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Ministers are obliged to explain and defend the bill, which is given a public and
critical scrutiny. Most government bills presented to Parliament have, however,
already been put into ¬rm shape by the responsible department, often in con-
sultation with outside interests (see chapter 7), and the debates and scrutiny in
Parliament usually have only a modest e¬ect on the outcome of the legislation.
Even when the detail of the bill is less ¬rm, the adjustment of its provisions in
committee is done chie¬‚y on the government™s initiative. Few opposition and
backbench amendments are agreed to.


JAG Griffith, ˜Standing Committees in the House of Commons™
in SA Walkland and Michael Ryle (eds), The Commons Today
(rev edn 1981), pp 121“2, 130“1

Amendments may have one or more of a great variety of purposes. Whether moved by
the Opposition or by a government backbencher, an amendment may be intended to cause
political mischief, to embarrass the Government, to discover what are the Government™s
real intentions and whether (in particular) they include one or more specific possibilities,
to placate interests outside Parliament who are angered by the bill, to make positive
improvements in the bill the better to effect its purposes, to set out alternative proposals,
to initiate a debate on some general principle of great or small importance, to ascertain
from the Government the meaning of a clause or sub-section or to obtain assurances on
how they will be operated, to correct grammatical errors or to improve the draftsman-
ship of the bill. If moved by the Government, the purpose of an amendment is most likely
to be to correct a drafting error or to make minor consequential changes, to record
agreements made with outside bodies which were uncompleted when the bill was intro-
duced, to introduce new matter, or occasionally to meet a criticism made by a Member
either during the second reading debate or at an earlier part of the committee stage, or
informally.
Not all of these purposes, if fulfilled, are likely to make the bill ˜more generally accept-
able™. Apart from the trivialities of minor errors, the occasions of an amendment falling within
that phrase are when an opposition amendment is accepted by the Government or when a
government amendment goes some way to meet an objection. This of course, may, at the
same time, make the bill less acceptable to some of the government supporters. This is not
to say that committee debates seldom, if ever, result in the improvement of a bill. It is to
say, however, that very many amendments are not put forward with that purpose, and of
those that are, not all have that effect.
More importantly, much of what takes place during committee on a controversial bill is
an extension and an application of the general critical function of the House and there is
little or no intention or expectation of changing the bill. The purpose of many Opposition
amendments is not to make the bill more generally acceptable but to make the Government
less generally acceptable. . . .
632 British Government and the Constitution


If the value of the proceedings in standing committee on government bills is judged by
the extent to which Members, other than Ministers, successfully move amendments, then
the value is small. It has been as rare for ministerial amendments to be rejected as for
other Members™ amendments to be successfully moved against government opposition.
Party discipline is largely maintained in standing committee. Not surprisingly when the latter
rarity occurs it is often on bills concerned with matters of the highest social controversy like
race relations or immigration policy. For it is on such matters that the Whip is most likely to
be defied.
On the other hand, minor reforms are quite often successfully achieved by persuading the
Minister to ˜look again™ when the matter is before the committee and not infrequently he
may propose some compromise on report.
But more important than the making of amendments is the scrutiny to which Ministers
and their policies are subjected. Committee rooms are not large and do not have that sense
of space and support which can be felt on the floor of the House (though that also can no
doubt be at times a very lonely place). For hour after hour and for week after week a Minister
may be required to defend his bill against attack from others who may be only slightly less
knowledgeable than himself. His departmental brief may be full and his grasp of the subject
considerable but even so he needs to be constantly on the alert and any defects he or his
policy reveals will be very quickly exploited by his political opponents.

The e¬ectiveness of committee proceedings depends largely on the ability of
MPs to inform themselves adequately about the background, objectives and
machinery of the bill. Outside interests a¬ected by a bill will often supply MPs
on the committee with facts, arguments and draft amendments. Modest adjust-
ments to the bill may be won or conceded. Committees rarely manifest such
potency as when, in 1985, the combined resistance of government and opposi-
tion backbenchers in the committee proceedings caused the government to
abandon its Civil Aviation Bill. In general, as the Modernisation Committee has
noted, ˜on Bills where policy di¬erences are great, the role of Government back-
benchers on a Standing Committee has been primarily to remain silent and to
vote as directed™ (First Report, HC 190 of 1997“98, para 8).
It has been questioned whether the adversary proceedings of committees
on bills are well adapted to their constructive examination and improvement.
The Study of Parliament Group said in a Memorandum to the Select
Committee on Procedure (First Report, HC 588-III of 1977“78, Appendix I,
Part II, para 17):

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 preordained 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
633 Parliament and the responsibility of government


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.


