Chapter 3: Scrutiny of Legislation |
What constitutes good scrutiny of legislation?
70. Scrutiny of legislation is arguably the most
important task of the House of Lords. It is here that the House
exercises the most direct influence over the Government, promoting
and defending the interests of the public.
71. It is also the single most time-consuming
task of the House of Lords. Over the last four complete sessions,
an average of just under 53% of time in the House has been spent
considering primary legislation. Of the time taken on primary
legislation, 93% (49% of total time) was spent on Government legislation.
A further 5% of time in the House was spent debating secondary
legislation. In Grand Committee, over the same period, just under
63% of time was spent debating primary legislation (exclusively
Government legislation), and another 21% of time on delegated
72. In conducting its scrutiny of legislation,
the House of Lords is commonly described as a "revising chamber"
(see Box 2), a concept which, while subject to qualification,
remains useful: in a bicameral system, in which legislation is
scrutinised at varying length in both Houses, it is helpful to
distinguish between the scrutiny roles of the primary and elected
chamber, in which the Government, and its legislative programme,
stand or fall, and the secondary, revising chamber, where much
of the essential detailed analysis of proposed legislation takes
place. Both Houses perform ostensibly similar tasks in respect
of legislation, but they perform them in different ways, and with
different consequences. Our aim has been to suggest ways in which
the House of Lords may improve its scrutiny of legislation, while
respecting the existing relationship between the two Houses.
73. Scrutiny of legislation by the House of Lords
can be characterised as an exercise in "quality control".
The House can improve legislation, can contribute to better outcomes
from legislation, but cannot itself guarantee good legislation.
If the policy underlying legislation is bad, but is insisted upon
by the Government and backed by the House of Commons, no amount
of scrutiny by the Lords can turn it into good policy. It is therefore
difficult either to define, still less measure, "good scrutiny".
In 1974 J.A.G. Griffith wrote "that Parliament makes an impact
on legislative proposals of the Government is undeniable
but the language which is used to describe the ... impact is imprecise".
This is particularly true of scrutiny in the Lords, where
the key tasks are to probe the policy and test the drafting.
74. What constitutes good, effective scrutiny
of legislation by the House of Lords? We believe that it should:
- Address both points of principle and detail,
balancing informed, evidence-based challenge to the policy underpinning
legislation with technical scrutiny of the text itself;
- Be conducted transparently and accountably;
- Ensure that clear and authoritative explanations
of the purpose and meaning of legislative provisions are placed
on the public record;
- Be accessible, in order to enable the public
and others to engage in and influence the process;
- Draw on the relevant knowledge and experience
of Members of the House of Lords, and facilitate dialogue with
ministers with specific policy responsibility for the legislation;
- Be conducted in reasonable time, so as to enable
the Government of the day to implement its legislative programme;
- Pay particular attention to those parts of Commons
bills which may not have been subject to detailed scrutiny in
The House of Lords as a "revising
|The House of Lords has extensive powers to amend or reject legislation, but these powers are subject to both statutory and conventional limitations. The formal statutory limitations are set out in the Parliament Acts 1911 and 1949. The effect of the Parliament Acts is that if the House of Lords either rejects a Commons bill outright, or if the two Houses are unable to agree on a final text, the same bill may be reintroduced and passed the following session without the agreement of the Lords. However, up to a third of Government bills are introduced in the House of Lords, and the Parliament Acts do not apply to such bills, which therefore cannot become law unless agreed by the Lords as well as the Commons.
There are also long-standing constitutional conventions governing Lords consideration of Government legislation, which apply regardless of whether bills are introduced in the Lords or Commons. One is the convention that the Government is entitled to have its business considered by the Lords in "reasonable time". A second is the "Salisbury-Addison convention" that a "manifesto bill" should be accorded a second reading in the House of Lords. Finally, there are conventions (reinforced by statute in the case of bills certified by the Speaker as "money bills" in accordance with section 1 of the Parliament Act 1911) concerning House of Commons financial privilege.
More generally, the Government is responsible for developing policy, and convention dictates that votes in the elected House determine whether or not that policy has the support of Parliament. As the Royal Commission on Reform of the House of Lords stated in 2000: "The House of Commons, as the principal political forum, should have the final say in respect of all major public policy issues, including those expressed in the form of proposed legislation." The role of the Lords, according to the Royal Commission, is "to require the Government and the House of Commons to reconsider proposed legislation and take account of any cogent objections to it."
Where the two Houses disagree on legislation, and no compromise is reached, the House of Lords normally gives way. There have been major policy issues on which the House has stood firm, but in broad terms the conventions, taken together with the Parliament Acts, justify the description of the role of the House of Lords in scrutinising legislation as that of a "revising chamber".
75. There is general agreement that the introduction
of pre-legislative scrutiny by parliamentary committees, following
a recommendation of the Modernisation Committee in 1997,
has been a helpful innovation. Pre-legislative scrutiny should
help Government, Parliament and the public: ministers and officials
are receptive to argument and amendment; the informality of select
committee procedures assists in detailed, non-partisan scrutiny;
stakeholders, expert witnesses and the general public are given
an opportunity, in a public and impartial forum, to comment on
and influence the legislation.
76. Firm evidence for the benefits of pre-legislative
scrutiny is scarce. In 2009 Lord Bach, on behalf of the
Government, paid tribute to the work of the Joint Committee on
the Draft Bribery Bill earlier that year: "It is a testament
to the Joint Committee's cogent analysis that the Government could
accept, either wholly or in part, all but one of the committee's
39 conclusions and recommendations." Yet as Lord Bach continued,
this did not necessarily mean that scrutiny of the bill itself
would be less thorough:
"The fact that this Bill has had the benefit
of pre-legislative scrutiny does not, of course, mean that your
Lordships will not want to scrutinise it in their usual thorough
and forensic manner. I trust, however, that we have reached the
stage where that examination can be about the finer details of
the Bill rather than its core purpose and basic structure."
