The Legislative Process: The Passage of Bills Through Parliament Contents

Chapter 2: Bill scrutiny processes


10.For a bill to become law, it must pass through both Houses of Parliament, with each House consenting to the final text,11 before it is sent for Royal Assent.

11.Over the last three decades the number of Acts passed by Parliament has decreased slightly, while the number of pages of Acts has increased.12 Together, the data suggest that while there are slightly fewer bills each year, they may have increased a little in length on average.13 This does not take account of the prevalence of skeleton bills, where much of the detail is left to be filled in by secondary legislation.14

Effectiveness of Parliament’s scrutiny of bills

12.It is not straightforward to assess whether Parliament’s scrutiny of bills is effective. A narrow and politically simplistic interpretation of effective scrutiny might be achieving change to a bill, with amendments to the text a demonstration of Parliament’s impact. This is not, however, the only way in which the scrutiny processes in each House are valuable. For example, testing whether a bill will have the intended policy effect can constitute effective scrutiny without changes being made to the text. The legislative process allows for scrutiny to have other consequences—debates on a bill may prompt changes to the implementation of its policy by ministers, perhaps in the design of secondary legislation that follows a bill or the guidance issued by ministers delivering the policy. It may highlight issues to the Government, to other Members of Parliament, or to the media and public more broadly. Such outcomes are all valid manifestations of an effective scrutiny process.

13.Daniel Gover, Research Fellow, Queen Mary University of London, said that Parliament’s effectiveness was “very difficult to assess. The effectiveness of scrutiny is multifaceted. Some of the dimensions of effectiveness are subtle and hidden and, by their very nature, difficult to measure, but they are nevertheless very important.”15

14.Witnesses who had participated in the legislative process said that Parliament’s scrutiny was moderately effective. Lord Newby, Leader of the Liberal Democrats in the House of Lords, gave Parliament “a beta in terms of the way it scrutinises legislation.”16 Baroness Smith of Basildon, Shadow Leader of the House of Lords, thought that the House of Lords does “a fairly good job of looking at the detail of legislation … but there is room for improvement”.17

15.In contrast Daniel Greenberg, a former Parliamentary Counsel, argued that scrutiny of legislation by Parliament, especially the Commons, was “high level and political”,18 and that the description of “line-by-line scrutiny” was not “anything of the kind. It is quite a false claim.”19 Lord Hope of Craighead, Convenor of the Crossbench Peers, was concerned by the level of scrutiny undertaken in the House of Commons: “Thank goodness we have a second chamber. I really feel if we were left with the House of Commons in the way it organises itself for the present we would be in serious trouble because so much is left untouched.”20

16.Other witnesses considered the public’s perception of Parliament’s impact on legislation. Dr Louise Thompson, then Lecturer in British Politics at the University of Surrey, said that Parliament “generally performs legislative scrutiny well” but “its work and impact often go unseen and underestimated.”21 Professor Meg Russell, Director of the Constitution Unit at University College London, and Mr Gover concurred that, “Despite the relatively public nature of the process (in comparison to Government decision-making) much of this [Parliament’s] influence is barely visible, thanks to ‘anticipated reactions’, the subtle interrelationships between different groups, and the innumerable private meetings in which policy is discussed and concessions negotiated.”22 We discuss public engagement with the legislative process further in chapter 4.

17.The complexity of the legislative process and the different measures by which scrutiny may be judged preclude a definitive, objective assessment of its effectiveness. It is clear, however, that there are areas for improving the way Parliament scrutinises bills and we consider these in this report.

Scrutiny in each House

18.The approaches of the Commons and the Lords to scrutinising legislation differ. While the main stages for considering bills are formally the same in both Houses (see Figure 1), each House has its own style, mechanisms and conventions for scrutinising legislation. For example, committee stage in the House of Commons predominantly takes place in a committee room, away from the Chamber,23 on a set timetable, with the membership of the committee chosen by the party whips and evidence sessions prior to formal scrutiny of the bill itself. In the House of Lords, committee stage, whether in the Chamber or Grand Committee, allows all members to participate and has no time limit, meaning that all amendments can be debated; but no evidence is taken. Another difference is that at third reading a bill cannot be amended in the House of Commons, while it can be in the Lords in some circumstances, such as to give effect to a commitment made by the Government at an earlier stage. These differences are the consequence of the composition of each House, the demands of and on their members, the history and culture of each chamber, and how each perceives its role and priorities.

