Background

1.  The Group's appointment was announced in a written answer on 19 July 2001.[1] We held our first meeting just before the summer recess 2001 and have met 16 times in all.

2.  It was agreed that we should consult widely. Accordingly, we prepared and circulated to all members of the House and senior staff a questionnaire covering major points that had emerged from our early discussions. The questionnaire was circulated in January 2002 to 711 members of the House and to 53 staff. 412 replies were received.[2] We took written or oral evidence from the Deputy Chairman of Committees (on European select committee work), from the then Chairman of the Delegated Powers and Regulatory Reform Committee and the Clerk of the Parliaments.[3] Individual members of our group also discussed ideas with members of their own party or the Crossbenchers. All the reactions we received have been extremely helpful in formulating our recommendations, which we make unanimously.

The need for better scrutiny

3.  Passing laws is at the heart of Parliament's activities. For some years there have been concerns about the quality of the legislative process and its final product. Observers of Parliament have attributed defective laws to hasty drafting and poor parliamentary scrutiny. We believe that Government and Parliament together have the duty to get the law right. Parliament also has the duty on behalf of the public to hold the government of the day to account. These important responsibilities can only be properly discharged if adequate time is given for them to be carried out without the need for excessively late sittings.

A package of recommendations

4.  It was clear from the responses to our questionnaire, and from our own deliberations, that it is not a simple matter to get a broad consensus on how to improve the working practices of the House. We recognise this difficulty. Our approach has therefore been to examine and put forward a package of recommendations with the intention of striking a balance of acceptability across the whole. We further believe that acceptance may be more readily forthcoming if the package is endorsed on the basis that it is for a trial period of two sessions and the House itself would have to approve any continuation thereafter.

5.  Our package covers five separate areas of business: pre-legislative scrutiny of Government bills; new procedures for debating the Budget and Finance Bill; reporting on the merits of statutory instruments; an increase in the weekly number of starred questions; and the sitting hours of the House. We did consider, in the light of the White Paper on Completing the Reform of the House of Lords, whether it was appropriate at the present time to be making recommendations to the House about its working practices—a point made by some of the respondents to the questionnaire. However, we were agreed that we should report now, as there was scope for some immediate and helpful changes.

Pre-legislative scrutiny of Government bills

6.  The Government has accepted that every effort must be made to ensure that bills are in good shape when they are introduced and do not have to be amended thereafter to reflect developments in policy which ought to have been thought through earlier. Bills are unlikely to be properly drafted if Parliamentary Counsel are under intense pressure to make last minute changes while the bills are before Parliament. All too often Parliament has been faced with vast quantities of government amendments to bills to try to put things right.

7.  The advantages of pre-legislative scrutiny are widely acknowledged. They may include:

—  allowing members to contribute more constructively to the legislative process by taking evidence on the draft bill in order to test the Government's claims about its merits and practicalities[4]

—  identifying and improving the difficult technical, but politically uncontroversial parts of the draft bill, so saving time at committee and later stages

—  reducing the time taken by and need for probing amendments by removing or clarifying ambiguities before the bill is introduced

—  boosting the chances of a less confrontational approach to the bill during its passage through Parliament.

We therefore recommend that virtually all major government bills should as a matter of course be subject in draft to pre-legislative scrutiny by Parliament.

8.  Pre-legislative scrutiny is a task for Parliament as a whole.[5] It can be undertaken by separate committees appointed by each House; by a joint committee of both Houses; or by a single committee of one House on behalf of both Houses. The first of these three options could tend to duplication and be (other than in exceptional cases) an unsatisfactory use of time and resources. Both the other types of committee have attractions, but we believe that the only workable solution will be to determine the appropriate means of pre-legislative scrutiny on a case by case basis.

9.  Liaison arrangements should be established between the two Houses to determine which scrutiny option to adopt. Restricting it invariably to a committee of the House into which the bill is to be introduced should be avoided since this might not always make the best use of the political authority of the Commons or the range of expert knowledge of members of the Lords on the subject of a particular bill. We further envisage that this pre-legislative scrutiny committee might make a recommendation whether the bill is suitable for consideration in Grand Committee when the bill reaches the House of Lords.

Carry-over of bills

10.  Governments are naturally concerned to get their legislation onto the statute book. They may fear that pre-legislative scrutiny will impose delay. To reduce that concern and the temptation governments face not to submit draft bills for scrutiny, we recommend that, subject to the right of the House of Commons to determine its own procedures, bills that have received pre-legislative scrutiny in either House should, on a motion moved in the House in possession of the bill at the end of the session, be allowed to be carried-over into the next session; but if a bill that has been carried over does not reach the statute book by the end of the session following carry-over, it should fall, as now. The House of Commons has carried over a bill,[6] and our House has already approved the principle of carry-over.[7]

11.  We invite the Procedure Committee to examine the practical arrangements necessary to give effect to these pre-legislative scrutiny recommendations and the implications of carry-over for the Parliament Acts.

