Lord Puttnam joined the House of Lords in 1997. In 2007 he served as Chairman of the Joint Parliamentary Committee on the Draft Climate Change Bill, having performed the same role on the 2002 Communications Bill.
He has also been Chairman of two Hansard Society Commission Reports on the relationship between Parliament and the Public.
Lecture Transcript
Lord Puttnam of Queensgate CBE: It’s a genuine pleasure to have been asked to speak to you this afternoon.
In 2010, a cross-party panel of Peers produced an excellent report for the Hansard Society on improving scrutiny of Primary Legislation in the Lords. Here is an extract from what they had to say:
"When bringing forward legislation the Government does not always set out clearly enough the policy problem that is to be addressed through the provision of supportive evidence and analysis, the options that it has considered, and the reasons for the choices it has made.
The social and financial costs and benefits are not always set out, how a bill is to be implemented is often not defined, and the key challenges are sometimes not described.
As a consequence of inadequate description of the policy objectives and choices, current scrutiny often concentrates on the detail of the bill and gives inadequate attention to the policy objectives, and whether a bill is likely to achieve them.
When these matters are not addressed scrutiny is effectively conducted in a vacuum, and post-legislative scrutiny is made particularly difficult, as there is no objective test against which to judge the efficacy of an Act following implementation.
The current dearth of post-legislative scrutiny also means that the public, Government and Parliament do not know what legislation has worked, and why; and therefore the opportunity to learn lessons from the legislative process to better inform the formulation of future bills is limited."
That extract is an excellent starting point for the issues I’d like to address over the next twenty minutes or so.
The debate about scrutiny of legislation is a debate about governance and not government, between which there is far more than a semantic difference.
To me, the essence of all good governance lies in maintaining, and even extending, ‘public trust’.
As I see it, my job as a Back-Bencher in the Lords is consistently to seek means by which that public trust can be enhanced and justified.
Current and, I think, fair criticism is increasingly focused on the possibility that there is too much legislation, that there is unused or inappropriate legislation, and far too much originally well-intentioned, but now hopelessly outdated legislation.
All of these issues could, I believe, be addressed by a system which embedded both pre-legislative and post-legislative scrutiny far more effectively at the heart of our political system.
I say this as one of the very few people who has had the privilege of chairing not one but two pre-legislative scrutiny processes – on the Communications Bill and the Climate Change Bill.
And it was from the former, a Bill originally brought forward in 2002, that I had my first ‘crash-course’ on the value of pre-legislative scrutiny.
Incidentally, anyone here who wants some background to the Government’s thinking in setting up the Joint Scrutiny Committee for that Bill need look no further than Exhibit TJ31 in the Leveson Inquiry, which sets out in some detail the thinking of Tessa Jowell and Patricia Hewitt in recommending that such a committee be set-up; although I noted that I was not one of the four or five people proposed as a potential chair in their original memo!
Partly, I suspect because I was already a known member of the “awkward squad” on the issue of the influence that a few significant media proprietors had over British public life.
Nonetheless, I was, in due course – and far more by luck than by judgment - invited to chair the committee, and we began our work in May 2002.
Even the most experienced political hands acknowledged that the Bill was extremely complex, dealing as it did with a huge range of issues right across the electronic communications sector, telecoms and the media.
That’s why we ended up calling well over a hundred witnesses, held breakfast seminars with industry experts, and organised Parliament’s very first online forum – back in the day when such things were regarded as ‘outrageous fads’ by many members of both Houses!
In addition, we received over 200 pieces of written evidence, all of which were analysed and taken into account during our deliberations.
The conclusions we came to were overwhelmingly supportive of the principles of the Draft Bill.
However, the original Bill was designed to create a purely economically focused regulator called Ofcom; tasked to make purely economic decisions.
One of the achievements of the Scrutiny Committee was to broaden this remit and say, “No, these are not just economic decisions; these are issues that affect people’s lives and freedoms.”
At every turn during our deliberations we sought to ensure that the powers of Ofcom were defined as rigorously and as clearly as possible.
We adhered to the principle that if the Government was serious about securing dynamic and competitive markets in the communications and media sectors, then we needed a step-change in the effectiveness of regulation. The ability to achieve that step-change was always going to depend in large part on the strength of Ofcom’s competition powers.
The key issue here was what became known as the ‘public interest test’. A test, of course, that really came into its own when News Corporation attempted to take control of 100% of BSkyB beginning in June 2010.
The architect of much of the thinking was in fact one of my colleagues on the Committee, Andrew Lansley M.P., who realised that, at exactly the same time as our Bill was being considered in Parliament, the ‘Enterprise Bill’ was also going through.
He conceived this notion of a double lock, whereby you could use the provisions of an Enterprise Act to look at things from a competition perspective, and at the same time enable a Communications Act to look at those same provisions from the perspective of the wider public interest.
By creating these two locks, you were that much more likely to get a reasonable result.