Figure 1: The Legislative Process

A diagram showing the passage of Bills through both Houses, from proposal to Royal Assent.The graphic does not take into account the differences in the mechanics of the stages in either House, nor extra stages in the House of Commons that can apply under the requirements of the ‘English Votes for English Laws’ procedures. For an explanation of ping-pong, see paragraph 60.

19.There was broad agreement among witnesses that these different but corresponding roles were valuable in the scrutiny process. Lord Lisvane, former Clerk of the House of Commons, told us that he had “long been an enthusiast of bicameralism in the sense of complementarity and not competition, because two chambers are doing similar things but in very different ways. The sum of parliamentary influence thereby exerted is much greater than if the two chambers were competing.”24

20.Professor Meg Russell described how:

“To a large extent, they [the processes in each Houses] complement each other … the two chambers are procedurally different in some respects; for example, on where the committee stage is taken and on whether there is selection of amendments. Their memberships are extremely different, and that is a huge complementarity … The select committee systems in the two chambers are different and very complementary. This committee [the Constitution Committee] does not exist in the House of Commons. It and the DPRRC [Delegated Powers and Regulatory Reform Committee] play enormously important roles in the process.”25

21.While the two Houses operate superficially similar procedures for bill scrutiny, they have different, complementary roles, which contribute to the overall effectiveness of the legislative process. In the rest of this chapter we consider how both Houses scrutinise bills and how the procedures of the House of Lords might be developed to strengthen its scrutiny role.

Time available for scrutiny

Timetabling in the Commons and its consequences for the Lords

22.A number of witnesses expressed concern about the time available for scrutinising bills in the House of Commons as a result of programming (see Box 1). Dr Ruth Fox, Director of the Hansard Society, said that the limited time available for consideration of amendments in the Commons at report stage was “particularly problematic”, especially for big bills or those which have been significantly amended during the preceding public bill committee stage: “[It] means that a significant number of amendments, groups and even schedules sometimes go entirely unconsidered … you can see how and why members, on both sides, get very frustrated about the time available.”26 Daniel Greenberg expressed similar concerns: “Programming represented a key change … which is, ‘We will spend two hours on these clauses and, irrespective of how many technical issues there are, we will move on’.”27

23.Programme motions usually determine the time at which scrutiny of a bill will conclude but they do not specify when proceedings on a bill will commence. Unless a motion is passed to set a minimum number of hours for consideration, the amount of time available for scrutiny can be reduced by other business in the Commons Chamber, as the end of the day’s sitting is a set time which is rarely varied. The growing amount of time spent on urgent questions, which have increased in number over the past decade,28 and ministerial statements, has eaten into the time for scrutiny of bills and made the issues with programming more acute.

Box 1: Programming in the House of Commons

Programme motions are normally moved by the Government in the House of Commons after a bill has received a second reading. If the Commons agrees to the motion, then the maximum amount of time MPs have to scrutinise the bill is set, irrespective of whether new issues arise during its passage or substantial new material is added. Subsequent programme motions may be moved to amend the timetable, but only by the Government.

The House of Commons has applied timetable motions, sometimes informally known as “guillotines”, to the stages of some bills since 1887, usually when the Government considered that a bill was not progressing quickly enough.29 In the first session of the 1997–2001 Parliament, programming—the timetabling of all bills—was introduced on a pilot basis. In a memorandum to the Modernisation Committee of the Commons, the then Government set out why programming was necessary: “Legislation must receive the attention and discussion it requires but the Government needs to secure the passage of its business within a reasonable time if Parliament approves it. Delay has been seen as the weapon of the Opposition and a majority the weapon of the Government.” Programming was opposed in principle by the Conservative Party as the then Official Opposition, but with some technical changes, programming was adopted in standing orders in October 2004.30 Programming has not been significantly changed or replaced by subsequent governments. In practice, the Official Opposition usually agrees a proposed timetable on the basis that its amendments will be prioritised for debate.

The Reform of the House of Commons Committee, chaired by Tony Wright MP and reporting in 2009, criticised programming, particularly at report stage in the Commons: “The single greatest cause of dissatisfaction which we have detected with current scheduling of legislative business in the House arises from the handling of the report stage of government bills … The report stage is the only opportunity for the House as a whole to engage with proposed legislation and debate and decide its principal provisions in any detail.”31 This led the committee to conclude that there is “often insufficient” time for debate and consideration of new material at report stage.

