Study of Parliament Group (M 62)
COMMITTEE STAGE OF PUBLIC BILLS
COMMENTS BY
THE STUDY
OF PARLIAMENT
GROUP
I have arranged my comments in terms of the
issues that the Consultation Paper seems to me to raise rather
than addressing each alternative option individually.
1 What's the Problem?
The Consultation Paper focuses essentially on
two conceptions of the function of the Committee stage, each of
which is directed towards the same (implicit) objective, namely,
to improve the quality of the product (to make Bills "better"
by the time they leave the Committee):
— A technocratic conception: how this
betterment may be achieved by different arrangements for (closer)
scrutiny
— A democratic conception: how this
betterment may be achieved by engaging the interested / affected
public
This project then raises two immediate questions,
both of which address the implicit objective but neither of which
is amplified in the Paper:
— In what ways are Bills as enacted
(or as leaving the committee stage) so defective that those defects
could have been corrected by the different arrangements that are
proposed (or variants on them), or by engaging the public more
closely?
— How might Parliament determine what
those defects are?
The Paper sets out a number of possible alternative
options. In inviting comments upon them, it is not clear to me
how the procedural variations address what the Modernisation Committee
considers are the problems with the conventional procedures, since
those problems are not set out. To put the question in different
terms, what gains does the Committee expect to follow from the
adoption of any one of these various alternatives (in a suitable
case)?
If the (unspoken) reason why the Committee stage
is not delivering the goods is for reasons of time (and other
resources), programming or politics, then no amount of structural
innovation will improve the position unless it also addresses
these matters. Indeed, those innovations that contemplate public
engagement will inevitably require a greater allocation of resources,
in particular from the clerks.
2 Thinking about the Problem
Assuming that the purpose of this exercise is
to make Bills better, we might begin by asking, how they might
be? A number of (non-exhaustive) answers could be given. A Bill
is better when
— In the short term: for the remainder
of its parliamentary stages it is not open to complaints about
the clarity of its drafting, to the criticism that it is obviously
over- or under-inclusive in its apparent legal effect when compared
with its purpose, to criticisms concerning its compliance with
other relevant norms, such as concern the creation of criminal
offences and sanctions and Convention rights; in short, that any
obvious problems that are revealed in debate (or by taking evidence)
have been identified and addressed
— In the long term: that when implemented,
those responsible for its implementation and those affected by
it can readily determine their legal rights and duties without
excess expenditure of time and effort.
One of the major problems with the long-term
objective is that success or failure is conceptually always a
difficult matter to demonstrate, because:
— if an Act is working well it will
be very difficult to attribute that success to an identifiable
amendment (or debate on an amendment where the clause stood part)
that was made at the Committee stage unless it is clear from the
manner in which the Act is being implemented that had the unamended
clause become law, it would have caused a problem
— an Act that is working badly may
be so for a variety of reasons, and, once more, the question will
arise whether, had the Committee stage engaged in closer scrutiny,
it would have identified and remedied the defect at that time.
3 Thinking about Improvements
Again, assuming that the purpose of the exercise
is to reduce the number of potential defects that a Bill might
contain as it leaves the Committee stage, we can identify two
complementary approaches to their identification and resolution.
One of these is retrospective, relying mainly
on the pathology of legislation and may imply some post-enactment
tracking (post-legislative scrutiny, on which the Law Commission
is consulting). This might bring to light judicial or administrative
challenges that were then corrected by further legislation or
administrative action, which challenges (and therefore the remedies)
might have been identified at the Committee stage had there been
greater opportunities for scrutiny or public input. This is not
of immediate value to the present Consultation, although if it
were the case that some form of regular post legislative scrutiny
were adopted by Parliament, that exercise could in time generate
general lessons about the scrutiny of Bills that would contribute
to the second approach. (As the Law Commission suggests.)
Of potentially greater immediate value at the
Committee stage is the use of checklists. These involve reading
clauses in a variety of ways in order to anticipate defects and
to take remedial action that it is hoped will meet them. These
ways could include, for example, the European Council's drafting
guidelines as a statement of good drafting practice (Resolution
(OJ 1993 C166/1), adapted to domestic legislation:
— the wording of the Act should be
clear, simple, concise and unambiguous; unnecessary abbreviations,
"community jargon" and excessively long sentences should
be avoided;
— imprecise references to other texts
should be avoided as should too many cross-references which make
the text difficult to understand;
— the various provisions of the Acts
should be consistent with each other; the same term should be
used throughout to express a given concept;
— the rights and obligations of those
to whom the Act is to apply should be clearly defined;
— the Act should be laid out according
to the standard structure; (chapters, sections, articles, paragraphs);
— the preamble should justify the enacting
provisions in simple terms;
— provisions without legislative character
should be avoided (eg wishes, political statements);
— inconsistency with existing legislation
should be avoided as should pointless repetition of existing provisions.
