You are here: Parliament home page > Parliamentary business > Publications and Records > Committee Publications > All Select Committee Publications > Commons Select Committees > Modernisation of the House of Commons > Modernisation of the House of Commons

UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1097-iv

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

SELECT COMMITTEE ON MODERNISATION OF THE HOUSE OF COMMONS

 

 

The Legislative Process

 

 

Wednesday 21 June 2006

MR JOHN STEWART and MS JOANNA WARNER

Evidence heard in Public Questions 109 - 149

 

 

USE OF THE TRANSCRIPT

1.

This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

 

2.

Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.

 

3.

Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.

 

4.

Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

Oral Evidence

Taken before the Select Committee on Modernisation of the House of Commons

on Wednesday 21 June 2006

Members present

Mr Jack Straw, in the Chair

Mr Paul Burstow

Ann Coffey

Mr George Howarth

Mark Lazarowicz

Mrs Theresa May

Mr Adrian Sanders

Graham Stringer

Paddy Tipping

Lynda Waltho

Sir Nicholas Winterton

________________

Witnesses: Mr John Stewart, Bill Principal, and Ms Joanna Warner, Bill Team Member, Health Bill Team, Department of Health, gave evidence.

Q109 Chairman: Good morning, Mr Stewart and Ms Warner. Thank you very much for coming. As you know, we are conducting an inquiry into the legislative process to look at how it can be improved. Our starting point is that, whatever its merits, it certainly can and ought to be improved. Without pre-empting the conclusions of the Committee, it would be fair to say that the Committee is interested in ideas of making the committee stage more forensic. If you are familiar with the procedure for special standing committees, for example, for the first three or four sessions the standing committee forms itself into a select committee and holds an inquiry into key issues, and then reverts to a clause-by-clause examination. That is one of the issues that we are looking at. We are also looking at the way the whole process fits together, from pre-legislative scrutiny; debates at the time of publication; the general debate at second reading; the detailed examination in standing committee and on report stage; what the purpose is of the third reading; how outside bodies link into this; and crucial to all this is how it feels from your position, in the eye, sometimes, of the storm. It would be helpful to us to hear from you - certainly for the benefit of Members who have not been involved directly in the legislative process - what are the processes leading up to the presentation of a bill, and then some general comments from either or both of you about what, from your experience, you think are the strengths of the current system and what ought to be improved.

Mr Stewart: First I should thank you very much for inviting us. I am sure that there are bill teams across Whitehall who would be keen to give evidence. While our views and observations will obviously be based on the Health Bill, hopefully they will also reflect the experiences of other bill teams. Perhaps I could start by explaining the role of a departmental bill team. First, I should explain that there are often two types of bill teams. When you have single-issue, small bills, the bill team within a department is normally formed within the actual lead policy team. They not only lead on policy, therefore, but also on all the roles that a bill team would normally lead on. However, for larger, portmanteau bills that cover a number of different issues, it is generally the rule that departments will establish a dedicated bill team to manage the whole process. The Health Bill was the latter of those two. You can divide up the role of the bill team into two distinct phases. You have phase one, which is the pre-introduction phase, where the bill team's role is very much to project/programme-manage the bill up to introduction. That involves making sure all instructions reach parliamentary counsel by appropriate deadlines to meet the introduction deadline; that any necessary public consultations have taken place; that explanatory notes have been drafted to the bill; that a regulatory impact assessment has been prepared. All of that needs to take place before a bill can be introduced. Our role there is in getting the bill ready. In terms of things like public consultations, the bill team may or may not be involved; it depends on at what point in the process the bill team is established. Often departments will have consulted widely a year or so before they actually introduce the legislation. In terms of the Health Bill, however, I think that nearly every aspect of the bill went through public consultation in some shape or form before introduction. You then have the second phase, which is after introduction, where our role is then intimately bound up with the processes and procedures of the House. Unfortunately, our project/programme management approach goes slightly out of the window, because the timescale is no longer in our hands. It is all much more reactive, and obviously we are responding to amendments as and when they come in - certainly for committee stage. I do not know if you want me to go on, or if you want to pick up any of the points?

