throughout the legislature, and it would not be doing it the same as the Executive, but we could look at one or two bills to start with. It might be this Committee-no, it was not this Committee. It was like a committee of three parts, with Members here, and officials-
Dr Fox: There is a process that has to take place before you form a committee. The committee should either be of Members of the House and/or a bicameral committee. That would look at the context of every bill. There is a process to go through before you get there, which is about deciding what the standards are, what the criteria are and what it is you want in terms of quality of legislation. What are the minimums? What is the expectation that both Houses should have of government in terms of the production of the legislation? I am talking very firmly about the technical process, not about policy. Policy is for the scrutiny process, which is why you are here. It has to be more about the procedural and technical quality sides.
Parliament will clearly have a view. You will have a view about what that ought to be. You will have a view about what your colleagues find difficult in scrutinising bills, and about the lessons to be learned from different types of bills. I don’t think it is going to work if you suddenly decide what these are and then insist on the Government doing them. The way to ensure it is not a tick-box exercise is to engage government in a dialogue about it. That is not to say that you should settle for a lowest common denominator approach, but I do think a dialogue is important beforehand in order to reach a mutual view about the quality of legislation.
Whatever you decide has to be translated, on the Executive side, into their guidance on developing legislation-the Cabinet Office guidance that goes to departments about how bills should be put together. There is a two-stage process: there is the formal committee structure and the pre-discussion and dialogue.
Q155 Tristram Hunt: Is that how it differs from pre-legislative scrutiny, in that it is going to be pushing the culture upstream? How would the Legislative standards committee differ from one doing pre-legislative scrutiny?
Dr Fox: Pre-legislative scrutiny will look at policy in a way that this wouldn’t. There is an issue, for those bills that do get pre-legislative scrutiny, about how to manage the procedural side. You would have to think carefully about the interface there. You also have to think about the interface of a legislative standards committee with other committees that are looking at some of the technical aspects, such as delegated legislation.
Our concern is that, while there has been a little bit more draft legislation, it is still not the norm. The legislative standards committee could take a view that if something has had pre-legislative scrutiny then its passage through the legislative standards committee is likely to be quicker. One of the questions that the legislative standards committee could ask-the approach to the criteria and the questions it should ask the Government about its preparation-is, if a Bill has not had pre-legislative scrutiny, why not?
Q156 Tristram Hunt: Where does it fit in the timetable?
Dr Fox: We have outlined a number of options. It depends on whether it is a single-House committee or a bicameral committee. You could do it pre-introduction. My concern would be whether, for a House of Commons committee, that might lead the Government to a position of strategically thinking about possibly more Lords starters for the more difficult bills. What do you do about legislative standards in relation to Lords starters? That would be an issue.
You could have it between First and Second Reading. You would need the advice of the clerks on the technicalities of that in terms of Standing Orders, but that would be an option.
Q157 Tristram Hunt: That becomes quite politically difficult, does it not? If a Bill is introduced at First Reading and goes to the legislative standards committee, is given a D and has to be reworked, few Government business managers would be in favour of that. That would then, one hopes, lead to a degree of culture change over the years.
Dr Fox: Yes. That is the balance to be struck. Where do you want to position the restraint? If you have the process pre-introduction, it is likely to attract less attention and it would be easier for the Government. There is then a risk that they are not going to take it as seriously. It really depends on what the sanction is. We suggested that there should be a report by the committee: it is either recommended and goes through, albeit you might list a number of concerns about it, or you say that there are some fundamental problems with it and we don’t think it should go through in its current state unless X, Y and Z have been remedied.
The Government could have the option of taking it away and remedying it, perhaps quite quickly. It comes back and it then goes through. The ultimate sanction is that the committee says to the House, "I’m sorry, this just is utterly inadequate, we think there is a fundamental problem that is going to cause difficulties here that ought to be remedied" and the House has to take a view.
The protection from the Government side is always that there will be a vote and it has the option to whip it. In a sense, it does not ultimately thwart their programme. It is an embarrassment factor and a reputational factor, and it could cause difficulties in that sense. There is a balance to be struck about where you want it in the process. Both could work, but one would be more serious than the other, if you like.
Q158 Tristram Hunt: As you suggest, there would be no barrier to whipped votes on the committee?
Dr Fox: No, that is the incentive to the Government to be an active participant in this. You need to think about incentives to government, and why it should engage productively in this process. Understandably, from a business manager’s perspective, the Government’s concern will be that this is just going to be used as guerrilla warfare-this is just going to be used to thwart our legislative programme. Our argument is, "No, it is not, that is not the intention, you can get this through but you might have to suffer a bit of reputational damage". They get that with bills anyway, even without it.
Q159 Tristram Hunt: The upside is that you would have more parliamentarian involvement in the process. Shouldn’t elements of this have been dealt with upstream before it even gets to First Reading? Is it not a problem of the Executive and officials, rather than parliamentarians?
Dr Fox: Yes, it is, but the problem is that it is not a partisan issue, it does not matter which government it is; you end up with the same difficulties. The problem is that, because they can do it, they will do it. Parliament is in a position where at the moment it has to, in effect, accept every piece of proposed legislation that comes to it in whatever state it is in and consider it at that point, regardless of the acknowledged inadequacies there may be in policy preparation, consultation and drafting. Our argument is that Parliament can maybe think about trying to stem that a little bit and push it upstream by making them think harder and work harder for the bill before it gets to this place.
Q160 Tristram Hunt: Is it your vision for it to be a requirement for every bill? There will be certain bills that need to be done in a day. In that case, will they just be whipped through? Would this stage allow that to be avoided? Or maybe they are the ones that particularly need it.
Dr Fox: Yes. That would be one of the criteria and questions that would have to be looked at. One of the things that the legislative standards committee would look at is, is the fast-track proposed for this bill actually necessary? I gave evidence to the Lords Constitution Committee a few years ago on their emergency fast-track legislation inquiry. If you look bill to bill, it is quite rare that every Bill that is pushed through on a fast track really needs to be on as fast a fast track as it is on. You might want to push it through at some speed, on a shortened timetable, but it is very rare that it need to go through as quickly as it does. That is one of the things that the committee could ask.
Yes, there is an issue that if it is going through on a very quick process, in a day or a couple of days, then serious questions have to be asked about the process. Often in those situations you have to revisit the legislation later anyway. One option might be that the committee could say, "If you want to put this through, could we have something like a two-year review clause or a sunset clause for consideration?" It might do that or you might choose to leave it to the scrutiny process. That would be a dialogue to have about how best to deal with emergency legislation.