There is no equivalent procedure in the House of Lords. The Government is unable to constrain the amount of time for scrutiny of bills, with a suggested allocation of time usually determined through agreement between the usual channels.32

24.In contrast to the House of Lords, where it is possible for every amendment that is tabled to be debated, in the House of Commons the Speaker selects which amendments will be considered at report stage. When deciding which and how many amendments to select, the Speaker may bear in mind the time available for debate, which in most cases will have been set by a programme motion; but he does not have to give reasons for his selection decisions. On longer or politically controversial bills it is highly unlikely that most, let alone all, amendments tabled by MPs at report stage in the Commons will be debated.

25.Recognising these constraints on scrutiny in the Commons, Lord Lisvane drew attention to a debate in which Lord Butler of Brockwell had asked the Government to include statistics on the time spent on parliamentary proceedings on each part of an Act in the explanatory notes on Acts of Parliament.33 Lord Butler said:

“this is purely factual information, already gathered and easily available. The purpose of publishing it is, of course, to bring to light where parliamentary scrutiny has been inadequate and, by doing so, to encourage more effective procedures. I believe that neither Government nor Parliament would want it to be shown that legislation had been passed by Parliament with ineffective scrutiny. If the result was that more parliamentary time was given to a smaller volume of legislation, that would be no bad thing.”34

26.Responding to this debate for the Government, Lord Young of Cookham said that the Government had no plans to publish such figures:

“but that does not, of course, rule out further consideration of the proposition … The reason we do not is, first, because the explanatory notes are designed to help the readers of legislation understand its legal effect. Secondly, the notes to Acts already include the Hansard column references to debates at each stage, so the Act is permanently accompanied by a record of how each House scrutinised the legislation in its various stages.”35

27.We are not persuaded by the minister’s response. It would assist members of the House of Lords in their scrutiny of bills to know where the consideration of bills may have been truncated in the Commons. This includes clauses of or schedules to a bill that were not debated during committee stage due to lack of time and parts of a bill that MPs had sought to amend at report stage but were unable to do so due to lack of time.

28.We recommend that the Procedure Committee considers asking the House of Lords Library, in their briefings on bills brought from the Commons, to highlight the clauses and schedules that were not debated due to lack of time at committee and report stages. We suggest this should be trialled for a number of bills in a single session and an evaluation should be conducted of the value it provides to members.

Self-regulation in the House of Lords

29.In contrast to the House of Commons, the House of Lords does not programme consideration of bills: every clause and amendment can be debated should members wish to do so. The Government Whips’ Office circulates a list of the parts of a bill and related amendments that are anticipated to be debated during each day’s sitting, but it is informal guidance for the House rather than the imposition of limits. Sir David Beamish, former Clerk of the Parliaments, said “A particular strength in the House of Lords is the flexibility of the proceedings.”36 He added that it meant that the availability of time “was not a big factor” in the quality of scrutiny in the Lords.37

30.Both the Leader and the Shadow Leader of the Lords said that the arrangement of legislative business in the Lords worked reasonably well. Baroness Smith of Basildon suggested that the system “works quite well, but we have our moments. What is helpful, as long as it is not too rigid, is the calendar we now have, which says on which days we are likely to debate which amendments in the course of a bill. Most colleagues find that quite helpful.”38

31.The Leader of the House of Lords, Baroness Evans of Bowes Park, agreed:

“Nothing is perfect, but I feel it works quite well and the flexibility that we have means that we can try to adapt and, as I say, extend hours and extend days if we wish. We try to publish business in advance. We have schedules of clauses we are looking to debate in advance. We try as well to have information available so that those backbenchers who are interested in contributing can do so.”39

32.The system of self-regulation in the House of Lords largely works well in its consideration of bills. We welcome the efforts of the usual channels to arrange business to assist the whole House.

Intervals between stages of a bill

33.The two Houses take different approaches to the minimum amount of time that should elapse, in normal circumstances, between each stage of a bill. The House of Commons has set no specific expectations; however the Cabinet Office in its Guide to Making Legislation outlines a “conventional minimum timetable … that can be expected for a bill of reasonable length and complexity.”40 In contrast, the Lords has agreed “minimum intervals between stages of public bills [that] should be observed.”41 The timings for each House are in Table 1.

Table 1: Minimum intervals between the stages of a bill in each House

Minimum interval

House of Commons

House of Lords

Between first and second reading

Normally two weekends following publication

Two weekends

Between second reading and committee

One week if second reading is on a Monday or Tuesday, ten days if second reading is on a Wednesday, Thursday or Friday

Fourteen calendar days

Between committee and report

As early as a week after committee ends, but depends on urgency and parliamentary time

Fourteen calendar days—for all bills of considerable length and complexity

Between report and third reading

Usually takes place immediately after report

Three clear sitting days

Source: Cabinet Office, Guide to Making Legislation (July 2017): [accessed 1 July 2019] and House of Lords, Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, 2017.

