31. First Reading is at present purely formal. A Bill is presented with a short and long title, it is set down for Second Reading on a subsequent day, and the text is subsequently published. There are two possible areas for improvement at this stage, one involving a change in procedure, the other in practice.

First Reading Committees

  32. Immediately after First Reading, it would be possible for some Bills to be referred to a Committee for examination before Second Reading. This proposal was made in the Hansard Society Commission Report. One advantage of Committee scrutiny before rather than after Second Reading is that Ministers should be more receptive to possible changes and suggested improvements at this stage, particularly on matters of detail. It will clearly never be possible to produce every Bill in draft form; for some of those not so produced a First Reading Committee might offer many of the same advantages as a pre-legislative Committee. It may be that such a committee would be particularly useful for single-purpose bills, where detailed scrutiny after approval of the principle of the Bill at Second Reading might be less fruitful. Clearly the House would not want to use a First Reading Committee for a Bill which had already received pre-legislative scrutiny.

  33. The four possible types of First Reading Committee would be essentially the same as those available for pre-legislative Committees: ad hoc Select or Joint Committees, departmental select committees, or permanent legislative committees. Broadly speaking, the same advantages and disadvantages would apply to each. Because the timing for consideration by a First Reading Committee is likely to be more rigid than for a pre-legislation Committee, the problems facing a departmentally-related Select Committee would be correspondingly greater[11].

Explanatory material

  34. Every Government Bill when presented contains an Explanatory Memorandum, which is supposed to give both a broad description of the purpose of the Bill and some explanations of its constituent parts. In addition the Minister in charge of the Bill frequently holds a Press Conference outside the House to introduce the Bill, but tending to concentrate on the political aspects of the legislation rather than to explain its detail. No simple non-technical explanation is available to those potentially affected by the legislation other than the Explanatory Memorandum, which is written in legal English and in any case can only be obtained by purchasing the Bill.

  35. We received a most helpful note from First Parliamentary Counsel, setting out the reasons for the obscurity of much legislation and some of the steps being taken to address the problem. It is published as an Appendix to this Report[12]. As his note sets out, a Bill is unique as a written document:

"a Bill is not there to inform, to explain, to entertain or to perform any of the other usual functions of literature. A Bill's sole reason for existence is to change the law. The resulting Act is the law. A consequence of this unique function is that a Bill cannot set about communicating with the reader in the same way that other forms of writing do. It cannot use the same range of tools. In particular, it cannot repeat important points simply to emphasise their importance or safely explain itself by restating a proposition in different words. To do so would risk creating doubts and ambiguities that would fuel litigation. As a result, legislation speaks in a monotone and its language is compressed."[13].

  36. There is a definite need for explanatory material in simple, readable form. Under current practice, if the Minister in charge of the Bill agrees, Notes on Clauses prepared for the Minister are often made available to members of the Standing Committee before the Committee stage of a Bill begins. These vary considerably in their intelligibility and value. Provided the Government is willing, there is no reason why explanatory Notes on Clauses cannot be produced for the House as a whole when the Bill is published[14]. Such a document would enable more informed debate at Second Reading, and would assist any First Reading Committee that was appointed.

  37. For everyone there would be considerable value in the production and publication by the appropriate Government Department of a guide to the main provisions of the legislation. The legal status of such notes would need clarification, in particular the extent to which the courts would in due course be free to use them as a guide to Parliament's intentions in passing a particular piece of legislation[15]. Some choice will also have to be made between simplicity and comprehensiveness. In our view, the paramount consideration must be the production of a document written in plain English.

SECOND READING

  38. Standing Order No. 90, agreed by the House in 1967, allows a Minister to move to refer a Bill to a Second Reading Committee; such a Motion can be blocked by 20 or more Members. The Second Reading debate takes place upstairs, on an amendable motion to the effect that the bill ought to be read a second time. The formal Question on Second Reading is then put without debate in the House: it can be voted upon. Only a handful of Bills, often minor Lords bills, follow this route each year. The previous Government's 1994 response to the Jopling Report stated that "Greater use will be made of Second Reading Committees by agreement"[16]: but there has been no 7ncrease in the use of Second Reading Committees since then[17]. The Government's memorandum to this Committee suggested that "more use could be made of committees for second reading debates on non-controversial bills which do not raise substantial issues of principle"[18]. It is important that Bills which are not controversial in a party political sense but which cut across the usual party divide should not be referred to a Second Reading Committee.

  39. The Standing Order could be redrafted so as to provide proper protection for Members wishing to object to a motion to refer a bill to a Second Reading Committee, but so as not to discourage the use of Second Reading Committees in appropriate cases.

