UK Constitutional Law Association

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Cristina Leston-Bandeira, Louise Thompson and Will Mace: Why Public Scrutiny of Legislation Requires New Parliamentary Processes

leston-bandeira-thompson-and-maceLegislation is complex, but it is also essential to the functioning of our political system. A great deal of primary and secondary legislation hits the statute book every parliamentary session. Even the so-called ‘zombie parliament’ of the 2014-15 session saw 25 bills passed into law, with around one government bill being passed every five sitting days. MPs and peers therefore have a difficult job to do, scrutinising a deep and fast flowing stream of legislation every session. And it is important to get it right. Effective legislation requires not just accurate wording within the text of a bill, but an understanding of how that bill will work in practice and the difference it will make to people’s lives. Involving the public in legislative scrutiny can therefore add much value to the process, bringing an alternative perspective to the pros and cons of legislation.

In 2013 the House of Commons decided to pilot an initiative to engage citizens directly with the scrutiny of legislation. Building on two previous pilots run by government departments, this ‘Public Reading Stage’ would give members of the public the chance to comment directly on bills. This initiative had the potential to make legislation more transparent to the public while at the same time enabling those who may otherwise have had little involvement with the institution to actually help it carry out its scrutiny work. The Children and Families Bill was chosen for this pilot – a large and wide ranging bill covering issues of adoption, family justice, special educational needs, childminders and rights to flexible working. Parliament’s website hosted a specially designed web forum which presented the text of the legislation and acted as a repository for the public’s comments. Over 1000 people took part, leaving over 1400 comments on the forum, which ran for two weeks in February 2013, opening after the Bill’s second reading in the Commons and closing before the start of its committee stage.

But did their comments enhance the scrutiny of legislation? Our report Letting the Public in on the Act, outlines a number of the ways in which the public’s contributions added real value to the legislative process. Of particular note was the contribution of genuine, first hand experiences. MPs may bring policy or political expertise to the scrutiny of bills, but one of the most prominent features of the public’s comments on the Bill was their very personal nature. Those participating were typically mothers, fathers, grandparents or childcare workers who had spent many years battling the judicial, education or legal system in the UK and who could discuss first-hand the possible pitfalls of the Bill’s contents and implementation. Their contributions included detailed and often very harrowing accounts of the difficulties they faced in their daily lives and how this legislation might change things. One father, for instance, gave a vivid account of his own struggle to see his children, adding that he would support ‘stronger wording’ on shared parenting in the Bill to ensure 50/50 parenting is assumed from the outset in the family courts. Over half of the comments made during the public reading contained personal stories such as these. What’s more, despite little specific guidance on what to focus on in their comments, over three quarters of them referred to a specific clause or schedule of the Bill. A small proportion (2%) raised concerns about the clarity of specific words in the drafting. This would suggest that comments made by the public can be useful for the parliamentary scrutiny of bills. In this case, they complemented the knowledge of MPs, highlighting issues which they may not have been aware of, as well as specific issues with the wording of the bill.

The comments from the public were thereafter collated into a summary, which was submitted to the Commons bill committee considering the Bill, where one MP (opposition spokesperson Sharon Hodgson) quoted them directly to support her amendments. No amendments were taken in the bill committee as a direct result of the public’s comments, although changes introduced to the Bill at the Commons report stage and in the Lords did chime with those comments made in the public forum. An example of this is the numerous requests made on the forum for the clauses regarding the local offer of support services in schools to specifically include children with disabilities and long term medical conditions, rather than only those with recognised special educational needs. This was picked up by MPs in committee and at report before eventually leading to amendment of the bill by the House of Lords.

But our study of Parliament’s public reading stage also identified a series of challenges involved in asking the public to scrutinise bills:

Quality of the Information: Members of the public don’t have as much information at their fingertips as the average Member of Parliament or government minister. And they are not trained in examining bills. Finding explanatory information about a bill, written in layman terms, can be challenging and this makes it difficult for participants to find out the essential details they need to understand in order to provide comments. As a result, at the public reading stage participants often relied on what they had seen reported in the news, or on information distributed from lobby groups. For instance, some of the comments referred to issues such as the relaxation of childcare ratios, an issue which had been widely reported in the press at the time of the public reading pilot. Although related to the policy area, this was not actually part of the Bill and was not something which could therefore be amended by the MPs examining it.

Lack of Time and Understanding: As the Good Law initiative states on its website, legislation is inevitably complex. It is not written with the general public in mind and those with no parliamentary or legal background can struggle to understand it. Participation in the public reading stage was entirely voluntary and those taking part had little time to devote to doing so. In interviews they described the struggle to find the time to fully engage with the legislation and to contribute to the forum alongside work and family commitments. As one participant noted, “How many families would read a document 185 pages long with over seventy confusing clauses?” Contributions were often drafted in haste. The complexity of the Bill probably encouraged people to utilise suggested passages drafted by lobby groups. These groups played a very strong role in encouraging participation from their members and in providing suggested content for comments. It is also notable that some of the comments contained factual inaccuracies.