34.Witnesses suggested that there should be more time between the stages of bill scrutiny in the Commons. Daniel Greenberg said that there should be longer intervals to allow more stakeholder and public engagement with parliamentarians.42 Dr Thompson argued:

“the number of sitting days between stages in the Commons is too short. In particular, there may only be a few days between the end of the oral evidence sessions and the beginning of line by line scrutiny. This gives little time for MPs to digest the evidence they have heard and to table relevant amendments in time for the line by line scrutiny. The same applies to the number of sitting days between second reading and committee stage and between committee and report. The period between committee and report is an extremely important one in the Commons. Where a minister has given an undertaking in PBC to reconsider or ‘think again’ about an amendment, the author of the amendment will usually spend time lobbying the minister (formally or informally) and may meet with the minister and other interested groups. Increasing the number of days between committee and report would maximise the opportunities for this type of dialogue to take place.”43

35.The then Leader of the House of Commons, Andrea Leadsom MP, said the Government was in a “no-win” situation in relation to the speed with which bills progress:

“The irony is that if you have a long period, people criticise you, ‘Where is it?’, and if you have a short period, they criticise you for having a short period. So there is no absolutely right answer, but there needs to be sufficient time for parliamentarians to properly consider the issues, and the more complex they are, the greater the tendency to give more time.”44

36.In the Lords, the Leader of the House explained: “We do everything we can to stick to minimal intervals … The only time we have squashed those intervals has been with agreement through the usual channels, which has been for instance talking to committees such as yours, say, on Northern Ireland, and on Article 50.”45 Furthermore, the Leader of the House was “somewhat sceptical” about the need to change a system that in her view struck the “right balance”.46

37.Minimum intervals provide a measure of predictability between stages of a bill, allowing the Government to take forward legislation in a timely fashion as well as provide sufficient opportunity for Members of Parliament to prepare for each stage of scrutiny. We accept that there may be occasions where the time between stages needs to be reduced, but this should happen only in exceptional circumstances and with the agreement of the usual channels.

38.We considered the circumstances in which it may be reasonable for minimum intervals not to apply in our report, Fast-track legislation: constitutional implications and safeguards, in 2009. We concluded that legislation should be fast-tracked only when it was “a proportionate, justified and appropriate response to the matter in hand” and that “Fundamental constitutional rights and principles” should not be jeopardised.47 We recommended that, for legislation subject to fast-tracking, the Government should set out its justification for fast-tracking in the explanatory notes to the bill.48 We welcome the fact that the Cabinet Office’s Guide to Making Legislation now requires the justification for fast-tracking to be included in a bill’s explanatory notes. We note that the Government has observed it in respect of most recent bills that have been fast-tracked.

39.We observed in our 2009 report that “An analysis of fast-tracked primary legislation in recent years reveals one outstanding trend—the statistical preponderance of legislation relating to Northern Ireland.”49 This trend has continued and, since the start of this part of our inquiry in early 2018, seven bills relating to Northern Ireland have passed through both Houses in an expedited process. We regret that legislation relating to Northern Ireland has regularly been fast-tracked. This has become common not just for bills which might be required to address urgent or unforeseen problems, but for routine and predictable matters such as budgetary measures. The political stalemate in Northern Ireland has led to an absence of a functioning Executive and a democratic deficit. Fast-tracking bills relating to Northern Ireland reduces further the scrutiny these measures should receive. Routinely fast-tracking in this way is unacceptable, unsustainable and should only be used for urgent matters.

Business management

40.Business in both Houses is arranged through the “usual channels”, who negotiate decisions on the timing of stages of bills and the amount of time required for debate. This is unusual in comparison to other legislatures, including the devolved legislatures in Scotland, Wales and Northern Ireland. In our 2004 report we recommended that “consideration be given to the establishment of business committees at Westminster.”50 In 2009, the Reform of the House of Commons Committee made a similar recommendation, envisaging “a House Business Committee which would be obliged to come up with a draft agenda for the week ahead, working through consensus, with the Chairman of Ways and Means (the Deputy Speaker) in the chair. The agenda would then be put to the House for its agreement.” This committee would comprise representatives of the Government and Opposition, as well as members of the newly-created Backbench Business Committee.51