Q161 Mrs Laing: If one takes the basis that a legislative standards committee is a good idea in principle, what steps could be taken to ensure-this is probably a difficult question, but I will put it this way-that the committee was doing a serious piece of non-partisan consideration, rather than party-political? Might I put it to you that anything that happens in Parliament is political with a small "p", and that much of it is party political? How can we ensure that a legislative standards committee does not just become another step in the party-political balancing act, the seesaw of party against party?
Dr Fox: That relates to the dialogue that takes place beforehand, the decisions that are made about the breadth of the criteria that that committee is going to look at and the questions that it will be able to ask. This House has committees that have the proven capacity to look at things on a technical basis. To ensure that the dialogue has taken place and that there is mutual agreement between the Government and the Executive about what those standards should be, you would reflect them in the work of the legislative standards committee, and they have to reflect it in their guidance to bill teams, ministers, drafters and others upstream.
This is where I think it is important that it doesn’t get into the policy substance. I accept that it would have to be carefully worked through with the drafters and the lawyers about where you get into technical issues of drafting and where those hedge over into policy, but the clear remit of the committee would be to err on the side of the technical, not the policy. Once you get into the substantive nature of the policy, that is when you are going to get into the political battle. If you get there, then it will not work. It is the drawing up of the criteria that are important, and the agreement of them beforehand.
Bluntly, if there isn’t an agreement about what those standards are, I would say don’t start with a committee. If you cannot agree on them, I don’t think the process is going to work. It will simply be Parliament and the Executive butting heads politically all the time. If the committee were to end up in a situation where it was constantly at odds with the Government, where it was constantly engaged, not in a partisan battle but in an Executive-legislature battle, it has failed in some ways or the process has failed-government and Parliament will both have failed in the process-because there hasn’t been the dialogue, there hasn’t been the agreement in order to reach an accommodation about what the standards are.
Q162 Mrs Laing: That was helpful. I will follow up with a specific example. Pre-legislative scrutiny is still fairly new, and it is arguable whether or not it is a worthwhile stage in the legislation process. There is a bill before the House right now, a very controversial bill on House of Lords reform. It had pre-legislative scrutiny by a joint committee of the two Houses for eight months or more. One of the criticisms in the joint committee report was that clause 2 of the draft bill would have no effect in law. The Government have now brought forward a second bill, or a new version of the bill, where they had rightly, and to their great credit, completely changed clause 2. That would suggest that the work of the pre-legislative scrutiny committee had been worthwhile. I say as an aside, Mr Chairman, it is a pity that they did not listen to the committee on all the other clauses, but I am now making a very political point, whether it is party-political or not-
Chair: Do you think there will be a question soon, Eleanor?
Mrs Laing: The question is one of making a distinction between criticism of parts of the bill that certain politicians do not like for political reasons and those that are technically deficient for legal and legislative reasons.
Dr Fox: I do not underestimate the difficulties of the process. That is why I say that dialogue needs to take place and there needs to be mutual engagement and agreement before you initiate the committee. If you do not have that agreement, if people cannot decide at least at a minimum level where that line is, it will not work. I think that line can be defined.
It goes to what do you want to look at. What is it that members find difficult about bills in terms of the scrutiny process? Setting aside the big policy issues and the divisions, there are bills that have inadequate impact assessments or not enough information supplied for them. You do sense with some impact assessments it is a cut-and-paste job. There are wildly different approaches to them with departments. Is there a way to use that committee to drive up the standards of those so that Members are provided with a better evidence base? Having a discussion about what information you want to be provided about bills, from your perspective, that augments the impact assessments and effectively creates a business case. I do think there is an argument for rationalising the impact assessments and the explanatory notes to create a coherent business case that is reflected more widely across departments in the approaches to the information that they provide to you. There could be justifications for why a bill has not had pre-legislative scrutiny or does not have Keeling Schedules.
Some of the questions that you might ask or some of the criteria that might apply to the model set of standards might not apply to some bills at all. In that case, it is a check box that, no, that is not relevant to a particular type of bill. In other areas, it might be, and they would have to give justification for why they are doing what they are doing in process and procedural terms. That is where you get away from the policy questions.
Where there is this difficulty about policy and process is in the drafting and understanding how it is done. Are they being too particular in the drafting? Is it too long-winded or too complicated? That is an issue about the complexities of drafting, different audiences and the difficulties that you get there. I am not sure that a legislative standards committee alone can resolve that. I do think it would be useful if the committee could, both beforehand and during the ongoing process, provide a forum for a dialogue about why certain bills are drafted in a certain way. I sometimes think that Members think that parliamentary counsel are being difficult or are trying to hide issues in the policy. The alternative argument is that there are good reasons in law, based on what has gone before in the particular area of law, that need to be drafted in a certain way. That does not necessarily make it easy to scrutinise, but have to be done because of the way in which our legal system works. We should not overplay what this committee can achieve. It is not going to create perfect gold-standard legislation. There are all these complexities that come into play. It is about making government think and work a bit harder for their bills.
Q163 Paul Flynn: The Dangerous Dogs Act 1991 is regarded by most people as a legislative atrocity. It was described by the parliamentary counsel who gave evidence to us as being technically well drafted. There were two Bills, one in 2001 and one in 2006 in the legislative and regulatory reform system. The second bill in 2006 was enacted to explain what the 2001 bill meant, because it was incomprehensible. As an example, the Dangerous Dogs Act 1991 might have been well drafted technically, but politically it was a piece of hysterical nonsense. Would you regard the other bills-the 2001 bill-as being examples of bad legislation?
Dr Fox: What is bad and deficient, and what is quality, is quite a subjective view, and does go to issues of politics. On the technicalities, was it deficient? As I understand it, there had been a government consultation on dangerous dogs beforehand, before the hysteria and the media focus on the couple of attacks that had taken place. The Government already had a consultation and policy process in train to consider what they might do to deal with the dangerous dogs problem. It was their decision. They chose, albeit-as one can understand-under media pressure, to put a bill through, I think, in a day, heavily guillotined at that time because it was pre-programming. Effectively, it was exhibit A in the emergency legislation library. I think Counsel do think it was well drafted, given the policy problem that they were asked to resolve.
If you want to think about how this committee might have applied to the Dangerous Dogs Act 1991, I do not think that a committee can solve a fundamental policy problem at the heart of what the Government was trying to do. In many ways, the Secretary of State wanted to achieve a very simple thing, which was to effectively eradicate pitbulls. The problem in law, as I understand it, was that he was introducing a piece of targeted regulation and when you get into targeting you get into problems of ambiguity, definition and compliance. Counsel struggled to define pitbulls in legal terms to avoid those issues of compliance and of which dogs would be covered, and that was where the difficulties lay. In a sense, it was not counsel’s problem; it was a policy problem.
