Examination of Witnesses (Questions 180-199)
MR RICHARD
SCHOFIELD AND
MS PATRICIA
BARRATT
28 JUNE 2006
Q180 Chairman: Mr Schofield, Ms Barratt,
thank you very much for coming. My notes say that you are the
Policy Manager, Business & Property Law for the Law Reform
Team at the Law Society.
Mr Schofield: Yes.
Q181 Chairman: Ms Barratt, you are a
solicitor at Clifford Chance and a member of the Law Reform Board
of the Law Society.
Ms Barratt: That is right.
Q182 Chairman: You are both very
welcome. We are very grateful to you for coming here. You have
been listening to the line of questions. In the written evidence
you put before this Committee back in March, at paragraph 3.4
you set out the basic questions which have always been asked and
quote the Hansard Society questions which should always be asked
and say: "However a standing committee in its present form
may not be the best way to answer such questions. At a minimum,
evidence from potential users is likely to be necessary".
As I said to earlier respondents, we are interested in making
special standing committees the norm, and calling them something
different by the way, they will be called bill committees, because
it is completely non-descriptive, they are not standing committees,
they are temporary committees. Personally, at the Home Office
I had experience of a special standing committee on a very controversial
bill, the Immigration and Asylum Bill 1999, and the process worked
well and it did give the government, it gave me, an opportunity
to change the legislation, and in one case to get off the hook
without it being too embarrassing, it made it a more rational
process. Can I ask you first whether you think that is a sensible
way forward.
Mr Schofield: Yes, absolutely.
We are quite happy to stand behind the Hansard Society's quite
detailed critique of current standing committee processes in certain
situations and to advocate the greater use of special standing
committees as being the norm. There are a number of advantages
to that. First of all, the wider evidence gathering powers and
the ability also, to tie into some of the comments made by other
commentators this morning, to use the information evidence contained
in RIAs to the very best effect because they can then get a critique
of that information evidence from experts. It also perhaps facilitates
the division between what we might call political differences
within a committee and technical areas which need improvement.
With the greater ability to call on expert advice, and perhaps
even with some very complex bills to consider secondment of expert
advisers to advise a committee on an ongoing basis throughout
their deliberations, it might take some of the heat out of the
battle so that you can differentiate the political from the technical
to greater effect and end up even with legislation which the business
and professional community would see as robust and workable whether
or not they agree with it in principle.
Q183 Chairman: Could I ask you each
generally the key question. You have talked there but generally
how do you think in other ways we should improve the legislative
process?
Mr Schofield: Leaving aside special
standing committees for a moment, from our perspective there have
been a number of improvements in the last few years: greater use
of draft bills, greater willingness to use carry-over, although
we think that could be extended for certain types of bill but
we would not see it as a panacea that it should be seen as the
norm necessarily, it should be used for certain types of bill.
A running theme from this morning seems to be the Company Law
Reform Bill and my organisation has been working on it for about
nine years and already it is an extremely complex bill, very long.
It is a generational bill, once every 20 or 25 years we do it,
and everybody thinks it is a good idea. It would be a shame if
that bill turned into a less good act than it might otherwise
have been for the sake of an extra period of deliberation on the
technical issues. That would seem to me to be the kind of bill
which you could say almost as a norm should be subject to carry-over
but other bills we would be less convinced about. There are a
number of other areas, and I am just trying to pick up on some
of the points that have already been debated to save some time.
For instance, in relation to secondary legislation, again we would
see distinctions between types of bill and different types of
secondary legislation. There are some bills which give governments
the power to do things but it is clear that the government would
only do that thing in response to some contingency which has not
yet arisen, in which case it would seem perfectly legitimate to
defer the publication of the secondary legislation. However, there
are other types of bill where the government definitely intends
to do something and the means by which it is going to do it will
be contained in some later secondary legislation but that is imminent.
An example, for instance, that is currently being debated in terms
of secondary legislation would be something like the implementation
of Home Information Packs contained in a Housing Bill that was
passed in November 2004 and the regulations have just been tabled.
