Examination of Witnesses (Questions 120-139)
MR JOHN
STEWART AND
MS JOANNA
WARNER
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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