Hansard Society (M 57)
The Hansard Society is very pleased to contribute
to the Modernisation Committee's inquiry, The Legislative Process.
Since 2003, we have been undertaking a review of Making the
Law, the 1992 report of the Hansard Society Commission on
the Legislative Process chaired by Lord Rippon of Hexham. Our
conclusions and recommendations in this submission are based on
our findings from that review. Our
evidence concentrates on the themes and issues contained in the
Committee's Special Report, Committee Stage of Public Bills:
Consultation on Alternative Options, (January 2006, HC 810).
2. THE PURPOSE
In this evidence we identify a number of reforms
that would, in our view, improve the committee stage of Bills.
First, however, it is important to discuss an essential question:
What is the committee stage meant to achieve? By far the most
frequently used type of Bill Committee Stage in the Commons is
the Standing Committee (STC) and its characteristics highlight
some of the wider issues involved in this part of the process.
It is clear from our work, through talking to
MPs of all parties and reviewing the evidence, that there is almost
unanimous agreement that STCs rarely achieve consistent or genuine
scrutiny. The overwhelming dominance of government (through its
majority and whipping) ensures that the Bill clears the committee
in the form that it wishes and that only amendments that government
finds acceptable are passed. Therefore, meaningful input from
MPs is extremely limited.
Some would say that this situation is inevitable:
Parliament and its legislative functions are part of a political
process. However, this reality is at odds with the widely-held
impression that STCs undertake detailed, line-by-line scrutiny
and are able to identify and rectify problems in a considered
and analytical manner. It is the belief that evidence might be
able to influence and change the detail of the Bill in STC that
leads pressure groups and lobby organisations to make considerable
effort to influence them. In fact, this effort is largely wasted
as the Government is usually loathe to concede and change the
There is an alternative view that STCs were
never intended to deliver dispassionate and detailed scrutiny
and that the political process should therefore be allowed to
dominate openly. From this perspective, STCs should be about trench
warfare and should allow the opposition to attempt to delay the
Bill or inconvenience the government, if it feels sufficiently
strongly about the issues. However, many parliamentarians have
alleged, (across both Government and Opposition parties) that
the advent of programming has seriously weakened these potential
weapons and, as a result, STCs have lost this oppositional and
political function as well.
The result, many argue, is that STCs fall badly
between several stools: they fail to deliver genuine and analytical
scrutiny of the provisions involved, their political functions
are neutered, dominated almost exclusively by government (and
this has been exacerbated by programming), 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
Therefore, it is not surprising that STCs receive
an extraordinary level of opprobrium. For example, Andrew Tyrie
MP cited colleagues on both sides of the House who described STCs
as "desperate", "dire" and a "pointless
According to Peter Riddell, "The system has been geared entirely
to getting Bills through regardless of whether they are properly
scrutinised. During the Standing Committee stage of line-by-line
scrutiny government backbenchers are actively discouraged from
participating lest their speeches delay progress on a Bill, so
they can be seen doing their constituency correspondence, and
depending on the season, their Christmas cards." Such
criticisms are nothing new. Richard Crossman in his diaries described
STCs as inane and a waste of time. The
conflicting purposes of STCs led one MP in our review to say that
when she first went onto an STC (as an opposition Member), she
did not know whether she was there to improve the Bill or to attempt
to destroy it.
It is our contention that the dominant feature
of the Committee Stage of Bills should be detailed analysis and
scrutiny of the provisions involved, taking evidence and utilising
expertise as required. In our opinion, the present situation is
clearly inadequate and the Committee Stage of Bills is long overdue
3. PILOTING AND
We welcome the Modernisation Committee's acknowledgment
in its Special Report that "It is likely that the outcome
will not be a recommendation for a `one-size-fit-all' alternative
to the current standing committee arrangement, but a range of
proposals . . ." In addition to this flexible approach, tailored
to particular circumstances, we support experimentation with different
mechanisms to suit different purposes. In our 2001 report of the
Commission on Parliamentary Scrutiny, The Challenge for Parliament:
Making Government Accountable, we proposed that Parliament
should pilot innovations and that a parliamentary committee (the
Liaison Committee was suggested) should monitor and evaluate their
effectiveness. Given that changes to the structure and operation
of STCs would represent a significant change from long-standing
practice, we believe that piloting and experimentation will be
particularly vital tools in testing whether the legislative process
has been improved.
