Memorandum submitted by Robert Rogers,
Clerk of Legislation (P 8, 2006-07)
1. On behalf of the Procedure Committee
you have sought my views on the issues of principle and practice
arising from this Modernisation Committee recommendation.
CONTENT OF
EXPLANATORY STATEMENTS
2. I agree with the view of the Chairman
of your Committee. When the Modernisation Committee recommended
the present system of Explanatory Notes on Bills[1]
they thought that such documents should be
— written in plain English;
— neutral in political tone;
— of value to those outside Parliament
as well as to Members;
and in their latest Report the Committee said
that statements should be as short as is consistent with describing
the intended purpose of an amendment.[2]
3. These seem to me to be the right criteria
for explanatory statements on amendments. There is then the question
of how they are handled when handed in.
EDITING OF
EXPLANATORY STATEMENTS
4. If the Modernisation Committee's criteria
quoted in paragraph 2 are to be observed, then your Committee
may wish to consider the question of editing; drafters of explanatory
statements may well be tempted into argument. And should there
be a word limit, either for a statement covering a single amendment
or a series?
5. If the Public Bill Office were to be
expected to edit statements so that the criteria were observed,
then an explicit authority would be helpful (along the lines of
the authority to edit Questions[3]).
I should say that the editing of statements, in addition to the
processing of the amendments themselves, is likely to occupy time
and skilled resources. The Public Bill Office can be very stretched
when significant numbers of late amendments come in and need complex
editing. Processing explanatory statements at the same time for
appearance on the Notice Paper the following morning could cause
difficulty.
ORIGIN OF
EXPLANATORY STATEMENTS
6. In the case of Explanatory Notes on Government
bills, which I see before publication, the process is simplified
by having Parliamentary Counsel as a single interlocutor who understands
the requirements of political neutrality and other factors. Parliamentary
Counsel would no doubt play a similar role in the preparation
of explanatory statements on Government amendments.
7. Many proposed amendments are suggested
to Members by outside organisations who will no doubt in future
also draft accompanying explanatory statements. As they may be
unfamiliar with the style required, considerably more editing
may be necessary, and the time for processing amendments commensurately
increased.
8. I should mention that, following Pepper
v. Hart, because a statement will indicate the intention of
an amendment it may, if that amendment is made, be a means of
statutory interpretation.
HOW MUCH
WILL EXPLANATORY
STATEMENTS BE
USED?
9. The use of statements may not be all
that extensive. The time for preparation of amendments is often
short. Members may feel that an amendment is sufficiently explicit
on its own, or perhaps is minor and does not merit an explanatory
statement. The Modernisation Committee recognised this, recommending
that the statement should be optional (although supplied for Government
amendments as a matter of course).[4]
It follows that the presence or absence of a statement would not
of itself be a factor in selection. However, authoritative confirmation
of this would, I am sure, be helpful to the House; and it is a
point on which your Committee might want to consult the Chairman
of Ways and Means and the Chairmen's Panel.
10. It already happens from time to time
that a Minister writes to the members of a committee on a bill
to explain the purpose of an amendment in some detail, and I imagine
that this would continue. Now that public bill committees are
able formally to receive evidence, such a letter could be printed
with the evidence.
11. If your Committee thought that a full
system of explanatory statements on amendments might be too cumbersome,
the evidence-taking powers of public bill committees might provide
a compromise. A Minister or any other member of a committee could
submit a note on proposed amendments which, as formal evidence,
would form a permanent part of the Committee's documentation,
rather than an ephemeral accompaniment to an amendment paper.
Issues of conforming with criteria, editing, software development
and so on, would not arise. And such a note might in practice
be more convenient than individual statements scattered through
an amendment paper.
PRESENTATION OF
EXPLANATORY STATEMENTS
12. Some practical issues in a formal system
of explanatory statements might be:
— the physical relationship between statement
and amendment[5]
Should there be a single paper, or a paper of
amendments and one of explanatory statements? Both methods of
presentation would need to take into account the fact that amendments
appear first in a paper of notices given and are then marshalled
on subsequent days. If amendments and statements were to be in
a single paper, then additional software development might be
required.
— how should amendments and explanatory
material be distinguished?
If both were in a single paper, a distinguishing
typeface might be the best way (rather than, for example, text
boxes); but if explanatory statements were in a separate paper
there would be no need.
