Some people, particularly ministers, seem to think that possession of executive power necessitates the possession of the legislative power, or rather that the two are synonymous. In fact they can be quite separate, and if they are not kept separate the inevitable result is executive dominance. If the legislature is controlled by a tightly-disciplined party supporting the executive government, it will cease to be a legislature and become a mere legislative rubber-stamp.
There are many aspects which should be examined in assessing the performance of a lower house as a legislature. The basic legislature procedures with bills-first reading, second reading, committee stage and third reading are the same in all the parliaments, but there are differences in what may be considered at the various stages. Most bills are originated by the government, but by no means all are considered as thoroughly as they should be, often because the parliament does not sit for long enough, or the government uses various procedures (backed by its disciplined majority in the lower house) to limit debate. Individual MPs may also introduce public bills, but not many of them are passed.
In some countries, particularly the United States, there is a move to by-pass the parliament by allowing referendums to be held on some proposed laws, which if passed become law without any consideration by the parliament. Fortunately none of our twenty parliaments has adopted such a system. Nevertheless there are some bad trends developing, such as a government failing to proclaim a bill duly passed by the parliament, or important policy statements being made by ministers outside the parliament, usually to gain the benefit of a large television audience.
The first step is to try to describe an ideal legislature, bearing in mind practical political limits.
What characteristics should an ideal legislature possess? It cannot govern and must not try to. None of the parliaments we are considering can pass any bills requiring public expenditure unless the expenditure has been recommended by the head of state. In practice this is of course the Cabinet. Almost all proposals for government action involve expenditure, so overwhelmingly only government initiatives, or those accepted by the executive government, have any chance of enactment. But although the legislature (unlike the American Congress) cannot be an effective initiator of laws, it has an important role in insisting that governments legislate openly, and in subjecting their proposed laws to scrutiny and, where appropriate, to amendment or rejection.
The legislature must represent the diverse views of the community. It should be seeking to see that new laws, or amendments to existing laws, have community support while at the same time respecting the reasonable rights of minorities. But although it should respect such rights, it must be able to resist pressure groups seeking to impose their idiosyncratic views on the whole community. Bureaucrats, faced with an administrative problem, often propose new laws when what is really needed is better use of the existing law. The ideal legislature would veto such unnecessary laws.
The ideal legislature would see that new laws were clearly expressed, so that they would be comprehensible to the citizens who have to obey them. The trouble is that laws have to be interpreted by the courts, and the drafting of bills and regulations is therefore done by legally qualified parliamentary counsel. It is very difficult for the parliament to modify such legislation to make it more comprehensible, so the important step would be to ensure that the parliamentary counsel who are appointed are skilled at brevity and clarity, skills for which lawyers are not noted. An example is a court judgment on a tax case. The judgment said of a provision in the Act that:
the wording appears involute and to have the aberration of tenses and in the use of the subjunctive mood. But if meanings of both the protasis and the apodosis sufficiently emerge we need not be concerned by inelegances appearing on a syntactical analysis.
One hopes that whoever wrote this will never become a parliamentary counsel.
An elected executive government must be able to govern, and it must have secure funds to do it. Its budget must therefore be respected by the legislature. A legislature tinkering with a budget, approving or rejecting some parts and amending others, is likely to lead to administrative and economic chaos. In exceptional circumstances, when the government seems to be acting most unwisely, the legislature might exercise its power to amend or reject expenditure or taxation measures in the budget, but this must be done with great care. The budget deficit or surplus is an important weapon of economic management, and the government must have control in this area. This is important not only because the government will have much more comprehensive economic advice than will be available to the legislature, but more importantly because divided control would be very damaging. As was said about First World War generals, when negotiations were under way to provide a single Commander-in-Chief for the Western Front: ‘it is not so much that one general is better than another; it is that one general is better than two.’
The legislature has the right, and the duty, to see that appropriation bills are clearly set out, with proper explanations for all proposed expenditures. It also has the duty to ensure that the government does not make any expenditure without the approval of the legislature. To ensure that the understanding about passing the budget package is not abused, the legislature should insist that any new programs, whether of expenditure or taxation, should be debated and agreed by the legislature before being incorporated in the budget.
Governments certainly will not like this. Governments enjoy the drama, the expectations and the publicity associated with the annual budget, but the benefits, if any, are for the government, not the nation or its economy. Governments like even more the fact that a budget can be presented as a package, so that the details of new programs often receive scant attention from the legislature. This should be unacceptable.
The legislature has three important functions with regard to government expenditure: voting the government adequate funds (supply) so that it can continue to function and implement approved policies; closely scrutinising government expenditure proposals; and checking that all expenditures have been properly authorised (the audit function). To perform these roles properly, the ideal legislature must insist that the government present adequate and clear financial information, that sufficient time is available for its proper consideration and, since financial control is a highly technical area, that the legislature has sufficient expert assistance to enable it to perform its roles effectively.
Governments will certainly obfuscate if they can. An example is the ‘vote’ system of appropriating funds. This lasted for three hundred years, and is only now being superseded in some parliaments by an accrual system of accounting, under which it is possible to see what a particular activity is costing, which was certainly not possible under the vote system. Parliament started making appropriations by votes, which could be spent only on the designated purposes, to prevent King Charles II spending the Navy estimates on his mistress, the appropriately named Duchess of Portsmouth. The system was slightly modified in the reign of William III, to prevent him spending public money on his friends, who were not even girls. That system continued into the modern era.
If the government has been elected on a particular program of policy changes, the legislature must accept that these programs are the wish of the electorate, and must facilitate their implementation. This will require some judgement by the legislature. Most political parties, having won an election, claim a ‘mandate’ for any policies that were mentioned, no matter how incidentally, during the election campaign. This claim is patently spurious. People vote for the government they want, though their decision may be influenced by major policy proposals, and there is usually a core of policies in a party’s election campaign which can reasonably be said to have been the basis of that party’s electoral success. Sometimes programs are not very precise. One British prime minister described his policy as ‘to drift lazily downstream, occasionally putting out a boat-hook to avoid a collision.’ Admittedly Lord Salisbury was talking about foreign policy, but the electoral policy statements of some parties in other areas have a similar ring.
