Jack Simson Caird: A Proposal for a Code of Legislative Standards?

jackOn the 20 of May the House of Commons Political and Constitutional Reform Committee (the PCR) published its report on legislative scrutiny standards titled ‘Ensuring standards in the quality of legislation’. The Report contains two eye catching and ambitious proposals for parliamentary reform: the creation of a joint committee on legislative standards and the adoption of a code of legislative standards. This blog is about the second of these proposals. The proposal is a significant one, and if implemented it would dramatically improve the information available to parliamentarians in their scrutiny of government bills. The PCR’s code is in effect a series of questions and demands for information relating to the content and to the timetable of a bill, that the government would answer within the explanatory notes to a bill. In this blog post, I draw attention to the code proposed by the PRC and I offer a critique of their approach, and in particular of the decision not to include substantive legislative standards.

The code, within Annex A of the report, states:

‘The purpose of this Code is twofold: first to set standards based upon existing evidence of good practice that ensures quality legislation, and second, to set out the information that Parliament expects to be provided for the purpose of scrutinising legislation.’

It is clear that the Code fulfills the second of these goals. The code contains a total of 37 demands for information, and if answered in good faith the responses to these demands would provide parliamentarians with much of what is needed for effective scrutiny of a bill. For example, the Code asks:

‘(c) Does the bill in whole or in part affect a principal part of the constitution, and

does it raise an important issue of constitutional principle?’

  (r) Is the bill considered by the Government to be a piece of emergency/fast-track

legislation, and if so, why?

(v) Does the bill include, and if yes, in what clauses:

(i) Purpose or overview clauses,

(ii) New definitions of existing legal concepts,

(iii) Index clauses for definitions,

(iv) Formulae,

(v) Any new drafting techniques or innovations?’

If proper answers to these questions were included in the explanatory notes it would in effect accelerate the scrutiny process. Parliamentarians would have, at the outset, much of the basic information needed to scrutinise the detail within a Bill. Other significant standards include a demand for: (i) Provision of an informal “Keeling-like” Schedule (not to form part of the bill) where substantial amendments will be made to an earlier Act, (k) The policy objectives of the bill, (w) A list of any new criminal offences and/or civil penalties created by the bill, and a summary of how they relate to existing offences, (z) a list of clauses with retrospective application, (bb) a list of Henry VIII powers. Each of the standards has been carefully crafted and draws on experiences of a number of key participants in and observers of the scrutiny process, and the Committee should be commended for producing such a well drafted and researched list of standards. Too often the legislative process is a game of cat and mouse between the scrutineers within Parliament and the government, whereby the justification for a Bill or specific clauses is gradually and painfully extracted from the government, when in reality is should be presented at the outset. The adoption of this code would remedy this defect, and would allow parliamentarians to use their precious time to examine the justificatory basis for the Bill from the outset, instead of spending it working out what the government is trying to achieve.

The problem with the Code proposed relates to the extent it fulfills the first of the two goals it set itself: ‘to set standards based upon existing evidence of good practice that ensures quality legislation.’ The norms within the code set certain expectations as to the information that should be supplied by the government, and in doing this they hint at what legislation should or should not do, for example standard (u) asks for the following:

In relation to large multi-topic bills (aka. omnibus/portmanteau/Christmas tree bills), an explanation as to how the parts of the bill bring into effect the bill’s central policy purpose and why it cannot be separated into individual bills

The implication is that there is a presumption that ‘large multi-topic bills’ should not be used, but the standards resists the temptation to be so bold as to actually say that, and instead it asks for an explanation for why the government has decided to depart from the norm of single topic bills. Why not demand more? The code could say: large multi-topic bills should not be used, any departure from this norm must be justified in a statement in the explanatory notes which explains why the Bill could not be separated into individual bills. This highlights the root of my main problem with code, it does not contain any substantive legislative standards. None of the standards included state in clear terms what legislation should and should not do.

A legislative scrutiny standard is not a legally enforceable rule, it is a soft law instrument which is designed to inform participants in the legislative process. As it is not legally enforceable, any standard that relates to the content of legislation does not prevent the government ignoring it, just as they might ignore those within the code proposed by the PRC. The advantage of stating that ‘large multi-topic bills’ should not be used, is that it communicates a stronger message, one that is commensurate to the significance of the principles to the United Kingdom’s parliamentary democracy. There are undoubtedly scenarios where ‘large multi-topic bills’ might be justified, but the obligatory language could equally be used to set a requirement that the government should explain in precise terms the basis for its decision to depart from a particular norm. Ultimately, the end result in terms of information produced by the government might be the same, but message sent is different.

