METHOD OF PROCEEDING

  1. We were appointed on 4 June with a specific instruction from the House "to seek to make a first Report to the House before the summer adjournment with [our] conclusions on ways in which the procedure for examining legislative proposals can be improved". In this report we make recommendations on what is universally agreed to be one of the main, if not the main, function of the House.

  2. We were helped by the fact that a great deal of work on this subject has already been carried out by previous Select Committees, notably the Procedure Committee. In addition a major study of the legislative process was carried out by a Commission appointed by the Hansard Society for Parliamentary Government. The Commission, chaired by the late Lord Rippon, published a comprehensive report in 1992[1]. We therefore decided at the outset not to take oral evidence. Written submissions were however received from the Government and from other sources, including comments from a number of Members who responded to our invitation to submit their views[2].

  3. The House is entitled to expect substantive and substantial proposals from us. At the same time, however, we recognise that it would be wrong at this stage to propose major changes on a permanent basis. Our approach therefore has been to recommend various options to be tried out on an experimental basis. We intend to monitor the outcome of our proposed experiments, and we will welcome comments from Members and others. We shall then seek to make further recommendations on an ongoing basis in the light of experienced gained.

PERCEIVED DEFECTS IN THE PRESENT SYSTEM

  4. Previous inquiries into the legislative process have consistently identified a number of defects in the way in which Parliament considers legislation. Criticisms are made not only of the procedures used but of the pattern and timing of legislative scrutiny during a typical parliamentary session.

  5. The first criticism made is that there has hitherto been little, if any, consultation with Members or with the House as a whole before Bills are formally introduced. In recent years some draft Bills have been produced for prior consultation, and the present Government has specifically undertaken in the Queen's Speech to extend this process. The House itself has however made no attempt to undertake any systematic consideration of such draft Bills.

  6. There has as a result been no formal channel to allow time and opportunity for Members to receive representations from interested parties. Consultations between Government and those outside Parliament with a legitimate concern in the legislation has also been criticised as patchy and spasmodic.

  7. Once Bills are formally introduced they are largely set in concrete. There has been a distinct culture prevalent throughout Whitehall that the standing and reputation of Ministers have been dependent on their Bills getting through largely unchanged. As a result there has been an inevitable disposition to resist alteration, not only on the main issues of substance, but also on matters of detail.

  8. The Committee stage of a Bill, which is meant to be the occasion when the details of the legislation are scrutinised, has often tended to be devoted to political partisan debate rather than constructive and systematic scrutiny. On Bills where policy differences are great, the role of Government backbenchers on a Standing Committee has been primarily to remain silent and to vote as directed. By contrast the Opposition has often set out to devise methods designed simply to extend debate. The Government has then been forced to bring in a guillotine which has often been draconian, as a result of which large sections of the Bill have not been considered.

  9. Special Standing Committees, which were designed to encourage more informed discussion on Bills which were not highly politically controversial, have rarely been used. This has almost certainly been because of the perceived amount of extra time involved and the consequent pressure on the legislative timetable, although evidence from those concerned, including Ministers, suggests that such a perception is in fact misconceived[3].

  10. Report stages have frequently been equally unconstructive. So far as the Opposition has been concerned, they have often been seen as an opportunity to debate on the floor of the House issues which they regard as of major political importance. Amendments and new clauses are tabled as a peg on which to hang a particular debate, not always closely related to the provisions of the Bill. By contrast the Government has frequently taken the opportunity to table literally hundreds of amendments, some very technical, some very long, possibly as a consequence of the Bill being, as First Parliamentary Counsel put it, "produced too quickly to get the policy and drafting right"[4].

  11. Turning to the pattern of legislation, critics regularly point to the marked imbalance in the legislative activity at different times in the session. Early on in a typical parliamentary year, the House is usually swamped with major Bills in Committee as Ministers seek to get a head start for their own measures. The recent change in the timing of the Budget and the subsequent Finance Bill has made this worse. By contrast the House of Lords is under extreme pressure at the latter end of the session as it receives the major Commons Bills.

  12. This pattern, combined with the absolute cut-off imposed by prorogation, frequently makes the last few days of a session particularly chaotic as attempts are made to complete the Government's legislative programme. Bills go to and fro between the Houses, both of which are asked to agree (or disagree) usually with minimal notice to a large number of amendments. Few, if any Members, are able to know what is going on, and there is potential scope for error. The House has in the past even been asked to debate Lords Amendments of which there has been no available text.

THE ESSENTIAL REQUIREMENTS OF A REFORMED SYSTEM

  13. We do not dissent from the general thrust of the criticisms outlined in the previous paragraphs. We do however note the considered view of the chairmen of standing committees, as conveyed to us by the Chairman of Ways and Means, that there has been a marked improvement in recent years, particularly since the adoption of the informal timetabling of bills following the Jopling reforms. The Chairman also suggested that the system also had some notable strengths: in particular, the system of appointing a committee with a separate membership for each bill, the fact that the process of detailed consideration and confrontation is carried out in public, and the tradition of impartial chairmanship[5].