The fact that Andrew was a member of Her Majesty’s Opposition underlined the extent to which the Committee worked across party lines, and was genuinely committed to reaching a consensus which served the public good, rather than being an exercise in party political point-scoring.
Broadly speaking, the ‘public interest test’ assumes that the public interest would be adversely affected in the event of a diminution of plurality of voice. This was taken to include the written, audio or televisual voice; and that in diminishing that ‘plurality of voice’, you were in effect damaging the public interest.
So while the then Labour Government of the day was willing to liberalise in this area in light of the globalising nature of the media market, and to encourage inward investment, the joint scrutiny committee believed a careful balancing act would be best achieved through the incorporation of the ‘public interest test’.
This test exists to assess the impact of any significant merger or take-over, regardless of the nationality of the acquiring company. It’s only with the benefit of hindsight that the real challenges around cross-media ownership have become apparent.
For example, it was always my belief, that the opportunities to ‘bundle’ together News Corporation’s media assets – such as The Times, The Sunday Times, The Sun, The News of the World, Sky subscriptions, online movies from Fox, along with mobile access to all of them –were far, far greater than anything the Government of the day believed possible – or maybe wished to believe possible!
Today Sky has a billing relationship with well over 10 million customers – a fantastic competitive advantage in an online world in which making people ‘pay for content’ is one of the biggest challenges of all.
Where once it was his newspapers that subsidised Mr Murdoch’s foray into television, it was well on the way to being the other way around, with television under-writing both his newspapers and his somewhat belated attempt to come to terms with the internet.
Indeed, it is striking that the Communications Act 2003 does not include the word “internet” – an omission which now seems extraordinary but at the time appeared to be borne of the belief that the internet was a sort of “wild west” whose contribution to innovation and growth would be shackled by even the most timid attempts to bring aspects of it within the scope, for example, of cross-media ownership regulations.
In fact part of my committee’s ‘terms of reference were an injunction not to even raise the issue of the internet – needless to say, in hindsight, this seems pretty fatuous!
The development of the digital economy and the impact of the internet raises one of the key challenges in this area of legislation as, in my opinion, competition authorities do not – nor should they – make or shape public policy – they are simply required to implement what is already on the statute book.
Which explains why, as legislators, Parliament needs the power and flexibility to respond to events that may have been entirely undreamt of, or unwanted, when the statutes were originally framed – just one of the reasons I have, at every opportunity, consistently argued in favour of post-legislative scrutiny - and as well as the pre-legislative variety.
Incidentally that’s also why I enthusiastically support the idea floated by the Government and others that Ofcom should not just have the power to intervene in cases of a merger or acquisition - but should also have the power to conduct studies of the organic growth of the market, and to recommend any necessary interventions on public interest grounds as it sees fit.
However, despite the adoption of the public interest test, the Joint Scrutiny Committee did not have things all its own way. It recommended an urgent cross-media impact study. That has never happened.
Yet without such a proper cross-media impact study it is almost impossible to make the necessary judgments to be able to construct the kind of ‘evidence-based’ decision making which the Hansard Society rightly wants to see used much more widely by Parliament.
A genuine Scrutiny Committee is one that looks objectively at what is going on and makes objective decisions on the basis of evidence of what it believes to be best for the citizen and the consumer.
When our report was published we made 144 different recommendations and, to their great credit, the government accepted 136 of them. Most of what they accepted was to do with extending the Bill to include issues that the covered plurality, and the quality and range of content.
So, here I stand - a declared enthusiast for both pre and post-legislative scrutiny.
As if I needed it, I was once again introduced to how valuable the widespread use of these processes could be when Parliament went through the agonies of the Digital Economy Bill.
The passage of that Bill, in 2010, was a perfect example of what can go wrong when time pressures encourage a Government to attempt a short-cut.
All of us engaged in that Bill were subjected to a deluge of lobbying, some of it informed and intelligent, but much of it highly prejudiced – and some of it pretty daft! However, with no time to sort the wheat from the chaff; with no ability to properly interrogate the arguments of the lobbyists; with no ability seriously to look at which of their arguments stood up and which collapsed under scrutiny – many of our debates simply dissolved into farce.
Needless to say, we ended up with a flawed Bill containing a number of significant omissions – killed off by ill-informed lobbying in the “wash-up” that took place between the Commons and the Lords ahead of the May 2010 election.
One victim of this was a clause which would (and should) have allowed so-called ‘orphan works’ – works for which the copyright owner cannot be identified, even after a diligent search – to be made available legally.
At present it can potentially be a criminal offence to make such work available.
The provisions were killed off by heavy lobbying from a group of photographers who raised some challenging but far from insurmountable issues around “orphan photographs” at a very late stage in the game.
Had these clauses been subject to pre-legislative scrutiny, it would have been possible for Parliament to properly consider debate and address these concerns, rather than being bludgeoned into simply dropping them on the basis of a well-organised but fundamentally flawed lobbying campaign.
