Rt Hon Geoffrey Hoon MP, Leader of the
House of Commons (M 48)
INTRODUCTION
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.
THE COMMITTEE
STAGE OF
CONSIDERATION OF
A BILL
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.
OTHER ISSUES
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.
CONCLUSION
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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