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Evidence on scrutiny of public bills, 1984

The following evidence was given to the House of Commons Select Committee on Procedure and printed with its Second Report of Session 1984-85, Public Bill Procedure, HC 49-II, pp 72-78. See also the oral evidence.

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Memorandum submitted by The Study of Parliament Group's study group on legislative procedure

This paper is submitted, as is the usual practice, by the academic members of the group. The paper has not been considered by The Study of Parliament Group as a whole, and therefore does not commit the Group. The Study of Parliament Group was formed in 1964. It is a private organisation and is composed of university teachers and officers of both Houses of Parliament.

COMMITTEE SCRUTINY OF PUBLIC BILLS

The practice of appointing committees for the purpose of detailed scrutiny of Bills is of long standing. In the earlier days of Parliament's existence, Bills were sometimes committed to individual Members. ("Bill committed to be perused by Mr Fitzchamberleyn.")(1) In 1571 there is the first official reference to a Bill being sent to a committee of the House.(2) The purpose of so committing Bills has changed little since that time. The committee is expected to consider the details of the Bill ("to render it more generally acceptable" in Erskine May's words) once the House has approved the principle of the measure on Second Reading. That committee stage follows Second Reading is significant and indicative of the role of committees. However, the division of purpose between Second Reading (approval of principle) and committee stage (scrutiny of detail) is no longer replicated in terms of political practice. The partisan debate, when one occurs, on Second Reading is often then carried into committee. The way in which this partisanship has developed, and the procedures that facilitate it, has meant that service on Standing Committees is not popular with Members and the use of committees viewed with some cynicism. For Government supporters there is the chore of attending, voting as requested by the whip, taking on occasion vows of silence and overall having little effect on the proceedings, proceedings which occupy time that could be spent on more productive work. For Opposition Members there is the frustration of attending, speaking at times for the sake of keeping up appearances, and then being out-voted on amendments. The primary weapon, or presumed weapon, at their disposal is that of delay. For Government, such action is an irritant; for the Opposition, a political tactic designed to embarrass the Government. If at the end of the day the Committee has actually improved (made "more generally acceptable") the contents of the Bill--as opposed to approving the amendments introduced by the Minister in charge of the Bill--it is in all probability an unusual and unexpected benefit.

Those who take the view that Parliament's main role is to be a stage where the disagreements of politics are played out in public can accept the frustrations of the present procedures as an inescapable part of the political process, reflecting a well-established balance between different interests in the House; similarly, they will dismiss as unrealistic the notion that major controversial Bills can or should be made more generally acceptable, and they will eschew any suggested reforms that carry with them any risk of lessening the exciting uncertainties of parliamentary life and easing the task of Governments in passing controversial legislation into law. We do not underestimate the force of this point of view, and indeed it is one which is shared by some members of this group. The suggestions in this paper are therefore offered as ones for the Committee to consider if, and only if, they decide that this view of Parliament's role should be rejected and that the risks of any attempt to alter the legislative process are outweighed by the potential benefits.

We have also taken account of the great variety of proposals for reform that have been made and rejected in the past. Many were considered by the Procedure Committee in its 1978 Report to the House.(3) Some of the reforms advocated are radical in nature: for example, reversing the order of Second Reading and committee stage and abolishing the distinction between Select and Standing Committees. Others are less radical, such as the proposal for automatic allocation of time motions. Consideration of such proposals cannot be divorced from the realisation that what is desirable is not always possible to achieve. In seeking to move away from the existing conditions in Standing Committee, one is doing so within the context of a political environment that has shaped those conditions.

