The following evidence was submitted to the House of Commons Select Committee on Procedure and printed with its First Report of Session 1977-78, as Appendix 1 to the Minutes of Evidence (HC 588-III, pp 1-20).
Memorandum by the academic members of the Study of Parliament Group
- I INTRODUCTION: SOME BROAD CONSIDERATIONS
- A. SOME BASIC QUESTIONS
- B. THE GROWING WORKLOAD OF THE HOUSE
- Parliamentary overload and the constraints it imposes on procedural change
- The Growth in Executive powers
- The impact of ‘Big Government’ on the Parliamentary workload
- The response to workload increases
- A realistic approach to the problem
- II THE LEGISLATIVE PROCESS
- The form of Primary Legislation
- Examination of Delegated Legislation
- Should Parliament be able to amend Statutory Instruments?
- Objections to framework legislation
- The committee system in regard to legislation
- Report Stages of Bills, Third Readings and Lords Amendments
- Conclusions on the committee system in regard to legislation
- III. SELECT COMMITTEES IN THE HOUSE OF COMMONS
1. The Study of Parliament Group warmly welcome the decision of the House to appoint a Committee to carry out a broad review of the practices and procedures of the House in relation to public business. We understand that the Committee would welcome evidence on several aspects of the House’s work, and this we now submit. We believe, however, that it may be helpful if we first set out certain broad considerations which we hope the Committee–and indeed all those concerned with Parliamentary reform–will have in mind in the course of this review.
2. We pose these in the form of questions to which, in the end, answers will have to be given, either explicitly or implicitly, before specific proposals are made for changes in practice or procedure. But we do not at this stage attempt to answer them ourselves. All we do is emphasise that procedures are, to some extent, political instruments to be used to certain ends, and that clarity about the desired ends–the objectives of Parliamentary reform–is an essential prerequisite to a choice of procedural solutions.
3. There are now two main schools of thought both of which have been expressed by members of the SPG. The one that has been dominant this century, perhaps even since 1868, accepts that the power of Government, derived from the authority it gains from the sanction of a popular franchise and exercised through the party majority in the House, has effectively deprived the House of any direct power of decision-making it may ever have had. The Government (Ministers plus civil service) governs, and the Government controls the House, not vice-versa, in any meaningful sense. The role of the House is on this model primarily to be the forum where the political battles of the day are fought out in public; where the Government has to advance and justify its policies and to account for its actions. The authority of the House is said to lie in the influence it can exercise, by both speaking for and speaking to the electorate, through this public exposure of the processes of Government. For those who accept this analysis, the problem is not to transfer power to Parliament but to ensure that the increasing powers of the executive and the increasing complexity of Government decisions are matched by increasing effectiveness on the part of the House in exercising its public critical or scrutiny function.
4. This concept of Parliament, as a place where political issues are dramatised and simplified before the public, and where Ministers are required to answer for a wide range of their actions is a highly sophisticated one, and it is doubtful whether it is appreciated fully by the public at large. Further, as the House and its Members frequently talk and act as if they still had power over Government, it is similarly doubtful whether all MPs accept completely this model of Parliamentary government in all its aspects. It is in any case the product of an era of a highly-disciplined two-party system, when the only effective sanction on Government is the ability of the electorate to turn it out. This is an era which, whether stimulated by electoral reform or not, may be corning to an end, although the need for any Government to be supported by a majority in the House, however composed–and the power that majority gives that government–will continue.
5. There is now emerging a second school of thought, which is also represented in the Study of Parliament Group as in other organisations which have to do with current Parliamentary government. This argues that without some measure of power the House of Commons can have no authority; that any power which the House has possessed has been so sapped and eroded by Government that it is now meaningless to talk of Parliamentary government in Britain. Mr. Short, the former Leader of the House, posed the problem in the Procedure debate of February 1976, although without proposing any solutions:
“The existence of strong political parties which fought elections on manifestos promising government action, including legislation, all too often tended to reduce the performance of some of the traditional roles of Parliament to the level of ritual.”
6. To remedy this situation this second school of thought deliberately seeks, through electoral and political change, some transfer of power from the executive to Parliament. It seeks a situation where, through considerations of political necessity and survival, a Government’s main allegiance is to a broader-based and more representative House of Commons and not to powerful interest groups either of the Left or the Right. It believes that only a change in the political structure of the Commons can restore some vitality to an assembly which, all too often these days, finds itself superseded as the main forum of political and economic accommodation by other, less representative, agencies.
7. This model of a multi-party Parliament, in which majorities have to be consistently and more considerately managed by Government, is compatible with and is occasionally associated with a constitutional separation of powers. But it can operate, as it does in most West European democracies, in a purely Parliamentary system of government. It is also normally a system in which the subordinate agencies of the assembly, especially the committee structure, tend to become the main forum through which Parliamentary influence is exerted, an important point to bear in mind when specific reforms of the House of Commons are being canvassed.
8. Although the first model of Parliamentary government which we set out could undoubtedly be made to work more effectively by procedural innovations and extensions, some of which we mention below, only political change on a wide scale can bring the second model of Parliamentary government into being. In these circumstances the Procedure Committee may feel that consideration of the second model is outside their remit. In that case some members of the Study of Parliament Group would say that nothing which fundamentally changes the present Parliamentary situation can be expected, and the Committee might like to ponder whether it is likely to find solutions within the confines of a system which has produced the problem in the first place. Moreover since 1974 some doubt has been cast on the continued existence of the political structure which underpins our first model of Parliamentary government. It may be that, even without specific electoral reform, the national political situation in the future will not be as clear-cut as it was in the 1960s and before. So far the decline in support for the major parties and the increasing influence of minorities have not upset the ‘normal’ expectations of Governments. They have acted as if the two-party majority model still existed, with only occasional difficulties. But the Procedure Committee may like to contemplate the possible effect on the Commons of the continuance of the political fragmentation and minority government which is a feature of the current Parliamentary scene.
9. The academic members of the Study of Parliament Group have no collective view on these matters, and, indeed, are as divided on this subject as is other informed opinion. But the Group would like to make the broad point that a preference for either model is a political preference; that Parliamentary procedure cannot be divorced from politics. Both models and their political assumptions are tenable. Members of the Procedure Committee will have their own preferences and the Study of Parliament Group would not attempt to influence them one way or the other. The specific recommendations for procedural reform which we make in the following pages are applicable to either model of Parliament, although room exists for argument about which would enable them to operate more effectively.
10. One point on which we are agreed quite firmly is the need to look at the work of the House as a whole. As we emphasised in our Memorandum to the Select Committee on Procedure of 1964-65, procedural proposals must be related together systematically. This is not simply a question of ‘trading’ a streamlining of Government legislation here against increased opportunities for back-benchers in committee there. The processes are themselves essentially interlocked. Government does not engage in separate activities called ‘policy’, ‘legislation’, ‘expenditure’, ‘taxation’, ‘management of the economy’, ‘administration’ etc. So also, in the House, debates on policy, consideration of bills, voting of supply etc. should not be studied as if they were in quite separate compartments. Policies expressed in White Papers will be enacted in legislation, from which will flow delegated legislation, Estimates of expenditure, administrative action and, later, reviews of how it is all working out in practice; and thus the procedures needed for handling policy debates, legislation, etc. must be inter-related. When looking at the system of committees on bills, for example, one should not neglect the question of what sort of committee (if any) should look at the expenditure implications of that bill and of how the law works out in practice. Unless this is heeded there is a grave danger of duplication or confusion (in 1974-75, for example, one standing committee was working through the Children Bill which, inter alia, amended the Children and Young Persons Acts; at the same time another committee–an Expenditure Sub-Committee–was inquiring into the working of those Acts and making recommendations for their amendment).
