3 Parliamentary Reform
22. Many of the proposed reforms to date have
focused on the work and practices of Parliament and its Members.
While the Parliamentary Standards Bill made provision for an Independent
Parliamentary Standards Authority for the external regulation
of Members' allowances, it is proposed that a new Parliamentary
Commission, or Select Committee, on Reform of the House of Commons
will consider possible reform to the internal management of the
House's business.[29]
Parliament, and the procedures and practices by which it carries
out its business, are part of the constitution and seemingly minor
changes to the way Parliament works can have broader constitutional
implications. These changes and proposals therefore need to be
considered within the framework of a proper understanding of the
constitutional role and position of Parliament and parliamentarians.[30]
The Parliamentary Standards Bill
23. In his statement on 10 June, the Prime Minister
outlined proposals for the introduction of the Parliamentary Standards
Authority with delegated power to regulate the system of allowances
and a statutory code of conduct for all MPs. This would require
primary legislation and the Prime Minister indicated that a short
free standing Bill would be introduced and debated in the House
before the summer recess.
24. Rt Hon Harriet Harman MP, Leader of the House
of Commons, made a statement on the Bill on Tuesday 23 June.[31]
On the same day the Bill was formally presented and received its
First Reading.[32] The
Bill sought to establish a new Independent Parliamentary Standards
Authority (IPSA) as a body corporate. IPSA will have functions
in relation to MPs' salaries, allowances and financial interests.
The Bill also sought to establish a separate Commissioner for
Parliamentary Investigations to investigate breaches of the rules
on allowances and financial interests.[33]
25. While there was cross party support for the
creation of an independent authority to run the expenses system,
concerns have been raised about some of the potential unintended
or unforeseen consequences of the Bill. In particular, we identified
three central constitutional questions which need to be addressed
when considering the Bill:
- does the creation of the Independent
Parliamentary Standards Authority have an impact on parliamentary
privilege?
- does the Bill expose Parliament to the process
of judicial review in novel ways?
- to what extent does the Bill breaks new constitutional
ground in terms of establishing external regulation over matters
beyond issues of Members' pay and expenses?
26. Writing in The Times on 24 June 2009,
Peter Riddell said that the Bill "has big constitutional
implications". While the final power to decide on non-criminal
penalties will still lie with MPs, he argued that "self-regulation
is being heavily qualified in practice". He identified that
one of the biggest questions was the extent to which "the
creation of the new authority by statute will open the way for
a flood of judicial review cases".[34]
27. Speaking in the House on 23 June,
Dr Alan Whitehead MP asked the Leader of the House whether she
intended to produce further material that would seek to "make
a clear and durable distinction between the standards relating
to Members, for which an outside body should have reference and
sanctions, and the privileges of the House?" The Leader responded
that: "The standards for which the new authority established
in the Bill would be responsible would relate to the allowances
and claiming for them. There is no proposal in the Bill for the
authority to have further powers that would deal with the privileges
of the House".[35]
Furthermore, on 25 June, the Leader of the House claimed:
"
the question of parliamentary privilege
is not an issue in that Bill
that is not a question that
Hon. Members need to concern themselves with. Essentially, the
Parliamentary Standards Bill sets up an authority to deal with
our allowances to ensure that they are established and administered
independently and that the public can have confidence that this
is the case. It will not trample on the question of privilege".[36]
28. Such an assurance has no legal standing and
would not have limited future action in the courts, so we remained
concerned about the broader constitutional implications of the
Bill, and therefore commissioned oral and written evidence from
the Clerk of the House of Commons, Dr Malcolm Jack. The resulting
analysis identified that clauses six (MPs' Code of Conduct), eight
(Enforcement) and ten (Proceedings in Parliament) had potential
constitutional impacts in relation to parliamentary privilege.
29. Following the evidence session with the Clerk
of the House, we produced a short report on the Bill which was
published on 1 July in advance of the second day of the Bill's
committee stage on the floor of the House (the Bill's remaining
stages were also taken on this day).[37]
We drew the House's special attention to our concerns on the possible
implications of the Bill for the safeguarding of freedom of speech
in debate in Parliament and the boundary between the courts and
Parliament.[38] These
arose mainly from clauses six and ten of the Bill. Our report
welcomed the Government's statement on 31 June that it intended
not to pursue clause six and would support its removal from the
Bill.