Q110 Chairman: I have two more questions. One is this. When you receive amendments from the Table Office or whoever, are you sometimes perplexed about what the amendment means?

Ms Warner: Yes.

Q111 Chairman: Would it be helpful if the Member had to subject a short explanatory statement, "The purpose of this is 'x' or 'y'"?

Ms Warner: Yes, I think that would be very helpful. It would make our processes more efficient. When we receive amendments we have to look at them, and we consult the policy experts and also, importantly, lawyers; first of all, to try to work out what the intention behind the amendment is - which sometimes we can do from looking at previous speeches that have been made on the subject. The intention is one thing; sometimes the legal effect can be something quite different, which we need our legal colleagues to advise us on. This can all take a bit of time and, when the timescales are short between receiving amendments and debating them, it just adds another part to the process. I think that it would make it much more transparent for everyone involved if there was some kind of explanation. It would ensure that, when we are briefing our ministers and advising them how to respond, the issues the Member really wants debated are covered and we really are responding to the queries or concerns that are being raised. I think that would be a very helpful process.

Mr Stewart: Often it is very difficult to work out what the intention behind the amendment is. It is easier to work out what the effect is, because that is definite; but the intention is not always as clear. I think it is important to understand, from a bill team's point of view, how little time we have to go through this process. If we look at the Health Bill, for example, we had the second reading on Tuesday 24 October and we had our first day in committee the following Tuesday: so just a week between. It meant that there were only three days for Members to table amendments for the deadline for consideration on that first day. We received 76 amendments in those three days. The deadline is the afternoon of the Friday, which effectively left us one day, on the Monday, to go through 76 amendments; work out what the intention, the policy effect, was; write draft speaking notes for the minister on all 76 amendments - because also we obviously do not know how far we will get on a particular day - as well as worrying about how all those amendments should be grouped, which cannot be done until you are clear on what the effect is. I would say that it is an advantage to have the first day on a Tuesday, because you have the weekend to do this; but, let us say the first day was on a Thursday, then you really do have just that one working day to do all of it. That can be quite a challenge, and probably means that speaking notes to amendments are not always quite as good as they could be. It is less of a problem after that first committee session, where things tend to slow down a bit; the amendments drip through and it is a bit more manageable. However, that first session is certainly quite a stressful time. I know that, similarly, my colleagues in the department working on the NHS Redress Bill, while they were in the Lords, had over 70 amendments where again they had only one day - and, of course, in the Lords it is much more complicated.

Chairman: I will leave my second question, which was going to be about the formatting of amendments. Let us take other questions now.

Q112 Ann Coffey: During the Health Bill there was a lot of talk about partial exemptions; for example, areas in pubs that could be designated smoking areas. It was clear during the progress of that bill in committee that the definition of it would be done through secondary legislation. Part of the difficulty, when you were deciding how you would vote, was that how those exemptions would be defined was very important; but, at the time of voting for either of three options, those exemptions were not available for you to see in draft form. Is there any particular reason why, when a bill goes through a committee, committee members cannot see what is going to go into the secondary legislation in draft form, so that when they discuss the bill they can make up their mind what they should or should not be accepting?

Ms Warner: One thing we found as we went through the process, particularly of standing committee, was that what would go into the draft regulations was very much informed by the debates that were had there and the processes that we went through. I think that it depends on the subject. In certain circumstances, where the policy is already very clearly decided or there is very little detail on the face of the bill, I could see a case for how it would be helpful to publish draft regulations right at the start. However, I know that in our case certain ideas have crystallised or been brought to us during the parliamentary process, which has actually informed what will go into those regulations. In that case, therefore, publishing them right at the start would perhaps not have been so helpful.