11. This second question is to some extent related to the first, but not automatically so. Some who believe that the House should play a greater governmental role argue the need for Members to be as fully informed as possible before they take decisions. Others who emphasise the critical role of Parliament will similarly argue that Members need to be fully briefed if they are to exercise effective scrutiny. This latter argument ran strongly in the 1960s and was a main inspiration of the move towards more select committees, research services etc. in the last decade.
12. On the other hand some have argued that too much knowledge is a dangerous thing. If back-benchers and the Opposition parties are as fully informed as Ministers, it is said, this will blunt the critical faculties and mute the exercise of scrutiny. It will also tend towards consensus politics and deaden the healthy clash between the parties; if the electorate are to be asked to choose between the parties their differences should be plain, not muffled by the qualifications and compromises that too great a concern for detail can so readily impose.
13. Again the balance–and clearly neither extreme view is likely to be accepted–between these points of view will condition proposals for procedural and practical reforms.
14. The two previous questions have, to some extent subconsciously, been interwoven in most of the discussions on Parliamentary reform in the last ten years. However, we believe that this third question has been widely neglected, and should also condition proposals for reform.
15. Some will argue that Parliament is a workshop, which works best in a detached and objective mood, undistracted by immediate public pressures and which should not be required to explain and justify itself to the wider public. Regular public contact and publicity is not, therefore, necessary.
16. Others emphasise that Parliament draws its authority from the electorate, that it will not be respected unless it is clearly articulating the anxieties and even the prejudices of ordinary citizens, and that its influence lies in the extent to which the House is seen to be speaking for and speaking to the public. Public awareness and even public involvement is therefore desirable whenever possible. Anything which can be done to make this communication more effective would help the processes of Parliamentary government in Britain.
17. While we recognise that some of the procedural changes since the last war have strengthened the role of the back-bencher and the House’s critical machinery (we think particularly of the revival of select committees) we believe that in the last thirty years the balance of advantage has steadily swung towards the executive, particularly in facilitating the passage of more Government bills. And while we recognise that, if both Government and Parliament are to function properly, the legislative process must not be unduly cumbersome, we do believe that the trend of change should be reversed. The emphasis of future reforms of the procedures of the House of Commons should, we believe, be towards strengthening its role as an organ of the constitution, which is essentially separate and distinct from the executive–whether this be done by increasing its direct power or by increasing its efficiency as a critical body.
18. In conclusion, the Study of Parliament Group would hope that the review which the Procedure Committee has embarked upon will be as fundamental as possible. There have been times in the past when the vigour of Parliamentary government in Britain has seemed to be impaired, when Parliamentary politics have lost their creativeness and where fundamental remedies have had to be sought. It is the Committee’s task, we would submit, to judge whether such a moment has arrived again.
19. In some degree the post-war preoccupation of the House of Commons with its procedure has arisen out of new needs and changing ideas. But the intensification of procedural adjustment and the almost continual study of procedural possibilities since the mid-sixties has been deeply influenced by the ever-increasing load of work which the House has had to assume. Faced with ever-growing demands on the time and attention of Members there has been a marked tendency to try to solve the problems thus created by introducing new procedural devices, most of which have been supplementary to the overall framework as consolidated in the course of the past fifty years or so. It is, however, hard to measure the scale of this increase in the workload with any accuracy. Members differ in their individual responses to it and in their assessment of priorities. Also they are capable of re-distributing their effort and interests: some tasks may get less attention than formerly, institutional changes within the House may prove capable of absorbing at least a part of new demands, and there is anyway a great deal of variation in what a particular Member will regard as an additional load on him. But despite the difficulties, an effort will be made here to indicate some of the ways in which the overall flow of parliamentary business has grown.
20. The basic cause of the increased workload is to be found in the continued growth in governmental powers and responsibilities. More powers for Government and for subordinate public authorities means more legislation. The multiplication of regulatory schemes in social and economic affairs imposes the need for more delegated legislation and for larger administrative services. A larger and more interventionist administrative machine is likely to result in a bigger flow of complaints from constituents to Members, thus enlarging their traditional role of seeking redress of grievances. But in addition the omnicompetent State suggests the need for Parliament to add to its means of scrutiny and to widen the opportunities it has for investigation and report. At the same time as the powers of public authorities have grown, there has been a rapid growth in the number of bodies claiming to speak for interests affected by the powers conferred, and there has been a shift of emphasis towards consultation, negotiation and participation in the development and application of public policies. Inevitably the Member of Parliament is involved in this field too and indeed may regard it as essential to establish close ties with one or more organised interest groups. But this too means further demands on his time. Within the institutional framework of Parliament we can, therefore, identify a number of activities which have contributed decisively to the overload problem.
(i) The increase in legislation and delegated legislation;
(ii) The heavier burden of casework arising from the more extensive activities of the public services;
(iii) The growth in investigatory scrutiny in an attempt to keep up with the growing powers of Government; and
(iv) An intensification of organised pressure group activity with which Members are associated in varying degrees.
We propose to look at the first three of these items, concentrating on them because evidence is available on the face of the parliamentary record. The fourth is far more difficult to comment on in detail and is complicated by the demands of intra-party activity too.
21. There has been a substantial increase in legislative output during the past thirty years, characterised not so much by an increase in the total number of bills and orders as by a rise in the number of exceedingly long and complex measures. Parallel with the rise in primary enactments has been a marked growth in the scale and complexity of Statutory Instruments. It is, of course, difficult to measure accurately and qualitatively the growth in legislation but we think it reasonable to work on the basis of the number of enactments and the annual output in pages. Figures for selected years since 1935 are as follows:
|Number of Acts||Number of pages|
|Number of SIs||Number of pages|
|1947||2916||2678 (+ 1473 pp. of orders under Emergency & Supplies Services)|
22. What these indicators show is that total output of public legislation(1) rose steeply after 1945, showed a downward trend during the fifties and has risen substantially since then. The larger flow of legislation inevitably imposes heavier demands on Members: some at least need to devote more time to acquiring the knowledge of proposals necessary for any useful comment on them; there are the increased pressures of consultation with affected interests; there is the greater pressure on time on the Floor of the House; and there are the demands of Standing Committees. We revert to the latter in the context of assessing the time available to the House.
23. This vast mass of legislation affects the lives of us all, our rights and expectations. The citizen cannot exercise much, if any, control over how it is shaped and what it contains. In practice those who wish to influence legislation work extensively through all kinds of organised bodies outside Parliament. But there survives a powerful popular belief that it is Members of Parliament who have the ultimate responsibility for safeguarding the rights and interests of the people in the passage of legislation. And indeed Members cannot divest themselves of some such responsibility: in the end it is they who pass or reject legislative proposals. Thus we cannot avoid the conclusion that more legislation and more complex legislation must impose heavier burdens on those who have to debate, amend and approve it. In the absence of any reversal of the trend towards a growing volume of legislation there might at best only be prospects of mitigating the impact of these pressures in a different division of labour amongst Members in the legislative process.
24. We have already said that more legislation means more powers which facilitate more State or public action, which in turn prompts a heavier flow of complaints, grievances, requests for information, etc. to Members. There are various indicators of the growth in the powers of the Executive. One possible index is the size of the civil service. Excluding the Post Office, Non-Industrial Civil Service staffs grew as follows:
A very large number of officials are, by definition, exercising powers on behalf of Ministers. In the face of the increasing load on Departments the effective personal control of Ministers over the affairs of their Departments has declined, with the consequence that very many decisions are and can be taken only by civil servants. But if the decisions excite hostility, discontent or a sense of injustice, it is quite likely (and virtually certain in those many areas where no formalised appeal system exists) that a Member of Parliament will be asked to take up the matter. In other words the administrative decision becomes a matter of political challenge or argument.