77. It is clear from Lord Bach's remarks that
the benefit of pre-legislative scrutiny, from the Government's
point of view, lies in the detailed analysis of the policy underpinning
a draft bill, and in the opportunity given to the Government to
think again about specific policy issues in light of cross-party
committee recommendations. Pre-legislative scrutiny is not, as
a rule, about detailed technical scrutiny of the drafting; nor
does it necessarily lead to savings of time later in the bill's
progress. For example, of 148 recommendations made by the Joint
Committee on the Draft Communications Bill in 2002, 120 were accepted
by the Government. This did not, however, prevent the House from
taking six days to consider the Communications Bill in Committee
of the Whole House, and three more days on Report.
78. From the public's point of view, the benefits
of pre-legislative scrutiny lie in enhanced public engagement
in the legislative process and in improvements in the quality
of the final Actfor instance, in clarity of drafting and
the extent to which it is likely to achieve its intended outcomes.
The latter benefits are difficult to measure, though the recommendations
on legislative standards and post-legislative scrutiny contained
in this report might help develop such measures. But it is evident
that pre-legislative scrutiny provides opportunities for fuller
public engagement in the legislative process, and thereby improves
accountability and transparency.
79. Since a short-lived increase in 2002-04 the
number of bills published in draft has remained low, and the number
scrutinised by select committees, either Joint or Commons, still
|Session in which published
||Draft bills or clauses of bills published
||Draft bills scrutinised by a parliamentary committee (of which scrutinised by a joint committee)
80. These figures, when compared with the number
of Government bills overall (see paragraph 88 below) demonstrate
the reluctance of departments to publish bills in draft. Many
committees and groups over the years have recommended an increase
in the amount of pre-legislative scrutiny, but such recommendations
have had little effect in overcoming Government resistance. In
contrast, if a bill is only published upon introduction, so much
political capital is invested in the bill that, in the words of
the Constitution Committee in its 2004 report on Parliament
and the Legislative Process, officials and ministers "often
consider it their task to defend their legislation, as drafted,
regardless of the merits of arguments for improvement."
81. The figures reveal the inconsistency in the
way in which draft bills are handled, with some not being subjected
to parliamentary scrutiny at all, others being considered by Commons
departmental select committees, and only a small (and diminishing)
minority being considered by Joint Committees. Decisions as to
which bills are to be published in draft rest with the Government.
It is to a large extent left to departmental select committees
in the Commons to "bid" to conduct pre-legislative scrutiny
on draft bills falling within their remit, but there is little
consultation with the House of Lords and little consistency in
decision-making on the establishment of joint committees. Parliament,
and the House of Lords in particular, is not contributing as effectively
as it might to pre-legislative scrutiny.
82. We do not consider that it would be feasible
for all bills be published in draft. But we agree with the recommendation
of the Constitution Committee that it should be the norm, rather
than the exception, for the Government to publish bills in draft.
There will always be exceptions, including emergency legislation,
Finance Bills, and possibly some technical legislation. But there
should be a clear presumption that bills embodying important changes
of policy (particularly constitutional bills) should be subject
to pre-legislative scrutiny. Where such bills have not previously
been the subject of wide consultation, by means of green and white
papers, this presumption should be a requirement. If the Government
does not publish a bill in draft, it should formally explain and
justify its approach to the House.
83. We further believe that the process whereby
decisions are made on which draft bills should be subject to pre-legislative
scrutiny should be more transparent. The Constitution Committee
in 2004 recommended that such decisions should be "negotiated
between the Government and the Liaison Committee of the House
We accept that in many cases the appropriate body to scrutinise
draft legislation may be the appropriate departmental select committee.
However, in light of the widespread perception that the knowledge
and experience of Members of the House of Lords are being under-used,
we do not consider that the process for taking such decisions
recommended by the Constitution Committee is now adequate.
84. We recommend that there should be a presumption
that all bills embodying important changes of policy (particularly
constitutional bills) should be subject to pre-legislative scrutiny.
Where such bills have not previously been the subject of wide
consultation, by means of green and white papers, this presumption
should be a requirement. If the Government does not publish a
bill in draft, it should formally explain and justify its approach
to the House.
85. We recommend that the Leader of the House,
along with the Leader of the House of Commons, explore ways in
which the process for reaching decisions on pre-legislative scrutiny
can be improved, so as to make best use of the knowledge and experience
of Members of the House of Lords.
86. Parliamentary scrutiny of legislation is
only one stage of a lengthy process which extends far beyond Parliament.
Policy formation, which may include green and white papers, consultation
and stakeholder engagement, takes place largely independently
of Parliament. Drafting by Parliamentary Counsel, consideration
by Cabinet committees and inclusion within the legislative programme
follow, until the point at which a bill is ready for introduction.
Pre-legislative scrutiny by committees of one or both Houses may
extend the process still further. Within this complex process,
Government officials may sometimes be tempted to see Parliament
as just another "consultee", legislative scrutiny as
only a box to be ticked along the way to delivering policy outcomes.
87. The last quarter century has seen a huge
increase in the volume of legislation, primary and secondary,
put before Parliament by Government. The reasons for this increase
in volume of legislation, and the perceived corresponding drop
in its quality, fall outside the scope of this Report. But they
have been repeatedly analysed, most recently in the Hansard Society
report Making Better Law, which noted that legislation
is increasingly perceived as "a sign of action and therefore
... a powerful public relations measure and communications tool;
a heavy legislative programme suggests a breathless pace of reform,
energy and endeavour." The result is that Parliament, and
parliamentarians, find themselves "struggling with a near
88. These problems are compounded by the imbalance
in the legislative programme between the two Houses. Up to a third
of Government bills in any session are introduced in the Lords.
Figures for the last Parliament are as follows:
|Session||Total Government bills
||Introduced in Commons (percentage of total)
||Introduced in Lords (percentage of total)
||35 (66)||18 (34)
||21 (70)||9 (30)
||22 (73)||8 (27)
||16 (67)||8 (33)
||18 (78)||5 (22)
||112 (70)||48 (30)
89. Most major bills begin in the Commons and
only reach the Lords half way through the session, until which
point the Lords is relatively less occupied by legislation. Although
increased use of programming motions in the Commons means that
some Commons bills now reach the Lords earlier in the session,
such programming may in turn mean that they have been subject
to less thorough scrutiny. Rational and effective use of time
and resources is thus made more difficult. The "spill-over",
between the summer recess and the end of the session, has typically
been hectic in the Lords, as too much legislative scrutiny is
crammed into a short period. It remains to be seen whether the
recent change in the sessional timetable will improve the position.