30. There was, however, no such commitment in
relation to clause ten, which we suggested needed to be removed
from the Bill to allow "more measured consideration of the
issues of [parliamentary] privilege" noting that this need
not delay the establishment of an independent body to administer
and monitor members' expenses, which would not be affected by
the clause's removal. The House of Commons subsequently voted
by a margin of three votes to remove the clause from the Bill.
During its passage through the House, other amendments were made
to the Bill and commitments given to revisit issues during its
consideration in the House of Lords.[39]
31. In that place, Rt Hon Baroness Royall of
Blaisdon, Chancellor of the Duchy of Lancaster, acknowledged the
impact of the work of this Committee in amending the Bill:
"The Justice Committee report aired concerns
about the infringement of parliamentary privilege. The Government
have listened to its concerns about including a statutory requirement
for there to continue to be a code of conduct incorporating the
Nolan principles and we have removed this from the Bill. On its
introduction, the Bill also included provisions that proceedings
in Parliament may be admissible in a court in relation to the
three new offences in proceedings against a Member. At the behest
of the other place (the House of Commons), this no longer forms
part of the Bill. The removal of these clauses in no way undermines
our key objective, which is to establish an independent and transparent
system of regulation".[40]
32. On the first day of the Bill's Committee
Stage in the House of Lords, Baroness Royall outlined further
amendments. She said:
"We have tabled amendments, first, to remove
the offence on paid advocacy from the Bill; secondly, to provide
that the commissioner will refer his or her findings directly
to the House of Commons Committee on Standards and Privileges;
and, thirdly, to provide that the commissioner will not be required
to refer findings to the Committee on Standards and Privileges
if the transgression is minor and the Member in question has already
agreed to take appropriate remedial action. We have introduced
greater safeguards into the procedures that the commissioner will
be required to have. They include an opportunity for the Member
to be heard in person and an opportunity, where appropriate, to
call witnesses.
I could go on, but I come instead to the sunset clause.
We have tabled an amendment to require that the parts of the Bill
that relate to offences be continued by order every two years.
We believe that that approach is about balance
Also, as
noble Lords will recall, I gave a commitment that the Bill should
be subject to formal post-legislative scrutiny within the next
two years".[41]
33. We particularly note the
removal of clause seven, which set out IPSA's enforcement powers,
from the Bill, the insertion of a sunset clause and the Government's
commitment to post-legislative scrutiny. The Government needs
to set out the basis on which post-legislative scrutiny will be
carried out.
34. The House of Lords Select Committee on the
Constitution also published a report on the Parliamentary Standards
Bill on 6 July 2009.[42]
It described the Bill as "a product of a desire to respond
to a demand to see something done, as the Government put it, rather
than the outcome of a law-making process suitable for a Bill with
serious constitutional repercussions".[43]
35. The Lords Committee argued that this attempt
to fast-track the legislation had two consequences: first, it
identified a "failure at the centre of Government to prevent
a policy with clear constitutional flaws being pursued".
The Committee added that the "abandoned clauses in the present
bill now lay on the cutting room floor alongside clauses from
the Legislative and Regulatory Reform Bill in 2006 and the 2003
announcement that the office of Lord Chancellor would be abolished".[44]
Second, the Committee commented on the process, and while it welcomed
the consultation between the leaders of the political parties
prior to the presentation of the Bill, it argued that:
"such discussion are no substitute for rigorous
evaluation of policy options and public consultation. It is ironic
that provisions designed to restore public confidence in aspects
of the operation of Parliament have emerged from behind closed
doors without providing an opportunity for adequate public engagement
before the policy is crystallised into a bill introduced to Parliament.