25. It must be noted that a good deal of the growth of the public sector since 1945 has taken the form of the public corporation or board–for example, the National Coal Board, British Railways, the Atomic Energy Authority, and the Bank of England. The board form was used in an attempt to insulate the management of these great enterprises from political interference. But because they are publicly owned and so important, it is impossible for Members to disregard them. Indeed the House thought it necessary to establish a Select Committee to help it in its responsibilities for the effective running and policy of the nationalised industries. Alongside the widening sector of nationalised industry there are, of course, many other public corporations or agencies with something like that status. Indeed, one of the most pronounced trends of recent years has been the growth in the number of state organisations outside the traditional framework of Government departments, but subject to varying degrees of ministerial influence or control.
26. Another indicator of increased Executive activity is, of course, the growth in public spending. There is little to be gained from quoting figures here. It is enough to record that public expenditure now claims something like 56% of GDP and according to other calculations well over 60% of GDP falls in some way or other within the scope of the budgets of public authorities, though only part of public expenditure is strictly on the central government’s account.
The House of Commons’ traditional concern with spending by the Government is well known. But the widening of the public sector as a whole, its greater claim on resources, and the inclusion of all public sectors in public expenditure forecasts and planning adds to the concerns of and pressures on Members of Parliament. Given that virtually all non-central bodies are in some way or other dependent on central Government financial and economic measures, there is practically no end to the issues which it might be thought Members of Parliament should know about or raise.
27. The simplest measure of the load here is the number of PQs. The total of oral and written PQs has risen substantially. In the inter-war period the number was usually around 10-12,000 each session. It rose after the war to about 15-16,000. In 1967-8, however, there were 11,588 starred and 13,601 unstarred questions. The respective figures had risen to 13,646 and 20,300 in 1970-71. It can be assumed that a total of about 35,000 oral and written questions per session is now normal, with the scales tipped in favour of the latter in terms of volume.
28. It should be noted that these increases have taken place despite the progressive reduction in the opportunities for any one Member for putting down starred questions and the diminishing expectation of receiving an oral answer. Alongside PQs there is the flow of letters from Members to Ministers, a course of action which may often yield better results than the PQ. There are no comprehensive figures here, but we know from fragmentary pieces of evidence that the total volume has grown substantially. In addition Members find it necessary to devote much effort to raising essentially local or personal cases either in general debate or through the various procedures (e.g. adjournment motions) available to them as Private Members.
29. A major response to Executive expansion has been the increase in the range and number of select committees set up by the House. In 1960 the House had three major select committees of administrative and financial scrutiny: Public Accounts, Estimates and Nationalised Industries. There was, in addition, the Statutory Instruments Committee. Together they claimed the attention of just about a hundred Members, In 1975/76 there were 38 select committees in operation (including their sub-committees which in most cases make the biggest claim on Members’ time) and not far short of 300 Members were involved.
Not only has the growth in select committee work imposed heavy additional demands on the time of Members. It has also been characterised by the wider range and complexity of many of the inquiries carried out, thus implying (at any rate in principle) that the Members concerned need to devote more time to the assimilation of the relevant information and evidence.
30. In the ordinary way of things increases in workload usually lead to increases in the number of workers and in their equipment. Plenty of illustrations of this could be found in Whitehall. Similarly the expansion of higher education was met by the creation of new universities. But this kind of quantitative solution is hardly open to Parliament–though devolution is a form of it. Nor can much be achieved by adding to the “equipment” of Members, though it has to be noted that the House has been slow in improving some of the most basic services which Members need. In fact, however, the number of Members has barely changed, being 615 in 1922, 640 in 1945, 625 in 1950, 630 in 1955 and 635 in 1974. But these figures conceal the fact that the number of “available” Members has declined. In 1950 there were 68 MPs serving in Government and 27 PPSs. In 1975 these figures had risen to 86 and 32 respectively. If we add about 30 MPs who are absorbed in Shadow Cabinet activities, this means that rather less than 500 Members are left to assume these burdens which by convention and procedure fall chiefly on backbenchers, whereas thirty years ago the figure must have been around 550. Nevertheless we accept that these apparent losses may have been to some extent offset by a rise in the proportion of full-time “professional” Members, though we note that it is hard to determine accurately the effects of this change.
31. There has been some increase in the numbers of hours during which the House is in session. The number has always fluctuated with the volume of business. Thus, between 3 November 1936 and 22 October 1937, the House met on 157 days, with an average length of 7 hours 47 minutes. From 8 November 1938 to 23 November 1939, it met 200 times, for an average day of 7 hours 34 minutes. Between 4 November 1952 and 29 October 1953, it met on 162 days of 8 hours 12 minutes average duration. However, between 2 November 1971 and 26 October 1972, it met 180 times for an average sitting of 9 hours 17 minutes. Generally speaking the average length of each sitting has increased by nearly an hour since the inter-war years, but the number of sitting days has not greatly changed. An increase of 15-20% in the time available in the Chamber seems a reasonable estimate.
32. An apparent increase in capacity has, of course, been gained by the use of Standing Committees for legislation. Until the 1940s it was usual for the committee stage to be taken on the floor of the House. Nowadays with the exception of parts of the Finance Bill and Bills of major constitutional importance, nearly all Bills are taken in Standing Committee. The following table shows the number of pages in the Official Report devoted to Standing Committees.
|Calendar Year||Standing Committee|
This very big increase in the amount of work Members now do in Standing Committees has not reduced the time used in the Chamber. It is probable that some of the time spent during the mornings in Standing Committee resulted in a smaller attendance later in the day in the Chamber. Similarly, the greater use of Select Committees is likely to have left Members less time for the Chamber–indeed in most cases attendance is not possible at both because they meet at the same time. Nevertheless, it is reasonable to regard the setting up of more Select Committees as a response to the demand for more scrutiny which does add to the capacity of the House for the discharge of this function.
33. Our general assessment is that the responsibilities of individual Members, if they take them seriously, are now much heavier than at any time in the history of Parliament. The House meets for some 36 hours each week, excluding Fridays which are nearly always ill-attended and anyway are devoted chiefly to private Members’ business. Though it has never been assumed that all Members must spend this amount of time in the Chamber, it is generally assumed that all will spend some of their time there. There is next, membership of various Standing and Select Committees which may mean only a few hours attendance each week for some Members, but should involve a good deal of reading and preparation, that is if the Member is to make a worthwhile contribution to the proceedings. The public assumes, and rightly so, that a Member studies some of the Blue Books and White Papers which are readily available to him and on which policy and action are frequently based. He has also to attend meetings of his Parliamentary Party as well as attending to the business put to him by organised groups, associations, etc. All these matters would be claims on his time even if he could completely disregard his constituents. But the last things he can disregard for long are attending to constituency grievances and personal contacts with his constituency and local party leaders. If his constituency is far from London, or if he holds a marginal seat, the amount of time consumed in this way can be substantial. Finally, he is unlikely to devote the whole of his time to his Parliamentary and political duties. He may have other occupations either paid or of a voluntary character to which presumably he will have to devote some of his days. There is too the heavy burden on a substantial number of Members who are involved in representing this country in European institutions, notably the European Assembly, but including also the Council of Europe, the WEU Assembly and the North Atlantic Assembly.
34. Even if Members put in more than the current normal working week of 36-40 hours–as indeed most do–there must be a limit to the hours they can work week in, week out, year after year. Beyond this point any extra demands can be met only be dropping or skimping on some other activity. Thus, a substantial increase in the number of committees, even if they all meet in the mornings, can be achieved only by reduced attendances in the Chamber. Some might argue that work in a committee is preferable to listening to others speak in the Chamber. But if this were to be the general view, the logical consequence would be to reduce the number of hours devoted to Public Business rather than to act as though the effectiveness of the Chamber was not reduced, however few Members attended.
