House of Commons - Modernisation of the House of Commons

Select Committee on Modernisation of the House of Commons First Report

Committee Stage

50. Early in the inquiry, we decided to focus on the committee stage of bills. There were three main reasons for this:

a) First, the committee stage is where a great deal of the substance of the House's consideration of a bill takes place, and where most of the detail of the bill is settled.

b) Second, the committee stage permits of several variations—committal to a standing committee, a Committee of the whole House, and split committal between the two are all regularly used. Committal to a select committee is used every five years for the Armed Forces Bill and special standing committees have been used on a few occasions since 1980.[63] We are therefore able to draw on the House's own experiences in evaluating different approaches to the committee stage.

c) Third, the work of standing committees has been one of the most criticised aspects of the legislative process. This criticism was summarised by the Hansard Society, who told us that standing committees 'fail to deliver genuine and analytical scrutiny of [bills], their political functions are neutered, dominated almost exclusively by government …, they fail to engage with the public and the media (in contrast to select committees) and they do not adequately utilise the evidence of experts or interested parties'.[64]

51. Although some of this criticism of standing committees is valid, it is important not to over-state the weaknesses of the system. Partisan debates can be a useful way of testing the provisions of a bill, of identifying its weaknesses and the case for change. Whilst it is unusual for the Government to accept back-bench or opposition amendments in standing committee, it is not unusual for the Government to table amendments at report stage which are intended to rectify problems identified in committee. We do believe that there is a strong case for introducing a more collaborative, evidence-based approach to the legislative process (see paragraphs 58-62, below), but it should supplement, rather than supplant, traditional standing committee debates.

52. We have considered two parallel sets of questions relating to standing committees: what are the alternatives to the traditional standing committee; and how might the existing standing committee system be improved? In order to address the first of these questions, we published a consultation paper in January this year, describing five alternative options which could be implemented with no or minimal changes to the existing Standing Orders of the House.[65] The options were:

a) a special standing committee, which at present is able to hold three select-committee-style evidence sessions before proceeding to consider the bill as a standing committee;[66]

b) a select committee, or a joint committee of the two Houses, which has the power to take evidence, consider and amend the bill;[67]

c) a first reading committee, as recommended by our predecessor committee in 1997, to conduct an inquiry into the bill before second reading;[68]

d) committal to a select committee followed by re-committal to a standing committee, perhaps consisting of the select committee members plus another of others; and

e) split committal between committees of different types, as usually happens with the Finance Bill which is split between a Committee of the whole House (in respect of the more controversial parts) and a standing committee (in respect of the less controversial or technical aspects).[69]

53. Most of our witnesses favoured those committee arrangements which provided for an evidence-taking, as well as a deliberative stage. There are several benefits that an evidence-taking stage could provide. It is first and foremost a mechanism for ensuring that Members are informed about the subject of the bill and that there is some evidential basis for the debate on the bill. Evidence-gathering is also, by its nature, a more consensual and collective activity than debate, and there is evidence that those outside Parliament have a more positive view of select committee proceedings than of debate. So there is a reputational benefit to Parliament in being seen to engage in a more open, questioning and consensual style of law-making, before moving on to the necessary partisan debate.

54. An evidence-taking stage is also an effective way of engaging the wider public directly in the legislative process. The Law Society argued that it is important that the process for influencing a committee's thinking was as straightforward as possible and suggested that many organisations would value the opportunity to give evidence to a committee considering a bill, even if they had contributed to the Government's consultation exercise.[70] A good example of this is the inquiry into the draft Corporate Manslaughter Bill by the Work and Pensions and Home Affairs Committees. They received over 150 submissions from organisations including victims' groups, trade unions, lawyers, and business representatives.[71]

55. Witnesses from the CBI and the TUC, two organisations which are at the forefront of consultation and lobbying on proposed legislation, told us that they did not always find it easy to influence the standing committee process and that, as a consequence, they devoted more resources to trying to influence the process at other stages. Both organisations strongly favoured increasing the emphasis on formal evidence-taking as a way of improving the involvement of outside bodies in the process.[72]

56. All these benefits, of course, are there to be had at the pre-legislative stage and pre-legislative committees usually (though not always) allow a rather longer inquiry than is possible once a bill has begun its passage through the House. But, as we have already noted, there is often a disjunction between the pre-legislative stage and the legislative stage, with few Members of pre-legislative committees finding their way onto the standing committee considering the bill.[73] Furthermore, the bill which is presented is might differ significantly from the original draft, so that parts of it will not have been subject to the pre-legislative stage. Unlike the other stages of a bill, pre-legislative scrutiny is in the gift of the Government. As we have seen since the 2003-04 peak of draft bills, with the best will in the world, extensive pre-legislative scrutiny can never be guaranteed.