The remit of the Australian Senate Scrutiny of Bills Committees contains a number of substantive legislative scrutiny standards. The Senate committee is charged with examining all bills and reporting on whether they:

  1. trespass unduly on personal rights and liberties;
  2. make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;
  3. make rights, liberties or obligations unduly dependent upon non-reviewable decisions;
  4. inappropriately delegate legislative powers; or insufficiently subject the exercise of legislative power to parliamentary scrutiny.

These examples of substantive legislative scrutiny standards demonstrate the strength of the message that such standards can communicate. While it is clearly not a like for like comparison, the contrast between the tone and approach of the standards within the Senate Committee’s remit and those within the Code is striking.

The PCR’s Report explains the reasons behind the decision to avoid obligatory language and substantive standards. While the Report recognises that ‘an objective set of quality standards’ is necessary ‘to compare and judge bills and Acts’ (para 55), it explains that it is important that the standards within the code are ‘politically neutral’ (para 58). It is axiomatic that the Code should not be seen to be in any way party political, but I am not sure that this is a sound basis for excluding substantive scrutiny standards from the Code or for deciding to avoid a ‘subjective’ drafting style. I would argue that the rationale for setting legislative scrutiny standards is to articulate a vision of how the legislative process should work, based upon an interpretation of the norms that are fundamental to the United Kingdom’s parliamentary democracy. These norms are not as politically controversial within Parliament as other political ideas, but they nonetheless have implications for the content of legislation, as well as for the nature of the information presented by government to Parliament.

The report also states that the standards should ‘require policy to be explained by reference to the contents of the bill, without questioning the substance of the policy (para 58)’. I would suggest that this division between the contents of a Bill and the substance of a policy does not stand up to scrutiny. For example, if the government introduces a bill which grants a minister an unfettered statutory power to abolish by order, with little parliamentary oversight, a public body established by primary legislation, where does the contents of the Bill end and the policy start? The legislative means are part of the policy. In other circumstance it may be possible to separate the two, but the fact that is not a reliable distinction means that it should not provide the basis for the design of general legislative standards.

This anxiety to be seen to be political neutral and to avoid commenting on the merits of legislative proposals is unwarranted because it dilutes the message communicated by the standards. One of the basic rationales of soft law legislative scrutiny standards is to create a set of normative principles that can be used by parliamentarians to engage in legislative scrutiny. A code should communicate to parliamentarians what the authors believe to be the principles that should be followed by government within legislative process. In turn this should create an expectation that if a Government wishes to depart from such a principle then it should strive to justify the basis for such a departure. However, the language of justification was rejected by the PRC: ‘where proposed or existing scrutiny list criteria suggest requiring “justifications” to be provided or comment upon the “necessity” of provisions, we consider that such terms risk creating the appearance of subjectivity and have therefore altered the wording to be more neutral (para 61)’. I do not think that a desire to be ‘neutral’ offers an adequate basis for omitting these terms. This language is needed to communicate the significance of departing from the norms in question.

It should be noted that the PCR’s report states that their proposal should be seen as beginning of a debate over the value and content of such a code. The Code they have proposed is an invaluable contribution to the debate over the role that soft law scrutiny standards should play in the legislative process. However, I would argue that there is also a role for other types of legislative scrutiny standards that use a different approach. To that end, I am involved in a Constitution Unit project, with Professor Dawn Oliver and Professor Robert Hazell, which aims to produce a code of legislative scrutiny standards based on those articulated by the House of Lords Select Committee on the Constitution in their scrutiny reports since its establishment in 2001. Many of these are substantive, and yet politically neutral in the sense that they are not controversial and state widely accepted constitutional principles. We hope to produce the code shortly.

Jack Simson Caird is a doctoral student at Queen Mary University of London.

Suggested citation:  J. Simson Caird ‘A Proposal for a Code of Legislative Standards?’  UK Const. L. Blog (14th June 2013) (available at http://ukconstitutionallaw.org)