This is no way in which to legislate on matters which raise complex
constitutional and legal issues".[45]
36. A combination of both issues led the Lords
Committee to question whether the Parliamentary Standards Bill
would meet the Prime Minister's stated aim of restoring public
trust in Parliament and parliamentarians. It argued:
"it is not
clear to us that a cobbled
together bill rushed through Parliament will help rebuild public
trust; on the contrary, if Parliament cannot be seen to be scrutinising
proposals with the thoroughness they deserve, public confidence
in parliamentarians is likely to be further undermined".[46]
37. We welcome the main provisions
in the Bill in relation to the creation of an Independent Parliamentary
Standards Authority and note that the removal of clause six and
the defeat of clause ten have addressed concerns set out in our
previous report in regard to the constitutional implications for
free speech in Parliament and the comity between the courts and
Parliament.
38. While we acknowledge the
need for urgent action in order to respond to public anger, we
agree with the House of Lords Select Committee on the Constitution
that the Parliamentary Standards Bill was rushed through its stages
and that inadequate thought had been given to the broader potential
constitutional implications of the Bill. We also agree that allowing
insufficient time for adequate scrutiny of the legislation may
have a detrimental effect on public trust.
39. There are broader lessons
to be learnt from this in terms of both parliamentary and constitutional
reform. First, that the inappropriate handling of bills and proposals
for reform specifically designed to restore public trust may further
undermine that trust. Second, although the Bill had the support
of the party leaders, it also had potential constitutional consequences
which they had not identified and were not identified by the Government.
This should serve as a warning about the dangers of undertaking
reform too quickly, and without adequate consultation to enable
a full and thorough investigation of the constitutional implications.
It also illustrates the danger of party leaders, however much
they are responding to the public's appetite for immediate and
radical action, engaging in a bidding war on reform.
Select Committee on Reform of
the House of Commons
40. In his statement on constitutional renewal
on 10 June 2009, the Prime Minister said:
"We must also take forward urgent modernisation
of the procedures of the House of Commons, so I am happy to give
the Government's support to a proposal from my hon. Friend the
Chairman of the Public Administration Committee [Dr Tony Wright
MP] that we will work with a special parliamentary commission
comprising Members from all sides of this House, convened for
a defined period to advise on necessary reforms, including making
Select Committee processes more democratic, scheduling more and
better time for non-Government business in the House, and enabling
the public to initiate directly some issues for debate".[47]
41. Speaking in the House of Commons on 18 June,
Barbara Keeley, Parliamentary Secretary to the Office of the Leader
of the Commons, confirmed that a new committee would be set up
for a defined "short period". On Monday 6 July, notice
was given on the order paper of a motion to establish a body called
the "Select Committee on the Reform of the House of Commons"
to make recommendations by 13 November 2009 on the following matters:
- the appointment of members
and chairmen of select committees;
- scheduling non-government business in the House;
and
- enabling the public to initiate debates and proceedings
in the House.
42. Following objections from many quarters,
including the Chairman of this Committee, this motion was withdrawn
and an amended version was tabled by the Government which:
- extended the life of the committee
till the end of the Parliament, while requiring it to report by
13 November 2009 on certain matters; and added to the list of
issues identified in the previous motion:
- the scheduling of government
business; and
- such other matters as appear to the Committee
to be closely connected with the matters set out above.
43. On 14 July, Rt Hon Jack Straw MP, Secretary
of State for Justice and Lord Chancellor, told us that the new
committee was: "a way of bringing things to a conclusion
as quickly as possible" and he "hoped" the Government's
business managers would allow time for the motion to be debated,
and thus decided upon, before the summer recess. In similar vein
the Prime Minister, when asked on 16 July by the Liaison Committee
for a commitment to establishing the committee before the recess
(not least because of its November deadline), said: "I do
not manage the business of the House but I shall look at what
you say". Later the same day, the motion was re-tabled for
consideration on 20 July, alongside a Business of the
House motion guaranteeing time for it to be debated if necessary.
The remit of the proposed Committee had been further expanded
to include consideration of the way in which the Chairman and
Deputy Chairman of Ways and Means (i.e. the senior deputy speakers)
are appointed.
