Examination of Witnesses (Questions 109-119)
MR JOHN
STEWART AND
MS JOANNA
WARNER
21 JUNE 2006
Q109 Chairman: Good morning, Mr Stewart
and Ms Warner. Thank you very much for coming. As you know, we
are conducting an inquiry into the legislative process to look
at how it can be improved. Our starting point is that, whatever
its merits, it certainly can and ought to be improved. Without
pre-empting the conclusions of the Committee, it would be fair
to say that the Committee is interested in ideas of making the
committee stage more forensic. If you are familiar with the procedure
for special standing committees, for example, for the first three
or four sessions the standing committee forms itself into a select
committee and holds an inquiry into key issues, and then reverts
to a clause-by-clause examination. That is one of the issues that
we are looking at. We are also looking at the way the whole process
fits together, from pre-legislative scrutiny; debates at the time
of publication; the general debate at second reading; the detailed
examination in standing committee and on Report stage; what the
purpose is of the third reading; how outside bodies link into
this; and crucial to all this is how it feels from your position,
in the eye, sometimes, of the storm. It would be helpful to us
to hear from you—certainly for the benefit of Members who
have not been involved directly in the legislative process—what
are the processes leading up to the presentation of a bill, and
then some general comments from either or both of you about what,
from your experience, you think are the strengths of the current
system and what ought to be improved.
Mr Stewart: First I should thank
you very much for inviting us. I am sure that there are bill teams
across Whitehall who would be keen to give evidence. While our
views and observations will obviously be based on the Health Bill,
hopefully they will also reflect the experiences of other bill
teams. Perhaps I could start by explaining the role of a departmental
bill team. First, I should explain that there are often two types
of bill teams. When you have single-issue, small bills, the bill
team within a department is normally formed within the actual
lead policy team. They not only lead on policy, therefore, but
also on all the roles that a bill team would normally lead on.
However, for larger, portmanteau bills that cover a number of
different issues, it is generally the rule that departments will
establish a dedicated bill team to manage the whole process. The
Health Bill was the latter of those two. You can divide up the
role of the bill team into two distinct phases. You have phase
one, which is the pre-introduction phase, where the bill team's
role is very much to project/programme-manage the bill up to introduction.
That involves making sure all instructions reach parliamentary
counsel by appropriate deadlines to meet the introduction deadline;
that any necessary public consultations have taken place; that
explanatory notes have been drafted to the bill; that a regulatory
impact assessment has been prepared. All of that needs to take
place before a bill can be introduced. Our role there is in getting
the bill ready. In terms of things like public consultations,
the bill team may or may not be involved; it depends on at what
point in the process the bill team is established. Often departments
will have consulted widely a year or so before they actually introduce
the legislation. In terms of the Health Bill, however, I think
that nearly every aspect of the bill went through public consultation
in some shape or form before introduction. You then have the second
phase, which is after introduction, where our role is then intimately
bound up with the processes and procedures of the House. Unfortunately,
our project/programme management approach goes slightly out of
the window, because the timescale is no longer in our hands. It
is all much more reactive, and obviously we are responding to
amendments as and when they come in—certainly for committee
stage. I do not know if you want me to go on, or if you want to
pick up any of the points?
Q110 Chairman: I have two more questions.
One is this. When you receive amendments from the Table Office
or whoever, are you sometimes perplexed about what the amendment
means?
Ms Warner: Yes.
Q111 Chairman: Would it be helpful
if the Member had to submit a short explanatory statement, "The
purpose of this is `x' or `y'"?
Ms Warner: Yes, I think that would
be very helpful. It would make our processes more efficient. When
we receive amendments we have to look at them, and we consult
the policy experts and also, importantly, lawyers; first of all,
to try to work out what the intention behind the amendment is—which
sometimes we can do from looking at previous speeches that have
been made on the subject. The intention is one thing; sometimes
the legal effect can be something quite different, which we need
our legal colleagues to advise us on. This can all take a bit
of time and, when the timescales are short between receiving amendments
and debating them, it just adds another part to the process. I
think that it would make it much more transparent for everyone
involved if there was some kind of explanation. It would ensure
that, when we are briefing our ministers and advising them how
to respond, the issues the Member really wants debated are covered
and we really are responding to the queries or concerns that are
being raised. I think that would be a very helpful process.
