House of Lords - Constitution - Fourteenth Report

Select Committee on Constitution Fourteenth Report

CHAPTER 4: The Legislative Process

75. We address the stage at which Parliament considers bills in two parts. The first covers the way in which the bills are brought before Parliament and the material that accompanies them. The second covers the procedures which the two Houses adopt to examine bills. Though there have been some advances under both headings, many regard legislative scrutiny as the most deficient part of the way in which Parliament does its job.

Part 1: Presenting Bills to Parliament

76. For Parliament to examine bills effectively, it needs to understand them. That encompasses the purpose of the bill and the provisions designed to achieve that purpose. For many years, the way in which bills were brought before Parliament was not conducive to aiding understanding. Bills were often drafted in fairly obscure language with no accompanying material to explain the provisions and no clear explanation of the effect of provisions that substituted words for those in earlier Acts. Members were dependent on the Minister's speech on Second Reading and explanations offered in response to probing amendments.

77. Recent years have seen some notable and very welcome changes. One has been in the drafting of legislation. There has been far greater emphasis on the accessibility of language, while ensuring that the language is such as to be amenable to judicial interpretation. We recognise the balance to be drawn between, as Baroness Amos[57] put it, legal accuracy and user-friendly language (Q 21). We commend the efforts of parliamentary counsel in rendering bills in more accessible language.

Explanatory Notes

78. We also welcome the publication of Explanatory Notes to accompany bills. Introduced in the 1998-99 session, Explanatory Notes have enabled members to have a much clearer understanding of a bill and its specific provisions. Though the quality and provision of information vary, the Explanatory Notes represent a significant aid to understanding legislation. The incorporation of Regulatory Impact Assessments (RIAs) is also something that we very much commend. We have drawn attention in our report on the regulatory state to the importance of RIAs in all new policy initiatives emanating from regulators.[58] We recognise and have emphasised their value. Their use for bills represents best practice. We were pleased to note the importance attached to RIAs by the Legislative Programme Committee in preparing the legislative programme for each session (Q 3).

79. We also welcome the fact that the Explanatory Notes also now include a section detailing the effects on Wales. This was something we recommended in our report on Devolution: Inter-Institutional Relations in the United Kingdom.[59] The Welsh Affairs Committee in the House of Commons has also welcomed this development,[60] as has Lord Elis-Thomas, the Presiding Officer of the National Assembly for Wales (Vol. II, p.171, para. 8).

80. Beside these significant advances we would like to see other changes that we believe will provide Members of both Houses with more tools for understanding and assessing bills placed before them. These include the provision of additional material in the Explanatory Notes. We also believe that there is a case for ensuring consistency in the presentation of the Notes.

81. We recommend that guidance given by the Cabinet Office on the preparation of Explanatory Notes should be closely adhered to and that the Cabinet Office should monitor compliance with the guidance.

The purpose of legislation

82. We have considered whether bills should incorporate a purpose clause[61]. These are incorporated in bills in some countries, such as New Zealand. A purpose clause would have the advantage of making clear what the bill was intended to achieve. As such, it would be an aid to parliamentarians in assessing the provisions of the bill; it would also be an aid to post-legislative scrutiny, a matter to which we return in Chapter 5.

83. However, we are conscious of the limitations. Both the Renton report in 1975 and the Rippon Commission in 1992 took a cautious view; the former said they should be employed selectively and with caution; the latter that they should not be used as a general practice (Q 338). Sir Geoffrey Bowman also adopted a cautious approach and identified several problems with them:

"In the first case, it is sometimes not easy to express a purpose in a few words. They can degenerate into pious incantations. I am quoting now the late Professor Reed-Dickinson and he gave the example of an ecology Bill that in substance said, 'Hurrah for nature'. They are vacuous. Another great difficulty is that problems arise if the general purpose provisions conflict with the specific provisions and the legislation. The risk arises because you are trying to say the same thing in different words. The third problem is that even if there is no overt conflict the relationship between the specific provisions and the general purpose provisions may not be clear" (Q 338).

84. We recognise these serious limitations. We are wary of making what would amount to a major change in the interpretation of law, since—if a purpose clause was left in the measure—it would invite the courts to engage in purposive rather than literal construction. Alan Beith[62] said that he was "not sure that I would relish the courts being full of cases that surrounded whether Clause 17 really did fulfil the purposes of the Bill" (Q 163). There is, in any event, as Sir Geoffrey Bowman reminded us, a strong case against putting additional material in bills: "It is said that parliamentary counsel some years ago came up with the aphorism 'Excess matter in Bills, as in people, tends to go septic'. I think there is an awful lot in that" (Q 338).

85. Given these powerful points, we concur with the view that a purpose clause should not form part of a bill. We also recognise that there is what amounts to a succinct purpose clause in the long title of a bill.[63] However, the long title is not necessarily a clear adumbration of the purpose of a bill: "and for connected purposes" at the end of a long title is hardly enlightening as to purpose. We believe more could and should be done to delineate the purpose of a bill. The bill itself is not the place to include this delineation. We agree that it should not have legal force. Instead, we consider that the obvious place to include what would be the equivalent of a purpose clause is the Explanatory Notes.