— a single explanatory statement referring
to several amendments
This possibility was foreseen by the Modernisation
Committee, which referred to a statement on "a set of amendments".[6]
This would be fairly straightforward if the amendments were relatively
close together in the bill, but would be harder to follow if they
were scattered through a number of provisions, with references
to the note on the principal amendment. I think there would be
a presumption that a statement should not simply be repeated for
all the relevant amendments. Your Committee might wish to consider
whether, when the principal amendment had been dealt with and
so dropped from the amendment paper, the explanatory statement
should be moved to the next relevant amendment, which would be
an additional complexity.
When your Committee considers the matter in
detail, it might be helpful if I were to provide a mock-up of
an amendment paper so that some of these issues could be seen
in a practical context.
PRE-EMPTING
GROUPING AND
SELECTION
13. Some statements may appear to pre-empt
the Chair's decisions on grouping and selection. For example,
an explanatory statement on a clutch of amendments might say "Amendments
145 to 167 are a closely co-ordinated set of proposed
changes to the powers of entry and search in Part V of the Bill".
The Chair, on the other hand, might judge that there was only
a loose connection between them, that half of them did not merit
selection, and that those that did should be inserted in three
other groups. It might also be that, when the opportunity arose,
a Member whose amendment was not selected sought to table an explanatory
statement which sought (within the content criteria) to make the
case for selection. These are matters on which your Committee
might wish to seek the views of the Chairman of Ways and Means
and the Chairmen's Panel.
NOTICE
14. The House has agreed to increase the
period of notice for amendments in public bill committees from
two days to three. Will this apply to explanatory statements,
where a period of notice is not linked to the issue of selection?
There is a neatness (and probably a cost saving) in requiring
statements and amendments to be dealt with together. No doubt
your Committee will wish to weigh this (and the opportunity to
make corrections following one appearance on the Notice Paper)
against the contrary argument that no notice period should operate
so as to deprive a committee of explanation of an amendment.
COST
15. The present cost of the House's amendment
papers is about £82 per originated page. Any estimate
of overall cost will depend on a number of imponderables: for
example, the extent to which the opportunity is used; the degree
of editing required; any software development needed; rekeying
of hard-copy statements; the processes of remarshalling and of
inserting statements received later than the amendments to which
they relate, and of marking and making any corrections. The Board
of Management's Explanatory Memorandum for the debate on 1 November
2006 predicted "significant additional printing costs"[7]
but this would be only one element of the overall cost.
AN EXPERIMENT
16. You ask about timing and about the type
of Bill which might be appropriate. On timing, I suggest:
long enough ahead to benefit from the initial experience of Public
Bill Committees; but not so late as to make it difficult to put
into practice the lessons learned if the system were to be introduced
from the beginning of next Session. That might suggest a Bill
introduced in April or May 2007.
17. On the type of Bill, there might
be an argument for choosing something pretty impenetrable so that
explanatory statements were seen to be of maximum use, but I think
there is much to be said for choosing something fairly straightforward
so that the process is more transparent. If this finds favour
with your Committee, I will, with the Government's help, try to
identify something suitable, both as regards type and timing.
CONCLUSION
I hope this letter provides what your Committee
needs. I am of course at their disposal should they want further
information, or if they would like to discuss the issues.
January 2007
1 Second Report, HC 389 of Session 1997-98, Explanatory
Material for Bills; see especially paragraph 3. See also First
Report, HC 190 of Session 1997-98, The Legislative Process,
paragraphs 34 to 37. Back
2
First Report, HC 1097 of Session 2005-06, The Legislative
Process, paragraph 82. Back
3
See Erskine May, 23rd Edition, page 343, third paragraph. Back
4
First Report of Session 2005-06, paragraph 82. Back
5
I take it that a system of explanatory notes on amendments would
apply also to amendments to amendments, and amendments to new
clauses and new schedules. Back
6
First Report of Session 2005-06, paragraph 81. Back
7
If explanatory notes for amendments appeared in the same proportion
as those for bills (23%) that would suggest some 2,570 pages
at a cost of some £211,000. That is for only one appearance;
amendments appear first as given notices and then one or several
times in marshalled lists. The printing costs are therefore likely
to be significantly higher. Back
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