The Procedure Committee recommended that standing committees should nor-
mally be authorised to hold ˜a limited number of sittings in select committee
form, calling witnesses and receiving written submissions™ about the factual and
technical background to a bill, before proceeding to the usual examination of
clauses and debating of amendments (First Report, above, HC 588-I, para 2.19).
An experiment on these lines was approved by the House of Commons in 1980
and in the result Standing Orders provided that a bill might be committed, on
the motion of any Member, to a ˜special standing committee™ with power to send
for persons, papers and records and receive oral evidence at not more than three
morning sittings. At these hearings the committee could examine ministers, civil
servants, outside experts and pressure group representatives, before going on to
the detailed consideration of the bill™s clauses. A special standing committee on
the Criminal Attempts Bill in the 1980“81 session heard evidence on the bill
from a High Court judge, a member of the Law Commission (which had pro-
duced an initial draft of the bill) and two academic lawyers. A number of
improvements to the bill resulted from these hearings. Subsequently the proce-
dure was seldom used, but in 1999 the Immigration and Asylum Bill was com-
mitted to a special standing committee which received oral and written evidence
from civil rights groups, refugee organisations and church groups. The Adoption
and Children Bill was committed to a special standing committee in October
2001. A number of MPs appointed to the committee had personal experience
of social work and the committee heard evidence from over twenty expert
witnesses. The Modernisation Committee recommended in 2006 that special
standing committees should be the norm for government bills originating in the
Commons (First Report, HC 1097 of 2005“06, paras 58“62). In response to this
report, changes were made to the House of Commons Standing Orders on
1 November 2006 having the e¬ect that government bills which commence in
the Commons and are subject to programming (timetabling) will normally be
referred to a committee having power to take evidence. The House of Lords
introduced a special public bill procedure in 1994, appointing committees to
take oral and written evidence on bills not a¬ected by party political controversy,
such as Law Commission bills (eg the Family Homes and Domestic Violence Bill
1995). Very occasionally a public bill is referred, after second reading in the
House of Lords, to a select committee of that House for examination of the
policy and contents of the bill. This procedure was followed in 2004 in regard to
the Constitutional Reform Bill, which had not been published in draft or given
prelegislative scrutiny. Some signi¬cant amendments to the bill resulted from
the deliberations of this committee.
634 British Government and the Constitution


Parliamentary reformers have repeatedly urged that Parliament should
undertake a ˜prelegislative scrutiny™ of government proposals for legislation.
The Modernisation Committee of the House of Commons said in its First
Report (HC 190 of 1997“98, para 20):

There is almost universal agreement that pre-legislative scrutiny is right in principle, subject
to the circumstances and nature of the legislation. It provides an opportunity for the House
as a whole, for individual backbenchers, and for the Opposition to have a real input into the
form of the actual legislation which subsequently emerges, not least because Ministers are
likely to be far more receptive to suggestions for change before the Bill is actually published.
It opens Parliament up to those outside affected by legislation. At the same time such pre-
legislative scrutiny can be of real benefit to the Government. It could, and indeed should,
lead to less time being needed at later stages of the legislative process; the use of the Chair™s
powers of selection would naturally reflect the extent and nature of previous scrutiny and
debate. Above all, it should lead to better legislation and less likelihood of subsequent
amending legislation.

The Modernisation Committee™s proposals have been acted upon in the sub-
mission of a number of draft government bills to prelegislative scrutiny, either
by the appropriate departmental committee or by a specially constituted select
committee or joint committee of both Houses. Between 1997 and 2004, twenty-
nine draft bills were scrutinised by parliamentary committees; more recent
instances, in 2005“06, include the draft Corporate Manslaughter Bill, considered
jointly by the Home A¬airs and Work and Pensions Committees, and the
draft Legal Services Bill, considered by a joint committee of both Houses.
Prelegislative scrutiny is, however, as the Modernisation Committee has noted,
˜in the gift of the Government™ (First Report, HC 1097 of 2005“06, para 56), and
many bills escaped this salutary process. The Constitution Committee of the
House of Lords recommended in 2004 that ˜the decision as to which draft bills
should be subject to pre-legislative scrutiny should be negotiated between the
Government and the Liaison Committee of the House of Commons™ (Fourteenth
Report, HL 173-I of 2003“04), but the Government in its reply took the view that
the current process (involving the ˜usual channels™ and consultation with the
Liaison Committee) was satisfactory. (See further G Power, Parliamentary
Scrutiny of Draft Legislation 1997“1999 (2000); A Brazier, Parliament, Politics and
Law Making (2004), ch 4; Smookler, ˜Making a di¬erence? The e¬ectiveness of
pre-legislative scrutiny™ (2006) 59 Parliamentary A¬airs 522.)
In its e¬orts to get to grips with legislation during its passage, Parliament
faces di¬culties of the kind noted by Roger Smith, director of JUSTICE (The
Times, 20 September 2005):

Parliament has too little independence. The result is poor law-making. Whips stifle the
role of the House of Commons. The House of Lords is restrained by lack of democratic legit-
imacy. Much legislation is simply too long. The Criminal Justice Act 2003, for example, has
635 Parliament and the responsibility of government


330 sections and 38 schedules. Neither House could possibly scrutinise it properly. Some con-
troversial proposals are withheld until the parliamentary procedure is almost complete. The
celebrated section 55 of the Nationality, Immigration and Asylum Act 2002, which deprives
failed asylum-seekers of income, was inserted only after the Bill had completed its initial
passage through the Commons and committee stage of the Lords.