It seems to us that the bill cannot work without the regulation.
It was always intending to do it within a fairly strict timetable.
To have the draft regulations available at the time of the bill,
or at least a fairly detailed outline of what those regulations
were likely to contain in terms of the content of the pack, the
legal status of the pack and the training of inspectors, it seemed
to us would not have been beyond government and should have been
envisaged at the time and would have allowed better scrutiny of
the bill itself in terms of its desirability, but also allowed
at least some scrutiny of the kinds of regulations which are going
to be needed to implement that bill. The point about secondary
legislation is more use of either draft or detailed outline at
the time of publication of the bill would be very useful for everybody.
We do take the point that for regulations which do need to be
published in the future then some mechanism by which they can
be more adequately scrutinised and amended is needed.
Q184 Sir Nicholas Winterton: And
amended?
Mr Schofield: Yes, if necessary.
That would probably be desirable from both sides in certain situations.
Just to touch on sunset clauses, where legislation has been passed
on the basis that government might wish to do so if certain contingencies
arise, and that is implicit in the bill, if those contingencies
have not arisen within a certain period of time then it is right
and proper to review whether or not that legislation is still
needed and that power is still needed. To that limited extent
I think sunset clauses could then be fairly useful.
Ms Barratt: I would agree with
Richard and previous speakers that more emphasis on the draft
bill and pre-legislative scrutiny is very useful and very beneficial
for the development of the bill itself. Obviously it enables people
who are going to be affected by the bill to give their input,
not just on the policy, et cetera, but on the actual wording of
the bill, which is much more difficult for them to do at a later
stage. Again, it is not such a great political issue at that stage.
I have also got a couple of practical points which I think with
very minimal action could have quite a good effect. A small point
is about notice of amendments. Notice of amendments are published
in the Order Paper but that is only available to us in written
form, it is not really very—
Q185 Chairman: Friendly?
Ms Barratt: Yes. It is difficult
to obtain. They are not put on the internet until the day before.
They are very late in being put on. It is very difficult if you
do not know what amendments are going to be discussed. Yes, they
are not presented in a very user-friendly way. It would not be
very difficult to do a comparator which would show "This
is what it would look like if these changes were brought in".
It is the click of a button really.
Q186 Chairman: Can I just say to
you, Ms Barratt, we absolutely agree with you, which is the reason
why everybody around the table is nodding vigorously. We are very
pleased to hear that because we will quote your evidence in support
of what we believe in any event. You are right, everybody is very
frustrated by this and it is doubly frustrating because internally,
both within government departments and in the Clerk's Department
here, the amendments are in electronic and intelligible form but
they are then transcribed into archaic and unintelligible form
to ensure that members of the public do not get too excited. We
agree with you about that. Thank you for raising that.
Ms Barratt: Also, secondary legislation,
it would be really good if it could be published on the date when
it was laid before Parliament. We have had some instances where
it has been available to the public after it comes into effect.
Q187 Chairman: Could you give us
an example of that? Not now, but if you write to us.
Ms Barratt: The Public Sector
Regulations, which implemented some EU Public Procurement Directives,
and have quite major effects on all business, they kept saying
were going to be published on the OGC website and they were not
being published.
Q188 Chairman: What was the reason
offered for that?
Ms Barratt: I do not know. They
just kept saying they were going to be published and then they
were not.
Q189 Chairman: This was after the
Directives had come into force?
Ms Barratt: They had to be brought
into force by 31 January. I think they were laid before Parliament,
as I remember, on something like 6 January. I cannot remember
exactly when but we did not get to see them until certainly weeks
and weeks after they had been laid before Parliament.
Q190 Chairman: Could you let us have
some supplementary evidence on that in written form and I will
ensure that we ask the OGC about that.
Ms Barratt: It is not an isolated
incident.
Chairman: No, but it is a good example.
We will ask them what happened and why because it seems to me
to be unacceptable.
