The legislative process
9. For the purpose of our inquiry, we have not
interpreted the legislative process narrowly in terms of when
bills are before Parliament. We are concerned with Parliament's
role in the formulation, discussion, and implementation of legislation.
We have therefore structured our investigation in terms of pre-legislative
scrutiny, legislative scrutiny, and post-legislative scrutiny.
10. We believe that such a broad focus is essential
to understanding and maximising Parliament's role of legislative
scrutiny. Once Ministers have brought bills before Parliament,
they tend to adopt a proprietary attitude toward them. For Ministers,
getting bills introduced and enacted is a demonstration of ministerial
strength. In his memoirs, Robin Cook[8]
records sharing with a colleague his frustration at not having
any "big bills to put before Parliament".[9]
Once a bill is given a first reading, it is published. It is thus
in the public domain. Ministers, advised by the sponsoring department,
can then be reluctant to accept significant changes, since this
may be seen as a sign of weakness and may be exploited by political
opponents.
11. Clearly, once a bill is introduced, Parliament
does need to be able to subject bills to rigorous scrutiny. That
scrutiny has the advantage of being structured and transparent:
proceedings are public and on the published record. However, we
stress that Parliament's influence may be greater before a
bill is formally introduced. Ministers may be more amenable to
accept changes when the bill is not in its fully-drafted form
and formally before Parliament. Ministers can consider changes
without the need to go to the dispatch box and make a public defence
of the existing provisions.[10]
We thus attach considerable importance to looking at Parliament's
capacity to influence Ministers at the pre-legislative stage.
12. We also attach importance to the post-legislative
stage. Once a bill has received Royal Assent, there is a danger
that Parliament will regard its responsibility for the measure
as spent. We believe that such an attitude is inappropriate and
potentially dangerous. Measures once enacted may not have the
effect that Parliament intended. Unintended and negative consequences
may become apparent very quickly, or they may take years to come
to the notice of parliamentarians, by which time a great deal
of damage may have been done. Once the impact is recognised, corrective
legislation may be needed. The sooner the bad consequences of
legislation are recognised and acknowledged by Parliament, the
better, making it more likely that corrective action can be taken
before the effect becomes significantly worse. There is thus a
case for rigorous scrutiny at this stage as well as the pre-legislative
and legislative stages. We have structured our report accordingly.
Relationship between Parliament
and citizens
13. The legislative process is not an insulated
one. It is important that Parliament is aware of the views of
others. Parliamentarians may not themselves be expert or especially
well informed about the subject mater of a bill. It is essential
that Parliament has the means to hear from experts and informed
opinion in order to test whether a bill is fit for purpose. However,
input should not be confined to such opinion. Citizens may have
strong views on the subject. Parliamentarians should be in a position
to know whether a measure is objectionable to citizens on ethical
or other grounds. A measure may be technically feasible—and
enjoy the assent of those affected by it—but it may not
necessarily be desirable in the view of citizens. Parliamentarians
do not have to go along with the views expressed to them by individuals,
but it is important that citizens have an opportunity to express
their views on measures before Parliament. It is then up to MPs
and peers to assess the strength of feeling and the extent to
which it is persuasive or informed.
14. The opportunity to be heard should apply
to citizens operating individually and collectively. Groups have
a right to make their opinions heard, but so too do citizens who
are not organised in groups. Our intuitive view is that groups
often have the knowledge and the means to make their voices heard:
individual citizens often do not. We are concerned therefore to
explore to what extent the means do and should exist in order
to ensure that citizens have the opportunity to express their
opinions on legislation being considered by Parliament. This concern
forms the final part of our report.
1 S. Amery (1877-1955; Member of Parliament 1911-1945),
Thoughts on the Constitution, Oxford: Oxford University
Press, 1964 edn., p. 41. Back
2
The Rt Hon Baron Rippon of Hexham (cr 1987), 1924-1997;
Member of Parliament 1955-64 and 1966-87. Back
3
A summary of the key recommendations is to be found in the evidence
of Michael Ryle, who served as secretary to the Commission (Vol.
II, p.17). Back
4
Procedure Committee, House of Commons, Delegated Legislation,
Session 1999-2000, HC 48. See also Procedure Committee, Delegated
Legislation, Session 1995-96, HC 152. Back
5
Parliament First, Parliament's Last Chance, London: Parliament
First, 2003, p. 5. Back
6
Commission to Strengthen Parliament, Strengthening Parliament,
London: The Conservative Party, 2000, p.11. Back
7
See, for example, The Legislative Process, First Report, 1997-98,
HC 190; Explanatory Material for Bills, Second Report, 1997-98,
HC 389; Carry-over of Public Bills, Third Report, 1997-98, HC
543; Modernisation of the House of Commons: A Reform Programme,
Second Report, 2001-02, HC 1168-I; Programming of Bills, First
Report, 2002-03, HC 1222; Connecting Parliament with the Public,
First Report, 2003-04, HC 368. Back
8
The Rt Hon Robin Cook MP, Leader of the House of Commons 2001-03. Back
9
Robin Cook, The Point of Departure, London: Simon and
Schuster, 2003, p. 10. Back
10
See also the comments of the Modernisation Committee, House of
Commons, The Legislative Process, Session 1997-98, HC 190.
See also Dr Meg Russell, Written Evidence (Vol. II, p.35). Back