Even when the legislature accepts the government’s mandate in particular areas, that does not mean that bills to implement the policies should necessarily be passed in the form presented. Bills are normally extensively discussed before being presented to the parliament, in the bureaucracy, in the Cabinet, in the government party (and possibly in factions of that party) and sometimes with outside bodies, including minority parties in the parliament. Nevertheless the legislature as a whole has the duty to examine such bills closely, to see whether the method proposed is the most effective way of achieving the objective, and to satisfy itself that there are no unintended damaging consequences. If a white paper (a discussion draft of the bill) has been issued, the legislature should insist on seeing all the submissions. Evidence of experts in the community at large should be considered, for it is absurd to believe that all wisdom rests in the bureaucracy. Interest groups and minority groups in the community should also have their views taken into account, for this, besides being possibly useful, is an important means of reducing the alienation of the public from the political process. Hearings of all these views can be undertaken only by committees, who would report their conclusions to the legislature and propose any necessary amendments to the bills.
For bills which the legislature does not accept as being central to the program on which the government was elected, much more rigorous criteria should be applied. The legislature would first have to be persuaded that the proposed law was necessary and desirable.
Our ideal legislature would also be extremely wary of ‘legislation by press release’, by which a minister makes a public announcement of a new policy, and some time later a bill is introduced to give retrospective effect to this policy, and parliament is expected to pass the bill. Although it is sometimes necessary in parliaments which meet infrequently to ‘legislate by press release’-to stop taxation loopholes, for instance-the legislature should be vigilant to ensure that the bill is introduced within a reasonable time after the announcement, that the retrospectivity is essential, and that the bill does not vary in any significant respect from the announcement. Moreover the legislature should not allow itself to be bulldozed by the tactics of the minister into passing a bill with which it disagrees.
In all the debates in the legislature over principles and policies, there is a danger that legal defects will slip through unnoticed. This is perhaps a particular danger with bills with whose purpose everyone agrees. An example is an apocryphal story about the British House of Commons:
More than 100 years ago, when divorce in the modern sense was possible only by Act of Parliament, an unhappily married Town Clerk was promoting a Waterworks Bill for his town; and in clause 64, mingled with something technical about filter beds and stop cocks, appeared the innocent little phrase ‘and the Town Clerk’s marriage is hereby dissolved.’ ... In due course the Royal Assent was given, and the Town Clerk lived happily ever after.
The important point about this story is that most MPs would not find it unbelievable. (There is also the question of whether the Town Clerk’s successors would have found themselves automatically divorced on assuming office.) These days, with divorce almost routine, the problems are more prosaic. Making some obligations or penalties retrospective, or giving bureaucrats unreviewable powers over ordinary citizens, are examples of abuses which are all too often produced by the government. The best solution which has been developed is to set up a small committee, with independent legal advice, to examine all bills as they are introduced and to draw the attention of the legislature to any such defects. The ideal legislature can then be expected to take the necessary corrective action.
The legislature would also be very careful about any law-making powers it delegates to the government, by empowering it to make regulations or similar instruments. The legislature must ensure that the terms of the delegation are no wider than necessary, that no power is given to make policy changes which should be given prior approval by the legislature, and that the delegated legislation is laid before the legislature and can be rejected by it if unacceptable.
Another area of potential abuse by the government is to delay the promulgation of bills passed by the parliament. Sometimes a delay is necessary, to permit the preparation of regulations, for instance, but the legislature must ensure that the arrangements for promulgation are precise, and if the government wishes to change the arrangements it must seek the approval of the legislature. This would prevent the present situation whereby some bills, duly passed by the parliament, have been wholly or partly suppressed by the government, sometimes for years. This has been a particular problem in Australia.
Lastly, our ideal legislature would be aware that the needs of effective administration demand that some bills should be passed by certain dates, and would arrange its program so that these dates were met.
Of course no such ideal legislature has ever existed, nor is it ever likely to. But it will be illuminating to see how far short of the ideal our existing legislatures fall, where they perform best, and where they perform worst.
All the parliaments follow the system which evolved in the UK for the parliamentary handling of proposed laws, though there are some local variations. A proposed law-a bill for an act-is given three ‘readings’. The ‘reading’ of a bill reflects the times when printed copies of bills were not available, and in any case many MPs were illiterate. These days all that is read is the short title of the bill. In most parliaments the first reading is a formality, merely placing the bill on the agenda of the house. The bill must be produced before the second reading, when the purpose of the bill is debated and a decision is made as to whether it should proceed. If a government has a majority it is almost unknown for one of its bills to be rejected. In earlier times, the rejection of a bill at the second reading stage sometimes caused excitement. In 1772 the Lords amended a clause of a money bill, and when it reached the Commons it was moved and seconded that the bill be rejected. The Speaker said ‘that he would do his part of the business and toss the bill over the table.’ The bill was rejected, and the Speaker, according to his promise, threw it over the table, several members on both sides of the question kicking it as they went out.
If it passes the second reading, the bill is examined in detail to see that it achieves the agreed purpose in a clear and efficient manner, and any necessary amendments are made. This stage is usually done by a committee, often consisting of the whole house. The report of this committee is considered by the house, and during this stage further amendments may be made. Finally the bill is given a third reading, which is a chance to look at the bill as it has emerged from the committee and report stages. The debate is confined strictly to the contents of the bill, and is usually a formality.
Bills presented to the UK Parliament are divided into three categories: public bills, private bills, and hybrid bills. Public bills deal with subjects of general public interest. Nearly all public bills are government bills, but occasionally an unofficial bill (one initiated by a private member) becomes law. In 1998-99, 35 public bills were enacted, which is below the average, which would be about 60. Private bills, which should be distinguished from private members’ bills, are for the benefit of individuals or groups, public companies or corporations, or local authorities. In 1998-99, four of these bills were passed, which again was below the average, which is about twenty. Hybrid bills are public bills which may affect private rights, and are dealt with by a special procedure. They are rare, with only ten passed between 1985 and 1999. All twenty parliaments use both types of public bills, but private bills are not universal and hybrid bills are not used outside the UK.
The first reading of a government bill originating in the House of Commons is a mere formality. A government bill originating in the House of Lords is deemed to have been given a first reading when it is received in the Commons and a member has told the clerks that he is taking charge of it.
The second reading is normally the key stage, when the purpose of the bill is debated and a decision made whether the bill should continue. A government normally has the numbers to pass its bills in the House of Commons, but it may have problems if it is a minority government, and difficulties may arise even when it has an apparently secure majority. MPs at Westminster do not have to maintain a quorum in the chamber during debates, and ample notice is given of divisions. The responsibility for maintaining party attendance rests with the whips, who send round weekly notices to their MPs warning them when important divisions are expected and indicating the relative gravity of the occasion by the number of lines-one, two or three-drawn under the message. There is therefore not the same pressure as in the other parliaments for MPs to remain close to the chamber all the time the House is in session. Moreover, party discipline is now much looser at Westminster than it is elsewhere.
