Select Committee on Modernisation of the House of Commons Minutes of Evidence

Examination of Witnesses (Questions 120-139)


21 JUNE 2006

  Q120  Mrs May: And you had an entire week and it was midway through the week, or something?

  Mr Stewart: Absolutely. That would be a huge help to the departments, yes.

  Q121  Mrs May: Can I come back to the issue about secondary legislation and the draft regulations, to understand a process point about where and at what point a decision is taken as to what will be in secondary legislation as opposed to on the face of the bill? Is it the case that there are sometimes things that start off on the face of the bill and then a decision is taken that, no, it is better to put it on secondary legislation? How does that process actually operate?

  Mr Stewart: It will vary from bill to bill, I am sure. From our point of view, the process was that we had a clear policy objective—if we look at the smoke-free provisions as an example— on which we instructed parliamentary counsel and asked him to provide for draft clauses which would bring that about. It is always the case that we try to avoid unnecessary detail and technical issues on the face of the bill. For example, something like the definition of what might include "enclosed" and "substantially enclosed" is quite a technical definition, which we were advised that we should not put on the face of the bill—mainly because it allows no flexibility to change it if we do not get it quite right. That said, we have made clear that the definition we plan to use, in terms of the smoke-free provisions, is to follow the Scottish definition. We have therefore been clear about what our definition is, yet we do not want to put it on the face of the bill because it provides no flexibility to change it, should it not work in the future.

  Ms Warner: On the point of issues moving from primary to secondary legislation or secondary to primary, it is more likely to happen that something would move from what we intend to be in regulations to the face of the bill; because the Government might come under pressure to make certain things clear on the face of the bill and not leave it to secondary legislation. I think that things are therefore more likely to move that way during the debate.

  Q122  Mrs May: There is a lot more secondary legislation now. There are a lot more bills where the detail is left to the secondary legislation than there used to be. That is what I am trying to get at, namely what is the process that has started it down this route. The definitions were pretty crucial to this particular bill, so I am interested that they are described as technical. Who was it who said, "These definitions are technical and should be in secondary legislation rather than on the face of the bill"? Was it the lawyers? The policy team?

  Mr Stewart: The department policy team, in conjunction with ministers, will have decided. We had obviously seen the definitions that Scotland had put forward for their smoke-free legislation, which were in regulations. It was a technical issue. Putting it on the face of a bill does not allow any flexibility, other than to come back and change the primary legislation again. Something like that you may well not get right, or absolutely right, first time. We were fairly clear about what definitions we were going to use. We had previously consulted on definitions when we consulted over the summer. It is not that we were trying to hide what our definitions were. The other important thing which you perhaps do not see the benefit of is that, as I mentioned earlier, the Delegated Powers and Regulatory Reform Committee of the House of Lords goes through every regulation and order-making power within a bill with a fine toothcomb, and comments on its appropriateness and whether it should be for secondary legislation or not and, 99% of the time, departments accept the recommendations of the Delegated Powers Committee. In the case of the Health Bill they made maybe two or three fairly small recommendations. So they were content that we delegated appropriately.

  Mr Howarth: I think that it is fair to say, Chairman, that you and I, in Opposition, have tabled amendments that, had they been adopted, would not necessarily have achieved the policy objective we set for them.

  Chairman: Speak for yourself, Mr Howarth!

  Q123  Mr Howarth: I can remember one occasion with the Stalking Bill in about 1996, when we succeeded in getting an amendment through. When we found out the effect that it would have had, we had a hell of a job getting rid of it the next day! I make that point because, to be fair, it is difficult for any Opposition to get that process exactly right and to get the wording of an amendment right. I was interested that you felt that the procedures in the House of Lords made that easier to deal with, rather than in the House of Commons. Do you think it would be helpful if there was a member of the bill team designated to liaise with the opposition parties, so that they could have a way in to amendments, which gave them advice about the actual meaning of it?

  Ms Warner: I think what we were saying about the House of Lords was that perhaps we have more discussions about explaining the Government's position. We would not draft an amendment or advise on drafting. We of course appreciate that Members who are not part of the Government do not have access to legal draftsmen and it is very difficult. I wonder whether another way to do it is more about having debates over principles or ideas and then, if those are accepted, it being the Government's job to go away and draft something.

