Chapter 4: Public understanding and engagement
Public understanding of the legislative process
97.Earlier this session the Select Committee on Citizenship and Civic Engagement concluded: “Active citizens are crucial for the health of our democracy … not only in the process of selecting who governs them but also in the continuing conversation on how they should be governed.”105 One aspect of the public’s understanding and involvement in governing is engagement with the legislative process.
98.Engaging the public with the legislative process is a challenge, as many of our witnesses suggested it was opaque to those not closely involved. Professor Russell said that even though legislative proceedings were easily and widely available, they were hard to follow as much of Parliament’s influence cannot be seen because it happens in private.106 Dr Thompson agreed: “Reading Hansard accounts of debates in either chamber does not necessarily convey to outsiders the degree of dialogue which has taken place between Parliament and Government.”107 Mark Ryan suggested that “One of the barriers is the inherent complexity of parliamentary legislation, which to some extent is inevitable. The 2017–18 European Union (Withdrawal) Bill is a case in point, as its complexity and legal nuances are without doubt largely unfathomable to the general public.”108
99.Professor Leston-Bandeira said that Parliament’s educational resources were good, but were geared towards general teaching of the legislative process rather than assisting with engagement in bills under consideration. 109
100.Lord Newby suggested that Parliament should rethink how issues are publicised, from a technical to a thematic approach:
“Young people who are interested in an issue, such as the environment, think, ‘I want to follow what Parliament is doing on the environment’, because that is the way people get engaged, is it not? Very few people are interested in everything we do, so with a bit of luck they might be interested in one thing we do, or one area—animal welfare or whatever … it would be perfectly possible to have a Parliament environment stream and a Parliament animal welfare stream, so that people just know what is going on, even if they are not at all interested in the technicalities of how we do stuff.”110
101.The Leader of the House of Lords was positive about how the House promotes itself:
“we should give credit to the improvement in our social media output. The work of the committees is much more accessible and we have made great strides. The parliamentary website now has much better information, with SI trackers and those sorts of things … There is no question that there is more we can do, but I guess part of it is about harnessing social media in particular. I think the teams in both Houses are doing a good job in making sure that we get more people engaged. Obviously we have the Peers in Schools initiative, which is excellent. A lot of work is done to try to help expand the public’s understanding of what happens in here.”111
102.It is essential for Parliament to communicate its scrutiny of legislation effectively to improve understanding of, and engagement with, the legislative process. A bill’s passage through Parliament will inevitably have many technical aspects, but there are opportunities to inform and engage the public with the policy content of legislation.
103.Following discussions with members of both Houses, we believe there is scope to improve the communication of Parliament’s scrutiny of legislation to the public. Parliament needs to present all of its work, not just its scrutiny of legislation, coherently and effectively through topics and subject areas that have wide resonance and appeal. Communicating Parliament’s work by theme rather than process is likely to be more compelling for both the public and the media.
104.We recommend that the House of Lords takes a more proactive approach to promoting its work on legislative scrutiny. The most newsworthy issues—and therefore the issues that would benefit from a balanced and factual explanation—are likely to be those involving some controversy. We recognise that the House’s communications staff may feel constrained in what they feel able to do in such circumstances. We suggest that establishing a more explicit line of accountability for the communications staff would assist them when engaging on controversial issues. We are aware that the Lords Liaison Committee has appointed a working group to explore how the House communicates its committee work; we look forward to its conclusions.