Any amendment, extension or repeal of an act should be clearly
set out;
— an Act amending an earlier Act should
not contain autonomous substantive provisions but only provisions
to be directly incorporated into the Act to be amended;
— the date of entry into force of the
Act and any transitional provisions which might be necessary should
be clearly stated.
Checklists of this kind could also include the
government's formal compliance with its obligations to produce
full Regulatory and Environmental Impact Assessments and Human
Rights assessments, and, as is the case with RROs, information
about consultation. But of more substantive value lies in the
Committee asking itself the question, "are we satisfied with
the accuracy and detail of the RIA / EIA?" or, "are
we (whatever the government says) satisfied that this bill is
compatible with human rights and international treaty obligations?"
A checklist would be useful in giving focus to the work to be
conducted at the Committee stage, as well as alerting government
to the fact that these questions will be asked.
Similarly, a checklist should include further
substantive matters such as "is the Committee satisfied that
this bill is compatible with constitutional principles such as:
— non retroactivity of penal provisions
— provision for access to a court of
tribunal to appeal against certain decisions
— protection of state held databases
against abuse
— placing new tribunals under the supervision
of the Council on Tribunals
— non delegation of power to amend
primary legislation?
(These and other principles are listed in the
Constitution Committee's Reports in the last Parliament.) A number
of questions flow from this approach. The Committee can ask whether
it is satisfied that the bill is compatible with these principles?
If not, what reasons has the government produced to justify the
incompatibility and how far should the Committee press Ministers
on them? These are questions on which evidence from the public,
or from expert groups could be taken. Being aware that the Committee
is using these checklists, government would (and should) be able
to prepare thoroughly for them in advance. Where its justifications
are sound, time may be saved, and where they provoke disquiet
but which can be addressed by acceptable changes, there should
be gains to both the short-term and the long-term objectives.
The points made in the foregoing paragraphs
are discussed at much greater length in Professor Dawn Oliver's
article, `Improving the scrutiny of Bills: the case for
standards and checklists' to be published in [2006] Public
Law (summer).
"Advance" proofing of this kind might
well improve the product when it comes to be implemented.
4 Engaging the Public
Where does engagement with the public fit into
this exercise? One inference that could be drawn from question
3c) is that engaging the public in the Committee stage will add
to the legitimacy of the legislative process. That is no doubt
an important value, but I take the main purpose to be as suggested
in question 3f), namely that the public will assist the Committee
to identify strengths and weaknesses in the Bill, which in the
latter case can be corrected.
By "public" in this context must be
meant those (perhaps representative of larger groups) who have
a particular interest in the Bill's subject matter, possibly because
they or, say, their commercial interests will be affected in some
way, for good or ill. They may, indeed, have some expert knowledge
of its likely application.
These, of course, are the kinds of selected
members of the public who are typically invited to give evidence
to select committees or to pre-legislative scrutiny committees.
Here I can speak with some direct experience as a special adviser
to select committees and more particularly to the Joint Committee
on the Draft Gambling Bill. In this case the taking of evidence
was without any doubt a positive contribution to the clarification
of the Bill. In this respect the objection that is recorded in
section 1 of the Appendix to the Consultation Paper, that those
who oppose Special Standing Committees do so because the views
of those who had influenced the Bill "would have been taken
into account anyway" miss two points. The first is the public
examination of their views (which goes to legitimacy as well as
cogency); the second is their reduction to a formal record. In
the short term, during the later parliamentary stages, Members
will be able to refer to the evidence and the exchanges to which
it gave rise. Later, they may cast light on why the Act's implementation
has not been as expected.
The key is to be clear on the focus of the witnesses'
evidence. This needs first, to be directed not to the policy objectives,
but, given them, to the success with which the Bill gives them
legal effect. Thereafter, the evidence falls broadly into two
types: the disinterested and the interested.
— The disinterested witness can be
expected to address the points, first, that if HMG wish to pursue
policy P then clause C1 will or will not achieve it, or could
do so more efficiently; and secondly, that C1 when enacted is
likely to lead those affected by the Act to change their behaviour
for good or ill in terms of P
— The interested witness can be expected
first to praise or condemn P (or say that it goes too far / not
far enough), and secondly to argue that it should be changed (or
not) so as to meet W's interests.
That the interested witness has an interest
in seeing the Bill succeed or fail does not invalidate the evidence,
but it may raise questions, for example, about the interpretation
that W places on current and predicted practice as showing that
the Bill will or will not work.
