Parliament and the Civil Service

The Work of Bill Teams and the Passage of Legislation

Facilitator: Tony Cash

Session Outline

• Parliament and the Civil Service

• The Stages of a Bill Through Parliament (opportunities for scrutiny etc)

Context: Policy and Parliament

• Ministers lead Bills through Parliament

• But supported by (and advised by) Parliamentary Clerk and Bill Teams

• Important to see legislation in context of policy making– Legislation should be result of good policy processes.

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Policy Stages• Development Stage (impact assessment not

published)• Options Stage (impact assessment not

published)• Consultation Stage (impact assessment

published)• Final Proposal Stage (published with draft

Bill)• [If applicable – Enactment Stage]• Review Stage (Post-Implementation

Review – “did policy work?”)

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The Ideal: Policy Triangle

OPTIONSClear outcome

All considered

Appraise options carefully

EVIDENCEDiverse Stakeholders

Research (domestic, international, old & new)

Evaluation of previous policies

RELATIONSHIPS Help with options and risk

Outside and inside Whitehall

Engage!

Help with marketing

Policy as Policy as Project (IA)Project (IA)

Institute for Government – Policy Best Practice

• Clarity on goals• Open and evidence-based idea generation• Rigorous policy design • Responsive external engagement• Thorough appraisal• Clarity on the role of central government and

accountabilities• Establishment of effective mechanisms for

feedback and evaluation6

The Political Context…

Former SoS for Trade and Industry (Alistair Darling) to a HoC Select Committee in 2006:

“You want to take into account all the available evidence; but, at the end of the day, a Minister’s job, Parliament’s job is to reach a judgement as to whether or not a particular policy ought to be pursued…. I strongly defend my right, as the Secretary of State, a Member of the elected Government to form a judgement as to what I think is the right thing to do, and the Commons and Lords will decide.” 7

Policy Submissions – Generic Whitehall Structure• Title

• Issue• Action/ Recommendation• Summary• Timing• Background (context)• Argument (or Discussion) and options• Next steps• Finance• Presentation• Clearance• Annexes

From Policy Proposals to Bills

• After a proposal is consulted on and approved by the cabinet, the minister responsible draws up instructions for what should go into the Bill  (through Departmental lawyers based on advice from policy civil servants)

• Highly specialised lawyers - called parliamentary counsel - work to translate the principles outlined in the government's proposal into detailed legislation. All the Bills the government intends to introduce in a parliamentary session are announced in the Queen’s Speech.

Bills Overview Part 1

• Bills (i.e. draft legislation) go through a number of stages, in the following order:

• Minister gets policy approval and drafting authority from Cabinet colleagues. This means that the Parliamentary Draughtsman can start work, having been instructed by your departmental solicitor who is in turn instructed by you.

• Minister then gains collective agreement that the Bill will form part of the legislative programme and (unless it is relatively minor and uncontroversial) it is announced in the Queen’s Speech in November.

Bills Overview Part 2• There then follows “Introduction and First Reading (usually a

formality).

• Second Reading then triggers a major debate on the merits of the Bill.

• Committee Stage follows, in which a Public Bill Committee examines the legislation in great detail.

• Next comes Report Stage, in which the Bill as amended in Committee is reported back to the Whole House, and again debated, and possibly further amended

• Then here comes Third Reading, following which the Bill is approved for onward transmission to the Lords (if it began in the Commons) or to the Commons (if it began in the Lords)

• The Royal Assent.

Parliamentary Branch

• All Whitehall departments have a Parliamentary Branch that is charged with managing the department's relations with the House of Commons and the House of Lords

• It is the Parliamentary Branch that co-ordinates answers to Written Questions tabled by MPs and peers before they are sent to Ministers' Private Offices for approval.

• The Parliamentary Branch also liaises with the Whips to secure time in Parliament when it is required by the department

• The Parliamentary Branch guides Bill teams (and policy officials working with the Bill Team) through the steps needed to take a Bill through Parliament.

