Summary:– The opportunity may soon arise to make arrangements to make it easier to enact some types of legislation. Two types of legislation are considered: uncontroversial legislation; and legislation restating the law on a particular subject.
1. On 23 October 1962, the Lord President of the Council (Hailsham) sent a minute to the Prime Minister (Macmillan) entitled “The Machinery of Government”. (Relevant material is in the National Archives in file PREM 11/4838.) Hailsham stated that he had been “wondering greatly about the future of our machinery of Government”; and later specified three “main defects … in our status quo”: (first) “the steady and cumulative backlog now mounting up in our programme of legislation in relatively uncontroversial matters”; (secondly) “the increasing physical and moral strain on Ministers”; and (thirdly) “the relatively piecemeal way in which we handle great decisions”. The first of these defects is considered here.
2. Hailsham’s view of this first defect was that:
“I believe that quite a large proportion of the backlog of desirable bills could be dealt with by means of an uncontroversial legislation committee, which would certify certain bills for an expedited procedure. The opposition, or any sizeable minority would be represented on the committee, and would be able to prevent genuinely controversial legislation from coming on to the list.”
3. Macmillan described Hailsham’s minute as “very impressive”; but no major action was taken. As regards the backlog of legislation, Macmillan stated in his considered reply that:
“There is much to be said for seeking some new procedure which might well involve a Committee representative of both Government and the Opposition. But this is not the sort of reform that could be carried through in the last eighteen months of a Parliament’s life. The time for any Government to take such a step is at the outset of a new Parliament and with a sizeable majority. We might continue to bear this in mind.”
4. The reconsideration of the subject of the enactment of uncontroversial legislation may soon be appropriate. Following the subsidence of the Covid pandemic and the departure of the United Kingdom from the European Union, a suitable opportunity will arise to consider the machinery of government more generally. The opportunity will also exist for the government to make new arrangements for the enactment of legislation. The government has a sizable majority in the House of Commons; and a further general election is not required to be held until the end of 2024.
5. In the House of Commons, the enactment of legislation is constrained by the limited time available. In the case of Consolidation Bills, however, this difficulty is mitigated by a procedure that restricts the time taken on the floor of the House of Commons. Two suggestions are now made to make it easier to enact some types of legislation. Both involve a restricted procedure on the floor of the House of Commons.
6. The first suggestion is that an uncontroversial legislation committee should be set up, on the lines proposed by Hailsham in 1962. Both government and opposition parties should be represented on this committee; and it might be thought appropriate that the chairman should be from an opposition party.
7. One matter requiring consideration will be to ensure that the Bills sponsored by the committee are indeed uncontroversial – and do not give effect to controversial matters of party policy. This matter might, perhaps, be dealt with by requiring the Committee to consider a Bill only if a weighted majority of the Committee’s members consider that the Bill is indeed uncontroversial. In this manner opposition parties may prevent the implementation of controversial government policy.
8. The second suggestion is that arrangements be made to facilitate the restatement of the legislation on a particular subject. It is possible to find that such a restatement goes beyond consolidation and requires further (uncontroversial) provisions to be enacted.
9. It is considered appropriate for the arrangements to have the following characteristics:
• One government department should have responsibility for, and ownership of, the legislation drafted. (The problems that may otherwise arise may be illustrated by events taking place during the inter-war period. In 1927, the Chancellor of the Exchequer (Churchill) caused a committee to be constituted to codify the law relating to income tax. The Committee eventually produced a draft Bill (Cmd. 5132) which had been prepared independently of the Inland Revenue. That department was unwilling to sponsor the Bill in the form in which had been published; and, in the events that happened, no Bill arising from the Committee’s work was ever presented to Parliament.)
• The Office of the Parliamentary Counsel should draft the legislation (or should give explicit approval to the manner in which the legislation is in fact drafted).
• A Consultative Committee should be set up on which all major interests, both inside and outside government are represented; and this Committee should approve the text of the Bill.
The draft Bill may accordingly be presented to Parliament on the basis that it has the support of all major interests – and should, accordingly, be enacted.
10. The characteristics set out in the previous paragraph were all to be found in the case of the Bills prepared by the Inland Revenue’s Tax Law Rewrite project (of which the Capital Allowances Act 2001 was the first). It is suggested that the general procedure adopted in the case of these Bills should be made available on a more general basis.