86. Including a developed statement of purpose will, we believe, be a valuable discipline for departments in preparing measures. This is something that is already provided for in the Cabinet Office guidelines; paragraph 27 provides for the purpose of legislation to be included in the opening summary and background. We wish to see this applied consistently. The statement should be in the introductory passages of the Notes, not buried at the back. We also believe that it will concentrate minds if the statement is accompanied by a clear set of criteria by which the measure, once enacted, can be judged to have met its purpose. Such criteria will be helpful to the House in evaluating the provisions of a bill. They can also form the basis of post-legislative evaluation, providing the criteria against which the effects can be judged. The value of such an exercise was touched upon by Baroness Amos in her evidence to us: "what we need to do more of, I think, is to then find time to look back perhaps over certain pieces of legislation, the memoranda that accompanied them, as against the guide to see whether there is any learning that we could take on board over a period of time" (Q 22).

87. We recommend that the Explanatory Notes to each bill include, in their introductory section, a clear and developed explanation of the purpose of the bill, incorporating or accompanied by the criteria by which the bill, once enacted, can be judged to have met its purpose.

Keeling schedules

88. As an aid to understanding the effects of a measure, we have also considered the use of a Keeling Schedule. This is used on occasion for a bill that significantly amends an earlier Act. It comprises a schedule which reproduces the provisions of the earlier measure and shows the effect of the amendments embodied in the bill. The value of this was stressed, by among others, Lord Carter; he noted that an unofficial Keeling Schedule was prepared for the Draft Disability Discrimination Bill and that it had proved enormously helpful (Vol. II, pp. 52-53; and Q 209).

89. The value of Keeling Schedules was also recognised by the Leader of the Commons, Peter Hain: "I can see a self-evident case for them because they read across to other legislation" (Q 22). He agreed with the assertion that a Keeling Schedule was an invaluable tool which was under-used at present (Q 24).

90. However, both Mr Hain and Sir Geoffrey Bowman drew attention to the practical problems generated by Keeling Schedules. They are time consuming and expensive:

"In resource terms and time terms you will appreciate it is very, very considerable on the House authorities and therefore on the parliamentary budget" (Q 22);

"They have to reflect every amendment that the Bill makes to the Act. If the Bill is amended in Parliament to add, delete or alter an amendment to the underlying Act, the change has to be reflected in the Keeling Schedule. That adds to the many tasks that the drafter has to perform. Because the drafter will usually be short of time anyway, the scope for error is increased… A Keeling Schedule adds to the length of a Bill, sometimes considerably" (Q 357);

"I have even heard of cases where the Keeling Schedule could not be brought into force because it was inaccurate" (Q 359).

91. Sir Geoffrey Bowman also reminded us that it is a temporary but very important utility (Q 357): "the Keeling Schedule utility dies the moment the Bill is enacted" (Q 360). We recognise that. The value is to members when the bill is being considered. When it is being considered then it is, in Sir Geoffrey's words, "a very important utility".

92. We believe that it is a utility that has the potential to improve significantly Parliament's scrutiny of legislation. It is extraordinarily difficult at times to appreciate the effect of a bill on an earlier Act without seeing the Act and how it is amended by the bill. The Explanatory Notes provide some help but they are no substitute for looking at the original measure and seeing how precisely the bill changes it. We recognise the cost element and this has to be taken into account, but by itself cost cannot be taken as an insurmountable barrier to enhancing Parliament's capacity to engage in effective scrutiny of legislation. We believe that, in principle, members of both Houses should have the opportunity to see exactly how a bill amends an earlier Act.

93. To achieve this, Sir Geoffrey Bowman suggested various options. One is to incorporate a Keeling Schedule, all the problems already identified notwithstanding. Another is to incorporate the amended Act in the Explanatory Notes. The third option is for the instructing Department to produce the amended Act in an informal document (Q 357). The advantage of the last two options is that they do not form part of the bill and therefore have no legal force. An error would not generate the legal problems that can arise from an error in a Keeling Schedule.

94. The use of informal Keeling-type Schedules, either as part of the Explanatory Notes or in a document produced by the sponsoring department, would still obviously incur a cost. As Sir Geoffrey Bowman reminded us, the advantage of an informal document produced by a department is that the cost would fall on the department's budget rather than Parliament's. Sir Geoffrey summarised his preferences as: "Of the three alternatives, I prefer the informal departmental document, then the Explanatory Notes and then the Keeling Schedules" (Q 357).

95. Our preference is for the amended Act, or the relevant parts of the amended Act, to appear as part of the Explanatory Notes. Paragraph 31 of the Cabinet Office guidance already suggests that "where a Bill amends existing legislation, it can sometimes be helpful to attach extracts of the legislation as they will read after the changes made by the Bill". There have been at least four occasions when Explanatory Notes have included Keeling-type material: the Rating Valuation Act 1999, the Water Act 1999, the Electronic Communications Act 2000, and the Sexual Offences (Amendment) Act 2000 (Vol. II, p.109). These, we believe, constitute useful precedents. In each case, the relevant sections of the original Act (or Acts) were reproduced, showing (through the use of bold text, highlighting, or the crossing out of words) the effect of the amendments. None took up a great deal of space in the Notes, nor do we believe preparing them could have incurred significant cost.