The committee stage is where a government bill is examined in detail. In Bagehot’s day all bills were considered by the House as a whole, but the disruptive tactics of the Irish members led to two standing committees being set up in 1882 to deal with non-controversial bills. The number of committees was increased to four in 1907, and since 1947 the standing orders of the House have provided for bills to be automatically referred to a standing committee, unless the House of Commons orders otherwise. Bills of ‘first class constitutional importance’ are normally dealt with by the whole House, sitting as a committee. Other bills which may be dealt with by the committee of the whole House are ones which the government needs to pass quickly (when the courts have found a previous act defective, for example), or are of a very uncontroversial nature (for example a bill consolidating existing law), and the debate is expected to be so brief that it would not be worthwhile establishing a standing committee.
The remaining bills are sent to standing committees. The purpose of sending a bill to a committee is not to have it more carefully examined, but to enable a number of bills to be dealt with simultaneously, thus speeding up their handling. Each standing committee is known simply by a letter of the alphabet (Standing Committee A and so on) and members are appointed afresh for each bill. Each committee is chaired by a member appointed by the Speaker, who is supposed to be politically neutral. The relevant minister and shadow minister are members of the committee. The membership of the standing committees on bills is ad hoc and is apportioned according to party strength, so that the government party normally has control. The strength of the committees may vary between sixteen and 50, and the committee members are appointed afresh for each new bill. Even when the government has lost its absolute majority, as happened to Labour in 1976 and the Conservatives in 1994, no more than parity with the opposition parties is conceded. The chairman, who is appointed by the Speaker, then has the balance of power, and by tradition uses his vote to support the original terms of the bill, and thus frustrates all evenly-contested amendments, opposition or government.
The number of standing committees is adjusted so as to meet the workload. There are usually not more than six or seven. The procedures in both the standing committees on bills and the committee of the whole House are the same as in the House of Commons, except that members may speak more than once to the same question. There is no direct input from the public, and no questioning of civil servants. When the standing committee has made any amendments it desires, the amended bill is reported to the House of Commons, and further amendments may be moved, though the Speaker will not normally permit amendments which have been fully debated in the committee to be moved again.
The House of Commons may fix a date by which a standing committee is to report, but this is used only when a bill is being ‘guillotined’ through the House on a fixed timetable. This was not used very often between 1970 and 1990, only 32 bills being guillotined during that twenty year period, but was much more used in the 1990s, particularly by the Blair Government, 51 bills being guillotined during that decade. This should be compared with the Australian House of Representatives, where as many as 132 bills have been ruthlessly guillotined in a single year. (This was in 1992, under the Keating administration.)
Since 1981 there has been an alternative procedure by which a bill can be referred to a special standing committee, which may take written and oral evidence from interested parties in up to three meetings. These hearings have to be completed within four sitting weeks, unless the House permits a longer period. This procedure has been rarely used, less than one in a hundred bills having been so referred since the procedure was introduced.
Money bills are handled somewhat differently. In the UK the financial year commences on 31 March. Until 1993 the practice was for spending plans to be announced by the Chancellor of the Exchequer in November. There was a full debate on this statement two or three weeks later. A further debate to consider the public expenditure plans was held in the New Year, the process being completed by the budget statement in March, which included any proposed tax plans, a new economic forecast and the latest estimates of the result of public expenditure for the year just ending. The November 1993 budget was the first of a new style of budgets by which spending, borrowing and taxation decisions were brought together in one statement to the House of Commons. The start point was the budget which was introduced in November, with an updated economic forecast. In addition to a broad overview of the economic situation, in his budget speech the Chancellor of the Exchequer announced all the specific motions which would authorise the taxing charges to be incorporated in the Finance Bill. Some of these motions could be moved immediately to give provisional effect to tax changes, on tobacco or beer for instance. The debate on the budget usually lasted five days, at the end of which all the budget motions were voted on and passed without further debate.
This arrangement did not last. In the course of his speech on the 1997 budget the Chancellor (in the Blair Government) announced that from 1998 the budget would revert to March, with a pre-budget report published in November each year.
The Finance Bill incorporating the agreed resolutions is introduced after the budget motions have been passed, and often contains tax changes as well as the revenue necessary for the budget. The Finance Bill is handled like any other bill, except for the committee stage. At that stage some of the proposals, selected by the opposition, are debated in a committee of the whole House. Those matters chosen are the most politically controversial, and usually three days are made available. The remainder of the Finance Bill is considered by a standing committee, with the minister attending and answering questions. Although civil servants are present, they cannot be directly questioned. The committee may well meet a dozen times before it is satisfied. In 1983 the standing committee sat for 118 hours, but this was exceptional.
Many amendments are proposed, both in the standing committee and the committee of the whole House. These amendments are to stake out political positions or to earn the favour of pressure groups, and there is time to debate only a fraction of them.
The main estimates of expenditure are presented to the House at the same time as the budget, and these estimates are accompanied by an explanatory statement. As extra funds are needed during the course of the year, supplementary estimates are presented. Scrutiny of these estimates is cursory. As the Public Accounts Committee put it in 1987, ‘Parliament’s consideration of the annual estimates-the key constitutional control-remains largely a formality.’ The last time the House reduced an estimate was in 1919, when the Lord Chancellor was refused an additional bathroom.
Since 1982 the House of Commons has set aside three days for debating the estimates, and for considering amendments to the Supply Bills, which authorise the estimated expenditure. The matters in the estimates and supplementary estimates to be debated are selected by the chairmen of the select committees, fourteen of which have watching briefs over the various government departments and as part of their terms of reference are required ‘to examine the expenditure, administration and policy of the principal government departments and their associated public bodies.’ In practice the committees do little about the estimates, and the debates tend to focus on subjects these committees have been considering, which may be useful publicity but has no effect on the estimates.
The problem is not that no one cares about the effectiveness of the parliament in these matters; it is rather getting something done about it. In the late 1990s there were two committees in the House of Commons looking at the problem-the Procedure Committee, made up of backbenchers, and the Modernization Committee, controlled by the government with the Leader of the House in the chair. The terms of reference of the Procedure Committee were to review ‘the practice and procedure of the House in the conduct of public business’, while the Modernisation Committee had an almost identical task, ‘to consider how the practices and procedures of the House should be modernised.’