Q113 Ann Coffey: You must have known - I am not saying you personally - but it must have been known whether, in a pub, you would allow a room to be a designated smoking area in which food was not going to be sold, or you would allow a space a certain distance from the bar. Those were quite serious issues, because people might have been inclined to vote for an exemption if they thought that it was an entirely separate room. There must have been some understanding of what that exemption in a pub meant. That would not be informed by the debate, because the debate would follow how that exemption would be defined.

Mr Stewart: I can see how that would help, but I would like to think that we try to be fairly clear. While the detail was going into the regulations, when the bill was introduced we made clear that pubs which did not serve food would be exempt. I am not the policy lead on any of this, but I am fairly certain that at the time we made clear that any pub that did not serve food would be exempt; any pub that did serve food would not have an exemption - so there would be no smoking room. Perhaps we did not make that as clear as we could have done, but I am not entirely convinced whether you actually need to go through the process of publishing draft regulations to get some of these points across.

Q114 Ann Coffey: Do you think that the draft regulations would have made it clearer?

Mr Stewart: If we had published draft regulations back when the bill was introduced in October, the draft regulations would have talked about pubs not serving food, whether they should be exempt, and other issues. As you know, the bill has changed because of debate in the House, because of the free vote that was offered by the Government. As a result, those draft regulations, which would have taken quite a lot of time or lawyers to produce, would have been meaningless and they would not have resolved the final draft regulations. So I think that there is a danger in publishing.

Ann Coffey: Sometimes bills do not ----

Chairman: Ann, would you mind if I asked other colleagues to come in? Is that okay, or do you want a last question?

Q115 Ann Coffey: I just wanted to make the point that this is a continuing issue about giving information, particularly in the form of what is going to go into secondary legislation; and I simply do not accept the argument that because it is time-consuming it is something that should not happen.

Mr Stewart: Could I make one final point on that, and we may come on to it in due course? The explanatory notes to the bill, which I think are often under-utilised by many people - did go to quite a lot of trouble to explain, in quite a lot of detail, how particular clauses would work and how we plan to use regulation-making powers. Similarly - and when we get to the Lords we have to do this - we have to produce a memorandum to the Delegated Powers Committee, setting out every delegated power in the bill and why we have delegated that. While we are more interested in the appropriateness of the delegation, we also, at great length, went through each regulation-making power and set out the detail that we were able to about how those regulations would look. Maybe we should be producing that memorandum, not for introduction in the Lords but at an earlier stage, whichever House the bill is introduced in, because it does provide quite useful detail.

Q116 Mr Burstow: Just on this little exchange, one of the issues was not so much whether it was places which did or did not serve food: it was what was "food" for the purposes of the regulation. It would have been useful to have had a draft regulation to have illuminated that debate! I think that was why it was one of the things which vexed a number of Members at the time. I want to pick up on a couple of things. You were talking earlier about the benefit of having Members who are tabling their own amendments supplying some form of explanatory note. If 76 amendments are tabled, that will probably be a longer set of explanatory notes than the explanatory notes to many bills. Have you ever on occasion, in your experience as a bill team or in the experience of other bill teams, picked up the phone to ring up a Member who has tabled an amendment, in order to make sure that you understand the thrust of the amendments so that you can provide the necessary brief? Why is that not considered an acceptable practice?

Mr Stewart: I do not think that it never happens. It may be fairly uncommon. I think that it is partly the time taken to try to get in touch with Members, given that we have so little time to prepare the notes. It is a slightly different process. The whole nature of the process in the Lords is slightly different, where we do have a different relationship, certainly with the Opposition front-bench researchers and we are encouraged to speak to them. In the Lords, therefore, yes, it possibly happens more often. Why it does not happen so much when we are in the Commons, I do not know; but, yes, it certainly would be a sensible way forward.

