House of Commons - Explanatory statements on amendments to bills

Explanatory statements on amendments to bills - Procedure Committee Contents

Explanatory statements on amendments to bills

Introduction

1. In September 2006 the Modernisation Committee recommended that the Procedure Committee "draw up a set of rules governing the tabling and publishing of explanatory statements to amendments in standing committee, and that a pilot scheme be conducted with a single, substantial bill to evaluate the potential impact of this move".[1] The aim was to assist Members in preparing for debate in a public bill committee by providing a brief explanation of the intended effect of an amendment. In response to the recommendation, our Committee established guidelines for explanatory statements and oversaw an experimental trial of the facility during the committee stage of the Legal Services Bill [Lords] in June 2007. The pilot phase was extended to cover three bills in 2007-08 and then extended again to include all bills before a public bill committee (except the Finance Bill) from February 2009 until the end of session 2008-09. In this short report, we bring together the evidence and feedback received from these three pilots and consider what future steps should be taken with regard to explanatory statements.

Guidelines and publication of explanatory statements

2. The guidelines for the use of explanatory statements, drawn up by this Committee and endorsed by the Chairmen's Panel before their first use in 2007, are as follows:

Procedure Committee Guidelines
1. Any Member tabling an amendment to a bill in a Public Bill Committee may at the time of tabling accompany that amendment with an explanatory statement of not more than 50 words.
2. The explanatory statement must describe the intended effect of the amendment but may not be phrased as an argument for its adoption or against the existing text of, or any other proposed amendment to, the bill.
3. Questions as to the implementation of these rules shall be decided by the Chairman of the Public Bill Committee.
4. Explanatory statements will be printed in italics immediately following the amendment to which they relate. Where several amendments are tabled which are consequential upon another amendment, the explanatory statement should state that fact and shall be printed with the first amendment in the sequence.

3. Members, or Parliamentary Counsel in the case of Government amendments, submit explanatory statements to the Public Bill Office with the relevant amendment and the statements are then printed on the amendment paper in 10pt italic type under the amendment. As a result of a recommendation from this Committee, explanatory statements were also printed in the Official Report of the Committee's proceedings during the 2009 experiment. We considered at the time of making the recommendation that this would help the reader in cases where members of the committee make reference to the statements and would increase their visibility to anyone interested in public bill committee proceedings.

Take-up

4. The Government gave a voluntary undertaking to table explanatory statements with amendments but there is no obligation on others to do so, and the use made by Members of the facility has varied considerably through the three stages of the pilot. In the first phase, of 17 members of the public bill committee looking at the Legal Services Bill [Lords], nine tabled amendments and seven of these tabled explanatory statements with either all or some of their amendments.[2] In the second phase, take up by opposition and backbench members was described as "low".[3] This continued through to the third phase of the experiment from which the Clerk of Bills reported that "the Opposition front bench rarely produce ESs [...] The Liberal Democrat front bench produce them more often than not [and a] few backbenchers have tabled ESs".[4]

5. It is not surprising that the Government is more able to fulfil its undertaking to produce explanatory statements than the Opposition or backbenchers are able to take up the optional facility, given the disparity of resources available to the different sides. We also recognise that for the Opposition there may be a political imperative to retain an element of surprise as to their intentions. In addition, some amendments are tabled to probe rather than to suggest a viable alternative to the words in the bill. Nevertheless, we are struck by the difference in scale between the levels of take-up at the different stages of this experiment.

6. It is possible that the fall-off in tabling explanatory statements may reflect an informed decision on the part of Members that tabling them is not worthwhile but from the evidence we have seen we cannot rule out the possibility that it derives rather from a lack of awareness of the existence of the facility. We note that for the first pilot intensive efforts were made to publicise the innovation through the parliamentary website, information from the Vote Office handed out with the bill, and an email to all members of the public bill committee, as well as similar information placed on the department's website for outside parties and an announcement of the pilot by the Leader of the House during Business Questions.[5] The views of committee members were sought by means of a questionnaire distributed during the last sitting, which again drew attention to the fact that they were participating in an experiment. In the latter two stages, committee members were given a leaflet by the PBO and received an email from us as the bill went into committee but there has not been a similar publicity drive. One Member on a public bill committee in early 2009 observed:

We only had a few amendments where there was an explanation and these were all government amendments.