41.A House business committee was suggested by some witnesses to this inquiry as a mechanism to ensure better management of time in each chamber for bills. Mark Ryan, Senior Lecturer in Constitutional and Administrative Law at Coventry University, said:

“The organisation of the legislative timetable is (inevitably) dominated by the Government of the day as there is a clear imbalance between the Government and the House of Commons in favour of the former. It is contended that perhaps a cross-party Commons Chamber committee (involving all elements of the House) should be established to agree and regulate the business of public bills.”52

42.There was, however, scepticism from other witnesses about the efficacy of such a body, given the realities of politics, parliamentary arithmetic and the practicalities of arranging business. Dr Fox said that one risk was:

“in practice, the usual channels’ negotiations will still go on behind the scenes. The committee will then sit. You will have transparency and accountability about what decisions it has made, but not necessarily about how and why it arrived at those decisions. I do not think that opening it up in that way will necessarily solve the problem.”53

Professor Russell, referencing her experience as specialist adviser to the Reform of the House of Commons Committee and her research on business committees in other legislatures, said that “these committees are largely rubber stamps.”54

43.Dr Fox suggested that a Legislative Standards Committee might be able to make recommendations on the amount of time a bill required, giving consideration to the complexity and importance of a bill and any consultation or pre-legislative scrutiny that had been undertaken:

“We have argued for a more radical approach … It goes back to the whole concept of trying to push the Government to do more upstream, by having a better culture of preparation of bills and better provision of explanatory information, and by thinking about the procedural approach to bills. This committee [the Constitution Committee] and other committees previously have endorsed a Legislative Standards Committee, of which we have been a big supporter. When that committee first gets the bill, it can look at the nature of the legislation, its content and scope, the nature of the materials that have been presented by the Government and the quality of the business case that has been made. It will then be well placed to make decisions about the allocation of time at the various stages to consider the legislation.”55

44.The concept of applying a set of legislative standards to Government bills, perhaps through establishing a legislative standards select or joint committee, is not new. The principle has been endorsed by a series of select committees and other institutions over more than a decade56 and we recommended as much in our first report on this inquiry, Preparing Legislation for Parliament.57

45.Although establishing a business committee in either House would engage a wider range of members and political groupings in the management of time, it risks being little more than a rubber stamp, with the decisions on scheduling business made in private in the usual channels beforehand.

46.Our first report on this inquiry, Preparing Legislation for Parliament, recommended the establishment of a Legislative Standards Committee to ensure that all bills are sufficiently prepared prior to being presented to Parliament. We reiterate this recommendation 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.58 Such a committee would be well placed to assess the amount of time a bill might need for scrutiny and it would constitute a mechanism by which backbenchers could provide their view on the time required to the usual channels. While the recommendations of a Legislative Standards Committee on bill timetabling would not be binding, the usual channels would be cognisant of the political risks of departing from the recommendations of a cross-party committee. The existence of a Legislative Standards Committee would also encourage the Government to ensure that bills are thoroughly prepared before introduction to Parliament to avoid the risk of critical reports and potential delays.


47.As a bill progresses through each House amendments may be tabled to it. Dr Thompson’s research showed that, since 2000, the number of amendments tabled to bills in the House of Commons had increased. This was the case both for amendments tabled by MPs (with an average of around 125 tabled per bill) and by the Government. She noted that “The likelihood of amendments drafted by opposition or backbench MPs being accepted has fallen dramatically”, but the “Government is tabling more amendments to its own legislation” if it agreed with a proposition or if it risked defeat on the issue.59

48.The Government seeking to amend its bills may be a welcome indicator of responsiveness to Parliament’s scrutiny of bills; however the Government may also seek to add substantial new clauses or even policies to a bill part way through its passage—which may reflect shortcomings in the preparation of a bill prior to its introduction. Such additions pose a challenge for effective scrutiny as there may be few stages left in the legislative process for the issues to be considered. A stark example of this occurred during the passage of the European Union (Withdrawal) Bill (now the 2018 Act). Significant provisions relating to the transfer of competences from the EU to the devolved institutions were added as Government amendments in the Lords and received little scrutiny in the House of Commons. Similarly, during the passage of the Offensive Weapons Bill (now the 2019 Act), new provisions on Knife Crime Prevention Orders were added by the Government at report stage in the Lords and could be debated only briefly by MPs during Commons Consideration of Lords Amendments.