35. This heavy and continuously increasing load of work must inevitably reduce the capacity of each Member to act as an individual. If he has not time to study a particular Bill or issue, his easiest course is to follow the party line. He votes or acts as the Whips tell him, partly out of party loyalty but also because the alternative requires not only more courage but also a greater knowledge and understanding of the issue in question. The greater the burden of business, the greater the emphasis on confrontation and three line Whips, and the greater the dislike of anything which puts power into the hands of individual Members not on one of the front benches.
36. The trends of the past twenty or so years do not appear to be a passing phase. Indeed if anything all the signs are that the load is likely to go on increasing. Neither does the record of the two major parties in office show a great deal of difference in their attitude towards legislation and increasing the powers of the Executive. The response of the House of Commons–always remembering that this is a response conditioned by what the Government of the day will allow–has been confused, over-optimistic and opportunist. Essentially it has consisted in maintaining most of the traditional procedures unchanged or merely modified in detail, whilst adding to them whatever new devices could be tacked on to meet what Government or Members felt was a pressing need. Thus in the passage of legislation the introduction of Second Reading Committees has had only limited effect because neither Government nor Members (for different reasons) like to see matters of importance slip from the floor of the House. But the reduction in the normal size of Standing Committees and an increase in their numbers has been accepted, with little attention to the effects this may have on the treatment of legislation. The amount of time devoted to Questions has remained virtually unchanged, despite a big increase in numbers, and a decline in the chances of the individual Member to secure an oral answer. The urge to scrutinise the activities of the Executive more widely has been acceded to, leading to the multiplication of Select Committees. In summary the House has operated in the belief that a quart (or more) can be got into a pint pot. That essentially has been its response to the workload problem: it has declined to make substantial changes in its internal division of labour, preferring instead procedural adjustments and accretions which in total represent a substantial addition to the demands imposed on Members, but without offering any firm prospect that more business will be dealt with more effectively and in a manner perceived by the public as politically satisfactory. Notwithstanding this, the House has shown a great readiness to take on more responsibilities even for the detailed administration of personal services throughout the country, for that in effect is what it does when it agrees to grant more powers to Ministers.
37. The Select Committee, we suggest, needs to start by asking two basic questions which are indicated by our outline of the increasing workload and of the problems it presents.
(i) Has the ever-increasing load of responsibility undertaken by the House made it extremely difficult for Members effectively to perform their functions as these have traditionally been conceived, and to give them the time and attention they need?
(ii) Has the vast increase in the powers of the Executive been matched by an equivalent strengthening of the House to exercise representative control?
If the answer to the first question is in the affirmative and to the second in the negative (and we believe that broadly this is so), then a number of further questions arise to which realistic answers need to be given if any procedural reform is to rise above the level of mere tinkering with the machinery of the House. Is the traditional view of a Member’s functions and of the functions of the House as a whole any longer tenable? Might it not be necessary to consider a completely different balance as between redress of grievances, scrutiny of what Governments are doing, the voting of supply and legislation? Can Members expect to resist much longer the benefits which might be gained from greater specialisation, particularly in relation to legislating, scrutiny of executive action and expenditure control? What might be the benefits of instituting a permanent and specialised legislative committee system to which some at least of the scrutiny work would fall as well, but on condition that the House meets less frequently for Public Business? Is any attempt to adjust the varying abilities and efforts of Members to the increased workload in a manner which would strengthen parliamentary control compatible with the vested interest Government and Opposition either have in maintaining the present situation or in modifying it to facilitate the passage of their business? If indeed the traditional relationship between Government and the House (which is another way of saying Party and the House) stands in the way of all changes which would affect the balance of power in the House and, therefore, allow it to restrain the demands made on it by the expansion of the Executive, would it not be wiser to demonstrate this dilemma clearly, thus at least ensuring that the House knows what the choices are about? There are limits to what can be achieved by procedural adjustments within an institutional framework which remains unchanged in essentials. It might in this connection be held that the passage of the current devolution proposals will represent a major change in the framework within which Parliament operates. We, however, doubt whether they will have this effect or will even contribute significantly to reducing the current level of demands on the House of Commons. Thus we remain of the opinion that if there is no recognition in the House of the serious issues of principal and priority raised by the increased burdens placed upon it, then it is hard to see how it can find any effective solutions to the dilemmas which undoubtedly face it.
l. There has in recent years been a marked increase in the legislative ambitions of Government reflected not so much in the numbers of public Acts receiving the royal assent each session but rather in the growing proportion of such Acts with a high innovatory policy content. Gone seem to be the days when just two or three major Government Bills (plus a single annual Finance Bill) could be said to constitute the main planks in the legislative programme, with the rest being departmental Bills of secondary importance. Thus, any Government proposals for reform have tended to be weighted in favour of changes which enable ministers to expand still further the output of legislation. While this Group certainly would not seek to advance the view that ‘more means worse’, we do consider that very careful consideration should be given to ensuring that any further increase in volume is matched by improved techniques to ensure that legislation is properly examined.
2. We consider first the form of bills. The former Leader of the House, Mr. Edward Short, has spoken of the possibility of making more use of ‘framework legislation’, which would confer upon Ministers a much wider power than they enjoy at present to make Statutory Instruments. Hence one purpose of this Memorandum is to examine some of the implications of this idea, the merits of which are, we submit, open to very serious doubt. But much of what we propose is relevant to the Parliamentary legislative process even if the device of framework legislation is ultimately not adopted, and also connects with more speculative proposals concerning the organisation of the House on which we propose to submit a further Memorandum.
3. The relevant passage in the speech of the former Leader of the House (H.C. Deb., vol. 904, col. 968) is as follows: “… the burden on the House might be altered if more use could be made of what is sometimes called ‘framework legislation’. It is argued that Bills should establish firm principles of law. Their detailed application should be left to Statutory Instruments … laid by Ministers and approved by Parliament. The difficulties of such a major change in our legislative practice are, of course, quite clear. Would the House then have sufficient control over the details of statute law as it affects the citizen? How would the House effectively consider the increased flow of Statutory Instruments? Should it have power to amend them? The amendment of secondary legislation at once raises the difficulty … of vires … Another consideration about this proposal is whether it will give too much power to the courts. Certainly it will extend judicial review to a much greater area of our statute law, because secondary legislation in Statutory Instruments is subject to judicial review, which primary legislation is not.”
4. However, there is obviously a case for framework legislation in the context of devolution. We have noted that the White Paper ‘Our Changing Democracy: Devolution to Scotland and Wales’ in effect suggests the development of such legislation as the following quotations indicate:–
(a) “This division of responsibility for primary legislation and for execution presents some problems. The formal position is quite clear: the (Welsh) Assembly will in general be able to do anything in relation to devolved matters that does not require new primary legislation. This means that its powers will vary from service to service, depending on how far primary legislation lays down detailed requirements. In some subjects Westminster Acts are in fairly general terms, leaving plenty of scope for discretion in day-to-day administration; in others they are drawn more tightly. So the degree of freedom which the Assembly will enjoy at the start of its life will to some extent be uneven.” (Para. 197)
(b) “In time Parliament might wish to give the Assembly greater discretion, by passing legislation which would lay down only broad guidelines, leaving the Assembly to fill in the rest.” (Para. 198)
(c) “In devolved matters the Welsh Assembly will have general responsibility for framing and passing delegated legislation under powers conferred by existing or future Acts of Parliament. There may be some exceptions, but they will be few. In general, the Welsh Assembly will deal with all classes of delegated legislation.” (Para. 201)
(d) “All delegated legislation which at Westminster would be subject to the affirmative or negative resolution procedure will require a resolution by the Welsh Assembly in plenary session. Some provision will be needed to enable subject committees to act, and report back later to the full Assembly, in specially urgent cases. The committees will in any case play an important part in framing statutory instruments and considering their merits.” (Para. 204)
(e) “Some equivalent is required also to Westminster’s Joint Committee on Statutory Instruments. The Assembly will therefore be required to set up, for the general scrutiny of secondary legislation, a committee broadly representative of the Assembly as a whole and not including any member of the Executive Committee. The committee will thus be as independent as possible of those primarily responsible for promoting the statutory instruments which it will examine.” (Para. 205)
Thus when the powers conferred by framework legislation are to be exercised by a Welsh Assembly, the objections we set out below to framework legislation do not apply.
