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negotiations between parties may involve discussion on the merits of different parts of the
Bill. Short of this, the negotiations will do much to settle the course of the battle in
the Chamber and in Committee. The whole of the Bill may not be discussed in detail due to
the shortage of time and the use of the kangaroo and the guillotine procedures. But
eventually, on receiving the threefold assent, the Bill becomes law.


Most bills (about three-quarters of the total number), and in particular those
of substantial political importance, are introduced in the House of Commons.
(Bills whose main purpose is ¬nancial cannot begin in the House of Lords.) The
¬rst reading of a bill is purely formal: the title is read out and a minister nods
his assent. The motion for the second reading of the bill is normally debated on
the ¬‚oor of the House, but a few uncontroversial bills are debated in a second
reading standing committee. Law reform bills resulting from proposals of the
Law Commission are usually dealt with in this way. The second reading debate
provides the government with an opportunity to explain the aims and princi-
ples of the bill and to outline its main provisions. This is also an opportunity
for opposition parties to deliver their challenge to the policy of the bill. It is
extremely rare for a government bill to be defeated on the motion for second
reading. There have been only two instances since 1924: the defeat by one vote
of the Reduction of Redundancy Rebates Bill in 1977 and that of the Shops Bill
by fourteen votes in 1986.
For the committee stage in the House of Commons most bills are referred to
a standing committee, with a membership of between sixteen and ¬fty MPs,
439 The powers of government


re¬‚ecting party strengths in the House. Among the members there is, besides
the sponsoring minister, a government Whip, who has responsibility for
ensuring the attendance and support of government backbenchers on the
committee. The standing committee considers the bill in detail, clause by clause.
From the government™s point of view the committee stage provides it with an
opportunity of making improvements to its bill. JAG Gri¬th observes
(Parliamentary Scrutiny of Government Bills (1974), p 38):

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 introduced, 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.

A minority government, or one with a slender majority, may have di¬culty in
managing the proceedings of standing committees and, like the Labour
Government of 1974“79, may be unable to avoid numerous defeats there. If it
resorts to taking the committee stage on the ¬‚oor of the House, this may hold
up other items of its legislative programme. (As to the rather loose convention
that the committee stage of bills of ˜¬rst class constitutional importance™ should
be taken on the ¬‚oor of the House, see above, pp 144“5.)
The report stage of a bill gives the government an opportunity to reverse
defeats su¬ered in committee, and also to introduce new amendments embody-
ing promised concessions or the results of its further re¬‚ections on the bill.
A great number of government amendments may be tabled. The third reading
allows a ¬nal brief debate on the principles of the bill as amended; no other than
merely verbal amendments may be made at this stage.
The subsequent passage of the bill through the House of Lords enables the
government to continue the process of re¬nement of the bill in response to
arguments and pressures brought to bear on it. Here too amendments may be
carried against the government. Lords amendments must be considered by
the Commons, and if the Commons disagree with any of them there has to
be further consideration of the disputed amendments by the Upper House. The
bill may go back and forth between the two Houses a number of times until
agreement is reached; if the Lords remain adamant the government can in the
last resort, and if time allows, overcome their resistance by using the procedure
of the Parliament Acts 1911 and 1949 (below, p 643).
By introducing some of its less controversial bills in the House of Lords, the
government is able to make full use of the resources of both Houses in process-
ing its legislation through Parliament. The Parliament Acts do not, however,
apply to bills introduced in the House of Lords.
The procedure for the enactment of a public bill is not without its hazards for
the government. Even if it has a su¬cient majority to overwhelm opposition
parties, they may by exploiting the procedures of Parliament cause trouble for
440 British Government and the Constitution