96. We would like to see the use of such material extended as a matter of practice, with the Cabinet Office guidance being mandatory rather than permissive. Utilising informal Keeling-type Schedules ensures that Members can see the effect on the original Act at the same time as reading the explanation of what the bill seeks to achieve and how its provisions are designed to achieve its purpose. We thus envisage a substantial development in terms of the Explanatory Notes, including a purpose statement as well as, where the bill amends an earlier Act, an informal Keeling-type Schedule.

97. We recognise that incorporation in the Explanatory Notes will result in a larger document, and that there is a cost to this. However, the extension in size need not necessarily be substantial. The Explanatory Notes to the measures to which we have already referred, embodying Keeling-like material, were not especially large. Given that the informal Keeling-type material will have been drawn up by the sponsoring Department, the burden on the budget of the House authorities—essentially a production cost—should not therefore be excessive. The costs, both financial and in terms of labour intensity, of preparing an informal Keeling-type Schedule should, in any event, be reduced over time by advances in technology, enabling the changes to be tracked electronically rather than manually. This should be especially useful as a bill passes through Parliament, enabling changes to be made as a result of amendments to the bill. The task will be much simplified with the completion of the Statute Law Database. The benefits to both Houses in considering legislation we believe will be substantial.

98. We recommend that where a bill amends an earlier Act, the effects of the bill on the Act should be shown in an informal print of the amended Act and that this should be included in the Explanatory Notes to the bill.

European legislation

99. There is one further change we would like to see incorporated in the Explanatory Notes. This relates to scrutiny undertaken by parliamentary committees of European Union legislation.

100. When bills implementing EU law are brought before Parliament, the Explanatory Notes do not provide information on the scrutiny undertaken at an earlier stage by the scrutiny committees in the two Houses, the European Scrutiny Committee in the Commons and the European Union Committee in the House of Lords. The European Union Committee suggested that the scrutiny history be included in the explanatory memorandum that accompanied Statutory Instruments laid before the House. Lord Grenfell, the Chairman of the EU Committee, told us:

"It seems sensible, therefore, to follow the same procedure for public bills. Where a public bill implements EU legislation, the scrutiny work done by the House at an earlier stage ought likewise to appear in the Explanatory Notes. Government departments have already compiled and collated information on it, so it is not asking too much of them simply to transfer that to the Explanatory Note" (Q 465).

101. Lord Grenfell emphasised that he was not suggesting that all comments made during scrutiny should be transferred to the Explanatory Notes:

"… but I do think that it would be important for the Chamber to know whether or not the scrutiny committee had had serious problems with the proposal, what principal advice they had given to the Government department in the exchange of letters with the Minister concerned, and really to provide the highlights of anything that the scrutiny committee itself felt was important enough to appear on the Explanatory Notes" (Q 466).

102. We concur with Lord Grenfell that an important point of principle is involved, namely "that we should not be taking primary legislation through the House in ignorance of what had gone on before" (Q 467). This is very much in line with our preceding recommendations. The better the House is informed about the purpose and provisions of a bill, the greater the potential for effective scrutiny and ensuring that the measure is fit for purpose. We wish to see more, but clearly structured, material embodied in the Explanatory Notes, so that members have as full information as possible about a bill. For the reasons outlined in our introduction, we wish to improve the quality of scrutiny and hence reduce the potential for bad law getting on to the statute book. Lord Grenfell's recommendation falls very much within the scope of what we wish to achieve.

103. We recommend that the Explanatory Notes to all bills introduced to give effect to EU obligations should carry a section detailing the scrutiny history of the measure.

104. These various changes will, we believe, improve significantly the information available to the House about each bill and enhance its capacity for informed and consistent scrutiny.

Part 2: Scrutiny of Bills

105. Once bills are introduced to Parliament, they go through several stages in each House. We are not here concerned with those processes, but would note that the length of the process should not be confused with its quality. We have heard complaints that the process itself is too short, especially in the House of Commons, and that the quality of the scrutiny undertaken is often poor.

Timetabling

106. The principal complaint about time is that some bills do not receive an adequate allocation for consideration in the Commons because control of the timetable lies in the hands of the executive.

107. Timetabling of bills in the House of Commons is, clearly, a matter for that House. For the purpose of comprehensiveness, since our purpose is to examine the legislative process, we simply record some of the points made to us, including those made by the Leader of the House of Commons.

108. Bills in the House of Commons may be subject to programme motions. Previously, bills were often subject to allocation of time motions—known colloquially as guillotine motions—once they had reached a certain stage and the Government decided that it was necessary to limit the time available for the remaining stages. Whenever a guillotine motion was moved, the Leader of the House justified it as being necessary, given the way in which the Opposition was delaying matters; the Shadow Leader would attack the unnecessary fetter being imposed on parliamentary debate. Whichever party was in power did not appear to make much difference; the justification remained the same.

