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.
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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 explanationthis 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
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