Select Committee on Modernisation of the House of Commons Written Evidence

Study of Parliament Group (M 62)



  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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