Memorandum submitted by Stephen Laws CB,
First Parliamentary Counsel (P 18, 2009-10)
1. Thank you for your letter of 2 December
asking for a note to the Procedure Committee on the additional
time and cost involved in producing explanatory statements for
government amendments to bills. You also asked me to draw the
Committee's attention to any additional points of which I thought
they should be aware.
2. I have canvassed views from colleagues
who worked on last session's bills, both within OPC and in instructing
departments. What follows sets out what has emerged from this.
3. The process of drafting and checking
explanatory statements, and the administrative process of incorporating
them into a batch of amendments for tabling, has been time-consuming,
both for parliamentary counsel and departments. On bills where
there have been only a few government amendments in public bill
committee this has not proved too much of a burden. On bills where
the number of government amendments in public bill committee has
been into the dozens or even hundreds (uncommon in the last session
but less so in the previous session, when as you will be aware
a more limited experiment was conducted), the preparation of explanatory
statements has been a considerable extra burden, in particular
as it is not uncommon for the terms of the amendments themselves
not to be settled until shortly before they are tabled.
4. I expect the Committee will want to consider
whether the time and effort involved in preparing explanatory
statements is outweighed by the benefit they are seen as providing,
both to Ministers and to opposition and back-bench members of
a public bill committee.
5. On this point, departments did not think
Ministers found explanatory statements on government amendments
useful, relying instead on the more detailed briefing provided
by the department. (The departments themselves have, though, sometimes
found the process of preparing an explanatory statement to be
a useful discipline, in that it has required them to focus on
exactly what an amendment is intended to achieve.)
6. When tabling government amendments, the
practice of departments has been to write to public bill committee
members about the substance of the amendments. These letters have
been able to put the amendments in the context of the policy discussions
that have been taking place in a way that the limited format of
explanatory statements has not allowed. Departments think that
opposition and back-bench committee members will have found these
letters more useful than explanatory statements. In support of
this, we are not aware of any occasions where committee members
have referred in debate to an explanatory statement. Explanatory
statements are, though, made public in a way that these letters
are not and so may perhaps have been of use to interested lobby
groups.
7. Departments have commented that they
would have found it useful if opposition and back-bench committee
members had tabled explanatory statements with their amendments.
This would have made it easier to ascertain what non-government
amendments were aiming to do, and so would have enabled Ministers
to be briefed in a way that addressed the point more effectively.
It seems that there were only a very few occasions last session
on which explanatory statements were tabled by anyone other than
the government.
8. It does seem that a significant element
of the help that is derived from explanatory statements relates
to the way in which they can indicate which amendments are to
be read together as different parts of the same story. However
care is needed with this to avoid pre-empting decisions of the
chair on the selection and grouping of amendments. It may be that
this help could be provided by means of other changes that would
impose less of a burden on government and House officials, for
example m connection with the numbering and indexing of amendments.
9. If the Committee were minded to recommend
that the experiment with the use of explanatory statements should
continue, there are a few other points that the Committee might
wish to consider:
— 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.
— With Explanatory Notes, the guidance
is that no note is required for something that does not need an
explanation. Could this also apply to explanatory statements,
so that no statement would be required for an amendment the effect
of which was clear on its face?
— It would be helpful if the Committee
could consider specifically whether the experiment should apply
in the case of Private Member's Bills.
— The Committee might like to consider
how the practice of making statements could be encouraged in the
case of non-government amendments (where there is no alternative
help provided about what is intended), or perhaps, in the light
of the alternative help provided by Ministers, whether the use
of explanatory statements should be confined to non-government
amendments.
— If the Committee are considering
recommending the extension of the experiment to cover amendments
tabled on consideration of a bill (as well as in public bill committee),
they should be aware that the timing issues would be much more
significant in this case, because these amendments are typically
tabled over a much shorter period than are amendments for public
bill committee.
December 2009
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