Select Committee on Modernisation of the House of Commons Written Evidence

Rt Hon Geoffrey Hoon MP, Leader of the House of Commons (M 48)


  1.  The Committee has agreed to conduct an inquiry into the legislative process. This will look at a range of areas in which practices and procedures might be significantly improved and made more effective, as well as providing an opportunity to review developments since the Committee's First Report of 1997. I very much welcome this inquiry.

  2.  The list of specific issues identified by the Committee is a useful one. I recognise that the question of the role and practices of standing committees may be a particularly important area for examination.

  3.  This paper contains some personal thoughts, first on standing committees and the committee stage of a bill, and then on other areas. The Government has not formed a view on the various ideas raised, but would welcome a broad discussion as to possible ways forward. It is important however that reforms reflect the need for the legislative process to be effective in delivering legislation within a reasonable timescale. New approaches and procedures must aim at improving the quality of scrutiny while avoiding a lengthening of the process.


  4.  Any system for scrutiny of legislation will require a stage involving the detailed consideration of amendments and clauses. The standing committee has evolved to perform that role. It operates in effect as the Chamber in miniature, providing an opportunity for the Opposition parties and backbench Members to probe the details of the bill and for the Government to bring forward amendments for which the need has been identified (or on which drafting could only be completed) after the bill was introduced. In many ways it performs these roles effectively. But equally, standing committees have been the subject of much criticism over the years, reflecting a perception that debates are often sterile in nature and ineffective in terms of addressing the points which need real examination. In addition, the current processes can be difficult to follow from outside, making them work disproportionately to the advantage of larger organisations and professional lobbyists.

Alternative approaches

  5.  There is a recurring theme in discussions on legislative procedure that there could be benefit in widening out the process into a more open, inquiry-style process, using more select committee style techniques. Although not directly linked to standing committees as such, pre-legislative scrutiny has reflected this approach. Special Standing Committees are another available tool. There is also the model traditionally used for the quinquennial Armed Forces Bills of formal committal after second reading to a select committee, with the select committee itself conducting the principal amending stage for the Bill. The Committee has issued a consultation paper inviting comments on a range of these and other models.

  6.  A great number, indeed probably the vast majority, of other legislatures operate more along such lines. A standard approach is that most or all the members (or non-ministerial members) of the legislature are members of permanent subject committees which both look at legislation and have wider responsibilities. The style of consideration of the legislation can be different with less apparent emphasis on the `line by line' approach and more emphasis on specific areas of interest.

  7.  Of course such major differences in approach can reflect a whole range of different circumstances pertaining in different countries. In some (as in France for example) the constitution may be more prescriptive as to how the parliament is to operate. In many, there is a more inbuilt cross-party approach, reflecting different political traditions and different electoral systems. The prevailing political culture will often be one of coalitions and/or minority governments. These factors affect the whole way that legislative procedure is structured and also the way that any particular structure will operate in practice. But while these contextual differences must be kept in mind, there are certain common threads which bear examination.

  8.  One such thread is the principle of having genuinely standing legislative committees. There are clearly some advantages to having permanent committees looking at legislation in a particular area. Of course there may be more continuity in Commons standing committees than at first appears, since bills on similar subjects will tend to attract many of the same members (in particular the frontbenchers) to serve on them. Equally there will often be representation from the relevant select committee on a standing committee on a bill. But these are entirely ad hoc arrangements and there is no continuing engagement between a committee of Members and the legislative programme in a given area. This is not to say that permanent legislative committees do not raise significant problems of their own. One issue is that membership of such committees in some parliaments can be very large, [21]which can dilute the concept of subject expertise and reduce the flexibility necessary to ensure legislation is progressed efficiently.

  9.  A closely related aspect of other models is the mixing of legislative and non- legislative work. Again, it is clear that committees with responsibility for all aspects of a subject—both legislative work and scrutiny/oversight work—can in principle bring extra expertise to bear on both sides of their work. This is common in many parliaments. Equally, it is not without problems of its own. One danger is that non- legislative work is excluded because of the higher priority given to legislative work. Another problem is that scrutiny work is hindered by the fact that the legislative work requires the activities of the committee to be more closely managed (whipped) by the government. [22]

  10.  Under the present Westminster system, the House at the second reading approves the principle of the bill, leaving it to the standing committee to give approval to each individual clause. This can lead to situations in which debate on the key clauses in effect repeats the second reading debate. Conversely (although standing committees can and do choose to pass over certain sections of bills very quickly) committees can be encouraged to spend undue amounts of time on uncontroversial parts of bills. It might be possible to develop the basis on which second reading is understood more towards an approach under which the House at second reading gives provisional approval to the bill as a whole. The committee stage could then explicitly limit its work to those areas of the bill which Members want to examine further. Without losing any accountability or opportunities for scrutiny, the committee's work could become more focused.