90. Time pressure necessarily affects the quality
of legislative scrutiny. Time, against the backdrop of imminent
prorogation, and in the absence of extensive use of carry-over,
is an important consideration for the Government. In the last
Parliament the Government tended to avoid confrontation in the
spill-over, preferring to accept Lords amendments rather than
risking loss of an entire bill. This House's power to extract
concessions from the Government was increased, but the results
were not necessarily in the public interestamendments should
be accepted in response to argument and evidence, not under pressure
91. Parliament, still less the House of Lords
alone, cannot put the deficiencies in the legislative process
right by itself. There need to be changes within Government as
well, for instance in the operation of the Cabinet Parliamentary
Business and Legislation Committee. But there is scope for Parliament
to be more active. In the words of the Hansard Society, Parliament
should: "at least be a partner in the process of setting
the standards of what constitutes a validly prepared piece of
If parliamentarians are serious about checking
the duplication of law and the growth of the statute book they
must be both more imaginative and muscular in asserting their
role and function vis--vis the executive."
92. In order both to make its own scrutiny of
legislation more effective, and to improve the outcomes from that
legislation, Parliament should be more assertive in ensuring that
Government legislation meets minimum standards. There is already
a degree of consensus on what such standards should bethe
Better Government Initiative, for example, has published a list
of "principles of good legislation", covering such issues
as clarity and proportionality.
Our view is that, in the interests of transparency and accountability,
it should be for Parliament, through a "Legislative Standards"
Committee, to assess all Government legislation against agreed
criteria, and to makes its findings available to both Parliament
and the public.
93. It would not be the role of the Legislative
Standards Committee to consider either the underlying policies
or the drafting of the legislation, which are properly matters
for debate and scrutiny in the two Houses. Instead the job of
the Committee would be to ensure bills' technical and procedural
compliance with agreed standards of best practice in bill preparation.
This would be best done by developing a legislative standards
form, which departments would be required to complete and present
at the same time as publishing a bill. Much of the required information
is already available, but across a range of places and formats.
The form would bring the key information together in one place,
forming a reference pointin essence, a "business case"for
the proposed legislation.
94. The exact content of the legislative standards
form would be for further discussion. However, we expect it to
- A clear and unambiguous statement of the policy
intention or intentions of the legislation, and of the desired
- An explanation of why legislation, rather than
other means, was necessary to fulfil the policy intention, and
why such legislation is being brought forward at this time;
- A summary of the Government's response to pre-legislative
scrutiny on the bill, and, in cases where a bill was not published
in draft, an explanation of why it was not (see paragraph 84 above);
- An outline of how the bill relates to existing
Acts, and whether opportunities to consolidate such legislation
have been considered;
- An informal Keeling Schedule (not part of the
bill) showing in greater detail the effect of amendments to earlier
- A list of any new criminal offences created by
the bill, and a summary of how they relate to existing offences;
- A summary of any consultation undertaken in preparing
- An estimate of the costs of preparing and implementing
the policy set out in the bill (including a regulatory impact
- An indication, where appropriate, of targets
and performance measures for implementation.
95. Wherever possible the Committee would review
the form and certify compliance (or not) after introduction and
before second reading. This might be difficult in some cases,
and so the Committee should have power to waive some of the requirements
in specified circumstances. Bills also change substantially in
the course of their passage through Parliament. Just as best practice
requires a business case to be amended to reflect the changing
scope of a project, so we would expect the Government to update
the legislative standards form to reflect amendments to the bill.
The Committee would review the updated form in the event of major
amendments being made to the bill.
96. We believe that a Legislative Standards Committee
would be most effective as a Joint Committee of both Houses, assessing
all Government bills for compliance with the agreed standards.
However, failing this, we believe that a House of Lords Legislative
Standards Committee considering only Lords Government bills would
significantly add value to parliamentary scrutiny of legislation.
97. We recommend the establishment of a Legislative
Standards Committee, either as a Joint Committee or as a Select
Committee of the House of Lords, to assess, immediately after
introduction and before second reading, the technical and procedural
compliance of Government bills with standards of best practice
in bill preparation, on which we have made proposals in paragraph
94 of this Report. We recommend that the Committee be appointed
for the remainder of the current Parliament in the first instance,
and that its effectiveness be reviewed towards the end of the
98. We recommend that the Legislative Standards
Committee should report on all Government bills before second
reading. If the Committee were set up as a Lords-only Committee,
it would report only on bills introduced in this House. If the
Committee reported that a bill was not compliant without good
reason, it would be for the House to decide whether or not to
grant a second reading.
Taking evidence on Lords bills
99. Among the criteria for good legislative scrutiny
which we have adopted in this chapter are requirements that it
be evidence-based and accessible to the public. While large volumes
of material on proposed legislation are sent to Members by non-governmental
organisations, pressure groups, and members of the general public,
there is currently no formal mechanism whereby the House, or a
committee of the House, can gather evidence on a bill. Nor is
there any process whereby such groups, or the general public,
can submit views, on the record, to inform the House's scrutiny.
100. In contrast, House of Commons Public Bill
Committees, appointed since 2006 by the Commons Committee of Selection
to consider particular bills, are empowered to take oral and written
evidence. After taking such evidence, they proceed to conventional
clause-by-clause consideration of the bill. Amendments may be
made, if necessary on division. Once the committee's consideration
is complete, the bill is reported to the House, and a normal Report
101. The main limitation of the Commons Public
Bill Committee procedure is that its use is confined to bills
introduced in the Commons. There is therefore no evidence-taking
stage on Lords starters. A further limitation is created by the
strict time-limits imposed on Public Bill Committee scrutiny of
those bills (the majority) which have previously been the subject
of a programming motion. In practice, the evidence-taking stage
is typically limited to the first two days, and the Public Bill
Committee itself has little or no opportunity to select witnesses
or determine its own timetable.