When the Lords' Select Committee on the Constitution
conducted its inquiry, Parliament and the Legislative Process,
I submitted written evidence on pre-legislative scrutiny.
Speaking of my experience of public engagement I wrote
The evidence gathering process was in the mould
of a select committee. Again in the words of the Modernisation
Committee, `there are various ways in which the House can look
at draft Bills, all using Select Committee-type procedures involving
backbenchers. These could include oral evidence in public and
written evidence from those involved in the preparation of the
legislation and from interested parties. Much of the evidence
would be taken in writing.' As I have implied, the evidence could
be something of a mixed bag. Some was top-drawer, identifying
clearly and precisely the witness' concerns about policy or its
application in particular cases. Careful questioning (the brief
is important) was an effective means by which concerns that were
less well articulated in writing could assume a more useful base
on which to test the Bill's legal effectiveness.
I might add that the kind of hypothetical question,
"does this clause apply to |?" which is a characteristic
of the Committee stage, and which may equally be raised in pre-legislative
scrutiny, may raise issues that go beyond the test, whether the
clause as drafted achieves in law the policy objective, and test
the coherence of the policy itself. That was a not infrequent
experience in the draft Gambling Bill, and was one that required
the government then to rethink or clarify its policy.
5 Engaging the Government
I have no doubt but that the Draft Gambling
Bill as it left the Committee in April 2004 had been much improved
by the engagement with the public. Apart from the examination
of the oral evidence, typically based on the witness's written
evidence, the product of this exercise was then translated into
what I understand is colloquially known as a Whitaker Schedule;
it is Appendix 1 of the Joint Committee's Report. If I may repeat
again what I said to the Lords' Committee:
I feel very strongly that this is one of the
most valuable products of the Committee's work. This is not just
because I worked very closely with the Legal Clerk on it, but
because it exemplifies how a process of enquiry can (a) identify
detailed issues that are in doubt and (b) present the Department
with the opportunity to respond in point or to think again. I
would like to think that the process will, in the words of the
Modernisation Committee, `lead to less time being needed at later
stages of the legislative process; [as] the use of the Chair's
powers of selection would naturally reflect the extent and nature
of previous scrutiny and debate'.
And, it may be added, the Schedule provides
a ready list of points that might be used for the purpose of post-legislative
scrutiny. Part of the value of the Whitaker Schedule was that
it required the department to give detailed answers to the points
raised; this was so even where the answer was to the effect that
the clause was being reconsidered. Here again, there is an obvious
audit trail of Committee questions and government responses that
could be used in post legislative scrutiny.
Could it also be used at the Committee stage?
In suitable cases, where there can be sufficient time between
the Committee and Report stages, why not? The Committee stage
could comprise two sub-stages. The first hears evidence and constructs
a Whitaker Schedule. At the second stage it considers the Government's
responses and then debates further and / or (dis)agrees the clauses.
This is close to the correspondence exchanges
that already take place between the Regulatory Reform and the
Delegated Powers and Regulatory Reform Committees and the government,
a process with clear benefits for the proper scrutiny of RROs.
6 Institutional Questions
It follows from a functional analysis that institutional
arrangements are determined only after there is agreement on what
they are to achieve; in modern parlance, `are they fit for purpose?'
In this respect the Consultation Paper is entirely right to say
that no one kind of procedure is suited to all Bills.
I do not have any particular preference for
any one model. As the Introduction puts it, with a better equipped
legislative toolbox, the question for any particular Bill is,
which tool is most likely to yield the best results in terms of
the functions that the Committee stage is to perform?
These functions have been identified frequently
enough in the past. Your Committee identified in para 14 of the
First Report of 1996-97 eight `essential criteria which must be
met' in making any reforms to the legislative procedures of the
House
(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.
To these we might add, that (leaving aside the
perceived defects to which para 8 of the First Report draws attention),
the primary scrutiny functions of the Committee stage are
(g) to test the success with which the Bill
gives effect to the stated policy, and more particularly,
(h) to test the scope / legality / practicability
/ clarity of definition of the powers conferred on public bodies
and others addressed by the Bill
(i) to test the scope / legality / practicability
/ clarity of definition of the obligations imposed on public bodies
and others addressed by the Bill
I rehearse these for the purpose of reinforcing
the point that the (rephrased) question to be asked when a Bill
is committed to the Committee stage is not, to what type of Committee
should it be committed? The question is, what type of Committee
would do the best job given (1) these criteria and (2) the particular
Bill? The answer to that depends on the views of those regularly
engaged in the Committee stage.
Professor David Miers
March 2006
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