This rather pessimistic viewpoint may be contrasted with the conclusions
reached by Philip Cowley:

P Cowley, The Rebels: How Blair Mislaid his Majority (2005),
pp 241“3

The combination in the rise of backbench rebellion “ on a scale that would have been beyond
the wildest fears of whips 50 years ago “ together with the rise in the assertiveness of the
House of Lords . . ., which is now also behaving in a way that would have been unimagin-
able 50 years ago, have created a Parliament that is far more assertive and much more of
an irritant to government than the doomsayers realise.
It is, of course, important not to overstate the case. Cohesion on the back benches weak-
ened during the 2001 Parliament, but it did not collapse. Most votes still saw complete
cohesion . . .
Despite everything, despite all the huffing and puffing, the government survived the
entire parliament undefeated on a whipped vote in the Commons [as we saw above, the
government was defeated on such votes in the first session of the 2005 Parliament:
see above, pp 601“2] . . .
That the government usually got its way eventually was not because of the servility of its
MPs “ but because it enjoyed a quite enormous majority, and was prepared to do deals with
its backbenchers in order to get any rebellion down to a manageable size.

See generally the House of Lords Constitution Committee, Fourteenth Report:
Parliament and the Legislative Process, HL 173 of 2003“04.

(ii) Delegated legislation
Parliamentary control of delegated legislation is severely restricted. Statutory
instruments can normally only be approved or disapproved as a whole, without
amendment. In the House of Commons a ˜prayer™ or motion to annul a nega-
tive instrument is unlikely to be debated on the ¬‚oor of the House and may fail
to be debated at all within the forty-day period ¬xed by section 5 of the
Statutory Instruments Act 1946. Debates on a¬rmative instruments on the
¬‚oor of the House are generally subject to a time limit of ninety minutes. In
practice an instrument is more likely to be debated in a delegated legislation
committee, to which a negative instrument may be referred on the motion of a
minister of the Crown. (A¬rmative instruments are automatically so referred
unless a minister tables a motion to the contrary.) Debate in the committee
takes place on a neutral motion “ that the committee ˜has considered™ the
636 British Government and the Constitution


instrument “ which does not allow of any recommendation being made to the
House: the committee can only express its disapproval of an instrument by
voting that it has not considered it. The e¬ective vote on the instrument is taken
subsequently on the ¬‚oor of the House: indeed, once a negative instrument has
been debated in the committee there is usually no vote on the prayer for annul-
ment. Although the o¬cial Opposition can generally secure a debate on an
instrument to which it is strongly opposed, a very large proportion of prayers
on negative instruments are not debated at all, and the procedures do not
provide for an adequate parliamentary consideration of the general run of
statutory instruments. The Select Committee on Procedure has described the
parliamentary procedures for debating and deciding on statutory instruments
as ˜palpably unsatisfactory™ (Fourth Report, HC 152 of 1995“96, para 1) and as
being ˜urgently in need of reform™ (First Report, HC 48 of 1999“00, para 53).
A court, in considering the interpretation and e¬ect of an item of delegated
legislation, may take account of the inadequacies of the negative procedure as
an instrument of parliamentary control: see R v Secretary of State for the
Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 2 AC 349
(CA) at [68], (HL) at 382“3.
In 2003 the House of Lords established a Select Committee on the Merits of
Statutory Instruments to consider SIs laid before each House and decide
whether the special attention of the Lords should be drawn to an instrument on
any of the following grounds:

(a) that it is politically or legally important or gives rise to issues of public policy likely to
be of interest to the House;
(b) that it is inappropriate in view of the changed circumstances since the passage of the
parent Act;
(c) that it inappropriately implements European Union legislation;
(d) that it imperfectly achieves its policy objectives.

The working methods of this committee were described in its Third Report, HL
73 of 2003“04. It is particularly concerned to identify negative instruments of
special interest on any of the speci¬ed grounds. There is no equivalent House
of Commons committee.
A technical examination of statutory instruments laid before Parliament, and
other instruments of a general and not local character, is carried out by the Joint
Committee on Statutory Instruments, composed of members of both Houses.
(Instruments laid only before the House of Commons are considered by

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