109. The haphazard nature of the timetabling of bills and the use of guillotine motions—67 bills were guillotined in the period from 1946 to 1997[64]—led to widespread calls for the more systematic timetabling of bills. In the light of this, both the Procedure Committee in the Commons[65] and the Select Committee on Sittings of the House (the Jopling Committee)[66] made proposals for timetabling of bills. None was implemented. In 1997, the Modernisation Committee recommended the use of programme motions, with such motions being moved after Second Reading and stipulating the out-date from committee and the amount of time for report and third reading (and, in some cases, provision for carry-over).[67] The report was accepted by the House of Commons in November 1997. Some subsequent changes were agreed and embodied in sessional orders.

110. Programme motions were initially agreed on a consensual basis among the parties. However, as programming of bills has become routine, the time allocated has become tighter and has not been agreed by the opposition parties, who now regularly vote against the motions. According to Peter Riddell, problems that have arisen have been as much to do with personalities as with the length of the bill. Ministers and their opposite number have failed to agree. "It seems to me that it is almost arbitrary as to which bills get all their clauses considered in Standing Committee and which do not" (Q 95).

111. There is clearly a case for engaging in some degree of timetabling. Alan Beith drew our attention to the rationale for programme motions:

"I believe there were two motives for the decision. One was, as part of modernisation, to bring to an end the practice of very late or all-night sittings on bills… That objective was achieved. The other objective was to achieve a more rational distribution of the time spent on bills, with a view to ensuring that all parts of it received scrutiny… So far as Report stages are concerned, it has not achieved the desired improvement in scrutiny. Even with the use of "internal guillotines" to sub-divide the time, there has been a tendency to use up the time on one or two early groups of amendments, leaving other amendments, including substantial Government amendments and new clauses, to be passed formally without any discussion or examination at all. This has increased the dependence on the Lords' ability to scrutinise bills without limit of time" (Vol. II, p.46).

112. The Modernisation Committee has looked at the effect on amendments and clauses not debated as a result of what are known as the internal knives falling in committee. In 2002-03, 23 Government bills were subject to a programme order in Standing Committee. In six cases, the committee ran ahead of the timetable, in nine cases the knives fell "in such a way as to leave a significant number of clauses or schedules undebated"; and in the remaining cases, some knives fell and some did not, "leaving only a few clauses or schedules undebated."[68] Thus, seventeen bills had parts not considered in committee.

113. The Committee noted that the number of amendments and clauses which were not debated was not necessarily a reliable indicator of the extent to which a bill had or had not been properly considered. It also pointed out that of the nine bills which had gone through with significant parts undebated, three had been subject to pre-legislative scrutiny and another was re-committed and carried over. "Nonetheless", it continued, "concern about the volume of legislation which passes undebated is entirely legitimate, whether the lack of scrutiny is the result of a programme order or the absence of a programme order."[69]

114. The Committee made a number of suggestions to ensure that programming worked more effectively; these included ensuring that large amounts of new material were tabled in plenty of time to be taken into account by the programming sub-committee; that, in the case of lengthy bills, the programming sub-committee should not normally make detailed proposals until after several sittings of the Standing Committee; and that for some bills two or three days for Report stage might be necessary for proper scrutiny.

115. The case for some timetabling of bills appears generally to be accepted. However, there is no consensus on who should do the timetabling and what form it should take. How to resolve this problem in the House of Commons is not a matter for us, though how the matter is resolved does have implications for business in the House of Lords. As Alan Beith MP noted (paragraph 111 above), if sections of a bill remain undebated in the Commons, this places a particular burden on legislative scrutiny in the Lords.

Management of parliamentary business

116. We confine ourselves to two related observations. The first is the fact that Westminster—which, in this context, means the House of Commons—is unusual among legislatures for the extent to which the Government dominates the legislative timetable.[70] It is common elsewhere for the legislature to have greater ownership of the timetable.[71] Research shows that handing over control of the timetable, or part of it, does not necessarily prevent the Government from getting its business.[72]

117. Various proposals have been put forward as to how the issue may be addressed. It is common practice for legislatures to have their own business committees. We do not have to go beyond the shores of the United Kingdom in order to see such a committee operating. During our inquiry into inter-institutional relations in the United Kingdom, we looked at what lessons Westminster might learn from the experience of the devolved bodies. All three devolved bodies (the Northern Ireland Assembly was still in operation when we undertook our inquiry) have a business committee. Each has followed a standard practice. The committee meets regularly (once or twice a week) while the body is in session to discuss forthcoming business and to arrange the timetable. It is usually chaired by the presiding officer or deputy, and includes the Minister responsible for parliamentary business and the business managers of the other parties, with the clerk and officials in attendance.