102. The nearest equivalents in the House of
Lords are Special Public Bill Committees, described in the Companion
as "public bill committees that are empowered to take written
and oral evidence on bills before considering them clause by clause
in the usual way." Such committees are appointed by the Committee
of Selection; the Government has a majority over the other party
or parties, with the balance held by the Crossbenchers. Ministers
and opposition frontbench spokesmen are typically members of the
committee. The committee takes evidence, beginning with the minister,
over a 28-day period, before considering the bill and amendments
in the usual way.
Members of the House who are not appointed to the committee are
free to attend meetings held in public, speak and move amendments,
but may not vote in the event of a division.
103. The Special Public Bill Committee procedure
remained unused for several years, until it was revived in 2008,
on a trial basis, for the scrutiny of Law Commission Bills.
The procedure proved a success, and was made permanent in 2010.
The related "Public Bill Committee" procedure, similar
except for the fact that there is no evidence-taking stage, is
described in the Companion as suitable for "mainly
technical and non-controversial government bills".
Public Bill Committees have fallen into disuse since the 1990s,
their place largely taken by Grand Committees.
104. While we would not wish to duplicate the
work of the Commons Public Bill Committees by subjecting Commons
bills to an evidence-taking stage, we believe that there could
be significant benefits in introducing an evidence-taking stage
for Lords bills. It would facilitate thorough, evidence-based
consideration and ongoing dialogue, giving the Government (including
Commons ministers and senior officials) an opportunity to explain
policy in a less formal environment than that of the Chamber or
Grand Committee; it could also be used to encourage public engagement
in the legislative process.
105. At the same time, we acknowledge that the
existing Special Public Bill Committee procedure, while suitable
for technical and largely uncontroversial Law Commission bills,
would be too time-consuming for most Government bills, potentially
disrupting the Government's legislative programme. Nor do we believe
that one size necessarily fits all. Bills vary hugely in size,
scope and importance; some may have been subject to extensive
consultation or pre-legislative scrutiny, others to little or
106. We therefore consider that any procedure
for taking evidence on bills in the Lords should allow some flexibility
to vary the procedure according to the particular bill. In some
cases, where the policy underlying a bill is uncontroversial,
and there has been extensive public consultation and pre-legislative
scrutiny, it may be that no further evidence-taking stage is necessary.
More often, however, for instance where there is significant interest
across the House in the policy, Members will wish to have an opportunity
to question ministers and officials in advance of the normal committee
stage. But in some cases, if the Government's consultation has
been inadequate, or if major and controversial elements of policy,
and their impact upon the public, have not been fully explained,
a more detailed enquiry, bringing in expert witnesses from outside
the House, would be appropriate.
107. Decisions on the appropriate procedure to
be followed in each case should, we believe, be taken by the Legislative
Standards Committee, as part of its consideration of bill preparation
and presentation. The Committee will have a full history of the
bill, of policy development and consultation, before it; the power
to decide the appropriate evidence-taking procedure would add
substantially to the Committee's authorityit would, from
the Government's point of view, become a force to be reckoned
108. We suggest that the options open to the
Legislative Standards Committee should be as follows:
- No evidence-taking stage.
Typically for bills which are uncontroversial, and which have
been subject to full consultation and pre-legislative scrutiny.
- Evidence to be taken from the Government.
This would be a hearing lasting up to one day, conducted by an
evidence-taking Grand Committee in the Moses Room, and open to
all Members, to be completed after second reading, and prior to
the normal commitment to either a Grand Committee or a Committee
of the Whole House. It would give Members an opportunity to challenge
senior ministers and officials on the preparation of the bill
and the level of engagement with stakeholders, as well as on the
- If the Legislative Standards Committee felt that
the Government's consultation had been inadequate, or that major
elements of policy were not fully explained, it could recommend
committal to an evidence-taking Public Bill Committee.
This would be a committee of named Members, including Members
of the Government and Opposition front benches, and backbench
volunteers who had expressed an interest in the bill. The committee
would be appointed on the recommendation of the Committee of Selection,
and would be given the power to take evidence and to publish its
evidence; its proceedings would be time-limited to 14 days. The
committee would meet on the committee corridor, and would have
a genuine opportunity to examine a range of witnesses over a series
of meetings. All Members of the House would be free to participate
fully in the meetings of the committee. After the set time had
elapsed, the evidence would be reported and the bill re-committed
to either a Grand Committee or a Committee of the Whole House.
109. We recommend that the Legislative Standards
Committee be tasked with advising the House, in respect of each
Government bill introduced in the Lords, whether an evidence-taking
stage is required, and, if so, whether it should be in the form
of a one-day hearing with the Government or committal to a Public
Bill Committee. We suggest that the last option should be used
only on those occasions where consultation has been inadequate,
or major elements of policy have not been fully explained.
110. We have used the term "Public Bill
Committee" to describe a 14-day evidence-taking procedure,
as this term is familiar both in the Commons and beyond Parliament.
We recommend that, with a view to simplifying the House's procedures,
the existing, obsolete Public Bill Committee procedure be abolished
and replaced by the procedure outlined above. The Special Public
Bill Committee procedure would continue to be used for consideration
of Law Commission bills.
111. As well as recommending the introduction
of an evidence-taking stage for Government bills introduced in
the Lords, we see considerable scope for extending the use already
made of Grand Committees on bills. As long ago as 1994 a group
chaired by Lord Rippon of Hexham recommended that the committee
stage of all bills except the most important or controversial
Government bills should be taken in Grand Committee.
In 2002 the Leader's Group chaired by Lord Williams of Mostyn
also recommended greater use of Grand Committees for the kind
of bills considered suitable by the Rippon group.
But despite these successive recommendations, and a surge in 2002
and the following years, the number of bills taken in Grand Committee
has fallen back more recently:
|Session||Number of bills committed to a Grand Committee
112. The reason for the failure to implement
successive recommendations to make greater use of Grand Committees
lies in the absence of political will and co-operation. Scheduling
decisions are made by the usual channels; within the usual channels
the Opposition often, no doubt, see benefit in taking as many
Government bills as possible to Committee of the Whole House.
113. The fall in the number of bills going to
Grand Committee comes at a price. More time on the floor of the
House in Committee means less time for other types of business.
