House of Commons - Modernisation of the House of Commons

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

Clerk of the House of Commons (M 28)

INTRODUCTION

1. Scrutinising, amending and passing Bills, is a primary function of Parliament. Most legislation which is successfully passed into law originates from the Government of the day; but the procedures for its consideration have to be applicable also to the limited number of Private Members' Bills which make progress[1]. By its nature legislation tends to be complex in both content and form. The procedures of the House aim at giving Members of the House maximum flexibility in carrying out their duty to scrutinise it; but if the legislative propositions under consideration are complex (and they have tended to become more so in recent years as the size of the statute book has grown), procedures alone can do little to reduce the complexity.

2. Legislative procedure has been exhaustively reviewed by bodies inside and outside the House both before and since the report of the Modernisation Committee of 1997-98. [2]As a result it is difficult to come up with ideas which are significantly novel; this memorandum does not attempt to do so, nor to provide an exhaustive summary of previous inquiries and reports. The three innovations which have successfully established themselves in the mainstream of the House's procedures as a result of the work of the Modernisation Committee in the 1997-2001 Parliament are:

— the routine use of programming (Standing Orders Nos. 83 A-I) to timetable proceedings on Government Bills;

— the publication of Explanatory Notes for Government bills, published by the House but prepared by the responsible Department;

— the regular publication of draft bills for pre-legislative scrutiny by Select or ad hoc Joint Committees.

3. Other innovations from earlier Parliaments, which were intended to enable more thorough scrutiny at different stages of the consideration of a bill, remain in the Standing Orders but languish largely unused. They highlight the principal difficulty which faces many proposals which have been or might be made for the reform of the legislative process, namely that they would tend to result in Bills taking longer to get through Parliament. In principle that might not be a bad thing: there is frequent criticism that Bills are produced too quickly to get the policy and drafting right and (by the courts) that the law enacted shows signs of hasty passage through Parliament. But there is no point in recommending or introducing new procedures which are not in practice likely to be operated by Government business managers faced with the task of handling an ever-growing volume of legislation. (The extent of this growth is shown in the attached figures)[3].

COMMUNICATING WITH THE PUBLIC

4. Communicating with the public is an important task, now much in the focus of Parliament corporately. The Committee will be aware that the House is investing increased effort and resources in what has been a neglected part of parliamentary activity in the past.

5. So far as Bills are concerned, there are two principal sources of information for the public. The first is that of Explanatory Notes, already mentioned above, which provide a clause by clause explanation of each Government Bill. These notes tend to be quite full and technical in nature. Although they usually contain a summary of the Bill and an indication of the relevant policy background, they seldom set out clearly and concisely in their introductory sections what the purposes or objectives of legislation are intended to be. In addition, the House of Commons Library produces research notes on individual Bills, explaining their policy background, for general use.

6. So there is already a good deal of information, of an explanatory nature about legislation, in the public domain and available on the internet. Nevertheless, it is detailed, sometimes dense stuff. The Library's Research Notes on the current Work and Families Bill, for instance, run to 64 pages and the Explanatory Notes to 19. There may be a case for the production of a simpler description of Bills for the use both of Parliament itself and of the general public. Such a description might set out a Bill's main provisions in as non-technical language as possible, linking them to its intended purposes and objectives. The Committee will appreciate that this task is complicated by the increasing tendency to legislate by reference to Acts already on the statute book. Explaining in simple terms what a Bill does when it is amending a web of complex legislation already enacted would not be an easy task; the example of almost any recent Finance Bill would illustrate that point graphically.

7. However, if the Committee considers that summaries would be useful, the next question would be: who should produce them? The view taken by your predecessor Committee in 1997 and in the more recent report from the Lords Select Committee on the Constitution was that this was best done by the Government Department which is, in the end, responsible for the Bill[4]. An alternative might be for this to be done by the House administration as part of its information service for the public. There would of course be resource implications if such a course were to be decided on. Another potential problem is that it might be difficult for a politically impartial House service to provide a short and accessible summary of a Bill's intended objectives without risking cutting across the messages being put out by the responsible Minister or Department.

