Memorandum submitted by the Rt Hon Ann Taylor MP, President
of the Council and Leader of the House
1. The Government was elected on a Manifesto which included
a recognition that the House of Commons is in need of modernisation,
and a promise to ask the House to establish a Select Committee
to review its workings.
2. The Government does not seek change for change's sake,
but it regards a vital and effective House of Commons as central
to the revival of confidence in politics and public life which
it seeks. For all its many strengths, the House is not as effective
as it might be. There have been a number of recent reviews of
aspects of procedure which the Committee will wish to take into
account; but in the Government's view the time has come to draw
the threads together and embark on a significant programme of
change.
THE GROUND TO BE COVERED
3. The Committee will no doubt wish to range widely over
the subject matter, but the Government hopes it will give particular
attention to:
- the handling of legislative proposals, on which the
Order establishing the Committee instructs it to seek to make
an early first report;
- the means by which the House holds Ministers to account;
- the impact of the House's procedure and practices on the
working lives of Members (building on the changes which were
made following the Jopling reforms); and
- the style and forms of proceedings.
4. The rest of this memorandum deals with the first of these
areas, the handling of legislative proposals, on the ground that
it is the most urgent; but the Government will be ready to offer
papers on other aspects of the Committee's remit in due course.
It will also respond to the outstanding reports of the European
Legislation Committee and the Procedure Committee on the scrutiny
of European legislation, in which the Committee will no doubt
wish to take an interest.
IMPROVING THE SCRUTINY OF LEGISLATION
5. It is well established that Governments are entitled to
secure their legislation, Parliament willing. That consideration
is bound to weigh heavily with any Government, but it need not
be incompatible with a proper scrutiny of legislative proposals.
6. Nor are the same methods of scrutiny likely to be appropriate
for all or even most Bills. A short emergency measure will of
necessity, call for different treatment from a substantial Bill
affecting the detailed administration of an area of law or the
public service. The Government's starting point is therefore that
there is no blueprint for the handling of Bills; and it would
not wish to commend any such blueprint to the Committee. It is,
however, anxious to develop procedures which, when applied sensibly
on a case by case basis, will, overall, improve the scrutiny
of legislation.
7. Against that background, the Government firmly believes
that the quality of legislation can often be improved by consultation
with informed opinion on both the substance and the drafting of
legislative proposals, before the introduction of a bill into
Parliament or as a stage in its passage through Parliament. This
does of course happen to a certain extent at the moment but the
Government believes that there is a need for greater flexibility
in the means by which such consultation should take place.
8. A number of methods exist by which consultation can be
carried out before legislation is introduced. These include -
- the publication of a Green Paper, setting out a range
of policy options;
- the publication of a White Paper, setting out the Government's
proposals;
- the publication of draft clauses of a bill;
- the publication of an entire bill in draft, including
by the Law Commission for Bills which they have drafted.
9. Once it has been introduced into the House, a bill
will be exposed to informed comment. This is particularly the
case in those instances where it has been thought appropriate
to commit the Bill after second reading to a special standing
committee, which has limited powers to take evidence, or exceptionally
to a select committee.
10. The Committee may wish to consider whether the House
would be better able to scrutinise the policy on which legislation
is based, and the way the policy is proposed to be implemented,
if there were a wider range of opportunities for evidence-taking
before the conventional standing committee stage of a bill. These
might include:
11. In view of the heavy programmes of work on departmental
expenditure, administration and policy which the departmental
select committees already undertake, the Committee may wish to
consider whether an additional committee structure would be required
for the more systematic scrutiny of legislation and draft legislation.
12. The Committee may also wish to consider whether special
standing committees could be used more effectively in those areas
of policy where they are appropriate. It might make sense to contemplate
granting them more flexible powers, for example, to hold a greater
number of evidence sessions, or to appoint specialist advisers.
13. It is not necessary, or appropriate, for every bill
to pass through all these stages, but some bills might benefit
from one (or possibly more than one) of them, and the Government
is ready to use them more frequently in suitable cases.
14. The Committee may wish to consider the relative
merits of these additional stages of scrutiny, and the criteria
by which a bill might be considered suitable for one or other
of them.
15. The standing committee stage of a bill ought to be the
point at which its provisions are tested to ensure that legislation
is of high quality. In practice, this tends not to happen, perhaps
because the Opposition sometimes gives undue weight to the effectiveness
of delay as a weapon against the Government. The Committee may
wish to consider ways in which the profile of standing committees
could be raised and their proceedings made more focused and effective.