  14. Before considering ways in which the House's procedures and practices could be changed to meet the criticisms, we set out what in our view are the essential criteria which must be met in making any reforms. These may be summarised as follows:

(a)  The Government of the day must be assured of getting its legislation through in reasonable time (provided that it obtains the approval of the House).


(b)  The Opposition in particular and Members in general must have a full opportunity to discuss and seek to change provisions to which they attach importance.


(c)  All parts of a Bill must be properly considered.


(d)  The time and expertise of Members must be used to better effect.


(e)  The House as a whole, and its legislative Committees in particular, must be given full and direct information on the meaning and effect of the proposed legislation from those most directly concerned, and full published explanations from the Government on the detailed provisions of its Bill.


(f)  Throughout the legislative process there must be greater accessibility to the public, and legislation should, so far as possible, be readily understandable and in plain English.


(g)  The legislative programme needs to be spread as evenly as possible throughout the session in both Houses.


(h)  There must be sufficient flexibility in any procedures to cope with, for example, emergency legislation.


(i)  Monitoring and, if necessary, amending legislation which has come into force should become a vital part of the role of Parliament.

OPTIONS FOR IMPROVEMENT

  15. Existing Standing Orders allow for considerable flexibility, as the attached flow chart demonstrates[6]. There are several options already available which could lead to better scrutiny of legislation. With one or two notable exceptions, such as the creation of "First Reading" Committees, the House could, if it so wished, do a great deal without a single amendment to Standing Orders. What is significant, however, is that it is the "principal route of legislation" as shown in the attached diagram which is almost invariably used rather than the other options available. It is this inflexibility in practice which has led to the justifiable criticisms of the way in which legislation is scrutinised.

  16. Much of this inflexibility arises because of the false perception that all Government bills merit broadly similar treatment. The reality is that each Bill is unique; and any categorisation risks obscuring this fact. The spectrum runs from long, politically controversial and complex Bills to short, wholly uncontentious and simple Bills. It would indeed be remarkable were one single principal route to be appropriate for such a complex array of types of Bill.

  17. Another major factor in the largely inflexible approach to legislation adopted hitherto is essentially that of the culture of the House. There has been an inbuilt resistance to change of any sort on all sides. Governments have preferred the status quo largely because they perceive changes to threaten delay in their programmes. Oppositions have not been enthusiastic about any changes which might appear to prejudice their right to oppose and to seek to delay. We would be naive not to recognise that the House is and must be a place where major political differences exist and must be expressed. Nonetheless, if there is to be a real improvement in the quality of legislation, there must be a will in all parts of the House to achieve cooperation wherever it is possible.

  18. In the following section of the Report we consider the merits and the possible disadvantages of the other options already available, or easily made available, to the House. In the final part of our Report we make a number of recommendations as to how these options might best be used. In so doing we are mindful of the fact that the passing of legislation is but one of the functions of the House. However important it may be, any proposals for reform which are ultimately adopted must be considered in the context of the proper balance between the various functions of the House. This in turn could have consequences for the whole of the Parliamentary timetable, a matter to which we shall turn in a subsequent Report.

PRE-LEGISLATIVE SCRUTINY

  19. In paragraph 5 we pointed out that the House has hitherto had very limited opportunities to scrutinise legislation in draft form, and when the opportunity has been available it has only rarely been used. The present Government's declared intention to build on its predecessor's policy of publishing a number of Bills in draft form provides a real chance for the House to exercise its powers of pre-legislative scrutiny in an effective way. Although it is unrealistic to expect all or most major bills to be published in draft, it can reasonably be hoped that such a practice will grow wherever appropriate[7].

  20. There is almost universal agreement that pre-legislative scrutiny is right in principle, subject to the circumstances and nature of the legislation. It provides an opportunity for the House as a whole, for individual backbenchers, and for the Opposition to have a real input into the form of the actual legislation which subsequently emerges, not least because Ministers are likely to be far more receptive to suggestions for change before the Bill is actually published. It opens Parliament up to those outside affected by legislation. At the same time such pre-legislative scrutiny can be of real benefit to the Government. It could, and indeed should, lead to less time being needed at later stages of the legislative process; the use of the Chair's powers of selection would naturally reflect the extent and nature of previous scrutiny and debate. Above all, it should lead to better legislation and less likelihood of subsequent amending legislation.