I put down a few amendments myself but didn't add an explanation—this was because I was unfamiliar with the procedure and there was no particular prompt for me to do so. The issue of explanations was referred to by the Clerk in one memo but no particular guidance was given. I think if guidance had been there then backbenchers might have been more inclined to put down explanations.[6]

We believe that this needs to be explored further and we return to the subject in our recommendations at the end of this report.

Usefulness

7. Explanatory statements were designed to meet the needs of Members, and in general the feedback we have received from them has been positive. Of the 17 members of the public bill committee in the first pilot, all 13 who completed the survey felt that explanatory statements had either greatly assisted or helped to some extent their consideration of the Bill.[7] One backbench member also told us that explanatory statements "helped avoid the Public Bill Committee sessions becoming a preserve of the front bench".[8] In addition, officials supporting the Minister believed that "explanatory statements on non-Government amendments helped to clarify points which Members were seeking to make".[9]

8. Perhaps as a result of the lower take-up, the reported level of satisfaction was less marked in stage 2 and 3 of the experiment but the balance of opinion was still in favour. Two of the Chairmen from the second pilot bills told us that explanatory statements were "most helpful" and again "very helpful in understanding amendments and their purpose".[10] Members of the Committee also found them "useful" and "helpful", with one commenting that they "contributed significantly to achieving a better understanding of the issues" and another judging that the pilot was "an unambiguous success".[11] There were some negative comments, including that the process "is largely a waste of time!"[12] and one Member who considered that it was impossible to convey the necessary level of detail in this form.[13] Clerks attending the committees in the second pilot reported that they "did not notice any specific references to explanatory statements in debate and did not perceive any difference in the quality or focus of debate in Committee".[14] On the other hand, government officials on the Pensions Bill (one of the three bills in the 2007-08 experiment) regarded explanatory statements "as a helpful opportunity to explain proposed Government amendments" and "of significant benefit in clarifying the purpose of opposition amendments and improving the focus of debate by helping Ministers to respond to the substantive issues being raised".[15] For the third pilot, from which feedback was very scanty, the verdict amongst Members appeared to be positive as to the idea but that it needed to be used more regularly for it to be beneficial.[16]

Impact of explanatory statements upon Government departments and the House services

9. Drafting explanatory statements clearly imposes a burden upon Members where they choose to use the facility but because of the number of Government amendments that are tabled and the commitment by the Government to table such statements to all amendments to the relevant bills, the impact of the experiment has fallen disproportionately on the Government in preparing, and on the House in processing, the statements. It was recognition of the costs and "the significant use of resources involved" that led the Leader of the House to suggest the third stage in the pilot in July 2009 as a means of addressing the question as to "whether the use made of the facility is properly cost-effective".[17]

10. We have found it difficult to reach an accurate estimate of the real costs of the facility. For Government amendments, the explanatory statements are drafted by the department and edited and tabled by Parliamentary Counsel. At the second stage of the pilot Government departments were positive about the cost-effectiveness of the process, seeing "a small increase in workload as worthwhile given the advantages they derived from the inclusion of explanatory statements",[18] whilst Parliamentary Counsel were markedly less sanguine, finding the "value of statements [to be] marginal" and considering "the need to edit statements supplied by departments (for substance and length), insert statements into amendment documents and cross-reference these as necessary, added significantly to their workload".[19] After the wider experiment in session 2008-09, the First Parliamentary Counsel reported that, where there had been a large number of government amendments to a bill, "the preparation of explanatory statements has been a considerable extra burden".[20] He suggested that other means of providing information on amendments, such as detailed briefing to Ministers or letters to committee members, were more useful, although he accepted that explanatory statements may have been of use to interested lobby groups because of their public nature.[21]

11. In the case of the House itself, explanatory statements to Government amendments do not cause any additional work for the Public Bill Office. Explanatory statements to other amendments need to be checked against the guidelines and edited to meet the 50 word limit. The low number of such statements in 2009 has limited the impact of this on the Public Bill Office but the office's review of the first pilot indicated that wider take-up would have significant resource implications. Similarly, such an increase would have cost implications for the Editorial Supervisor of the Vote which estimates that each Government explanatory statement adds about one minute extra work and each non-Government statement five minutes extra processing time.[22] Finally, there are printing costs. During the first pilot, the amendment paper was increased in length by 42 per cent by the inclusion of explanatory statements.[23] The then Clerk of Legislation estimated that this would cost an additional £113,000 a year if applied across all committee amendment papers,[24] although experience leads us to believe that the actual cost would be far less than this.