the government in its e¬orts to get a bill enacted, intact and on time. The
government™s own backbenchers cannot always be coerced by the Whips, and
in recent years numbers of them have shown a robust willingness to vote in the
Opposition Lobby (on which, see P Cowley, The Rebels: How Blair Mislaid his
Majority (2005)). Minority governments are especially vulnerable, as was
shown in the 1976“77 session when a minority Labour Government failed to
secure the passage of seven of its bills.
But in ordinary circumstances the obstacles of the parliamentary process can
be overcome. Governments have normally enjoyed the support of mainly loyal
majorities in the House of Commons; opposition parties are usually open to
bargaining, and if persistently obstructive can be curbed by use of the guillotine
or the closure. In a full session the government can generally achieve the passage
of something between forty and sixty bills, substantially (sometimes entirely) in
the form in which they are wanted. In urgent cases a public bill can be passed
in a few days or even hours. Such speed of enactment, not conducive to well-
judged law-making, has been a feature of legislation on terrorism. For instance,
the Criminal Justice (Terrorism and Conspiracy) Act 1998, enacted in response
to a terrorist bombing in Omagh, was read the ¬rst time in the House of
Commons shortly before 4 pm on 2 September 1998 and had passed both
Houses and been given the royal assent by 1.30 am on 4 September. The
Anti-terrorism, Crime and Security Act 2001 (with 129 sections and eight
schedules) was introduced on 12 November 2001 and given the Royal Assent on
13 December. More recently, the Prevention of Terrorism Bill introduced in the
House of Commons on 22 February 2005, although strongly contested and
passing back and forth between Lords and Commons, received the royal assent
on 11 March 2005. (By way of contrast, the Planning and Compulsory Purchase
Bill introduced in December 2002 received the royal assent on 13 May 2004 after
being carried over from the previous session.)
Governments must govern, and they have a proper interest in getting their
bills enacted. Procedural innovations have often been designed to protect this
interest rather than to improve the e¬ectiveness of parliamentary scrutiny.
There is, indeed, a tension between these aims, and its balanced resolution
should be the constant concern of parliamentary reformers. For example,
considerations of e¬ciency might favour the introduction of ˜framework™ bills
restricted to broad principles, the substance to be supplied by subordinate leg-
islation, but such a development could debilitate parliamentary control of the
executive. Several bills presented to Parliament by Conservative Governments
between 1979 and 1997 did indeed provide it with a very incomplete statement
of the whole legislative scheme, extensive rule-making powers being delegated
to ministers for ¬lling in the detail. Among statutes of this kind were the Social
Security Act 1986, the Education Reform Act 1988, the Legal Aid Act 1988 and
the Child Support Act 1991. The practice was seen as ˜downgrading the role of
Parliament™. (See P McAuslan and J McEldowney, Law, Legitimacy and the
Constitution (1985), p 23.) A lavish delegation of powers of subordinate
legislation is still a feature “ perhaps an unavoidable feature “ of many statutes,
441 The powers of government


such as the Pollution Prevention and Control Act 1999 and the Financial
Services and Markets Act 2000. The latter Act includes no fewer than 400
delegated powers. Part 1 of the Civil Contingencies Act 2004 was said by a
Cabinet O¬ce minister to be ˜heavily reliant on supporting regulations and
guidance™ (HC Deb vol 436, col 551W, 7 July 2005). One of the concerns of the
House of Lords Committee on Delegated Powers and Regulatory Reform is to
ascertain whether a bill ˜su¬ciently particularises the principles on which, and
the circumstances in which, secondary legislation may be passed, and so avoids
being characterised as a “skeleton bill” ™: Seventh Report, HL 36 of 1999“2000,
Appendix 2, para 3. (See also below, pp 449“50.)
The passage of bills has sometimes been facilitated by informal agreement
between ˜the usual channels™ (linking government and opposition) on time-
tabling of the bill. In the 1997“2001 Parliament more formal arrangements for
the programming of legislation by all-party agreement came into use.
Following a report from the Select Committee on Modernisation of the House
of Commons (Second Report, HC 589 of 1999“2000), sessional orders of
November 2000 introduced procedures for the regular programming of legisla-
tion on an experimental basis. By this means, it was hoped, the government
would be assured of getting its legislation through in a reasonable time
while opposition parties and backbenchers would have a full opportunity to
debate and vote on the issues of most concern to them. The new arrangements
were contentious but were renewed (with some adjustments) for a further
session in June 2001. The sessional orders on programming were made perma-
nent (with certain amendments) in October 2004. Programme motions are
tabled after cross-party discussions through ˜the usual channels™ and at best
are agreed between the parties, avoiding the need for the government to resort
to imposed and arbitrary guillotines on discussion.
The parliamentary scrutiny of bills is further considered below, pp 630“5,
642“8.