16. One possibility which the Committee may wish to examine
is that the consideration of each clause of the bill might begin
with a general "second reading" debate on the principle
of the clause, rather than with the first selected amendment,
which might deal with a very narrow point. That general debate
might serve to put the amendments in context and allow the standing
committee to consider them more constructively. The final question,
that the clause (or the clause as amended) stand part of the bill,
might then be taken without further debate.
17. Once a bill has become an Act, there should be a role
for the House in monitoring its implementation and assessing
whether it is working as Parliament intended. The Committee may
wish to consider whether departmental select committees should
be encouraged to carry out post-legislative scrutiny in a more
systematic way than they have in the past.
THE BALANCE BETWEEN THE FLOOR OF THE HOUSE AND
ITS COMMITTEES
18. Save for constitutional bills and the Finance Bill the
standard procedure at present is for the second reading of a
bill to be taken on the floor of the House; the committee stage
in a standing committee; and the report stage on the floor of
the House. Bills are, however, very different one from another,
and there may be scope for variations from this pattern.
- More use could be made of committees for second reading
debates on non-controversial bills which do not raise substantial
issues of principle. The Committee may wish to consider whether
the rule which requires 10 days' notice of a motion to refer
a bill to a second reading committee might be relaxed, since
it appears to discourage the use of second reading committees
by delaying the progress of bills which are taken by that route.
- Whilst most bills are committed to a standing committee
and some to a Committee of the whole House, on several occasions
in recent years bills have been split between the two to enable
a debate and a vote on a matter of particular importance to be
held on the floor of the House at an early stage. (This is also
the usual method of dealing with the annual Finance Bill.) The
Committee may wish to consider whether this approach should be
encouraged, and if so in what circumstances.
- The Committee may also wish to reflect on whether report
stages, which often involve a large number of amendments on points
of detail, represent the most effective use of the House's time.
An alternative which the Committee may wish to consider is more
regular use of partial re-committal to a Committee of the whole
House as a way of enabling major issues to be debated on the floor,
with the report stage taken in a committee upstairs.
CONSTITUTIONAL LEGISLATION
19. There is a convention that bills of first class constitutional
importance should have all their stages on the floor of the House
so that all Members can take part in the proceedings. This convention
is of long standing, and the House would no doubt not wish lightly
to set it aside. On the other hand, experience has shown that
taking all stages on the floor of the House does not necessarily
ensure that such bills are properly scrutinised.
20. The Government does not have a settled view on this,
but can see a case for a more flexible approach where, overall,
a bill would be better scrutinised if parts of it were considered
by a standing committee. It would welcome the Committee's views.
PROGRAMMING OF LEGISLATION
21. Legislation must receive the attention and discussion
it requires but the Government needs to secure the passage of
its business within a reasonable time if Parliament approves it.
Delay has been seen as the weapon of the Opposition and a majority
the weapon of the Government. If new ways of programming legislation
effectively could be found then it might be possible for Opposition
Members to be more constructive and for Government Ministers
to be more receptive to constructive criticism.
22. Since the Jopling reforms legislation has been programmed
by means of voluntary agreements arrived at through the usual
channels. These arrangements have in general worked well when
the Government's legislative programme has been relatively light,
but there is room for doubt whether they would be robust enough
to cope with a heavier burden of contentious legislation.
23. If voluntary agreements cannot be reached, or break
down, the Government can use its majority to impose a guillotine.
This ensures the passage of the legislation but inevitably involves
some reduction in scrutiny, especially where time has been used
up in an unsuccessful attempt to make progress before resorting
to the guillotine.
24. The Committee may wish to explore the possibility of
programming legislation through arrangements which are more formal
than usual channels agreements but more flexible than the guillotine.
The Government would seek to assist by indicating at the outset
its preferred programme for the consideration of a Bill or draft
Bill, including the proposed balance between proceedings on and
off the floor.
CARRYING LEGISLATION FORWARD TO A SUBSEQUENT
SESSION
25. The rule under which a bill must either complete it passage
through Parliament within the space of a single session or fall
has been argued by some to impose an unhelpful constraint, which
militates against good legislation, since Bills have to be introduced
at or soon after the start of the session, which may be before
they are fully ready. Against that, it may be argued that any
routine relaxation of the constraints imposed by the sessional
principle would remove an important discipline both on Parliament
and on Government. The Government would welcome the Committee's
views on this.
26. If the Committee were attracted by the idea of selectively
carrying over public bills into the following session, it would
be necessary to provide that a carry-over motion could be moved
only by the Government, in order to prevent it from being used
as a way of delaying Government legislation, and it would also
be necessary to ensure that the provisions of the Parliament
Acts, which ensure that in the event of a dispute between the
Houses the will of the Commons prevails, continue to be effective.
27. The Government would welcome the early views of the
Committee so that it can consider any recommendations and their
implications as soon as possible.
19 June 1997
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