57. We do not wish to detract from the success of pre-legislative scrutiny, but we believe that, even with its further development, there is a compelling case for integrating evidence-taking into the legislative process itself. Both the Deputy Director-General of the CBI and the TUC's Head of Campaigns and Communications argued that introducing oral evidence into the standing committee process itself was the single most important change that they would like to see made to the primary legislative process.[74]

Special standing committees

58. We recommend that special standing committees should, with some important modifications to the current Standing Order which we set out below, be the norm for Government bills which originate in the Commons. If they are to become the norm, then it is logical to drop the word 'special' from their title, and we recommend that this should be done in the context of broader changes to the nomenclature of standing committees set out in paragraphs 63 to 66 below. There will be cases where an evidence-taking committee is not appropriate, such as the Finance and Consolidated Fund Bills and bills which, for whatever reason, have to be passed urgently. There may also be exceptions for bills which would usually go to a Committee of the whole House, such as bills of 'first-class constitutional importance'. Even for bills outside these defined categories, there may be cases where a special standing committee is not appropriate: very short bills, for example, or those which are highly politically controversial. Some discretion might also be needed for bills which originate in the Lords.

59. There is a clear danger, as witnesses from the TUC pointed out, that over-use of special standing committees could lead to the process becoming ritualistic and unhelpful.[75] But we believe that the single biggest improvement that could be made to the legislative process would be to adopt the committal of government bills to a special standing committee as the norm, deviating from it only when there was good reason to do so.

60. Special standing committees were first mooted in the early 1970s and established on an experimental basis in 1980. The temporary Order governing the procedure was made permanent in 1986, following a recommendation from the Procedure Committee.[76] Including the experimental period from 1980 to 1986, there have only ever been nine special standing committees, listed in Table 6.

Table 6: Bills committed to a special standing committee

1980-81 Criminal Attempts Bill

1980-81 Education Bill

1980-81 Deep Sea Mining (Temporary Provisions) Bill [Lords]

1981-82 Mental Health (Amendment) Bill [Lords]

1983-84 Matrimonial and Family Proceedings Bill [Lords]

1994-95 Children (Scotland) Bill

1995-96 Licensing (Scotland) (Amendment) Bill

1998-99 Immigration and Asylum Bill

2001-02 Adoption and Children Bill

61. We would like to see the use of special standing committees entrenched in standing orders. A bill is automatically committed to a standing committee after second reading under Standing Order No. 63. However, in the case of most Government bills, this provision is superseded by the Programme Motion, which is defined as a motion, notice of which is given by a Minister of the Crown before the second reading of a bill, which provides

a) for committal of the bill, and

b) for any proceedings on the bill to be programmed.[77]

62. We recommend that Standing Order No. 83A (Programme motions) be amended so that the definition of 'programme motion' includes a requirement that it provides for committal of the bill to a public bill committee with the power to take evidence, to a Committee of the whole House, or split committal between the two. Private Members' bills would continue to stand referred to an ordinary standing committee under Standing Order No. 63, as would any Government bills which were not programmed (e.g. the Finance Bill).

Nomenclature of standing committees

63. It is evident that the use of the term, 'standing committee', is a source of confusion to many if not most people. It says nothing about the nature and function of the committee and its use to describe a group of ad hoc committees is at best unhelpful and at worst misleading.[78] Designating the committees by letter is also misleading because, since they have no permanent existence, the Standing Committee A which considers one bill is not the same as the Standing Committee A which considered another.

64. The nomenclature is a throw-back to the 1880s, when two large Standing Committees were first appointed to consider bills which, until that time, had always had their committee stage on the floor of the House. These committees were originally specialised and consisted of a core of 60 to 80 members, plus a further 15 added members in respect of each bill.[79] In 1907, when it was decided that all bills should be committed to a standing committee unless the House otherwise ordered,[80] an additional committee was created and the system of specialisation was abandoned. The committees were re-designated as Standing Committee A, B and C to signal the end of subject specialisation. In 1960, the House implemented a recommendation from the Procedure Committee, that a new membership should be appointed in respect of each bill. The Committee remarked that 'the distinction between the nucleus and added members is already somewhat artificial and serves no useful purpose'.[81] It was at this point that standing committees ceased to be standing committees in the usual sense of the term.

