Making British Law

Committees in Action

Louise Thompson

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137410665
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Laws are essential to the lives of all British citizens and crucial to the survival of British Governments. This book follows the work of House of Commons bill committees as they scrutinise legislation and reveals the hidden depths of law making in the British Parliament.

1

Introduction

Laws are an integral feature of any democratic society. They affect all aspects of our lives and behaviour. Although the creation of these laws typically rests overwhelmingly with elected governments, the scrutiny of them is the core function of any democratically elected parliament. The British Parliament is no exception. On average Parliament scrutinises between 30 and 50 pieces of government legislation each year. The 2010 Parliament has scrutinised legislation which has introduced tax-free childcare, modernised pension provisions and reformed the National Health Service.

Committees are a fundamental part of this scrutiny and a key component of the legislative process. Virtually all Acts of Parliament will have had to navigate a committee stage, either on the floor of the House or in the committee corridors of the Palace of Westminster. Here, a small group of MPs are tasked with examining a specific bill in great detail. Broadly speaking, they will go through the bill line by line, adding, removing or modifying anything from a single word to an entire clause or schedule. At the end of the process, a bill will be reported back to the floor of the House for further debate and amendment. Sitting for over 300 hours in a typical parliamentary session, bill committees account for a greater proportion of parliamentary time than any other stage of the legislative process.

As such a time-consuming feature of Parliament’s work, it is only natural to look for evidence that scrutiny has a meaningful impact on legislation. Doing so justifies the very existence of the institution. Much has already been written about the role of Parliament on legislation; its ability (or lack of) to defeat the government of the day through divisions (Cowley 2005, 2004; Cowley & Stuart 2004) and to force it to abandon or reconsider flagship policy proposals. But a great deal less has been written about the scrutiny taking place in committee. The aim of this book is to rectify this, lifting the lid on the work of bill committees and highlighting the difference that this scrutiny can make to pieces of legislation.

Discredited scrutiny

Bill committees are a somewhat puzzling scrutiny mechanism. Despite the important role assigned to them during the passage of legislation, they have a rather undesirable reputation and are, on the whole, considered by parliamentarians to be ineffective and futile. Conservative MP Andrew Tyrie once described them as ‘a pointless ritual’ (2000, p.11) and the former Leader of the House Sir George Young (2008) compared his service on a committee as being like ‘doing time’. Labour MP Bruce George went even further than this, describing them as an example of ‘Parliament at its worst’ (George 2001). It is often reported that Members go out of their way to avoid serving on them (Norton 1994, p.25) and many an MP has refused to attend a standing committee when asked to do so by the party whips.

This dissatisfaction with the bill committee system hit the headlines in a more public fashion than perhaps ever before in 2011 thanks to the newly elected former GP Sarah Wollaston. Having been told by the Conservative Party whips that she would only be selected to serve on the committee examining the Health and Social Care Bill if she refrained from tabling amendments, she very vocally expressed her displeasure during a Westminster Hall debate on parliamentary reform. Her comments – that the appointment of MPs to committee and the behaviour expected of them during committee meetings needed urgent reconsideration – were widely reported in the press (Helm 2011).

Committee stage, then, has some very vocal critics from inside the House, but they are fiercely targeted by outside interest groups, who see this as the prime opportunity to influence legislation. Although no contemporary statistics on the extent of interest-group lobbying of bill committees exist, a survey in 1986 found that nearly two-thirds of all interest-group representatives claimed to have asked an MP to table an amendment on their behalf in committee (Norton 1991, p. 71). Writing in 2013, the same author described the impact of lobby groups on Parliament as ‘pervasive’ (Norton 2013, p. 243).