4. OPTIONS FOR
Some core themes: In this section we consider
a range of options for reform that could be introduced to improve
the functioning of the committee stage.
(i) Scrutiny guidelines
In an attempt to bring some certainty to the
process, guidelines for scrutiny should be introduced which would
direct the work of a committee undertaking legislative scrutiny
towards analysis of the provisions. Some essential questions should
always be asked:
Is the proposed law as clear and
unambiguous as possible?
Are the measures practical and likely
to be administratively sound?
What are the law's possible unintended
Will the provisions be likely to
affect negatively or differentially some groups within society?
The potential list of issues is lengthy and
will vary for each Bill. However there should at least be some
broad criteria and benchmarks for scrutinising legislation and
these do not appear to exist at present.
(ii) Changing the methods of working
STCs are constituted and operate to reflect
the Commons chamber. It is obviously proper that the composition
should reflect the balance of parties in the Commons but in other
respects STCs might attempt to introduce different methods of
working and presentation. For example, their appearance and layout
could be changed to a round table model rather than the current
adversarial set-up. The procedures, and the language and style
of the meetings, could be made more straightforward to encourage
greater understanding for outside bodies and the media.
(iii) Introducing External Expertise
In order to bring additional expertise to the
committee deliberation, individuals with specialist knowledge
might be allowed to sit on committees (but obviously not vote).
At the very least, Committee Members could have greater access
to experts and officials than is currently the case, including
contributions for advice and clarification.
(iv) Greater use of Special Standing
The Committees' Special Report refers to greater
use of Special Standing Committees (SSCs). The Hansard Society
has long proposed that Bills should be more regularly committed
to SSCs to allow for expert witnesses to be called and provide
an additional forum for consideration and scrutiny. The key issue
in this approach is to take evidence and expert advice at an early
stage in the process where it is more likely to make a difference,
particularly before political battle lines are drawn.
Such an approach would suit less controversial
Bills, albeit ones that may involve complex or novel questions
of policy. One possibility would be to obtain advance agreement
that SSCs (or other forms of close scrutiny by Committee) should
be used where the Bill in question has particular technical, administrative
or implementation issues. Obvious recent candidates would be subjects
such as Child Support and Tax and Pension Credits where the legislation's
success relies as much, and possibly more, on the detail in the
Bill as on the policy intentions underpinning it. It is regrettable
that SSCs have been used so rarely in the past. We hope that the
Committee will propose a marked extension of their use.
(v) Changing the name
The name "Standing Committee" means
very little, nor is it even accurate given that it is a temporary
committee, rather than permanent as the word "standing"
usually implies. Changing the name to Legislative or Legislation
Committee would reflect their role and functions more accurately
to a wider public.
(vi) Delegated legislation
In many cases the real detail of an Act is contained
in the secondary legislation which is subsequently brought forward.
Although the full details of the delegated legislation may not
be available at the time of the Bill Committee Stage, it would
help genuine scrutiny if, in the case of government Bills, some
idea of the key elements of the delegated legislation could be
provided to the Committee so that they would be able to have greater
understanding of the Act's likely effects.
5. CHANGES TO
(i) Piloting Combined Select and Standing
Our report, The Challenge for Parliament,
proposed the introductionon a pilot basisof
one or two dual-purpose committees that combine standing and select
committee functions. Such combined legislative and scrutiny committees
are the norm in most other Parliaments including those in Scotland
and most of Western Europe. The report noted that the expertise
built up on select committees would make it more likely that Bills
would receive a closer level of scrutiny than under the current
system of STCs.
The report also proposed the introduction of
larger select committees working through a variety of sub-committees
to carry out legislation and scrutiny work on a separate basis.
The use of sub-committees would ensure that greater legislative
scrutiny, especially pre-legislative scrutiny, need not dominate
the activity of the committee. The Scrutiny Commission also recommended
that all MPs should sit on select committees. Currently about
150 or more Members are not on any committee; they represent a
valuable resource which could be used and is currently wasted.
(ii) A semi-permanent Standing Committee?
Another possibility to improve STCs' scrutiny
functions might be the formation of an STC that lasted for a Session
or even longer and which considered all (or most) of the legislation
on a particular subject area. At the very least a pool of MPs
could be called upon to form the nucleus of such a committee.
These MPs might consequently build up greater subject knowledge
and legislative scrutiny skills.