Instead of which, two years later, the present Government has been obliged to reintroduce a slightly different version of the proposals into the Enterprise and Regulatory Reform Bill – not, it has to be said, their most natural home, as they find themselves sitting alongside proposals for Green Investment Bank and reform of employment laws!
If ever a Bill required pre-legislative scrutiny, the Digital Economy Bill was it. Many hours were spent in Parliament - I would say very many of them wasted hours - going through things which a good and effective pre-legislative process could very easily have ironed out.
A lot of bouncing around between the various sides of the House on relatively minor issues could have been avoided, because many of the arguments were based on an extraordinary amount of misinformation or, in some cases even disinformation.
So in this case it was the absence of pre-legislative scrutiny that led me to fully understand its value. We live in an era of ever-more professional politicians – if not ‘politics’.
As a result, the outside world has to be given a better voice, and it needs to feel it can come into this building to make that voice heard and feel that it’s had a say.
But for parliamentarians, the inability to be able to sort out and identify legitimate and factual lobbying has been a major problem in trying to get many pieces of legislation through.
To me, one of the most important benefits of pre-legislative scrutiny is that the members of its committee form a hard core of cross-party expertise when a Bill comes before Parliament.
Here you have an informed group of people who have been through the arguments and can cut through an enormous amount of waffle and nonsense.
Not having that available, even if it makes the Minister’s task that much more difficult, is a great mistake.
Any serious Democracy also has an obligation to look at what’s happening elsewhere - good and bad.
A couple of years ago Paul Krugman, the Nobel prize-winning economist, wrote an excellent article in The New York Times in which he said:
"We've always known that America's reign as the world's greatest nation would eventually end. But most of us imagined that our downfall, when it came, would be something grand and tragic.
What we're getting instead is less a tragedy than a deadly farce. Instead of fraying under the strain of imperial overstretch, we're paralyzed by procedure.
Much of the Senate's business relies on unanimous consent: it's difficult to get anything done unless everyone agrees on procedure.
And a tradition has grown up under which senators, in return for not gumming up everything, get the right to block those things they don't like".
He concluded:
"The truth is that ... the way the Senate works is no longer consistent with a functioning government.
America is not yet lost. But the Senate is working on it!"
I would be very distressed if at any point anyone was able to say that our parliamentary system and our procedures were effectively making good legislation and good governance impossible.
With all this in mind, I’d like to close with some thoughts from one of the outstanding Parliamentarians of my generation – Robin Cook.
Shortly before he died he wrote this:
“It is because I love Parliament that I never want to see it sink into irrelevance, a top draw on the tourist circuit, but no longer the crucible of our nation’s politics.
Its authority rests on public confidence, and if it is to restore that confidence it must change. It is those of us who most love Parliament who therefore want to see it modernised.”
He went on to say.
"The problem is not that the British people have no opinion on the issues of the day, but that more and more of them no longer feel ownership of their parliamentary democracy, or believe that its political culture can solve the problems of their lives."
I’m indebted Lord Howe of Aberavon for introducing me to the belief of the former Prime Minister A.J. Balfour that:
"Democracy is government by explanation".
That seems to me both an excellent description of the value that scrutiny committees can help deliver by analysing and explaining the rationale for the laws which govern us.
But it also sums up a key way in which trust in our democratic processes can be built.
In the end, what that Joint Scrutiny Committee on the Communications Bill delivered was a report which genuinely attempted, I believe successfully, to weigh the merits of the evidence we received, and to offer an informed view as to the most appropriate way forward.
In doing so the Committee believed that it delivered a robust example of evidence-based advice which served to advance the cause of Pre-Legislative scrutiny.
If the entire point of such a process is to test the value of policy proposals on the basis of expert evidence, then it would be strange, and indeed even offensive to Parliament, were Government to proceed as if some or all of its decisions were already set in stone.
Pre-Legislative scrutiny, as a process, is still comparatively young, but it supports many of the legitimate and growing expectations for transparent and better informed Government. Once this process is embedded to everyone’s satisfaction, it can only be a matter of time before we begin to experiment with post-legislative scrutiny.
But that’s probably a different debate for another day!
To really work, Parliamentary scrutiny requires that at least two pre-conditions are in place:
1. A media environment in which the breadth and depth of complex issues are treated with the seriousness they deserve;
2. A Government with the humility to acknowledge that it isn’t always right; the graciousness to listen to alternative arguments; and a consistent and demonstrable understanding of the sovereignty of Parliament.
Sadly, so long as Government and the Media each insist on parodying the knee-jerk reactions of the other, we are probably condemned to remain not much more than a semi-formed democracy.
It’s my continuing belief that we deserve, and can secure for ourselves as citizens, something far, far better. To do that, we as Parliamentarians will unquestionably need your help.
Thank you very much for listening to me.
ENDS