Evidence on Public Bill procedure, 1971

This memorandum was submitted to the House of Commons Select Committee on Procedure, and was printed with the 2nd Report of Session 1970-71, The Process of Legislation, HC 538, as Appendix 6 to the Minutes of Evidence, pp 304-9.

PUBLIC BILL PROCEDURE

Memorandum by Professor A. H. Hanson, Professor P. G. Richards and Mr. S. A. Walkland, on behalf of the Academic Members of the Study of Parliament Group.

The Study of Parliament Group is a private group of university teachers and officers of both Houses of Parliament. This evidence was prepared by Professor A. H. Hanson, Professor P. G. Richards and Mr. S. A. Walkland. It is submitted on behalf of the academic members of the Group but does not necessarily reflect the views of every member.

INTRODUCTION

1. How difficult should it be for a Government to secure the passage of legislation to which it is committed? This is the central issue raised by any recommendation of Public Bill procedure. The outcome has to be a balance between conflicting considerations. The Government must be able to govern effectively so long as it commands the confidence of the House. Ministers must be required to explain and justify their legislative proposals. Equally there must be opportunity for their measures to be opposed both in principle and in detail. There must be time and opportunity for Ministers to have second thoughts. In broad terms we accept that present procedure achieves an acceptable balance between these aims.

2. A strong case can be made for the proposition that the House should pay more attention to the aftermath of legislation. Since 1965 the organisation of the House for administrative scrutiny has developed considerably. Yet few of these changes have been directly concerned with legislation. However, the human resources of Parliament are not inexhaustible. While it may not be feasible at the moment, we urge the Procedure Committee at some stage to consider how the House could examine whether the intentions of legislation are realised. Just as it is argued that Parliament could “get into the act earlier” so there is a case for staying with legislation longer to complete, as it were, the life cycle of a bill.

3. The suggestions which follow are not concerned with radical changes in procedure for legislation that is the subject of high controversy between the main political parties. They do attempt to strengthen the role of Members in relation to measures which are not at the centre of party conflict. They propose changes to achieve a better use of parliamentary time. They also aim to strengthen parliamentary scrutiny of subordinate legislation.

PRE-LEGISLATIVE COMMITTEES

4. We believe that Members should be associated in a more positive way with the formulation of policy contained in legislation. Up to the middle of the last century select committee reports were frequently used as the basis for legislation. In a still earlier period the chairman or another committee member would bring in a bill which embodied the committee’s recommendations. This is mentioned to put the idea of pre-legislative committees in historical perspective. Select committees came to be superseded by the extended use of Royal Commissions and, later, of departmental committees, for investigatory purposes. While this eased the burden on Members at a time when the weight of other parliamentary business was increasing, it has had the long-term result of often making them the only interested body of persons not consulted when a bill is being prepared. They may be invited to express opinions on a White Paper on a forthcoming Bill, but this is not a satisfactory substitute for participation in the consultative process by which legislation is shaped.

5. It would not be possible or desirable to return to the earlier reliance on select committees. There are however at any one time a number of matters under enquiry which may become the subject of legislation. Examples in recent years include the whole field of consumer protection, pollution, and the protection of the individual’s right to privacy. A select committee of one or both Houses of Parliament can perform an important function in reviewing the results of such outside enquiries and the state of informed opinion thereon as a preliminary to indicating the broad shape of legislation on that subject. It would be the task of such a committee to investigate a subject in depth only where no comparable outside enquiry had taken place; a recent example of a (joint) select committee undertaking this primary task was the Joint Committee on the Censorship of the Theatre.

6. The select committee’s power of sending for persons, papers and records would enable it to keep in close touch with departmental thinking on the subject under examination. Indeed, a committee would be established in the normal way on a Government motion after consultation through the usual channels. In view of the pressure on the availability of Members and the officers of the House(s), this process would enable decisions to be made on the relative importance of various subjects of enquiry. Although a committee would conduct its task with a view to subsequent legislation we do not think it should attempt to combine investigation with drafting. In most cases its work would be complete when it had reported to the House on desirable objectives of legislation and methods of implementing these objectives. When the Government had already undertaken some exploratory work on a subject, they might submit to the committee draft clauses which formed a preliminary expression of a Departmental view. Such draft clauses, like a Green Paper, would not commit the Government; they would simply give some direction to a committee’s enquiries and keep firmly before it some aspects of a potential enactment.