In July 1999 the Procedure Committee proposed radical reforms to increase the control of the House as a whole, and its select committees, over government expenditure, with the appropriate increases in the resources available to the various committees. The aim was to shift the examination from the annual estimates to long term expenditure plans. It proposed that all the principal documents concerning each department’s spending plans should be referred to the relevant select committee for examination. The select committee would have to report within 60 days, and no money could be voted until the committee had reported. The government’s reply to the Procedure Committee’s recommendations was lukewarm, and nothing has yet happened.
The Canadian Parliament passes an average of about 40 government public bills a year, all of which these days originate in the House of Commons. From the late 1960s all bills were automatically referred to standing committees, but this was changed in 1986 so that specific bills were referred to legislative committees for review, an arrangement which was stopped in 1994. In that year, standing orders were amended to permit a bill to be referred to a committee before the second reading, and this is becoming increasingly common. Only a minister can move such a motion, and there is then a three hour debate in which MPs are limited to single ten minute speeches. The committee then effectively carries out the second reading and committee stages of a normal bill, and reports back to the House with any proposed amendments. Further amendments may be moved at this report stage, in the usual way. The proposal is not universally popular, particularly because of the elimination of the usual second reading debate, although some discussion of this issue could take place during the three hour debate on the bill’s referral to a committee.
The bills referred in this way are not central to the government’s program and there is usually no consensus among government members. Typical bills related to bankruptcy, conflicts of interest of MPs, and gun control. Cross-voting is not uncommon on such bills, but is frowned on by party leaders. After fourteen Liberals cross voted in 1995, mainly on controversial legislation on gun control and hate crimes, Prime Minister Chrtien reacted angrily, stripping some of them of their committee responsibilities and even threatening not to sign their nomination papers in the future. In the 1994-97 Parliament, 25 bills-about 20 per cent of the bills passed-were referred in this way, but in the next Parliament this had dropped to four bills.
If there is general consent, a bill may be dealt with by the committee of the whole House of Commons, but this is very rare. It was used in December 1988 during the consideration of the free trade agreement with the US and Mexico.
The committees considering bills are adequately staffed, with technical assistance provided by the research staff of the parliamentary library, supplemented when necessary by experts from the community (chosen by the government). Some MPs still do criticise the level and quality of support available to committees, and certainly having the government select the expert advisers is objectionable. The committee hears evidence from the responsible minister and senior public servants and, if it wants to, from members of the public. Under a change adopted in 1991 the committee is restricted to hearing evidence only on ‘technical’ matters. The committee then considers the bill clause by clause. There is no official time limit on this consideration, though the parliamentary secretary to the minister sponsoring the bill is a member of the committee, and he may try to exert pressure on the chairman (always a government party MP) to hasten things along if he can. The only committees not traditionally chaired by a government member are the standing committees on Public Accounts and Scrutiny of Regulations.
The committee’s report, which never recommends that a bill should be rejected, is considered by the House of Commons. New amendments may be moved, but the Speaker will not usually permit the moving of amendments which have been rejected by the committee, which has discouraged some MPs from moving their amendments there. Even though their amendments may fail in the House, they prefer to move them there in the brighter glare rather than in a dull committee room.
The procedure is rather slow moving, and all governments have difficulty completing their legislative programs. The solutions adopted by both Liberal and Conservative governments have been to use omnibus bills covering several different subjects; to word the bills broadly so that fewer amending bills will be required in the future; and to make very extensive use of delegated legislation, which effectively by-passes the parliament.
Green and white papers are not now used as the basis for preliminary consideration of proposed bills, but a procedure has recently been introduced for a ‘pre-study’ bill to be tabled into the House of Commons, and public comment invited. This is all very well, but the public comment goes to the government, not the legislature.
Three new procedures have recently been adopted in Ottawa. The first is the possibility of the appointment of non-MPs to the committees. These appointed committee members are usually experts in the relevant field, and are able to question witnesses, take part in committee debates and the drafting of reports, but not to vote. The second development is the possibility of the nomination by the House of Commons of ‘associate’ members of committees, who may be co-opted by the committee to be members of any sub-committee that the committee may set up, and can also act as substitutes for members of the main committee.
The third new procedure is in some ways the most interesting. In 1993 the Liberal Party, then in opposition, proposed that some government bills should be prepared by the relevant parliamentary committees. This was designed to overcome the problems of the handling of controversial bills, which usually resulted in rigid party positions:
Once the Bill is prepared, since it is creature of a committee, rather than of the government, there would ... be no need for the Whips to be applied on any such vote. Debate on subsequent stages of a Bill drafted by a committee is not likely to lend itself to bitter partisanship ... Eventually, virtually all legislation could be initiated by committee.
In 1994 the new Liberal government amended standing orders to allow instructions to be given to a committee to prepare and bring in a bill. The committee is expected to provide the necessary instructions for the drafters, after hearing such evidence as it chooses on the purpose of the bill. The committee may, if it wishes, include recommendations regarding the actual wording. If the committee’s report is concurred in by the House, the bill is then drafted and is handled in the normal way, except that there is no debate at the second reading stage.
This is a significant change in the balance of responsibility between the government and the legislature, moving towards the American model. In the Westminster system, the preparation of government bills has been seen as a responsibility of the executive, with the legislature examining the government’s proposals and amending or rejecting them as necessary. In fact the system has been little used. The procedure was first tested in 1994, over a review of legislation concerning the adjustment of electoral boundaries. The bill was quickly passed by the House of Commons with a few technical changes, but died in the Senate.
The Canadian provinces
The parliamentary systems in the Canadian provinces are marked by short sessions so that part-time legislators face full-time governments, and the opposition is often very weak. In the past 50 years there have been 26 landslide election results, with one party winning 85 per cent or more of the seats. Eight of these have been in Alberta, but the most dramatic was in New Brunswick in 1987, when the Liberals won every seat. Such majorities do not make for effective legislatures.
Six of the provincial legislatures do not refer public bills to legislative committees, partly because of an historical reluctance on the part of the legislatures to reduce their power, and partly because in small provinces like Prince Edward Island there are not many bills and the Assembly itself is little bigger than the average committee (27 MPs, of whom ten are ministers).