Would this committee work? Because it is a piece of emergency legislation, if the decision was that every bill was going to this committee, the committee would ask, "Does this need to be on such a fast-track? You have been considering the policy issue for some months". The complaint of the then Home Secretary was that everybody had agreed with what he wanted to do-all the stakeholders, the RSPCA, the Kennel Club and so on, had wanted this-but when the bill was produced they turned tail and deserted him. They were engaged in a broad policy objective, and they wanted that, but when you produce a bill and give legislative or legal terminology to what you want to achieve-the bill was produced and Second Reading was four days later. They pushed everything through in a day. People did not have a real chance to engage with the detail and complexity of the drafting to address the policy problem. This committee might work, by saying. "We don’t think it should go through in a day, for X, Y and Z reasons, we want it to have more time". Would that have resolved the drafting and policy problems? I do not know. I am not a lawyer, to be blunt, but it might at least have had an opportunity to suggest that it should have a little bit more time.
Q164 Paul Flynn: That was a very full reply, and I am grateful for it. What was absent from that reply was the mood, what was happening at the time. There was a tabloid campaign to terrify the nation that, unless we had legislation, a large percentage of the children of the country would have their faces bitten off by dogs. Those who had the temerity to stand up and suggest that was not a sensible approach were excoriated by the Minister by saying, "You are in favour of young children being savaged by dogs", and they were made to look foolish, and that was the lead in the tabloids the next day.
What you are making the case for is slower legislation, rather than speeding legislation through, which is what we were told we should have. Clearly, this was reacting to a tabloid campaign, and governments want to be hooked up to a drip feed of adulation from the tabloids every day. It is part of the government addiction, and it is a novel characteristic of modern parliamentary life. Your explanation was a very full one. What do you think we should do to guard against legislating in haste?
Dr Fox: If you had the committee, it would take a view on the fast nature of the fast track. There ought to be consideration of provisions, so if the Government wishes to push a bill through quickly then you might have an automatic review clause after X amount of time, you might have sunset clauses and so on. Whether that is done through the legislative standards committee engaging with government and persuading them of that, or through the scrutiny process, as sometimes happens, is open to debate. If a government wants to legislate in haste, then it should have to make some concessions for the House to come back and consider it, to ensure that the implementation of it has been as was intended. Clearly, with dangerous dogs it was not.
Q165 Paul Flynn: We asked parliamentary counsel for an example of good legislation and bad legislation, and he suggested that a good example was the Defamation Bill, which I believe was actually drafted by a member of the House of Lords. That is rather surprising, perhaps. Do you have a list of atrocious legislation and brilliant legislation that you want to show us?
Dr Fox: I focus more on where the problems are than on what is good. The problem with the good is that you do not hear about it. It is like good news that way.
I will give you some examples of issues that were problematic, referring to my notes. The Coroners and Justice Act 2009-I do think there is an issue about big omnibus Christmas-tree bills, where everything gets shoved into the department’s opportunity to legislate, and you end up with a whole set of disparate provisions that Members find difficult to scrutinise. Are you talking about legislation that is difficult and deficient in the sense that it is difficult to implement from a legal perspective, or is it difficult for Members to scrutinise? Our focus has very much been on what is difficult to accomplish in this place in terms of scrutiny. Omnibus or Christmas-tree bills have lots of disparate provisions. One example would be something like the Coroners and Justice Act 2009. I will not list the many provisions that the Act included. You only need to look at the long titles of the bills to see that.
Inadequate internal consultation, which can lead to late amendments: again, the legislative standards committee might help here, in that one of the required checks on the Government would be about whether it had done its internal consultations early enough. It may sound surprising, but DCLG did not consult other relevant departments on the Planning Bill in 2008, those being the Department for Business, Enterprise and Regulatory Reform and DEFRA. As a consequence, they ended up with 70 pages of late technical amendments on Report, because they had not done their own internal consultations. That is extraordinary in some ways.
I mentioned the Localism Bill, where the department brought forward a bill and the consultation on the social housing provisions had not yet concluded. That just seems to be an inadequate process in those terms. This is one more for the lawyers, but a lot of things are raised because of duplicative powers or remedies. One example is the Violent Crime Reduction Act 2005. Many people felt-similarly to what you were talking about in relation to the dangerous dogs legislation-that there was this impetus to legislate in response to press issues, rather than about the real legal need. You could look at the inappropriate delegation of powers in relation to the Legislative and Regulatory Reform Bill-the "abolition of Parliament Bill"-and public bodies and so on. There are a number of examples.
Chair: I am conscious of the time. Are you finished on this, Paul?
Paul Flynn: Yes, I am finished. Thank you.
Q166 Mr Chope: I have a quick point about dangerous dogs. At the time, Alan Clark and I were the two ministers who had Rottweilers, and there was a big move to try to include Rottweilers within this legislation. It was not the whole problem that there was inbuilt ambiguity as to what we were defining as a dangerous dog. Although it is easy for counsel to say, "Well, this was perfectly drafted", how can any bill be perfectly drafted if it has an inbuilt ambiguity in its provisions?
Dr Fox: In a sense, it cannot be perfectly drafted. They obviously did not say this, but I would argue that a draft can only be as good as the policy that underpins it. If the policy is fundamentally flawed, the draft is going to be flawed. I do not see that as avoidable. It is the policy process and what you want to accomplish. In this instance, what they wanted to accomplish was relatively quite simple, it seems, from a public perspective. Translating that into a legal remedy, for the legal mischief that they were trying to resolve, was quite complicated, and goes to that definitional problem. I am not sure that it was a good draft if you can’t then implement it effectively.
Q167 Fabian Hamilton: I have two questions, but I will be brief. Just following on from the dangerous dogs legislation, I was not here at the time, but we all remember the media fuss about it. Another type of legislation that is often rushed through in emergencies is anti-terror legislation. Following the 7 July 2005 attacks, there was very urgent legislation to try to counter that, partly through pressure from the media. It was controversial, it went through in haste and then to everybody’s shock and surprise in 2008 that legislation was used against Iceland to freeze the assets of its banks here in the UK. I have to say that still has reverberations. How can we avoid that? I suppose that we can’t avoid governments using legislation for things that it was not intended for, but how can we ensure that legislation is much tighter, especially when it refers to taking away people’s liberty on accusations of terror offences? There was the whole 42 days thing, which was lost in the House.