Mr Stewart: Often it is very difficult
to work out what the intention behind the amendment is. It is
easier to work out what the effect is, because that is definite;
but the intention is not always as clear. I think it is important
to understand, from a bill team's point of view, how little time
we have to go through this process. If we look at the Health Bill,
for example, we had the second reading on Tuesday 24 October[1]
and we had our first day in committee the following Tuesday: so
just a week between. It meant that there were only three days
for Members to table amendments for the deadline for consideration
on that first day. We received 76 amendments in those three days.
The deadline is the afternoon of the Friday, which effectively
left us one day, on the Monday, to go through 76 amendments; work
out what the intention, the policy effect, was; write draft speaking
notes for the minister on all 76 amendments—because also
we obviously do not know how far we will get on a particular day—as
well as worrying about how all those amendments should be grouped,
which cannot be done until you are clear on what the effect is.
I would say that it is an advantage to have the first day on a
Tuesday, because you have the weekend to do this; but, let us
say the first day was on a Thursday, then you really do have just
that one working day to do all of it. That can be quite a challenge,
and probably means that speaking notes to amendments are not always
quite as good as they could be. It is less of a problem after
that first committee session, where things tend to slow down a
bit; the amendments drip through and it is a bit more manageable.
However, that first session is certainly quite a stressful time.
I know that, similarly, my colleagues in the department working
on the NHS Redress Bill, while they were in the Lords, had over
70 amendments where again they had only one day—and, of
course, in the Lords it is much more complicated.
Chairman: I will leave my second question,
which was going to be about the formatting of amendments. Let
us take other questions now.
Q112 Ann Coffey: During the Health
Bill there was a lot of talk about partial exemptions; for example,
areas in pubs that could be designated smoking areas. It was clear
during the progress of that bill in committee that the definition
of it would be done through secondary legislation. Part of the
difficulty, when you were deciding how you would vote, was that
how those exemptions would be defined was very important; but,
at the time of voting for either of three options, those exemptions
were not available for you to see in draft form. Is there any
particular reason why, when a bill goes through a committee, committee
members cannot see what is going to go into the secondary legislation
in draft form, so that when they discuss the bill they can make
up their mind what they should or should not be accepting?
Ms Warner: One thing we found
as we went through the process, particularly of standing committee,
was that what would go into the draft regulations was very much
informed by the debates that were had there and the processes
that we went through. I think that it depends on the subject.
In certain circumstances, where the policy is already very clearly
decided or there is very little detail on the face of the bill,
I could see a case for how it would be helpful to publish draft
regulations right at the start. However, I know that in our case
certain ideas have crystallised or been brought to us during the
parliamentary process, which has actually informed what will go
into those regulations. In that case, therefore, publishing them
right at the start would perhaps not have been so helpful.
Q113 Ann Coffey: You must have known—I
am not saying you personally—but it must have been known
whether, in a pub, you would allow a room to be a designated smoking
area in which food was not going to be sold, or you would allow
a space a certain distance from the bar. Those were quite serious
issues, because people might have been inclined to vote for an
exemption if they thought that it was an entirely separate room.
There must have been some understanding of what that exemption
in a pub meant. That would not be informed by the debate, because
the debate would follow how that exemption would be defined.
Mr Stewart: I can see how that
would help, but I would like to think that we try to be fairly
clear. While the detail was going into the regulations, when the
bill was introduced we made clear that pubs which did not serve
food would be exempt. I am not the policy lead on any of this,
but I am fairly certain that at the time we made clear that any
pub that did not serve food would be exempt; any pub that did
serve food would not have an exemption—so there would be
no smoking room. Perhaps we did not make that as clear as we could
have done, but I am not entirely convinced whether you actually
need to go through the process of publishing draft regulations
to get some of these points across.
Q114 Ann Coffey: Do you think that
the draft regulations would have made it clearer?
Mr Stewart: If we had published
draft regulations back when the bill was introduced in October,
the draft regulations would have talked about pubs not serving
food, whether they should be exempt, and other issues. As you
know, the bill has changed because of debate in the House, because
of the free vote that was offered by the Government. As a result,
those draft regulations, which would have taken quite a lot of
time for lawyers to produce, would have been meaningless and they
would not have resolved the final draft regulations. So I think
that there is a danger in publishing.
