Rebuilding the House - House of Commons Reform Committee Contents


Memorandum from Professor The Lord Norton of Louth Professor of Government at the University of Hull

  My starting point is that we tend to see the relationships between Parliament and Government and between Parliament and the public as distinct rather than inter-related relationships. In considering reforms to structures and procedures to strengthen the House of Commons in calling government to account, the public tend not to figure as part of the exercise. I think that there is a compelling case for considering to what extent any reform can enhance public engagement with the political process. The greater the opportunity for such involvement, the greater the potential for a better informed House and the greater the likelihood of bolstering public confidence Parliament.

THE LEGISLATIVE PROCESS

  There is clearly a case for strengthening the House of Commons in the legislative process. This has always been the weakest point of parliamentary scrutiny. The introduction of Public Bill Committees in place of Standing Committees is a very welcome development. It is something I have long supported. However, there remains a serious problem in terms of time. The time usually provided between Second Reading and the first evidence-taking session is too short to enable a good range of witnesses to be assembled. Too often, the evidence-taking is confined to the "usual suspects"—interest groups who are known to Members—and, even then, they may not always have sufficient time to prepare material. There is also insufficient time between the evidence-taking sessions and consideration of amendments to enable Members to digest the evidence and to utilise it as part of the probing and amending process. The problems are well researched and expressed by Jessica Levy in her study, Strengthening Parliament's Powers of Scrutiny?[1]

  The tight timetable not only causes problems for MPs but also for those outside the House. The process is too short to enable anyone other than organised interests, who hire or have an in-house parliamentary monitoring facility, to know what is going on and to be able to have an input into the process. It is skewed in favour of an established set of bodies. They can and do provide useful and often authoritative input into the process: my concern is with those who are excluded.

  There is a solution that will enable people outside Parliament to have a greater say as a Bill goes through. It can be realised without jeopardising the capacity of the Government to get its legislation. The House has already made provision for Bills in certain circumstances to be carried over from one session to the next. The rules in the Commons are not as constrained as in the Lords.[2] I have long advocated the use of carry over. It enables Bills to be staggered in their introduction (reducing pressure on parliamentary counsel) and for a more equitable distribution of parliamentary resources: it avoids the bunching of committees at roughly the same time of year. As long as one maintains a specified cut-off point (a Bill must be passed within a specified period otherwise it falls) then the discipline provided by the sessional cut-off is maintained. At the moment, the cut-off point for a Bill that is carried over is twelve months from First Reading. This cut-off point replicates the problems associated with the traditional sessional cut-off. It fails to provide time for proper evidence-taking by committees.

  What I recommend is the greater use of carry-over, with a fourteen-month cut-off point.[3] This enables time to be built into the process to widen the gaps between Second Reading and evidence-taking, to reduce some of the pressure on the evidence-taking period, and to enable time for Members to assess the evidence and, as appropriate, table amendments. This not only benefits Members, it also opens the process more to those outside Westminster. Allied with better dissemination of information about Bills, there is the opportunity for more people to have their say. This may be achieved not only by the traditional method of calling for and taking evidence, but also through the greater use of online consultations. The UK Parliament has tended to be at the forefront of such consultations—it is one area where it is ahead of other parliaments—and they provide a useful means of eliciting input from people who may have experience of the matter being considered.

  The Parliamentary Office of Science and Technology (POST) employed an online consultation on flood management and the all-party group on domestic violence employed one as part of its study of domestic violence. In 2004, Professor Stephen Coleman was able to tell the Modernisation Committee:

    On-line consultations are something that you [Parliament] have in fact pioneered, and have done better than any other parliament in the world. There is quite a lot of data suggesting that these consultations have had an effect on the fairly small minority of people who have engaged in them—because they have been deliberative, because they have been expansive over a period of a month, and because they have taken people seriously.[4]

  Since then, the use of online consultation has been expanded, a number being run by the Hansard Society on behalf of Parliament[5] and more recently by Parliament itself.[6] Topics covered have included hate crime, human reproductive technologies, conditions of prison officers, traditional retail markets, universities' admission processes, UK engineering, post offices, armed forces recruitment and retention, criminal justice, forced marriage, the role of local government in the drive to reduce carbon emissions, as well as issues being addressed by the Speaker's Conference. They have also been held on connecting both Houses with the public. As the TellParliament website noted, of those who contributed to the consultation on diabetes, 78% had never contacted an MP before. Though they have been used by select committees and for draft bills, I believe there is the potential for their greater use in the legislative process. Creating more time would provide a short but useful window of opportunity to invite contributions from those who have something to say but who may never have thought previously of contributing to the parliamentary process.