Neither is there any escape from its importance to the scrutiny and processing of the government’s legislative programme. A recent study by the Hansard Society found that new MPs gave the scrutiny of legislation a high priority (Korris 2011, p. 8). They were spending 14 per cent of their time in committees; significantly more than the time given up to campaigning at a local or national level (ibid., p. 6). The legitimation afforded to measures of public policy by parliamentary scrutiny continues to be a core function of Parliament (Packenham 1970). Those who publicly bemoan the faults of the present system argue for its reform and not for its abolition (see for example Russell et al., 2013). Legislative committees are an enduring feature of the British parliamentary system.

Understudied and overshadowed

The scrutiny of legislation in the British House of Commons is not well studied. The scrutiny of bills at committee stage has been studied even less. The only truly comprehensive study of committee work carried out by John Griffith (1974) is now over forty years old. But Griffith’s work has long been the key study in this area. For he examined the passage of all government bills across three parliamentary sessions between 1967 and 1971, with the aim of illustrating both the ‘quality as well as the quantity’ of the impact of Parliament on legislation (1974, p.14). His research generated a rich quantity of data and was the first study to systematically code such a large number of amendments to bills. Although he did not consider committee stage in isolation, the analysis of House of Commons standing committees accounted for over one-third of the published work. Although the method employed by Griffith was simple, his findings were illuminating, providing a very honest account of the scrutiny of legislation.

More recently, there have been some small-scale studies of the committee stage of high-profile pieces of legislation, such as Labour’s Identity Cards Bill (Russell and Johns 2007), but Griffith’s work is still considered the authority on the work of House of Commons bill committees. Indeed, a review of the literature by Russell and Benton in 2009 revealed that many authors ‘treat the UK as if it lacked [bill] committees altogether’ (p.8). The lack of attention given to committees does not come solely from academia; they are also largely ignored by the media. The reporting of parliamentary proceedings in any great detail today is rare, but the reporting of committee work is virtually non-existent. Aspects of committee work are referred to, but only in passing. Bill committees are very rarely considered to be newsworthy.

The scrutiny of the Coalition Government’s Health and Social Care Bill in 2011 is a good example of how committees are overlooked in this way. Here, the need to send the bill back to the bill committee for further scrutiny following fundamental changes to its content was widely reported (BBC News 21 June 2011; Watt 2011). But one would still have been hard pressed to uncover any detail of the committee proceedings themselves from these reports. They focused mainly on the fact that the bill would now take much longer than anticipated to pass into law. The recent introduction of oral evidence sessions has given committees a somewhat higher profile on occasion, but prestigious witnesses are few and far between.

The BBC’s parliamentary correspondent Mark D’Arcy is quite possibly the only keen observer of committee work. He frequently comments on forthcoming bill committee sittings and occasionally writes in-depth pieces on the actual scrutiny being carried out. His account of the committee stage of the Marriage (Same Sex Couples) Bill during the 2012–13 session was probably the most detailed discussion of bill committee scrutiny reported in the mainstream media through the entire 2010 Parliament. His comments on committee stage though, were as unflattering as those put forward by MPs themselves. Writing under the headline ‘Trench Warfare’, he described the ‘spat’ in the bill committee between Conservative MPs Michael Gove and Tim Loughton, focusing on the former’s sacking of the latter as a junior minister in his department just a few months earlier. In a later report he laments that ‘nothing in the bill has been changed. Nothing at all. Zip. Nada’ (2013b), before describing committee stage as ‘all a bit of a ritual’. The reporting of bill committees by the press is therefore sporadic, but where committees are reported, the image presented does not deviate from that found in the academic literature. Bill committees are once again discussed in an overwhelmingly negative and unflattering way.