Public engagement mechanisms
105.As representatives rather than delegates Members of Parliament must take the decisions on supporting, opposing or amending bills. These decisions and their work scrutinising legislation are supported by their engagement with the public and stakeholders on individual bills. The main method of engagement with the legislative process for many individuals and organisations is by contacting parliamentarians to brief or lobby them about bills. Sir David Beamish observed that “most members already have pretty big postbags or, should I say, full email inboxes” from the public and stakeholders on legislation.112 Professor Russell and Mr Gover suggested that “engagement in the parliamentary legislative process by external groups is both extensive and important to that process. Opposition frontbenchers, plus backbenchers in general, are very dependent on such groups for briefing material.”113
106.Some witnesses suggested that such engagement favoured larger organisations over smaller ones and individuals.114 The Law Society of Scotland argued:
“It is relatively easy for professional organisations, campaigning bodies, experts in the relevant fields, and those accustomed to civil service and political structures to respond … It is less easy for those whose interaction with Government or legislative authorities is sporadic. There are issues concerning the language used … the assumptions made of prior knowledge and understanding of the constitutional and legislative backdrop militate against a broad range of participation from a broad range of people.”115
107.To broaden engagement opportunities, Professor Leston-Bandeira and Dr Thompson suggested piloting new mechanisms for public engagement. As possible options they pointed to online forums or a facility for the public to propose amendments to bills:
“Technology is key to encouraging public participation in legislative scrutiny. Participants in the public reading pilot were clear that they were more likely to take part in an online discussion because ‘you can express yourself online’ in ways which would be more difficult in another public forum. The ‘public reading stage’ pilot … demonstrated the real value which the public scrutiny of legislation can bring to Parliament. Participants were able to submit genuine accounts of the difficulties they faced, highlighting how the proposed legislation would affect their everyday lives.”116
108.Daniel Greenberg proposed giving members of the public or organisations ‘intervener status’ as bills are considered:
“There was an experiment by the Government at one stage to have comments on a website about legislation. You can guess that it was not desperately successful, for reasonably obvious reasons. The first thing I would do in moving towards intervener status, if we were doing that, would be to allow non-Members of Parliament to table amendments to bills in the same way as people who are not members of a Public Bill Committee can table amendments, and if a member of the Committee wants to take them up, they can. Let everybody table amendments.”117
109.In our 2004 report we said: “Parliament does not act in a vacuum and … it is crucial that the views of informed opinion and those affected by a bill—categories that are not mutually exclusive—are heard when the measure is being considered, rather than simply after it has taken effect.”118 We remain of this view.
110.The existing engagement mechanisms provide opportunities for the public and external organisations to give parliamentarians their views on legislation. These opportunities are more likely to be used by professional organisations, as they tend to have greater knowledge of the law and the legislative process, more resources and more awareness of the opportunities to influence legislation. Parliament’s engagement and outreach work has grown and improved significantly in recent years, and this is expected to continue to enable a more diverse range of voices to be heard.
111.In our report on Preparing Legislation for Parliament, we concluded that pre-legislative scrutiny of draft bills “should be considered an integral part of the wider legislative process.”119 A committee undertaking pre-legislative scrutiny has more time to take a range of evidence than public bill committees in the House of Commons are usually afforded and the Government may be more willing to amend a draft bill than one it has introduced. We reiterate our recommendation that pre-legislative scrutiny should be the norm rather than the exception and that it offers the most effective opportunity for the public and interested groups to influence bills.
112.We emphasise that in the UK’s representative democracy it will be Members of Parliament who determine the final content of any bill, and so any public engagement opportunities must set realistic expectations about potential influence. That said, we encourage greater public engagement in the legislative process and welcome consideration of ideas for new engagement mechanisms.
Evidence-taking on bills
113.In our 2004 report we recommended that every bill should at some stage be subject to detailed examination by a committee empowered to take evidence.120 In 2007, the House of Commons reformed its committee stage process, replacing Standing Committees with public bill committees (PBCs). PBCs are empowered to receive written evidence and hold oral hearings before considering the bill clause by clause. Evidence-taking takes place in PBCs only on bills starting in the Commons—no evidence is taken on Lords starters. While processes exist in the House of Lords for taking evidence on a bill at committee stage,121 they are rarely used.