Six provinces (Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec and Prince Edward Island) do regularly refer public bills to standing or select committees after they have been given a second reading. The proportion varies from all bills in Manitoba, Nova Scotia and Quebec, to 40 per cent in Ontario and about 10 per cent in Prince Edward Island and rarely in New Brunswick. Evidence from the public is solicited by the committees in Ontario, New Brunswick, Nova Scotia and Manitoba but very rarely in Quebec. Despite these committee hearings, it is very rare for opposition amendments to be accepted, except when there is a minority government. British Columbia refers about one public bill in a hundred to a standing committee, and Prince Edward Island about five a year. Newfoundland in 1989 started an experiment by which some government bills may be referred to one of three five-member parliamentary committees, but this idea was dropped and in recent years no bills have been referred to committees for examination.
Manitoba has a unique provision by which members of the public have the right to present their views to the committee, either orally or in writing. The number of such contributors has varied from none to over 200. The committees could set time limits for such witnesses, but almost never do.
In four of the provinces there is unlimited time available to the assembly for the consideration of estimates and even where there are limits they are generous by the standards of most other parliaments: twenty sitting days in Alberta, for instance. Only three provinces (Ontario, Quebec and Newfoundland) automatically refer the estimates to committees. In Ontario, the Standing Committee on Estimates selects between six and twelve ministries for detailed review of up to fifteen hours per ministry. The unselected ministries are deemed to be concurred in. The supplementary information provided with the estimates is generally quite inadequate, but in any case the estimates are almost never altered, except to correct typographical errors.
The Ottawa practice of Cabinets using ‘special warrants’ to grant themselves substantial sums of money without prior parliamentary approval is spreading to the provinces. The amounts so granted are retrospectively approved, usually in the supplementary estimates. The argument for such grants is that they are needed for urgent or emergency tasks, but the other countries do not seem to need them, and their use is a clear breach of a fundamental principle of responsible government.
Before some reforms were made in 1994, the Australian House of Representatives was almost totally ineffective as a legislature. It passed an average of 171 government bills a year, almost three times as many as were passed in the UK. Consideration of the detailed wording of bills was perfunctory. Except for a brief experiment, bills were never referred to standing or select committees. The details were considered in a committee of the whole House of Representatives, the only differences from the normal procedure being that the Chairman of Committees rather than the Speaker presided, and each member was permitted to speak on each motion for two periods not exceeding ten minutes. The minister in charge could speak for unlimited periods as often as he wanted.
To see how ineffective the House of Representatives was as a legislature at this time, it is worth looking at a typical year. In 1971 the House passed 138 bills, but only 34 of them were considered in detail in the committee, the remaining bills simply by-passing this crucial stage. There were two methods by which this was achieved. A procedure adopted in 1963 permitted the House to proceed straight from the second reading to the third reading of the bill, omitting the detailed examination of the bill in the committee. Of course the government would not ask to omit the committee stage if the minister had amendments of his own to move, usually second thoughts from his department or suggestions made by government party backbenchers. A single voice could have insisted on a committee stage for any bill, but none did on 89 bills. Only one opposition amendment was successful during the whole of 1971. The amendment altered the heading of a schedule to Customs Bill (No. 2) so that it more accurately described the contents of the schedule!
Another way to stifle debate on bills was also ruthlessly used. The Australian Parliament sits for only half as many days as do the Canadian and UK parliaments, and it is always a rush to get all the legislation through. The guillotine helps. In the 1971 Parliament the government passed a guillotine motion requiring the passage of twelve bills in six and a half hours, including six bills which were allowed only two minutes each for all stages, which is surely an insult to the parliamentary process.
Other national parliaments also use the guillotine, but with nothing like the same ruthlessness. The standing orders of the Canadian House of Commons, for instance, provide for agreements between the parties for time allocations for the stages of a bill. If agreement cannot be reached, a minister may move the guillotine, but not less than one sitting day must be provided for each stage of the bill.
Things continued very much the same for the next two decades in the Australian Federal Parliament. The Parliament continued to pass an astonishing amount of legislation. The number of bills not considered in detail-that is, for which there were no committee stages-averaged 141 a year, which is an extraordinary dereliction of duty by a legislature. There was also no serious attempt to listen to suggestions from the opposition, even though some of them were genuine attempts to improve the legislation.
The increase in the use of the guillotine to restrict debate on bills was also disturbing. In the three years of the Whitlam Labor Government (1972-75) it was used an average of twenty times a year. Its use fell sharply in the Fraser years (1975-83) to an average of two, and in two of the years the guillotine was not used at all. The Hawke Labor Government, elected in 1983, reversed this trend and used the guillotine ruthlessly. In its first seven years it guillotined more bills than had been so treated in the entire period since federation. In 1988, 102 bills out of 210 were declared urgent, while in each of the years 1991, 1992 and 1993 over 100 bills were given restricted debating time (or guillotined). All government amendments were put together and passed when the allotted time expired. It was scarcely worthwhile for the opposition to divide on the bills or the amendments, for a division takes eight minutes and this would eat into the scanty time available for the next bill.
There were attempts to do something about the problem. In 1978, during the Fraser Government, an experiment was made with legislation committees, more or less on the Westminster lines. A bill could be referred to a legislation committee after its second reading, but only if no MP objected. A committee had between thirteen and nineteen members, with what was intended to be a safe government party majority. The procedures were much the same as in the committee of the whole House, and the committees were not permitted to call witnesses. Thirteen bills were referred to the committees in the first three years. There were no amendments to six of them, and in a further four the only amendments came from the minister. The remaining three were interesting, because in all of them opposition amendments were either accepted without division, or passed with government party cross voting. The cross voting occurred on a bill dealing with listening devices for narcotics offences, and on another bill to ban whaling, which had a controversial clause making it an offence for an Australian citizen to take part in whaling anywhere in the world. The listening device amendments were accepted at the report stage, when the committee’s report was considered by the House, but the whaling amendment was rejected, though five government party members cross voted.
This experiment with legislation committees was not really a success. Less than 5 per cent of bills were referred to the committees, and not more than two committees were ever operating at the same time. Their inability to take expert evidence limited their effectiveness. Their proceedings were constantly interrupted by quorum calls in the House, which committee members had to answer. Worse still, the committees were bitterly resented by some influential ministers, who did not like the scrutiny they gave to bills and particularly the cross voting. The committees lapsed in 1981, partly because the leading backbench advocate had lost his seat at the 1980 elections. Nevertheless it should be noted that the only bills amended in the House on opposition initiative between 1977 and 1987 were the two mentioned above.