Greater engagement with outside interests

  11.  The Committee has highlighted the issue of communicating the content of bills to the wider public. This is a process which must involve both the relevant Government department(s), the two Houses and individual Members. It is at (or in preparation for) the committee stage that the issue is most important.

  12.  There is scope for further thinking about the way in which the detailed scrutiny of bills within the two Houses is linked to the outside world. It is primarily a matter for each House to consider, but there is something of a contrast at present between the treatment of draft bills, where the public can normally—through the work of the relevant scrutinising committee and the Commons Scrutiny Unit—see clearly how they can contribute to the process, and the treatment of full bills, where the public have to some extent to work out for themselves how to contribute.

  13.  The Committee may therefore wish to explore whether there are means available to make clearer to the public how a given bill is being considered in Parliament and how they may get involved. The key area for potential development lies of course in the parliamentary website, on which major and welcome development work is currently under consideration. This could involve perhaps a web page for each bill, with opportunities provided for the submission of contributions by e-mail at appropriate stages. More information about forthcoming standing committees on the website might also help to encourage increased interest from the media in standing committee proceedings.

  14.  This links to the way in which support is given to members of standing committees. At present, the House provides dedicated support for members of select committees in the form of committee staff responsible not only for the administrative arrangements required for servicing committees but also for the provision of subject briefing, both internally generated and through external submissions. The way standing committees have developed, by contrast, means that support is provided for the Chairman and Members through the Public Bill Office only in respect of the drafting and tabling of amendments and the procedural handling of a bill. Additionally, the Library produces research papers on each bill, which Members find extremely useful. But the House does not provide clear channels for the provision of briefing or receipt of suggestions from outside.

  15.  It is quite right that individual spokesmen and Members in standing committees should be responsible for obtaining their own briefing on a bill from party and other sources. But arguably the system as a whole works in favour of the more well-resourced and experienced professional bodies and lobby organisations, who know how to feed their ideas into the process. The Committee might wish to examine whether structures could be developed to allow the systematic provision of evidence and opinions to the committee as a whole—in effect to allow a standing committee to receive written evidence and to enable it to be received from a wider variety of sources. [23]A dedicated web page for each bill, with instructions as to how memoranda or opinions were to be submitted, could be part of this.

Committee papers

  16.  There may also be scope for further work to be done on reducing the complexity of standing committee papers. This is an area in which ideas have been put forward in the past, with input from the Procedure Committee. It is recognised that the different documents required—principally the bill, the amendment paper and the selection list—exist precisely because they have different roles (reflecting the fact that clauses and amendments are debated in groups but are formally considered in sequence), come from different sources and (necessarily) appear on different timetables. Members understand this and have long experience in working under the present arrangements. But new technology is continually providing opportunities to re-examine how things are done and if there are possibilities for beneficial developments they should be looked at.

  17.  Examination could also be given to the possibility of providing members with an opportunity to give an explanation of the purpose of an amendment (or group of amendments) when tabling it. Particularly in the case of non-government amendments, it is not always fully clear what the purpose of the amendment is or what effect it is intended to have. If it were possible to include on the amendment paper a brief explanation of the amendment then the other members of the committee—including in particular the Minister, who will be expected to respond to the points involved—will be able to be better prepared.


Pre-legislative scrutiny

  18.  The Government is committed to the process of promoting pre-legislative scrutiny of bills where appropriate. The suitability of a bill for publication in draft will depend both on its subject matter and on timetabling issues. Where the need for legislation is certain, then it will often be the case that the bill needs to be enacted by a certain time, making it difficult to allow time both for a draft bill stage and for the passage of the final bill. Conversely, where there is no certainty that there will in due course be a legislative slot available for a particular piece of possible legislation, it can be difficult for departments and government to prioritise resources (including the drafting resources of Parliamentary Counsel) towards preparation and consultation on a draft bill.

  19.  There is a twofold objective in the process, namely:

    —  the delivery of better legislation; and

    —  the more efficient passage of that legislation through Parliament.

