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Report of the Leader's Group on Working Practices - Leader's Group on Working Practices Contents


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.[19] 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 legislation.

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".[20] 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 that House.

BOX 2

The House of Lords as a "revising chamber"
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."[21] 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".

Pre-legislative scrutiny

75.  There is general agreement that the introduction of pre-legislative scrutiny by parliamentary committees, following a recommendation of the Modernisation Committee in 1997,[22] 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."[23]

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 Act—for 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 lower:
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)[24]
2002-03 9 10 (4)
2003-04 12 10 (4)
2004-05 5 2 (1)
2005-06 4 3 (1)
2006-07 4 3 (2)
2007-08 9 7 (2)
2008-09 4 2 (1)
2009-10 4 2 (0)

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."[25]

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.[26] 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 of Commons".[27] 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.

Legislative standards

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 impossible workload."[28]

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:
SessionTotal Government bills Introduced in Commons (percentage of total) Introduced in Lords (percentage of total)
2005-0653 35 (66)18 (34)
2006-0730 21 (70)9 (30)
2007-0830 22 (73)8 (27)
2008-0924 16 (67)8 (33)
2009-1023 18 (78)5 (22)
Total160 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 interest—amendments should be accepted in response to argument and evidence, not under pressure of time.

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 legislation … 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."[29]

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 be—the Better Government Initiative, for example, has published a list of "principles of good legislation", covering such issues as clarity and proportionality.[30] 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 point—in 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 include:

  • A clear and unambiguous statement of the policy intention or intentions of the legislation, and of the desired outcomes;
  • 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 Acts;
  • 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 the bill;
  • An estimate of the costs of preparing and implementing the policy set out in the bill (including a regulatory impact assessment);
  • 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 Parliament.

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 stage follows.

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.[31] 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.[32] The procedure proved a success, and was made permanent in 2010.[33] 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".[34] 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 no consultation.

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 authority—it would, from the Government's point of view, become a force to be reckoned with.

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 underlying policy.
  • 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.

Grand Committee

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.[35] 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.[36] 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:
SessionNumber of bills committed to a Grand Committee
2000-012
2001-025
2002-0312
2003-0418
2004-058
2005-0623
2006-0712
2007-0814
2008-096
2009-105

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 responses—all 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 sittings—we 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"[37]—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".[38] 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.[39] 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.

Speaking times

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."[40] 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 contributions.[41]

Post-legislative scrutiny

134.  The case for more post-legislative scrutiny is widely acknowledged, and has been called "compelling" by the Constitution Committee.[42] 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."[43]

135.  The Government, in response, proposed that "henceforth the department currently responsible for a particular Act should in most cases—generally [when] between 3 and 5 years have elapsed after Royal Assent—publish a Memorandum, for submission to the relevant [Commons] departmental select committee."[44] 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 propose".

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.[45] 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".[46]

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 review.

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 course—but 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 others.

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.

Delegated legislation

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[47]) 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 process"[48].

144.  Neither House can amend SIs[49]: 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.[50] 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 half-century.[51]

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".[52] 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".[53]

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."[54] 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 ago—but, it is important to note, never accepted by the Liberal Democrats or the Cross-benchers".[55]

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 the Government.[56]

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 again—since there is nothing to prevent the Government bringing an identical or similar instrument back again—would 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 on division[57]—the 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 SIs—a power which it might use more often, and to better effect.[58] 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 process—we 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).  Back

20   J.A.G. Griffith, Parliamentary Scrutiny of Government Bills (1974), p. 13. Back

21   Report of the Royal Commission on House of Lords Reform (2000), p. 33. Back

22   House of Commons Modernisation Committee, The Legislative Process, First Report, 1997-98 (HC 190), paragraph 91. Back

23   HL Deb., 9 December 2009, col. 1086. Back

24   Source: House of Lords Committee Office. Back

25   Constitution Committee, 14th Report, 2003-04, Parliament and the Legislative Process (HL 173), paragraph 26. Back

26   Ibid, paragraph 28. Back

27   Ibid, paragraph 41. Back

28   Ruth Fox and Matt Korris, Making Better Law: Reform of the legislative process from policy to Act (Hansard Society, 2010), pp. 31, 34. Back

29   Ibid., p. 35. Back

30   Better Government Initiative, Good Government: Reforming Parliament and the Executive (2010), pp. 20-21.  Back

31   Companion, pp. 146-47.  Back

32   Procedure Committee, 1st Report, 2007-08 (HL Paper 63). Back

33   Procedure Committee, 2nd Report, 2010-11 (HL Paper 30). Back

34   Companion, p. 145. Back

35   Report to the Leader of the House from the Group on Sittings of the House, 1993-94, HL Paper 83. Back

36   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

37   Companion, pp. 143-44. Back

38   Improving Scrutiny of Primary Legislation in the House of Lords (March 2010), recommendation 5. Back

39   Companion, p. 68. Back

40   Companion, p. 66. Back

41   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

42   Constitution Committee, Parliament and the Legislative Process, paragraph 173. Back

43   Law Commission, Post-Legislative Scrutiny (Cm 6956), October 2006, p. 13. Back

44   Post-legislative scrutiny: the Government's approach (Cm 7320), March 2008, p. 15. Back

45   Ibid., p. 17 Back

46   Ruth Fox and Matt Korris, Making better law, p. 152. Back

47   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

48   Delegated Powers and Regulatory Reform Committee, 5th Report, 2010-11 (HL Paper 57). Back

49   There is a very small number of exceptions to this rule: see Companion, p. 191, footnote 1. Back

50   See HC Deb, 24 October 1979, volume 972, cols. 561-88.  Back

51   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

52   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

53   Joint Committee on Conventions, Conventions of the UK Parliament, 2005-06 (HL Paper 265, HC 1212), paragraph 227.  Back

54   HC Deb., 5 December 1983, col. 929. Back

55   Quoted in the Joint Committee's report, paragraphs 197-98. Back

56   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

57   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

58   See Royal Commission on the Reform of the House of Lords, op cit., pp. 76-78. Back


 
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