The Bill Team• The Bill team usually begins to assemble

once the stage of writing instructions to Departmental lawyers is reached

• (In turn lawyers draft instructions to Parliamentary Counsel)

• Team of people who– Liaise between Parliamentary Branch, lawyers

and stakeholders to ensure Minister who is handling Bill properly briefed (including on amendments and for debates)

– Work with lawyers on amendments as needed

The Bill Team – A View• “It will be clear from the above that taking a Bill through

Parliament is a major and high profile task, always entrusted to a separate Bill Team

• “If you get anywhere near this process, you must start by reading the detailed information and instructions which your department will make available to you. You should also go to see, and listen carefully to advice from, the Cabinet Secretariat and your Parliamentary Clerk. And take care that you have enough resources, in the form of people and PCs, photocopiers etc. The workload can be huge and urgent, especially during Committee Stage.”

MARTIN STANLEY ‘How to Be a Civil Servant’

Bill Team Issues - Examples• Information to the right people at right time

• MPs / Lords engagement strategy

• Logistical planning – timetable

• Need to address challenge of external issues continuing (e.g. media handling)

• Ensuring any amendments to Bill reflected in other documents such as Regulatory Impact Assessment

• Project management always a core skill.

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Lessons from Project Work

• Clear timetable and milestones• Clear outcomes and deliverables• Accountability• Good communication with stakeholders• Be “joined up” internally and externally• Resources identified and allocated• Risk analysis• Contingency planning.

Bill Team Summary• Bill Team needs to begin to be set up the moment a

Bill is likely• Strong connection between how the Bill goes and

external stakeholder management• Need to ensure good lines of communication

between policy / issue experts (many of whom will be outside Bill Team) and process experts (some inside Bill Team, some outside.)

• Need good contingency planning – procedural delays, unexpected resistance, illness etc.

First Reading

• Government Bills can be introduced in either the House of Commons or the House of Lords

• Most controversial Bills, and all those concerned with finance, start their life in the Commons

• It is a purely formal introduction, without discussion, after which the Bill is printed

• Explanatory Notes are also published to accompany the Bill, although they may not always be available as soon as the Bill itself is published.

Second Reading• The Second Reading debate is a general and wide-

ranging discussion of the principles and scope of the Bill• Gives a good indicator of where members concerns

are (we then need to refine handling strategy)• Usually the debate for a major Bill lasts for one day

though may last for two or three days• Ministers and Opposition counterparts make opening

and closing speeches• The rest of the debate consists of speeches by

backbench MPs from each side of the House• MPs may have a subject or constituency interest• The debate concludes with a Division but it is very rare

for a Government Bill to be defeated at Second Reading.

Committee Stage• The committee stage is a detailed, clause-by-clause

examination of the Bill• Normally carried out by a specially-appointed public

bill committee (formerly known as a standing committee) of about 17 MPs, selected in line with party strengths in the Commons

• The Minister responsible and the opposition counterpart are always members

• The remaining members backbenchers from each side of the House, often with special expertise or interest, and Whips

• This stage can take anything from a single meeting to months

• (On a major Bill the committee might meet at least ten or twelve times over about six weeks).

What Does the Committee Do?

• Its role is to discuss and approve every clause of the Bill so does not debate its overall scope and purpose

• Discussion is usually based on amendments (notified in advance) to individual clauses

• Any member of the committee may propose an amendment• The government’s built-in majority ensures that usually only

those amendments acceptable to it are passed• On the whole, these consist of second thoughts by the

government, technical amendments such as improvements to the wording, and concessions on detail

• Significant change can only be made if opposition members combine with backbenchers who disagree with their government.

Handling the Committee Stage

My experience is that:

• A few tactical concessions on points that don’t matter that much can go a long way

• It can be very surprising which parts of the Bill cause disagreement

• The early parts of the Bill, even if just addressing technical issues, may get disproportionate scrutiny

• Bill Team need to be extremely well prepared to support the Minister.