  It is also worth recording that creating a cut-off point of fourteen months after introduction remains, in international perspective, extremely tight. The present sessional cut-off renders the UK Parliament distinctive in comparative perspective.[7]

PRE-LEGISLATIVE SCRUTINY

  Pressure on the legislative process is arguably reduced, and people outside Parliament have a greater opportunity for some input, when Bills are published in draft and subject to pre-legislative scrutiny. The use of pre-legislative scrutiny is to be welcomed and the experience to date has been encouraging—at least where employed.[8] Committees have the opportunity, albeit often under considerable time pressures, to take evidence, to utilise online consultations and even, on occasion, to be peripatetic. They obtain input from interested bodies at a stage when they may have an opportunity to influence the content of the Bill.

  The Constitution Committee of the Lords in its 2004 report on Parliament and the Legislative Process welcomed the practice and argued for its extension. As it recorded:

    The Modernisation Committee in 2002 stressed that it wished to see publication in draft become the norm. The Deputy Leader of the House, Phil Woolas, has stated that "a bill should be published in draft form unless there are good reasons for not doing so" and has made clear that "it is the Government's intention and policy to increase the amount of legislation that is subject to pre-legislative scrutiny".[9]

  The problem has been that there not been a consistent increase in the use of pre-legislative scrutiny. As the data published by the Constitution Committee demonstrate, there was a notable fall in the number of bills published in draft in the sessions following that of 2003-04, expressed both in absolute terms and in terms of the ratio of draft bills to government bills.[10] The explanation offered by the Government for the failure to increase the number of bills published in draft was expressed by Baroness Ashton: "The main practical obstacle remains the need to have the freedom to bring forward much legislation on a timetable which does not allow for publication of the proposed legislation in draft form."[11] I have more than once asked for an explanation of what this means, but have received no answer. Given that the Government have expressed disappointment at the limited number of Bills published in draft, it appears to be the case that it favours their use in principle but in practice cannot persuade ministers to utilise the procedure on a more regular basis.

  The House benefits from pre-legislative scrutiny: it can examine bills in detail at a stage when Government has not finalised the content and when the views of those outside the House can be heard. The greater use of carry-over also reduces some of the time pressures for committees engaged on pre-legislative scrutiny. The Constitution Committee of the Lords recommended that publication in draft should be the norm rather than the exception, with ministers having to justify those occasions when measures are not published in draft. The Government should be urged to commit itself to publication in draft, and pre-legislative scrutiny, as the norm rather than the exception.

A BUSINESS COMMITTEE

  The proposal for a business committee has been variously made. I would make three observations.

  First, the House of Commons is distinctive in international comparison for the amount of time that is controlled by the Government. When I chaired the Conservative Party's Commission to strengthen Parliament, some of the most remarkable data we received were from Dr Thomas Saalfeld, showing just how marked that control was compared to other countries.[12] We recommended that the House move more in the direction of the practice of other countries.

  Second, giving control of business to bodies other than the Government's business managers does not prevent the Government from getting its legislation. That again is apparent from comparative study. As long as the Government has its majority, it will be able to get its bills passed. To enable the distribution of time to pass to some other body or bodies does not necessarily affect outcomes. Time can be allocated within the limits of a set out-date. The House largely proceeds on the basis of the adage that the Government is entitled to get its business but the Opposition is entitled to be heard. Reducing the Government's grip on the business timetable may enable all parts of the House to contribute more effectively to proceedings.

  Third, the transfer from Government of control over business does not necessarily have to be total and, perhaps most importantly, it does not necessarily have to be transferred to a single body. I favour a business committee, but there is a case for allowing other bodies to determine some part of the timetable. This avoids Members fearing that control will pass from one body that may be viewed as a little too powerful and distant to another that may possibly be similarly viewed (especially if it is a small body of the great and the good). Distributing responsibility to more than one body prevents an unhealthy monopoly. Alternatively, a business committee could determine allocation of time but not necessarily determine the content. At the moment, for example, three Estimates Days are scheduled each session, but it is the Liaison Committee that determines which reports will be debated on those days. At the moment, this is the only example of a committee of the House determining the content of business in the chamber. This practice of allowing a committee of the House to determine the content of business could usefully be developed, perhaps encompassing more than one committee.

