The Commons’ main function is the scrutiny of legislation. Pre-legislative scrutiny involves ‘the publication of Bills ahead of their introduction to Parliament’. This means that comments can be made before the measure is finalised and formally introduced and allows Parliamentary input ‘at a formative stage’. Therefore, the influence of the Commons can be felt in this early stage when ministers are more likely to be persuaded in the way of amendments. A good example of this is in the case of the joint committees on the Draft Communications Bill and the Draft Civil Contingencies Bill when the government accepted 120 of its 148 recommendations. “There is more to Parliament than simply the giving of assent… (this) gives Parliament leverage not only in relation to the content of the measures but also in relation to the actions of government.” Therefore, even though Parliament does not get to create its own legislation, it can be seen to have a sizeable effect on new legislation being brought in.
In 1998, programme motions were introduced into the House of Commons; these specified how much time would be spent on a Bill. The time limits were decided by a combination of the government and a sub-committee, which one could argue would lead to a more thorough scrutiny of the legislation as time constraints had become less stringent. The government still has the main control over the decided time limits however it is a welcome step from the days of informal timetabling and ‘guillotine’ motions. It means that the Standing Committees should have more time to consider Bills. As I already mentioned the Standing committees (STCs) scrutinise a Bill once it has had its second reading. The STCs can then suggest amendments for the bill, which the minister responsible will consider; this can then be put to a vote (although not all amendments are). In this way major changes can be made, however “(STCs) cannot alter (the Bill) in such a way that destroys its main principles”. Therefore the executive still controls the main objective of the bill.
Now we have taken into account the powers that the Commons does have, it is worth considering whether they actually hold any weight especially when confronted by the executive. In regard to the ‘positive development’ of pre-legislative scrutiny, it is worth noting that, “The decision as to whether or not a bill is to be subject to pre-legislative scrutiny is presently a matter for Government and the usual channels”. Although there are obviously some bills (such as finance bills and emergency bills) that cannot be produced in draft, the problem with leaving the final decision, of which bills ‘should be published in draft, whether or not they should be subject to parliamentary scrutiny, and, if so, by what form of committees’, up to the government means that certain important and/or contentious bills will miss out on this extra examination. In addition, even if the government decides that a bill should be published in draft, they are often ‘published in draft towards the end of the session’ leaving little time for pre-legislative scrutiny. In this way the executive can avoid the constraints that pre-legislative scrutiny introduces.
Although legislation ‘can be’ available for scrutiny, this often comes to no fruition as a result of party discipline. “The governments try to ensure that Select Committee membership reflects the balance between parties”, and as generally in the United Kingdom there is one dominant party, it becomes one-sided. Many MPs are paid by the government, in addition to the party whips who control party discipline and encourage MPs to tow the party line. “The government usually controls STCs through its in-built majority and exercises this control to resist all but the most innocuous amendments proposed by opposition parties.” Hence, the idea of pre-legislative scrutiny is a mirage, as the government’s legislation will (by and large) be accepted without major amendments.
For effective scrutiny to take place, I believe that there should be some sort of uniformity in practice. Guidelines should be put into place so that every committee covers the same aspects. Currently ‘it is up to the committee considering a draft bill as to how it goes about its task’. Leaving a committee to decide upon how it considers a draft bill leads to a variance in the scrutiny process and subsequently certain bills will not be scrutinised as effectively. As the Hansard Report states, “Pre-legislative Scrutiny Committees can miss out on the real substance of the Bill”. Therefore the scrutiny process is not a sound one. This makes it difficult for the Commons to have constraint on the executive as they will not necessarily have uncovered the relevant information.
Government secrecy causes another problem for the Commons in acting as a constraint to the executive. Secrecy has always played an important part in government affairs as the government does not like to advertise its problems. In conceding that it has problems a government loses some of its infallibility and can be perceived as incompetent. As a result the government ‘won’t invite inquiries into areas they are experiencing trouble in’. However, surely these are the areas that need to be looked into, and avoiding scrutiny by the Commons means that it is difficult to improve and change these areas. Although in principle committees have the right to choose their area of inquiry and also to see relevant documents, things can once again be made difficult through the use of the ‘Armstrong Memorandum’. As one can see, holding the government to account can be difficult when the relevant information is problematic to uncover.
Even after all the fore-mentioned difficulties involved in legislative scrutiny, there is no guarantee that once the recommendations have been made, they will be accepted. “The Government does not necessarily have to accept recommendations made by pre-legislative committees…Even if the Government accepts a point made by a committee, the way in which it chooses to interpret it and implement it may not be quite what the committee had in mind.” The committees do not really have any way to force the government to accept their policy recommendations except through ‘leaks to the press and interviews in the media’. This actually backs up Simon Jenkins’ point that ‘only the media can hold the government to account’. The Commons cannot put a constraint on the government as recommendations are its only powers; these can be easily ignored.