The reasons for the lack of scholarly and media attention are fourfold. From a historical perspective, bill committees have traditionally been considered to be nothing more than replicas of the main House of Commons chamber. Descriptions of them as ‘miniature parliaments’ (Jennings 1948, p. 270; UK Parliament 2010) or ‘microcosms of the larger legislature’ (Strøm 1995, p. 65) pervade much of the literature. This has hindered the study of bill committees since their very creation. It cultivates a notion that they are simply an ‘extension’ (Young 1962, p. 156) or ‘technical auxiliary’ (Redlich 1908, p. 205) of the House and that the close examination of proceedings is therefore of little or no utility. Added to this is the common assertion that bill committee proceedings themselves are mundane, repetitive and sterile, offering very little value to researchers of Parliament. Joseph LaPalombara, writing in the same year as Griffith’s study of the legislative process was published, described the study of legislative committees as ‘dull and unappealing’ (1974, p.21).

From a parliamentary perspective, bill committees have been overshadowed for several decades now by permanent, investigative select committees. Their permanence, strong specialisation and well reported methods of cross-party working make them prime candidates for scholarly analysis (Russell and Benton 2013, 2011a, b). Their reports are numerous, containing a series of explicit policy recommendations. The government usually provides a formal response to these reports and this makes their influence much easier to analyse and to quantify, at least on a basic level. They have dominated scholarly attention from their very creation. Writing in the same year as the introduction of the departmental select committee system, Stuart Walkland’s (1979) work on House of Commons committees devotes twice as much attention to select committees as it does to bill committees. Clearly then, the study of legislative committees has some catching up to do.

Thirdly, the style of committee system in the UK is not common among legislatures, the majority of whom scrutinise legislation through permanent, specialised committees. Some of these committees, particularly those in presidential or hybrid systems, possess stronger powers and have the ability to stop a bill in its tracks and prevent it from being considered on the floor of the House. In addition, committees in other legislatures often scrutinise the work of government departments as well as the content of legislation. These fundamental differences mean that the UK is often singled out as a ‘deviant case’ (Mattson & Strom 1995, p. 260) and this has implications for the study of its committees. It becomes difficult to compare bill committees with those in other parliaments and means that the methodologies used by scholars analysing committees in other legislatures cannot be easily replicated in studies of the House of Commons. Pereira and Mueller’s (2004) examination of committees in the Brazilian Chamber of Deputies, for instance, concentrates on the power of bill committees versus the executive and hinges on the percentage of bills which are reported back to the floor, whilst David Arter’s (2006) study of three West European parliaments focuses on committees which also possess the right of legislative initiative. Neither of the approaches taken here could be utilised in a study of House of Commons bill committees. The very nature of the committee system thus underpins the lack of attention to its work.

Finally, the study of legislative committees is difficult and very time consuming. Government legislation is getting longer and increasingly more complex. Upon its introduction to Parliament in May 2006 the Company Law Reform Bill contained no fewer than 896 clauses and was scrutinised in twenty-one committee sittings over a period of two months. The number of amendments being considered by committees has more than doubled since Griffith completed his study in 1974 and now averages around 125 per bill (Thompson 2013, p. 465). The number of government amendments alone can be astonishing. The Planning Bill (2006–07), for instance, saw over 100 pages of government amendments being tabled (Korris 2011, p. 568). In response to this, committee sittings are increasing in length, with the average bill now receiving around twenty-four hours of committee scrutiny (Thompson 2013, p. 464). Committee proceedings themselves are, as Mark D’Arcy (2013a) suggests, ‘unintelligible to anyone who doesn’t have a pile of paperwork before them’. This perhaps, more than anything else, explains why studies of bill committees are often limited to a small number of case-study bills rather than an analysis which stretches from one parliamentary session to another and across one parliament to another.

Why should we care about committee work?

Bill committees may constitute only one small part of the British Parliament – and a neglected one at that – but there is a great deal to be gained from explorations of their work. As has already been noted, the scrutiny of legislation is a key function of any parliamentary institution. In the twenty-first century alone over 35,000 pages of government legislation have been added to the Statute Book (Vollmer & Badger 2013). Government and parliamentary time is increasingly rushed and legislation is in turn drafted and scrutinised in an increasingly hasty fashion (Korris 2011). The potential for this legislation to contain inaccuracies or vague expressions of language is immense, as is the probability that some of this legislation will have unintended consequences.