PRE-LEGISLATIVE SCRUTINY

8. Pre-legislative scrutiny is generally acknowledged to have been a successful innovation: much has happened since the Modernisation Committee first drew attention to the need for systematic consideration of draft Bills in its first report on the Legislative Process. [5]Over the past few years scrutiny of Bills in draft, which is usually but not invariably a joint exercise of both Houses, has been widely considered as a valuable addition to Parliament's overall scrutiny of legislation. [6]That is particularly the case because it occurs at a formative stage in the development of what will become the law.

9. Some draft bills have been scrutinized by joint committees and others by departmental select committees in the Commons. The allocation to committees has been determined through the usual channels. The Commons staffing of joint committees has been from the Scrutiny Unit of the Committee Office, which has also assisted departmental select committees considering draft bills.

10. The most obvious measure of the impact of pre-legislative scrutiny is the number or proportion of recommendations accepted; but recommendations vary in their significance, and they may be accepted only in part or give rise to other changes to the Bill or to regulations or guidance intended to meet the same aim in a different way. One of the influences on the Government's response is the extent to which the scrutinising committee examined policy as well as implementation.

11. The impact of pre-legislative scrutiny is not confined to the scrutiny stage, since Members may use the knowledge gained or evidence gathered during pre-legislative scrutiny after the bill is published. Recommendations made during pre-legislative scrutiny have sometimes been pursued at later stages and given rise to amendments to the bill itself, as in the case of the Civil Contingencies Bill and the Disability Discrimination Bill. In one case, the draft Corruption Bill of 2002-03, an adverse report from a Joint Committee[7] appears to have persuaded the Government to reconsider the whole basis of the proposed legislation.

12. Some aspects which the Committee might find it worthwhile to examine in more detail could include the selection of Bills for publication in draft, the allocation to Committees, the time allowed for pre-legislative scrutiny, the different ways in which committees have approached the task of scrutinising a draft bill (eg by considering policy as well as implementation), the effectiveness of committees in engaging public interest (including the use of e-consultation), and variations in the Government's response to committees' recommendations. My colleagues in charge of pre-legislative scrutiny will be pleased to supply evidence on these topics if it is required.

13. An important fact to be borne in mind, however, is that the Government inevitably controls the process because it alone is in the position to decide which Bills should be considered in draft and to instruct Parliamentary Counsel accordingly. It is unlikely that any Government would subject a large part of its programme to the delay entailed in putting major manifesto commitments through the pre-legislative scrutiny process. The figures show that the number of draft Bills referred by Government has dropped off significantly since its peak in sessions 2002-03 and 2003-4. [8]

COMMITTEE STAGE: STANDING COMMITTEES

14. The principal function of Committees on Bills after a Bill has had its Second Reading is to go through the text of a Bill, clause by clause, considering it in detail and, if agreed, amending it. In most cases this is done in Standing Committees, away from the Floor of the House, but Bills deemed of particular importance are kept on the Floor of the House, enabling all Members to participate without having to be appointed to a Committee to do so. [9]Standing Order No 63 provides for the possibility of taking part of a Bill in Standing Committee and part on the Floor of the House. This procedure is regularly used in the case of Finance Bills.

15. The criticism often levelled at Standing Committees is that their procedure is overly formal and they do not have the opportunity to scrutinize Government policy in depth so as to inform Members' consideration of the substance and intent of the legislation rather than merely its wording. I shall return to a mechanism whereby this can already be done (in Special Standing Committees) but, for the moment, I should like to consider ways in which regular Standing Committees' scrutiny might be improved.

16. One of the difficulties which now makes the Committee stage less effective than it might be arises from timing. Although two weekends are still customarily left between publication of a Bill when first introduced and second reading, the Committee stage is often programmed to begin barely a week after second reading and to proceed immediately to a pattern of four sittings a week. That interval is often insufficient for outside interests groups to get to grips with the text of a Bill and make representations to the Members appointed to serve on Standing Committee. The result is that Members are not as well briefed as they could be if the interval between second reading and the beginning of committee proceedings were to be longer. It also means that Parliament is failing in what is an important aspect of communicating with the public, which needs to be a two-way process.