  40. It is worth noting that any Member can attend and speak at Delegated Legislation and European Standing Committees. In his evidence to the Procedure Committee last year, the Clerk of the House suggested in relation to Second Reading Committees on tax simplification bills that Members not nominated might attend and speak[19]. One objection in principle to sending bills to such Committees is that backbenchers not on the Committee are thereby deprived of the opportunity to speak on the Bill[20]. There would be a stronger case for the use of Second Reading Committees if Members not nominated to them were entitled to attend and speak.

COMMITTEE STAGE

  41. The flow-chart indicates that there are several possibilities for the Committee stage of a Bill, all of which could be used under existing procedures. In practice at present, with a few notable exceptions, the majority of Bills go to a Standing Committee with the remainder being taken in Committee of the whole House.

Select Committees

  42. Greater use of Select Committees is certainly possible. They would almost certainly have to be ad hoc Committees, since the inevitable time constraints would make consideration by the departmentally-related Committees virtually impossible. An ad hoc Select Committee of this sort is regularly appointed for the quinquennial Armed Forces Bill and works extremely well. The experience of the Defence Committee is utilised, as there is overlapping membership. There is nothing so unusual about this Bill as to suggest that similar consideration for other Bills would be impossible. A memorandum from Peter Viggers MP, Chairman of the Armed Forces Bill Committee in 1986 and 1996, drew attention to the strengths of the system, and suggested that -

"This procedure may work best for bills where opinion is divided across party lines or where there is no strong Government view.... Alternatively, appropriate parts of larger bills could be referred to a special committee, in much the same way as the Finance Bill is split between a standing committee and the Committee of the Whole House"[21].

Special Standing Committees

  43. Under Standing Order No. 91 a Special Standing Committee is given powers to hold four Select Committee type meetings during a period of 28 days from the committal of a Bill to it. Oral evidence may be taken in three morning sittings of not more than 3 hours, and this evidence is printed. After these four sittings the Committee reverts to being a "normal" Standing Committee.

  44. Many critics of the present process of legislation have argued for greater use of Special Standing Committees. It is certainly true that they have hitherto been rarely used. One likely reason for this is that business managers regard the 28 day provision for Select Committee type meetings as a hindrance to the speedy process of legislation. The Government memorandum suggested that the present strict limitations governing their procedures might be relaxed[22]. Obvious possibilities might be an extension of the 28 day period; total discretion as to how many meetings be held in that period; power to appoint specialist advisers; and power to adjourn from place to place within the United Kingdom. The Chairman of Ways and Means also suggested that the Chairmen's Panel might be prepared to reconsider their predecessors' unwillingness to preside at evidence-taking sessions[23].

Division of Bill

  45. Standing Order No. 63(3) provides for the splitting of a Bill after Second Reading with certain parts being taken in Committee of the whole House and the remainder in Standing Committee. Motions to give effect to this procedure have been moved by the Government following consultations through the usual channels. For some years now the Finance Bill, which had previously been considered in its entirety in Committee of the whole House over many sittings, has been treated in this way. More recently this procedure has been used for a number of Bills, such as the Sunday Trading Bill, where major issues of principle have been considered on the floor of the House and detailed aspects of the legislation in Standing Committee. Debates on new clauses on capital punishment and the age of consent and on abortion have been held in Committee of the whole House where the bills concerned have been committed to a Standing Committee.

  46. The Government memorandum suggested that greater use might be made of this procedure in appropriate cases[24]. Subject to agreement through the usual channels, a Bill could in such cases be divided in a number of ways, between the floor and one or more of the available forms of committee proceedings upstairs, whether in Special Standing Committee or select committee: or between two or more types of committees upstairs, so that a particular part or even an individual clause could be subjected to Select Committee style scrutiny.

Standing Committees

  47. However much more use is made of those other options it is inevitable that there will continue to be substantial use made of the existing Standing Committee procedure. We have referred in paragraph 8 to the legitimate criticisms made of the way such Committees have frequently operated in practice. Many of these criticisms can only be met by a change not of procedure but of practice and culture, in particular of the perception which Members have of the purpose of the exercise. This is inextricably linked to the whole question of the programming of legislation which we discuss in some detail later in this Report (see paragraphs 57-66).

  48. However there are other practical ways in which Standing Committee procedure could be made more effective.

(i)  We have already referred in paragraph 36 to the suggestion of the production of some form of Notes on Clauses at the time of presentation of a Bill. Whatever is done about this, it is vital that all Members of a Standing Committee should have such Notes, at the very latest sufficiently long before the relevant proceedings in Committee begin to enable them to frame and table amendments open to selection, based on the information in such Notes.