Scrutiny of financial legislation

12.  The House is precluded by Commons financial privilege from amending supply bills (eg Consolidated Fund Bills and Finance Bills)[8]. The practice is for the committee stage of such bill to be negatived. However, there are a significant number of members on all sides of the House with considerable expert knowledge of financial matters. Their ability to debate and scrutinise annual financial legislation is not at present being well used, and could be better used without encroaching on the financial privileges of the Commons. We recommend that a procedure be established to enable this House to deal more effectively with Finance Bills.

13.  We propose that shortly before the Chancellor of the Exchequer makes his budget statement, this House should be given the opportunity to appoint an ad hoc select committee to consider and comment on the budget and Finance Bill. When the Finance Bill is introduced into the Commons and published, the committee should begin its work. The committee should report when the Finance Bill finishes its Commons committee stage, but before Commons remaining stages. The timetable of the committee's work would therefore have to be arranged to fit the legislative timetable in the Commons. The terms of reference of the committee would specifically prohibit it from considering the incidence or rates of tax, but would allow the committee to address technical issues of tax administration and whether the legislation could be clarified or simplified. The committee would be all-party and would be empowered to take evidence from interested bodies.

14.  When the committee's views were published, the Government might if it wished move the necessary amendments at report stage in the Commons. The committee's views could also inform the second reading debate when the Finance Bill reached this House. A procedure on these lines would enable the Lords to make better use of its members' financial expertise while avoiding any infringements of Commons financial privilege. The aim of this proposal is to complement and help the work of the House of Commons, not to challenge it. Better scrutiny of Finance Bills by Parliament as a whole should result.

15.  We recommend the establishment of an ad hoc select committee on the above lines because that would make clear that this work is an additional scrutiny task over and above the work of the House's established select committees. But the House's Economic Affairs Committee might well undertake the role of the ad hoc committee, provided the additional work could be fitted in with that Committee's regular work. If the House endorses the principle of improved scrutiny of financial legislation, the Procedure and Liaison Committees should consider the details and determine the appropriate forum.

Select committee on statutory instruments

16.  At present the House devotes considerable amounts of time to primary legislation (which is often "enabling" legislation in skeleton form) but little to secondary legislation, which can be much more detailed and complex than bills. Better scrutiny of secondary legislation (which cannot be amended) is required.[9] The Royal Commission on House of Lords Reform recommended that "the second chamber should consider setting up machinery to sift statutory instruments".[10] This could help to focus Parliament's attention on those statutory instruments that were of real significance. The Commission further noted that the committee's judgement on what to sift for further scrutiny would depend not only on the intrinsic significance of the issue concerned, but also its political importance (which might vary over time). We recognise that there is already a Joint Committee on Statutory Instruments that deals principally with the technical aspects of instruments. We recommend that a new Lords select committee be established to examine the merits of every statutory instrument subject to parliamentary scrutiny.[11]

17.  The role of the new select committee would be to examine the significance of every statutory instrument subject to scrutiny by the House of Lords; to consider whether an instrument should be withdrawn or revoked and replaced with an instrument cast in different terms; to call for further information from Departments where necessary; and to draw attention to those instruments that merited further debate or consideration. The existing right of any member of the House to table motions on statutory instruments would continue unfettered after the appointment of the new committee. The proposed two session trial period (paragraph 4 above) will allow an informed judgement to be made about the amount of work that this new select committee will face. If the number of instruments recommended for debate by it proved to be very large, it might be necessary to debate them in a Grand Committee or other forum in order to safeguard our recommendation below that the House should not normally sit beyond 10pm.

Question time

18.  Starred questions provide opposition parties and backbenchers with one of the main opportunities to examine and challenge the Government on its policies and record. It is a valued opportunity to hold ministers to account. Attendance in the chamber is usually high and the proceedings can often be animated. The questionnaire revealed support for some increase in the time allotted each week to starred questions. We are conscious of the difficulty that Lords ministers might face in attending to other duties out of London if there were a significant increase in the number of questions allowed each week. We therefore recommend that, on Tuesdays and Wednesdays only, question time should be increased from the present 30 minutes to 40 minutes; that the number of starred questions on these two days should be increased from four to five; and that the additional questions on these two days should be topical questions. There would then be a total of four topical questions each week: one on Tuesdays and Thursdays and two on Wednesdays. We further recommend that the House authorities, in consultation with the Government, draw up and make available to the House a timetable that would normally allow each minister one sitting day a week free of starred questions. For a topical question this timetable could result in the appropriate departmental minister not being available but the government would then rely on another front bench spokesman to answer the question, as it does now. Variations in the ministerial timetable should also be made possible by agreement with the minister in a specific case.