65. It is exactly ten years since the Procedure Committee recommended that the name of these committees be changed.[82] The recommendation was not adopted at that time. We can see no reason for persisting with a nomenclature which is inaccurate, confusing and anachronistic. We recommend that standing committees and special standing committees on bills be re-named 'public bill committees', with individual committees being designated by the name of the bill allocated to them (e.g. 'Health Bill Committee'). For the sake of consistency, we further recommend that Standing Committees on Delegated Legislation be re-named 'Delegated Legislation Committees', though in view of the lengthy titles of many statutory instruments and the fact that such committees routinely consider several instruments together, we do not favour incorporating the title of the instrument into the committees' names. European Standing Committees are still standing committees in the usual sense, having a core membership, and this Committee has already recommended that they be given more descriptive names as part of a wider package of reform of EU business.[83]

66. There would be procedural advantages to retaining a common name for this group of committees, which reflect, in broad terms, the procedures and practices of the Chamber and engage in debate rather than inquiries. The category also includes the Welsh and Northern Ireland Grand Committees, the Standing Committee on Regional Affairs and occasionally other committees such as the Standing Committee on the Inter-Governmental Conference on the Future of Europe. Their common title reflects the common roots of these committees as the Chamber in microcosm. The familiarity of the procedures in each standing committees benefits Members, who might serve on dozens of such committees in the course of a Parliament. Likewise, the same Panel of Chairmen can be drawn upon to chair a range of committees of the same family. For these reasons, we believe it is necessary to retain a common generic name for the group of committees currently known as standing committees. We recommend that the family of committees currently known as standing committees be re-named 'general committees'

Making public bill committees more flexible

67. Under the current Standing Order, a special standing committee considers a bill in two phases:

a) The evidence-taking phase. This must be completed within 28 days of the bill's committal, during which time the committee may hold one private deliberative, meeting (to decide when to meet, which witnesses to invite, etc.) and up to three public evidence sessions of not more than three hours each. The committee is chaired for this phase by the chairman of the relevant select committee and has the same powers as a select committee to call for evidence.

b) The standing committee phase. Having completed the evidence-taking phase, the committee proceeds to go through the bill in the normal way. This phase is chaired by a member of the Chairmen's Panel.

The Minister in charge of the bill is a member of the committee, though he or she may also appear as a witness during the evidence-taking phase.

The evidence-taking phase

68. The time restrictions on the evidence-taking phase were proposed in the original Procedure Committee Report which recommended the establishment of such committees. The Committee was

'anxious that the House should proceed cautiously with this new and potentially most useful reform. If experience showed that the standard allocation of three sittings could be enlarged, this could be done later in the light of that experience … the addition of three morning sittings for the investigative stage of each bill would be offset by a reduction in the "amendment" stage whereas a longer allocation of investigative time would be bound to add considerably to the total time taken by each bill in committee'.[84]

The requirement that the sittings be held in the morning was presumably to avoid clashing with the sittings of the House.

69. It is indeed likely that providing for evidence sessions on the bill will reduce the time needed and taken for debate on the bill. For example, many of the 'probing' amendments tabled in standing committee for the purpose of testing a particular piece of wording, most of which are in any event withdrawn, could be dispensed with if Members had an opportunity at the outset to question the Minister and officials on the bill. Direct questioning is perhaps a more efficient means for Members to examine the bill than the use of probing amendments, which often require officials to guess what the amendment might be getting at when preparing the Minister's brief, and then lead to debate on the technical merits of the proposed amendment rather than on the merits of the bill.

70. However, we are not confident that the right equilibrium between investigation and debate will always be reached with three evidence sessions. Some bills might require more evidence to do them justice. Others might require fewer, a single session with the Minister and officials being sufficient. The same applies to the length of the evidence sessions; and the requirement that they be held in the mornings, which was anyway waived in the most recent case of the Adoption and Children Bill, is out-of-date given the introduction of the new sitting hours of the House.

71. The simple purpose of these restrictions—to stop the evidence-taking phase of the committee from becoming unduly drawn-out and unnecessarily delaying the passage of the bill—can now adequately be met by a sensible programme order. We recommend that public bill committees should hold at least one evidence session, with the Minister and officials, in all cases. Beyond that, the general restrictions on the number, duration and timing of oral evidence sessions held by public bill committees should be lifted. Appropriate out-dates should be applied instead on a case-by-case basis in the programme order. The programming sub-committee of the public bill committee should decide on how the committee uses the time available to it, including the division of time between evidence-taking and debate.

