Summary of conclusions and recommendations
Bill scrutiny processes
1.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. (Paragraph 21)
2.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. (Paragraph 27)
3.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. (Paragraph 28)
4.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. (Paragraph 32)
5.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. (Paragraph 37)
6.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. (Paragraph 38)
7.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. (Paragraph 39)
8.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.130 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. (Paragraph 46)
9.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. (Paragraph 54)
10.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. (Paragraph 55)
11.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. (Paragraph 59)
12.Reasons Committees serve no practical purpose and should be abolished. (Paragraph 64)
13.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. (Paragraph 69)
Information accompanying bills
14.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. (Paragraph 73)
15.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. (Paragraph 82)
16.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. (Paragraph 86)
17.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. (Paragraph 87)
18.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. (Paragraph 90)
19.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. (Paragraph 94)
20.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. (Paragraph 95)
Public understanding and engagement
21.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. (Paragraph 102)
22.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. (Paragraph 104)
23.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. (Paragraph 110)
24.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. (Paragraph 111)
25.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. (Paragraph 112)
26.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. (Paragraph 120)
27.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, however the Procedure Committee may wish to review them to ensure they are suited to more frequent use. (Paragraph 121)
28.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. (Paragraph 122)
130 The Cabinet sub-committee that considers “issues relating to the Government’s parliamentary business and implementation of its legislative programme”: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/795150/20190411-CabinetCommitteesAndImplementationTaskforces.pdf [accessed 1 July 2019]