Public Suspicion of Government and Legislators: The comments submitted at public reading stage also gave an indication of the attitude of the public towards Parliament and MPs. They demonstrated a deep scepticism that contributing to the forum would make any difference to the Bill. Typical comments included: “You in the house have little idea of what is taking place” and ‘the government will simply ignore, delete or not publish’ the comments. The fact that there had already been departmental consultations on issues raised by the Bill and pre-legislative scrutiny by four parliamentary select committees exacerbated this sense of despair; some people felt that they were being asked time and time again to comment on the same issues, with no one taking these comments on board.

Opportunities to comment need to be matched by integration into consideration stages: Opening up bills to the public may bring practical, real world suggestions from individuals, but this alone is not sufficient to integrate the public’s view into the legislation. Comments need to be properly integrated into the formal consideration of bills in Parliament. In the case of public reading, parliamentary officials collated the comments and a summary document was submitted to the bill committee as written evidence. But there was only minimal use of these in the actual consideration of the bill.

The study of public reading stage suggests that opening up legislation to the public can bring improvements in both content and drafting. But it also demonstrates challenges if we are to truly harness the potential of public deliberation on bills. New processes need to be developed to successfully integrate the public’s contributions to legislation. This may mean involving the public at an earlier stage of the process as a form of pre-legislative scrutiny, raising awareness of mechanisms among MPs and peers or holding a specific debate on the public’s views, whether this is on the floor of the House or in Westminster Hall. If public engagement with legislation is simply tagged on to existing procedures it will never have as much impact as if it is properly integrated. That is the challenge for future parliaments to consider.

Cristina Leston-Bandeira is Professor of Politics at the University of Leeds. She tweets @estrangeirada. Louise Thompson is Lecturer in British Politics at the University of Surrey. She tweets @louisevthompson. Will Mace is a PhD Student in the Department of Politics, University of Surrey. Their report ‘Letting the Public in on the Act’ can be downloaded here.

(Suggested citation: C. Leston-Bandeira, L. Thompson and W. Mace, ‘Why Public Scrutiny of Legislation Requires New Parliamentary Processes’, U.K. Const. L. Blog (4th Nov 2016) (available at https://ukconstitutionallaw.org/))

3 comments on “Cristina Leston-Bandeira, Louise Thompson and Will Mace: Why Public Scrutiny of Legislation Requires New Parliamentary Processes

  1. solchap
    November 4, 2016

    In my experience, mostly as an environmental lawyer, by the time a bill has been prepared for its first reading it is already too late for outsiders to make any significant change to its substantive provisions, unless they are challenged by MPs anyway. Once the department responsible has determined its position on what a bill should provide, it is virtually impossible for even well-informed outsiders to get it to budge. Also, inevitably, many clauses have direct or indirect connections with other clauses, and to change any one significantly may necessitate many alterations elsewhere as well. The best that outsiders can hope for is to correct typos and drafting infelicities.

    To achieve effective public scrutiny, useful input must be received and reviewed at the stage when the substantive provisions are still fluid and relatively easily re-drafted. That requires an early draft of a bill to have been published, along with guidance notes on its clauses setting out what each aims to achieve, and what (reasonable) alternatives have been considered and, for now at least, rejected, and why. It is my understanding that some such document is normally prepared anyway by the sponsoring department, for the benefit of ministers and others, but not made public for understandable, but not always worthy, reasons. If the public is to make a useful contribution, it is this document and the embryo bill it comments on, that has to be issued for review by the interested public.

    Many bills will have standard form clauses covering procedural and technical matters of little interest to the lay public (though of course sometimes getting a procedure right may be critically important), and where these are not likely to be contentious they could be set out in the draft bill in outline only,.and dealt with only very briefly in the guidance notes.

    I very much doubt that scrutiny by the general public of bills already before Parliament will ever achieve anything much, if earlier intervention has not been made possible. Of course those who have intervened earlier may well be able subsequently to comment valuably on the later stages of a bill, but to throw them in at that late stage for the first time is likely to very difficult to manage even with the best will in the world – which can hardly be depended on.

  2. Pingback: Why Public Scrutiny of Legislation Requires New Parliamentary Processes – Parliaments and Legislatures

  3. PETER CODNER
    November 4, 2016

    why add more voices to the confusion of the tower of Babel? – The Internet and all its idiocies are bad enough as it is.

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