(ii)  Under present practice on each existing Clause of a Bill, as opposed to a new Clause, amendments are considered first before debate takes place on the principle of the Clause. The Government proposed the possibility of following, on an experimental basis, the procedure for new Clauses; in other words, beginning with a debate on principle on the Clause, followed (if the principle was agreed) by detailed consideration of amendments and then the final question (without debate) that the Clause stand part of the Bill[25]. The perceived advantages of such a procedure arise from Members knowing that the principle of the clause was agreed, so that amendments would genuinely be seeking to improve the details, and Ministers would approach amendments in a more constructive frame of mind. There should also be fewer "probing" amendments, since Members would be able to raise the points on discussion of the principle, in a more straightforward way. Broad amendments which would effectively undermine or negate the principle purpose of a Clause would presumably be less likely to be selected by the Chair.


(iii)  Many of the constraints on the times at which Committees can meet seem unnecessary, particularly in the light of the proposals on programming below; these include the prohibition on standing committees meeting during recesses.


(iv)  The Chairman of Ways and Means suggested that standing committees on Bills should be able to receive, circulate and where appropriate publish written submissions[26].


(v)  The constraints applied to advisers to backbenchers, and particularly to the Opposition front-benchers, in communicating with Members before and during Standing Committee debates should be lifted[27].

Nomenclature

  49. For ease of reference we have throughout this Report used the existing formal descriptions of the various different sorts of committees. They are however in some respects urgently in need of modernisation. In July 1996 the Procedure Committee proposed that the class of committees now known collectively as "Standing Committees" should be described as "general committees", with those on Bills to be known as Public Bill Committees[28]. Although these proposals did not attract universal support, the Report revealed an overwhelming consensus that many of the current titles were archaic, anachronistic, and, as the Committee put it, "at best unhelpful and at worst positively misleading". It would be previous to devise a whole new set of titles until we have a clearer picture of the range of different committees which may emerge from the experiments we propose. But we will seek to come forward with such proposals when we next report on legislative procedures, with titles based on the function of each committee rather than its historic origins.

REPORT STAGE

  50. At present the Report stage of a Bill is invariably taken on the Floor of the House. Standing Order No. 92, passed as part of the Crossman reforms in 1967, provides for the possibility of a bill previously considered by a second reading committee or by the Scottish Grand Committee to be considered on report in a committee: but the procedure has only been used once, in April 1968, when there were no amendments tabled and proceedings took 3 minutes. As already indicated, there have often been numerous Government amendments on report, some at least of which represent undertakings given in Committee and many of which are uncontentious.

  51. The Government memorandum suggested that greater use might be made of "partial recommittal" to enable the floor of the House to be used for debates on major issues, with detailed amendments taken in a committee upstairs[29]. While there are obvious attractions in theory in such a proposal, it might not always be easy to achieve in practice. There is certainly a case for reconvening the Standing Committee to consider Government amendments based on assurances given during the committee stage. The House could then debate, whether on recommittal to a Committee of the whole House or in a conventional consideration stage, more significant Government amendments and selected other amendments, including those tabled by Members not on the Committee.

THIRD READING

  52. There have been virtually no criticisms of the House's practice on Third Reading of a Bill, nor any suggestions of adopting the House of Lords practice of permitting amendments of substance at this stage. It is obviously right that the House should have the opportunity to express a final view on the merits or otherwise of every Bill before it is passed to or returned to the House of Lords[30]. Third Reading debates rarely occupy much time on the floor of the House, and the rule that debates should be strictly confined to the provisions of the Bill prevents irrelevant discussion. There seems no reason to make any change.

LORDS AMENDMENTS

  53. Lords Amendments are currently considered on the floor of the House, and consume considerable if variable amounts of time (typically 5-10 per cent of all time spent on legislation). In many cases they are highly technical or meet undertakings given by Ministers during Commons proceedings. In some cases by contrast they may be highly controversial. It would be possible to devise procedures under which, after consultation through the usual channels, Lords Amendments could be referred to the Standing Committee which had originally considered the Bill. This might be particularly appropriate for amendments of a technical nature, those which fulfilled Government undertakings, or those which the Government had accepted in the Lords. Controversial Lords Amendments should still be taken on the Floor of the House. Lords Amendments considered in Standing Committee could be put formally in the House en bloc on a simple motion to agree with the Committee's resolutions.