Q191 Sir Nicholas Winterton: This
is directed to Richard Schofield. In your evidence in 4.1 under
"Report Stage and Lords' Amendments", you say: "For
example, if a substantial amendment" or I presume a substantial
number of amendments, "are introduced by government at Report
stage there could be a requirement to reconvene the standing committee
to consider [that important amendment or series of amendments]
and in appropriate cases to receive evidence from outside bodies."
Is that something you feel very strongly about because, of course,
it would have quite an impact upon the way we legislate? I believe
there has been one occasion when a bill has been referred back
to a standing committee, is that not right, but it certainly is
not a very common practice. Do you feel strongly about it? I personally
believe it would make the government in producing legislation
think more deeply about that legislation before they publish it
if they then need to introduce very important amendments or tranches
of amendments. Would you like to explain your position on that?
Mr Schofield: Yes. The point we
are trying to get to there is if governments are going to substantially
amend a bill to the point where the effect of the bill would be
very considerably different from the effect that it would have
had had it remained as it had been seen by the standing committee
in the first place then it seems to us that there is a strong
case to refer it back for detailed scrutiny, including the taking
of further expert evidence from people outside Parliament who
are going to be affected by that legislation, because in effect
the initial scrutiny of the legislation has taken place on a completely
different basis from what the legislation is going to look like
if enacted. In terms of the legitimacy of the scrutiny process
as perceived by people outside Parliament, to go through a lot
of time and effort and deploying quite significant resources often
to giving detailed evidence to a committee, for the legislation
to then change its very basis without the opportunity for further
input from outside bodies does question the legitimacy of the
scrutiny process.
Q192 Sir Nicholas Winterton: Earlier
in your paper although you are somewhat critical of the standing
committee stage, you still believe that there is a good purpose
in the standing committee stage of a bill?
Mr Schofield: This goes back to
the point I made a little bit earlier. We would prefer to see
something more like the special standing committee process become
routine. There are deficiencies in the current standing committee
process. We do make detailed representations often but it is seldom
with the expectation that it is going to generate significant
amendment even on very technical points for all the reasons outlined
by the TUC. It is very difficult, or certainly governments feel
it very difficult, to give ground at the standing committee stage
even on very technical points. For the reasons I described earlier,
perhaps introducing new mechanisms through special standing committee,
which might make that a little bit easier for governments to bear,
is probably a reasonable way.
Q193 Sir Nicholas Winterton: Mr Schofield,
while I accept what you have just said, that a special standing
committee can play a very important role and there is a less political
macho stance at that particular stage, I put again to you is there
not also good reason to continue to have the line by line, almost
word by word, scrutiny of legislation to ensure that it is actually
going to achieve precisely what it says it is going to achieve?
Sometimes in standing committee these debates can reveal that
the actual current text is not going to achieve what the government
is seeking to achieve.
Mr Schofield: I completely accept
that. The work done by standing committees in detailed debate
and analysis line by line is extremely valuable. If it has the
outcome of actually changing the bill for the better as a technical
piece of legislation, which our experience is that it does not
even after you have had a robust debate of the issue in committee,
it already is a good element of the process, and it could be an
exceptionally useful element of the process, but there is a gap
and that gap is created by the political stand-off in the committee.
Q194 Mark Lazarowicz: Your paper
is very helpful indeed. I was interested particularly in some
of your comments in your preliminary points in relation to the
reform of legislation, the difficulty accessing legislation and
the various stages in the process. If your organisation and your
members cannot find their way round then it does strike me that
this is a problem to a much greater extent for other organisations
and the general public. How important do you think tackling some
of these issues is before we start opening up some of our other
procedures in the way that has been suggested?
Mr Schofield: In some senses I
think they are parallel projects rather than things that you need
to do one before the other. Some of the debate we are having here
about how do you improve processes through do you continue standing
committees, do you have more select committees, in the short to
medium-term are going to be issues more for parliamentarians themselves
and, if I might use the phrase, fairly sophisticated organisations
like our own. Those changes could be made now to very good effect
for all concerned. In terms of the presentation of information
and material with the ambition of increasing participation by
people who are not normally participants in the parliamentary
process and to remove some of those barriers is a complementary
project but not one which needs to take place before the other
changes. It is important that those two issues are not conflated
as being exactly the same issue. The increasing participation
of people not normally involved is an important separate project,
but in the short-term there are very simple things, some of which
Patricia has already described, that could be done which would
assist our deliberations very quickly and very easily, and those
actions should be taken straight away.