Dr Fox: In that case, a number of clauses and schedules were introduced very late, at Report stage. There are issues about scrutiny at Report stage in the time that is given. What happens if the Government does bring forward completely new provisions at Report stage, or substantially revises them? I do think there is quite a strong case for recommittal. There is a question of where you draw the line regarding how much amendment and so on, but if they introduce something completely new to a bill I do think there is a case for recommittal, probably not of the entire bill but of those provisions for consideration. That is one way.
A second way might be of less value but, where they make amendments, explanatory notes might help, and I think we have to test that out and see. Recommittal is one of those cultural and attitudinal things. If they know that is going to happen it makes them think and work more for the provisions, and they can’t just push it in easily. If they want to accomplish something like that, something is required of them to do it a little bit more than at present.
Q168 Fabian Hamilton: Dr Fox, do you think there is any way of Parliament preventing governments misusing legislation, using it for something for which it was never intended?
Dr Fox: You have the opportunity for post-legislative review, which we have not seen a lot of thus far. The commitment is to review after every three to five years from Royal Assent. There is an argument about where you do it, but that might be a means for Parliament to revisit it, something like that, and saying, "That is an inappropriate use".
Q169 Fabian Hamilton: Could your proposal in your evidence, that a legislative standards committee should be able to call ministers before it to account for their department’s preparation of a bill, be used for post-legislative scrutiny? In using that power, how could you avoid such a committee becoming a political tool, rather than a quality assessment?
Dr Fox: The same issues about the approach to avoiding the legislative standards committee becoming a political tool apply at the post-legislative stage. You have an evidence base. We have talked about the Government having to present an improved business case for its legislation at the outset to the committee. The post-legislative scrutiny committee can reflect on that later, on whether it has lived up to what the intention was. I don’t think that resolves it in terms of anything that comes in at Report stage. Time has passed and it is gone. However, I do think you could use that as a means to reflect more broadly on whether the Government has accomplished what it intended. If there are completely new areas that are not within what Members thought was the scope of the bill, then you can have a dialogue. However, you are getting into policy, so I think that is going to be more partisan, that is going to be a more difficult process than the earlier upstream stage.
Chair: Ruth, I am so sorry, we have gone over time. There is a lot more still to say, but you have the option of dropping us further information, which we would be very pleased to receive. It is nice to see you again, and thank you for coming along. Feel free to stay with us.
Examination of Witnesses
Witnesses: Professor Dawn Oliver, Emeritus Professor of Constitutional Law, UCL, and Mr Mark Ryan, Senior Lecturer in Constitutional and Administrative Law, Coventry University, gave evidence.
Q170 Chair: Good morning, Dawn. How are you?
Professor Oliver: I am fine, thank you.
Chair: It is nice to see you. Mark, welcome to the Committee. Thank you for sparing your valuable time to talk to us this morning. Would you like to start with a general introduction?
Professor Oliver: Perhaps just a few words. I very much welcome the interest your Committee has in legislative standards, because I think they are extremely important and there is a real problem about them. Picking up on the evidence that has been presented to you that I have read, a major advantage would be brought about if the work of a legislative standards committee or something of that kind had a big effect upstream in government, so that when policy and bills are being prepared those in charge know that they will get into trouble downstream and they will not have any excuse if they know what the standards are. That seems an excellent proposal.
There are obviously questions about a legislative standards committee straying into merits and politics. On process, the requirements for proper consultation and provision of information are excellent, and that should not be problematic, but it is important not to be too chary of getting into substance or merits because obviously there are matters to do with human rights compatibility, international law requirements and constitutional issues that are important and substantive. Often, they are not that political. I think it would be a pity if those in charge of scrutiny felt that they could not go into that sort of thing because it looked too much like substance.
Mr Ryan: I will just explain who I am. I am a lecturer in constitutional law, so my main responsibility is teaching a cohort of undergraduates the principles that underpin the British constitution. On top of that, I undertake research in the area of constitutional reform. In the last couple of years, I have produced a couple of conference papers on the Fixed-term Parliaments Act 2011 and the Constitutional Reform and Governance Act 2010. My main interest is House of Lords reform.
In terms of the remit of a committee, quite a lot could be done at all three stages-the pre-legislative stage, the passage of the Bill through Parliament and the post-legislative stage-but the key, although it is quite difficult, is about trying to rebalance Executive-parliamentary relations. The power is with MPs to do something about the situation. There is that clash between the Government and Parliament.
I would say this because I am a constitutional lawyer, but I contend that constitutional law and constitutional bills are of a higher order and I think they should be treated differently. I would like to see something like a joint committee on the constitution, which would look at constitutional bills of first-class importance in draft. That is what I would like to see, and that is my suggestion.
Q171 Simon Hart: Following on from that specific point, and from the earlier evidence you heard from Ruth Fox, how would you define the constitution? Is there a watertight definition that you have in the back of your mind?
Mr Ryan: There is no sharp dividing line between public and private law. It must be possible because we have a House of Lords Select Committee on the constitution that looks at constitutional issues. Government business managers make the decision, don’t they, in terms of a bill being referred to a committee on the floor of House? It must be possible.
I would say that a constitutional bill is one that relates to the structure of government, its powers and responsibilities and how it is controlled. It is also about how the individual relates to state institutions. That is a broad definition. It could include criminal law, as criminal law is about the relationships between the individual and the state. That is essentially how I would define a constitutional bill. It is often said to be like an elephant; you know it when you see it. I am sure if we had a joint committee, they would know it when they saw it.
Q172 Simon Hart: I presume you would say that they would be able to identify the proportion of a Bill that was constitutional, but not a constitution bill itself. Do you agree, Dawn?
Professor Oliver: Yes. We need to distinguish bills or provisions in bills that are of major constitutional importance. There is a convention that they are taken in a committee of the whole House. Robert Hazell of the Constitution Unit analysed what had happened to various bills that might be of major constitutional importance over a period of time and there was not much consistency, but the system rubs along. What is different is clauses in bills that are not particularly constitutional but raise constitutional issues. No one is suggesting that every little constitutional issue should be dealt with on the floor of the House; the Constitution Committee of the House of Lords deals with those, and I think very well. There is also the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. There are committees that deal with, raise issues and ask for justifications and so on about these sort of mini-constitutional issues, if you like, but they are very important. We already have provision in the legislative process for dealing with constitutional issues, either big bills or other measures. A lot of this is done in the House of Lords, not in the House of Commons, so we should ask how the House of Commons and its committees should come in on this. I think it would be desirable if they did.
Q173 Simon Hart: That takes us back one step. Mark, you mentioned having a different process for constitutional bills and the question of whether there should be a sort of bus lane for them where they can be pursued at a different rate. Can you expand on that? Is it just a matter of timetabling and managing the sort of mundane things that are attached to normal bills?