As the number of bills going to Grand Committee fell, so the proportion
of time in the Moses Room spent considering public bills fell,
from just under 98% in 2003-04 to 61% in the last completed normal
length session, 2008-09. Over the same period, the proportion
of time spent in the Chamber on Committee stages of public bills
rose from 18% in 2003-04 to just under 28% in 2008-09. In the
current session so far, in which a series of key Government bills
have been committed to a Committee of the Whole House, 24% of
time in the Chamber has been spent on Committee stages.
114. One obvious result of the recent increase
in the time taken in Committee of the Whole House has been to
reduce the amount of time in the Chamber available for other types
of business. Increasingly, such business is itself being taken
in Grand Committee, so filling the gap left by the reduction in
the number of Committee stages held there. The vast majority of
affirmative instruments are now debated in Grand Committee; since
2007 it has been possible to take four one-hour Questions for
Short Debate back-to-back in the Moses Room; also taking place
in the Moses Room are debates on select committee reports, second
reading debates on Law Commission bills (since 2008) and debates
on National Policy Statements (since 2009).
115. There is widespread, though not unanimous,
agreement that Grand Committee procedure leads to better scrutiny
of primary legislation. Members' submissions referred to the greater
informality of the Grand Committee and the better communications
between ministers and officials, leading to better quality responsesall
features of Grand Committee proceedings that are particularly
helpful during the detailed exchanges typifying Committee stage
scrutiny. We acknowledge that some Members deplore the loss of
the opportunity to vote at Committee. But divisions in Committee
of the Whole House on most bills are now rare, and the House continues
to have chances to vote on amendments at Report and Third Reading.
On balance, we have no hesitation in affirming that bills benefit
from Grand Committee scrutiny.
116. On the other hand, it is doubtful whether,
say, Questions for Short Debate or debates on select committee
reports, which are subject to speakers' lists and time limits,
benefit from being taken in the Moses Room. They are being taken
in Grand Committee not because they are particularly appropriate
for that forum, but because time in the Chamber is finite, and
with the increasing amount of time being spent in Committee of
the Whole House, something has to give.
117. In conclusion, reducing the time taken in
Committee of the Whole House, and proportionally increasing the
amount of time taken on bills in Grand Committee, would on the
one hand release time in the Chamber, which could be used to debate
topical or other important issues of the day, and on the other
would improve the quality of the House's scrutiny of legislation.
Such changes could also be implemented in a balanced way, without
inflicting unreasonable hours upon Members and staff.
118. To achieve the best results, longer sitting
hours in Grand Committee would be needed. In a typical one-year
session the House sits on around 140 days, for a total of around
1,000 hours, around a quarter of which is spent in Committee of
the Whole House (though the proportion in the present session
will be considerably higher). The Grand Committee sits on around
60 days, for around 200 hours in total. If the number of Grand
Committee sitting days could be increased by, say, 50%, accompanied
by longer sitting hours, it would be possible to double the amount
of time spent in Grand Committee, taking the majority of Committee
stages off the floor of the House.
119. This would mean more regular, and longer,
Grand Committee sittingswe believe that there should be
a presumption that the Grand Committee sit three days a week,
Tuesday to Thursday, every week, apart from the opening and closing
weeks of the session, when no Committee stages are held. Sittings
should be longer, starting at 10.30 am, adjourning at lunch, and
resuming at 2.30pm, continuing until 6.30pm. With 80-90 Grand
Committees held during a typical session, this would allow for
around 500 hours of Grand Committee sittings, certainly enough
to absorb the additional workload created by taking committee
stages off the floor of the House.
120. These changes could potentially free up
enough time to allow the House to abandon or at least to reduce
the frequency of Friday sittings. This would mean taking private
Members' bills on week-days (with committee stages in the Moses
Room). The saving generated would go some way to offsetting the
cost of more and longer Grand Committees.
121. As well as considering more Government bills,
we believe it is time to extend the use of Grand Committee to
private Members' bills. According to the Companion, bills
which are "unlikely to attract amendments" (in which
case the order of commitment is likely to be discharged), are
not committed to Grand Committee. This is a necessary consequence
of the rule that "only one bill per day may be considered
in Grand Committee"it
would be wasteful to schedule a Grand Committee to consider one
bill, if at short notice the order for commitment could be discharged
and the Grand Committee cancelled. It follows that private Members'
bills are normally committed to Committee of the Whole House.
These rules are, we believe, unnecessarily rigid. If longer Grand
Committee sittings are instituted, it will be vital to introduce
greater flexibility in scheduling business, with different bills
being considered before and after lunch, and other types of business,
such as Questions for Short Debate or consideration of delegated
legislation, being tabled for the end of business.
122. We recommend that a rule be established,
and included in the Companion, that all Government
bills introduced in the Commons should be considered in Grand
Committee, apart from major constitutional bills and emergency
legislation and other exceptionally controversial bills. In the
case of such bills, the minister in charge of the bill should,
when moving the committal motion to Committee of the Whole House,
make a brief statement explaining to the House why the bill was
deemed unsuitable for Grand Committee.
123. We recommend also that all private Members'
bills be committed to Grand Committee. At the same time, the rule
that only one bill per day may be considered in Grand Committee
should be lifted, allowing private Members' bills to be scheduled
after other business, which might include Government bills. If
no amendments were tabled by the deadline of 5pm the previous
day, it would be open to the Member in charge of the bill to move
a motion in the Chamber to discharge the order of commitment.
124. We recommend that the sitting hours of
the Grand Committee should in future be more predictable and longer.
We propose that, with the exception of a period of around two
weeks at the start and end of each session, there should be a
presumption that the Grand Committee will sit on Tuesday, Wednesday
and Thursday of each sitting week, from 10.30am to 12.30pm, and
from 2.30 until 6.30pm.
Clauses not considered by the Commons
125. It has often been suggested that clauses
in Commons bills which have not been debated by the Commons should
be highlighted when the bill reaches the Lords, in order that
the House may prioritise its own scrutiny work. For instance,
the cross-party group on legislative scrutiny, in its report in
March 2010, recommended that "When a bill passes from the
Commons to the Lords it should be flagged to identify any clauses
that have not been debated".
Similar points were made by several speakers in the debate on
working practices on 12 July 2010.
126. The House of Commons is master of its own
procedures, including the way in which it uses the time allocated
to scrutinise legislation. It is out of order for Members of the
House of Lords to criticise Commons proceedings or Speaker's rulings.