A View

• “On a less contentious bill…, a forthcoming and amenable approach by the minister in charge really can save time. By accepting an Opposition amendment that merely put into the Bill what the government intended to do anyhow, I managed to get the whole Committee consideration of a Post Office Bill over in less than a single 150 minute sitting.”

• Gerald Kaufman ‘How to be a Minister’

A View (2)• “Always accept your own back-benchers’

amendments if you can – and do so immediately after they have been moved, to cut down the length of debate. If you cannot accept the substance, give them an assurance that you will consider their point and try to come forward with a suitable amendment of your own on Report Stage, the next stage in consideration of the Bill when it returns to the floor of the House”

• Gerald Kaufman ‘How to be a Minister’

Who Else Can Take Part?

• Committee stage can be taken ‘on the floor’ in a ‘Committee of the Whole House’, enabling every MP to take part in the discussion

• Time-consuming procedure is usually only used for some parts of the annual Finance Bill and for Bills dealing with major constitutional questions

• A Bill that needs to be passed urgently will be sent to a Committee of the Whole House, to avoid spending time setting up a standing committee

• It is possible to split a Bill, so that some provisions are dealt with in Committee of the Whole House, with the remainder going to a standing committee.

Report Stage• This stage is a detailed examination of the Bill by

the House as amended in Committee• The primary focus is on the Bill as a whole, rather

than clause by clause, but specific amendments can be made

• But Report stage provides an opportunity for Members who were not on the public bill committee to move amendments to the Bill

• Also the delay between Committee and Report allows time for the Government to give further thought to the points raised in Committee and bring forward its own amendments.

Third Reading

• This is a final debate on the overall content of the amended Bill

• No amendments can be made at this stage.

• It is often very short and frequently held immediately after the report stage

• After its third reading the Bill automatically moves on to The House of Lords.

The House of Lords• In the House of Lords, the Bill proceeds on broadly similar

lines• A formal first reading is followed by a major general

debate at second reading• Then come detailed discussions with amendments at the

committee and report stages, followed by a concluding debate at the third reading

• But there are some procedural differences– For example the committee stage in the Lords almost always

takes place on the floor of the House (Committee of the whole House, not in a public Bill committee)

– Amendments can be made at Third Reading as well as at Committee and Consideration (Report) stage.

• If a Bill passes through the House of Lords unchanged, it is immediately submitted for Royal Assent.

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Amended Bills• But, if any amendments have been made, the Bill returns

to the Commons, which then debates each Lords amendment

• The Commons can accept an amendment, agree to it with amendments, or reject it– If the Commons agree to the Lord amendments, but with

amendments of their own, they ask the Lords to agree– If they reject the amendments, the Bill returns to the Lords once

again, accompanied by a Message giving reasons for the Commons action

• At this stage the Lords generally accepts the situation (so acknowledging the pre-eminence of the Commons)

• This is not always the case though, and if the Lords insist on any of its amendments the Bill will continue to be passed between the two Houses until agreement is reached (will be discussed in later session.)

Royal Assent

• As one of the three branches of Parliament, the Sovereign formally signifies assent to the Bill, which now becomes an Act

• As soon as the Queen has given the Royal Assent, the Bill becomes an Act of Parliament.

Commencement Orders

• Some acts are brought into force immediately

• Some at a date specified in the Act

• Some by Commencement Orders

Enforcement Questions?

• Who will enforce the policy? Could others help to enforce the policy?

• Does the issue being addressed through the policy impact nationally, locally or sub-nationally? Is active enforcement required at all these levels?

• What skills, expertise or experience will be needed to enforce this policy? Which organisations possess these skills and expertise?

• What resources can support implementation / enforcement of this policy?

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Enforcement Pyramid

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Discussion

• Your views on– The benefits of the UK system?– The drawbacks of the UK system?

• How does it compare to where you are?

Any Questions?

• Anything you would like to ask about?

Further Reading

• www.civilservant.org.uk

• http://www.parliament.uk/education/online-resources/parliament-explained/how-laws-are-made/how-most-laws-are-made/

• ‘How to be a Minister’ – Gerald Kaufman