Select Committee on Constitution First Report


CHAPTER 3: SCRUTINY OF BILLS

28. Our witnesses gave us a number of different views on the scrutiny of bills. Lord Alexander of Weedon noted that the Delegated Powers Committee did not look at the merits of bills (Q 9). Lord Rodgers of Quarry Bank stressed the importance of our committee scrutinising legislation, both as it was going through parliament and by means of pre- and post-legislative scrutiny. He did not wish to see the committee spending time on private members' bills or non-government amendments (QQ 61-62). Lord Strathclyde saw our work as primarily that of a constitutional safeguard and any consideration we gave to bills should accordingly be of broad principles of the legislation rather than the details in it. He too suggested that we should carry out post-legislative scrutiny, and in particular review the legislative changes introduced since the 1997 General Election. He was very much in favour of us taking a pro-active view of our terms of reference in this area as is the House of Lords tradition (QQ 131—2, 142). Lord Craig of Radley too supported a more general remit than scrutiny of bills but there would of course be some bills that we would have to scrutinise (QQ 145—147). He too suggested that a review of events that had occurred, rather than an anticipation of what might occur in the future, would lead to more focused inquiries (Q 158). Baroness Jay of Paddington did not wish us to turn our back on legislation but drew our attention to some of the practical difficulties in the scrutiny of bills during their passage through the House (Q 192).

29. The scrutiny of bills requires activity in accordance with a legislative timetable outside our control, perhaps including speedy activity in short bursts, whereas our other function of keeping the operation of the constitution under review requires planning and organisation over longer periods and in accordance with a timetable which we can set for ourselves. We will accordingly need to make sure our work balances our two functions. How best, given that, can we conduct scrutiny of bills? The Royal Commission[12] presented an apparently clear blueprint for how they envisaged that the Committee would operate:

    "The proposed Constitutional Committee would adopt a similar approach to that of the Delegated Powers and Deregulation Committee. It would consider all public bills—other than those concerned with Supply or Consolidation—upon their arrival in the second chamber and prepare a comprehensive report on the constitutional implications. More generally, it should keep the operation of the constitution under review. Reports from the Constitutional Committee would draw the attention of Parliament, and also the media and the public, to points of concern. These points could be taken fully into account as legislation was considered by Parliament, rather than emerging only later".

30. The proposal that, in considering bills, we should work like the Delegated Powers and Deregulation Committee (DPDC) has attracted some support in the House[13]. The DPDC considers every bill after introduction in the Lords[14] on the basis of a memorandum from the relevant Government department which identifies and explains the individual delegated powers. The Committee then aims to report to the House in time to allow members of the House to table amendments for Committee stage. The Royal Commission, quoted above, envisaged that we would, on a bill's arrival in the Lords, prepare a "comprehensive report on its constitutional implications". How can we do this after a bill's arrival and in time for such a report to be of use to the House?

31. As Lord Alexander of Weedon told us, the Government memorandum is "crucial" to the working methods of the DPDC (Q 3). The Government had agreed, when the DPDC was set up, to provide a memorandum on each bill. No such Government undertaking to produce a memorandum was agreed, nor we believe sought, in regard to the Constitution Committee. Indeed, it is difficult to see what form such a memorandum could take. While it is a relatively simple task to identify the delegated powers in a bill, there is no clear and generally accepted definition of what constitutes a "constitutional" issue (see Chapter 2 above). In the absence of any such authoritative guidance, it is difficult to see how departments could produce workable memoranda for this Committee drawing the Committee's attention to constitutional matters. The Committee therefore sees no need for an automatic requirement for departmental memoranda, save that when a particular bill or subject is to be the topic of particular scrutiny by the Committee we will of course seek the views of the relevant department or departments in the usual way. As there is no single department of the constitution we would expect to deal with more than one department, although primarily with a limited number of departments[15]. In every case, we will use our judgement in determining what constitutes a constitutional issue in a bill.

32. In order for our reports to be of value to the House, we will aim to report on a bill before its second reading in the Lords. This is because we see any value that we can add to the consideration of a bill being in informing the debate on the principles in the bill, which are considered by the House in deciding whether to give a bill a second reading. We base this proposed timetable on the assumption that most bills that we will consider will be introduced first in the Commons, being substantive constitutional bills: a report before second reading after a proper inquiry would almost certainly be impossible for a bill starting in the Lords.[16]

33. We accordingly intend to use the period when a bill is passing through the Commons to research the issues it raises, including taking evidence. The argument that such examination would be unwise as the details of a bill might change before reaching the Lords does not deter us: we will aim to focus on issues of principle, which would be unlikely to change. We will of course be sensitive to the fact that we can never assume the form in which the Commons might pass a bill, or indeed that they will pass it at all. We will also aim to be sensitive to any scrutiny being carried out by select committees in the Commons while a bill is still before that House. We would nevertheless hope that any scrutiny we conduct will be helpful to all those concerned with the legislation, including the Government, by analysing proposed legislation and giving early warning of issues that the House might choose to raise in debate[17].