  Ideally, pre-legislative scrutiny, in the course of identifying some of the problems with draft legislation as submitted, should ease some of the obstacles to the progress of the bill once introduced. Government cannot use the fact that a bill has undergone pre-legislative scrutiny in Parliament as an excuse for providing insufficient time for consideration of the final bill. But at the same time pre-legislative scrutiny will not have been fully effective if in practice it lengthens rather than reduces the time required for the bill. An examination by the Committee of how far the process in recent years has delivered on these objectives, perhaps using a cross-section of draft bills as case studies, could be helpful. Lessons can then be learnt as to how pre-legislative scrutiny might be used to streamline the process of consideration of the final bill.

  20.  The mechanism for consideration of draft bills has been deliberately non-prescriptive. Some have been examined by Commons departmental (or other) select committees and others by Joint Committees, on an ad hoc basis as appropriate and following discussions. There has been a slight non-binding presumption in favour of consideration by the relevant Commons committee, where that committee has expressed a strong interest in considering a draft bill. These arrangements appear to have worked well. The Government is aware of the value of giving as much notice as possible of the timetable for a particular draft bill, so that the relevant committee can accommodate it into its programme of work or (in the case of a Joint Committee) be established in time to move quickly.

Publication of the text of bills

  21.  At present, Members who have presented a private member's bill—whether as a presentation bill or under the 10-minute rule procedure—are not required to publish the text of the bill. The only constraint is that the Question can not be put on the Second Reading of a bill if it has not been published at least by the previous day. The effect of this is that, where a bill has been put down for Second Reading on a particular private member's bill Friday, the House can be uncertain until the day before what the bill is likely to say. This can impose a significant burden on all sides within the House (particularly of course for the Government which has a responsibility to take a considered view on any bill, including expenditure and other implications) and also makes it difficult for outside interests to contribute. It is not what the House expects in respect of a Government bill. There may be a case for the Committee examining whether the period for which the text of a private member's bill should be published ahead of Second Reading should be longer.

Proceedings on report and on consideration of Lords Amendments

  22.  Consideration of bills on report and of Lords Amendments is still an area where difficulties arise for the House and for Members. Consideration of a wide range of amendments of differing political significance is taken together in a way which can lead to partial and unfocused debate. Members are held on a running whip for a lengthy period of time and then face voting on a string of amendments for what can on occasion be up to an hour (or potentially more). In this latter respect specifically, consideration by the Committee of whether there is any scope for the introduction of alternative forms of voting could be helpful.

  23.  Programming has to some extent helped in this respect, in providing more certainty about the likely times for divisions and in providing a vehicle for partial separation (on report) of different areas of the bill for consideration at different times. There will often of course be differing views as to whether enough time has been provided for debate on any specific occasion. The Government, for its part, needs to be mindful of its obligation to ensure that so far as possible the need for amendments at report stage is minimised. Other Members too, of course, need to be selective over what they table at report stage.

  24.  But it is possible that more still could be achieved. The 1997 Modernisation Committee Report floated the idea that much of the detailed work on the less controversial amendments currently dealt with on report and on consideration of Lords Amendments might be undertaken in some form of committee off the floor of the House. Now that many of the other reforms developed in recent years have bedded down, it might be worth exploring this possibility further.

Impact of programming and carry-over

  25.  The House agreed in October 2004 to make the orders governing programming into permanent standing orders. Although the way they work does not yet command the universal support of all Members, the House as a whole recognises programming as a desirable and effective part of the legislative process. Programming can work to the advantage of opposition parties as well as government. It is when the parties are able to work together in agreeing the relevant programme motion that programming can be most effective in targeting the parts of a bill which most need scrutiny.

  26.  The principle of carrying over bills from one session to another in appropriate cases has widespread support and greater use of it appears attractive. As the Committee notes, one of the intended objectives of programming and carry over is the benefits they can bring to the management of the legislative programme and the cycle of business over the parliamentary year. Examination of how this has worked, both in the Commons and in the Lords, and of what further steps could be taken, would be valuable.

Post-legislative scrutiny

  27.  The Government has already indicated its recognition that there could be benefits in strengthening post-legislative scrutiny. [24]There is a range of different ways of approaching post legislative scrutiny. Post legislative scrutiny conducted internally within government would be of a different nature for example from an exercise conducted externally. There are issues about the timescale on which it would be conducted, the degree of transparency, and how it would feed back into policy making. There are a range of potential benefits from such scrutiny, including:

    —  the immediate lessons for present and future policy (legislative and non- legislative) in the area covered by the Act;

    —  the discipline that the knowledge of such a process would place on the preparation of the legislation;

    —  the opportunity for scrutiny of the delegated legislation made under the Act; and

    —  the wider lessons for preparation of bills in other areas.

