Select Committee on Modernisation of the House of Commons Written Evidence

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. [25]Our conclusions and recommendations in this submission are based on our findings from that review. [26]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).


  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 provision.

  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 interested parties.

  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 ritual".[27] 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." [28]Such criticisms are nothing new. Richard Crossman in his diaries described STCs as inane and a waste of time. [29]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 for reform.


  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.


  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 consequences?

    —  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 Committees

  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.


 (i)   Piloting Combined Select and Standing Committees

  Our report, The Challenge for Parliament, proposed the introduction—on a pilot basis—of 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:

Stage 1

  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 general principles.

Stage 2

  The Bill receives more detailed "line-by-line" consideration by the lead Committee.

Stage 3

  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 process.


  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 passage—with consequent benefits for government—would 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 with it.

  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.

March 2006

25   Making the Law, The Report of the Hansard Society Commission on the Legislative Process chaired by Lord Rippon of Hexham, (1993). Back

26   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

27   Andrew Tyrie MP, Mr Blair's Poodle, An Agenda for Reviving the House of Commons, (2000). Back

28   Parliament under Blair, Peter Riddell, (2000). Back

29   Richard Crossman, The Diary of a Cabinet Minister, Vol 3, Secretary of State for Social Services, 1968-70, (1977). Back

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