118. As we noted in our report:

"The business committee is therefore both more formal and more open than the 'usual channels' as they operate at Westminster. The Committee helps to develop a consensus about the conduct of business in the chamber, and ensures that the timetable for business is more clearly determined in advance. Again, it is a procedure that is to be found in other legislatures in Western Europe and has been variously proposed for adoption in Westminster. It seems to us that the use of business committees has a great deal to commend it, injecting a greater degree of transparency than exists in the current arrangements at Westminster and transferring some degree of control from the executive to the legislature. Their use does not prevent Government from getting its business, but it does ensure greater openness and time for the proper scrutiny of Government."[73]

119. The case for a business committee has variously been made and on a cross-party basis. It was one of the recommendations of the Rippon Commission[74] as well of the later Hansard Society Commission, chaired by Lord Newton,[75] on Parliamentary Scrutiny.[76] It was recommended by the authors of Parliament's Last Chance: "A Business Committee", they wrote, "would bring a greater degree of certainty to the parliamentary timetable and involve the main political parties in the management of business."[77] It was reiterated to us during our current inquiry by the representatives of Parliament First.[78] It has also found support from Alan Beith and from a former Leader of the House of Commons, Robin Cook.

120. "I do find it rather strange", Mr Cook told us, "that we have no corporate body that is responsible for considering the business of the House… Indeed, one of the ways in which the executive retains its control over the Commons is to make sure that only it can propose the business before the House" Q119). As Leader of the House, he had been keen to float the idea of a business committee for the Commons, though, as he noted, "that did not command universal support from my colleagues in the Cabinet" (Q 119).

121. The idea of formalising the 'usual channels' through a business committee need not necessarily be confined to the Commons. As Lord Carter, a former Government Chief Whip in the Lords, told us: "In the planning of the session, the draft bills and all the rest of it, that could equally well be done by a business committee because, in a sense, that is not adversarial; it is not political; it is just the programme of work. How do you organise a programme of work? That could well be done by a business committee" (Q 172). A business committee, as he pointed out, is essentially a workload committee (QQ 173, 193).

122. We can see the argument for timetabling, the principle of which is generally agreed, and note that the use of business committees is common elsewhere, including in the devolved bodies. Given that, we reiterate what we said in our devolution report[79] that there is much to commend consideration of such committees at Westminster.

123. We recommend that consideration be given to the establishment of business committees at Westminster.

The committee stage

124. One aspect of considering the timetable for legislation is the examination to be given to a bill in committee. There is the question not just of time but of the quality of scrutiny. Bills in the House of Commons are sent to Standing Committees as a matter of practice, though a number in each session is taken in Committee of the Whole House. Bills in the House of Lords are generally considered in Committee of the Whole House, though the House is increasingly utilising Grand Committees for consideration of bills in order to reduce pressure on the chamber.

125. Committee stage is designed for the detailed consideration of bills. The provisions of a bill can be discussed and subjected to close questioning. However, there is one notable feature lacking in committee consideration in both Houses. Neither routinely employs committees which have the capacity to take evidence. Consideration of a bill is confined to the words in the bill and members who wish to draw on the services of informed and affected bodies do so on a personal basis.

126. Both Houses do have provision for utilising evidence-taking committees—Special Standing Committees (SSCs) in the Commons and Special Public Bill Committees in the Lords, as well as the option of referring bills to Select Committees—but neither makes much use of such committees. Indeed, the use of evidence-taking committees is notably irregular. In recent years in the Commons, only one bill has been considered in a Special Standing Committee,[80] and four bills have been sent to Select Committees;[81] in the Lords, the Constitutional Reform Bill is the only Government bill to have been referred to a Select Committee in recent times (and that contrary to the Government's wishes), although Private Members Bills are often sometimes so referred.

127. The existing method of committee scrutiny has been subject to extensive criticism. As the Hansard Society noted, scrutiny is haphazard, "things are missed out, things are rushed through" (Q 443). The current operation of Standing Committees "leaves little room for real input from MPs and limits their capacity to develop and influence legislation" (Vol. II, p.127, para.5). In the words of Paul Tyler[82], "Standing Committees… contribute little to the health of law-making in the UK and the process of scrutiny" (Vol. II, pp.81-83). These criticisms reflect those made over the years by commentators and members.

128. The Rippon Commission recommended that bills in the House of Commons should be referred as a matter of course to Special Standing Committees. That call has been reiterated in other subsequent reports, including the Norton Commission and the Parliament First publication, Parliament's Last Chance. The authors of the latter note that an SSC "could draw on the expertise of the relevant Select Committee to ensure that Bills received a much closer level of scrutiny than under the current system of Standing Committees".[83]

Evidence to assist scrutiny

129. Special Standing Committees are empowered to hold three evidence-taking sessions before reverting to the traditional Standing Committee format. Robin Cook advocated a more radical approach:

"I personally think that there is a mistake in having two set categories: a Standing Committee, which proceeds normally, and a Special Standing Committee, which has the unique capacity to call witnesses. Frankly, I would just re-write the procedure book and let every Standing Committee call witnesses if they wish to, and leave that decision to Standing Committee" (Q 130).

"The crucial requirement for effective scrutiny is that all parliamentary committees considering legislation, whether in draft or otherwise, should be given the power to hear evidence, and thereafter to amend the Bills in the light of that evidence, before returning the Bill to the floor of the House for the later stages" (Vol. II, p.186, para.1). This was a view shared by Michael Ryle[84] (Q 80).