  Q124  Mr Howarth: I was not so much thinking of that. What I thought was that, for argument's sake, there would be an Opposition spokesman who might have 50 amendments. I am not saying that you should draft them, but if you could sit down and go through those 50 amendments and say, "I think this one might not actually achieve what you want it to", I think that would be a helpful process.

  Mr Stewart: I see absolutely no objection to maybe having a relationship between the bill team and other Members, if it will help us understand what the intention behind an amendment is. What we have to do at the moment is try to strike the right balance between addressing what we think the intention is, but also making clear that the effect is not the desired one; but, when we are clear what the intention is, maybe we can focus and have a more constructive debate on what the amendment is intending to do. I think that there is also potentially a role for the Public Bill Office in advising Members on how they might be able to draft—

  Q125  Chairman: They do at the moment.

  Mr Stewart: I am sure that is true. I do not think that the bill team can advise on drafting. That is why we have parliamentary counsel who draft our clauses for us. So I would be slightly nervous about saying that we could help and assist you in getting the effect right. We might be able to help you get it closer, but I am not sure that really should be a role for the bill team—but we are happy to discuss what the intention behind amendments is.

  Ms Warner: The only other point to make on that is that we have talked about the time pressures and having a day to turn round amendments. Although in principle we would be very happy to talk through with Members, it has implications for time and resource.

  Q126  Mark Lazarowicz: As you will have heard from the Chair's introduction, one of the things we are looking at is a possible move towards the use of special standing committees on a regular basis. I wonder if you have any thoughts about how that might affect the process and the timetabling for dealing with bills, particularly at committee stage. For example, it occurs to me that if a committee starts off with a quasi-select committee procedure, where evidence is taken from witnesses and the rest of it, then it is quite likely that members of the committee—Opposition members, even the Government itself—hopefully will want to take account of what those people say when they then proceed with their consideration of a bill. Presumably you would not want to be in a situation where you hear the witnesses on a Thursday and then you move to the standing committee stage on the next Tuesday. Would there be consequences there for some timetabling, to allow consideration of the evidence stage of a special standing committee, and how might that affect the process?

  Mr Stewart: I am slightly nervous about us, as a bill team, commenting on the merits of a different kind of procedure, but obviously—

  Q127  Chairman: Please do not be nervous. If you say something out of line with your minister, I will talk to her. We want to know from you, as officials—we are all grown-ups, we know that there are ministers running departments and their officials behind them—and you are in the engine room of the bill process. What it would be helpful to know from you guys, who obviously think about the bill process as well as what you are doing day by day, is how it would feel if there were the equivalent of special standing committees.

  Mr Stewart: From a process point of view I do not think we have any serious objections to that. It would lengthen the process of standing committee, I am sure. We should not forget that our bill has gone through quite a lot of scrutiny through the full public consultations we have conducted before; so we have to be sure that it will add more value, and not just add length to the proceedings without coming up with anything new. It is also worth noting that the Health Select Committee, during the passage of the bill, did publish a very helpful report on the smoke-free provisions. You could argue that maybe it would have been more sensible to have had that report earlier, before the bill was introduced—that is difficult, because I know the timetables are uncertain—and whether that might be a more efficient way of scrutinising the bill in more detail than tagging on some kind of select committee procedure to the standing committee session.

  Ms Warner: For my part, I quite agree. The only two points of possible concern would be, first, whether it could duplicate the public consultation that goes on to begin with, and there would need to be some careful thinking about what issues it would cover in making sure that it is not just repeating a process that has already happened. Secondly, being aware that it would clearly lengthen the process, if it is to have value and if the Government is to consider what comes out of that select committee phase.

  Q128  Mark Lazarowicz: What kind of consequences? You might then just have the timetabling. Take the example of the committee taking evidence on a Thursday: presumably, if you want to think about it seriously, they will not want to put down 100 amendments by Monday and, if they did, you would have difficulty in coping with them. You work under pressure and deadlines, and I understand that, but what kind of time gap—period of reflection, as I think it is called in some places—might be appropriate? A week? Two? How would you cope with that?

  Mr Stewart: It is difficult to say. Will the committee, following that evidence session, compile a report as a result? Will it just be a question of Members, in an uncoordinated way, tabling their own amendments, depending on what their views were following the evidence that had been taken? I think that it is difficult to say what an appropriate timescale would be, unless I understood the process slightly more clearly. Yes, obviously, we would not want a situation where there were hundreds of amendments tabled in a very short space of time.

  Ms Warner: I do not know if you are taking evidence from parliamentary counsel, but they will be able to advise you on how long they need from receiving instructions to drafting fit-for-purpose amendments.