A great responsibility thus rests on the shoulders of Parliament and of its MPs. In its scrutiny of bills, Parliament must do more than test the government on its policy proposals: it must look for the flaws, loopholes and inaccuracies in its legislation, ensuring that the content and drafting are as watertight as possible. There is no better place for such problems to be highlighted than during the detailed scrutiny that takes place in the confines of the committee rooms. Analysing the committee stage of bills provides an insight into precisely how, where and when committees have improved the text which reaches the Statute Book. In addition, it enables us to see occasions where individual MPs have made substantive additions to measures of government policy.

It is useful far beyond this too. For it can give us a clearer understanding of the institution as a whole, painting a more accurate picture of the ability of Parliament to influence or constrain the government. The House of Commons is generally considered to be a reactive body: one which does not usually prevent an elected government from creating, passing and implementing the laws which it seeks to introduce (Mezey 1979). Evidence to support this typically comes from the infrequent occasions in which the government is defeated on the floor of the House, such as the famous defeat of the Shops Bill on its second reading in the House of Commons in April 1986, or the rejection of the ‘ninety days’ amendment to the Terrorism Bill in November 2005 which would have extended the period for which suspected terrorists could be held without charge.

But these defeats are not limited to those on the floor of the House itself. They also occur upstairs in the committee rooms. Thus, even when the government appears to have been successful in getting its legislation through Parliament, we can still see evidence of constraint being exercised by the House of Commons at committee stage. Where the government proposes an amendment to one of its own bills it may be unsuccessful. Where an opposition MP proposes an amendment to a word, line, clause, part or schedule of a bill, they may on occasion do so successfully. A detailed exploration of bill committee proceedings therefore adds to our understanding of the capacity of Parliament to shape government legislation. In essence, ‘for legislatures to work, their committees have to work’ (Arter 2003, p. 73). A successfully functioning system of committee scrutiny in the House of Commons is a key ingredient in producing an effective House of Commons. Studying committee work tells us a great deal about the impact of Parliament on a single bill, but also about the purpose and utility of Parliament as an institution.

Aims and structure of this book

Herein lies the motivation for this book, which summarises the most comprehensive set of committee data ever collected. It spans a period of parliamentary history covering three Prime Ministers, four General Elections and over 150 pieces of government legislation. Drawing on over four hundred hours of committee debate and interviews with some of the key actors from the 2005 Parliament, it summarises the progress of over 30,000 individual amendments to some of the Blair, Brown and Cameron governments’ flagship policy proposals.¹

The book aims first to shed some much needed light on bill committees as they shape the laws that affect us every day. Chapter 2 places committee stage in context, showing how its place in the legislative process affects its ability to amend legislation. It explains the key committee procedures and the manner in which bills are scrutinised on a line-by-line basis and demonstrates how the purpose of committee stage goes far beyond that of legislative scrutiny, providing an arena for debate and a mechanism for the socialisation and training of parliamentarians. In Chapter 3 we explore the history of legislative committees in the Commons and the dominance of efficiency reforms to the committee system, put forward by incoming governments with ambitious reform programmes as a means of expediting the passage of their manifesto commitments. We chart the increase in the number of committees and the fall in membership, culminating in the far-reaching reforms of 2006 which saw an overhaul of the nomenclature used to describe parliamentary committees and the introduction of evidence taking as standard bill committee procedure.

The second part of this book aims to show the value of committee scrutiny to Parliame...

Table of contents

• Cover
• Title
• 1  Introduction
• 2  The Role and Function of Bill Committees
• 3  The History and Development of Bill Committees
• 4  Measuring Committee Impact
• 5  The Other Side of Committee Work
• 6  Engaging with Experts
• 7  Evaluating Bill Committees
• Note on Sample of Bills
• Notes
• References
• Index