131. Another interesting proposal was put to us by Lord Carter. Speaking as a former Chief Whip, reflecting his experience as a business manager, he told us:

"I also think there is a case, which is fairly radical, where a Departmental Committee is in existence in the Commons and is going to look at a bill, that some people from the Lords might even be invited to join the departmental committee for that purpose and have a sort of Joint Committee. Instead of having to through all the procedures of a Select Committee, you would find five or six peers and invite them to attend the meetings of that committee" (Q 184).

132. We have found these various proposals highly stimulating and they have contributed greatly to our own reflections. We have considered them in the context of the whole legislative process. Scrutiny at committee stage of bills cannot be taken in isolation from the rest of the process.

133. Looking at the legislative process as a whole, and taking the need to ensure effective parliamentary scrutiny as being paramount, we believe that every bill should be subject to some detailed scrutiny, with the taking of evidence from interested and informed bodies. Scrutiny should not take place in a parliamentary vacuum. Parliamentarians need to have access to expert opinion to know if there are potential flaws in a bill. They need to be aware of any strongly held views by citizens.

134. For the reasons that we have discussed, there is particular value in such evidence-based scrutiny taking place at the pre-legislative stage, before Ministers' views are fully formed. As we have argued, we believe there is a powerful case for the regular use of pre-legislative scrutiny. If a bill has received pre-legislative scrutiny, then there may be little need for further evidence taking at a later stage. However, it does not necessarily follow that there is no need for further evidence-based examination.

135. The Government does not necessarily have to accept recommendations made by pre-legislative committees. As we have seen, the experience has generally been positive, but not all recommendations have been taken on board. The pressure of time has also limited the committees engaged on pre-legislative scrutiny. Even if the Government accepts a point made by a committee, the way in which it chooses to interpret it and implement it may not be quite what the committee had in mind. And, it is important to note, the Government may bring in substantial amendments once a bill has been introduced and which, therefore, a pre-legislative committee has not had the opportunity to consider.

136. We therefore believe that there is a case for providing opportunities for evidence-based scrutiny when a bill is before Parliament. We are not recommending such scrutiny take place as a matter of course. Pre-legislative scrutiny may have produced a thorough examination, with a positive response by Government and with changes that meet the concern of informed bodies. In such cases, there may be no need for further evidence-based scrutiny. However, there is no reason why a committee should not have the discretion to check if the changes have met the concerns of experts and those affected by the bill.

137. We further believe it worth considering something along the lines recommended by Robin Cook. If a Standing Committee is empowered to take evidence, it can then decide whether it wishes to utilise that power. It may decide, in the light of pre-legislative scrutiny, that there is no need to supplement what has already been done. It may decide to have one or two short evidence-taking sessions to satisfy itself that those who previously made representations are content with the bill as it now stands. Or it might decide to hold a number of evidence-taking sessions to examine the bill in some depth. This we would expect to be the case automatically where the bill has not been subject to pre-legislative scrutiny as well as in cases where pre-legislative scrutiny has occurred but the Government has added substantial new material to the bill.

138. Where substantial new material is added at Report stage, then there is a case for re-committing the bill to the Standing Committee. If this becomes standard procedure, then it may also have the effect of deterring Ministers from introducing new material late in the passage of the bill.

139. In the Lords, the equivalent procedure would be to refer a bill after Second Reading to a Select Committee. It would be up to the committee to determine whether there had already been detailed examination, be it by a pre-legislative committee or a Commons Standing Committee, which would render unnecessary further detailed examination. If the bill is first introduced in the Lords, then the work of the Select Committee may render unnecessary detailed examination by a Standing Committee in the Commons. There is thus a case for sharing out the work between the Houses to their mutual advantage.

140. An alternative in the Lords would be for a sessional committee—following our earlier recommendation, it could be a business committee—to examine each bill prior to Second Reading and to assess the extent to which the bill has already satisfied the criterion of detailed examination; and to make a recommendation accordingly as to whether or not it should be committed to a Select Committee.

141. We also take on board another point put to us by Robin Cook. "I have always found it slightly strange", he told us, "that we have people who carry out pre-legislative scrutiny, and then we have a totally different committee, mostly of totally different people, who consider the bill in Standing Committee… We need to get more synergy between those who carry out the pre-legislative scrutiny and those who look at it in detail when it is there in formal draft" (Q 122). We can see the case for ensuring at least some overlap between the membership of a pre-legislative committee and the committee (or committees) subsequently responsible for the consideration of the bill. An overlap ensures that the knowledge and understanding gained by the pre-legislative committee is not lost and that the Standing Committee does not have to start from scratch in assessing the bill.

142. These considerations lead us to our recommendations, which cannot be seen independent of the other stages of the legislative process.

143. We recommend that every bill should at some stage be subject to detailed examination by a committee empowered to take evidence.

144. We recommend that bills should normally be committed after Second Reading to a committee empowered to take evidence; though that requirement may be dispensed with if the House is satisfied that the bill in that form has already been subject to detailed evidence-taking examination in the other House.