  Q129  Mark Lazarowicz: Perhaps I could briefly follow that up, and it takes up a point that George was making. It seems to me that if you do move towards a special standing committee procedure, there will inevitably be a tendency—it is part of the purpose of it—for the committee to have a greater collective role in the framing of the legislation. Taking on George's point, I got the impression from what you were saying that, although you could see how there would be an opportunity for more informal discussion with Opposition or back-bench Members, you could not see yourself acting in the role of advisers or helping in the drafting of amendments. I understand that. One possibility might be to increase resources or provide resource support from the Public Bill Office. Would there be a case for having support directly for a special standing committee as a whole to provide the kind of advice on amendments which Opposition and back-bench Members might want to take advantage of?

  Mr Stewart: I am sure there is a case for it, yes. Obviously every committee has its own clerk, and I think that they already do provide a significant amount of advice to Members. Whether, because of time pressures, they are not able to devote as much time as they would like, I do not know. We do not have a very close relationship with the Public Bill Office in terms of its relationship with Members. I do not really understand how that relationship works, I am afraid; but, yes, I am sure there is a case for Members being given more legal support in terms of helping them to draft amendments.

  Q130  Graham Stringer: In your opening remarks you talked about being responsible for regulatory impact assessments. Could you explain to the Committee how you go about getting the information to put in those regulatory impact assessments? They rely on a large amount of external knowledge of the market sometimes, do they not?

  Ms Warner: In our case, because, as John explained, we call it a portmanteau bill, each separate policy area—and there are up to 13 in our bill—which needed a regulatory impact assessment conducted their own assessment, which we drew together in something that looked at the bill as a whole. Perhaps I could talk in slightly more general terms about the process for putting together an RIA.

  Q131  Graham Stringer: Yes.

  Ms Warner: We have economists, various specialists and experts within the department, and we would call on them as resources to advise on the markets and on the particular issues related to that policy area. So that is where our expertise generally would come from, but also any studies that have been published externally. The whole point of an RIA is to draw together that evidence, put it into options and pros and cons, and to set all of that out for the public.

  Mr Stewart: We have of course consulted widely on our draft regulatory impact assessment. It still is a draft because we do not yet have an Act. It is yet to be finalised, therefore. Yes, we take on board comments from—

  Q132  Graham Stringer: There is a view that regulatory impact assessments should be either independently monitored or independently produced. Do you think that would be helpful?

  Mr Stewart: The bill team has not been responsible for producing the individual regulatory impact assessments for the bill. It has been our lead policy teams. Our role has really been to make sure that it is all pulled together, that we do have one, and it meets the requirements that the Government has set out for an RIA. I would not really want to comment on that point, therefore. The Cabinet Office is responsible, and the Better Regulation Executive, for regulatory impact assessments, and I have to say that I am not entirely familiar with the whole process.

  Q133  Graham Stringer: May I ask another, not totally unrelated question. We have just had a debate on the Legislative and Regulatory Reform Bill, which changed the bill quite a lot when it was going through. It seems to me that there are large parts of the bills that come before us—I think it applied to the Licensing Bill, the Gambling Bill, and it may well have applied to the less controversial parts of the Health Bill—which could have been more thoroughly and effectively dealt with by regulatory reform orders. Is there a process at the start of the consideration of a bill by the bill team where you sit down and say, "We don't need to go through the normal legislative process to achieve these ends. We can do it by an RRO"?

  Mr Stewart: Again, I am not terribly familiar with the RRO procedure. In terms of the Health Bill, the bill team was established once we had bid for primary legislation, before the bill team came into existence, and I came in saying, "This is the bill. You need to manage this bill and help navigate it through Parliament". Since starting in the job, though, there have been colleagues in the department who have looked to try and include things, add things to the bill, and certainly we do go through a process with them about whether we really need primary legislation for this at all, and whether things can be done through other routes. Once we had agreement to proceed with the bill, I certainly did not look at whether anything could be done through a different route to that which it had been agreed we were to have.

  Q134  Graham Stringer: I do not want to paraphrase, but you say that, once the oil tanker sets off, it sets off and you do not really assess whether you can achieve the same object by—

  Ms Warner: I think that the consideration of whether something should be done through non-legislative means should happen before the oil tanker has set off.

  Mr Stewart: Or through other legislative means like an RRO. However, that was before our bill team started in post. So there are other colleagues in the department who will no doubt have considered those options.