  21. There are various ways in which the House can look at draft Bills, all using Select Committee-type procedures involving backbenchers. These could include oral evidence in public and written evidence from those involved in the preparation of the legislation and from interested parties. Much of the evidence would be taken in writing[8]. The advice from such a committee could assist Ministers in producing their final draft of the bill. Four possible options are already available or have been advocated, which could easily be incorporated into existing practices. These are the use of:

• the existing departmentally-related Select Committees;
  
  
• a new permanent structure of legislative Committees;
  
  
• ad hoc Select Committees of this House; or
  
  
• Joint Committees of both Houses for individual draft Bills.
  

Departmentally-related Select Committees

  22. The obvious advantage of using the existing departmentally-related Select Committees is that they are already in existence. There is considerable knowledge and experience both among Members and staff, and there are contacts already in existence with people and bodies likely to be involved in and affected by the legislation. Some of these Committees have in the past held inquiries of a pre-legislative nature, whether into matters demanding a legislative remedy or where one was known to be forthcoming, or into a published draft[9].

  23. There is however no doubt, and the Appendices to the Report from the Liaison Committee in the last Parliament make this abundantly clear[10], that these Committees without exception have already got a very full programme of work in fulfilling their prime task of scrutinising the expenditure, administration and policy of Government departments. Such work is likely to increase rather than decrease in the current Parliament with greater emphasis on financial scrutiny and monitoring of Executive Agencies. Given the fairly strict time limits which would inevitably have to apply to pre-legislative scrutiny, departmentally-related Committees would need to know well in advance if they were to be charged with such a task so that it could be fitted into their programmes. It is possible that such Committees absorbed in more detailed investigations would be unwilling to put these to one side in order to consider a draft Bill. Moreover, another important factor to be considered is that it is not uncommon for bills to straddle the responsibilities of several departments, which would render examination by any one Committee unduly awkward.

Permanent legislative committees

  24. In a number of other Parliaments there are "Standing" Committees in the proper sense of the word, that is to say permanent Committees charged with examining legislation on particular subjects. If created by the House they would have the same advantages as the departmentally-related Select Committees, the establishment of a body of growing expertise in specific areas better qualified to pronounce on the merits or demerits of particular pieces of legislation. There would be opportunities for more backbenchers to play a constructive part in the legislative process.

  25. There are however, substantial disadvantages, particularly at the pre-legislative stage. There would not need to be as many of these legislation Committees as there are departmentally-related Select Committees, since some Government departments have little if any legislation in a normal session. There would however be a requirement for several of them if all legislation were to be covered, either at pre-legislative, First Reading or Committee stages, or a combination of these. Any proposals must have some regard to the prevailing parliamentary arithmetic; there would at present be considerable difficulties for the Opposition in finding members for such a number of Committees. The committees' workload might also vary from the intensive to the non-existent, subject to the Government's legislative programme for the session. There would be potential for overlap and confusion with the departmental select committees.

Ad hoc Select Committees

  26. Ad hoc Select Committees for particular Bills offer considerable advantages, particularly of course in any experimental period. Every Bill is different, and some Bills lend themselves to pre-legislative scrutiny far more easily than others. The manning problems mentioned in the previous paragraph would be far less. Although there would not be the continuity of experience that a permanent structure would produce, it is to be hoped that Members appointed would have a knowledge of, and an interest in, the subject matter of the Bill. Such committees might be nominated by the Committee of Selection, as are legislative committees. We would expect there to be a degree of representation from the relevant departmentally-related Select Committee. In addition they would be able to draw on the experience of the staff of departmentally-related Select Committees, and the research facilities of the Library.

  27. On the other side of the coin there are some long term disadvantages, primarily the lack of comprehensive scrutiny that was the feature of the Select Committee system before the departmentally-related Select Committees were established. Any long-term proposals for reform would need to take account of this factor.

Joint Committees

  28. Similar considerations apply to the possible use of Joint Committees. They could be particularly valuable for non-contentious but highly technical Bills, where the House of Lords has a large body of experts in specific areas among its membership. Regardless of into which House it were proposed to introduce the eventual Bill, the use of such Committees could ease the subsequent passage of the legislation in both Houses.

  29. There would of course need to be discussions with the House of Lords over the establishment of any such Joint Committee and a measure of agreement as to their use. It may also be that the Lords would be willing to undertake scrutiny by a Lords Committee of an appropriate draft Bill, hopefully in the light of discussions to avoid duplication. We would not presume to seek to dictate to the Lords the procedures to be followed: nor would the choice of the form of scrutiny of a bill in the Commons have any intended implications for its subsequent scrutiny in the Lords.

Conclusion

  30. While the actual route to be followed for any particular draft Bill will depend on a whole range of circumstances and will in any case be a matter for consultation, we believe that in general, unless there are unusual circumstances, there are significant benefits in draft bills being considered by a committee of the House. We cannot on the one hand complain at the absence of consultation before the introduction of legislation and the unwillingness of Ministers to countenance amendment once it is introduced, while on the other hand neglecting opportunities to contribute at the consultative stage.