5. It is the considered view of this Group that the scepticism felt by many MPs both about reforms designed first and foremost to ease the passage of Government business and about the adequacy of existing machinery for scrutinising subordinate legislation, underline the difficulties of the proposal for framework legislation. In our view for reasons which we give below the balance of argument, bearing in mind the interests of the ‘consumer’ of public legislation as well as the future health of parliamentary government, lies conclusively against the substantial deployment of framework legislation along the lines proposed.
6. This Group does not seek to resurrect the view that delegated legislation is inherently a bad thing; at best a necessary evil, at worst an infringement of fundamental constitutional principle. Some primary legislation is essentially of an administrative character, protracted discussion of which merely serves to re-open policy issues which have been gone through at length on earlier occasions. This is not necessarily undesirable, but such measures as, for example, those which raise the borrowing limits upon public authorities to keep pace with inflation, might with advantage be superseded by suitable anticipatory enabling provisions (provided that adequate facilities are provided for scrutiny of the resultant Statutory Instruments). We recognise, however, that there would be political as well as technical problems in consigning Bills to an ‘administration’ category for this purpose.
But the proposal for framework Bills seems designed principally to restrict the parliamentary stages of debate upon legislation which seeks to make policy innovations. Such a development, particularly if implemented on substantial scale, raises basic questions about Parliament’s place in the legislative process and about open government based upon public discussion which transcend the otiose debate about whether delegated legislation per se is in violation of the rule of law. And although this Group strongly supports the general objective of simplifying and clarifying the Statute Book, as recommended by the Renton Committee, we would point out the possibility that greater generality in drafting might well give rise in practice to a much greater use of enabling powers–in effect, to framework Bills.
7. Insofar as this Procedure inquiry has been prompted by reference to feeling both inside and outside Westminster that Parliament has increasingly relaxed its grip upon what Governments do, it will be paradoxical if that inquiry is asked to countenance the granting of further powers to ministers to make delegated legislation unless Parliament’s ability to scrutinise these Instruments is also enhanced. Increased delegated powers will tend to shift the centre of gravity of the legislative process still further towards Whitehall, with few if any compensatory advantages accruing to Parliament in the form of enhanced capacity to debate primary legislation. It is a major weakness of the parliamentary stages of the legislative process that parliamentarians are not only scarcely involved at all in pre-legislative deliberations, but are also given insufficient background information while Bills are going through, and lack adequate feedback about the way Acts operate subsequently in practice; this is true a fortiori of secondary legislation. Certainly in the event of framework Bills being extensively resorted to there would be need for substantial changes in existing procedures for considering Statutory Instruments on their merits as well as for reviewing the technical and substantive implications of the primary enabling legislation itself.
8. It is questionable whether framework Bills would result in any compensatory saving of time on the Floor of the House which could be used for other purposes (such as pre-legislative debates of a kind suggested by some Members, or general scrutiny of the activities of the Executive). As the Procedure Committee itself recognised in its 1967 report Public Bill Procedure, etc., (H.C. 539, 1966-67, para. 22), the exclusion of detail from Bills ‘may actually provoke rather than discourage discussion’. Even in committee, discussion of principle (particularly if a Bill is contentious) can intrude heavily into clause-by-clause discussion of detail, and omission of such detail might well prolong debate as Members seek reassurance about how ‘general’ clauses will apply in practice.
9. It was further argued in the 1966-67 Procedure Committee Report that consigning more detail than at present to Statutory Instruments would adversely affect the intelligibility of legislation by distributing the written law on a subject between a multiplicity of sources. As recognised by the Renton Committee (ante), those responsible for drafting statute law have not always adequately reconciled the different needs of legislators and consumers or those of different categories of consumer; the same is true a fortiori of delegated legislation, the ever-increasing bulk and complexity of which (compounded by the proliferation of EEC regulations) must daunt even the specialist user. The additional scattering of delegated legislation which would follow in the wake of framework Bills would, this Group believes, exacerbate the serious problems which now face the statute user.
10. A powerful argument against any change which would result in a substantial growth in the output of Statutory Instruments is the manifest inadequacy of present parliamentary machinery for examining such Instruments on their merits, in particular, the continuing absence of adequate facilities for debating Prayers against Instruments subject to the negative procedure. During the 1950s the Government promised that all such Prayers would be debated. But the 1970-71 report of the Procedure Committee The Process of Legislation (H.C. 538, 1970-71) stated that: ‘the failure of Governments of both major Parties to find time to debate Prayers has led to a breakdown of part of the process of legislation … Your committee believe it to be of cardinal importance that the House should appreciate the gravity of the inroads into its power of control of legislation.’ (para. 42). Following the First Report of the Brooke Committee on Delegated Legislation (H.L.188, H.C. 407, 1972-73), a body which was established in response to one of the Procedure Committee’s recommendations, a Joint Committee on Statutory Instruments was created out of the House of Commons Select Committee on Statutory Instruments and the House of Lords Special Orders Committee, to rationalise the technical scrutiny of Instruments. This aspect of the function of Parliament in monitoring Delegated Legislation is generally acknowledged to work well (though it does not at present extend to considering the enabling power conferred by primary legislation). More crucially, in March 1973 it became possible, subject to general agreement, to refer consideration of the merits of Instruments subject to both the negative and affirmative procedures to specially constituted standing committees on Statutory Instruments; this facility has recently been extended to European secondary legislation and to Church of England Measures.
11. While it is certainly true that some useful discussion of Delegated Legislation has taken place in these committees, it is clear from a perusal of Committee Hansard that, contrary to what was said when they were first set up, the main beneficiary of the change has been the Government, which has managed to move discussion of many of its affirmative resolutions off the Floor of the House (though we lack evidence of whether or not the time ‘saved’ is used wholly for Government purposes). In 2½ years from March 1973 to the end of the 1974/75 session the standing committees considered 23 Prayers (the overwhelming majority having been tabled by the official Opposition) and 149 affirmative resolutions; in the same period 20 Prayers and 215 affirmative resolutions were debated on the Floor of the House. It is clearly open to question, moreover, whether the form of these committee proceedings–a ‘take Note’ motion, with a time limit for the debate and with no opportunity for an effective vote in the committee or for subsequent debate on the Floor of the House–gives adequate opportunity for meaningful pronouncement upon the merits of either affirmative or negative Instruments. It is clear that if the Procedure Committee’s warning was well-directed in 1971, then that warning merits repeating, for nothing in principle has changed. The great majority of Instruments subject to the negative procedure are never debated, and back-benchers are discouraged from tabling Prayers, knowing that they will not be discussed. Even in the absence of any movement in the direction of framework legislation there needs to be a further reappraisal of the machinery by which the merits of Instruments can be monitored by Parliament and probably a review of the long-standing incapacity of Parliament to amend Instruments, though that might involve undesirable complications to which we refer below.
12. At present Statutory Instruments cannot be amended by the House. This obviously must change if quite important legislative provisions of a type now normally included in the body of a Bill are to be relegated to Instruments. In the case of Instruments of this sort the political confidence of the government would be more heavily engaged than is the case with ordinary delegated legislation; this would seem to argue that they should be submitted to the same political scrutiny and possibility of amendment as at present is the case with Bills. It would be unacceptable if the Commons were faced with a take it or leave it situation in respect of important subordinate legislation.