Given this, we believe radical changes are unlikely to find favour with the House. However, recent years have witnessed a change of attitude on the part of many Members. They have, in the words of Samuel Beer, substituted a participant attitude toward Government for their previously deferential one.(4) This new attitude clearly underpinned the pressure for implementation of the 1978 Procedure Committee's recommendations and would, we believe, allow for further modest, but significant, reform in the legislative process. The purpose of our submission is thus to draw to the attention of the Committee a number of proposals which could serve to improve the quality of committee-stage scrutiny of Public Bills and which we believe are within the realms of achievability. The proposals can be considered independently of one another, but when taken together make for a significant and coherent improvement in legislative scrutiny. They can be considered under three main heads: allocation of time; Special Standing Committees; and the carry-over of Bills from one session to another.

Allocation of Time

Under the provisions of the Standing Order 46 there is at present nothing to stop the Government moving an allocation of time order for every Bill in its programme. For those who favour timetabling, the problem is thus not one of creating new procedures but rather the way in which existing procedures, by habit and convention, have come to be used. The allocation of time order is seen as a weapon of last resort by the Government; and the Opposition accordingly see it as the most potent symbol of the strength of their objections to a controversial Government Bill that the Government should have recourse to such a procedure. The common name "guillotine" is entirely appropriate in this context.

The Procedure Committee in 1978 did propose a number of modifications to the SO 46 procedure, aimed at making it "more acceptable to Members as a whole"; the most significant were that a minimum of five sitting days' notice should be given of motions under the Standing Order and that the inclusion of more than one Bill in a single motion should be prohibited. However the Committee did not appear to be suggesting that in consequence timetabling might become a regular feature of the House's proceedings. Indeed, it delineated clearly (para 2.34) four significant objections to a "general" system of timetabling. In these circumstances it is not surprising that the recommendations for modifying SO 46 have never been implemented.

The objections which the Procedure Committee advanced to a general system of timetabling were:

  1. timetabling in advance would not necessarily produce a more balanced consideration of Bills, since it is not possible to anticipate the points of difficulty that will arise during their progress;
  2. when a Bill is timetabled there is less need for the Government to respond to argument as they are usually assured of their Bills after a certain time;
  3. the Opposition would lose the opportunity to cause the Government to make concessions through employing the power of delay--"this would amount to a significant constitutional development, to the detriment of all non-Ministerial Members";
  4. since they would not impede the Bill's progress, Government backbenchers would be more likely to play a greater part in debates, reducing the opportunities for the Opposition and other minority parties to participate.

These objections are all, to a greater or lesser extent, open to dispute:

  1. a system of allocation of time in advance does not necessarily imply a detailed timetabling for every stage and every clause of a Bill. There would still be scope for the sort of detailed arrangements and re-arrangements made by the Business Committee and Business Sub-Committees under the present procedure. The Government normally makes no difficulty about complying with Opposition wishes in matters of this kind. In extreme cases, there would be no procedural difficulty in modifying the overall allocation of time.
  2. and c. As J A G Griffith observed in Parliamentary Scrutiny of Government Bills in 1974 "it is easy to overstate the extent to which obstruction by the Opposition causes the Government to change its position". Deals may, of course, be struck behind the scenes but we know of no instance in recent history when the Opposition has managed to obtain a clear and substantial concession by means of delay alone. In contrast, there are several instances where delay achieved nothing but inconvenience and annoyance for the Government. There is little doubt that the most fruitful source of Government concessions is pressure exerted jointly by the Opposition and the Government's own backbenchers. This in not likely to be achieved in a situation where the Opposition has embarked quite deliberately on a war of attrition against the Government and its supporters. Given this, and the existing provisions of SO 46, it is difficult to sustain the claim that timetabling would be a constitutionally significant development detrimental to all non-Ministerialist Members. The essential constitutional power of non-Ministerialist Members rests in their ability to defeat the Government in a division, not in their presumed ability to delay the debate.(5)
  3. There is little to be said for a system that discourages Government backbenchers from participating in proceedings on Government legislation. Indeed, given the greater influence on Government of joint pressure from Opposition and Government backbenchers than Opposition attempts at delay, there is much to be said for encouraging Members to be more involved in the proceedings. Furthermore, one of the main reasons for Standing Committee procedure to be called into question is the dissatisfaction with it expressed by Government backbenchers. It would be paradoxical, therefore, for the Committee not to take full account of the interests of Government backbenchers when considering possible solutions.

