APPENDIX 20
Memorandum from Michael Ryle, former Clerk
of Committees, House of Commons and Secretary to the Hansard Society
Commission on the Legislative Process, 1991-93
INTRODUCTION
1. The desirability of enabling committees
on bills to receive, when appropriate, evidence from the public,
and especially from affected persons and bodies, has long been
advocated by parliamentary reformers, both from inside the House
of Commons (including several Procedure Committees) and by outside
bodies (including the Study of Parliament Group—starting
from its evidence to the Procedure Committee, 1964-65—the
Hansard Society Commission on the Legislative Process, Making
the Law, 1991-93, the Liberal Democrat Proposals to Reform
the House of Commons, A Parliament for the People, 1996,
and the Conservative Commission to Strengthen Parliament,
2000).
2. The case for hearing evidence on bills
was significantly advanced by the Modernisation Committee in 1997
(following closely the recommendations in Making the Law)
when it unanimously recommended the greater use of Special Standing
Committees, with more flexibility than under the present Standing
Order, and the committal of appropriate bills, or parts of bills,
to select committees (para 95). The House without a division approved
the Report of the Modernisation Committee.
3. In practice however, in the past four
years, no action has been taken to hear evidence on bills after
second reading, except for the use of Special Standing Committees
on two bills. The package deal that was implicit in the Modernisation
Committees report—programming to secure the timely passage
of bills, matched by new procedures to improve their scrutiny—has
been abandoned (see my letter to The Times, 12 December
2001).
4. The merits of taking evidence on bills
should be reiterated—
(a) It would ensure that the House and its
committees were as well informed as possible on not only the merits
but also on the practical implications and consequences of the
proposed legislation;
(b) This should result in more effective
scrutiny leading to improvements in the contents and drafting
of bills;
(c) Parliamentary deliberation would become
more constructive and (especially on non-policy aspects) less
confrontational;
(d) The public, and especially those most
directly affected by the legislation, would have improved and
greater opportunities to put their concerns before Parliament
and to receive the reactions of Members to their evidence; and
(most important)
(e) Such regular and formal contact between
The House and the public should demonstrate the relevance and
underline the effectiveness of parliamentary proceedings, and
so do much to enhance the standing of Parliament in the public
eye.
5. Many other major Parliaments within the
Commonwealth (eg in Canada and Australia (Senate)) and in Europe
use procedures for receiving evidence from the public, either
by hearing evidence formally, or through private discussions or
by use of rapporteurs) and this seems to work well and to be respected
by the public. Similar practices have been adopted in the Scottish
Parliament and have proved popular.
6. The hearing of evidence on legislation
has also proved successful in respect of Deregulation and Regulatory
Reform Orders; these procedures could well be extended to the
detailed provisions of primary legislation.
7. It is therefore to be hoped that proposals
for regular use of evidence on bills will be included in the proposed
parliamentary reforms that it is understood that the Leader of
the House will shortly table. If so, the time has come to give
closer thought to how the processes for taking evidence
on bills might actually operate. The remainder of this paper is
a condensed outline of such a scheme.
PROCEDURES FOR
RECEIVING EVIDENCE
ON BILLS
Basic assumptions
8. This proposed scheme is based on three
basic assumptions—
(a) All bills will be subject to some kind
of programme order to be decided as soon as possible after the
First Reading of each bill;
(b) After Second Reading, all bills (other
than Consolidated Fund Bills and those committed to a Committee
of the whole House) will be committed to a committee with powers
to call (if it so wishes) for persons, papers and records; the
decision on whether to receive evidence will therefore be taken
by each committee and not by the House (Government) in a committal
order; and
(c) The scheme only applies to Government
bills.
Preliminary processes
9. To avoid undesirable delay and to secure
time for proper hearing and consideration of evidence, it would
be essential to start the processes quickly. As soon as possible
after a bill has been read a first time and a Programme Order
has been made, the Committee of Selection appoints a committee
on the bill (obviously only to operate on the assumption that
the bill will be read a second time).
10. The committee then meets, considers
whether oral evidence is likely to be needed, issues a public
statement inviting written evidence, and sets up a Business Sub-Committee.
11. Following the Programme Order, the Business
Sub-Committee agrees a draft detailed programme of sittings and
hearings (possibly providing for hearings, deliberation and debate
on the bill by separate Parts) and calls for written evidence
from selected bodies etc and for oral evidence from selected persons.
12. The Committee then meets again to confirm
and publicise the committee programme, including scheduled oral
evidence sessions.
After Second Reading
13. Changes may be made in the membership
of the committee; amendments are tabled.
14. The Committee meets and may agree changes
to its programme in the light of proposed amendments to the bill;
dates for hearings if any (committees on minor or totally uncontroversial
bills will often decide not to take oral evidence) are finalised
and witnesses are summoned.
15. Hearings of oral evidence are as in
any select committee. Evidence may be heard from civil servants
on the details, practicalities and drafting of the bill, but not
normally from the Minister on policy as the Minister in charge
of the bill in committee is a member of the committee, can himself
question witnesses and speak for the Government on policy issues.
Evidence may also be heard from the chairman or other members
of a departmental select committee which has conducted a pre-legislative
inquiry into the bill. The Chairman of the committee at all stages
will be a member of the Chairmen's Panel, but would not usually
take the lead or an active part in questioning witnesses.
16. After any evidence has been heard on
the bill (or separately on each Part of the bill) the committee
may wish to deliberate, perhaps to identify those clauses on which
there is general agreement and those on which more extensive debate
will be needed. Such deliberation would be in private as in a
select committee.
17. The committee then publicly debates
amendments and clauses as in a standing committee.
18. At any time the House may agree an amended
Programme Order, which may involve the alteration of the committee's
own detailed programme.
19. Following the Programme Order, the committee
then reports the bill in the usual way. Exceptionally the committee
may wish to agree a Report or Special Report on the bill.
20. During the Consideration stage, the
House may recommit the bill to the committee (again subject to
a Programme Order) for consideration of some amendments (especially
those related to Government undertakings given in the committee.
A similar treatment may be used for Lords' Amendments.
Consultation on bills
21. A major chapter in Making the Law
concerned the need to improve arrangements for consultation
with interested parties during the preparation of bills. Happily,
since that report, the processes of consultation carried out by
departments have been reformed, the Cabinet Office has laid down
clear guidelines and the quality of consultative documents prepared
by some departments (perhaps most or all?) appears to have improved
substantially. But consultation needs to be monitored. The Deregulation
and Regulatory Reform Committee do this very effectively in respect
of deregulation orders and it would be a valuable reform to extend
this to primary legislation.
22. To this end, a report on the consultations
that have been carried out should be published with nearly all
bills (as is now done in the Scottish Parliament) and the committee
on the bill should satisfy itself regarding the extent of consultation
(including taking evidence from interested parties where necessary)
and report to the House accordingly.
CONCLUSIONS
23. It is not expected that these proposals
will be totally acceptable. Other experts will doubtless find
defects. However, if it is proposed that committees on bills should
be empowered to take evidence, careful thought is required on
how this should be done, and perhaps this paper will be helpful
in getting this started.
8 January 2002
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