My Lords, I have to be brief but I think that I can say without contradiction that the speech that we have just heard from the noble Lord, Lord Sharkey, was made on behalf of the Joint Committee. I cannot think of a single member who would dissent from what he said, which was based, essentially, on our report. When the report was written, over 12 months ago now, it was of course written not just on the basis of Schedule 16, now Schedule 20. There was also the famous list of six other clauses, about which we took evidence on the basis that they were the worst and most offensive Henry VIII clauses ever put before Parliament. The Government took fright at that and took them out of the Bill, so they are not there. The Government were quite right to do that, so they have made the right decision.
However, the committee was faced with the context of cutting corners on parliamentary scrutiny. We had these six clauses, which were pretty bad, and we then got this great list of material, some of it self-evident, that was of no practical use. We also got the Law Commission in front of us. We also realised quite clearly from the evidence—not just the written evidence but what was before our own eyes—that there was a dispute between the Ministers and the Law Commission. It was self-evident, from both the body language and the actual language, that Ministers thought that the Law Commission was working too slowly—not getting on with it and not chopping enough legislation out of the way. But of course that is the way the commission works, and it quite clearly indicated to us that the staff and resources for this were pretty small beer.
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It is the risk of error that we are concerned about. Basically, we are assuming that at the next stage and at Third Reading Parliament, at the request of Ministers, will get rid of a host of legislation without any detailed scrutiny. That is the reality. If Ministers wanted 84 amendments for Report stage—I think that it is 84—to enable them to speak to every substantive part of the schedule and to explain to Parliament, beyond what is in the notes on clauses, which are not sufficient,
exactly how they were certain that the legislation was of no practical use, they could do that because it could be arranged.
The point that we are making is that the Law Commission has a function that Parliament trusts. Again, the Joint Committee was told, “Oh, they take too long; it’s pressure on Parliament”, but the average Law Commission Bill takes three minutes on the Floor. That is the reality. So we were told a porkie to start with. Parliament trusts the Law Commission because both Houses know exactly what the process is. After First Reading and Second Reading, the Bill goes to a committee—there is a separate procedure in Parliament for looking at Law Commission Bills. That is why over the years both Houses have trusted Law Commission Bills, and we are now deviating from that on a grand scale.
As the noble Lord, Lord Sharkey, said, in the trawl by the Law Commission for legislation that was from a bygone age and of no use and obsolete, not one of these items was offered up by a government department for the previous Law Commission Bill. I know why; I explained at one point. When you are in a department and something comes from the Law Commission, by and large it is not given top priority. Ministers do not say to their Permanent Secretary, “You’ve got to find stuff for this”. When it comes from the Cabinet Office, from Ministers who say, “We’ve got a Deregulation Bill. We want a list of stuff for the bonfire”, Ministers say to the Permanent Secretaries, “Get some evidence. Get a list”. That is how this has arisen. By and large, there is not any pressure in the department on Law Commission Bills. With everything else that goes on there, it is just not a priority. It is sad, but that is the reality of the situation. So we end up with a political list that is driven by Ministers—I do not complain about that; I am saying what the reality is.
There has to be a better way of doing this, simply because Parliament is not scrutinising what is in this schedule and we cannot be absolutely certain that we have got it right. I am not saying that the Law Commission is perfect; it is not. It made one mistake—I think that it was in 1965—in something that was put forward for abolition. I forget what it was about—it was allotments for returnees from the First World War or something like that. Someone was thinking of using that bit of legislation and there was one mistake. I do not think that that can be said about the Government.
So we have a problem. The Law Commission does not take up parliamentary time, but we end up having more parliamentary time on this Bill because of suspicion. There is a distinct lack of parliamentary scrutiny of what is going to happen with Schedule 20—there is no question about that—and that is a worry. It is not as though there is not time to deal with this. When the Joint Committee was set up, it was given a specific date by which to report to Parliament—if I recall, it was 16 December last year—and that is what we did because it was what we were ordered to do by the House. It was only at the very last evidence session that we were told by Ministers, “Oh, it’s a carry-over Bill”. We had mentioned it, and no one had ever told us that it was a carry-over Bill. So there was time to do more work on it, yet it only came out when we had
Oliver Letwin, Michael Fallon and Ken Clarke in front of us. It was a carry-over Bill but that was the first time that that had been raised. Therefore, there was a bit more time to do something about it. I am not saying that it would have solved all the problems but we could have taken a little bit more evidence.
My concern over this, as the noble Lord, Lord Sharkey, has explained in a much more considered way than I have, is that we are cutting corners on parliamentary scrutiny. We do not normally do that unless there is a good and urgent reason, and in this case there is not. Ministers ought to be aware that mistakes arise. Ministers are never around when they do because it may be a year or two years afterwards that something pops up, so Parliament gets it in the neck and it will be said that we were not doing our job. That is my worry here. This exercise ought not to be repeated. It is clear that there is a problem with the Law Commission as far as the present set of Ministers are concerned; clearly they wanted a list. All that I can do is thank the Government for taking out the six clauses that they removed from the Bill, which would have made matters even worse.
I am still very unhappy. Most of this is obsolete, which is self-evident when you read it. However, we cannot be absolutely certain because we have no independent evidence that it is of no practical use. That is the worry that we ought to place on the record.