145. We recommend that the membership of a committee examining a bill should normally include some members who have been responsible for the pre-legislative scrutiny of the measure.

146. We also believe that the proposal put to us by Lord Carter merits further consideration: that is, drawing on the expertise of members of both Houses. His idea was for some peers to be invited to sit in on Select Committees in the Commons. Another, less procedurally fraught, approach would be to invite a Joint Committee that has examined a draft bill to re-convene after the Bill has been introduced, as suggested by Jean Corston (Vol. II, pp164-167). It could then report on whether the points it made had been met. Indeed, were this practice to be developed (the same procedure could be adopted by Select Committees) it may reduce the need for detailed evidence-based consideration at committee stage.

Forms of evidence-taking

147. We also believe that there is merit in looking at more informal means of considering the details of bills. Peter Riddell advocated moving away from the traditional method of evidence-taking:

"Instead of having your couple of hours' session when you talk to two or three people, a seminar with lots of people actually generates as much usefulness for you in reaching your reports … and also reduces the amount of time you have to spend" (Q 108).

148. We note that the Public Administration Committee in the Commons has utilised the seminar-based approach, for example for drawing up a draft Civil Service Bill. Some of these seminars have drawn on one or two members of this committee; their experience is that it is a valuable means of soliciting material and sharing views. House of Lords committees have also used seminars on inquiries.

149. Utilising a seminar as part of the scrutiny process would supplement rather than supplant the traditional method of evidence-taking. It is a useful way of clarifying the main points at issue, and the sort of evidence that needs pursuing, prior to engaging in formal evidence-taking.

150. We commend to the House, and especially to committees appointed to examine bills (be it in draft or after formal introduction), the value of obtaining evidence through informal meetings and seminars.

Informal briefing

151. We also endorse the practice of Ministers and officials holding informal meetings to discuss bills once they are introduced. Lord Roper[85] commended to us the practice of Baroness Ashton of Upholland, until recently the Education Minister in the Lords, of holding regular meetings in the House on the days when her bills were being considered when any peer could meet her and her officials to talk about the afternoon's amendments (Vol. II, pp.182-185). Various Ministers hold meetings to discuss bills and we think this is of considerable value, enabling interested Members to glean further information and possibly saving the time of the House by avoiding the need for probing amendments. Taken with more informal means, such as seminars, then we believe that such practices can contribute towards a more constructive approach to legislation and help enhance the quality of legislation.

152. We recognise that developing legislative scrutiny in the way that we have recommended is not problem-free. Problems likely to be cited are those of procedure, attitudes, and time. We do not believe these are insuperable problems, especially given other changes recommended to the legislative process.

Procedure

153. Procedure is a matter for each House and we see no insurmountable hurdles to implementing the proposals we have outlined. One problem that arises from the suggestion advanced by Robin Cook to remove the dividing line between Special Standing Committees and Standing Committees is the position of the chairman. Under the SSC procedure, the evidence-taking sessions have usually been chaired by the chairman of the appropriate Departmental Select Committee and the normal Standing Committee sessions by a member of the Chairmen's Panel. Whereas we understand that there was previously reluctance on the part of members of the Chairmen's Panel to chair evidence-taking sessions, our understanding is that this is no longer the case. No equivalent issue arises in the Lords.

The adversarial culture

154. The attitude of Members towards change is clearly crucial. Partisanship remains a central feature of the legislative process. The clash between the parties is a basic and necessary feature of a healthy political system. A structured opposition is a beneficial feature of our parliamentary system, ensuring that all government proposals are subject to critical examination. Questioning by opposition parties is necessary to keep Ministers and officials alert to potential problems and to ensure they are able to justify their measures.

155. Partisanship, though, should not squeeze out the quest for informed and objective scrutiny. As Dr Lewis Moonie put it to us, the confrontational aspect of much parliamentary procedure does not lend itself to a process which strives to achieve agreement. "If members could be trusted to act purely for the public good, rather than for party advantage, more could be gained from pre-legislative scrutiny. I fear that this idealistic position is not practicable at present" (Vol. II, p.111, para. 2b).

156. George Cunningham has also pointed out that there is a tendency to ascribe to procedural defects weaknesses which are not procedural but behavioural. "A change in the behaviour of Members, a matter entirely within their own control, will do more for the effectiveness of parliament than any change in structures and procedures." However, as he points out, there is a relationship between behaviour and procedure. "Some structural reforms… affect the willingness of Members to exercise the powers they possess" (Vol. II, p.167, para.1). Achieving the ideal state alluded to by Dr Moonie may not be achievable through appeals to the public good, but it may be possible to nudge parliamentarians in that direction through modest procedural change. We note the experience of pre-legislative scrutiny in contributing to this process. Special Standing Committees in the Commons, when they have been used, have often had a similar effect. We believe that building on the changes already made can have beneficial consequences.

Carry-over

157. The final obstacle often identified is that of time. Ministers are keen to get their bills through. The sessional cut-off has been a particular problem. Given that, business managers have been reluctant to resort to Special Standing Committees, since each adds a month to the time it takes to consider a bill. As we have seen, this can also be a problem with pre-legislative scrutiny.