Sittings of the House and Grand Committees

A 10pm cut-off

19.  When Grand Committees were introduced in 1994, it was expected that, with less business being taken on the floor of the House, there would be fewer occasions when the House would sit after 10pm. This has not happened. While recognising that governments wish to get their business through the House, late night sittings are not calculated to improve debate or enhance scrutiny of legislation. We have therefore considered a package of proposals that restores the general intention not to sit beyond about 10pm, and compensates the Government for the time it may lose from a 10pm cut-off by (a) sending more bills to Grand Committees and (b) allowing for the possibility of taking other types of business in a Grand Committee or other forum sitting in the Moses Room or elsewhere in the House of Lords precincts.

20.  Grand Committees retain important features of Committees of the Whole House: no nominations are made and all members of the House may attend and participate. Procedure is the same as Committee of the Whole House, except that no divisions are allowed. Pressures of time are less than in the Chamber. Members' convenience can be taken more easily into account in arranging sitting times. There is no need to sit beyond about 7.30pm.

21.  In 1994 a group chaired by Lord Rippon of Hexham recommended that taking the committee stage of all bills except the most important government bills in Grand Committee could achieve significant savings of time. The Rippon group envisaged other exceptions to the use of Grand Committees for legislation, namely, the exclusion from the process of the more politically controversial bills, and to these exceptions might be added bills in which a large number of members of the House would wish to take part, and constitutional bills. Recent examples would be the Criminal Justice (Mode of Trial) Bill and the European Parliamentary Elections Bill.

22.  The table below indicates that it is feasible to make greater use of Grand Committees than has been made so far:

23.   We therefore recommend as a package of measures that: (a) the House should normally rise not later than 10pm; (b) this should be coupled with greater use of Grand Committees for the kind of bills considered suitable by the Rippon group; and (c) after second reading there should be a motion in the House to commit each bill to the appropriate committee, usually a Grand Committee or a Committee of the Whole House. The usual channels will normally have agreed this motion, having discussed it with those concerned and after taking into account the recommendation of any pre-legislative scrutiny committee on the bill. We envisage that such a motion would therefore almost always be a formality because the key players would have been consulted in advance, but the House would have the last word on where the committee stage of a bill is taken.

24.  The precise sitting hours of Grand Committees should be settled to suit the convenience of the key players and could include morning sittings. We envisage that a Grand Committee on a bill should normally meet on two days a week until consideration of the bill is complete. A Grand Committee on another bill should, if it is desired, be able to meet on the other day or days of the week. We further envisage that the committee stage of Law Commission bills would normally be taken in a Grand Committee. To regularise this package we recommend that a new standing order should be adopted to provide that no new item of business (which would include a new group of amendments) could begin after 10pm. The standing order should allow enough flexibility to avoid cutting short debate on business in progress at 10pm by allowing enough time for such business to be completed. The aim would be to retain the flexibility to rise a little earlier or later than 10pm, if that were for the convenience of the House.

25.  In their response to the questionnaire many members of the House complained about the inadequacies of the Moses Room for committee work and debates. We agree, and accept that in the short term Grand Committees will need to be held in one of the rooms on the Committee corridor. We recommend that urgent steps are taken to correct the Moses Room's shortcomings, and that consideration should be given to holding Grand Committees and other business in the Robing Room where the House has sat in the past.

General and select committee debates

26.  The greater use of Grand Committees that we are recommending will make more time available in the Chamber even with a cut-off around 10pm. This time should be taken up by increasing the number of days set aside for backbench debates on Wednesdays, by scheduling debates on select committee reports in prime time, and by meeting more of the requests for debates on broad general topics such as foreign affairs, defence, energy, agriculture and the environment. We recommend that three additional Wednesdays be allotted for backbench debates in each session, and that more debates on select committee reports and on general topics be held in prime time on the floor of the House.

Thursday sitting times

27.  It is understandable that those members of the House who do not live in or near London should wish to return home at a reasonable hour at the end of the parliamentary week. Even with the House rising by 10pm it may prove difficult for many members to get home to Scotland or the North West on a Thursday night. With a view to reducing the inconvenience for such members, the House has been asked twice in recent years to exchange the type of business now taken on Wednesdays and Thursdays, so that there would be no whipped business on Thursdays. Replies to the questionnaire indicated that many members would favour taking Government business on the first three sitting days of the week, thus allowing members two consecutive days before the weekend to attend to their own affairs. The House did not agree to proposals on these lines in 1999 and 2001[13] and we do not believe that it would be timely to invite the House to consider the matter again so soon. However, questionnaire replies also indicated that the present arrangements favour those who live in London and the South East and that an earlier start and finish to business on a Thursday would be helpful to members who have much further to travel to reach home that night. We therefore recommend that on Thursdays the House should sit at 11am and adjourn not later than about 7pm. If this recommendation is approved, it should also be incorporated in a standing order.