However, a power of amendment would, as the former Leader of the House hinted (para. 2 ante), raise technical problems as well as political ones. For example, amendments would have to be watched carefully to see that they did not threaten to render an Instrument ultra vires the parent Act. And there would have to be machinery for amendments to be agreed between the two Houses, as with primary legislation.
13, Furthermore, if Statutory Instruments are to be capable of amendment, this points to a committee stage for them in the Commons, which ideally should be entrusted to a standing committee. The main proposal of this submission is that the same standing committee which deals with the ‘framework’ bill in the first instance should be kept in being or re-convened (preferably the former–see below) with the same chairman and membership to consider the Statutory Instruments made under the Act. There would be considerable advantage if this kind of continuity of specialised interest could be thus institutionalised. As has already been noted, the present arrangements for the scrutiny of delegated legislation by the House, particularly of its ‘merits’, are deficient. Such standing committees, aware that subordinate legislation would ultimately be put before them, would be less likely to feel the need to satisfy themselves about detailed administrative provisions at the time when the framework Bill went through, thus meeting one of the objections to this innovation. But the amendment in committee of important Instruments points logically to a Report stage for them, either in committee or on the Floor, depending, presumably, on the importance of the legislation. There is also the question of whether the Parliament Acts would apply to such subordinate legislation, with the possibility of Lords’ amendments. In the end it may well be concluded that framework legislation opens up so much in the way of consequential changes that it is self-defeating in terms of legislative time saved.
14. The objections to the introduction of framework legislation can thus be summed up under the following heads:
(i) Scepticism whether the major premise of the case for framework Bills, i.e that the present executive-dominated parliamentary procedures for scrutiny of government Bills constitute a serious and unacceptable obstacle to the enactment of an allegedly mandated legislative programme, is well founded.
(ii) If there is a tendency for Parliament to exercise an increasingly peripheral role in the legislative process, we consider that this should be resisted rather than assisted.
(iii) Consumption of more rather than less parliamentary time as Members seek information about the detailed implications of general clauses.
(iv) Increased scattering of legislative provisions to the detriment of the consumer.
(v) Continuing weaknesses in the procedures for examining the merits of Statutory Instruments, and increased complexity in the procedures that would be required.
15. Since in most Departments which sponsor legislation there is a high degree of continuity and incrementalism in both legislative and administrative policy, it would be desirable if this element of continuity and specialisation were to be matched by an appropriate legislative organisation of the House. This would seem to point to a system of permanent and specialised standing legislative committees–in effect a return to the original rationale for standing committees when they were first devised a century ago. It is not generally appreciated the extent to which specialisation and permanence are lacking in the present system of standing committees. In standing committees there is no continuity of membership from Bill to Bill–a fresh committee is made up for each Bill. There is the problem of work-load; some Departments sponsor more legislation than others, and it might be necessary to group a number of small Departments under one committee to even out the number of Bills with which each had to deal. It might be necessary to allocate two standing committees to deal with the output of a major Department. Nor should the possibility of minor Bills being dealt with by sub-committees be discounted. Special arrangements would need to be made for the committee stage of Private Members’ Bills.
16. If this reorganisation of the structure of standing committees were to come about, there is a strong case for simultaneously introducing more flexibility into their procedure. Government Bills vary widely in character, and the totally adversary character of present proceedings in standing committees is very often inappropriate to a thorough investigation by backbenchers of the merits of particular Bills. Recently some attempt has been made by procedural reformers, including the Study of Parliament Group, to find ways of drawing Parliamentarians more closely into the deliberative stages of legislative policy, through a more inquisitorial Commons procedure, either as a stage in the passage of a Bill through Parliament or as a preliminary pre-legislative stage. To a large extent this is a reaction to the deficiencies of the adversary procedures of Parliament as they affect the legislative process, in particular the fact that one side (the Government) holds nearly all the best cards. One aspect of this is the degree to which essential information about the background and provenance of government-sponsored Bills is difficult to come by unless the Bill has been preceded by a White Paper or some other statement of detailed legislative intention; only explanations in general terms are given by Ministers on Second Reading. At the committee stage, although Ministers do occasionally release information to committee members in the form of circularised documents and notes on clauses, in general no standing committee has available to it that sort of information of the kind recorded in Departmental memoranda and minutes and in the briefs prepared for Government spokesmen.
17. In its evidence to the Select Committee on Procedure of 1970-71 (The Process of Legislation–H.C. 538 Appendix 6) the Study of Parliament Group recommended both pre-legislative committees of a select committee type and that standing committees should be able to decide for themselves how to tackle Bills, if necessary incorporating an investigative evidence-taking session in their procedure. We reiterate these proposals in this present Memorandum. It is believed that many Members feel that service on Standing Committees is tedious. A principal characteristic of Standing Committees is their lack of initiative. They are never able to ask what is the best way of treating a Bill. Whether the Bill has 100 clauses or 2, whether it is likely to be contested on party lines, non-party lines or not at all, whether the Committee has 50 members or 16, it still has to deal with a Bill in a pre-ordained manner. But while many Bills profit from detailed public debate conducted on adversary lines, not all Bills do so. In some cases there may be a very strong case for the public examination of such essential matters as the evidence on which major clauses are based; or the degree, intensity and content of any prior consultation and the relevance of Bills to on-going Departmental policy. For these reasons committees on bills should be given power to send for persons, papers and records and to appoint sub-committees if they so wish and thereby to take evidence. This proposal may require a time limit for the committee stage. The Committee may wish to seek evidence from the Canadian House of Commons on their system of examining bills. We understand that a system of specialised committees has worked well there since 1968, especially in respect of legislation, and that these committees hold many valuable public hearings on Bills (one of the deficiencies of our present system is that there is no official contact between the committee and outside interests and no opportunity for direct public involvement).
18. So far as pre-legislative committees of the House are concerned, the Group made suggestions to the Procedure Committee which considered the Process of Legislation concerning their use, and was gratified that the Committee made favourable recommendations. We draw the attention of the Committee to the Report of the Procedure Committee 1970-71, H.C. 538, paragraph 9, and to the evidence of the Study of Parliament Group at that time, ibid., Appendix 6, paras. 4-6, with the proviso that if standing committees were to become specialised, any pre-legislative investigation would more appropriately be carried out by them rather than by ad hoc select committees.
19. As well as drawing the House into the deliberative stage of legislation by these means, there is perhaps an even more acute need for some post-legislative monitoring of the effects of legislation, at least in respect of Acts which give rise to peculiar difficulties in the courts or in administrative application. Parliament is not only starved of information while Bills are being formulated and passing through their legislative stages. It also lacks systematic feedback from those groups and individuals affected by laws to enable it to learn from its mistakes. Bills tend to be treated as self-contained entities, virtually in isolation from what has gone before and from what may happen later, whereas most Bills are only an exclamation point in a continuous process of developing and applying policy. This sort of insularity is exacerbated by the form in which legislation is drafted, giving MPs little guidance about the purpose of Bills in the context of Departmental policy, and producing Acts which, as the Renton Committee (ante) remarked, are unhelpful to consumers of statute law. The specialised standing committees of the House which are recommended here should develop the function, through their investigatory procedure, of checking periodically on the effects of the implementation of major legislation. This reiterates the proposal made by the Procedure Committee in its enquiry into The Process of Legislation, H.C. 538, 1970-71, paragraphs 10 and 11, on “Post-legislation Committees”. The difference is that the Group suggest that this selective monitoring be done by specialised standing committees with investigatory powers; the Procedure Committee recommended ad hoc select committees with members drawn from the original standing committee.