7. The committee’s proposals could become the basis of a Government bill or a private member’s bill. It would be for the Government or interested private members to convert the recommendations into draft clauses. In view of the uncertainty which might arise if the Government failed to make their own attitude clear, the Government should make an early statement indicating whether they intended to legislate themselves or whether they were prepared to make time available to enable the House to register a decision on the proposals if introduced as a private members’ bill.

PRIVATE MEMBERS’ BILLS

8. The opportunity for private members to introduce legislation is of much value. It ensures that the Government does not have a complete monopoly over projected public legislation. In particular, it permits parliamentary discussion of measures which raise topics that Governments may wish to avoid because the controversy aroused cuts across the normal lines of party loyalty.

9. The private member who wishes to promote a Bill is faced with very considerable procedural difficulties. Briefly these may be summarised as the luck of the ballot, negotiation about the detailed contents of a measure, the organisation of support and the shortage of parliamentary time. The greatest obstacle is the lack of time since no private member’s Bill is ever assisted by a timetable motion. Thus a small group of Members who oppose a Bill, perhaps a much smaller group than that which actively supports it, will be able to block its progress by delaying tactics especially at the Report Stage. No doubt it should be more difficult for private members to carry proposals on to the statute book than it is for the Government. The need is to secure a fair balance between sponsors and objectors. Within the ration of time formally available to private members the objectors are now almost certain to succeed.

10. It has been suggested that the number of supporters required for a closure motion on a private member’s Bill should be reduced from the normal figure of 100 to 50. We are not willing to support this proposal in general. Fifty Members constitute only 8 per cent. of the total membership of the House. So small a proportion of Members should not be able to push through controversial legislation. However, it is arguable that the smaller requirement of 50 should be adequate for a measure that relates only to Scotland–or Wales. Since representatives from constituencies in England may feel that they should not intervene in the domestic legislation of Scotland (or Wales) it may be forever impossible to secure a vote on a contentious private member’s Bill that relates only to these parts of the United Kingdom.

11. We make four proposals:

(i) Except in the opening session of a Parliament, the ballot should be held before the end of the preceding session (normally in July) to give Members fuller opportunity to consider what measures they wish to introduce and to prepare details of their proposals.

(ii) The sponsor of a private member’s Bill should be able to move that it go before a Second Reading committee subject to the conditions that now apply to Government legislation. To prevent queue-jumping such a motion should be taken at the moment when the Bill is due for second reading under existing procedure. Further, this provision should not apply to Bills other than those introduced through the ballot until after the last of the “second reading” Fridays for private members’ Bills.

If experience of this system showed that it reduced the pressure on “second reading” Fridays, then it might be appropriate for a higher proportion of the time available for private members’ legislation to be devoted to the later stages of Bills.

(iii) An Extra Standing Committee for private members’ Bills should be formed as required. This would reduce the incentive to delay an uncontentious measure for the purpose of holding up another Bill further down the queue.

(iv) The main need, however, can be for extra time at the Report Stage. If a private member’s Bill has obtained a second reading and has emerged from committee unchanged in its major features, the Bill should enjoy some protection from the tactics of a filibuster. Yet it may not be practical to achieve this by formal adjustments to the rules of the House. Our proposal is that the Government should be encouraged to feel an obligation to allow the House to come to a decision by, if necessary, permitting a late sitting after ten p.m. The additional burden on the House would not be large; few private members’ Bills that reach the Report Stage arouse great passion. It seems improbable that more than one, or possibly two measures a year would require this facility. Any additional burden on private Members would be one that they themselves would create.