Mr Ryan: I would like to see bills of first-class constitutional importance-not every constitutional bill-being treated differently. I would like to see them being published in draft and put before this joint committee. I had a quick look at the last parliamentary Session, 2010 to 2012, and selected three Government Bills, which became Acts that I regarded as first class: the Fixed-term Parliaments Act 2011, the European Union Act 2011 and the Parliamentary Voting System and Constituencies Act 2011. I regarded those three bills or measures as first-class and should be treated differently. They should be submitted in draft first and considered by a joint committee, because constitutional law is of a higher order.
It should be above party politics. There is a difference between a government having a manifesto commitment to do something on the environment and health and pushing a bill on that through Parliament-because the Government controls Parliament or the House of Commons-and a manifesto commitment to reform the constitution, because the constitution does not belong to the Government or to Parliament.
Q174 Simon Hart: Is that the same as saying that we should have a free vote on Lords reform on Monday and Tuesday next week?
Mr Ryan: I think that Parliament should act as parliamentarians. First-class constitutional matters are important. The House of Lords Select Committee said that significant constitutional change will outlast the Government that introduces it. There is a lot to be said for that. If we look at the Human Rights Act 1998 and the Constitutional Reform and Governance Act 2010, it should be above party politics. Obviously it isn’t, but it should be. I would like to see them treated differently, because they are of a different nature or order. They are about the structure of the state and will outlast the particular political party that happens to be in government that has a particular programme that it wants to pursue.
Professor Oliver: I cannot give you an answer about a free vote on the House of Lords Reform Bill. That is very political.
Q175 Simon Hart: Of course it is-that is the problem. I am quite keen to hear from people who are not getting rung up over the weekend by whips to ascertain a view on the matter. I know where I stand on it, but I wonder if your vision of ending up with a better constitutional product includes a provision whereby people should not be whipped and issues should not be timetabled. Is that or is that not your view?
Mr Ryan: Certainly, I would say that consideration of the constitution should not be programmed. It is up to parliamentarians-MPs-how they process that time and they have to exercise some self-restraint. It certainly shouldn’t be guillotined. I do not think that it should be programmed, unless-this is quite radical-you could have some kind of constitutional business committee, which could agree the amount of time for a particular constitutional bill, so it is separate from ordinary legislation, because I think it is of a higher order, it is different and it should be treated differently. It should certainly not be guillotined, and I do not believe in programming.
Q176 Fabian Hamilton: Briefly on what my colleague Simon Hart has just mentioned and on the response that you gave, Mr Ryan, forgive me if I have misunderstood you or if I did not hear properly, but did you say that the constitution is not the property of the Government or Parliament?
Mr Ryan: The constitution does not belong to Parliament. We have Dicey on parliamentary sovereignty, and Parliament can pass any law that it chooses, but the constitution belongs to everybody.
Q177 Fabian Hamilton: Most of us would agree with you, but the problem, in the absence of a written constitution, is that it actually is the property of Parliament because the constitution is determined by statute, not by a document. How do we resolve that?
Mr Ryan: You could have referendums. I suggest in my written evidence to the Joint Committee on House of Lords Reform that there should be a referendum on the reform of the House of Lords-along with other people as well. This is quite controversial and radical, but I am a firm believer in referendums. I know that Professor Bogdanor is quite interested in referendums as well. I think that significant constitutional issues should be put to the people, and a precedent has been set with the vote on the alternative vote. In other countries, for example Ireland, the constitution belongs to the people.
Q178 Fabian Hamilton: Because it is written.
Mr Ryan: Because it is a codified document, yes.
Q179 Fabian Hamilton: Should we not have a written constitution?
Mr Ryan: I think we should have a written constitution, and I think that we should ask the people more than we do. My view on constitutional reform has always been that Parliament is very introspective or inward-looking, and that it does not seem to look out very often. I think it needs to engage more with the people.
Q180 Paul Flynn: Professor Oliver, I am fascinated with your contribution about the situation in Australia, in the State of Queensland and in New Zealand. Do you think the systems there have been successful in improving standards of legislation?
Professor Oliver: I do not have up-to-date knowledge about how they actually work, but in Australia, because the Senate committees have legislative standards these are now reflected in their equivalent of the Guide to making legislation and so on. It is an example of how the work of parliamentary committees will have effects upstream. Australia is quite comparable in some ways; it is a Commonwealth system, it sits in Westminster style and so on. What we can draw from that is that we can reasonably expect a government will take account of legislative standards.
Q181 Paul Flynn: Take the examples from Queensland. The majority of them seem to be protections of people’s rights, including the rights of Aborigines to their traditions and to island customs, as well as other rights that we all find commendable and which should be protected. Are you enthusiastic for the introduction of a system here where we have a list to guard against unintended consequences of legislation that departments or the Government in their enthusiasm to legislate might overlook?
Professor Oliver: I think that a set of legislative standards would provide part of a safeguard against legislation producing unintended consequences, if that was your question. I don’t think that a legislative standards committee could guarantee everything, but it would make government take account, upstream, of the implications of what it might do.
Q182 Paul Flynn: Most of the Committee had a chance to meet five members of the New Zealand Parliament yesterday and we found that a very stimulating session. One of the things about their advisory committee on legislation is that it is packed with lawyers-lawyers from Parliament and so on. Do you think that works? Have you any indication of whether that is the wise thing to build on, to have people with a specialist point of view rather than having lay people on such a committee?
Professor Oliver: I wish I had met these New Zealanders, too.
Paul Flynn: They are still here.
Professor Oliver: You know more than I do about that. The New Zealand approach is very different from what you are considering and I do not think that anyone here is seriously considering an extra-parliamentary independent body that would scrutinise bills and advise government and Parliament on them. When I wrote that article, I was looking at a range of possible ways of improving legislation. I could talk about the New Zealand one, but I do not think that is really what you are concerned with. You are more concerned with what parliamentary committees can do.
Q183 Paul Flynn: They are still in this country at the moment. They are off to Croatia tomorrow, I think. I am sure that you could pursue them there. Will you be writing another article based on how they are doing? It is great value for us to see comments on other countries, particularly ones with similar traditions to ours, and to look for models that we could recommend.
Professor Oliver: I will put that on my list of things I might do. That is not something that I am working on at the moment, though.
Paul Flynn: But it will be now, I hope. We look forward to your next report.