The introduction of a general system of timetabling, as may be inferred from these observations, would likely prove less of a radical departure than is normally assumed. Most Members of the House already accept, at least implicitly, that timetabling is a necessary, probably desirable, part of the House's proceedings. If that were not so, it would be impossible for the Whips to make the informal arrangements that daily regulate the passage of legislation. Dates are agreed for Bills to come out of Standing Committee; clauses are hurried through without debate to allow more time on points of major contention; and times are agreed in advance for particular divisions. It is only with a few Bills in each Parliament that serious problems arise. In these cases the objections of the Bill's opponents are so deeply felt that they cannot bring themselves to co-operate in any sense in its passage, or at least they feel they cannot afford to be seen by their supporters outside the House as deviating in any way from the path of outright opposition. The imposition of the guillotine is in these cases regarded as a propaganda prize--a generally accepted demonstration that the Opposition have done all that they could. Subsequent Government concessions on the substance of the measure are usually minimal or non-existent. The threat of delay, in other words, does nothing to render the Bill "more generally acceptable".

The methods of systematic obstruction commonly used to secure the supposed prize of a guillotine have become a time-honoured part of parliamentary life. However, they demean the reputation of the House of Commons as a serious legislative body. Since procedural by-play is usually employed, the Chair is often dragged into party political conflict; indeed, it has been a common experience in highly contentious Standing Committees that the Chairman is placed under greater pressure than the Minister in charge of the measure. Large amounts of energy and man-hours are expended which could be employed more profitably in other ways. Yet it is impossible to identify any substantial benefits that are achieved to compensate for these very real disadvantages.

The introduction of a general system of timetabling would offer clear benefits to Government. It would be assured of its measures being considered within a given time. The irritation of attempts at delay would be dispensed with as would the political embarrassment engendered by the need to introduce guillotine motions. Given this, we consider it essential that the Government concede some of its existing procedural powers in order to render such a system of timetabling acceptable to the House as a whole and to the opposition parties.

We recommend, therefore, that a general system of timetabling be agreed as appropriate for the more efficient operation of the House's function of legislative scrutiny, that the recommendation (to the House) of The allocation of time be undertaken by a committee of the House, and that the decision as to the form of scrutiny at committee stage rest, by convention, with the representatives of the opposition parties.

We believe it essential that formal arrangements for the allocation of time to Bills should constitute a routine and accepted part of the procedures of the House rather than, as now, constitute a weapon available for occasional use by the Government. It follows therefore that the task of recommending the allocation of time be vested in a committee of the House. Such bodies exist in other European legislatures. In Luxembourg, for example, there is a Committee on Parliamentary Business. The West German Bundestag has the Altestenrat, or Council of Elders, responsible for achieving consensus on the organisation and timetabling of business in plenary session. It comprises the President of the Bundestag, his four deputies and 23 other members, including the parliamentary executive managers (whips) of the parties; a Government Minister also attends. A similar body with a wider remit, would appear appropriate in the British context. In his evidence to the 1977/78 Procedure Committee, Lord Glenamara proposed a committee "rather like the present Selection Committee". We have in mind rather an enlarged Business Committee, incorporating more members of the "usual channels" and representatives of opposition parties, with the same functions as exist already for Business Committees (to divide a Bill into parts and allot to the parts such days or portions thereof as they think fit). As in the West German Council of Elders, the aim would be to reach a consensus without the need for a vote.