12. It is noted with regret that the time available for private members’ Bills has been reduced in the current session.

STANDING COMMITTEES

13. It is believed that many Members feel that service on Standing Committees is tedious. Often this may be because Members are not well acquainted with the problems with which the legislation before them is concerned. A principal characteristic of Standing Committees is their lack of initiative. They are never able to ask–what is the best way of treating this 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 the one-preordained manner. But while many Bills profit from detailed public debate in the traditional manner, not all Bills do so. In some cases there may be a very strong case for the examination of evidence for and against a proposition. On other Bills, a committee might benefit from a detailed exposition by the draftsman of what some clauses mean. Many Bills would be more quickly and effectively examined by Members speaking when sitting rather than standing. On occasion the Government may be more likely to accept amendments in a closed sitting.

14. It is suggested that each Standing Committee be able to decide for itself how to tackle a Bill. In particular, it should be able to seek power to send for persons, papers and records if it so wished and thereby to take evidence. If it were feared that this might lead to undue delay the Committee could be required to report by a given date.

CONSIDERATION OF BILLS ON REPORT

15. In our examination of the way the report stage is actually used, we have been impressed by two facts. The first is the conclusion, and the evidence submitted to substantiate it, of the Procedure Committee of 1966-67 that “care … is taken to prevent the Report stage from becoming a mere repetition of debates in Committee” and that “a return to a matter already discussed in Committee is almost always the result of undertakings given in Committee that further consideration would be given to it”. The second is that although the House accepted the recommendation of the same Procedure Committee that the report stage of certain bills should be held in a standing committee. this provision has been used only once, though there have been 28 bills since the Standing Order was passed to which it would apply.

16. The belief prevalent among Members and others that there is needless repetition on Report of debate in Committee may be due in part to the fact that Mr. Speaker does not give reasons for his selection of amendments on Report. A Member closely involved with a bill will often have an understanding of why a particular amendment is selected: Members not so involved will be aware only that the House is debating a matter previously debated in Committee. It should also be borne in mind that since the Procedure Committee of 1966-67 reported, the minimum size of Standing Committees has been reduced from 20 to 16, which means that as few as five members, excluding the Chairman, may be present when a bill is scrutinised in Standing Committee. We believe that the House attaches importance to the Report stage as an opportunity for second thoughts and for any Member to be able to comment on the detailed provisions of a bill. We are therefore reluctant to see any restriction on the present scope of debate.

17. Our view of the importance of the Report stage to the House as a whole is strengthened by the apparent neglect of the Report Committee procedure. We hazard the guess that consultation between the usual channels revealed that Members were reluctant to sacrifice their one remaining opportunity to raise points in the House. The Report stage of 8 of the 27 “eligible” bills taken in the House went through without any amendment or debate at all, a reminder that truly minor and uncontroversial Bills are dealt with more expeditiously on the floor of the House than by invoking the comparatively cumbrous procedure of a Report Committee.

THE SESSIONAL “CUT-OFF”

18. Witnesses before earlier Procedure Committees have argued that the so-called sessional “cut-off” imposes a useful discipline on both Government and Opposition. We accept this view. The cut-off obliges Government to keep its legislative programme within manageable limits and at the same time the system forces an Opposition to clarify its attitude. The price paid, however, is the heavy load of Standing Committee work on Members in the early months of the calendar year although the House may have been in session since the end of October with a very light committee programme. There is a case for spreading the burden of work more evenly. So the suggestion is sometimes made that certain bills which had been read a second time late in one session should proceed direct to the committee stage early in the following session.

