70.In our 2004 report we welcomed the routine publication of explanatory notes to accompany bills, which had been introduced in the 1998–99 session. We proposed further changes to assist members in their scrutiny of bills, including recommendations that explanatory notes should provide a clear and developed explanation of the purpose of the bill and how, once enacted, it could be judged to have met its purpose. We also recommended that the Cabinet Office should monitor compliance with guidance they provided on the form of explanatory notes.
71.Updates to the Cabinet Office’s Guide to Making Legislation reflected some of those proposals:
“Explanatory notes are required for all bills introduced in either House by a Government minister with the exception of Finance Bills and consolidation bills, for which different explanatory material is provided … Explanatory notes are not intended to be an exhaustive description of the bill or to be a substitute for it. Their purpose is to make the bill accessible to readers who may not be legally qualified or have specialised knowledge of the subject area. Explanatory notes are a vital part of the overall bill package, whether a bill is being introduced into Parliament or published in draft for consultation or pre-legislative scrutiny.”
72.The Guide to Making Legislation stipulates that explanatory notes must be structured in a certain way, following a template. Sections within this template include: overview of the bill; policy and legal background; territorial extent and application; financial implications; and compatibility with the European Convention on Human Rights.
73.Explanatory notes are to assist understanding of the legislation, but they have no legal effect and are not to be relied on for legal interpretation. During the passage of the Trade Bill 2017–19, the Government suggested initially in correspondence with this Committee that the courts could rely on the content of explanatory notes when interpreting the meaning of the Bill. Following further exchanges, the Government accepted and confirmed that this was not the case.
74.In addition to explanatory notes, the Government is required to provide an impact assessment, comprising a full assessment of economic, social and environmental impacts, and a delegated powers memorandum.
75.We heard divided views on the quality and value of explanatory notes, with some witnesses suggesting that they did little more than repeat what the legislation said. The Chartered Institute of Taxation said: “There has been widespread criticism of Finance Bill explanatory notes by tax professionals for often simply repeating what the legislation itself says, without being particularly explanatory.” Sir David Beamish found “Government explanatory memorandums a bit formulaic and that things such as Library briefing notes were likely to be much more helpful.”
76.Other witnesses were more positive. Lord Hope of Craighead, Convenor of the Crossbench Peers, thought that the drafting of explanatory materials was “as good as one can get. One does not want it too long. There could perhaps possibly be a little more policy, but it is in the hands of the department from which the bill comes. It is good.” Lord Newby suggested that they “are a lot better than they were.”
77.The then Leader of the House of Commons recognised that the quality of explanatory materials varied from bill to bill and said that the Government sought to address issues with them prior to publication:
“It is quite clear that best practice can be shared across Whitehall and that is what we are seeking to do. At PBL we certainly have the opportunity for ministers on the PBL Committee to look at the explanatory materials, and we try to ensure that we pick up any problems there rather than waiting until they are identified by House committees or Members of Parliament.”
78.Dr Ruth Fox suggested that a Legislative Standards Committee could scrutinise explanatory materials in order to improve their quality and consistency:
“we [the Hansard Society] have set out the criteria that a Legislative Standards Committee would want to look at and, therefore, what would need to be in the business case, not just the explanatory notes and the delegated powers memorandum, but the range of impact assessments and the legislative account. For example, why there has not been pre-legislative scrutiny? What was the nature of the consultation? If there was no consultation, why not? Has there been legislation in the area before? When was it? Why do you need to legislate? It would look at all those kinds of issues, as well as quite technical things, such as whether we are utilising things such as Keeling schedules. If those are not included, why not? Potentially, there is a great range of information. Ideally, parliamentarians, and certainly the public, would benefit from access to that information. The Government will not do that voluntarily, so we think it could best be achieved through a legislative standards mechanism.”
79.The Better Government Initiative made a similar point and referred to the report of the Leader’s Group on Working Practices which proposed criteria against which explanatory materials might be assessed. In the Better Government Initiative’s view, “effective parliamentary scrutiny of legislation will depend on the establishment of a code of standards agreed by Parliament and Government … and a Legislative Standards Committee to oversee the implementation of the code.”
