Select Committee on Modernisation of the House of Commons Second Report


MORE EFFECTIVE LAW-MAKING

25. The core of parliamentary business is making law. In this section we address how the legislative process can be modernised to enable Members to do a more effective job in the scrutiny of legislation.

26. We are aware that Members with experience of promoting Private Members' Bills have often found the process frustrating. We intend to review the procedures for Private Members' Bills in the next Session. This report confines itself to Government legislation and all references to legislation in it should be read as referring to Government Bills.

27. It is necessary at the start of this section to record that not all Bills can ever be fitted to the same standard procedure. The general impact of these reforms will be to provide for fuller scrutiny of Bills over a longer period. However, from time to time it will be essential for Parliament to make rapid progress on a law which needs to be implemented quickly to address an urgent issue. Indeed within the period of our study the US Congress has drafted, introduced and passed a new law on accountancy standards in response to the WorldCom collapse. It is important that Parliament should retain the flexibility to change the law swiftly when it is required. The procedures outlined here therefore should be seen as improving scrutiny for the generality of Bills but not as prohibiting measures in shorter order when that is required.

SEEING BILLS SOONER

28. We attach the highest importance to pre-legislative scrutiny. We believe it brings gains to both Parliament and Government. Members are much more likely to play a decisive part in the shape of Government legislation when the Commons is able to scrutinise Bills while they are still in draft. Government is likely to find official proceedings on a Bill easier when it has already been tested and amended in draft.

29. There are a number of forums for pre-legislative scrutiny, including a Joint Committee of both Houses or a Select Committee specially appointed for the purpose. It is not necessary to be prescriptive in advance on the most appropriate channel for any one Bill. However, the most common forum of pre-legislative scrutiny has been the relevant Departmental Select Committee. We believe that in most cases this will be the right choice, as it enables scrutiny of a draft Bill to be carried out by those Members who have built up a specialised knowledge and experience in the subject.

30. We endorse the Liaison Committee's recent guidance for Select Committees on their core tasks, which lists as Task 3: "To conduct scrutiny of any published draft bill within the committee's responsibilities". Improving the scrutiny of legislation will only be achieved if members of Select Committees and Members of the House show discipline in giving priority to pre-legislative scrutiny.

31. Publication of Bills in draft will also enable Parliament to connect with the wider civil society. Pre-legislative scrutiny provides an opportunity not just for Members but also for lobby groups, special interest groups and the public to offer their comments. It also enables earlier and fuller co-ordination with the devolved bodies. The recent Joint Committee on the Draft Communications Bill has provided a facility for online consultation, which has provided a successful new way for the public and interested groups to contribute to pre-legislative scrutiny.

32. We welcome the progress that has been made in increasing the number of Bills published in draft. In the current Session, six Bills will have been submitted to pre-legislative scrutiny, compared to three in the last Session. We recognise that it will never be possible to have every Bill published in draft. There will always be occasions when new developments require urgent legislation. However, we hope eventually to see publication in draft become the norm. We recommend that the Government continue to increase with each Session the proportion of Bills published in draft.

33. Recent practice has been to publish draft Bills towards the end of the Session, when parliamentary draftsmen have been freed up from their work on Bills formally before the House. We hope that it will prove possible for work on draft Bills to continue in parallel with work on Bills which have already been introduced, with the result that pre-legislative scrutiny can take place throughout the Session and not just towards its close.

34. It will necessarily take time to increase the number of Bills published in draft, as the availability of skilled and experienced parliamentary draftsmen is limited and not readily expandable. We recommend that where it is not possible to produce a complete legal text the Government should submit proposals for pre-legislative scrutiny on the basis of a detailed statement of policy. In the current Session, the Mental Health Bill, for instance, has been submitted for pre-legislative scrutiny on the basis of a draft text for most of the Bill and a consultative document for the balance.

SCRUTINISING BILLS FOR LONGER

35. The prime problem in securing better scrutiny of legislation is the pressure on parliamentary time. This pressure is the consequence of a fixed parameter of parliamentary procedure —namely that Bills must be completed in the same Session in which they were introduced. This has two serious problems in planning the legislative programme. First, Bills are rushed through their parliamentary proceedings lest they fail to complete all stages within the Session. Often there is no external deadline requiring legislation to be passed by a fixed date, and the pressure to hurry it through is entirely generated by Parliament's own requirement to complete every Bill within the same Session. Secondly, there is serious congestion in Parliament as most Bills must be introduced in the same six-month period between November and May. Few Bills of substance are ever introduced from May onwards as they have little chance of completing all stages before the end of the Session.