An experiment with estimates committees was even less successful. In 1979 it was agreed, against the opposition of many ministers, that the main appropriation bill would be referred to an estimates committee after the leader of the opposition had made his response to the budget. The committee was to examine and report on the estimates, but it was not empowered to vary or reject them. Responsible ministers answered questions on their department’s estimates, and they could, if they wished, permit public servants to answer questions, though public servants were not supposed to be asked direct questions. Ministers did not like the arrangements at all. Much too intrusive, and a waste of time, they thought. In any case, the estimates committees were looking at less than half of the appropriations, for most government expenditure in Australia is authorised by permanent rather than annual appropriations, and the proportion is rising: from 42 per cent in 1965 to 68 per cent in 1985.
A second attempt at reform was made in 1994, under the Keating Labor Government. A new standing committee-called the Main Committee-was set up, to deal with the second readings and the ‘consideration in detail’ of bills referred to it. Any MP can attend the Main Committee. It meets at the same time as the House, usually for about six hours a week, speeding up proceedings by allowing two legislative streams to be operating simultaneously. The bills referred to the Main Committee are non-controversial, and votes are not taken there. If matters cannot be resolved unanimously, there are referred back to the House. A single dissenting voice is enough for this. Any decisions the Main Committee makes must be approved by the House.
At the same time changes were made to proceedings in the House of Representatives. The old Committee of the Whole was abolished, and bills are ‘considered in detail’ by the House using ordinary procedures, except that members may speak as many times as they wish on each motion, but for not more than five minutes each time. However, it is permissible for this stage to be by-passed, and less than a third of the bills are considered in detail at all.
The changes have solved some of the problems over the handling of legislation, but by no means all. The use of the guillotine has been markedly reduced since the Main Committee was introduced; in fact it was not used at all in 1999. On the other hand, consideration of the detail of the bills in the Main Committee has not been a success. MPs make policy speeches on these non-controversial bills, but spend very little effort on examining the detail of their contents. If you asked the average MP how many bills he or she had read carefully from start to finish, the answer would almost always be: none.
The Procedure Committee recommended a number of changes to the Main Committee, of which two are worth noting. Firstly, that it would be more appropriately named the Second Chamber; secondly, that there should be a freer style of debate, modelled on the UK House of Commons, by which members would be able to give way briefly during their speeches to allow other MPs to ask questions to clarify issues or raise objections. This should improve the standard of debate, as a somewhat similar procedure has done in the Canadian House of Commons. It remains to be seen what the government response will be.
The introduction of three, rather than two, sitting periods a year seems to have reduced the rush of legislation at the end of a sitting period. The Senate has contributed, by refusing to consider bills not introduced in the Senate in the first two-thirds of a sitting period; bills which do not meet this requirement are automatically deferred until the next sitting period, although the government can seek an exemption from this rule. As the government does not control the Senate, its reasons, made in a formal statement justifying the need for the exemption, have to be persuasive to be successful.
A small step has been taken to improve the scrutiny of complex bills. Eight general purpose standing committees were set up in 1988, with watching briefs covering the full range of government activities. A committee may have a bill referred to it at any time after the bill has been given a first reading, and it may receive evidence and hold public hearings, though it cannot amend the bill but can only recommend amendments to the House. A committee can also recommend improvements to the program which the bill is implementing, and can suggest what should be included in regulations to be made under the authority of the bill. The trouble is that only a tiny proportion of bills receives this thorough examination. Only 26 bills have been referred to standing committees or select committees since the system started, and after a brief flurry of interest in the mid-1990s the number has fallen away again, with only one bill referred in 1998 and two in 1999.
The Australian states
One cannot say that the federal House of Representatives functions very usefully as a legislature, and the state legislative assemblies follow the same pattern. Perhaps, as most of them were established half a century before Federation, they may feel that Canberra follows them. No matter: it is a deplorable pattern. State parliaments sit briefly, opposition amendments to bills are very rarely taken seriously, and bills are almost never referred to parliamentary committees for public examination. The gag and the guillotine are used frequently in the New South Wales and Victorian assemblies, but rarely in the other states, though South Australia operates a weekly guillotine, agreed between government and opposition, which divides the time available between the various bills.
Victoria made an important advance in 1993, when it set up a Scrutiny of Acts and Regulations Committee, modelled on a similar committee in the Australian Senate, which is described in Chapter 8. The Victorian Committee has three sub-committees, one dealing with bills, another dealing with regulations and the third with redundant legislation. Each sub-committee has a legal adviser. Queensland also has had such a committee since 1995, looking at the legal aspects of bills, but the legal adviser does not deal with each bill as it is introduced into the House, but only with such aspects of bills as are referred to him by the committee, which severely limits his effectiveness. The other states have taken no action in this area.
The New Zealand government occasionally makes use of a green bill, a draft bill which is circulated for public comment, and amendments may be made before the bill is introduced into the Parliament. The procedure for bills in the New Zealand Parliament is unusual in that the first reading of a bill is a significant stage. In most other parliaments the first reading is a formality, merely placing the bill on the notice paper-the agenda-of the House. In New Zealand the bill is produced at the first reading stage, and there is a limited debate during which the purpose of the bill is explained. With government bills, acceptance of the bill and approval of its first reading are automatic, though the debates are sometimes tedious and usurp the role of second reading debates, with much political point scoring. Since 1979 the standing orders of the House of Representatives have required that all government bills (with the exception of those of a budgetary nature or declared urgent by the government) be automatically referred to a select committee for further examination. The committee will usually advertise for submissions on the bill from interested individuals and organisations, usually allowing three weeks but frequently longer for the submissions. A program of public hearings will then be arranged. One bill attracted 1200 submissions. Of course others attracted none at all, but even with such bills the public scrutiny is valuable insurance, for an alert individual may be able to detect an unintended ill-consequence in an apparently innocuous bill.
Before the introduction of MMP a majority government had the power to declare to be urgent any bill it chose, and the bill could be rushed through the House without consideration by a select committee. Even when a bill was referred to a committee the government, if it wished, could use its majority on that committee to limit the public input. With MMP this is much more difficult. More consultation is required before a bill can be declared urgent, and the government cannot expect to have a regular majority on the select committees.