158. However, as we have already touched upon, time need not necessarily be an obstacle. The imperative is to ensure effective parliamentary scrutiny as a means to ensure the enactment of good legislation. There has been a tendency to allow time to take priority over effective scrutiny, contributing to bad legislation. Time therefore has to be found.

159. We have already identified the means for achieving this. Provision for carry-over of bills allows adequate time to be given to a bill. It enables the staggered introduction of bills and hence a rolling legislative programme. It also reduces the pressure on parliamentary counsel, who are fully stretched under existing arrangements. Indeed, Sir Geoffrey Bowman noted the effect of both carry-over and the publication of bills in draft: "The increased tendency to carry over Bills should lead to a more evening out of the workload and publishing more Bills in draft does tend to have the same effect" (Q 349).

160. Carry-over for bills needing more time was recommended by both the Rippon Commission[86] and the Norton Commission.[87] It was commended to us by Peter Hain, the Leader of the Commons, as well as by two former business managers, Lord Biffen[88] (Vol. II, p.161) and Lord Carter (Q 178); and by Dr Lewis Moonie (Q 390), Peter Riddell (Q 95), and Michael Ryle, who served as secretary to the Rippon Commission (Q 80). Mr Hain commended carry-over as a good thing in principle, delivering a number of potential benefits. In the context of a rolling legislative programme, it could allow for "more due process of time for people to pause and take breath as well as avoiding the situation just because the knife fell at the end of the session and a bill was lost or an opportunity was foregone" (Q 45).

161. Provision for carry-over was agreed by both Houses in 2002 but has been little employed. There appears to have been a reluctance to break out of the existing sessional mentality. In part, this may have been affected by fears of opposition parties that ending the sessional cut-off may limit their capacity to influence bills.[89] This concern was addressed by both the Norton Commission[90] and by Robin Cook, in his memorandum when Leader of the House of Commons.[91] Both advanced the case for having some stipulated cut-off point. As the Norton Commission reported:

"We have opted for fourteen rather than twelve months in order to accommodate major bills and also to allow for the additional time taken by Special Standing Committees. Having a fourteen-month limit will ensure some discipline. A clear limit, as with the existing sessional cut-off, will also allow the opposition some leverage in terms of the much vaunted (but only occasionally effective) power of delay."[92]

162. When the House of Lords debated a carry-over provision, it made clear that it should normally apply to bills that have been subject to pre-legislative scrutiny. The then Leader of the House, Lord Williams of Mostyn, also expressed sympathy with an amendment to provide for a stipulated cut-off date. We believe that the principle of carry-over is persuasive but that steps should be taken to implement the provision for a stipulated cut-off period.

163. We support the principle of the carry-over for bills that have been subject to pre-legislative scrutiny, but believe that bills carried over should be subject to a stipulated cut-off period from the time of their introduction. We suggest that 14 months would be appropriate.

164. Our recommendations are not designed to be comprehensive, but rather are designed to identify key areas that we believe require attention if the process of legislative scrutiny by Parliament is to be improved. Our recommendations are designed to ensure that Parliament is better able to render legislation fit for purpose. However, Parliament's role does not end once a bill has been sent for Royal Assent. The process we have covered in this chapter is but one stage of the legislative process.

57 The Rt Hon Baroness Amos, Leader of the House of Lords Back

58 The Regulatory State: Ensuring its Accountability, Vol. 1: Report, Session 2003-04, HL Paper 68-I, paragraphs 145-46. Back

59 Devolution: Inter-institutional Relations in the United Kingdom, Session 2002-03, HL Paper 28, para. 124 (b). Back

60 The Primary Legislative Process as its affects Wales, Session 2002-03, HC 79, para. 29. Back

61 When we refer to 'the purpose of a bill', we refer to the main aims of a substantive kind that a bill seeks to achieve by making changes in the law. Since most bills are intended to make a group of related changes in the law, the purpose of a bill may in fact comprise a number of purposes that differ in importance and in the degree of detail that they represent. Back

62 The Rt Hon Alan Beith, MP, Chairman of the House of Commons Select Committee on Constitutional Affairs. Back

63 As Sir Geoffrey Bowman reminded us, New Zealand has abolished long and short titles; Q 339. Back

64 Programming of Bills, First Report from the Select Committee on Modernisation, Session 2002-3, HC 1222, minutes, p. 18. Back

65 Public Bill Procedure, Second Report from the Select Committee on Procedure, Session 1983-85, HC 49; Allocation of Time to Government Bills in Standing Committee, Second Report from the Select Committee on Procedure, Session 1985-86, HC 234. Back

66 Report from the Select Committee on Sittings of the House, Session 1991-92, HC 20. Back

67 The Legislative Process, First Report from the Select Committee on Modernisation, Session 1997-98, HC 190. Back

68 Programming of Bills, First Report of the Select Committee on the Modernisation of the House of Commons, Session 2002-03, HC 1222, para. 16. Back