Q117 Mr Burstow: You mention the time pressure and you describe the difficulty that arose from the relatively short period of time between second reading and the first day of the standing committee. Also, in your exposition at the beginning you described how there is a great deal of control you exercise over the process until it comes here, and then your control over the process ceases to some extent. You are responding to things as they go along. Do you see any benefit in some clarity around the timetabling of legislation, not just individual bits but more to do with business management overall? This is a rather opaque area in our process at the moment. Would there be anything that would help, in terms of managing and dealing with the business, to have greater clarity about when things were coming and when they were not?

Ms Warner: Greater clarity would of course be helpful. As John described, we do enter a slightly reactive phase once the bill comes into Parliament, and we have to wait for the dates for certain stages to come up - just as I am sure everyone else does. Apart from the situation John has described, we did not find a problem with the length of time between certain stages as they are now. I think we found that to be very reasonable; but if there was a bit more certainty about precise dates from the very start, that could only be helpful in managing the process.

Mr Stewart: From our point of view, the key thing is the deadlines for tabling amendments: not so much the gaps between the various stages, which I think are reasonably acceptable to most bill teams. It is this issue of having potentially 70 or 100 amendments to deal with in a day; it is whether there should be a longer lead-in time, an earlier deadline for tabling amendments, certainly for that first session of committee, so that we have a bit more time to prepare.

Q118 Mrs May: Following on from that last point, the alternative solution is to have a longer period set as the accepted norm between a second reading and the first committee stage.

Mr Stewart: Apart from the fact that people could still table amendments right up until the last minute, which they sometimes do.

Q119 Mrs May: Yes, but you could change the timetable so that you had a longer period.

Ms Warner: Yes, if you also shifted the deadline.

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 down. 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 from 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 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 per cent 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 no 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 and that we will not come 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. 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. 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 front-bench 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 or before second reading. 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.

Q140 Sir Nicholas Winterton: May I comment on the remarks that Mr Stewart has made about clause stand part? I am not sure that he is aware that, to an extent, it is very much dependent upon the chairman of the standing committee whether or not there is a clause stand part debate. Whether or not a Member would like to have a clause stand part debate, if the chairman of the standing committee believes that the substance of the clause has been discussed in the group of amendments or in the amendment that has been selected and debated, he or she as chairman of that committee can indicate that he or she does not intend to allow a stand part debate. I myself would be reluctant to do away with a clause stand part debate, because it could well be that an important issue has not been discussed as part of the group of amendments or the groups of amendments that have been debated under that clause. I think that not to permit an important matter to be raised on clause stand part would be regrettable and would reduce the ability of Members of this House in standing committee to scrutinise legislation. In the main, however, what the Lords does, by a Member giving an indication that he would like a clause stand part debate, might be helpful; albeit that, until all the amendments have been debated, the chairman is not to realise that an important matter might not have been debated in the substance of the amendments that have been called for debate. Would you agree with that?

Mr Stewart: I would. I am aware of the chairman's role in that respect and, yes, I would agree.

Q141 Mr Burstow: I just want to pick up on two things quickly. One was on the special standing committee procedure. In your earlier answer, you seemed not to be drawing a distinction between the executive consulting about its intention legislatively, and then the role that we have as legislators also to scrutinise. Do you draw a distinction between those two roles? If there were a special standing committee where there was a select committee role being fulfilled, who were examining the draft bill, examining evidence, and then going into standing committee, do you draw a distinction between that role and the role of the executive?

Mr Stewart: I am sorry if I did not, but I absolutely do draw a distinction. I think that it is right for the executive to consult and, yes, it is absolutely right that the legislature should also do their own consultation.

Q142 Mr Burstow: The other thing was that you mentioned the Health Select Committee, its inquiry into the smoke-free issue, the timing of its publication, and so on. In any material way, did that report have a bearing on the outcome of the consideration of the bill in the Commons, to your knowledge - or in your opinion, rather?