Ms Barratt: I was just going to
say about accessing legislation. It is relatively easy for lawyers
to access amended legislation because we have databases which
factor in all the changes and keep it nicely up-to-date, but for
the general public that is much more difficult so they do not
have an access to up-to-date legislation.
Q195 Mr Knight: Do you think there
has been a Whitehall trend in recent years for officials to include
in bills a wide regulation-making power which is not strictly
necessary for the purpose of the bill and the idea is to allow
departments to make other changes later on down the line without
then having to seek further parliamentary approval?
Ms Barratt: Yes.
Mr Schofield: Yes.
Q196 Mr Knight: And that should be
deplored.
Ms Barratt: Yes. We were worried
about the Legislative and Regulatory Reform Bill which seemed
to do exactly that, which gave powers to make more or less any
secondary legislation. We did think that perhaps it might be possible
to set aside some parliamentary time in the session that was devoted
to keeping the law up-to-date, keeping the law effective, since
that must be one of the functions of Parliament and if there was
perhaps time set aside for that it would not be able to say, "We
do not have time to do that" and Law Commission Bills would
not take 10 years or so to get on the statute book.
Chairman: There is a big problem about
Law Commission Bills.
Q197 Mr Knight: I have one other
question which is unrelated to that last question. On deferred
divisions you appear to be in favour of deferred divisions in
committees saying it would be advantageous to witnesses and "a
change would almost certainly save time". Is there not a
big downside though in that if committees use the deferred division
procedure what might happen is the government of the day would
merely seek to have a quorum during the whole of the proceedings
and then members would turn up en masse at the end of the day
to vote, therefore leading to a situation where we have less scrutiny?
Mr Schofield: Yes. In practice
that might well be the effect of it and that would be regrettable.
The comments that we made about how the process could be improved
are all predicated on the assumption that parliamentarians are
committed to participating in scrutiny at a high level and a detailed
level.
Q198 Mr Burstow: I just wanted to
pick up on your comments about departmental select committees
and their contribution to this process. You refer in the paperwork
to the example of the inter-relationship between the draft Mental
Health legislation and the Mental Incapacity Act and concerns
about how those two pieces of legislation might interact one with
the other, which certainly I know during the passage of the Mental
Incapacity legislation was an issue, particularly during the draft
stage of the bill. In process terms what do you think could be
done differently to allow those sorts of concerns to be addressed
or is it something that has to be dealt with outside of the parliamentary
process before we even get to this stage?
Mr Schofield: If there is a fault
in the process the chances are that the fault is going to have
occurred right at the very beginning of the deliberative process
within government and within departments. It would be quite difficult
to remedy that fault purely by change to the parliamentary process.
I have no particular solution in mind. To some extent, any change
in the parliamentary process would need to reflect a change in
practice within government departments as to how they create adequate
liaison channels where there are proposals for change which cross
over departments. I have no particular recommendation.
Q199 Ms Butler: I want to thank you
for your paper, it is very informative, and the post-legislative
overview is very good as well. I want to concentrate on the "Parliament
and Public" section. You have already mentioned access to
the internet and so on, which we all agree with, as the Chairman
has stated, but you mention digital television and I wonder if
you could talk us through your thoughts around the use of digital
TV and how you think Parliament can make better use of that. Also,
you briefly mentioned something about your lawyers' database that
you keep up-to-date with regard to legislation and I am just wondering
how exactly you do that.
Ms Barratt: The database is a
commercial product which is run by external providers and many
lawyers sign up to. They track all changes and put them into the
legislation, so as soon as it is passed they physically put it
into the legislative database.
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