Chairing public bill committees

72. As we have already noted, the evidence-taking phase of the special standing committee has usually been chaired by the chairman of the relevant departmental select committee. There are good reasons for this practice, which provides a degree of continuity between select and standing committee work but, if all government bills are to go to a special standing committee, it could become an intolerable burden on some select committee chairmen. All departmental select committee chairmen should expect to chair the evidence-taking phase of a public bill committee from time to time but, in committees whose departments have a heavy legislative workload, we suggest that this work might be shared between the members of the committee. It might also be appropriate for the chairman of a non-departmental committee, such as Environmental Audit or Public Administration, to take the chair in some cases.

PUBLIC BILL COMMITTEES AND PRE-LEGISLATIVE SCRUTINY

73. The purpose of a public bill committee is not to replicate the pre-legislative inquiry, nor should it be seen as a substitute for a proper pre-legislative stage. The need to complete both the evidence-taking and the consideration of the bill in reasonable time means that these committees are not a suitable vehicle for exhaustive inquiries, nor are they a substitute for the consultation exercises undertaken by Government before a bill is presented. Where there has been a pre-legislative inquiry, we would expect the public bill committee to take the pre-legislative report as its starting point and not to re-examine the same witnesses on the same issues. In some cases, a more substantial series of evidence sessions will be appropriate but in many cases, it might be that only one investigative meeting is required.

Making public bill committees more effective

74. If the new public bill committees become the norm, bills will still be subject to detailed clause by clause consideration of the kind which is currently carried out in ordinary standing committees. We now consider ways in which this part of the process might be made more effective.

COMMITTEE PAPERS

75. In its 2004 Report on Connecting Parliament with the Public, the Committee suggested that it might be possible to make standing committee papers more user-friendly.[85] A participant in a standing committee on a bill typically needs to refer to four documents: the bill, the Explanatory Notes, the amendment paper and the Chairman's provisional selection list. There may also be other documents, such as the relevant House of Commons Library research paper, briefing notes provided by outside organisations and other background material. There is scope for improving standing committee papers in two ways: by consolidating existing documents for ease of reference, and by providing papers which are more readily understandable.

76. The draft Coroners Bill illustrates one way in which documents could usefully be combined, by printing the Explanatory Notes to each clause on the page facing the text of the clause itself.[86] Though there are some technical issues which might need to be addressed, there is no reason why this practice should not routinely be adopted for all bills.[87] Likewise, it would be possible to re-print clauses of the bill on the page facing the relevant amendments, for ease of reference.

77. A common complaint is that it is difficult to see exactly what effect an amendment will have on the text of the bill. It is often necessary to table several amendments to achieve a particular purpose, and working out exactly what a particular set of amendments is intended to achieve can sometimes be difficult. In order to overcome this problem, civil servants sometimes prepare for Ministers a text of the bill showing how it would look if the amendments were agreed to.[88] We recommend that the Government aim to supply to members of the standing committee, and publish on the internet, copies of the pages of the ministerial briefing showing how the bill would look if particular sets of amendments were agreed to.

NOTICE PERIODS FOR AMENDMENTS

78. Members of the Health Bill team described how they had one working day in which to provide briefing on 76 amendments before the first meeting of the standing committee.[89] Amendments are 'starred' on the day after they are tabled and, as a matter of principle, the Chair will not normally select a starred amendment for debate.[90] On the second day, they are no longer starred and may be selected. Since the deadline for tabling amendments is the rise of the House, this means that an amendment tabled just before 10.30 p.m. on Tuesday night can be debated in committee at 10 a.m. on Thursday. This is a problem for civil servants, who have only one working day to provide briefing material for the minister, but it is also a problem for other members of the Committee, who are left with a single day in which to prepare their own speeches. It is likely that, in practice, the short notice period effectively prohibits many Members from participating effectively in standing committee debates.

79. It is also likely that the notice period has a negative overall impact on standing committee proceedings as a whole. If non-Government amendments are to be taken seriously, then the Government must be allowed to give them adequate consideration, perhaps bringing forward its own alternatives. In the some cases, the Minister's response to non-government amendments is only to identify the flaws in the drafting and undertake to re-consider the substance of the amendments before report stage, effectively deferring any substantive debate on the issues until then. If scrutiny is to be effective, then the committee as a whole and the opposition in particular also need adequate time to consider Government amendments.

80. We recommend that the notice period for amendments in standing committee be extended by one day, though the Chairman should have discretion to select late amendments for debate in exceptional circumstances, as is currently the case with starred amendments.