(ii) Implementation and effectiveness of legislation
Acts of Parliament commonly provide that their provisions will come into force
on some speci¬ed future date (and not immediately on royal assent), or may
entrust to a minister the power to make a commencement order bringing the
provisions into force (or successive orders for di¬erent provisions of the Act).
The coming into force of the Act™s provisions may accordingly be delayed,
for example until administrative arrangements have been put in place for
their e¬ective implementation. Events may indeed occur which persuade the
minister “ or successive ministers “ that it is not appropriate to make a com-
mencement order. In R v Secretary of State for the Home Department, ex p Fire
Brigades Union [1995] 2 AC 513 the House of Lords held that while the minister
is under no duty in such cases to bring the provisions of the Act into force, his or
her discretion whether or not to do so is not absolute and unfettered; rather the
minister is under a continuing legal duty to consider whether it is appropriate to
appoint a commencement date. The Act in this case had made provision for a new
442 British Government and the Constitution


criminal injuries compensation scheme. The minister was held to have acted
unlawfully in deciding to renounce the statutory scheme, instead adopting under
the prerogative a di¬erent scheme of compensation. To act in this manner, said
Lord Browne-Wilkinson, was to ˜frustrate the will of Parliament expressed in a
statute™.
When a government bill has been passed by Parliament and the Act duly
brought into force, it is still not certain that the government will have achieved its
objective. The need for parliamentary consent is not the only limitation of the
government™s power to carry its policies into e¬ect by legislation. Public or group
consent is another limiting factor (one that is related to the legitimacy of the gov-
ernment and its measures “ see chapter 1), in so far as the e¬cacy of an Act may
depend on the cooperation or acquiescence of those a¬ected by it. ˜Legislation™,
it has been said, ˜is not the end of the policy process, merely a step en route™
(D Marsh and R Rhodes (eds), Implementing Thatcherite Policies (1992), p 4). The
process of implementation of much legislation involves bargaining and compro-
mise, and may be impeded if not thwarted by an adverse or lukewarm response
from implementing agencies or from those upon whom the Act places new oblig-
ations or restrictions. The Industrial Relations Act 1971 failed to accomplish its
main purposes when it encountered intense opposition from the trade union
movement and only limited and equivocal support among employers (see
M Moran, The Politics of Industrial Relations (1977), ch 8). The Caravan Sites
Act 1968, which required local authorities to provide caravan sites for gypsies
residing in or resorting to their areas, was not e¬ective to ensure su¬cient accom-
modation for gypsies: many authorities failed to comply with their obligations
and the Secretary of State rarely used the coercive powers available to him under
the Act. (The Criminal Justice and Public Order Act 1994, section 80, abolished
the duty to provide sites and the present policy is to ensure the provision of sites
for gypsies and travellers through the planning system: see ODPM Circular
01/2006.) The community charge or poll tax, introduced by the Local
Government Finance Act 1988, proved a lamentable and costly failure, adminis-
tratively complex, redolent of unfairness and widely unpopular (see D Butler,
A Adonis and T Travers, Failure in British Government: The Politics of the Poll Tax
(1994)). It was abolished in 1992. The Child Support Act 1991 was badly ¬‚awed
and had unexpected and untoward consequences which successive reviews
and amendments to the Act failed to redress. Implementing regulations were
found by the Court of Appeal in Smith v Smith [2004] EWCA Civ 1318, [2005]
1 WLR 1318 to be marred by ˜sloppy, untidy™ drafting which had created a muddle
resulting in ˜absurdity and injustice™. It was eventually recognised that the system
of child support established by the Act could not achieve its objectives and a
report by Sir David Henshaw in 2006, concluding that the system should be fun-
damentally redesigned, was accepted by the Government.
Legislation may fail because it is insu¬ciently prepared, wrongly targeted or
excessively complex, and the e¬cacy of a statute may be blunted if insu¬cient
resources of money, administrative machinery, personnel or publicity are
443 The powers of government