49.Recommitment or a fresh second reading were suggested as possible mechanisms for ensuring that new clauses received the scrutiny they required. The Companion to the Standing Orders of the House of Lords sets out that bills may be recommitted, if the House agrees, any time between committee and third reading. This can be done for bills in their entirety, or in respect of certain clauses or schedules. “This course is adopted when it is desirable to give further detailed consideration to the bill or certain parts of it without the constraints on speaking which apply on report and third reading; for instance:

50.Daniel Greenberg suggested “a rule that if you want to put in new material”, rather than amend existing proposals in a bill, “you have to recommit and possibly have a re-second reading … if you do not do that, just accept that the theory that all significant policy has been debated at second reading is not true.”61

51.Lord Newby suggested recommitting a bill “if there is a policy change … Report stage is not a time for the kind of discursive discussion that you might want if it is a big new policy development. On any one day on report, not least because of potential votes and timing of votes, there is a lot of pressure to keep debate very short. Recommittal where there is a big policy change is only sensible.”62

52.The then Leader of the Commons and the Leader of the Lords did not offer a view on recommitting all or part of a bill, but emphasised the preparation that went into bills before they were introduced. On the subject of amendments, the Leader of the House of Lords said:

“Some government amendments come forward because of an identified deficiency that, frankly, we should have worked out beforehand, or, indeed, because as a result of discussions in this House we want to bring them forward to address some of the concerns. Sometimes Government amendments are quite welcomed by peers because it shows that we are listening and trying to improve things or put issues in. But we all take your point about it not being acceptable that late in the day new issues arise.”63

53.The addition of large numbers of Government amendments late in a bill’s passage in response to Parliament’s scrutiny is usually welcomed. It is not, however, normally appropriate to insert new or substantial policy content into a bill at a late stage, as this may result in inadequate parliamentary scrutiny. This is particularly problematic when substantial provisions are inserted by the Government in the House of Lords to a bill that has completed its Commons stages, as the new content can then be considered by the Commons only during ping-pong, with a programme motion usually allowing little time for debate.

54.Where the House of Commons only sees substantial new policy material for the first time during consideration of Lords amendments, it may wish to consider how to ensure there is sufficient time to scrutinise those provisions.

55.We recommend that, where the Government adds substantial new policy material to a bill late in its passage, the bill—or at least the new provisions—should be re-committed to allow for additional debate and scrutiny.

Split committal

56.Another option for tailored scrutiny is split committals, whereby different parts of a bill are treated to different forms of committee consideration. In the House of Commons, this might mean the consideration of politically controversial aspects of a bill in Committee of the whole House in the Chamber, while more technical provisions are considered in a public bill committee. In the Lords, this may be the consideration of part of the bill in the Chamber, while the rest of the bill is considered in Grand Committee.64

57.Lord Lisvane suggested that split committals may ameliorate some of the constraints of programming in the Commons:

“Earlier in the stages of programming, there was the possibility of split committals, for which I was always an enthusiast, whereby you identified the big things and dealt with them in a Committee of the whole House, leaving the Public Bill Committee to do the bulk of the Bill—but that never caught on. The classic is a Finance Bill, which is almost always a split committal.”65

58.A variation on split committal was used for the Trade Union Bill (now the 2016 Act),66 as the Shadow Leader of the House of Lords explained:

“Clauses 10 and 11, in particular, were quite controversial. What we proposed, in my motion to the House, was that we set up an evidence-taking select committee, not to delay the bill in any way, but to run parallel to it. It was quite interesting. The House agreed, and the committee was established on a cross-party basis. Even some members who opposed it came to me later and said, ‘That worked well’. In the House, one of the Conservatives on the committee, who had a very firm view, both before and after, on the bill, said, ‘I didn’t realise how little I knew about trade unions. I have learned a lot more by having that process’. Our ability to be a bit creative in gathering information is good.”67

59.As part of a flexible and tailored approach to scrutiny, the Government and the other participants in the usual channels should consider the benefits of using split committals more frequently. We note that it is open to individual members of the House of Lords to propose alternative arrangements for commitment through amendments to a commitment motion.

Ping-pong and Reasons Committees

60.Ping-pong is the informal term used to describe the process68 for a bill passing between one House and the other until agreement is reached on amendments that have been made to it. If, during ping-pong, one House disagrees with an amendment proposed by the other House without suggesting an alternative it gives a reason for its disagreement. A Reasons Committee is temporarily established to decide what will be the reason. The rationale is that one House should, when in disagreement with the other House, always offer the other House a proposition for it to consider—whether that be an amendment or a reason.