It would not be permissible therefore to use the flagging of clauses
not debated in the Commons as the basis even for implied criticism
of that House. Nevertheless, if the House of Lords were to be
informed which parts of a bill had not been debated, we believe
that it would allow for more focused and better prioritised debate
in this House.
127. The reason why clauses or parts of a Government
bill have not been debated in the Commons is frequently because
the Government has tabled a programming motion. Even though such
motions are debated and agreed by the House of Commons as a whole,
the responsibility for any restriction placed upon Commons scrutiny
is shared by the Government. We therefore believe that it should
be for the Government to flag up these clauses, to assist the
House of Lords in its work as a revising chamber. The Government
could present such information in a memorandum to the Legislative
Standards Committee upon the bill's introduction, and the Committee
could in turn report it to the House. This would be an exception
to our previous proposal that the Legislative Standards Committee,
if established as a Lords-only committee, should consider only
bills introduced in this House.
128. We recommend that, in cases where clauses
or parts of a Government bill are not debated in the Commons,
the Government should submit a memorandum to the Legislative Standards
Committee, flagging up which clauses have been affected. The Legislative
Standards Committee should review the Government's memorandum,
and report its findings to the House in order to assist Members
in subsequent scrutiny of the bill.
129. We have also considered speaking times on
legislation. The Companion does not currently set a time-limit
for speeches made during consideration of legislation. Instead
it notes that "long speeches can create boredom and tend
to kill debate", and states a general presumption that "in
debates where there are no formal time limits, members opening
or winding up, from either side, are expected to keep within 20
minutes. Other speakers are expected to keep within 15 minutes."
This general advisory time limit clearly applies to speeches at
second reading, where there is a speakers' list, and individual
speeches are timed using the Chamber clocks. But it is more difficult
to apply at later stages, partly because debates on amendments
(rather than individual speeches) are timed, and partly because
there is no speakers' list, interruptions are relatively frequent,
and, at Committee stage, Members may speak more than once.
130. It follows that Members addressing the subject-matter
of the whole bill, at second reading, are expected to limit themselves
to a maximum of 15 minutes; Members addressing individual amendments
at later stages may speak for as long as they see fit, and the
House as a whole allows them. This is anomalous. It means that
there is no effective means of preventing Members from making
"second reading speeches" at later stages of consideration.
It can lead to long debates which range broadly over the subject
of the bill rather than focusing on particular amendments.
131. We do not believe that the imposition of
mandatory speaking limits at Committee or later stages would be
appropriate. However, we do consider that the existing guidance
in the Companion, which currently relates only to "debates",
should apply unambiguously to proceedings on legislation.
132. We recommend that the guidance in Chapter
4 of the Companion on speaking limits should
be repeated in Chapter 8, and thereby extended unambiguously to
proceedings on legislation.
133. We further recommend, as the Chamber
clocks are currently used to time debates on amendments rather
than individual speeches, that consideration be given to improving
the number and visibility of annunciator screens in the Chamber,
so that Members can more easily keep track of the length of individual
134. The case for more post-legislative scrutiny
is widely acknowledged, and has been called "compelling"
by the Constitution Committee.
The Law Commission, in a 2006 report, listed the benefits as follows:
"To see whether legislation is working out in
practice as intended;
To contribute to better regulation;
To improve the focus on implementation and delivery
of policy aims;
To identify and disseminate good practice so that
lessons may be drawn from the successes and failures revealed
by the scrutiny work."
135. The Government, in response, proposed that
"henceforth the department currently responsible for a particular
Act should in most casesgenerally [when] between 3 and
5 years have elapsed after Royal Assentpublish a Memorandum,
for submission to the relevant [Commons] departmental select committee."
This would establish "a formal and automatic process"
so the committee "could assess the state of play in relation
to the Act and could decide on what further action to take or
136. The Government rejected the Law Commission's
recommendation of a new Parliamentary joint committee on post-legislative
scrutiny, arguing that it would be "difficult to give proper
systematic recognition" to the "key and leading role"
of Commons departmental committees in "monitoring the policies
and activities of government departments" if there was a
permanent Lords or Joint Committee responsible for post-legislative
scrutiny. The Government
therefore concluded that it would be for the relevant Commons
departmental select committee to decide whether to involve a Lords
or Joint Committee in any review.
137. The Government's response to the Law Commission
report was disappointing. Although Commons departmental select
committees have reviewed a number of recent Acts, they have not
undertaken systematic post-legislative review, and do not have
the resources to do so. In the words of the Hansard Society, "the
current ad hoc approach to post-legislative scrutiny, although
valuable for what it may reveal about specific pieces of legislation,
is insufficiently embedded into formal procedures in Westminster
and Whitehall to truly make an impact".
138. Moreover, the Government's premise, that
post-legislative review should be seen as part of departmental
select committees' monitoring of the policies and activities of
departments, is puzzling. Both Houses are responsible for scrutinising
and passing legislation; if the process of legislative scrutiny
is to be seen holistically, then it should be for both Houses
to review that legislation in order to learn lessons and disseminate
best practice. It is difficult to understand the logic of a position
which states that once legislation has been passed it should be
for the Commons alone, and within the Commons individual departmental
select committees, to review it. This approach also ignores the
very considerable experience (and continuity of experience) that
Members of the House of Lords could bring to post-legislative
139. As the Constitution Committee said in 2004,
post-legislative review is "similar to motherhood and apple
pie in that everyone appears to be in favour of it". But
neither Parliament nor the Government has yet committed the resources
necessary to make systematic post-legislative review a reality.
Like the Law Commission and the Hansard Society, we see merit
in post-legislative review being undertaken by a Joint Committee.
However, in the absence of Government support and bicameral agreement,
no progress has been made towards this goal. We therefore believe
that it is time for the House of Lords to establish its own Post-Legislative
Scrutiny Committee. This could lead to the establishment of a
joint committee in due coursebut the desirability of joint
action must not be a brake on progress.