36. The United Kingdom is one of the few parliaments which practices this sudden death of legislation within such a short period. Nor is there any constitutional justification for the UK practice. Parliament is elected by the people for a five-year term and normally sits for four years. There is no logical reason for sub-dividing the five-year mandate of a Government with an annual bar.

37. This problem was acknowledged by our predecessors in the Modernisation Committee of the last Parliament. They recommended that as an initial step Bills should be carried over on the basis of general agreement amongst parties.[4] Unfortunately, in the four years since their recommendation was implemented there has been only one example of this arrangement working in practice —the Financial Services and Markets Bill. That particular example worked well but has never been repeated.

38. If we are serious about providing for better scrutiny then we must adopt a longer time perspective which permits more time and more thorough scrutiny. That can only come from the wider use of carry-over. The most often repeated criticism of programming of Bills is that the timetable is too tight. Carry-over would enable programming motions to allow Bills longer before committee. The provision for a Special Standing Committee enables the members of that Committee to hear evidence from those most affected by a Bill, but the pressure of time has resulted in only one Bill in this Session going to a Special Standing Committee (the Adoption and Children Bill). Carry-over would enable more Bills to be sent to a Special Standing Committee. We recommend that Standing Orders be amended to permit carry-over of a Bill by resolution of the House for an experimental period, but that no Bill should be carried over for more than one extra Session.

39. The procedures and Standing Orders of both Houses on legislation are expressed in terms of the parliamentary Session. In principle therefore, a Bill that is carried over will have the whole of the next Session in which to complete remaining stages in both Houses. In practice, this is unlikely to be necessary, as few Bills require longer than nine months for all stages, nor is it desirable that Bills should remain before Parliament for longer than is required for thorough scrutiny. We recommend that, for the experimental period on carry-over, if a Bill is not completed or arrives from the Lords more than twelve months after its introduction, it should not be further proceeded with in the Commons unless a fresh programme motion, debatable for one and a half hours, has been passed.

40. Carry-over will only ever be appropriate to a minority of Bills. In practice it will only be relevant to those Bills introduced for the first time after Easter. However, to the extent that these Bills would otherwise have been introduced between the Queen's Speech and the Easter recess, it will ease the congestion in the House for all Bills if they can be held over.

41. The case for introducing carry-over is not to increase the volume of legislation but to provide more time in which to scrutinise the existing volume. Indeed, carry-over will be of greater advantage to Parliament than to Government because it will give Members a better chance to carry out fuller scrutiny.

42. The Leader's Group on Working Practices in the House of Lords has agreed that carry-over could be introduced in the House of Lords where a Bill has already been through pre-legislative scrutiny.[5] We welcome the willingness of the House of Lords to accept the principle of carry-over. We have already recorded our view that an increasing proportion of bills should be published in draft. However, we are not persuaded that it would be sensible to limit carry-over to those Bills which had been published in draft. On the contrary, Bills which have been through pre-legislative scrutiny may be expected to proceed through the House at a faster rate and may have less need for carry-over. There is no procedural problem in both Houses commencing with different rules for the carry-over of Bills between Sessions within their own House provided that at the point of carry-over the Bill is still in its House of origin. In the fullness of time it may be desirable to explore harmonising the rules for both Houses when there has been more experience of how carry-over has worked in practice, but this is not a necessary condition for the new arrangements to be put in place.

43. We believe that carry-over will work best if the whole of the House is involved in its implementation. It would be right for the other parties to be informed of those Bills which the Government proposed to carry over, and to be given the opportunity to record their views on whether those Bills were appropriate for carry-over. There are also other parts of our overall package which strengthen the case for consultation. The new proposals which we are making on recesses and constituency weeks increase the case for the Government consulting in advance on the specific dates when the Commons will sit or adjourn. Our recommendation for an increase in the number of Bills published in draft underlines the case for consultation between Government and Opposition parties on which Bills will be subject to pre-legislative scrutiny.

44. Our predecessors in the last Parliament recommended that "There should be discussions at the earliest possible stage of the Government's legislative proposals as a whole".[6] The package which we have now proposed reinforces the case for such discussions. We recommend that there should be collective consultations with other parties in the House on the broad shape of the legislative year, those Bills intended to be published in draft, those Bills intended to be carried over and which Bills are expected to be introduced in the Commons, including discussion on the likely dates of recesses and related matters such as Friday sittings and Opposition days.