The significance of a bill being referred to a committee before its second reading is that it enables the committee to look not only at the details of the bill but also at its principles, and indeed whether it is necessary at all. In New Zealand (unlike some other parliaments) the government does not normally attempt to force a committee to rush its consideration of a bill. Having heard all the witnesses it wants, as well as government officials, the committee then starts looking at the detail of the bill, clause by clause, using ordinary parliamentary procedures. A bill is sometimes sent to a committee in a very rough state, leaving it to the committee to tidy it up. An example was the Fisheries Bill of 1995, on which the committee received 112 submissions, 32 of which requested an appearance before the committee. The committee recommended extensive policy changes as well as re-arrangement of the bill, with the result that only ten of the 370 clauses remained unamended by the committee. The government accepted nearly all of the committee’s recommendations. The downside of giving a bill to a committee in such an undeveloped state is that the amendments it proposes may be incomplete or inconsistent, and in a number of cases resulted in amending legislation being necessary when the act had barely had time to come into effect.
For all government bills, the committee has the assistance of a parliamentary counsel in drafting any amendments. The committees tend to act in a non-partisan way, for the party caucuses will not normally have taken a firm position on the wording of the bill. Generally the committee members try to reach agreement on amendments to overcome problems which have been pointed out, if necessary consulting the minister, the shadow minister and sometimes the party caucuses on important amendments. The bill is then returned to the House, with a recommendation as to whether or not it should be proceeded with-it is almost unheard of for a bill to be recommended against-and if the bill is to go on, listing any suggested amendments, which are automatically made to the bill before it is considered by the committee of the whole house. With the introduction of MMP, the government may not have majorities on each committee, nor hold the chair. In 1999 the Labour government (with Green support) had a majority on only eight of the fifteen committees.
A recent development has been the use by interest groups of mass petitions to Parliament supporting or opposing controversial bills. The number of petitions on the Radiocommunications Bill asking for the retention of the existing frequency for a Christian radio station was so great that the responsible minister announced a proposed amendment to the bill while it was still before a select committee.
After the select committee has reported, the subsequent proceedings with the bill are fairly standard. There is a second reading, with some inevitable political posturing. Then there is a committee stage, of the whole House, during which the opposition may put forward its amendments, and the minister may move any amendments which implement departmental second thoughts or to correct anything the select committee has done which the minister does not like. And finally there is the usual third reading debate.
Money bills are handled differently. Money bills are defined in the New Zealand Parliament as those of a ‘financial or budgetary nature’. To be so classified by the Speaker, a bill must be substantially (but not necessarily exclusively) concerned with those matters, and must deal with economic policy and not merely with administrative matters. A money bill is not, like other government bills, automatically referred to a select committee. It can be if the minister wishes, but this is rare.
The main appropriation bill, the expenditure side of the annual budget, is examined in more detail. The appropriation bill shows only the total of each vote, but the detailed estimates which make up each vote are examined, on behalf of the House, by the appropriate select committees. The activities of the select committees are co-ordinated by the Finance and Expenditure Committee, which has an overriding responsibility to determine ‘what, if any, economies consistent with the policy implied in those estimates may be effected therein.’
Government officials are questioned by the committees in private session, and the reports of the committees are available to the committee of the whole house when it deals with the main appropriation bill, though debates at this stage are usually yet another broad ranging policy debate rather than consideration of the details of the estimates.
There are problems with the New Zealand select committees stemming almost entirely from inadequate resources. The public hearings are not recorded in Hansard, which makes it difficult for MPs who were not present to be sure of exactly what was suggested. More serious is the fact that advice for the committees usually comes from bureaucrats, frequently the ones who wrote the bill the committee is considering. They have an impossible conflict of interest. Further, the departmental advice is not heard in public, being taken by the committee behind closed doors. The lack of independent expert advisers to the committees is a serious weakness. There are also problems with the availability of sufficient MPs for the committees, although the 20 per cent increase in the size of the House has reduced this problem slightly.
The New Zealand Parliament has a curious habit of occasionally grouping a large number of bills, sometimes more than twenty, in a single bill, passing them through all the early stages as a single bill, and then breaking them up into their component bills when the Parliament has effectively finished its consideration. The procedure was originally intended to speed up the handling of minor uncontroversial amendments to various acts, but has been used in recent years for quite substantial matters. From the government point of view it speeds up the passage of the bills, but it makes their consideration in committee very untidy and unsatisfactory.
A minority government has several possible approaches to the handling of legislation. If it has managed to organise promises of support from minor parties or Independents on motions of confidence and budget bills, it is almost inevitable that the price will be for them to have some influence on the government’s legislative program, and the government will just have to accept this as the price of its survival. With regard to other bills, some will be non-controversial, and will benefit from detailed scrutiny and appropriate amendment, particularly if there is direct input from the public at the committee stage. Budget bills are normally passed as a package. The problems arise with bills which are disliked by the opposition. Depending on the attitude of the minor parties or Independents holding the balance of power, the government can either accept defeats stoically while waiting for a suitable issue on which to call an election, or attempt to negotiate with those holding the balance of power to gain support for particular bills, frequently with amendments wanted by the minorities. A great deal depends on the tactical situation, and the skill of the prime minister or premier.
In all minority governments, the negotiations with the minor parties and Independents over legislation are conducted by the executive government, usually by the minister concerned. The government party caucus is merely invited to support the agreement. Party discipline almost always holds, even when many government party members are against the deal. In such circumstances government party members have little influence on the detail of controversial bills.
Traditionally the parliamentary agenda is set by the government, with the order of government business being determined by the Leader of the House. This may be disputed when there is a minority government. It may happen too when there are many parties in the lower house, as in New Zealand as a result of MMP. The New Zealand House of Representatives has taken an important step by taking the matter out of the hands of the government and setting up a Business Committee to control the parliamentary program. The Business Committee may determine the order of business, the time to be spent on an item, how the available time is to be allocated among the parties, and the speaking time of individual members. The
Business Committee is chaired by the Speaker, and all parties are represented proportionally on the committee. Its aim is to reach unanimity or near unanimity on the business program of the House, and so far it is working well.
There is yet another version of minority government, when a government with a majority in the lower house does not control the upper house. The legislative problems, and the benefits, which flow from this are discussed in Chapter 8.
Whatever the procedures for the handling of bills, their effectiveness depends on the way they are manipulated. If MPs are going to support the party line regardless of the arguments and evidence advanced, the most elaborate procedures become mere charades.