17. The process of going through a Bill offering amendments to any part of the text is never going to be a simple matter and it is hardly surprising that new Members, as well as members of the public, find proceedings difficult to follow. The basic rule is that amendments are taken in the order they appear in the text of the Bill. Only one question is before the Committee at any one time but, to facilitate discussion, amendments are grouped by subject for debate. In the past, on the Chairman's selection list these groups of amendments have just appeared as a row of numbers without any indication of subject. It might make the selection list easier to understand if each group were topped by a brief heading, as it is on Report Stage, making clear what the subject of debate is intended to be. I attach a selection list showing the existing format and the proposed format. [10]Further refinements identifying Members tabling amendments could be devised but they would add to the complexity of the appearance of selection lists. There would also need to be more time for their preparation. But my suggestion that there should be a subject heading for groups should at least make clearer to Members the principle on which groups of amendments are being linked for debate in Committee.

18. Some of the public who attend Standing Committees are of course experienced members of interest groups, quite used to following proceedings; others are individuals who may not have much knowledge of the way business is done. To help the general public follow proceedings better, the Public Bill Office has produced a series of explanatory leaflets on the various types of standing committees. Copies are placed in the public gallery at meetings.

COMMITTEE STAGE: SPECIAL STANDING COMMITTEES

19. There already exists, under Standing Order No 91, provision for a less formalised style of committee stage, in Special Standing Committees. Such a Committee has the power to take written and oral evidence, in Select Committee mode, during a period of 28 days after a Bill has been committed. Up to three 3 hour sittings may be devoted to hearing oral evidence which is customarily taken in public. Oral and written evidence is printed with the Committee debates.

20. So Special Standing Committees have the capacity to improve scrutiny and to open up the legislative process more effectively to the public, somewhat in the same way as pre-legislative scrutiny. However the procedure has been used only nine times since its introduction in 1980-81, most recently for the Adoption and Children Bill in 2001-02. The perception has always been that the procedure has not been used more often because it builds in delay; it has also been thought to be less suitable for Bills which are controversial in a "party" sense than for more specialist and technical Bills which are nonetheless of public importance and interest. [11]There has been some suggestion, in the past, that if there were greater flexibility in the proceedings of Special Standing Committees (ie a variance in the 28 days provision or the number of evidence sessions) it might be used more by Government[12]. There is no procedural reason why these provisions could not be varied.

REPORT STAGE IN COMMITTEE

21. The principal problem at Report stage is lack of time to consider all the amendments that are tabled, particularly in the case of a controversial Bill. Programme motions governing Report stage are quite often framed so as to protect the most important parts of a Bill for debate. This is based on agreement between the usual channels. But given that most Report stage and Third Readings are confined to one day's debate up to the moment of interruption, the process still leads to cutting out discussion on many amendments, as the figures for Session 2004-05 clearly show[13]. Programming also tends to encourage the selection of amendments for debate in fewer but larger groups, which some Members argue weakens detailed line by line scrutiny. Complaints were made on both these grounds by a number of Members, on all sides of the House, in the recent debate on the Terrorism Bill.

22. Turning Report stage into a further Committee stage—for example by sending a Bill back to the Standing Committee that had already considered it—would deprive Members not on the Committee from taking part in any detailed proceedings on a Bill. Although the procedure could work for non-controversial Bills, it would not be acceptable to opponents in the case of a controversial Bill, so some mechanism for distinguishing which Bills were suitable for a Report stage Committee would need to be devised. [14]

23. In the case of uncontroversial Bills, Standing Order No 92 already provides for Bills which have been debated in Second Reading committees (rather than on the Floor of the House) to be taken in Committee at Report stage. The Committee reports that it has considered the Bill, with or without amendment, and the Bill then proceeds to Third Reading on the Floor of the House. This procedure has only been used once and Second Reading Committees themselves are now very rare.