Q184 Fabian Hamilton: Following on from what Paul has said, one thing that struck me yesterday at our very excellent meeting with the Speaker and four of his colleagues from the New Zealand Parliament was the built-in mechanism for delaying legislation, so that it can be carefully thought about-obviously there would be pre-scrutiny. My understanding-correct me if I am wrong-is that its bills go into a Select Committee system, different from our Select Committee system, and it could take up to four months to scrutinise a bill. If that four-month scrutiny was not fully used the bill still couldn’t be passed into law in less than the four-month period. What do you think about a built-in delay to any legislation? We were talking earlier about emergency legislation, which is rushed through very hastily and, of course, we often repent at leisure on its inadequacies. We have discussed dangerous dogs legislation and some anti-terrorist legislation. Would it be one way to improve the quality of legislation simply be to have a long statutory gap between a bill being published and its being enacted?
Professor Oliver: I had not thought of that, I must say. It might be a bit arbitrary. Given we have a system of bills having to be passed within a Session, you would get nothing much coming through the sausage machine for a while. It sounds a bit arbitrary to me, I must say, but there might be other, more flexible, ways to build in delay than always four months. It is an interesting thought. I am afraid I had not come across that system before, so I do not really have a view on it.
Mr Ryan: Just in terms of timing, we can criticise a government for being too hasty but sometimes we criticise them for delaying for too long. To take the Constitutional Reform and Governance Bill, you could say that the Government took too long to respond to the joint committee’s report. By the time the Bill was produced in July 2009 it was obviously going to take part in the carry-over procedure and it was going to end up in the wash-up. There the Government was clearly taking too long. Sometimes, the Government acts too quickly, for example, Parliamentary Standards Bill and the Fixed-term Parliaments Bill. Those are two good examples. In fact, the Parliamentary Standards Bill is probably a bad example, but the Fixed-term Parliaments Bill was certainly an example of the Government rushing legislation. You have to get a balance. Sometimes we criticise the Government for being too hasty, but sometimes they are quite slow. They can be quite slow in responding to reports, too.
Fabian Hamilton: So that delaying aspect of the New Zealand system is perhaps not appropriate for us here in the UK, where there is much more traffic coming through.
Q185 Mr Chope: Yesterday in Parliament, the Prime Minister said, "What is required is swift inquiry, swift action and swift legislation", in response to the concerns about what is happening in the banking industry. Can I ask you specifically about that? What is proposed at the moment, as I understand it, is that there should be an inquiry, which will report by the end of the year, and the conclusions of that inquiry-to the extent that they are accepted by the Government-would then be incorporated in Government amendments to a bill that has already gone through this House and is making good progress in the other House. Do you think that is a good example of how to legislate, or do you think it would be better to have a separate bill to deal with the specific problem that the House is concerned about at the moment, and which will be the subject of either an inquiry of the House or a judicial inquiry, depending on what happens today?
Professor Oliver: It sounds as if it would short-circuit some of the necessary scrutiny. If the Government’s plan is to add in important new provisions at a very late stage that will not give the various committees the opportunity to do what they ought to be able to do in scrutinising, amending and making comments on the bill.
Q186 Mr Chope: As we ponder this issue as a Committee, we find that the Government, perhaps with the encouragement of the Opposition, is heading headlong in the opposite direction and proposing to amend an existing bill and use that as a vehicle for introducing this legislation.
There is quite a lot of scepticism among some members of this Committee about whether any legislative standards committee would be anything other than a tick-box exercise. Professor Oliver, you raised that issue, in a sense, and answered it by saying that you have absolute confidence that the people serving on such a committee would not use it as a tick-box exercise. How can you be sure of that?
Professor Oliver: If it was a joint committee, you would get a wider range and possibly less political-but don’t let’s get into that. There might be advantages in it being a joint committee. If the committee had however many special or legal advisers who report and draw committee members’ attention to what might seem to be weak evidence or not a very full impact statement, and indicate where more information or more consultation should have taken place, that would avoid a tick-box. What I certainly have in mind, and what I assume your Committee would have in mind, would be the legislative standards committee would say, "We have read the Government’s version of the evidence and it seems to be not very good" or whatever it is. "There might not seem to be anything in the impact statement about whatever financial implications and so on, and this is inadequate." Or they might say, "This is very thorough, very full and fine". I do not see why there should be a tick-box approach at all. The standards should be neutral.
Q187 Mr Chope: Let us compare that with what happens with the Joint Committee on Human Rights, which has a fixed set of standards, namely the human rights legislation, so it is able to say whether, in its view, the various provisions comply with that. To avoid it being a tick-box exercise, are you suggesting that there should be a detailed list of standards against which this joint committee, for example, might pass its assessment of each provision in the bill?
Professor Oliver: Yes, I do, or of the bill overall. Has the Government indicated what evidence there is in support of the view that this is necessary and that it is not covered by existing legislation? What is the policy behind this? That would lay the foundations for post-legislative scrutiny in due course. What about the regulatory and other impact statements? It could include the material that you currently get in the regulatory impact statement, it could include the human rights impact statement, it could include a constitutional impact statement and a financial one. Other committees might be concerned with matters of more substance, such as environmental impact. I am not suggesting that the legislative standards committee should get into more content, substance, merits. There are other things, such as human rights, international law obligations and compatibility with our European law obligation. Those are important standards and they are pretty neutral.
Q188 Mr Chope: What about simple things like clarity and lack of ambiguity? Wouldn’t they be top of the checklist, in a sense, because it is the ambiguity that is inbuilt in quite a lot of legislation by design, particularly EU legislation, which creates an appetite for judge-made law, takes things outside the control of Parliament, and makes it difficult for the ordinary citizen to know where they stand vis-à-vis the statute book?
Professor Oliver: Yes. That is a very technical thing. It certainly could be one of the standards. It would have to be written down as a standard.
Q189 Mr Chope: In a sense, is what I have just described not one of the most important standards?
Professor Oliver: Yes.
Q190 Mr Chope: How could you get a committee to go through a bill line by line and say, "Where the ambiguities are in this; what does it mean?" Would they not have to draw up quite a detailed report if they were going to do that sort of scrutiny exercise?
Professor Oliver: I take your point entirely. That is why I think it would be important for the committee to be serviced by legal or political advisers, which, after all, is what the Joint Committee on Human Rights and the Constitution Committee have. When you get into very technical matters, I would be a bit concerned about the extent to which the ambiguity comes out at this very early stage in the legislative process. That would be dealt with in a Public Bill Committee as well. I am not sure about the barriers to progress.
Q191 Mr Chope: You have obviously studied how Public Bill Committees work in practice. It is easy to say-and it is probably the right answer-that it is the responsibility ultimately of Members of Parliament, but issues of ambiguity in Public Bill provisions may be teased out when you are dealing with a Private Member’s Bill that is hotly contested, but in the mass of Government legislation most points of ambiguity are never really tested at the Standing Committee stage, are they?
