House of Commons - Modernisation of the House of Commons

Select Committee on Modernisation of the House of Commons Written Evidence

Sir Nicholas Winterton MP (M 66)

BACKGROUND

The Importance of Parliament

It is important to appreciate the role of Parliament within the British political process when considering how the legislative process could be improved. The most common assumption about legislatures is that they are, or should be, law-making bodies. In fact, legislatures with genuine powers to initiate and carry laws are relatively few and far between. Most legislatures actually have more of a policy-influencing role, to use Philip (Lord) Norton's terminology, rather than a policy-making role. [41]This lack of legislating ability, however, does not mean that legislatures are without use or are not fit-for-purpose, to use the modem terminology.

Prior to 1970, legislatures were, broadly speaking, analysed in terms of their lawmaking power and dismissed as "weak" if they lacked legislative power. Robert Packenham, however, identified a number of other functions commonly exercised by legislatures, broadening the way such institutions are viewed and assessed. [42]Since Packenham's analysis of legislative functions, the true roles of Parliament have become clearer.

Lord Norton has written that the most important function of Parliament is that of legitimation—the generation of popular and elite support for the right of the government to rule. For this to happen, Parliament must be an effective scrutiniser of the executive, and be seen to fulfil such a role by the public. As the Conservative Party's Commission to Strengthen Parliament noted. [43]

"Citizens need an effective Parliament. They need a body that can call the government to account, that can ensure that government answers for its actions and the actions of civil servants. They need a body that can scrutinise and, if necessary, change the legislative proposals brought forward by government proposals that, once approved by the Queen-in-Parliament, have the force of law. They need a body that can ensure that their voice is heard by government when they have a grievance, be it about the impact of a policy or the absence of a policy. They need the security of knowing that, if there is a problem, there is a body to which they can turn for help, a body that can force public officials to listen.

"Government needs an effective Parliament. It needs it because its authority derives from Parliament. Government is elected through Parliament and its political authority derives from that very fact. Undermine the authority of Parliament and ultimately you undermine the authority of government. The more government seeks to achieve autonomy in making public policy, the harder it has to work to maintain its capacity to achieve desired outcomes. The more it distances itself from Parliament, the more it undermines popular consent for the system of government. It needs Parliament to give its approval to measures and, prior to doing so, to scrutinise those measures.

"Parliamentary scrutiny should be seen by government as a benefit, not a threat A healthy and vibrant government is one that is able to justify its measures and welcomes critical scrutiny. Riding roughshod over Parliament achieves no benefit: it undermines the popular legitimacy of government as well as Parliament; it results in poor—and potentially unpopular—legislation and it may require corrective legislation at a later stage. Ultimately, no one government—Parliament or citizen—benefits from such a situation. An effective Parliament ensures that government engages in rigorous thinking, is able to argue convincingly for what it proposes, and that its proposals emerge after robust probing—probing that takes place in the full glare of public exposure. In essence, good government requires an effective Parliament."

The House of Lords Select Committee on the Constitution has underlined the importance of strong Parliamentary scrutiny: [44]

"The scrutiny of legislation is fundamental to the work of Parliament. Parliament has to assent to bills if they are to become the law of the land. Acts of Parliament impinge upon citizens in all dimensions of their daily life . . . Subjecting those measures to rigorous scrutiny is an essential responsibility of both Houses of Parliament if bad law is to be avoided . . . If Parliament gets it wrong, the impact on citizens can on occasion be disastrous."

The ability of Parliament to scrutinise, then, is crucial to the stability and health of the political system as a whole.

Parliament Under Pressure

There is an increasing paradox at the heart of legislative scrutiny in the UK. The amount of legislation passed by successive administrations has increased steadily, but the capacity of Parliament to properly scrutinise this activity has not increased commensurately.

While the number of Acts of Parliament has declined over the past three or four decades, as shown by Figure 1, the use of secondary legislation and the number of pages of legislation per session have grown significantly.