80.Witnesses expressed concern about the timing of the provision of some explanatory materials by the Government. Baroness Smith of Basildon pointed to the Trade Union Bill 2015–16 as an example of when explanatory materials were not provided by the Government until late in a bill’s passage. She said:
“Impact assessments of legislation are absolutely crucial, and I wonder whether we should be a bit firmer on that. I am quite staggered that bills can go through all stages in the Commons without a proper impact assessment. That is not giving proper consideration in any way, and it implies that the Government have not given proper consideration to the bill before bringing it forward.”
81.The then Leader of the House of Commons sought to reassure: “We are very clear that we expect all the explanatory materials are provided alongside the bill … it is not perfect, but we are absolutely focused on improving quality and timeliness.”
82.If, as we suggest, a Legislative Standards Committee is established, it would examine the explanatory materials that accompany a bill. Such a committee might develop a checklist to assess explanatory materials for quality and consistency, as is the case for the Secondary Legislation Scrutiny Committee’s scrutiny of secondary legislation. If explanatory materials were inadequate, defective or absent, a Legislative Standards Committee could press the Government for improvements.
83.A Keeling schedule is a schedule to a bill which reproduces the provisions of an earlier Act of Parliament and shows the effect of the bill on that Act. An alternative is to provide this information in the explanatory materials to a bill rather than as a schedule to the bill itself. In our 2004 report we drew attention to the benefits of Keeling schedules. We concluded:
“it is a utility that has the potential to improve significantly Parliament’s scrutiny of legislation. It is extraordinarily difficult at times to appreciate the effect of a bill on an earlier Act without seeing the Act and how it is amended by the bill. The explanatory notes provide some help but they are no substitute for looking at the original measure and seeing how precisely the bill changes it. We recognise the cost element and this has to be taken into account, but by itself cost cannot be taken as an insurmountable barrier to enhancing Parliament’s capacity to engage in effective scrutiny of legislation.”
84.Witnesses mostly favoured greater use of Keeling schedules. Lord Lisvane said:
“They are brilliant, and I have been a career-long supporter of them. They are really important not just when there is legislation by reference but when there is legislation by double reference, which is hideously complex and has been a feature of legislation relating to Northern Ireland over the last 10 years or so. A Keeling schedule that operates through the medium of two referential statutes is really valuable.”
85.Daniel Greenberg was more sceptical: “They are of more use to lawyers than most non-legal readers … they are of less importance in these days of electronic updated publication, because most people will go to a service that shows them what the legislation will look like. They are of less importance, but I do not say they are of no importance.”
86.Bills that substantially amend prior Acts can be difficult to follow and for parliamentarians to scrutinise. Keeling schedules, or their equivalent in explanatory materials, can make a significant difference to the accessibility of a bill by setting out clearly the effects of a bill on a preceding statute.
87.We are disappointed that, 15 years after our earlier report, the Government does not routinely produce Keeling schedules (or their equivalent in explanatory materials). Technological improvements in the intervening period should make the production of such schedules comparatively straightforward. We recommend that the Government produces such schedules or explanatory materials for all bills that substantially amend previous legislation.
88.During our inquiry, there were pilots on the Ivory Bill and the Offensive Weapons Bill to allow members of the House of Lords to provide an explanatory statement on amendments that they tabled—a process already established in the House of Commons. The Leader of the House of Lords acknowledged that this was a pilot to “see whether people found it useful and to better understand the additional workload and what was needed to roll this out.”
89.The Procedure Committee in the Lords recently evaluated the effectiveness of the pilot, concluding:
“It is clear that members welcomed the development. Officials familiar with the bills saw particular value in statements on opposition to clause stand part, where the new procedure made it clearer why a member objected to a clause. Other users, less familiar with the intricacies of the bills, saw real value in the statements, which allowed them to understand the amendments at a glance without needing to cross-refer.”