20. From the point of view of the Government, Report stages of bills reported from Standing Committee are potentially a bottleneck in the legislative programme. At least a full day has to be devoted to the Report stage of every Bill (apart from the least controversial), often a very long day, and sometimes more than a day. And if the Opposition–or even a back-bench dissident group–wish to delay the Bill’s progress it is usually easy for them to do so without stretching Parliamentary proprieties in any way, simply by tabling large numbers of relevant amendments which were not considered during the committee stage, and an extra day or part day may have to be considered. Thus at Report Stage the Government’s programme is to some extent at risk. However, there is one simple advantage of the present system for the Government: because proceedings are on the Floor of the House they have more sure control of the outcome, especially in these days of narrow majorities, than they have while the Bill is in Standing Committee.
21. For the official Opposition, the advantages of this present system are the obverse of the Government’s disadvantages, plus the fact that it is at this stage that they can hope, by means of greater publicity for proceedings in the Chamber, to obtain maximum public exposure of what they see as the bad or unpopular features of the Bill. The main disadvantages are that they are often rushed in preparing their arguments for a Report Stage which is to be concentrated into one day and that the more formal proceedings on the floor of the House are less well suited for consideration of detail points than the procedure in a committee.
22. For minority parties and for some back-benchers, the present system has the great merit of enabling every point of view to be expressed, including, especially, points of view that were not expressed at all in committee because the relevant parties or Members were excluded. For the great majority of back-benchers, however, the overriding disadvantage is that large (and sometimes very large) numbers of Members, are required to hang around the House for long hours while a few (sometimes very few) Members debate in the Chamber detailed points on a Bill in which the great majority of Members have little immediate interest. Often the only Member playing any part in the House on a Report Stage are the very same Members who discussed the same issues in Committee–and rightly so, for often only they will know the facts and be familiar with the arguments concerned.
23. Overall, the present Report Stage system seems to us far from satisfactory. We wish to suggest the following proposals to the Committee for their consideration, which are designed to secure advantages for all elements in the House without further disadvantages.
24. When a Bill is completed in a Standing Committee, it should be formally Reported to the House as at present. If it is totally or almost totally uncontroversial or if very few Amendments are tabled for consideration, then the Report and Third Readings could go ahead as at present.
25. If, however, it is more controversial or there are numerous Amendments a motion could be moved (normally by the Government, but if they failed to do so, it could be moved by other Members) that the Bill, or part of the Bill or all but certain specified Amendments to the Bill be recommitted to the Standing Committee. After a brief statement in favour and, if desired, against such a proposal, it would be voted on. Subject to the Speaker’s selection, Amendments could also be permitted to such recommittal motions, to be similarly explained and decided. For instance, if the Government proposed that the whole Bill should be recommitted, the Opposition would have the chance to argue and secure a vote on the desirability of retaining certain clauses or specified amendments on the Floor.
26. Any proceedings on the Bill on the Floor of the House would then be taken first (as with the Finance Bill in Committee today) under present Report Stage procedures.
27. Procedure in the Standing Committee should, however, be as for any Committee Stage, i.e. no restriction on the right of Members to make more than one speech, with three important distinctions. First, any Member of the House should have the right to attend, speak and move Amendments but not to vote or count in the quorum. Second, no question would be put, at this stage, on Clauses or Schedules standing part of the Bill. And, third, the Chair would exercise the same strict principles on the selection of Amendments as the Speaker does on Report Stage today; the recommittal stage should not be simply the repetition of the Committee’s work.
28. At the end of the recommittal stage, the recommitted Bill, or parts of the Bill, would be reported to the House. When this came up for consideration there would be no further opportunity for full debate on Amendments, but, subject again to the Speaker’s powers of selection, further Amendments could be moved and decided, after brief explanations, for and against, if required. These would presumably be of two kinds: major Amendments fully debated in Committee to be put to the House as a whole for a vote, and, of course, further Government Amendments (fulfilling undertakings given at the recommittal stage, for example).
29. The whole Bill would then be appointed for Third Reading. We make no suggestions for changes in the procedure at this stage.
30. Any substantial Lords Amendments could be similarly referred to the Committee that considered the Bill, if extended debate were expected. When reported the House should be given an opportunity to vote on them without further debate, but if desired, all the Lords Amendments could be put before the House on a single question.
31. Standing committees of the House, in the absence of any wider reform, should be developed and made responsible in their field for the Committee and to a large extent the Report Stages of Bills, for the scrutiny and, if necessary, amendment of Statutory Instruments which emanate from Bills, with investigatory powers and with functions in relation to post-legislative scrutiny. Such developments seem to us desirable in their own right; if the principle of framework Bills is to be adopted they are the only way that the House of Commons can maintain its legislative authority.
l. In evidence presented to the Procedure Committee in 1965 the Study of Parliament Group proposed an extension of the committee work of the House. The intention was that committee inquiries would provide a wider fund of information for Members which would assist them in the task of scrutinising the actions of the executive. The Study of Parliament Group recommended:
“(a) that the Estimates Committee should be enlarged to make possible the use of more sub-committees, which would specialise in particular areas so as to cover the whole field of Government vote-borne operations and report on the conduct of administration and on matters necessary for the understanding of policy questions.
“(b) Specialist Committees are needed to scrutinise the actions of government in their own fields, to collect, discuss and report evidence relevant to proceedings inParliament, whether legislative or other …”
2. After some hesitation and delay, there was broad acceptance of the spirit of these proposals although the precise form of the committee work did not follow the proposals of the Study of Parliament Group. The first of a new style of Specialist Committees was established in 1966 to review aspects of the work of the Ministry of Agriculture. A decade later the time is ripe for a review of the experience gained. The Select Committee on Procedure has not examined the developments of the Select Committee structure since its 1968-69 Report on the Scrutiny of Public Expenditure and Administration. The Study of Parliament Group has recently published its own findings in this field (Specialist Committees in the British Parliament: The experience of a decade PEP Vol. XLII No. 564 June 1976), and the following paragraphs summarise its arguments and conclusions.
3. The specialist select committees can be divided into two categories, subject committees and departmental committees. Without question the subject committees have fared better. The Select Committees on Science and Technology and on Race Relations and Immigration appear to have gained a permanent existence while the original departmental committees have disappeared with the exception of Overseas Development which may now be more fairly described as a subject area.
4. There are many reasons for the relative success, when judged in terms of longevity, of the subject committees. They are not concerned with the work of a single Department; so no Department feels that it suffers discrimination by having a Select Committee always ‘on its back’. A subject committee attracts support from Members who are sympathetic to a cause, e.g. more scientific development or better race relations. As these causes are supported by Governments of all parties there is a basic harmony of outlook between the subject committees and the Departments with which they deal. Further, the subject committees attract support from voluntary organisations active in their particular sphere. Indeed, in the past we have under-estimated the extent to which parliamentary committees could become a focus of attention for pressure groups.
5. In the session 1970-71 the Select Committee on Estimates was replaced by the Expenditure Committee. This change followed the recommendations made by the Procedure Committee in their First Report for Session 1968-69. The intention was that the re-named committee should look more methodically at the pattern of state expenditure; this objective was to be facilitated by the appointment of sub-committees each of which would concentrate upon a specified area of government activity. Specialisation by the sub-committees was expected to make their work more effective.
6. Over the past six years the sub-committees of the Expenditure Committee have interpreted their task variously. The Defence and External Affairs sub-committee has stayed closest to the original intention by maintaining a broad survey of defence expenditure. Other sub-committees have continued rather in the fashion of the former Estimates Committee by picking out particular topics, e.g. New Towns. Other Reports have covered matters of contemporary political interest–e.g. Wages and Conditions of African Workers employed by British Firms in South Africa.
7. In recent years a limited number of Select Committees have been nominated to consider problems which are likely to be the subject of future legislation. This use of Select Committees to consider policy and legislative questions returns to 19th century practice.