Professor Oliver: Probably not. I have not done a big study of that so I will accept your point on that.
Q192 Mr Chope: I wish to ask about the issue of having separate standards for constitutional legislation. If that was to be accepted, would those standards be scrutinised by a general legislative standards committee or a different committee? What is your view about that?
Professor Oliver: Probably both, I would expect. The legislative standards committee, as I understand the idea that is developing, is to provide early scrutiny that will look at the question of whether the Government has admitted or accepted that there are constitutional implications in this bill, or does it fall within what should be a bill of first-class constitutional importance. Without then going into a detailed consideration of how else it could be done, it is drawing the attention of the two Houses and the Government to the fact that there are constitutional issues that need to be looked at. One would expect, in due course, the House of Lords Constitution Committee and the Joint Committee on Human Rights to look at it accordingly.
Q193 Mr Chope: How do you think scrutiny as it is at the moment could be improved? Could we add new requirements for more detailed explanatory notes?
Professor Oliver: Yes, very much.
Q194 Mr Chope: Or extra materials? What else do you think could be done?
Professor Oliver: I think that the Government should provide Parliament with information about the consultation process that has been gone through. There should be expanded explanatory notes and regulatory and other impact assessments, so information about how the Government expect the bill to work and what effect it has in relation to regulation and so on. Then, the legislative standards committee-which is a sort of threshold committee, it is not going into amendments and so on to bills, as I understand it-will report to Parliament that the information provided by the Government is defective, that there are gaps in it or that it seems to be thorough, for instance.
Q195 Mr Chope: What do you think would happen then, assuming we have such a committee and it makes a report?
Professor Oliver: First of all, one hopes that the Government would have been careful beforehand, as it knows that it might well get critical reports from the committee. Then, one would expect the members of the two Houses, who are involved in the Second Reading and the committee stage and so on, to pick up on those points, plus the Select Committees that will be taking an interest. The Constitution Committee and the Joint Committee on Human Rights and so on-and the press, of course-will have their attention drawn to any criticisms that are made about the bill or, come to that, to the fact that the bill has been given a clean bill of health by the committee.
Q196 Mr Chope: Mr Ryan, you have spoken about endorsing Lord Rooker’s idea, that you should not have starred amendments, effectively, but starred clauses, the ones that have not been scrutinised. How would that work? Sometimes they can be debated, but the key issues, for one reason or another, are not really dealt with, or are glossed over or not addressed by the members of the committee that is examining them. Sometimes it is because the technical issues relating to ambiguity and drafting are not the issues that attract the attention of the Opposition members on that committee. How would you differentiate between those clauses that had not been scrutinised at all, and had not even been discussed, and those clauses that had been discussed but not scrutinised in the way in which they should have been?
Mr Ryan: It is important to draw Parliament’s attention to those clauses that have not been considered. I think there were concerns with the Regulatory Reform Bill in 2001 with clauses not having been considered and there were definitely concerns about the Constitutional Reform and Governance Bill going through. I remember reading Hansard and I do not recall there being any mention at all of the clause concerning the Act of Settlement. I do not think there was any debate on it at all. It wasn’t a technical clause-it was just restating the law-but I would like to have seen just a little bit of discussion about it, given that it was going to become law. If it goes from the House of Commons to the House of Lords you have to identify them for the House of Lords, and draw attention to Parliament and the public to the fact that those clauses have not been considered.
On the question of whether something is technical or not, I am not sure how you deal with that. Some clauses will not be considered because they are technical; some clauses might not be considered simply because there has not been the time. Some of them are difficult to identify.
Q197 Chair: Can I just press this definitional stuff a little bit more? Mark, you talked about a higher order of law that is about constitutional stuff. Could you define that a little bit more accurately for us? There is quite a spectrum of possibilities. Where is the cut-off point between what is of the higher order and what does not quite make it to the higher order?
Mr Ryan: Do you mean first-class and second-class?
Mr Ryan: If we were to treat constitutional laws as being of first-class importance differently from those of second-class importance, we might have some debate over what exactly is first-class and what is second-class. I think there would be less debate over whether something is constitutional or not, but you might have more debate deciding whether something is first-class or second-class. It has been suggested that if it is first-class it fundamentally affects the state. A second-class or secondary constitutional issue would be something that maybe just alters the system of governance, but is not as structurally important. For example, the three examples I gave earlier are relevant. The Fixed-term Parliaments Act 2011 clearly affects the state, creating five years between general elections. It affects the ability of the individual to vote. The Parliamentary Voting System and Constituencies Act 2011 is an interesting one because I would split that. I would say that the parts concerning boundary changes are secondary, but I would consider the issue concerning the referendum to be first class. The European Union Act 2011, dealing with referendums- that is something you could see particularly in a constitution. If the measure affects the state fundamentally in a structural way that would be regarded as first class.
My vision would be to have something like a joint liaison committee to sift Bills and to decide whether or not they should be considered in draft. Then, the joint committee on the constitution would look at that and would decide whether it considered that bill to be of first-class constitutional importance and therefore whether it should be considered in draft. Effectively, it would be for the joint committee to make the decision on that.
I think we would probably have arguments on that. The danger, I suggest, is: what is the problem? Suppose we have a secondary constitutional bill that is given first-class treatment. Are the rivers going to run dry? Is the sky going to fall in? What is the problem if we make a misjudgment or there is a miscalculation? I accept that it might be difficult, at times, to decide what is first-class and what is second-class. The Government might have a very different view from parliamentarians, and academics might have different views as well. The reason I suggested first-class was that I did not want all constitutional bills filtering through the committees, because that would just be too much. I thought it would be like an experimental device to see how it works. We could try it with first-class constitutional bills. If it is successful, you could use it with all constitutional bills. I still maintain that all constitutional bills, whether they are first class or second class, are of a higher order, and they are more important than consumer laws and they are more important than environment laws.
Q198 Chair: Let me take you another step forward about when we make a decision on this. When is the definition? Do we want the definition to evolve through what is currently normal parliamentary practice and convention? Do we want to sort out all the definitional stuff before we get into the first discussion about a constitutional bill?
Mr Ryan: I do not think that you can be too prescriptive. I go back to the point I made earlier. We know that something is unconstitutional when we see it. It is the same with the constitution; you know when something is constitutional. A joint committee would know when something is of first-class constitutional importance. I do not think that you can be too prescriptive on this. There will always be exceptions. It is all about shading. I would expect the joint committee to make that decision and say, "We consider that bill there to be of first-class constitutional importance". Hopefully that should apply to only a couple of bills-to one, two or three a year-so it should not be too onerous. That is the reason I suggested first class.