committed to its implementation. Several of these de¬ciencies marred the Child
Support legislation (above), demonstrating, as the Social Security Committee
of the House of Commons observed, ˜that policy can come close to being
frustrated and derailed by over-hasty implementation and poor levels of
administrative performance™ (Fifth Report, HC 282 of 1996“97, para 18).
Provisions of the Criminal Justice Act 2003 were said by the Court of Appeal in
R v Bradley [2005] EWCA Crim 20, [2005] 1 Cr App R 397, to be ˜conspicuously
unclear in circumstances where clarity could easily have been achieved™ and to
have been brought into force prematurely, before appropriate training could be
given to judges and magistrates. (See also, as to the Dangerous Dogs Act 1991,
Hood et al, ˜Assessing the Dangerous Dogs Act: when does a regulatory law fail?™
[2000] PL 282.)
(The complex relation between policy and implementation is perceptively
discussed by Christopher Ham and M Hill, The Policy Process in the Modern
Capitalist State (2nd edn 1993), ch 6. Sir Christopher Foster has identi¬ed
factors contributing to a decline in the quality of legislation in (2000) 53
Parliamentary A¬airs 328, 336“40; see also his British Government in Crisis
(2005), ch 4 and pp 134“5. Foster remarks (p 53) that ˜good, or at least plausi-
ble, policy ideas are often re¬‚ected in bad legislation™.)
The parliamentary legislative process results in a verbal text which is authori-
tative but has to be interpreted. The courts, in the exercise of their power of
interpretation, aided by recourse to a fund of common law principles, may give
to an Act a meaning and e¬ect contrary to what the government had in view in
introducing the legislation. A striking instance was the decision of the House of
Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
In this case a statutory provision that a determination by the Foreign Comp-
ensation Commission should ˜not be called in question by any court of law™ was
held ine¬ective to prevent a court from setting aside a ˜determination™ that went
beyond the legal powers of the Commission. As JAG Gri¬th remarks, the
decision ˜shows how, on occasion, the courts will resist the strongest e¬orts of the
government to exclude them from reviewing executive discretion™ (The Politics of
the Judiciary (5th edn 1997), p 106).
The decision of the House of Lords in Pepper (Inspector of Taxes) v Hart [1993]
AC 593 has had the e¬ect of permitting the courts to refer to parliamentary mate-
rials as an aid to statutory construction if an Act is ambiguous or obscure or if its
literal meaning leads to an absurdity. In particular a court may have regard to
statements made in Parliament by the minister or other promoter of a bill to
ascertain ˜the intention with which the legislation is placed before Parliament™
(per Lord Gri¬ths). It is the intention of Parliament that is decisive, but if a min-
ister has made a clear and unambiguous statement as to the e¬ect of words in the
bill it is assumed that Parliament ˜passed the Bill on the basis that the provision
would have the e¬ect stated™ (per Lord Browne-Wilkinson). Whether this is a
justi¬ed assumption is questioned by JH Baker [1993] CLJ 353. Scott Styles
observes that the reference by the courts to ministerial statements ˜will in practice
444 British Government and the Constitution


mean that the courts are directly deferring to the opinions of government
ministers™ and discerns in this ˜a major shift in the British constitution™: ˜The rule
of Parliament: statutory interpretation after Pepper v Hart™ (1994) 14 OJLS 151.
For further (and ongoing) argument, see Lord Steyn (2001) 21 OJLS 59;
Vogenauer (2005) 25 OJLS 629; Sales (2006) 26 OJLS 585 and Kavanagh (2005)
121 LQR 98; and note the consideration of Pepper v Hart in R v Secretary of State

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