A more balanced parliamentary year

28.  Striking a better balance between sitting and non-sitting days throughout the year was considered by our group. It was argued that it was not sensible for the House regularly to sit late in the evening for part of the parliamentary year, and then to adjourn at the end of July for 2-3 months. Recently steps have been taken to achieve a better distribution of sitting days, for example a half-term break in February has been arranged to coincide with some school half-terms. Longer notice of provisional future business is also being given. We noted the proposal of the Leader of the House of Commons that that House should in future sit in September,[14] although practical considerations mean that it will not begin to do so until September 2003. We believe that the House of Lords should also be willing to sit in September, and we recommend that in return the House should have longer recesses at Christmas, Easter or Whitsun, or rise earlier for the summer recess. This should help to achieve a more balanced parliamentary year.

29.  There is no procedural reason why Grand Committees should not sit in September even now. Consistent with our view that there can be greater use made of Grand Committees we recommend that Grand Committees may sit in September, whether or not the House is sitting. In practice the number of members involved will be comparatively small, consisting mainly of those with a detailed knowledge of and interest in the subject matter of a particular bill. September sittings would provide a new opportunity for the House to consider Law Commission bills.

Select committees

Select committees are one of the main tools used by Parliament to examine the activities of the government. Although select committees on legislation are less common than on more general subjects, each House has appointed a select committee to consider proposals for European Union legislation. The Lords European Union Committee is widely regarded as one of the best national parliamentary scrutiny systems in the European Union member states. A recent debate in the House of Lords suggested that there is some concern among members of this House about the European scrutiny function and the need for better oversight of European legislation.[15] 15 We propose that there should be a review of the House's scrutiny of European legislation, including the appropriate balance between the scrutiny of general policy and that of specific legislative proposals, and the desirability of a greater number of shorter and more focussed reports. We have noted with interest the nine specific suggestions by Lord Howell of Guildford and others for improvements in the way that European scrutiny is undertaken. We invite the European Union Committee and the Procedure Committee to explore how far it is possible to give effect to the suggestions of Lord Howell and others.

2   Of the 412 replies received, 362 were from Members of the House and 26 from staff; the rest were from respondents who did not specify which of these two groups they belonged
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3   Members of the House may consult the evidence and other documents in the Library. Members of the public may consult them in the House of Lords Record Office.
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4   As Lord Alexander of Weedon points out in his memorandum to us, "even on politically controversial topics" . . . there would be evidence available which might contradict or at any rate limit debate by mere assertion".
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5   In recent years the two Houses have appointed joint pre-legislative committees to examine the draft Financial Services and Markets Bill (1998-99) and the draft Local Government Organisation and Standards Bill (1998-99), and separate committees to examine the draft Freedom of Information Bill (1998-99).
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6   Financial Services and Markets Bill, carried over from session 1998-1999 to 1999-2000.
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7   Procedure Committee, 3rd Report 1997-98, HL Paper 106. Following this Procedure Committee report the position in the Lords is that eligibility of bills for carry-over is settled by informal discussion in the usual channels; bills are carried over by ad hoc motions; and a Commons bill carried over in the Commons is treated in the same way as any other bill brought from the Commons. The procedure does not apply over a dissolution (see Companion to the Standing Orders, paragraphs 6.07-08).
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8   Bills certified by the Speaker of the Commons as money bills must be passed by the Lords within one month. Not all Finance Bills have been certified as money bills.
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9   When delegated powers are exercised, technical scrutiny of those statutory instruments that are subject to scrutiny by Parliament is carried out by the Joint Committee on Statutory Instruments (JCSI). The JCSI reviews the vires, drafting and certain other technical aspects of statutory instruments, such as whether they are retrospective. It may draw attention to any "unusual or unexpected" use of a delegated power, but is not allowed to consider the merits of any particular statutory instrument.
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10   See chapter 7 of the Report of the Royal Commission on the reform of the House of Lords (January 2000, Cm 4534), especially recommendations 37 and 38.
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11   Because of Commons financial privilege, statutory instruments on charges and certain other financial matters are subject only to House of Commons scrutiny and such instruments would not fall within the remit of our proposed new committee.
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12   In reading this table allowance must be made for the fact that each session some bills will by their nature never be deemed suitable for consideration by a Grand Committee. Back

13   22 March 1999 and 23 January 2001.
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14   HC Debs, 24 January 2002, c 1008.
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15   See the debate on the European Union Committee's report on A second chamber for Europe, HL Debs. 11 February 2001, in particular the speeches of Lords Williamson of Horton, Desai and Howell of Guildford. Back