19. We support this proposal provided its use is restricted to bills which have been considered by a Second Reading Committee. This follows the recommendation of the Procedure Committee in 1966-67. The use of Second Reading Committees reflects the recognition by the House that there are some bills (“consensus legislation”) which are not strictly part of a Government’s programme and which do not attract widespread interest or lengthy debate. The time taken by their passage through the House does not reflect the constraints of the sessional timetable, nor would the provision of more time lead to prolixity in debating them. We recommend therefore that any bill which has been read a second time after having been considered by a Second Reading Committee should, if re-introduced in the next session of that Parliament, be deemed on a motion to have been read a second time and be committed forthwith to a Standing Committee. Notice of the motion should be given and it should be decided without amendment or debate. As the procedure would primarily benefit Government, by enabling them to spread their business more evenly over the parliamentary year, it is only proper that the rights of Private Members should be protected. We recommend that the motion should be regarded as being negatived if twenty Members rise in their places when the Question is put from the Chair.

THE HOUSE OF COMMONS AND DELEGATED LEGISLATION

20. The main agency through which the House of Commons produces a degree of scrutiny of subordinate legislation is the Select Committee on Statutory Instruments, which works unobtrusively to realise a conception of Parliamentary control which dates from the Report of the Committee on Ministers’ Powers of the early 1930s. Experience has shown that the Donoughmore-Scott Committee’s assessment of the level of interest of the House of Commons in the aspects of delegated legislation with which the Statutory Instruments Committee deals was mistaken–it concluded, wrongly, that the Committee would assume only a preliminary function of eliciting facts and assembling a prima facie case against questionable Instruments which the House would subsequently develop. Under the most important heading of its terms of reference–that of unusual or unexpected use of statutory powers by a Department–the Committee have not secured the degree of support from the House which this conception of its function presupposes. Reports to the House have often not been followed up by appropriate prayers to annul offending Instruments; the House has so far shown more interest in the political merits of Statutory Instruments than in their constitutional propriety. In practice the Statutory Instruments Committee holds fairly firmly to the negative line marked out for it.

21. Reports to the House are not reasoned, and give little indication why a particular Instrument has been selected for criticism. Prior to 1945 the House could only be informed orally by a Committee member of the detailed reasons why a particular Instrument fell into any of the categories of the Committee’s order of reference; so the House would be uninformed unless a particular report happened to be debated. In order to present to the House an unbiased view of a Department’s case, the Committee was instructed in 1945 to append to its reports the Ministerial memoranda received in reply to its enquiries, and minutes of any oral evidence. Following evidence to the Select Committee on Delegated Legislation in 1953 where dissatisfaction was expressed with the scant amount of information conveyed by this form of report, the Committee were allowed to preface the Departmental reply with their own letter to the Department which set out the points on which the Committee required enlightenment. This procedure still does not allow the Committee’s considered opinion and final standpoint to be presented to Members.

22. The Committee should be empowered to submit reasoned reports to the House, and to comment on the gravity of an alleged breach of propriety. It could also recommend whether its objections were sufficiently serious to warrant the invalidation of the Instrument. This should make the “watch-dog” Committee more influential and the House more interested in its work.

23. The Committee themselves appear to be moving in the direction of more reasoned Reports. In the recent Special Report the Committee argued that there would be benefit to the House if they were allowed to produce reasoned Reports on Instruments which had been queried with Departments but to which they did not want to draw the special attention of the House. It also referred to the need occasionally to make reasoned Reports on an Instrument or class of Instruments on more general grounds than those contained in their present order of reference. Instruments reported under the proposed extension of their authority–i.e. to cover “any other ground” than those at present specified–will probably require extended comment from the Committee. We recommend that the Select Committee on Statutory Instruments should regard themselves as free to make reasoned Reports to the House under any section of their order of reference.

SUMMARY OF RECOMMENDATIONS

24. Our proposals cover:

(i) use of pre-legislation committees,

(ii) revision of private members’ bill procedure, involving:

(a) holding the ballot in July,

(b) the possibility of Second Reading Committees,

(c) an extra Standing Committee when needed,

(d) the recognition that the House should be able to reach a decision on controversial bills that have wide support,

(iii) more flexible organisation of Standing Committee work,

(iv) limited modification of the sessional “cut-off”,

(v) reasoned reports from the Select Committee on Statutory Instruments.

© 1971, Study of Parliament Group

Prepared by Simon Patrick, 1 August 2001