34. We also aim to conduct scrutiny of the majority of bills with a light touch. Looking at too many individual bills would lead to a very piecemeal approach to the constitution, although the Committee will no doubt come under pressure from those interested in, or concerned by, a particular bill and who can make some case that its implications are "constitutional". The Committee will need to examine carefully which bills ought in fact to be the subject of a substantive report to the House. For example, the recent Countryside and Rights of Way Bill, although it was concerned with rights of access to land, might not be thought to have raised significant constitutional issues; whereas the Political Parties, Elections and Referendums Bill clearly did, as the title implied.

35. The Committee will also not chase the tail of legislation by examining amendments proposed. We will focus on the constitutional principles underlying legislation and these ought to be clear on introduction. The Committee will not report on private Peers' bills which stand no hope of becoming law and which are in fact just opportunities for an interesting debate, although the text of such bills and any debate on them might well inform a more general inquiry into a particular topic[18].

36. For all these reasons, we expect to spend the majority of our time conducting inquiries into issues, under the second limb of the Terms of Reference, rather than considering bills in depth, although there will of course be occasional pieces of legislation worthy of detailed consideration. The Committee will accordingly adopt a sifting mechanism rather than making a substantive report on every bill. We will be flexible in considering opportunities for pre- and post- legislative scrutiny, and for examining patterns in legislation.

37. We are also aware of the need to consider carefully what form our reports on bills will take. We would expect that an objective analysis of the issues in a bill could inform debate in the House. On the other hand, attempting to make recommendations on the merits of an individual bill could draw us into partisan debate and the possibility of minority opinions and divisions that would dilute the impact of our reports. We will accordingly only present conclusions on the merits of individual bills in the most exceptional circumstances, such as a bill being so badly prepared that it has clearly unintended constitutional consequences.

38. The question also arises of when the Committee, having been appointed, should begin its consideration of bills. On the one hand, some may have expected the Committee to begin scrutinising bills straight after our appointment, as well as setting a programme of work on more general inquiries. There would, however, have been dangers in rushing to report on bills before we had established a method of working, or formed some idea of what constitutes a constitutional issue[19]. While we were under no obligation to do so, as our terms of reference have already been agreed by the House, we decided to begin work by conducting this inquiry into what we should do, and how we should go about doing it. We have begun scrutinising bills from the start of session 2001-2002, and have held a meeting to consider The Queen's Speech.


12   Op cit n2 above, paragraph 5.22. Back

13   Lord Dean of Harptree, a former member of the DPDC, said in the House on 10th May 2000, col 1609: "If we can be given an early warning by the proposed constitutional committee as to the importance of any constitutional issues arising in Bills, that would be a valuable safeguard for the House. I expect that if the new committee is set up…it will work in a way which is similar to that of the Delegated Powers and Deregulation Committee, which is already doing a very good job in warning the House of matters with regard to delegated legislation". Back

14   The DPDC has occasionally reported on bills before they have left the House of Commons: examples are the reports on the Elections Bill (18th Report Session 2000-2001 HL Paper 65) and on the Police and Firemen's Pensions Bill (19th March 1997) (22nd Report Session 1996-1997 HL Paper 77).  Back

15   Including the Cabinet Office (where the Government's Constitution Unit is located), the Privy Council Office, the Lord Chancellor's Department, and the territorial departments. We note that changes to Whitehall are currently underway that will affect where constitutional affairs are dealt with by the Government, and in particular some of the former work of the Home Office is being transferred to other departments.  Back

16   Our Terms of Reference require us to examine bills coming before the House and not, for example, Bills coming before the Scottish Parliament. Back

17   The Delegated Powers and Deregulation Committee in the Lords has reported on bills while still before the Commons (see note 14 above). The Joint Committee on Human Rights, being a Committee of both Houses, can of course do so as a matter of course. Back

18   Lord Donaldson of Lymington's Bill amending the Parliament Acts (introduced in session 2000-2001 as the Parliament Acts (Amendment) Bill [HL Bill 5]) illustrates our approach: while we would not usually wish to conduct a full inquiry or make a report on such a bill it could be considered as part of a broader inquiry into Parliament and Government.  Back

19   When the Delegated Powers Scrutiny Committee was established in session 1992-1993, the House required, following a recommendation from the Procedure Committee, that the Delegated Powers Scrutiny Committee should, before it began to consider bills, take written evidence and report to the House for its terms of reference to be confirmed (Procedure Committee 1st Report session 1992-93, HL Debs vol 538, col 1274). Back


 
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