In this committee, we would propose that the view of the representatives of the opposition parties should prevail as to the form of committee scrutiny. In his evidence to the 1977-78 Procedure Committee, Mr John Wakeham--then a backbencher--observed that, given the appalling way in which legislation was dealt with, he "would be prepared to trade time ... for better scrutiny". In return for the timetabling of Bills, he proposed that the "better scrutiny" be achieved by committee stage being undertaken by Departmental Select Committees. This proposal did not find favour with the Procedure Committee and we do not believe that it would find favour with the House, or indeed with the Select Committees themselves. Instead, we would recommend that the solution be found in according to opposition parties the initiative to settle the form of committee stage. Traditional Standing Committees would no doubt remain the norm. The opposition parties' role in these cases would be the same as it has in practice been when the conventional guillotine is imposed: deciding how much time should be devoted to each section or aspect of the Bill. But they would alternatively be able, if they considered it appropriate, to opt for the use of the Special Standing Committee procedure, or even--if the agreement of the relevant Committee could be obtained--for the Bill to be referred to a Departmental Select Committee. There is little obvious reason, under existing procedures, as to why the power of determining whether or not to use Special Standing Committee procedure rests with the Government, and even less so under a procedure whereby the Government is assured of its Bills proceeding in accordance with a set timetable.

In order to meet fears that the system might be abused, these recommendations might be introduced on an experimental basis, embodied in temporary Standing Orders. We further recommend that the proposed Business Committee submit a report to the House each year, having monitored the extent of legislation considered and the working of the new system.

In summary, therefore, if the case for timetabling is accepted, we believe that the system we have proposed could allow for a more efficient legislative process and if undertaken in the form we have outlined would be of benefit to the Government (assured timetabling; no need for politically-contentious guillotine motions), to the opposition parties (initiative as to the form of committee scrutiny, assured input in determination of timetable), and to the House as a whole (committee of the House to recommend timetable, more efficient legislative process, regular monitoring of that process, greater scope for Members' involvement through the Special Standing Committee procedure, and the disappearance of the need on occasion for Government Members to take vows of silence and Opposition Members to engage in forced and prolonged verbosity).

Special Standing Committees

It follows from our submission on timetabling that we favour not only the retention but also the greater use of the Special Standing Committee procedure.

The use of the procedure to date has been limited. On the five occasions on which it has been utilised, it has we believe contributed to a better scrutiny of legislation. The first Bill subjected to the SSC procedure--the Criminal Attempts Bill--serves as a valuable guide as to what may be achieved by its employment. Representatives of affected outside interests--the judiciary, the police, the National Council for Civil Liberties and the Law Society--were examined and as a result of the evidence presented the Bill was changed: four substantial amendments were made. There can, in our opinion, be little doubt that the Committee contributed well to the task of rendering the Bill "more generally acceptable". Members themselves involved in this procedure were full of praise for it. A survey of Members who served on the first three SSCs found that, of 37 respondents, 28 considered The experiment had been "very worthwhile". (Eight thought that it had been "fairly worthwhile" and only one thought that it made no difference.)(6) The experience to date, then, has been encouraging.

There would appear to be two substantial objections to the recommendation that the SSC procedure be employed more often. One constitutes an objection to the whole procedure: namely, That the procedure merely allows for representations to be made by groups which can be and usually are made at an earlier stage to Departments directly. The amendments made at committee stage to the Criminal Attempts Bill, it has been suggested, would have been considered and taken into account by Government prior to committee stage had it not been for the speed with which the Bill was introduced and the lack of preliminary consultation as to the new procedure itself.(7) Such an objection is not persuasive. For representations to be made in the forum of a Special Standing Committee, with the evidence presented by witnesses open to scrutiny by Members of Parliament, is desirable both on grounds of principle and practice. Parliament is seen to be more involved in the task of legislative scrutiny, it affords a better opportunity than under existing procedures to render a Bill "more generally acceptable" and concomitantly enhances the likelihood of affected groups accepting the legislation once they have had the opportunity to express their views in an authoritative public forum. Special Standing Committees, in short, can fulfil significant informing, scrutinising and legitimising functions. These constitute weighty reasons for the greater utilisation of the SSC procedure. In the specific instance of the Criminal Attempts Bill, the fact that it had been introduced in some haste rendered it a particularly appropriate candidate for scrutiny by a Special Standing Committee. The pressure on the Government's legislative timetable and the limited resources of the Parliamentary Counsel suggest that there are at least several Bills of a similarly rushed nature each session that might benefit from being subject to the SSC procedure.