Q199 Andrew Griffiths: Forgive me for my late arrival. I was asking a question in the Chamber. Mark, you have said how important constitutional bills are, and how they are more important than consumer bills and those sort of things. What is your view on the use and importance of referendums in major constitutional changes?
Mr Ryan: I believe that we should have referendums on major or significant constitutional issues. The precedent was set last year with the vote on the electoral system. I would like to see one on the reform of the House of Lords, which I put in my evidence to the joint committee. I think there should be a referendum on major constitutional issues. That is what happens in lots of other countries. They will have a referendum on a major constitutional issue. In Ireland, they have a referendum on every constitutional issue. In Italy it is optional, I think, but it is mandatory in Ireland. I would like to see them on significant, fundamental constitutional issues. As I said before, I think Parliament is too introspective and too inward-looking, and it does not look outwards quite enough. I believe in having a referendum on significant constitutional issues.
Whether you can engage the public is another matter. Having said that, I understand that opinion polls have been commissioned that indicate that the public are quite in favour of referendums, notwithstanding the turnout last year. I think an opinion poll suggested that the people would like four or five major issues each year-not necessarily constitutional issues-to be decided by referendum. I am in favour of referendums. After all, the people are the constituent power.
Professor Oliver: I am afraid I am a bit of a sceptic about referendums. I do not think I can produce a formula for when a referendum is appropriate or not appropriate, but we all know that the turnout in referendums can be low. We all know that those who vote are often taking an opportunity to express their dissatisfaction with the Government or whatever it is. There is no reason to think that the result of a referendum will be a wise result. All it tells you is that 50% plus one of the people who bothered to vote were in favour of or against whatever it is. I worry a lot about referendums being used to relieve politicians, government and Parliament of their responsibility to do what they think is wise and right or necessary, or whatever it is, for the country.
Of course I do not say no referendums. As far as devolution was concerned in relation to Northern Ireland, it was absolutely essential to have referendums. I can’t give you a formula for when it is or is not appropriate, but I am just a sceptic about it. It can provide an excuse for government, if a referendum takes place and the result turns out not to be satisfactory, to say, "Don’t blame us, we gave you the choice".
Q200 Andrew Griffiths: Do you think there should be a formula? Do you think you could work out a formula where you could say this meets the criteria that are of such importance to the constitutional settlement that we should have a referendum?
Professor Oliver: It would be nice if one could. One needs to be as clear as possible about why a referendum is appropriate. When it came to devolution, especially in Northern Ireland, it was self-evident that there was no point in going ahead if the people were not in favour of it. That was very clear. Why should there be a referendum on something? There might be a concern that the people are just not going to like whatever it is that the Government is proposing. That is probably why the referendum on whether there should be a regional assembly in the north-east of England was necessary. There is no point imposing something on a population that is absolutely not going to co-operate and is not going to like it. I am only asking the question; I cannot give you the answer. What is the point of a referendum?
Chair: I think we are probably not going to go there.
Q201 Andrew Griffiths: Let us change tack and talk about sunset clauses. I am a big fan of sunset clauses. I worked in the European Parliament for a bit, and I was very keen that any legislation that went through should be time limited to force the Government, the civil servants, whoever was responsible, to come forward and argue the case for why that piece of legislation needed to remain, to make a convincing argument and if they couldn’t make a convincing argument or circumstances changed, for that piece of legislation to fall. That seemed to be a good way to constantly refresh legislation and make sure it was up to date. There is an argument that says that constitutional change, because of its importance and government’s unwillingness to revisit these things all too often, is a specific area where sunset clauses could play a valuable part in forcing us to re-examine the success and effectiveness of constitutional change. Do you have a view?
Mr Ryan: I would say where legislation has been rushed and where there has been no draft there should be sunset clauses. We almost had one with the Fixed-term Parliaments Bill, with the Lords amendments, where the five-year term would lapse and be subject to renewal by resolution of both the House of Commons and the House of Lords at every Parliament. Their justification was that they did not think that the arguments for constitutional reform had been made out so we should make it a temporary provision. Under the Act, the Prime Minister is required to set up a committee in 2020 to review the Act and its operation. I think there should be sunset clauses in constitutional legislation, because of its importance, particularly if it has been rushed-certainly, the Fixed-term Parliaments Bill was rushed-if it has not been considered in draft and there has been a lot of pressure to push it through. Sunset clauses are very useful as a post-legislative scrutiny device.
Professor Oliver: For legislation that has been rushed through, particularly if it has not been properly scrutinised in either House, especially the House of Commons, there would be a strong case for the presumption of a sunset clause. A lot of law cannot be undone. You cannot suddenly undo Scottish devolution because there is a sunset clause. You have to be very careful about where the running out of legislation is going to be provided for.
Mr Ryan: There is also an issue of resources. If we are going to have a report at the end of the three or five years, who will undertake it? Is it going to be a Select Committee or the Government? Government should not necessarily be resistant to these sunset clauses because they might be beneficial to them. The report might say, once it is reviewed, that the legislation is very useful, it has served its purpose, there have been no problems in its operation and it will be something for the Government to be proud of. Governments should not necessarily be concerned about sunset clauses.
Q202 Andrew Griffiths: Professor Oliver, why do you say that devolution could not be undone? I understand that, from a political perspective it might be very difficult to do but, constitutionally, if the Scottish or Welsh public were of a mind, there is no reason at all why it could not be undone. A sunset clause would at least give the opportunity to have debates about the successes and failures of constitutional change.
Professor Oliver: I have a big defect, which is that I take things too literally. A sunset clause to me means a clause that whatever it is runs out and stops being in force after, say, two years. Obviously, you could not do that with something like devolution. I was not implying that you could not ever undevolve things. Forgive me for having been rather literal. If, by a sunset clause, we mean an automatic post-legislative review then, yes, a lot can be said in favour of that.
Mr Ryan: I would add, if we had, for example, an anti-Scotland Act 2012, which repealed the 1998 Act, that would be unconstitutional. So going back to the earlier point about what is unconstitutional, I think that it would clearly be morally unconstitutional for Parliament to pass that if there had not been a referendum in Scotland. That would be a good example of something that I would regard as unconstitutional, but perfectly legal.
Chair: I thank colleagues and our witnesses. This has been a very informative session this morning, and it gives us more pause for thought on this very interesting issue. Thank you so much for coming this morning.
Professor Oliver: Thank you for inviting us.