90.The House agreed with the Procedure Committee’s recommendation that explanatory statements on amendments should be rolled out to all bills from the start of the next session. We welcome the use of explanatory statements on amendments to clarify the issues and improve the accessibility of proceedings for members of the House of Lords and the public.
91.In our report Preparing Legislation for Parliament, we noted the potential for technology to improve the accessibility and operation of the legislative process.
92.At present, each bill introduced to Parliament has its own webpage on parliament.uk. This includes copies of the bill as it changes during the legislative process, amendment papers, explanatory materials provided by the Government, links to proceedings (Hansard records of debates in each House and minutes of proceedings) and other contextual information such as briefings provided by the Libraries of either House and letters from ministers. The pages also include general guidance on legislation and associated terminology. These pages are valuable, but for those who are not familiar with the legislative process, navigating the various documents can be a mystifying experience. Baroness Smith of Basildon said:
“For anyone looking from outside, it is a bit of a labyrinth … The website that shows the process of the bill for parliamentarians is very good. You can get to the Hansard for the Lords debate and see the amendments that are tabled. I am not sure that the detail is particularly user-friendly for the public, other than those who are interested in the detail.”
93.Professor Cristina Leston-Bandeira, Professor of Politics at the University of Leeds, suggested integrating Parliament’s different systems—for example, between a bill’s webpage and Parliament TV—would help understanding each bill:
“For instance, Parliament TV is getting a bigger and bigger audience for debates, committee hearings, and that sort of thing. It plays a very important role in opening up what is happening in Parliament. If you want to match that with, say, a piece of legislation, or something else, you have to go to a completely different place. Some of it is the very simple thing of integrating one system with the other, and for someone to be able to click on Lord So-and-So talking about something and go from the video, which is much more about engagement and accessibility, to a bit of the website that explains what the clause is about. That integration might seem to be a simple thing, but it can be quite important.”
94.There is an opportunity to improve the accessibility and comprehensibility of the legislative process by linking up the information about bills online and presenting it more effectively. For example:
95.Parliament’s processes and platforms need to adapt to improve the operation and presentation of the legislative process for members and the public alike. We recommend that the necessary investment is made to deliver improvements to the integration and presentation of parliamentary data.
96.Work is under way to allow for the delivery of some of these recommendations. One important project is the Legislation Drafting, Amending and Publishing Programme (LDAPP). A single piece of software will, in future, be used by Parliamentary Counsel to draft legislation, by the Public Bill Offices of both Houses to publish and amend bills during the legislative process, and by the National Archives to publish Acts of Parliament on the legislation.gov.uk
website. It will also be used for Acts of the Scottish Parliament and for Statutory Instruments. This software should improve the efficiency of the administrative workings of the legislative process, and provide opportunities to improve the way legislation is displayed and linked to other parliamentary material.
80 Constitution Committee, (14th Report, Session 2003–04, HL Paper 173), para 87
81 Cabinet Office, Guide to Making Legislation, (July 2017) [accessed 1 July 2019]
83 See: ; ; ; HL Deb, 6 March 2009, .
84 Written evidence from the Chartered Institute for Taxation ()
85 (Sir David Beamish)
86 (Lord Hope of Craighead)
87 (Lord Newby)
88 (Andrea Leadsom MP)
89 (Dr Ruth Fox)
90 House of Lords Leader’s Group on Working Practices, (Session 2010–12, HL Paper 136)
91 Written evidence from the Better Government Initiative ()
92 (Baroness Smith of Basildon)
93 (Andrea Leadsom MP)
94 Constitution Committee, (14th Report, Session 2003–04, HL Paper 173)
95 (Lord Lisvane)
96 (Daniel Greenberg)
97 (Baroness Evans of Bowes Park)
100 Constitution Committee, (14th Report, Session 2003–04, HL Paper 173), paras 148–153
101 (Professor Cristina Leston-Bandeira)
102 (Lord Newby)
103 National Archives, ‘Legislative drafting, amending and publishing tools’: [accessed 1 July 2019]; House of Lords, , p 14; House of Commons, , pp 23 & 28
104 LDAPP is a partnership between the Parliaments and Governments of the UK and Scotland.