The second objection is that the extension of the SSC procedure might make too great a demand on the time of Members, given the existing demands in terms of committee and non-committee work. We recognise that if it were to be the rule rather than the exception for a Bill to be submitted to a Special Standing Committee the demand on Members' time would be onerous and probably unmanageable. We do not propose that most Bills be subject to SSC consideration. We see no necessity for such a development. On contentious measures, where Members are primarily interested in the principle of the measure, there is little likelihood of the SSC procedure serving any constructive purpose. Similarly, with measures which are short, agreed and of a technical nature, there may be little to be gained by utilising such evidence-taking procedure. Rather, if our proposal for a committee on timetabling is accepted with the initiative for determining the form of scrutiny resting with the opposition parties, we envisage most Bills being committed still to the traditional Standing Committees; but a greater number than at the moment being referred to Special Standing Committees.

There can, we believe, be little justification for the power to determine the form of committee scrutiny remaining with the Government, especially if Bills were to be subject to automatic timetabling. The use of this power to date by Government has been disappointing and there seems little likelihood of the Government's business managers seeking to make more extensive use of it. The House made a useful and significant departure from traditional practice in 1979 when it accorded responsibility for the nomination of members of the new Select Committees to the Committee of Selection. We believe a similar transfer is desirable in the determination of the form of committee scrutiny. Under our foregoing proposal, it would reside in the proposed Business Committee. Should the proposal for timetabling of Bills not be accepted and implemented, we would recommend nonetheless that responsibility for determining the form of committee scrutiny be transferred from (in effect) the Leader of the House to a committee of the House.

The basic principle which we believe should be accepted is that the SSC procedure has made a useful contribution to committee-stage scrutiny and should be further extended. As a means of achieving that, we consider it necessary that the decision as to which Bills be subject to that procedure be transferred from Government to a committee of the House. We think it a reasonable assumption that the Government would be more likely to concede such a transfer if Bills were to be subject to automatic timetabling.

Carry-over of Bills

We would recommend also that procedures be changed to enable Government Bills, the consideration of which has not been completed in one session, to be suspended and proceedings thereon to be resumed in the new session at the point where they were stopped in the previous session. (Such a provision would only apply within a Parliament.) Proposals for applying the provision should originate with the proposed Business Committee. Of our proposals, this would constitute the most significant constitutional departure.

The carry-over procedure that we recommend is employed already for Private Bills(8) and it would have a number of considerable advantages. These may be briefly stated. Bills would not have to be considered with undue haste in order to become law by the deadline set by the ending of the session. Bills that did not complete their passage by the end of the session would not have to be considered twice. The Government would be able to offset time lost by slippage of Bills from one session to another by not having to find "fill in" business at the beginning of a session and by avoiding duplication of proceedings of a Bill which comes up a second time. lt would generally avoid the unseemly rush to get measures through at the end of a session and, if matched by a similar provision in the Upper House, would allow for a more balanced and structured consideration of Bills in each session. It would dovetail well with the operation of a Business Committee; and, even without timetabling, would remove one of the Government's objections to the Special Standing Committees (the time taken up by evidence taking) as time spent on Bills in SSCs could extend beyond a session.

Each one of these reasons is a substantial one, sufficient to justify consideration of a carry-over provision. Other benefits of such a provision can be discerned. It would clearly be to the benefit of Government in that it would avoid duplication and allow for a more balanced planning of the legislative year. It would have benefits for Government Members, who would not have to be cajoled to remain in the House at unsocial hours to get Bills through at the end of the session. And it would have benefits for the House as a whole, including the opposition parties, in that measures--especially if subject to timetabling by a Business Committee-could not be rushed through without proper scrutiny at the end of a session and also in as much as it would allow for a more even spread of legislative work throughout the parliamentary year. There appears to be no good reason to retain the present position; and many good reasons for introducing the change that we propose.