  Mr Sanders: The only question I would ask, because you have referred to them several times, is about the parliamentary draftsmen, and whether we have asked parliamentary draftsmen to appear before us and to question them.

  Chairman: I think that, before I became Chairman, there was a visit to parliamentary counsel.

  Ann Coffey: There was a trip out.

  Mr Sanders: I have obviously missed that outing.

  Chairman: We can talk about that later.

  Q135  Mr Sanders: The other question relates to talking about the possibility of interfacing with Members who are submitting amendments. I think that in practice it tends to be a member of staff who might be drafting amendments under the instruction of a Member. Is there any mechanism whereby there could be some communication there? You referred to the House of Lords, where there appears to be more of an interface. I wonder if you could talk a little more about that. Who exactly, within the Lords' researchers, are you talking to? What is the modus operandi for it?

  Mr Stewart: I have to start by saying that I am not quite sure why it is slightly different in the Lords. It may be that we are encouraged by the Government Whips Office—in fact we were encouraged—to speak to the Opposition frontbench researchers and keep them informed of what we were doing. We were very happy to do so. That certainly helped us to know when the amendments the Opposition were perhaps planning to table were going to be tabled.

  Q136  Mr Sanders: How did that happen in practice?

  Mr Stewart: Very simply, it was emails and phone calls. It worked very well. So, no, it was not directly with the peers themselves; it was with their researcher staff—but it could be with either.

  Ms Warner: The initial introduction came through the Government Whips Office in the Lords.

  Q137  Chairman: That is one point that we need to follow up, because I think that ministers are understandably anxious, whatever party they are, to ensure that their officials are working to them and not giving stuff away inadvertently. I personally think that there is no reason why you cannot stick to that rule, while ensuring that there is a grown-up conversation between Opposition researchers, the bill team, and other officials. It has always struck me that relations between officials and peers of all parties are less formal than they are at the other end. It is partly because of the layout of where the officials sit in the Lords, compared to where they sit in the Commons. There is not the same barrier and the chamber is bigger.

  Ms Warner: Can I mention one other process we went through in the Lords, which is relevant here? It was between second reading and committee. There was an all-peers briefing, where officials and the policy experts in the different areas came to an open meeting which any peer could turn up to, and we answered questions on details of the policy that perhaps were not clear. Again, that was a very open and useful process.

  Q138  Lynda Waltho: In my experience as a new Member, the bit that worries me is being in the committee and following what is going on—and I know that we have had debates with the clause stand part part of the committee and bills. Would there be any benefit, do you think, in doing away with the routine clause stand part debates—unless, of course, a Member indicated that they would want to speak? I must admit, that is the bit that I find quite difficult.

  Mr Stewart: It is interesting you ask that. Again, I am afraid that I will compare the process in the Commons to the Lords. In the Lords, the standard procedure is that a Member has to indicate that they want a clause stand part debate. If they do not, the general rule is that it does not happen. They can indicate on the day, but that rarely happens. We normally have notification that they want to have a debate on the clause. That certainly limits the number, therefore. Our experience is that often you will have a large grouping of amendments or a number of groups to a clause, which means that you discuss the clause to death; yet there is often just one Member who wants to stand up and still have another go. So, yes, if you had to give notice, that would avoid unnecessary debate and speed up the process. The other process that is more common in the Lords which does not happen very often in the Commons is the grouping of clause stand part debates with other groups of amendments. I had not realised that it could happen in the Commons until I spoke to parliamentary counsel the other day and he said, "It can happen. It is just that it doesn't happen very often". I do not know why that is.

  Q139  Paddy Tipping: I think that the evidence has been really refreshing. My own experience has been that the ministers and advisers tend to see taking amendments as being a sign of weakness, rather than probing and adding to the bill. I wonder how we can change the attitude that the legislative process is about improving the bill. Clearly you are responsible to the minister—the point the Chairman has just made—but getting the policy right is vitally important. It needs to be a co-operative effort rather than one of conflict.

  Mr Stewart: Yes, from a departmental point of view we are very happy to co-operate, but it is obviously a matter for our ministers as to whether they want to be more co-operative. We have no objections to working with Members, Opposition Members, anyone, to help them understand the process and help us to understand better the intentions of their amendments, because that will obviously help us provide better briefing for our ministers, so that when in committee they are actually responding to the point that is of concern to the Member.

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