Mr Stewart: I think it is fair to say that it was following the publication of that report that the Government decided that they would facilitate a number of options for Members to vote on. I think that decision was informed by not just the report by the Health Select Committee but also changing public mood in support of a ban. I do not have the figures at hand, and again I am not the policy lead, but I think I am right in saying that the shift in support of a ban has moved very significantly in support of one over a very short period of time - over a year. So I think that it was a number of factors but, yes, I am sure that the select committee's report did have a bearing on that decision to have the free vote and facilitate the different options that were presented to Members at report.

Q143 Chairman: I have two questions, one of which I am sure Dawn Butler would be raising were she here. It is about the use of IT in this process. Do you get the amendments in the format in which they are published in the Commons?

Mr Stewart: We receive the amendments the day after they are tabled on the formal notification of amendments paper, but it is possible for the bill team to pick up the manuscript copies of the amendments from the Public Bill Office.

Q144 Chairman: Within the Clerk's Department, I understand that they are also translated into a comprehensible form using the Microsoft Word format to track changes. We are looking at whether we should do that; because, frankly, it is ridiculous today that you cannot see immediately the effect of a change. I assume, if the answer to this question is yes, that would be helpful for you as well.

Ms Warner: It is something that we do for ourselves already. When we get an amendment in and when we are briefing our ministers, we create what we call a "How this would look" section, where literally we reproduce the clause and either strike out the words that are removed or add in words in bold that are added in.

Mr Stewart: I have some examples here, if you would be interested to see them.

Q145 Chairman: That would be very helpful, because what is frankly crazy here is that parliamentary counsel, the Clerk's Department, and individual departments are doing it; I am sure that NGOs are doing this, and one or two researchers will be doing it. The only people who are denied this information is Parliament as a whole. I am very clear that we have to change that.

Ms Warner: There is no doubt that it is a very quick and easy way of helping people to understand what the amendment is doing.

Q146 Chairman: Of course. You would find it easier because you would have fewer Members putting forward amendments, the effect of which they do not comprehend because, if you are amending language in the sentence rather than in "Line 15, word 3, to leave and insert...", it becomes much more comprehensible.

Mr Stewart: I think that you probably would still need to table the amendment in that format, as in "Clause 3, page 2, leave out...", but it might be a good exercise for Members to write out how this would look in the amended form, because they will begin to see it more clearly sometimes. It certainly helps us to do so.

Q147 Chairman: The other issue was to pick up a point that Theresa May and others raised. It is this question of how specific primary legislation is. I know, Mr Stewart, you are following your minister's decisions on this, but I have to say that I am uneasy about an approach which says that principal definitions should be left for the secondary legislation. What that says to me is that there has been insufficient consideration in departments and by ministers about what they mean. I know the other argument, which is that you can change the definition later, but these definitions are the fundamental building blocks of legislation. Either ministers should get them right or they really should be delaying the legislation.

Mr Stewart: There is a balance to be struck between the two. I think that this is a political decision whether the detail is given up-front at the start or whether it is held back for regulations. There might be reasons on both sides why that is.

Ms Warner: And a judgment to be made about what is a principal definition.

Q148 Chairman: I understand that. However, I think that this is a point where it is too easy, both for officials and for ministers, to say, "We will leave that bit. It is too difficult. Put it in the LBW drawer and we will sort it out later".

Mr Stewart: Apart, of course, from the Delegated Powers Committee's important role in scrutinising the appropriateness of delegated legislation.

Chairman: That is a fair point.

Q149 Sir Nicholas Winterton: Do our witnesses therefore think that secondary legislation should be subject to amendment? Is that an inappropriate question? Because if more and more legislation is being subject to secondary legislation, for whatever reason, do you think that, when the statutory instrument comes forward, the House of Commons, and for that matter the House of Lords, should have the right to amend that statutory instrument?

Mr Stewart: I do not think that is for the department to take a view on.

Chairman: That is a good answer! You have given us an hour. I hope that it was not too daunting. We are very grateful to you. Thank you very much.