8. The remaining development that demands notice is the regular appointment since May 1974 of the Select Committee on European Secondary Legislation. The purpose of this body is to draw the attention of Members to proposals emanating from the European Community and provide more detailed information about them.
9. The growth in committee activity has added substantially to the burden of work on Members. In the session 1974-75 291 Members served on Select Committees: 91 Members served on more than one–this figure excludes sub-committees. A total of 816 meetings were held on Select Committees and their sub-committees: 629 of these meetings were concerned with policy questions or the scrutiny of administration. Over a decade the number of such Select Committee meetings has approximately trebled. In the Session 1964-65 there were 223 Select Committee meetings that fell into this broad category out of a total of 342 meetings.
This calculation may slightly over-state the additional burden on Members because since 1968 attempts have been made to restrict the size of Select Committees.
10. There has also been a corresponding increase in the demands made upon the civil service in the preparation of evidence and supporting memoranda. Taken together the Select Committees on Public Expenditure, Science and Technology, Race Relations, Overseas Aid and Scottish Affairs received no fewer than 292 memoranda from Government Departments during the 1970-74 Parliament. In the same period these committees took evidence from 1,878 witnesses including 332 appearances by civil servants. Ministers are less involved: in the 1970-74 Parliament there were only 14 occasions when Ministers appeared before these Select Committees.
11. Select Committees also need resources of their own to help them organise their enquiries. The Clerks have provided the traditional source of assistance. The staff and resources of the Library are also available to provide information. Since 1966 a number of part-time specialist advisers have been recruited to assist with particular investigations. Two officials from the Exchequer and Audit staff assist the Defence and External Affairs sub-committee of the Expenditure Committee and most recently four civil servants have been seconded to assist the Select Committee on European Secondary Legislation. Thus some committees have more staff than others but the total of resources used by them is small in relation to the wide range of enquiries undertaken.
12. Select Committees have demonstrated their independence of the Government in the choice of subjects for their enquiries and in the varied style of their reports. Some committees have courted publicity and others have not. They appear to have varied audiences in mind. Some reports are clearly intended to be of assistance to the House as a whole by providing Members with information. On other occasions the purpose of a report appears to be an attempt to exert influence on a Government Department. Reports dealing with policy issues may be designed to have a wide impact on public opinion.
13. Reports have three alternative objectives: scrutiny of administration, financial control and development of policy. These objectives overlap and any particular report may have more than one of them in mind. Reports dealing with policy attract the most public attention; those concerned with scrutiny of administration get the least notice. Members also seem to be attracted by policy issues. Committees dealing with controversial subjects secure a high level of attendance, e.g. the Select Committee on Abortion.
14. A committee will carry most weight if its membership is broadly based and it is felt to have taken an informed view of the issues under consideration. A committee with restricted terms of reference tends to attract supporters for a particular cause. It may promote claims on public resources. Such claims may be well merited. Nevertheless, a small group of Members enthusiastic about a particular subject do not necessarily reflect opinion in the House as a whole.
15. It is impossible to make a precise judgement about the value or the influence of the work of Select Committees. The conclusions in a committee report may anticipate a subsequent change in Government policy, but one must not argue post hoc ergo propter hoc. Some recommendations that are acceptable to Ministers on political grounds may none the less have no effect on policy. Certainly there have been examples where a Department has accepted the recommendations of a Committee, e.g. the proposal of the Employment and Social Services Sub-Committee of the Expenditure Committee that the provision of youth employment services should be a mandatory duty for local authorities. The proposal was in accord with the broad trend of public policy: it may be argued that the Committee was merely giving a Department a shove along a road it was willing to travel.
16. There are many examples of Committees having difficulty in obtaining information from Departments. There have been criticisms about delays in official response. The Fifth Special Report of the Expenditure Committee in session 1971-72 complained that the first set of observations produced ‘in response to the committee’s urgent request’ was received on 15 July when the report was due to be debated on 24 July, five months after the date of publication. This incident related to the Defence and External Affairs sub-committee which has been active in following up the consequences of its earlier enquiries. Other committees have not ‘followed up’ to the same extent. Changes in membership, especially a change of chairman, lead to alterations in a committee’s priority of interest–in some respects a healthy tendency. However, the delays in official response to committee initiatives must cast serious doubt on the degree of importance attached to their reports by Departments.
17. Again, it is impossible to judge how far reports influence Members. The reports are so numerous that Members may not find time to read most of them carefully. Scarcity of time in the Chamber ensures that few reports are debated. Such debates as are arranged tend to be poorly attended: the majority of contributions may come from Members who served on the committee that prepared the report. No doubt, this is because the subject matter of the reports tends often to avoid the red meat of politics, the issues which produce a head-on collision of view as between the major parties.
18. It is arguable that the development of scrutiny of executive action by Select Committees has been absorbed fairly smoothly into the life-style of a legislature based on an adversary two-party system precisely because such collisions have been avoided. This could be taken as an argument against extending Select Committee work into more controversial areas of public policy, and also an argument against the view, which we propose to consider in a later Memorandum, that the bulk of the work of the House should be undertaken in Committee. But recently there have been encouraging signs that Select Committees can achieve some considerable success in areas which have given rise to some embarrassment for Ministers and Government Departments. We have in mind the penetrating criticisms of Government budgetary policy made by the General sub-committee of the Expenditure Committee, and also the Reports of the Defence and External Affairs sub-committee of the same body, which has recently been highly critical of aspects of official defence policy. The Trade and Industry sub-committee, in its Report on the British Leyland affair, managed an impressive degree of unanimity amongst Committee members of widely differing political views. The Select Committee on Science and Technology has been similarly successful, and their work and that of the Expenditure Committee has provided a basis for public discussion which has been altogether different in quality from general debates on the floor of the House.
19. It is considerations such as these which lead us to think that the Select Committee structure of the House could be reordered and its tasks expanded to take in more of the work, especially the legislative work, of the Commons. There are, however, still doubts amongst some members of the Study of Parliament Group as to whether the largely adversary party situation in the present House of Commons is not basically hostile to such an expansion of Select Committee work, and whether a different political structure is not needed to allow Select Committees to realise the potential which they undoubtedly have. So far, with rare exceptions, the minor political parties have not played an important part in Committee activity. Should the Commons move to a long-term situation in which no party had a majority, the role of Select Committee enquiries could change significantly.
20. The foregoing analysis suggests four conclusions.
(a) The extent of Select Committee activity must be related to the willingness of Members to undertake this work and its effect on the performance of other aspects of their parliamentary duties. It is unlikely unless there is a fundamental re-organisation of the whole method of operation of the House that there can be any further major total expansion of Select Committees. Change must therefore take place in the context of reallocation of effort rather than growth.
(b) The general public and Members themselves are more interested in policy than in scrutiny of administration. This does not mean that Select Committees should abandon their concern with administration. It was argued above that financial scrutiny and consideration of policy cannot be separated from scrutiny of administration. In addition the Comptroller and Auditor General and the Parliamentary Commissioner for Administration will continue their expert superveillance of the executive and report to Parliament.
(c) Select Committees which are reappointed regularly should be given broad terms of reference which enable them to move freely from one subject to another, and range freely over all Parliamentary aspects of their remit. Alternatively, a Committee may be established for a single session to examine a particular problem. When a Committee is reappointed year after year with a limited focus there is a prospect that parliamentary resources will not be used to the best advantage since too much priority can be devoted to particular problem areas. Such committees can become a constant target for pressure groups inside and outside Parliament.
(d) The present pattern of committees has grown in response to unrelated interests rather than being planned. As a result some relatively minor topics, e.g. overseas aid, receive regular attention while the major political areas, e.g. housing and foreign affairs, get relatively little attention. It appears desirable to establish a more systematic distribution of committee work, which would reflect the interests of all Members.
Prepared by Simon Patrick, 13 June 2001