There is also the view that select committees,
or those which are more permanent in nature, are more likely to
take greater "ownership" of Bills, and the subsequent
Act, in contrast to temporary STCs which disband immediately.
As a result, members may feel a greater responsibility for the
quality of the Act and its outcomes and be more committed to monitoring
its progress and effectiveness.
(iii) Evaluate Legislative Committees
in the Scottish Parliament
The Scottish Parliament has taken a different
approach to passing legislation and Westminster may find that
there are lessons to be learnt from its system. Subject Committees
deal with a particular subject of public policy and combine the
functions of Westminster's Select and Standing Committees. In
short, there are three stages of a Bill's passage:
The Bill is referred to the relevant subject
committee, known as the "lead committee" which may take
evidence at this stage. Other committees may be involved, such
as Equal Opportunities or Finance. Once the lead committee has
reported on the Bill, the Parliament itself considers the general
principles as well. The Bill may be referred back to the lead
committee for a further report on the principles of all, or any
part, of the Bill before Parliament makes its decision on the
The Bill receives more detailed "line-by-line"
consideration by the lead Committee.
Parliament debates and decides whether the Bill
should pass. At this point, up to half of the sections of the
Bill may be referred back for further Stage 2 consideration by
the relevant committee(s). The Parliament then considers whether
to pass the Bill.
(iv) Introducing different mechanisms
A number of specific reforms might improve the
operation of STCs, including:
Splitting the detailed scrutiny of
the Bill between a Committee of the whole House and STCs. This
was raised in the 1997 Modernisation Committee report and used
for Bills such as the Sexual Offences (Amendment) Act (2000).
This procedure might allow for clauses requiring greater scrutiny
and consideration to be considered in depth by a STC whereas other
parts of the Bill, which required a lighter touch, could be detached.
Re-committal to a Committee. One
of the main complaints about legislative scrutiny is that substantive
amendments can be added at Report Stage which have not previously
been considered or debated. Making the Law recommended
that there should be the ability to re-commit new clauses to a
Standing Committee or Special Standing Committee to ensure that
they are fully scrutinised and consideration should be given to
establishing a mechanism for this purpose.
Currently the formal committee stage has little
direct contact with members of the public. The benefits of encouraging
citizens to play an active role in the legislative process are
numerous. Legislators can canvass a sense of public opinion around
the issue, utilise the expertise and experience of relevant members
of the public, and speak to those who will be directly affected
by a Bill to assess its potential consequences. However, public
knowledge of the law making process is very limited. Few people
would have any idea that they could contribute in any way. The
language used throughout the legislative process is often prohibitively
obtuse and too technical for most members of the public. Explanatory
notes are helpful, but even these are fairly dense and not particularly
user-friendly. Our 2005 Commission, Member's Only? Parliament
in the Public Eye, put forward a range of proposals to improve
Parliament's communication with the public. One possibility would
be a pro-active strategy by Parliament to identify more grass
roots groups and individuals affected by a Bill. Furthermore,
greater efforts should be made to engage the media which STCs
usually fail to do.
In recent years, partly to address the widespread
criticisms of the quality of legislative scrutiny, various measures
have been introduced to try and improve matters. These changes
include pre-legislative scrutiny as well as government moves to
consider the introduction of a form of post-legislative scrutiny.
The Hansard Society has long advocated the introduction of these
stages and welcomes these developments. However, they do not remove
the need for reform to the formal committee stage.
We believe that some form of pre-legislative
scrutiny should be part of the scrutiny process for all legislation
(with certain exceptions such as emergency legislation). Pre-legislative
scrutiny provides an important mechanism for collaboration between
executive, legislature and electorate and can utilise expert evidence
to strengthen Parliament's legislative functions, particularly
when technical detail lies at the heart of the Bill. The ability
to hear expert evidence, early in the process, provides parliamentarians
with a form of scrutiny that was previously lacking. The evidence
from the pre-legislative stage can be used to bolster the Committee
Stage and MPs who took part in pre-legislative scrutiny should
be routinely involved in the Committee Stage, so that their expertise
can be utilised.
Given that the formal scrutiny stages, particularly
in STCs, are characterised by very tight whipping and a marked
reluctance by Government to accept any changes, pre-legislative
scrutiny can provide the only real time for genuine dialogue.
Nonetheless, pre-legislative scrutiny should not be seen as a
substitute for effective scrutiny in the formal committee stage.