LORDS MESSAGES

24. Exchanges between the Houses on Amendments to Bills (commonly known as "ping-pong") can continue until one House backs off by accepting the amendments of the other House. Until the past few years it was an exceptional practice for Lords Amendments to be considered at the same sitting as they were received from the House of Lords. [15]This was conditioned partly by technical considerations—an overnight delay used to be necessary to enable the requisite papers to be prepared for the House's consideration; and partly by considerations of principle—Members and the Government needed time to reflect on their response to the Lords propositions and (sometimes) to undertake informal discussions about possible compromises. Technical advances in recent years have largely overcome the former obstacles, but they have not eliminated the risks inherent in taking crucial decisions on the detail of important legislation without proper time for reflection and consultation. Furthermore, the speed with which the Houses can handle these matters may contribute to serious political decisions being put off rather than being taken at an earlier stage in the exchanges. An example of a series of exchanges on the Prevention of Terrorism Bill in March 2005 is set out in Appendix 5 Part I. Although it proved to be a long day for both Houses, Members will see that the Bill went back and forth between the Houses eight times in the space of thirty hours or so. Each of the sittings involved the preparation of new sets of business papers, both the propositions (Amendments and reasons for disagreement or insistence) which one House was sending to another and also the propositions which the Government was putting to the House (agreeing, disagreeing, insisting or amending propositions sent from the other House.) [16]

25. It must also be borne in mind that the decision-making—which is principally a matter for Government but also involves opposition parties or groups—will sometimes be conducted in a highly charged political atmosphere in the case of controversial Bills. Government will be tempted to try a few times to get its way by alternatives and compromises before wanting to insist. Parties or groups of Members opposing the Government will employ the same tactic.

26. The process by which the Amendments are brought before each House is complicated because what the Houses are doing is complicated. What the description of the process set out in the second part of Appendix 5 shows, is that the production and distribution of papers is in fact an efficient and speedy process. It is fully electronic apart from the physical making up of House Bills, which is an important check on the textual validity of what may shortly be enshrined in the law of the land. The two principal factors in delay arise from the volume of new material being considered and the need for Government and their advisers to consider how to respond to proposals and alternatives as the exchanges go on. The actual physical transfer of the Bills between the Houses is normally a minor aspect of the whole process.

LORDS AMENDMENTS IN COMMITTEE

27. I understand that the Committee has considered the possibility that some Lords Amendments might be dealt with in Standing Committee so as to minimise the time taken up on the floor of the House. This proposal would be likely, in practice, to give rise to the same sort of problems as have led to report stage standing committees falling into disuse (see paragraphs 22 and 23 above); and there is the further complication that decisions at the final stage of the legislative process ought to be endorsed by the House itself. There is the additional difficulty, as the illustration in Appendix 5 shows, that Lords Amendments are now routinely considered forthwith which a Standing Committee could hardly do. The result could therefore be to make "ping-pong" a more extended process than it is now.

SEPARATING DIVISIONS FROM DEBATE

28. Programming has gone a long way towards making the timing of divisions more predictable and, under the deferred divisions procedure, votes are taken at a particular time on certain business. But I would argue against decoupling divisions on legislation from the debate, since the result of one division sometimes colours subsequent debate (eg the effect of the Government majority of one on the Terrorism Bill debate in Committee). There are also potential technical procedural problems if, in a run of divisions taken separately at a fixed point, one division produces an unexpected result.

29. It should be noted that in the Scottish Parliament there is some separation of the vote on a motion from the debate on it (in what they call "Time for Decision"), but because of the technical difficulty I have mentioned in the previous paragraph, Bills themselves are treated differently, votes taking place immediately at the conclusion of debate. [17]

CARRY-OVER OF BILLS

30. As I mentioned in the introductory section of this memorandum, proposals to increase the effectiveness and thoroughness of the House's examination of Bills have tended to founder because they generally (and unsurprisingly) entail some overall extension in the time required for consideration by the House and so prove unacceptable to Government business managers who have the responsibility for securing the passage of each year's legislative programme before the close of the parliamentary session. One piece of machinery which has been introduced with a view to easing this difficulty, and incidentally enabling the burden of legislation to be spread more evenly over a session and indeed over the lifetime of a Parliament, is that of "carry-over". This is a procedure which enables a bill which has not completed its passage through Parliament when a session is prorogued to be resumed in the next session at the stage it had previously reached. It was first operated, on an ad hoc basis, in the case of the Financial Services and Markets Bill in 1998-99, was introduced as a temporary standing order in 2002, and was made a permanent standing order (No 80A) in October 2004.