Figure 1

NUMBER OF ACTS OF PARLIAMENT PASSED 1950 TO 2005[45]

The use of secondary legislation remained consistent at just over 2,000 individual Statutory Instruments (SIs) per year until the late 1980s, This form of legislation increased in frequency throughout the 1990s and into the 21st century, however, reaching a peak of over 4,500 in 2001 and settling at around 4,000 per year thereafter. [46]

There has also been a discernable up-turn in the number of pages of legislation passed each year, not entirely attributable to the increased use of SIs. In 1990, the total number of pages of primary and secondary legislation passed was 8,940; by 2000 it had reached 12,635.

Modern governments, therefore, have brought increased legislative appetites into office. This may be as a result of an increasingly informed—although decreasingly engaged—electorate being more demanding of government action, or at least governments perceiving such a demand. Parliament, however, has not been able to keep pace with the increased legislative workload. Heavier local demands on Members of Parliament, have increasingly taken them away from Westminster and shifted their focus to their constituencies, away from their primary role as scrutinisers. [47]Institutional constraints and limited Parliamentary time have meant that legislation has often been ill-considered or even not debated at all.

The question for any reform of the legislative process at Westminster must therefore surely be: how can the quality of legislative scrutiny be improved?

The Legislative and Regulatory Reform Bill—Not the Answer

If the question is how to improve legislative scrutiny, the answer is indubitably not contained in the Legislative and Regulatory Reform Bill, currently before Parliament. The Bill contains a significant extension of the Regulatory Reform Act 2001 powers to make deregulatory orders without full Parliamentary scrutiny. The new powers would allow Ministers, by order, to repeal, amend or replace any primary legislation. The only exceptions to this power is that orders may not impose or increase taxation, create or increase criminal penalties beyond a specified limit, or authorise forcible entry, search or seizure, or compel the giving of evidence. [48]

Parliament could effectively be by-passed by orders made under this legislation, with very limited restrictions on the use of the powers. Although the Government Minister in charge of the Bill, Jim Murphy MP, has given assurances that orders will not be used for controversial measures, there is nothing on the face of the Bill to prevent future governments from using the powers for any purpose.

The extent of these powers has caused concern among politicians and among journalists such as Danny Finkelstein of The Times, who described it as "a Bill to End All Bills" and commented that "isn't just a dangerous proposal. It is a flashing red light"[49]. Philip Johnson of the Daily Telegraph has described it as "the legal equivalent of the Doomsday Machine" and "one of the most pernicious measures to have come before a British parliament"[50]. The Liberal Democrat MP David Howarth described the Bill as the "Abolition of Parliament Bill" in an article in The Times. [51]

PROPOSALS FOR CHANGE

Evidence-Taking as Standard in Legislative Scrutiny

For legislative scrutiny to be successfully strengthened, Parliament must call upon all the resources available to it. MPs' ability successfully to scrutinise legislation is only as good as the information they have available to them. Most Members will not have direct experience of how a piece of legislation might operate in practical terms or how it might impact upon certain groups. There are many interest groups who would be pleased to have the opportunity for greater input into the deliberations on legislation. Parliament should make the most of this resource of information and permit greater use of evidence-taking as part of the process of legislative scrutiny.

Standing Committees are designed to enable the detailed scrutiny of legislation, but there is strong argument to say that their ability to perform this role could be enhanced. Empowering standing committees to be able to take evidence would hone their scrutinising edge. Powers to do this currently exist in both Houses of Parliament, through Special Standing Committees, but are not widely used. [52]Making the use of Special Standing Committees the rule rather than the exception has been advocated by the House of Lords Constitution Committee, the Conservative Party's Commission to Strengthen Parliament, Robin Cook and Vernon Bogdanor among others. [53]

The belief that "scrutiny should not take place in a parliamentary vacuum" and that "Parliamentarians need to have access to expert opinion to know if there are potential flaws in a bill . . . they need to be aware of any strongly held views by citizens" led the House of Lords Constitution Committee to recommend that all Bills should be subject to scrutiny from a committee empowered to take evidence. [54]

Pre-Legislative Scrutiny as the Rule rather than the Exception

Pre-legislative scrutiny and the publication of Bills in draft form before being presented to Parliament has been a welcome development in the legislative process. Between 1992 and 1997, the Government published just 18 draft Bills. Between the 1997-98 and 2003-04 Parliamentary sessions, however, the Government published a total of 42 bills in draft form, of which 29 have been considered by a Parliamentary Committee. [55]This is a great step forward in allowing Parliament to input into legislation before it is published as a finalised Bill, rather than the Departments presenting them as faits accomplis.