TIME OF THE HOUSE

  In allowing more than one body to determine what the House debates may also be allied with a more varied distribution of time. The timetable at the moment is largely predictable and unimaginative. Government business managers have no obvious incentive to depart from the tried and tested. However, creating a more varied timetable may also link to my theme of enabling those outside Parliament to be heard, directly or indirectly. By directly I refer to the proposal for some debate to be prompted by petitions and indirectly through greater opportunities to debate select committee reports, possibly on substantive motions. The use of debates in Westminster Hall has greatly expanded the opportunity to consider committee reports, but allocating time on the floor for occasional half-hour or hour-long debates would add considerably to the process. Another procedure worth considering is something similar to Questions for Short Debate (QSDs) in the Lords. These are not dissimilar to the half-hour adjournment debate at the end of business in the Commons, but if taken in the dinner hour they last for a maximum of 60 minutes and if taken as the last business of the day they last for ninety minutes. There is considerable opportunity for several peers to take part. One possibility may be to extend the length of the adjournment debate at the end of the day. Even if it lasted for forty-five minutes, the difference in terms of opportunities for others to contribute briefly would be significant. Given that the issues raised are often matters of concern to particular individuals or groups outside the House, greater time would fit very much with the theme of enabling those outside the House to have a greater voice.

  Some scheduled debates, including Second Reading debates, are lengthy and unproductive, characterised by empty green benches—sending out the wrong (albeit misleading) signals to people outside the House. A more varied diet of debates, including greater opportunities for emergency debates under Standing Order 24, has the potential to engage Members and to enable debate on matters of concern to those outside the House.

PETITIONS COMMITTEE

  Petitions committees are common in West European legislatures. The Scottish Parliament has one. Indeed, the House of Commons used to have one. There is pressure for the House to have greater regard to petitions that are presented to it. Though now referred to the relevant select committee, petitions still, for all intents and purposes, enter a parliamentary black hole. This is not good for Parliament's reputation. Many thousands may sign petitions in good faith, hoping their views will at least be given serious consideration, only to find that nothing of note happens.

  There is a case for considering a petitions committee and, indeed, as the Procedure Committee has recommended, utilising e-petitions and enabling some debates to be triggered by petitions.[13] Having accepted the proposal in principle, the Government have now rowed back on grounds of cost.[14] Even if cost proves an inhibiting factor in enabling e-petitioning, there is still a case for dealing more effectively with petitions, whether submitted electronically or in paper form. A failure to move ahead with e-petitions is not in itself a bar to creating a petitions committee. However, there are still resource implications. There needs to be sufficient resources available to the committee to process and assess petitions. Inadequate resources, be it in terms of staff or time, can fundamentally undermine the utility of the process. In the German Bundestag, the sheer number of petitions submitted tends to overwhelm the system. "Given its modest resources (especially time), the Committee cannot follow up all complaints and petitions".[15] Time is also a factor in the Portuguese Parliament. "The main criticisms of this instrument are its ineffectiveness and the long time span between the presentation of a petition and its consideration by parliament. In any case, it soon becomes clear that the main petitioner is not the citizen, but rather organized groups, such as trade unions."[16]

  There may be a case for appointing a petitions committee with a staff that can engage in an initial sifting exercise, farming out those with a small number of signatures, or dealing with topics previously covered, for a response from the relevant Department, and enabling well-supported petitions on topics not previously the subject of petitioning to be assessed by the committee. Three days each session could be set aside, either in the chamber or Westminster Hall, for debates on topics selected by the petitions committee. This is very much line in with the recommendation of a more varied use of time, and with the decision as to content being determined by different bodies. The petitions committee could select topics in a manner analogous that of the Liaison Committee in the selection of reports for debate on Estimates Days.

SELECT COMMITTEES

  Departmental select committees have proved a great boon to the House of Commons. They were the product of pressure from the House and are sustained by the House. They deserve now to be developed further.

  The Committee has already discussed the means by which committee members are chosen. Some of the debate has surrounded whether they should be elected by the House as a whole. It is important to remember that they already are. Nominations for committee memberships are placed before the House for approval. The nominations for the Transport and Foreign Affairs Committees were voted down in 2001. There may be a case for duplicating or overlaying the process, but it is not clear as to the extent to which this will make a difference. There is competition for places on the high-profile committees but not for places on the rest (the majority). I have seen no study assessing by how much the membership would be different if other modes of selection were employed.