Recommendations

12. Experiments have now been conducted with explanatory statements in each session since 2006-07 and the results of these experiments are, we have to say, inconclusive. The take-up of the facility by non-Government frontbenchers and all backbenchers has been disappointing. The positive feedback from those Members who responded to our call for evidence, however, indicates that the provision of explanatory statements by others is valued and that more could and should be done to encourage Members to use the process. We also consider that the benefit of explanatory statements may be greater in a new Parliament with many new Members unfamiliar with the procedure on scrutinising bills. For this reason, we do not advocate calling a halt to the experiment at this stage.

13. We have a few suggestions to make as to how the system could be improved in order to realise more of the potential benefits. First, thus far the pilots conducted with explanatory statements have been restricted to bills in committee but there is an argument to be made that in fact Members appointed to such committees are more likely to have a firm knowledge of the subject than Members faced with amendments to bills in Committee of the whole House or at report stage. Parliamentary Counsel alerted us to the tighter time constraints in these circumstances because amendments, on consideration at least, are "typically tabled over a much shorter period than are amendments for public bill committee".[25] This timescale would increase the burden on those preparing and processing the statements but in other ways supports the contention that explanatory statements may be more beneficial here precisely because Members have less time to study the amendments themselves. In addition, as the Clerk of Bills reminded us, there may be occasions on report and in Committee of the whole House where there is "no other opportunity for Ministers to explain their amendments before they are decided en bloc under a programme order."[26] This is a gap which explanatory statements could usefully fill. We also see a case for extending the experiment to Private Member's Bills where we consider that explanations may be particularly useful.

14. Secondly, we believe that there are gains to be made from a concerted effort to encourage the submission of explanatory statements to non-Government amendments. The official Opposition have not made great use of the facility and we were pleased to receive an undertaking from the Shadow Leader of the House that he would remind the Shadow Cabinet of the existence of explanatory statements and see "whether they would like to make better use of the opportunity that this provides".[27] Although we stress that we do not believe that it should be compulsory for amendments to be accompanied by explanatory statements, we would like to see the frontbenches use the facility as a matter of course. For other Members, we believe that giving a higher profile to explanatory statements, perhaps by repeating the publicity campaign that accompanied the first pilot, would result in a higher level of take-up. The Public Bill Office should remind Members that they might consider tabling explanatory statements and highlight guidance on how to do so. It would also be helpful if forms were made available for the submission of amendments with an appropriate space provided for an explanatory statement. In addition, engagement by the House with Members' researchers might prove fruitful in increasing the proportion of amendments tabled with explanatory statements.

15. Thirdly, we have taken the opportunity to review the guidelines for explanatory statements in the light of the experiment so far. We consider that they have proved workable and robust but that there are slight adjustments which could now be made for the convenience of the House. In particular, we recognise Parliamentary Counsel's observation that "some limited flexibility on the 50-word limit might make the process of preparing explanatory statements less time-consuming and the terms of the statements more helpful".[28] We also accept that where the effect of the amendment is self-explanatory there should be no requirement for an explanatory statement. We hope that these two changes will ease the burden on those producing explanatory statements whilst not reducing their usefulness nor the commitment of the Government to providing them.

16. We recommend that the trial with explanatory statements to amendments to bills continue in the first year of the new Parliament; that it be extended to bills in Committee of the whole House and on report, and to Private Member's Bills; that the opposition frontbenchers and all backbenchers be strongly encouraged to table explanatory statements with their amendments; and that the guidelines be changed to allow explanatory statements of "around 50 words" and to lift the requirement for such a statement when the amendment itself is self-explanatory. We hope in this way to increase the use and therefore the usefulness of this facility without imposing an undue burden on the House, Government departments or others. To ensure that the House has a better idea of the value that Members place on explanatory statements and their contribution to increasing the scrutiny of Bills, we recommend that at the end of the next stage of the experiment a full survey be carried out by the House authorities of all Members and the results analysed by a committee of the House.

1 First Report from the Select Committee on the Modernisation of the House of Commons, The Legislative Process, HC 1097, Session 2005-06, Back

2 Ev 4 Back

3 Ev 6 Back

4 Ev 13 Back

5 Ev 4 Back

6 Ev 12 Back

7 Ev 4 Back

8 Ev 10 Back

9 Ev 4 Back

10 Ev 8 Back

11 Ev 8, 9 Back

12 Ev 8 Back