The practical desirability of pre-legislative scrutiny was highlighted in debate on the Pensions Bill in the House of Commons on 16 November 2004. When the Bill was first introduced in the Commons on 11 February 2004, it had 248 clauses and 12 schedules and ran to 235 pages. The Government made over 450 amendments to the Bill during the Commons stages, adding 62 new clauses and 81 pages to its length. The Bill that was considered at Third Reading in the Lords on 15 November had increased still further to 326 clauses, 13 schedules and 266 pages. Nigel Waterson MP, the shadow pensions minister, commented on the floor of the House: [56]

". . . if ever there were a piece of legislation that cried out to start its life as a draft Bill and be subject to the pre-legislative scrutiny procedures of both Houses, this is it."

The perceived success of pre-legislative scrutiny, and the greater examination of draft Bills in the Scottish Parliament, have led to calls on the Government to publish all legislation in draft form unless there is a good reason not to do so. Draft Bills could then be considered by Departmental Select Committees or ad hoc Committees of both Houses as appropriate. Such recommendations have been made by both the House of Lords Constitution Committee and the Commission to Strengthen Parliament.

Greater Use of Post-Legislative Scrutiny

Post-legislative scrutiny of both primary and secondary legislation is, arguably, even more important than pre-legislative scrutiny. Although the likely or possible impact of a law can be assessed, this cannot compare with an assessment of how legislation has operated in real, practical terms. However, post-legislative scrutiny is not broadly used in this country, and tends only to be employed where something is obviously not operating properly or as intended. Minor improvements are generally not considered, potentially leading to a greater legislative burden on Parliament where unsuccessful measures are replaced with new ones.

The Commission to Strengthen Parliament proposed that Departmental Select Committees be granted research budgets to enable them better to assess the impact of legislation. The wider use of sunset clauses would also be a powerful tool of post-legislative scrutiny, but could take up a great deal of Parliamentary time. Post-legislative scrutiny should, arguably, only be undertaken selectively to achieve the best returns for the time and resources invested—the key question is how widely to draw this selection.

Carry-Over of Bills

Increasing the use of the carry-over procedure for legislation—in effect creating a rolling legislative programme would serve to remove the time restrictions on proper scrutiny of legislation. Under the current arrangements where most Bills fall at the end of a session unless they have been passed, scrutiny is often hurried and the success of legislation more the result of horse-trading than of proper consideration. A rolling programme would allow for a more evenly spread legislative workload throughout the year, rather than a glut of Second Readings in the winter, followed by overloaded Standing Committees in the spring and logjams in the House of Lords.

Not only would a rolling legislative programme lead to greater time for scrutiny within the legislative process—including evidence-taking in Standing Committee—it would also increase the time available for pre-legislative scrutiny. Alternatively, the use of carry-over could be available only for Bills which have been subject to pre-legislative scrutiny.

Critics of rolling legislative programmes suggest that it would remove a valuable discipline from the government business managers, would allow delaying tactics from those opposed to a Bill, and would open the door for a greater legislative workload to be imposed by the executive. Such obstacles could be overcome by placing a maximum time limit on the passage of a piece of legislation. The House of Lords Constitution Committee has suggested a 14-month limit. [57]This would retain the discipline and reduce the utility of time-wasting tactics.

Programming

Consensual programming—a system of timetabling the consideration of legislation by agreement between the political parties—was introduced in 1997. This consensual approach, however, had broken down by 2000. Despite initial goodwill from all parts of the House, as expressed in All Party Programme Motions, opposition parties perceived that the Government regularly refused requests for flexibility and imposed too many guillotines. The current situation—whereby programme motions are put immediately following Second Reading—does not require cross-party agreement, and programme motions are often the source of controversy.