44. We commend the Government for taking on board
four substantial changes to the remit of the Select Committee
on Reform of the House of Commons. We are mindful of the truism
that 'nothing will be attempted if all possible objections must
first be overcome'.[48]
We believe, however, that it is yet more evidence of the need
for reform that terms of reference of such significance to the
House were developed by the executive behind closed doors followed
by such a hit and miss, suck it and see, 'consultation' process.
We do welcome the way in which the proposed membership of the
committee was brought forward. The choice of a backbench chairman,
within the terms of the motion itself, is an innovation and one
significant advantage over the, presumably, now moribund Select
Committee on the Modernisation of the House of Commons. We also
applaud the way that the main political partiesseemingly
independentlyeach arranged for names to be put forward
for its membership via secret ballot. This, other things being
equal, may well prove to be a model for the way forward for all
select committees.
45. It is for the Committee itself, now formally
established, to decide its own programme. Nevertheless, we have
considered two important and inter-related priorities:
- Commons Standing Order No.
14 states that "Save as provided in this order, government
business shall have precedence at every sitting [of the House]".[49]
Exceptions are made for 20 Opposition Days and 13 Fridays for
Private Members' Bills.[50]
The authoritative guide to parliamentary procedure, Erskine May,
marks the year 1811 as the beginning of the executive's appropriation
of the time of the House by standing order at the expense of backbenchers,
with modern practice having its roots in Lord Balfour's reforms
of 1902.[51] Erskine
May notes that: "In the early nineteenth century, government
business was by custom given priority on two days a week"
but between then and now, backbenchers have lost Tuesdays, Wednesdays
and some Fridays[52]
but gained Westminster Hall (although only for debates, not decisions
and votes).[53]
- Within this shifting balance, different ways
of curtailing or re-locating debate were also developed.[54]
Obstruction of House business by Irish nationalists in the 1870s
and 1880s, and other pressures, gave rise to the guillotining
of bills, closure motions and standing committees (moving debate
on the detail of legislation away from the floor of the House).[55]
The post-war period saw time for debating the flow, now torrent,
of delegated legislation severely circumscribed and relegated
from the floor of the House. Most recently, programme motions
for bills have had a profound effect on the time allocated to
legislative scrutiny both on the floor of the House and in committee.
46. The Government's control of parliamentary
time is embodied in the fact that the Leader of the House is a
Cabinet Minister and greatly strengthened by the system of programme
motions introduced in 1997.[56]
There are negotiations about Parliamentary business between the
"usual channels", i.e. between the Government and the
leaders and whips of opposition parties, but these negotiations
take place behind the scenes.
47. We welcome the establishment
of the Select Committee on Reform of the House of Commons to examine
these matters, and we particularly applaud the change in the terms
of its remit that will allow the Committee to consider the scheduling
of government, as well as non-government, business. We believe
that three key areas for the re-consideration of existing practice
by this Committee are:
- the near total
control of the Order Paper which determines the House's business
each day;
- the dual role of the Leader
of the House as the main channel for all House business and as
a member of the executive; and
- the fact that the House itself
has no mechanism for introducing effective motions relating to
business and timing other than through the Leader of the House.
48. Any government is entitled
to use its majority to create opportunities to give an account,
and secure the passage, of its legislative programme and to ensure
that it has the parliamentary time to present that programme to
the House. The right of the elected majority to make effective
progress with its business is well accepted but equally the House
must hold the executive to account and, in doing so, make sure
that legislation is adequately examined and amendments properly
considered. There is widespread concern over the current balance
between how the House, as a whole, perceives and articulates its
priorities for the way time in the Chamber is spent, and how the
executive responds in managing arrangements. The House and the
executive need a mechanism, not dominated by the latter, through
which the timetabling of bills and other debates can be determined.
The House needs its own 'voice'. We expect that the new committee
will examine the case for a business committeewithout an
automatic government majorityto carry out this function.
49. We acknowledge the short
time-frame within which the Select Committee on Reform of the
House of Commons is expected to report, and urge it to bear in
mind the broader constitutional implications of any recommendations
it makes for parliamentary reform, which we will consider when
the proposals are published.
