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 Membersand,
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 consultationsit
is one area where it is ahead of other parliamentsand 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 thembecause
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 encouragingat
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 benchessending 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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