61.Witnesses suggested that Reasons Committees seldom offered useful reasons. Lord Lisvane said: “after many years of involvement in Reasons Committees in one way and another, I cannot think of a single example of when a Reasons Committee has put together a convincing reason for anything.”69 Baroness Smith of Basildon did not think it was “adequate”, because “It seems to me that now the reason is, basically, ‘We don’t like it’, with not much more detail.”70 The then Leader of the House of Commons indicated that she would be open to suggestions, if the Committee “were to propose an alternative or better way”.71

62.Reasons Committees may previously have played a valuable role in facilitating communication on bills between the two Houses, but with Hansard available within hours of a debate taking place and recordings of proceedings accessible on a rolling basis, such a committee is no longer required to provide members of one House with an insight into the reasons for a decision in the other.

63.That said, under present procedures a reason provides an important mechanism for communicating Commons financial privilege—an issue we have explored previously and which has on occasion been the subject of controversy.72 When the Commons considers Lords amendments to a bill the Speaker identifies which of the Lords amendments involve Commons financial privilege. If the Commons disagrees to any of those amendments, it offers a reason in standard form which alludes to its financial privilege. The practice of the Lords is then not to insist on that amendment nor to offer a further amendment which would invite the same response.73 If changes are made to the reasons process, it is likely that the Commons will continue to want a straightforward way—such as citing financial privilege in the wording of the motion to disagree to Lords amendments—of communicating to the Lords when it considers a Lords amendment to which it disagrees involves financial privilege.

64.Reasons Committees serve no practical purpose and should be abolished.

Select committee involvement in the legislative process

65.Select committees in the UK Parliament, unlike in many other legislatures,74 have no formal or routine role in the passage of a bill. Bills are not referred to them as part of the legislative process and their assent to them is not required.

66.Two committees in the House of Lords—this Committee and the Delegated Powers and Regulatory Reform Committee—and the Joint Committee on Human Rights scrutinise bills and may report on them. There is no requirement on the Government to accept the recommendations of any such reports. The Cabinet Office’s Guide to Making Legislation references the work of these committees and suggests, for example, that there is “benefit in departments anticipating the views of the DPRRC when drafting the bill to avoid the need for amendments.”75 Departmental select committees in the Commons may examine and comment on bills76 that fall within their remit separately from the formal legislative process, though this does not happen for every bill and will depend on the interest of a committee’s membership and the inquiry work with which it is currently engaged.

67.Professor Russell and Daniel Gover said that “select committee involvement can be very beneficial to the quality of legislative scrutiny … our analysis found that around one in six changes agreed to the 12 bills [analysed in their study] involved some kind of select committee influence.”77 Professor Russell noted that there had been calls for select committees to be formally involved in the legislative process, but suggested that this could be detrimental to the other work that they undertake:

“In most Parliaments, where such committees are taking legislation, not only are they likely to be more politicised, but the ability of the committee to set its own agenda can be crowded out by constantly having to respond to proposals coming from the Government. One of the strengths of our select committee system is that the committees absolutely control their own agendas and can choose what topics to investigate.”78

68.The Chartered Institute of Taxation suggested more effective liaison between departmental select committees and public bill committees in the Commons, “so that concerns identified by the former are pressed more by the latter”,79 aiding the quality of legislative scrutiny.

69.Select committees’ strength comes from their ability to use their subject-matter expertise in a non-partisan manner, and this gives authority to their reports. Formal involvement in the legislative process would risk undermining their ability to do 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. The benefit select committees can bring to the legislative process is in scrutinising draft bills and, where they consider it appropriate, reporting to the House during a bill’s passage.

11 Subject to the Parliament Acts 1911 and 1949.

13 The change in the length of legislation may also be affected by the drafting style of Parliamentary Counsel. For example, a preference for shorter sentences may make legislation easier to read, but will lead to more white space on the page and thus longer Acts in terms of page length, if not necessarily in word count. In 1999 there were changes to the format of Acts which may have resulted in a modest increase in page length.

14 Constitution Committee, The Legislative Process: The Delegation of Powers (16th Report, Session 2017–19, HL Paper 225), paras 51–58

15 Q 151 (Daniel Gover)

16 Q 183 (Lord Newby)

17 Q 193 (Baroness Smith of Basildon)

18 Q 179 (Daniel Greenberg)

19 Q 176 (Daniel Greenberg)

20 Q 183 (Lord Hope of Craighead)

21 Written evidence from Dr Louise Thompson, University of Surrey (LEG0058)

22 Written evidence from Professor Meg Russell, University College London, and Daniel Gover, Queen Mary University of London (LEG0061)

23 The main exceptions being bills of major political or constitutional significance, Finance Bills, emergency bills and uncontroversial bills which are unlikely to attract amendments. Committee stage on these bills is usually taken in the Commons Chamber, in Committee of the whole House (though Finance bills are usually split between Committee of the whole House and public bill committee).