The current system leads to a significant number of clauses and schedules in Bills not being debated. The House of Commons Modernisation Committee has pointed to this (HC 1222), noting the "undesirable effect of curtailing debate on controversial matters on which Members wished to speak" and that "concern about the volume of legislation which passes undebated is entirely legitimate".

The issue of programming was examined by the House of Commons Procedure Committee in a July 2004 report. The Committee expressed its belief that: [58]

"We believe that if programming were used as originally envisaged by the Modernisation Committee, namely only when there is cross-party agreement, it would have the potential to be a more effective way of considering, and improving, legislation, and we regret that it has come to be seen as the same as the guillotine, though more widely applied."

The Committee recommended that: [59]

"programming motions should be decided without debate only where there is cross-party support; on other occasions the Government would, if necessary, have to justify such a motion in a one-hour debate. In exchange, we would expect parties to adopt a constructive approach to programming".

"The initial programme motion for a bill should be taken not less than 48 hours after second reading, to allow the proposed date for the end of committee stage (the `out-date') to take account of the second reading debate and any representations made; there should also be the possibility of a vote (without debate) on an amendment to the programme motion before the vote on the motion itself."

"In standing committees, chairmen already have the power to intervene and suggest a meeting of a programming sub-committee to change the programme; we believe that this is a suitable activity to assist with orderly consideration of the bill. If no member objects, the standing committee should be able to dispense with a meeting of the sub-committee and itself make any arrangements which the sub-committee could have proposed. We believe that it is usually best for programmes in standing committee to specify as few intermediate deadlines (`internal knives') as possible, and that chairmen should have discretion to postpone a deadline by up to 15 minutes when it would be for the general convenience of the committee (during which time amendments to a programme motion could be considered if necessary); and any deadline should be delayed by the length of any suspensions earlier in the same sitting caused by divisions in the House. If time is insufficient longer afternoon sittings may sometimes be a reasonable alternative to a later out-date."

Greater Parliamentary Control of the Legislative Timetable

The creation of a Business Committee in the House of Commons would take the organisation of the legislative timetable out of the shadowy recesses of the "usual channels" into the public eye and would take it out of party political control. A Business Committee would build greater consensus into the timetabling of Parliamentary business and could ensure that no important legislation should be slipped through under the radar.

As the House of Lords Constitution Committee has pointed out, such arrangements are common in other countries, and even within the UK—all three devolved bodies have their own business committees. Parliament is unusual in its executive dominance of the legislative agenda. [60]It is logical for the legislature to be able to set its own timetables for scrutiny of legislation, and would not necessarily inhibit the Government in passing its business.

Secondary Legislation

Parliament needs to be better able to scrutinise secondary legislation, given the increase in its use over recent years. The Liaison Committee has described the system for dealing with Statutory Instruments (SIs) as "woefully inadequate"[61] and many Instruments escape proper scrutiny. Most secondary legislation passes on the negative procedure, which relies upon any controversy being spotted and the instrument subsequently being prayed against. Even if an instrument is prayed against, it is not guaranteed that time will be found to debate it.

One method of strengthening the scrutiny of SIs would be to require all secondary legislation to be published in draft form prior to being laid before Parliament in a final form—effectively creating a "super-affirmative" procedure. This would enable greater Parliamentary scrutiny and better consideration of the likely impact of regulations.

In addition, a dedicated "sifting" committee could be established to spot any controversial instruments that should be prayed against. Departmental Select Committees could then be employed to decide upon the implications and the need for further scrutiny and debate. [62]

To allow Parliament to amend SIs would, arguably, undermine their very purpose. However, the power of Parliament to deal with SIs could be strengthened by allowing the qualified rejection of an instrument—in other words, setting out the terms in which an instrument could be changed to be acceptable to Parliament. [63]

The current period for praying against a negative instrument could be increased from 40 days to, for example, 60 days to allow greater time for consideration.

Other Possible Measures

The following points are other potential changes that could be made to improve the legislative process:

— Require Standing Committees to include a certain number of Members from the relevant Select Committee to build in a greater degree of specialist knowledge.

— Encourage the greater use of evidence-taking sessions outside of Westminster and London, particularly where legislation is not urban in its focus.

March 2006