114.The introduction of public bill committees in the Commons was viewed by witnesses as a positive change to the legislative process. Dr Louise Thompson said that it had:
“strengthened the scrutiny of legislation with regards to the policy knowledge of members and has helped to place MPs on a more equal footing with well-resourced and informed ministers. It has changed the behaviour of MPs and Government in committee … Oral evidence in particular can aid MPs in the drafting of amendments, helping them to identify areas of the bill which require improvement.”122
115.This position was shared by the then Leader of the House of Commons. Reflecting on her time as a backbencher, she said:
“how incredibly valuable it was for a Member of Parliament to actually hear that public evidence session before getting into the nitty-gritty of a bill. Quite often a Member of Parliament will be asked to sit on a bill that they do not necessarily have any expertise in, so to hear from people in that area of expertise is incredibly valuable to them.”123
116.A weakness of the current system, Dr Thompson argued, was the selection of witnesses to provide oral evidence to the PBC:
“Those selected to appear before committees are usually Government-approved witnesses, often described by MPs as ‘the usual suspects’. There is often a degree of repetition, with organisations or individuals giving evidence during a bill’s pre-legislative scrutiny or consultation phase being asked to give further evidence to the bill committee. Written evidence is not always extensive and is again often dominated by well-known organisations. Publicising these calls for evidence further and seeking out a broader pool of witnesses would boost the value of evidence taking and provide alternative perspectives on legislation.”124
117.Witnesses suggested that the House of Lords should take evidence on bills, or at least on those bills which start in the House of Lords and which will therefore not have evidence-taking sessions in the Commons. Dr Ruth Fox suggested that the asymmetry of the current system created a “potential incentive for the Government to put into the Lords certain bills where they do not want public evidence to be taken early. I cannot think of an obvious example, but arguably the incentive is there.”125 She said that, if the Lords were to adopt evidence-taking, it would be an opportunity to:
“look quite carefully at the flaws in the Commons approach to those sessions, to ensure that they are not replicated in this House. There are some significant problems with the amount of time that you get in advance to give the evidence, the amount of time between the evidence sessions and the scrutiny by members directly.”126
118.The Leader of the House of Lords was sceptical about introducing an evidence-taking process in the Lords:
“I believe that only a small number of MPs sit on a public bill committee, and in our House it might curtail the number of peers who are able to get involved … With the expertise and involvement of the Lords, we have a very good voice and the ability to interact with stakeholder and lobby groups. Many of their views get brought to the floor of the House by peers already. It is an idea to consider, but I feel that part of the complementarity between the two Houses is that we have different skill sets within each House and we approach legislation in slightly different ways.”127
119.Remitting a bill to an evidence-taking committee in the House of Lords does not preclude all members of the House taking part in the usual committee stage debate. For example, in 2004 the House of Lords committed the Constitutional Reform Bill (which became the 2005 Act) to a select committee in order that evidence could be taken on it.128 After the select committee reported, the bill began its committee stage debate in the Chamber in the usual manner.
120.Evidence-taking on bills has strengthened Parliament’s scrutiny of bills. It has increased the knowledge of MPs serving on public bill committees and provided an opportunity for the public and external organisations to contribute directly to the legislative process.
121.It is an oddity that for bills starting in the House of Lords there is no evidence-taking in either House. This should be addressed. We recommend that there should be a presumption that evidence is taken at the beginning of committee stage on bills starting in the Lords. There will be exceptions to the presumption of evidence-taking. For example, it might be dispensed with for short, technical bills, or bills which have been subject to pre-legislative scrutiny by a committee of one or both Houses. Procedures already exist in the Lords to allow for evidence-taking,129 however the Procedure Committee may wish to review them to ensure they are suited to more frequent use.
122.If a Legislative Standards Committee is established, as we recommend, it would be well-placed to assess the value of evidence-taking on each bill starting in the Lords.
105 Select Committee on Citizenship and Civic Engagement, The Ties that Bind: Citizenship and Civic Engagement in the 21st Century (Session 2017–19, HL Paper 118)
106 Written evidence from Professor Meg Russell, University College London, and Daniel Gover, Queen Mary University of London (LEG0061)
113 Written evidence from Professor Meg Russell, University College London, and Daniel Gover, Queen Mary University of London (LEG0061)
116 Written evidence from Professor Cristina Leston-Bandeira, University of Leeds, and Dr Louise Thompson, University of Surrey (LEG0057)
118 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173)
119 Constitution Committee, The Legislative Process: Preparing Legislation for Parliament (4th Report, Session 2017–19, HL Paper 27), para 87
120 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173), para 143
121 House of Lords, Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, 2017, paras 8.111–8.122
126 Ibid.
128 HL Deb, 8 March 2004, cols 979–1006 & 1023–1112; HL Deb, 22 March 2004, cols 468–472
129 House of Lords, Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, 2017, paras 8.106–8.122