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


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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