29 The Parliamentary Standards Bill received Royal
Assent on Tuesday 21 July 2009 Back
30
Erskine May makes this clear: "At the very highest level,
there is much in the observation that if the United Kingdom has
in any senses a constitution and that constitution is capable
of restraining an elective dictatorship, the standing order and
the practices of the two Houses, shaped over the centuries by
changing political pressures, and since 1844 described in May's
Treatise, are an important part of it". Erskine May 23rd
edition, p.11, 2004. Back
31
HC Deb, 23 June 2009, cols 678-691 Back
32
HC Deb, 23 June 2009, col 691 Back
33
Parliamentary Standards Bill, Explanatory Notes, Bill 121-EN,
p.7 Back
34
"MPs will regret rushing into tough-looking legislation on
expenses", The Times, 24 June 2009 Back
35
HC Deb 23 June 2009, col 689 Back
36
HC Deb, 25 June 2009, col 950 Back
37
Justice Committee, Seventh Report of Session 2008-09, Constitutional
Reform and Renewal: Parliamentary Standards Bill, HC 791,
Ev 1-10 Back
38
Justice Committee, Seventh Report of Session 2008-09, Constitutional
Reform and Renewal: Parliamentary Standards Bill, HC 791,
para 4 Back
39
House of Commons Library Standard Note (SN/PC/05121), The Commons
stages of the Parliamentary Standards Bill. Back
40
HL Deb, 8 July 2009, col 681 Back
41
HL Deb,14 July 2009, col 1049 Back
42
Seventeenth Report of Session 2008-09. HL Paper 130. The Committee
also published a second report, Parliamentary Standards Bill:
implications for Parliament and the courts, Eighteenth Report
of Session 2008-09, on 8 July 2009.HL paper 134 Back
43
Para 3 Back
44
Para 19 Back
45
Para 20 Back
46
Para 23 Back
47
HC Deb, 10 June 2009, col 797 Back
48
Samuel Johnson, The Major Works, April 2009 Back
49
House of Commons Standing Orders relating to public business,
2009, HC 2 Back
50
Opposition Days are for business chosen by opposition parties
pro rata and Private Members' Bills days are self-explanatory.
Back
51
Erskine May's Treatise on the Law, Privileges, Proceedings and
Usage of Parliament, 23rd Edition (MacKay), page 7. In 1852 the
ability of Ministers to place Government Orders at the head of
the Orders of the Day on certain (undefined) days was formalised
in Standing Orders. By 1902 the definition of Standing Orders
was reversed and Government business had precedence "at every
sitting" with certain exceptions which had the effect of
preserving two days a week for private Members. Back
52
Private Members' Bills Fridays survive; but Private, or backbench,
Members' Motions Fridays do not. Back
53
Ibid, pages 7-9. Debates in Westminster Hall are 'adjournment
debates'; i.e. there is no proposition before the Chamber on which
to have a vote. The backbench Member therefore gets to choose
the debate subject but cannot propose a Motion on which to ask
the House to express an opinion. Back
54
Erskine May has a whole chapter entitled "Methods of curtailing
debate", ibid, pages 456-81 Back
55
Now called 'public bill' and 'delegated legislation' committees. Back
56
Allocation of time orders (guillotine motions) were first used
in 1887. In its first report of 1997 on The Legislative Process
the Modernisation Committee recommended an approach for the timetabling
of legislation that was "more formal than the usual channels
but more flexible than the guillotine". The approach the
Committee recommended was based on agreement of the bills to be
programmed across the parties through the usual channels. Programme
motions were to be subject to 45 minutes of debate after the second
reading. Programming sub-committees of the relevant standing committees
would be established to guide the legislation through its committee
stage drawing up a detailed timetable for consideration of the
legislation within the set outdate. During the 2000-2001 session
the Government began timetabling almost all public Government
bills and almost all of the 19 Programme Motions introduced that
session were resisted by the Official Opposition. In the 2003-04
Session a total of 63 Programme Motions were introduced. On 26
October 2004 the House voted to make programming permanent.
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