  28.  At the same time there would be little net benefit in establishing a burdensome system of review which applied irrespective of need and which was not capable of feeding in effectively to the decision-taking process. An effective case would therefore need to be made for supplementing the present ad hoc scrutiny which emerges from the normal political process with a more systematic structure. As noted in the Committee's invitation to submit evidence, the Government has asked the Law Commission to undertake a study of how different kinds or levels of post-legislative reviews might work. This study is underway and, like the Committee, we look forward to considering its conclusions.

Handling of Lords Messages

  29.  When a bill reaches the stage of exchanges between the two Houses after the initial consideration in the first House of the amendments made in the second House, then where there is an external deadline—such as the expiry of a legal provision or imminent prorogation—both Houses can find themselves sitting late into the night while agreement is reached. In these circumstances, Members in both Houses will want to be assured that every opportunity has been taken to ensure that the minimum amount of time is lost after one House has completed its consideration of a message and before the other is reconvened to consider the message.

  30.  Delays can arise potentially from two sources. One is the time needed to receive, prepare and circulate the necessary papers—including the formal copy of the bill with the amendments marked in—to allow the House which is receiving the message to begin its work. To address this, the Committee will no doubt wish to learn from the relevant offices in the two Houses how new technology has been utilised to reduce any delays to the minimum possible and to see whether there is anything further which can be achieved. But of course it will remain important to ensure that any procedures adopted do not give rise to risk of serious errors in the form of uncertainty or disagreement between the two Houses as to what has actually been agreed.

  31.  The other area for delay is the time needed to allow decisions to be taken by members of the receiving House (in practice, this will principally mean the Government) as to how it wishes to react to the decision taken by the House sending the message. If the exchanges, in terms of the substance of the amendments and the point which the exchanges have reached, are such that the Government may have ready alternative amendments to propose, or is proposing a simple agreement or disagreement to the other House's amendment, then this may not take too long. But if the substance is more difficult, or there is a procedural imperative to ensure that the Government's proposal does not have the consequence of bringing the bill to an end through repeated insistence on a particular provision, then this process may take longer and delay the House in resuming its sitting.

  32.  Recent reviews of the legislative process have not given great consideration to the role of Reasons Committees. The Committee may wish to explore whether they continue to serve a useful function in their present form.


  33.  In paragraph 14 of its report, the 1997 Committee set out a range of essential requirements for effective reform of the legislative process:

    (a)  The Government of the day must be assured of getting its legislation through in reasonable time (provided that it obtains the approval of the House).

    (b)  The Opposition in particular and Members in general must have a full opportunity to discuss and seek to change provisions to which they attach importance.

    (c)  All parts of a Bill must be properly considered.

    (d)  The time and expertise of Members must be used to better effect.

    (e)  The House as a whole, and its legislative Committees in particular, must be given full and direct information on the meaning and effect of the proposed legislation from those most directly concerned, and full published explanations from the Government on the detailed provisions of its Bill.

    (f)  Throughout the legislative process there must be greater accessibility to the public, and legislation should, so far as possible, be readily understandable and in plain English.

    (g)  The legislative programme needs to be spread as evenly as possible throughout the session in both Houses.

    (h)  There must be sufficient flexibility in any procedures to cope with, for example, emergency legislation.

    (i)  Monitoring and, if necessary, amending legislation which has come into force should become a vital part of the role of Parliament.

  34.  These remain valid benchmarks for future reform. Almost all the conclusions and recommendations of the 1997 report have either been acted upon or remain relevant today. The proposed review by the Committee—following work by other committees, including the Lords Constitution Committee in 2004—is therefore timely.

February 2006

21   For example, many of the main committees of the Bundestag have comprised 30-40 members; French National Assembly committees may have over 100 members. Back

22   A variant example of the Australian Senate is cited in the paper submitted by Dr Meg Russell to the Lords Constitution Committee's inquiry of session 2003-04. In the Senate each department is shadowed by two committees, one non-legislative and one legislative, with overlapping membership. Back

23   Consideration would of course have to be given, as with submissions to select committees, to a mechanism for identifying any communications which would not formally attract a privileged status. Back

24   See for example Government response to 14th report (Session 2002-03) of the Lords Constitution Committee Parliament and the Legislative Process, HL (2004-05) 114. Back

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