  I would contend that the more pressing issue to be addressed is one of resources and ensuring that Members know how to utilise resources effectively. Time is a major resource and there is not much scope for extending the time available to select committees (unless other commitments of Members are reduced). Given that, the alternative is to make additional staff and research resources available. In 1994, Sir John Banham recommended that each committee "should have a budget of, say, £2 million per session, to enable Members to secure the necessary independent and expert advice".[17] Even with a smaller research budget than this, each committee could commission research, complementing the necessarily self-serving evidence given by witnesses and not eating into the time of the committee itself. Researchers would be on tap but not on top. The committee could commission research on particular programmes or indeed utilise research in topics just coming on to the political agenda. (Research suggests that it is when addressing such topics that select committees have the greatest impact.)[18] The committees could also utilise the budgets to fund online consultations and, if necessary, opinion surveys. Providing more resources, though, will have little effect if members are unwilling to utilise them or don't know how to utilise them effectively. Providing greater research resources to select committees has the capacity to enhance their work but needs to be accompanied by advice and training on how to utilise those resources effectively. The Scrutiny Unit may possibly have a role to play in providing such advice.

CONCLUSION

  These recommendations are not exhaustive, but they provide I believe some proposals that are achievable and that enable the House of Commons to link more effectively to the public. I have previously argued that a number of conditions have to be met for significant parliamentary reform to be achieved (as in 1979): a window of opportunity, a reform agenda, leadership, and political will. The Committee has the opportunity to offer a reform agenda and may contribute to leadership in seeking to implement it. Ultimately, though, schemes of reform count for nought if Members themselves are not willing to embrace and sustain such reform. Without political will, the House cannot enhance its capacity to scrutinise government and engage more effectively with the public. The present public mood may (and I hope) engender the political will.

  A reform agenda is thus not sufficient. It is, however, necessary.

September 2009





1   Jessica Levy, Strengthening Parliament's Powers of Scrutiny? (The Constitution Unit, 2009) Back

2   For the provisions, see Modernisation: Carry-over of public bills, Standard Note SN/PC/03236, House of Commons Library, 4 December 2008 Back

3   As recommended by the Constitution Committee, Parliament and the Legislative Process, Fourteenth Report of Session 2003-04, HL Paper 173-I, p 41. Back

4   Modernisation Committee, Connecting Parliament with the Public, First Report of Session 2003-04, HC 368, pp 20-1 Back

5   www.tellparliament.net Back

6   http://forums.parliament.uk/html/index.html Back

7   The UK and Denmark are at one end of the spectrum (tight cut-offs) and the Netherlands at the other (no cut-off point). The norm is for a bill to remain on the agenda, unless voted down, until the end of the legislative term (typically, four or five years). P. Norton, "Time Limits on Bills: Ending the sessional cut-off in the UK", The Parliamentarian, Vol. 78 (1), 1997, pp 96-99 Back

8   See Constitution Committee, Parliament and the Legislative Process, pp 13-15 Back

9   Ibid., p 15 Back

10   House of Lords, Report of the Constitution Committee, Pre-Legislative Scrutiny in the 2006-07 Session, Session 2007-08, HL Paper 43, Table 1, p 6 Back

11   House of Lords, Report of the Constitution Committee, Pre-Legislative Scrutiny in the 2006-07 Session: Follow-up, Session 2007-08, HL Paper 129, p 5 Back

12   Commission to Strengthen Parliament, Strengthening Parliament (The Conservative Party, 2000), p 28 Back

13   Procedure Committee, e-Petitions, First Report of Session 2007-08, HC 136 Back

14   Procedure Committee, e-Petitions: Call for Government action, Second Report of Session 2008-09, HC 493; e-Petitions: Call for Government Action: Response to the Committee's Second Report of Session 2008-09, First Special Report of Session 2008-09, HC 952 Back

15   T Saalfeld, "Parliament and Citizens in Germany: Reconciling Conflicting Pressures", in P. Norton (ed.), Parliaments and Citizens in Western Europe (Frank Cass, 2002), p 51 Back

16   C Leston-Bandeira, "Parliament and Citizens in Portugal: Still Looking for Links", in P. Norton (ed.), Parliaments and Citizens in Western Europe (Frank Cass, 2002), p 140 Back

17   Sir J. Banham, The Anatomy of Change (London, Weidenfeld and Nicolson, 1994), p 50 Back

18   See, for example, D. Hawes, Power on the Back Benches? The growth of select committee influence (SAUS Publications, 1993) Back


 
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