24 Q 168 (Lord Lisvane)

25 Q 156 (Professor Meg Russell)

26 Q 154 (Dr Ruth Fox)

27 Q 177 (Daniel Greenberg)

28 House of Commons Library, Number of Urgent Questions in the House of Commons since 1997, 22 May 2019

29 House of Commons Library, Modernisation: Programming of Legislation, 19 May 2008

30 House of Commons Procedure Committee, Programming (Third Report, Session 2013–14, HC 767)

31 Reform of the House of Commons Committee, Rebuilding the House (First Report, Session 2008–09, HC 1117), paras 109–110

32 “The usual channels describes the working relationship of the whips from the different parties and the leaderships of the Government and Opposition parties. The term refers to arrangements and compromises about the running of parliamentary business that are agreed behind the scenes.”

33 Q 171 (Lord Lisvane)

34 HL Deb, 18 January 2017, col 283

35 HL Deb, 18 January 2017, cols 293–294

36 Q 168 (Sir David Beamish)

37 Q 170 (Sir David Beamish)

38 Q 196 (Baroness Smith of Basildon)

39 Q 208 (Baroness Evans of Bowes Park)

42 Q 177 (Daniel Greenberg)

43 Written evidence from Dr Louise Thompson, University of Surrey (LEG0058)

44 Q 209 (Andrea Leadsom MP)

45 Q 209 (Baroness Evans of Bowes Park)

46 Ibid.

47 Constitution Committee, Fast-track Legislation: Constitutional Implications and Safeguards (15th Report, Session 2008–09, HL Paper 116), para 16

48 Ibid., para 185

49 Ibid., para 107

50 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173), para 121

51 Reform of the House of Commons Committee, Rebuilding the House (First Report, Session 2008–09, HC 1117), summary

52 Written evidence from Mr Mark Ryan (LEG0059)

53 Q 154 (Dr Ruth Fox)

54 Q 154 (Professor Meg Russell)

55 Q 154 (Dr Ruth Fox)

56 House of Lords Leader’s Group on Working Practices, Report (Session 2010–12, HL Paper 136), para 97; House of Commons Political and Constitutional Reform Committee, Ensuring standards in the quality of legislation (First Report, Session 2013–14, HC 85), chapter 4

57 Constitution Committee, The Legislative Process: Preparing Legislation for Parliament (4th Report, Session 2017–19, HL Paper 27), para 182

58 The Cabinet sub-committee that considers “issues relating to the Government’s parliamentary business and implementation of its legislative programme”: [accessed 1 July 2019]

59 Written evidence from Dr Louise Thompson, University of Surrey (LEG0058)

61 Q 178 (Daniel Greenberg)

62 Q 186 (Lord Newby)

63 Q 210 (Baroness Evans of Bowes Park)

65 Q 170 (Lord Lisvane)

66 Technically the bill was not subject to a split committal. Rather an ad hoc committee was established to consider clauses 10 and 11 of the bill (and surrounding issues) alongside the normal committee of the whole House which was considering the whole bill. Unlike a select committee to which a bill has been committed, this ad hoc committee did not have power to amend the bill.

67 Q 193 (Baroness Smith of Basildon)

68 Formally known as Commons Consideration of Lords Amendments (and Reasons) and Lords Consideration of Commons Amendments (and Reasons).

69 174 (Lord Lisvane)

70 Q 194 (Baroness Smith of Basildon)

71 Q 211 (Andrea Leadsom MP)

72 Constitution Committee, Money Bills and Commons Financial Privilege (10th Report, Session 2010–12, HL Paper 97

73 See Constitution Committee, Money Bills and Commons Financial Privilege (10th Report, Session 2010–12, HL Paper 97); Joint Committee on Conventions, Conventions of the UK Parliament (Report of Session 2005–06, HL Paper 265–I), para 252

74 Q 157 (Professor Meg Russell)

75 Cabinet Office, Guide to Making Legislation (July 2017), para 16.17: [accessed 1 July 2019]

76 Commons select committees may also undertake pre-legislative scrutiny of draft bills that relate to their remit.

77 Written evidence from Professor Meg Russell, University College London, and Daniel Gover, Queen Mary University of London (LEG0061)

78 157 (Professor Meg Russell)

79 Written evidence from the Chartered Institute of Taxation (LEG0060)

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