Our proposal is confined to Government Bills. To allow for the carry-over of Private Members, Bills would interfere with the priority accorded Ballot Bills each session. (In practice, it would also appear unnecessary to extend a carry-over facility to such Bills: it is unusual now for a Private Member's Bill introduced under the Ballot and which gets beyond Second Reading not to complete its passage within the session.) We thus exclude Private Members' legislation from the ambit of our proposal.

We do not believe that a provision for the carry-over of Bills would interfere unduly with the general priorities for a session established by Government in the Queen's Speech; indeed, far from it given that Bills "lost" in the previous session would not need to repeat the stages completed in that session. The provision for carry-over could, however, have implications for the Parliament Acts. An amendment to the Acts may be necessary to make provision for those Commons Bills which have begun but not completed their passage in committee in the Upper House at the end of a session. (Otherwise, re-introduction of the measure may be possible only after being endorsed by Mr Speaker as being subject to the provisions of the Parliament Act.) If the House is prepared to accept the need for the carry-over provision, then such a legislative amendment would, we believe, create no insurmountable hurdle.

Conclusion

As the 1977-78 Procedure Committee reported (para 1.12), Committees of the House are not ends in themselves but a means to secure greater surveillance of the executive by Parliament. As it further observed, the present committee system had for the most part developed in response to the need to relieve pressure on the floor of the House or in response to the demands to perform new functions involving detailed investigation. "The system which we have inherited is unplanned and unstructured" (para 1.10). The introduction of the comprehensive or near-comprehensive system of Select Committees in 1979 did much to provide a more structured element in the scrutiny of executive actions. A similar change is necessary in the scrutiny of legislation. The present method of committee scrutiny is recognised by Members as well as observers outside the House to be unsatisfactory: this was clear from the evidence submitted to the 1977-78 Procedure Committee; it is clear, apparently, from responses to the questionnaire administered earlier this year to Members by the Commons' Reform Group. The time has come for change. We believe our proposals would provide a useful and significant step in the direction of providing for planned and more structured scrutiny.

November 1984

Notes

1. Gilbert F M Campion, An Introduction to the Procedure of the House of Commons (London: Philip Allen, 1929), p. 20.

2. Josef Redlich, The Procedure of the House of Commons, Vol. II (London: Archibald Constable, 1908), p. 204.

3. First Report from the Select Committee on Procedure, Session 1977-78 Vol. I : Report and Minutes of Proceedings, HC 588-I (London: Her Majesty's Stationery Office, 1978).

4. Samuel H Beer, Britain Against Itself (London: Faber and Faber, 1982), p. 190.

5. The power of the vote has been used to some effect on occasion, including in Parliaments when the Government has had a clear overall majority; though it was used to most effect during the 1974-79 period of minority Government. (The Government was defeated 24 times in the 1970-74 Parliament and over one-hundred times in the 1974-79 Parliament.)

6. Bruce George MP and Barbra Evans, "Parliamentary Reform: The Internal View", in D Judge (ed), The Politics of Parliamentary Reform (London: Heinemann, 1983), p. 89.

7. H J Benyon, "The House of Commons' Experiment with Special Standing Committees", Public Law, Summer 1982, p. 195.

8. As the Clerk to the Parliaments pointed out in evidence to the House of Lords' Select Committee on Practice and Procedure in 1976-77, "carry over" also applies in effect in the case of Consolidation Bills. "It would only be an extension of existing practice if some Government Bills were to be treated in a similar way." First Report from the Select Committee of the House of Lords on Practice and Procedure, 1977, HL 141, p. 79.

© 1984, Study of Parliament Group


Prepared by Simon Patrick, 30 May 2001