The Hansard Society welcomes recent developments
on post-legislative scrutiny, including the Government's decision
to request that the Law Commission make a study of the issues
involved. There are a number of issues relating to post-legislative
scrutiny which go beyond this evidence focusing on the Committee
Stage of Bills.
However, one specific element is relevant. In
order to assess effectively the impact and consequences of an
Act, it is necessary to know the policy intentions and intended
outcomes of the government (or the sponsor in the case of a Private
Members Bill). The Constitution Committee in its 2004 report,
Parliament and The Legislative Process, recommended, in
conjunction with its recommendations about post-legislative scrutiny,
that the Explanatory Notes to each Bill should include a clear
and developed explanation of the purpose of the Bill, incorporating
or accompanied by the criteria by which the Bill, once enacted,
can be judged to have met its purpose. The Government replied
that it was sympathetic to the principle that lies behind this
recommendation, noting that "The Government agrees that it
is desirable that departments are clear about the purpose of a
Bill" and "The Government agrees that explanatory notes
should clearly indicate what the purpose of a Bill is." The
current Explanatory Notes "explain briefly what the legislation
does and its purpose, including any relevant background and describe
in broad terms how the legislation goes about achieving its aims".
It would aid detailed scrutiny at Committee Stage (as well as
with post-legislative scrutiny) if a detailed Statement of Purpose
and Outcome could be provided as early as possible in the legislative
It is impossible to consider the Committee Stage
of Bills without considering the impact of programming. Our review
of modernisation showed that programming of legislation had been
the most controversial of all post-1997 changes, and not just
with the opposition parties. One principle underlying its introduction
was that an easier legislative passagewith consequent benefits
for governmentwould be balanced by better pre-legislative
scrutiny and wider consultation and consideration of parliamentary
and public concerns. One of the main concerns with programming
as it currently operates is that it has become detached from these
measures so that almost all government Bills are now timetabled,
regardless of whether or not they have had adequate consultation
or pre-legislative scrutiny. Greater certainty about the government's
legislative timetable should be balanced against the opportunity
for less rushed, more thorough, and more effective scrutiny. Increased
use of draft Bills, the regular use of Special Standing Committees
and the provision of adequate time for Report Stages on the floor
of the House should accompany the development of timetabling.
When Making the Law recommended programming
it was in conjunction with the introduction of a Business Committee.
The report argued that it would provide a mechanism to organise
elements of the process such as pre-legislative scrutiny and improved
scrutiny of Bills and would allow greater input and agreement
between all interested parties in the Commons about the shape
and timing of the legislative programme. In order for reforms
to the Committee Stage to be fully effective, any proposals should
consider the wider structures that govern the legislative process,
such as programming and a Business Committee.
Underpinning many of the concerns about the
quality of legislative scrutiny is the widespread view that Parliament
passes too many laws and that, as a result, MPs in particular
are overloaded with work and are unable to carry out all their
functions effectively. The Modernisation Committee may wish, as
part of its inquiry, to consider this broader picture about the
totality of legislation and the capacity of Parliament to deal
Our main theme is that to improve the quality
of detailed scrutiny, at some stage in the progress of every Bill,
there should be a mechanism to take evidence and allow consultation
with outside experts. This may be through pre-legislative scrutiny
or the use of Special Standing Committees. The proposals outlined
in this paper represent a range of different methods which might
be suitable in some situations but not in others. We do not favour
a uniform approach. Rather, we believe that Parliament should
pilot and experiment with different approaches and canvass the
views of MPs and others to monitor and evaluate their effectiveness.
The Hansard Society is happy to assist in any way that might be
helpful to the Committee.
25 Making the Law, The Report of the Hansard
Society Commission on the Legislative Process chaired by Lord
Rippon of Hexham, (1993). Back
We have produced series of "Briefing Papers" on Private
Members Bill, Standing Committees, Delegated Legislation, Programming
of legislation, Pre-legislative Scrutiny, Post-legislative Scrutiny,
European Scrutiny. Also connected to this review are our publications,
Parliament, Politics and Law Making (December 2005), the review
of parliamentary modernisation, New Politics, New Parliament?
(June 2005). Back
Andrew Tyrie MP, Mr Blair's Poodle, An Agenda for Reviving the
House of Commons, (2000). Back
Parliament under Blair, Peter Riddell, (2000). Back
Richard Crossman, The Diary of a Cabinet Minister, Vol
3, Secretary of State for Social Services, 1968-70, (1977). Back