140. We envisage a small, standing Post-Legislative
Scrutiny Committee with up to eight members. This standing Committee
would manage the process, sifting Acts around three to five years
after enactment, and identifying those most suitable for post-legislative
review. It would take into account memoranda published by the
Government, and seek to co-ordinate its work with the relevant
Commons departmental select committees. Once the Committee had
identified appropriate Acts for review (up to three or four each
year) it would co-opt Members with particular interest in the
subject-matter of the legislation to assist in conducting short
inquiries, taking evidence from stakeholders, legal experts and
141. We recommend that the House of Lords
appoint a Post-Legislative Scrutiny Committee, to manage the process
of reviewing up to four selected Acts of Parliament each year.
142. The House of Lords has good reason to be
proud of the quality of its scrutiny of delegated legislation.
The Delegated Powers and Regulatory Reform Committee scrutinises
the creation of delegated powers in primary legislation, while
the Merits of Statutory Instruments Committee, established in
2003, has proved to be an increasingly effective sifting mechanism,
drawing important or controversial statutory instruments (SIs)
to the House's attention.
143. But notwithstanding the work of these committees,
both the volume (with 2010 representing a new peak)
and importance of delegated legislation continues to grow. The
Public Bodies Bill has highlighted the long-standing problems
faced by Parliament in scrutinising such legislation effectively.
The Delegated Powers Committee commented that the powers contained
in six clauses of the bill, as then drafted, "would grant
to ministers unacceptable discretion to rewrite the statute book,
with inadequate parliamentary scrutiny of, and control over, the
144. Neither House can amend SIs:
Parliament, in delegating specific legislative powers to ministers
in the parent Act, accepts that it is the responsibility of ministers
to determine how precisely they are used. A minister who used
such powers unreasonably would be open to challenge in the courts,
by means of judicial review. But it is not for Parliament, having
made the initial delegation, to second-guess the actions of ministers.
145. Instead, SIs laid before Parliament by ministers
may be subject either to no parliamentary procedure; to negative
procedure (it comes into force unless annulled by either House
within 40 days of laying); to affirmative procedure (normally
a draft is laid before each House, which must approve it by resolution);
or the rare super-affirmative procedure (proposals are normally
subject to public consultation and scrutiny by parliamentary committees
before a draft is brought forward for approval).
146. However, in respect of both negative and
affirmative procedures, the use by Parliament of its statutory
power either to annul or to decline to approve SIs is seen as
a "nuclear option", to be used rarely or not at all.
The last time the House of Commons rejected a SI was in 1979;
it appears from the Hansard record that the rejection of this
SI may have been a mistake.
The House of Lords, despite a 1994 resolution affirming its "unfettered
freedom to vote on any subordinate legislation", has voted
down secondary legislation on only three occasions in the last
147. The Leader of the House has gone further,
arguing that there is a "convention that the House of Lords
does not reject statutory instruments by voting them down where
the House of Commons has, or would have, approved them".
We note that such a convention, linked as it is to the decisions
of the House of Commons, which has not rejected a SI in over 30
years, would be tantamount to a convention that Parliament as
a whole does not reject statutory instruments. This would defeat
the purpose of subjecting SIs to parliamentary control in the
first place. The Joint Committee on Conventions, in contrast,
concluded in 2007 that "the House of Lords should not regularly
reject Statutory Instruments, but that in exceptional circumstances
it may be appropriate for it to do so".
148. In the 1980s and early 1990s the House hardly
ever voted on motions fatal to SIs. Indeed, Lord McCarthy, for
the Opposition front bench, stated in 1983 that "it is not
our policy to invite the House to cancel, defy or reject regulations
of this kind which are passed by the Lower House."
Although the 1994 resolution asserting the House's "unfettered
freedom" to vote on SIs was adopted without a vote, the two
main parties, when in opposition, continued to observe self-restraint
until 1999. This was never a House-wide convention, but a political
agreement between the two main parties, as was acknowledged by
Lord Strathclyde himself when, in a 1999 lecture, he described
the convention as having been "agreed between the front benches
of the major parties 20 years and more agobut, it is important
to note, never accepted by the Liberal Democrats or the Cross-benchers".
149. Following the House of Lords Act 1999, the
agreement broke down, and Lord Strathclyde, in the same lecture,
said that "I declare this convention dead". The House's
rejection of an affirmative and a negative instrument on 22 February
2000 confirmed this new approach. However, although since 2000
the House has continued to divide regularly on fatal motions,
it appears that there has rarely been a serious intention to defeat
150. It is clear to us, however, that there are
occasions when a vote against a statutory instrument, as a means
of forcing the Government to think againsince there is
nothing to prevent the Government bringing an identical or similar
instrument back againwould be an efficient and valuable
form of scrutiny. In 1968, when the House voted down the Southern
Rhodesia (United Nations Sanctions) Order 1968, the Leader of
the Opposition, Lord Carrington, clearly stated that his intention
was to give the Government "a period of reflection".
If the Government re-laid the Order, and the Commons approved
it, the Lords would back down, as happened four weeks later.
151. In contrast, in 2010 the House rejected
two fatal amendments to motions to approve two affirmative instruments
Opposition abstaining, despite their stated intention to repeal
the Orders were they to win the imminent general election. After
the election, a bill was introduced to reverse the effect of the
affirmatives. If, in the days leading up to the dissolution of
Parliament in April 2010, the House had been in a position to
force a "period of reflection" upon the outgoing Government,
considerable time and resources would have been saved. But the
House's hands appear to be tied, by the inflexibility of the statutory
framework for delegated legislation, and its own reluctance to
pass ostensibly "fatal" motions.
152. The Royal Commission in 2000 noted the House's
reluctance to use its "too drastic" powers. It recommended
that a reformed second chamber should possess a non-fatal, delaying
power in respect of SIsa power which it might use more
often, and to better effect.
We entirely endorse the spirit of this proposal. If the House's
powers over secondary legislation were less draconian, the House
might be encouraged to use them more often, forcing the Government
to rethink its policy and possibly to amend the proposed legislation.
An apparent sacrifice of the House's powers might lead to more
effective scrutiny. We also consider that such an approach would
be more consistent with the House's role as a revising chamber
ultimately respecting the primacy of the House of Commons.