31. Following the House's adoption of the permanent standing order, three bills were carried over from session 2003-04 to session 2004-05[18]. One bill, the Constitutional Reform Bill [Lords], was similarly carried over in the House of Lords, on an ad hoc basis. In general, however, there has been some resistance in the House of Lords to the development of this procedure; and it is not yet clear whether it will become a routine feature of Parliament's proceedings, enabling the Government's legislative programme to be planned in new and more flexible ways. If this were to be the case, the range of options which it would be worthwhile for the Modernisation Committee to consider during its review of legislative process would increase.

POST-LEGISLATIVE SCRUTINY

32. I am aware that the Law Commission is conducting an enquiry into post-legislative scrutiny, following recommendations made by the Lords Select Committee on the Constitution. [19]In principle reviewing how effective something has worked out sometime later is a good idea, and is practised in all business contexts, public and private, after the completion of projects. How far Parliament itself should, or could, review the effectiveness of all the Bills it passes, is another matter. Bills vary in importance and type; some are of a highly technical nature. It is unlikely that one body would be able to review all types of bills effectively or that a single form of procedure would be suitable for all circumstances. As the Lords Select Committee recognised, Departmental Select Committees in the Commons already have the power to enquire into existing legislation within their remit of monitoring Government departments. [20]The Committee on the Lord Chancellor's Department and its successor, the Constitutional Affairs Committee, for example, have published reports critical of the entire mechanism of the Children's and Family Court Advisory and Support Service brought in by the Criminal Justice and Court Services Act 2000. [21]But at what point reviews should take place, given the fast-changing pace of legislation in, for example, areas of criminal law or anti-social behaviour, is not easy to determine. Whereas pre-legislative scrutiny can properly be regarded as an integral part of the legislative process, because the presentation of a draft bill and the presentation of an actual bill are normally separated by no more than a few months, post-legislative scrutiny is, I would suggest, best regarded as part of Parliament's wider and ongoing task of scrutinising the activities of the executive. It is sometimes many years before the consequences of a new piece of legislation can be evaluated fully; and often the success or failure of a statute depends on issues of administration, funding and detailed implementation rather than on the drafting of the clauses which Parliament approved.

CONCLUSION

33. There is no indication that Government business managers are likely to be willing to relax the degree of control which they exert over the legislative process and its scheduling. The tight scheduling which currently tends to apply to the passage of Government legislation through the Commons is a consequence partly of the historically high volume of legislation being introduced (see Appendix 1), and partly to the need to allow adequate time for the somewhat different process of consideration in the House of Lords. The introduction of procedures which might significantly improve the depth and quality of the House's scrutiny of legislation and increase the amount of public involvement in the legislative process is almost certain to require additional time. More systematic use of carry-over might help; but significant additional time in the Commons is only likely to become available if there is a reduction in the volume of legislation introduced, or a rebalancing of the legislative timetable between the two Houses.

Roger Sands

December 2005

1 This paper deals only with Public Bills which is the subject of the Committee's press release, though Private Bills, promoted by outside parties, are also part of Parliament's legislative work. Back

2 First Report from Select Committee on Modernisation: The Legislative Process HC 190 (1997-98). Back

3 See Appendix I: Volume of Legislation. Back

4 First Report from the Select Committee on Modernisation The Legislative Process HC 190 (1997-98) ix; 14th Report from the Select Committee on the Constitution Parliament and the Legislative Process HL 173-I (2003-04) para 87. Back

5 First Report from the Select Committee on Modernisation The Legislative Process HC 190 (1997-98) viii; 14th Report from the Select Committee on the Constitution Parliament and the Legislative Process HL 173-I (2003-04), paras 20-30. Back

6 eg Described as "an extremely positive development" by the Hansard Society. Issues in Law Making, 5, Pre-legislative Scrutiny Hansard Society (London 2004) p5. Back

7 HL 157, HC 705 (2002-03). Back

8 See Appendix 2: Number of draft Bills. Back

9 Historically all Bills were committed to a Committee of the whole House. The first reference is in 1571, J Redlich The Procedure of the House of Commons 2 vols (London, 1908) 2: p204. Standing Committees were first nominated in 1882. Back

10 See Appendix 4. Back