Explanatory statements on amendments to bills - Procedure Committee Contents


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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