Ann Coffey: Sometimes bills do not—
Chairman: Ann, would you mind if I asked
other colleagues to come in? Is that okay, or do you want a last
question?
Q115 Ann Coffey: I just wanted to
make the point that this is a continuing issue about giving information,
particularly in the form of what is going to go into secondary
legislation; and I simply do not accept the argument that because
it is time-consuming it is something that should not happen.
Mr Stewart: Could I make one final
point on that, and we may come on to it in due course? The explanatory
notes to the bill, which I think are often under-utilised by many
people—did go to quite a lot of trouble to explain, in quite
a lot of detail, how particular clauses would work and how we
plan to use regulation-making powers. Similarly—and when
we get to the Lords we have to do this—we have to produce
a memorandum to the Delegated Powers and Regulatory Reform Committee,
setting out every delegated power in the bill and why we have
delegated that. Whilst they are more interested in the appropriateness
of the delegation, we also, at great length, went through each
regulation-making power and set out the detail that we were able
to about how those regulations would look. Maybe we should be
producing that memorandum, not for introduction in the Lords but
at an earlier stage, whichever House the bill is introduced in,
because it does provide quite useful detail.
Q116 Mr Burstow: Just on this little
exchange, one of the issues was not so much whether it was places
which did or did not serve food: it was what was "food"
for the purposes of the regulation. It would have been useful
to have had a draft regulation to have illuminated that debate!
I think that was why it was one of the things which vexed a number
of Members at the time. I want to pick up on a couple of things.
You were talking earlier about the benefit of having Members who
are tabling their own amendments supplying some form of explanatory
note. If 76 amendments are tabled, that will probably be a longer
set of explanatory notes than the explanatory notes to many bills.
Have you ever on occasion, in your experience as a bill team or
in the experience of other bill teams, picked up the phone to
ring up a Member who has tabled an amendment, in order to make
sure that you understand the thrust of the amendments so that
you can provide the necessary brief? Why is that not considered
an acceptable practice?
Mr Stewart: I do not think that
it never happens. It may be fairly uncommon. I think that it is
partly the time taken to try to get in touch with Members, given
that we have so little time to prepare the notes. It is a slightly
different process. The whole nature of the process in the Lords
is slightly different, where we do have a different relationship,
certainly with the Opposition frontbench researchers and we are
encouraged to speak to them. In the Lords, therefore, yes, it
possibly happens more often. Why it does not happen so much when
we are in the Commons, I do not know; but, yes, it certainly would
be a sensible way forward.
Q117 Mr Burstow: You mention the
time pressure and you describe the difficulty that arose from
the relatively short period of time between second reading and
the first day of the standing committee. Also, in your exposition
at the beginning you described how there is a great deal of control
you exercise over the process until it comes here, and then your
control over the process ceases to some extent. You are responding
to things as they go along. Do you see any benefit in some clarity
around the timetabling of legislation, not just individual bits
but more to do with business management overall? This is a rather
opaque area in our process at the moment. Would there be anything
that would help, in terms of managing and dealing with the business,
to have greater clarity about when things were coming and when
they were not?
Ms Warner: Greater clarity would
of course be helpful. As John described, we do enter a slightly
reactive phase once the bill comes into Parliament, and we have
to wait for the dates for certain stages to come up—just
as I am sure everyone else does. Apart from the situation John
has described, we did not find a problem with the length of time
between certain stages as they are now. I think we found that
to be very reasonable; but if there was a bit more certainty about
precise dates from the very start, that could only be helpful
in managing the process.
Mr Stewart: From our point of
view, the key thing is the deadlines for tabling amendments: not
so much the gaps between the various stages, which I think are
reasonably acceptable to most bill teams. It is this issue of
having potentially 70 or 100 amendments to deal with in a day;
it is whether there should be a longer lead-in time, an earlier
deadline for tabling amendments, certainly for that first session
of committee, so that we have a bit more time to prepare.
Q118 Mrs May: Following on from that
last point, the alternative solution is to have a longer period
set as the accepted norm between a second reading and the first
committee stage.
Mr Stewart: Apart from the fact
that people could still table amendments right up until the last
minute, which they sometimes do.
Q119 Mrs May: Yes, but you could
change the timetable so that you had a longer period.
Ms Warner: Yes, if you also shifted
the deadline.
1 Witness correction: 29 November. Back
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