Scrutiny of legislation is Parliament’s most important function. The Government can introduce new legislation into Parliament when it wishes, but a bill can only become law if the House of Commons and the House of Lords (save for the provisions of the Parliament Acts 1911 and 1949) are satisfied with the final text, before it is sent for Royal Assent.
A bill goes through similar stages in both Houses, but the way in which the Commons and Lords approach scrutiny, and their scrutiny priorities, differ. The House of Commons usually addresses the policy and politics of bills, while the House of Lords tends to focus more of its scrutiny on the details and technicalities. This characterisation is not universal, but the complementarity of the broad approach of the two Houses is beneficial to the legislative scrutiny process. The view of our witnesses was that Parliament’s scrutiny of bills is moderately effective, but there were several areas where improvements could be made. This report, following-up our 2004 report Parliament and the Legislative Process, explores these areas and makes recommendations to enhance Parliament’s scrutiny of bills.
One of the differences between the House of Commons and the House of Lords is that the former sets time limits for the scrutiny of bills, while the latter does not. The effects of programming in the Commons can lead to some clauses going undebated due to lack of time. In order to inform Members of the House of Lords when this has happened, we recommend that the Procedure Committee considers asking the House of Lords Library, as part of their briefings on legislation, to highlight the parts of bills not debated by MPs.
Another issue concerning the amount of time available for scrutiny of bills relates to fast-track legislation. Fast-tracking bills through their stages in both Houses is tolerable only in exceptional circumstances. It is unacceptable that this process has become routine for nearly all bills relating to Northern Ireland, reducing the amount of scrutiny Parliament can give this legislation. Without an Executive, there has been a significant democratic deficit in Northern Ireland’s governance for the past two years and Parliament should not exacerbate that deficit by regularly fast-tracking bills relating to Northern Ireland.
In our first report as part of this inquiry, Preparing Legislation for Parliament, we recommended the establishment of a Legislative Standards Committee to ensure that all bills are sufficiently prepared prior to being presented to Parliament. We reiterate our recommendation that such a committee be appointed as the Parliamentary Business and Legislation (PBL) Cabinet Committee, which is responsible for carrying out this task in Government, has not always rigorously ensured that bills are fit for purpose before introduction. Among its responsibilities a Legislative Standards Committee would enable backbench MPs to provide their views on the time needed to scrutinise a bill and the committee would subsequently be able to make a recommendation. This recommendation would not bind the usual channels, but they would be alert to the political consequences of ignoring such a request. A Legislative Standards Committee would also examine the quality of explanatory materials accompanying a bill and be able to press the Government for improvements should the materials be inadequate, defective or absent.
The addition of substantial new policy content to a bill by the Government late in its passage is problematic, as there can be insufficient time for Parliament to scrutinise it. This is a particular issue when the amendments are made in the House of Lords and the House of Commons may only have a short amount of time to consider them during ping-pong. In respect of the House of Lords, we recommend that where significant new provisions are added to a bill late in its passage there should be an expectation that the bill—or at least the new clauses—are recommitted to allow for further debate.
Select committees in both Houses play a vital role in scrutinising the Government and while they may choose to examine bills, they have no formal role in the legislative process. We believe that the strength of select committees derives from their ability to use their subject-matter expertise in a non-partisan manner. Providing them with a more formal role in the legislative process would risk undermining this by inviting adversarial debate and division, as the Government would seek to ensure its members on select committees voted to get its legislation through and opposition members would correspondingly seek to oppose it. Nevertheless, we encourage committees to continue to bring their expertise to bear on bills on a case-by-case basis where they consider it appropriate to do so.
Parliament’s website is the home for information about bills as they pass through both Houses. This information, while comprehensive, is neither as integrated nor as accessible as it should be. We recommend a series of improvements to the presentation of bill information, including linking between Hansard and bill clauses and amendments, displaying bill text and the relevant sections of explanatory notes side-by-side, and utilising Hansard transcripts for subtitles of the televised proceedings of Parliament. The website should also be able to present a version of a bill which shows the effects of proposed amendments so that their impact can be more easily understood. Investing in measures such as these will help Members of Parliament and the public better understand bills and improve the quality of scrutiny applied to them.
Keeling schedules show the effect of a bill on existing statute and help the understanding of parliamentarians and the public where significant amendment to previous Acts of Parliament are proposed. Such schedules are, however, rarely included in bills. We recommend that the Government utilise improvements in technology to provide Keeling schedules (or an equivalent in explanatory notes) on a routine basis.
The biggest change to the legislative process since our 2004 report has been the introduction of evidence-taking at committee stage for bills that start in the House of Commons. This allows the public to contribute to the legislative process, in turn strengthening Parliament’s scrutiny of bills. It is an oddity that the evidence-taking process is not used for bills that start in the House of Lords. We recommend that, for bills starting in the House of Lords, the Lords should routinely take evidence prior to the commencement of the normal committee stage proceedings.