153. Implementing the change recommended by the
Royal Commission would require primary legislation. But, as Lord
Carrington pointed out in 1968, even without such legislation
votes against SIs could be used to give the Government an opportunity
to think again. We therefore believe that the House should adopt
a resolution setting out a new convention: that in defeating an
affirmative instrument, the House's intention would be to invite
the Government to "think again". If the Government were
then to re-lay a substantially similar instrument, and the Commons,
having considered the issues raised in the Lords, were to approve
the instrument (or, in the case of a negative instrument, no prayer
to annul the instrument were to be passed in the Commons), the
House would undertake not to vote it down a second time. As a
safeguard, we suggest that a minimum time interval be built into
the processwe suggest at least one month should pass between
the House rejecting an instrument and the Government inviting
the House a second time to agree it.
154. We accept that delay could in some circumstances
seriously inconvenience the Government, and that even a delaying
power should be used sparingly. But even with this limitation,
we believe that adoption of such a convention would significantly
improve scrutiny of delegated legislation by the House and Parliament.
It would also build on the success of the Merits Committee, giving
additional force to that Committee's scrutiny.
155. We recommend that the House should adopt
a resolution asserting its freedom to vote on delegated legislation,
and affirming its intention to use such votes to delay, rather
than finally to defeat, such legislation. Such a resolution would
establish the House's role as a revising chamber in respect of
delegated as well as primary legislation.
156. We recommend that the resolution should
contain the following elements:
- That the House asserts its freedom to decline
to approve any draft affirmative instrument, or to pass a prayer
to annul any negative instrument, laid before it by the Government;
- That the purpose of the House's use of this
power is to enable the Government of the day to reconsider the
policy set out in the instrument;
- That in the event that the House has declined
to approve an affirmative instrument, and the Government has laid
a substantially similar draft instrument, and this instrument
has been approved by the House of Commons, the House will agree
to the approval motion without amendment;
- That in the event that the House has passed
a prayer to annul a negative instrument, and the Government has
laid a substantially similar instrument, the House will not vote
on a prayer to annul the second instrument.
19 Source: Sessional Statistics (see http://www.publications.parliament.uk/pa/ld/ldstat.htm).
J.A.G. Griffith, Parliamentary Scrutiny of Government Bills
(1974), p. 13. Back
Report of the Royal Commission on House of Lords Reform (2000),
p. 33. Back
House of Commons Modernisation Committee, The Legislative
Process, First Report, 1997-98 (HC 190), paragraph 91. Back
HL Deb., 9 December 2009, col. 1086. Back
Source: House of Lords Committee Office. Back
Constitution Committee, 14th Report, 2003-04, Parliament and
the Legislative Process (HL 173), paragraph 26. Back
Ibid, paragraph 28. Back
Ibid, paragraph 41. Back
Ruth Fox and Matt Korris, Making Better Law: Reform of the
legislative process from policy to Act (Hansard Society, 2010),
pp. 31, 34. Back
Ibid., p. 35. Back
Better Government Initiative, Good Government: Reforming Parliament
and the Executive (2010), pp. 20-21. Back
Companion, pp. 146-47. Back
Procedure Committee, 1st Report, 2007-08 (HL Paper 63). Back
Procedure Committee, 2nd Report, 2010-11 (HL Paper 30). Back
Companion, p. 145. Back
Report to the Leader of the House from the Group on Sittings
of the House, 1993-94, HL Paper 83. Back
Report by the Group appointed to consider how the working practices
of the House can be improved, and to make recommendations, 2001-02,
HL Paper 111. Back
Companion, pp. 143-44. Back
Improving Scrutiny of Primary Legislation in the House of Lords
(March 2010), recommendation 5. Back
Companion, p. 68. Back
Companion, p. 66. Back
We note that changing the Chamber clocks so that they indicated
both the length of individual speeches and the time taken on each
amendment would involve considerable expense, as would any other
changes to the clock mechanism. Back
Constitution Committee, Parliament and the Legislative Process,
paragraph 173. Back
Law Commission, Post-Legislative Scrutiny (Cm 6956), October
2006, p. 13. Back
Post-legislative scrutiny: the Government's approach (Cm
7320), March 2008, p. 15. Back
Ibid., p. 17 Back
Ruth Fox and Matt Korris, Making better law, p. 152. Back
For 2010 a total of 2,969 statutory instruments is given on www.legislation.gov.uk,
compared with a previous peak of 2,288 in 2001. Back
Delegated Powers and Regulatory Reform Committee, 5th Report,
2010-11 (HL Paper 57). Back
There is a very small number of exceptions to this rule: see
Companion, p. 191, footnote 1. Back
See HC Deb, 24 October 1979, volume 972, cols. 561-88. Back
On 18 June 1968 (Southern Rhodesia (United Sanctions) Order 1968,
an affirmative instrument); 22 February 2000 (Greater London Authority
(Election Expenses) Order 2000, an affirmative instrument, and
Greater London Authority Elections Rules 2000, a negative instrument);
and 28 March 2007 (Gambling (Geographical Distribution of Casino
Premises Licences) Order 2007, an affirmative instrument). Back
Letter to Lord Scott of Foscote dated 29 July 2010, reprinted
in Merits Committee, 8th Report, 2010-11 (HL Paper 40). In a subsequent
letter, the Leader accepted the Joint Committee's conclusion that
the House "does have power to vote on secondary legislation,
and, indeed, to reject it". He also noted that the House
has shown "the utmost restraint in using its power to reject".
See Merits Committee, 11th Report, 2010-11 (HL Paper 52). Back
Joint Committee on Conventions, Conventions of the UK Parliament,
2005-06 (HL Paper 265, HC 1212), paragraph 227. Back
HC Deb., 5 December 1983, col. 929. Back
Quoted in the Joint Committee's report, paragraphs 197-98. Back
One exception, the vote in 2007 on the Gambling (Geographical
Distribution of Casino Premises Licences) Order 2007, was treated
as a free vote by the Opposition. Back
The Norwich and Norfolk (Structural Changes) Order 2010 and the
Exeter and Devon (Structural Changes) Order 2010, considered on
22 March 2010. After the election (and after the completion of
judicial review proceedings in the High Court), the Local Government
Bill was introduced, which halted the restructuring in Norfolk
and Devon, and received Royal Assent on 16 December 2010. Back
See Royal Commission on the Reform of the House of Lords, op
cit., pp. 76-78. Back