THE FUTURE OF PROGRAMMING

45. The time taken for consideration of Government legislation will always be a difficult compromise between two competing principles. The first is the right of the Government to secure in a reasonable time a legislative programme which has the support of the majority of the House and reflects their democratic mandate from the public. The second is the right of other parties in the House and backbenchers on both sides to have an adequate opportunity to explore and challenge the provisions of each Bill, and to reflect any public controversy over its provisions. The procedures of the House have developed over the past two centuries to preserve the right of minorities to test legislation in debate whilst protecting the majority from being frustrated by vexatious time-wasting. The difficulty of getting this balance right has become more challenging as the total volume of legislation has expanded in modern times under Governments of both parties.

46. In the last Parliament, our predecessors recommended programme motions to provide a timetable which would ensure that proceedings were concluded within a predictable timescale, and that there could be balanced consideration of its more controversial provisions. We have received a detailed memorandum from the Chairman of Ways and Means, Sir Alan Haselhurst, which helpfully sets out how programme motions have worked in practice. We publish his memorandum as an appendix to this report.[7]

47. The memorandum brings out the extent to which, since its introduction, programming has moved from a procedure for which there was broad agreement, to a process secured on a majority vote. In the first year of programming there were eleven Bills where both Government and Opposition signed up to an agreed timetable. Two Sessions later there were only four such examples. In view of the increasing difficulty in securing such agreement our predecessors recommended in a split report that programming could be secured by resolution.[8] Since then it has become almost routine for the Opposition to divide the House on those motions.

48. We share the view of the Chairman of Ways and Means that the strategic objective must be to find a consensual way of securing agreement to the timetabling of Bills. However, finding a consensus depends on all sides recognising that they each have more to gain from agreement than by confrontation. We share the view of the Chairman of Ways and Means that all sides should be willing to abandon entrenched positions. Government should accept that better scrutiny can produce better legislation. Opposition should not mistake obstructionism for effective scrutiny. These though are matters of political culture. They cannot be resolved by amending the rules of procedure.

49. Fortunately the introduction of carry-over for Bills that are published after Easter will reduce some of the congestion in the parliamentary timetable. We recommend that if carry-over is adopted by the House the longer timetable which it will permit should be used to provide more flexibility in programming motions. We further recommend that if the Government demonstrates this additional flexibility in programme motions, the Opposition should be willing to engage constructively in agreeing to such motions.

50. We received a number of observations on how programming has been working in practice, and how the detailed arrangements might be improved. Some of these are set out in the memorandum from the Chairman of Ways and Means. We have not attempted in the time available to establish a consensus view on these detailed points, and the manner in which programming is working in practice continues to evolve with experience. As this Committee recommended programme motions in 1997[9] and revised them in 2000,[10] we intend to keep the operation of programming under continuing consideration and may make further recommendations if we feel it appropriate. We will in particular look at ways in which programming operates within Standing Committees to see how it is working and if any modifications will improve its operation.

BETTER SCRUTINY OF SECONDARY LEGISLATION

51. A large volume of legislation passed each year in Parliament is not by means of primary Bills but through secondary legislation such as Statutory Instruments. Every year Parliament passes over a thousand Statutory Instruments. Most of them are subject to negative procedure, and are only debated and voted upon if there is a sufficient body of opinion to pray against them. A minority are subject to affirmative procedure, in other words they require a positive decision for approval, but many even of these are of no controversy and could be taken formally.

52. The great bulk of secondary legislation consists of minor and non-controversial matters. It is in everybody's interest that it should be possible, for instance, to vary speed limits in certain circumstances with minimum fuss and without clogging the parliamentary timetable. However, it is desirable that there should be a systematic process for ensuring that the powers for secondary legislation are properly scrutinised.

53. We shall return in the next Session to the issue of scrutiny of secondary legislation, including the possibility of a sifting committee.[11] In assessing such a proposal we will wish to monitor the experience of the similar committee in the House of Lords.



4   Third Report, Session 1997-98, Carry-Over of Public Bills, HC 543 (1997-98). Back

5   Report by the Group appointed to consider how the working practices of the House can be improved, and to make recommendations, 29 April 2002, HC 111. Back

6   Second Report, Session 1999-2000, Programming of Legislation and Timing of Votes, HC 589 (1999-2000), paragraph 18. Back

7   Ev 50-54. Back

8   Second Report, Session 1999-2000, Programming of Legislation and Timing of Votes, HC 589 (1999-2000). Back

9   First Report, Session 1997-98, The Legislative Process, HC 190 (1997-98), paragraphs 57-66. Back

10   Second Report, Session 1999-2000, Programming of Legislation and Timing of Votes, HC 589 (1999-2000). Back

11   Fourth Report from the Select Committee on Procedure, Session 1995-96, Delegated Legislation, HC 152 (1995-96); First Report from the Procedure Committee, Session 1999-2999, Delegated Legislation, HC 48 (1999-2000). Back


 
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