The programming of bills has been welcomed as a way of providing time for more scrutiny however in practice it does not necessarily mean this. “As programming of bills has become routine, the time allocated has become tighter and has not been agreed by the opposition parties.” Therefore programming does not really help provide more time for scrutiny, and as it is no longer decided on a consensual basis it could be argued that not enough time is allocated. This is worrying because it can lead to a large volume of legislation passing undebated. Leaving large areas of legislation without scrutiny indicates a major problem with the process of parliamentary scrutiny of bills in the House of Commons. Therefore it is difficult to have constraint over the executive when important parts of bills have been missed and subsequently the implications lost. It could even be argued that ‘programming has resulted in greater executive dominance over the legislature’ , as the executive has so much power over the programming of legislation.
Another smaller point is that even when scrutiny has taken place the passing of amendments to and from the executive takes up a lot of time. Often amendments are not finalised because of the time limit between elections (when a different party can take over and subsequently change the composition of the committee) and also because of the high turnover rate in the committees. As Budge et al states in The New British Politics, “Things are not carried through because committee turnover is usually high”. How can the Commons then provide a constraint on the executive when efforts at legislative scrutiny are not carried through to the finish?
In conclusion, it can be seen that the powers of the Commons to hold the executive to account have not diminished, in fact they have increased. However Simon Jenkins is still correct in thinking that the Commons cannot hold the executive to account. Although in principle committees have general rights of inquiry, these can be overridden by the executive, which continues to dominate the ‘legislative timetable’. The government has the final say over suggested amendments and programming, although it is worth considering the part that the House of Lords play in legislative scrutiny before one suggests that the executive has an ‘elective dictatorship’. Perhaps one could argue that the constraint available to the Commons over the executive is exactly the same as it used to be however the New Labour government is better than its predecessors at using this system to their advantage.
Jenkins, S. When Blair calls in the poodles, we have only the press wolves to save us. The Times, 08/12/04
Budge, I et al. The New British Politics. (Harlow: Pearson, 2004)
HL Paper 173, 15th Report of Session 2003-04, Parliament and the Legislative Process, (Authority of the House of Lords, 2004)
Brazier. A, Parliament, Government and the Politics of Legislative Reform, (London: Hansard Society, 2004) p.110
Brazier. A, Parliament, Politics and Law Making: Issues and Developments in the Legislative Process, (London: Hansard Society, 2004). P.116
Brazier. A, Parliament, Politics and Law Making: Issues and Developments in the Legislative Process, (London: Hansard Society, 2004). P.8
Brazier. A, Parliament, Politics and Law Making: Issues and Developments in the Legislative Process, (London: Hansard Society, 2004). P.6
A committee formed before the first meeting of a standing committee to make proposals about sitting times and the internal division of time. (Budge et al, The New British Politics, (Harlow: Pearson, 2004))
Guillotine motions curtailed the time spent on Bills, generally when the government was unable to reach voluntary agreement or when the opposition engaged in ‘blocking tactics’. (Budge et al, The New British Politics, (Harlow: Pearson, 2004)
Brazier. A, Parliament, Politics and Law Making: Issues and Developments in the Legislative Process, (London: Hansard Society, 2004). P.14
HL Paper 173, Parliament and the Legislative Process, Authority of the House of Lords, 2004, P.17
Brazier. A, Parliament, Politics and Law Making: Issues and Developments in the Legislative Process, (London: Hansard Society, 2004) P.9
HL Paper 173, Parliament and the Legislative Process, Authority of the House of Lords, 2004, P.23
Budge. I, The New British Politics,(Harlow: Pearson, 2004) P.465
Brazier. A, Parliament, Politics and Law Making: Issues and Developments in the Legislative Process, (London: Hansard Society, 2004) P.16
HL Paper 173, Parliament and the Legislative Process, Authority of the House of Lords, 2004, P.20
Brazier. A, Parliament, Politics and Law Making: Issues and Developments in the Legislative Process, (London: Hansard Society, 2004). P.22
Budge et al, The New British Politics,(Harlow: Pearson, 2004) P.465
The Armstrong Memorandum was adopted by the head of the Civil Service and basically said that the duty of the civil servants to their ministers was similar to that owed by military personnel to their commanding officer and therefore could only respond to committees on behalf and with approval of their minister. (Budge et al, The New British Politics (Harlow: Pearson, 2004)
HL Paper 173, Parliament and the Legislative Process, Authority of the House of Lords, 2004, P.36
Budge. Et al, The New British Politics,(Harlow: Pearson, 2004) P.467
Jenkins, S. The Times, 08/12/04
HL Paper 173, Parliament and the Legislative Process, Authority of the House of Lords, 2004, P.31
HL Paper 173, Parliament and the Legislative Process, Authority of the House of Lords, 2004, P.32
Brazier. A, Parliament, Politics and Law Making: Issues and Developments in the Legislative Process, (London: Hansard Society, 2004). P.22
Budge.et al, The New British Politics (Harlow: Pearson, 2004), P.467
HL Paper 173, Parliament and the Legislative Process, Authority of the House of Lords, 2004, P.32
Budge et al, The New British Politics (Harlow: Pearson, 2004)