EXPLANATORY MATERIAL FOR AMENDMENTS

81. It has also been put to us that it would assist Members in preparing for debates in standing committee if they were allowed to table a brief explanatory statement with each amendment or set of amendments. It can sometimes be difficult to work out what the intended effect of an amendment would be and a brief statement from the Member who tables it could in many cases greatly assist the reader of the amendment paper. Witnesses from the Health Bill team told us that such statements could help to 'ensure that, when we are briefing our ministers and advising them how to respond, the issues the Member really wants debated are covered and we really are responding to the queries or concerns that are being raised'.[91]

82. There will need to be rules governing the submission of such statements. In particular, they must not be unduly long, nor must they be argumentative. These explanatory statements should be confined to a description of the intended purpose of their amendment which is as short as is consistent with the adequate expression of that purpose. We recommend that the Procedure Committee draw up a set of rules governing the tabling and publishing of explanatory statements to amendments in standing committee, and that a pilot scheme be conducted with a single, substantial bill to evaluate the potential impact of this move. The statements should be optional and it should still be open to Members to table amendments with no explanatory statement, though we would expect the Government to provide them as a matter of course.

83. Another obvious way for government bill teams to find out what a Member intends by a particular amendment or set of amendments is to ask the Member concerned. We appreciate that civil servants might have some reservations about contacting Opposition or back-bench Members directly, and that the bill team's job is to serve the Minister, not the committee. However, some informal contact between the bill team and back-bench Members can be very useful in clarifying just what it is an amendment is trying to achieve, and we recommend that Ministers make clear to bill teams that they are free to contact members of a public bill committee to discuss the purpose of amendments. This might be done by way of a statement in the relevant section of the Government's Guide to Legislative Procedures.[92]

USE OF COMPUTERS

84. Another way to reduce the number of pieces of paper that Members have to juggle is to provide papers on-screen. During the course of our inquiry, we visited the National Assembly for Wales to look at the provision of information and communications technology in the new Senedd building. Each Assembly Member (AM) has a computer at his or her place, with a silent rubber keyboard. This provides access to the documents for each sitting via a series of hypertext links from the agenda, as well as Internet and e-mail access. (AMs also use the system to indicate to the Presiding Officer when they would like to be called to speak, and it permits communication between AMs within the Chamber.) However, such facilities are not available in the Assembly's committee rooms, where paper is the order of the day. There would be advantages to providing working documents for standing committee members electronically in this way. It reduces the costs associated with printing and distributing large volumes of material in hard copy, and electronic documents can be searched and copied.

85. In June 2003, the Liaison Committee decided to permit the use of electronic devices by Members and staff in any select committee which decided to allow their use. This was on the understanding that use of such devices would be discreet, and that they would not be used for external communications, for example, to send or receive e-mails. So far, there have been no reported problems relating to the use of laptops, personal digital assistants (PDAs) and similar equipment in select committee meetings. We recommend that the Chairmen's Panel give favourable consideration to allowing Members to take similar equipment into meetings of standing committees.

86. The increasing use of documents in electronic form in a variety of settings will inevitably come to have a greater impact on the way in which the House works than it has done so far, and we see significant advantages in allowing Members to use computers in standing committee.[93] Properly developed, it should be possible to provide electronic documents in a more user-friendly form than is possible on paper, for example:

a) tracking changes as they are made to the bill;

b) providing hypertext links between clauses of the bill, the relevant explanatory notes, and the relevant amendments;

c) colour-coding amendments, for example, to identify those proposed by the Member in charge of the bill; and

d) enabling Members to cut and paste text from the bill for the purpose of drafting amendments.

87. It will be necessary to proceed carefully in introducing computers to standing committee rooms, not least because of the complicated technical considerations and the potential costs involved. As a preliminary move, we recommend that the House undertake an initial pilot study involving a single standing committee on a bill in which laptop computers are made available in the committee room. The purpose of the study should be to establish what benefits, if any, providing committee papers in electronic form brings, and what problems, if any, it creates. It should not be necessary for the purposes of this experiment to provide network access in the committee room.

63 A special standing committee is standing committee which has the power, before it begins debating the bill, to hold up to three sessions of oral evidence. See Standing Order No. 91 and paragraph 67 below. Back

64 Ev 107-108. Back

65 First Special Report from the Modernisation Committee, Session 2005-06, HC 810, Committee Stage of Public Bills: Consultation on Alternative Options ('the Consultation Paper'). Back

66 Standing Order No. 91. Back

67 Standing Order No. 63(2). Back

68 First Report from the Modernisation Committee, Session 1997-98, HC 190, The Legislative Process, paragraphs 32 & 33. Back

69 Standing Order No. 63(3). Back

70 Ev 51. Back

71 Ev 100. Back

72 QQ. 152-154 & 160. Back

73 See paragraphs 33 to 35. Back

74 QQ 153, 154 & 166. Back