Constitutional Reform and Renewal - Justice Committee Contents

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 parties—seemingly independently—each 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 committee—without an automatic government majority—to 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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