Until the early 1970s, party discipline in the House of Commons was fairly strong, so strong indeed that commentators came to regard a party line vote as automatic, and there was ‘public suspicion that members have become mere ministerial voting machines that rarely even backfire in protest.’ There were occasional instances of deliberate abstention or voting against the known wishes of the party’s leaders, but this did not unduly inconvenience any of the governments. The reasons for this discipline were many: loyalty to the party, fear of loss of political preferment, the possibility of action by the party in the constituency, and the belief (unfounded though it was) that if the government were defeated the prime minister would have to seek a vote of confidence or a dissolution, or resign.
The 1970s were a turbulent time in the House of Commons, with minority Labour governments for much of the decade, under Wilson between February and October 1974 and again under Callaghan from 1976 to 1979. By contrast the 1980s were stable with a secure Conservative majority from 1979 onwards. In the 1990s the Conservative majority evaporated, and in its last days the Major Government was in a minority. The Labour Party under Tony Blair won a decisive victory in 1997, and continued to govern until the end of the century.
Voting discipline became much less rigid. As far as the Conservative Party was concerned the catalyst for change was Prime Minister Heath (1970-74) whose manner and methods antagonised many of his own party. Two-thirds of the Conservative Party backbenchers voted against the Heath Government on at least one occasion, and the Heath Government was defeated on five occasions by cross voting or abstentions by its own members. There were 204 divisions (out of 1100) in which there were Conservative dissenting votes (dissenting from the party line, that is) compared with 34 for the Labour Party. Perhaps the most dramatic event concerned the joining of the European Common Market. When the House voted on the principle of entry in October 1971, the Conservatives were allowed a free vote, and 39 voted against entry. The Labour Party opposed the motion, but 69 defied the three-line whip and voted for entry. When the Common Market Bill came before the House in February 1972, Heath explicitly made the second reading vote a matter of confidence-that is, Parliament would be dissolved if he were defeated-yet fifteen Conservatives cross voted to oppose the bill and five abstained. The bill passed only because it had the support of five Liberals and five Labour MPs abstained.
Even with cross voting, almost all government bills were given a second reading. On a standing committee an opposition amendment will succeed only if there is cross voting by government party members, or if the minister accepts the amendment. The Heath Government suffered ten defeats caused by cross voting in committees and ultimately accepted all the amendments either outright or in modified form. Further bills, possibly as many as ten, were modified to head off threatened dissent.
In the minority Wilson Government of 1974 the pattern continued. In 23 per cent of the divisions in that brief Parliament someone broke ranks, though the embattled Labour Party held together rather better than the Conservatives, still led by Edward Heath. Few bills were introduced and the government was not defeated on any of them, chiefly because the opposition leaders did not want an early election, fearing that Labour would receive voter sympathy and gain an absolute majority. Nevertheless the government lost fourteen divisions on amendments to bills, and seven amendments made by the House of Lords were accepted by the Commons over government objections.
The October 1974 election gave Wilson a three seat majority, but this gradually disappeared through defections and by-election losses, and from April 1976 (when Callaghan replaced Wilson), Labour was again a minority government, frequently defeated on minor issues but surviving no-confidence motions until 1979 through the support of minor parties, particularly the Liberals. In the 1974-79 Parliament the Labour government suffered 42 defeats, 23 of which were caused by cross voting by Labour backbenchers. Out of some 1500 divisions either Labour or Conservative backbenchers cross voted on 423 of them (that is, 28 per cent). The frequency of Labour defections was rather higher than among the Conservatives. One significant alteration forced by the opposition reduced the basic rate of income tax and raised the level of income at which the higher rates would apply. Most governments in the past would have treated such defeats as grounds for resignation or a dissolution, but the Callaghan Government simply accepted them and plodded on.
In the Thatcher years, although the ‘Iron Lady’ always had a safe majority and from 1983 a substantial one, the new pattern of cross voting and abstentions continued. In the 1979-83 Parliament there were sixteen occasions when ten or more Conservatives abstained or cross voted. In April 1986 the Shops (Sunday Trading) Bill, which was introduced by the government in the Lords, was decisively beaten in the Commons because of substantial Conservative cross voting, despite a three-line whip. This was the first bill lost in the twentieth century by a government with a majority in the Commons.
Things became worse in the Major Government. John Major took over from Margaret Thatcher in December 1990 and, to everyone’s surprise, won the election in April 1992 with a majority similar to Thatcher’s in her first election. The trouble was that the Conservative party was splintering, chiefly over involvement in the European Union. The government was defeated nine times on the floor of the House, caused by cross voting by Conservative MPs.
Things became easier in the Blair Labour Government, not because of less cross voting but because of Labour’s massive majority-419 of the 659 seats. In fact there was substantial cross voting, with 47 Labour cross voters on a bill dealing with lone parent benefit and 67 on one dealing with disability cuts.
How can one explain this behavioural change by the Parliament? In part it is because the idea that a government defeat automatically means an election is no longer credible, though it had been firmly believed by some MPs as late as the 1960s. Since then governments have been frequently defeated and yet survived, provided they keep the formal confidence of the House. No cross voter or abstainer was expelled from a parliamentary party, though some left voluntarily. Constituency retribution has not been evident, and as for loss of preferment it should be noted that one of the Labour cross voters was Neil Kinnock, later leader of the Labour Party, and several of the Conservative cross voters during the Heath Government became ministers under Margaret Thatcher. The pattern having been broken, it seems that tight party discipline will be difficult to restore. The danger with cross voting is that it may distort decisions of the House, if all parties do not have similar disciplinary standards.
Of course great pressure can be put on an MP to toe the party line. The government chief whip has formidable weapons, apart from routine appeals to party loyalty and warnings of the danger of constituency retribution. For the government chief whip is the ‘Secretary of Patronage’. He has great influence on the selection of junior ministers, and on the decisions as to which backbenchers will be rewarded with knighthoods. Despite these powers, the chief whips have had some failures, particularly with MPs who no longer have any ambition to be parliamentary secretaries and already have knighthoods.
It is easy to overstate the significance of the behavioural change in party line voting as far as legislation is concerned. At Westminster the government party has no direct input into bills before they are presented to the House, unlike the other parliaments where the outlines of bills (except for the budget) are extensively debated by the government party caucuses and their party committees before being introduced into the House. Substantial modifications are sometimes made to bills as a result, and if there is sufficient resistance a bill may even by withdrawn.
At Westminster these intra party arguments take place on the floor of the House, or in the standing committee if the chief whip has been careless enough to appoint malcontents to the committee. This procedure is undoubtedly more in keeping with the traditional concept of responsible government-the executive should present its bills to the House of Commons without having them first considered by a section of that House-but it does have disadvantages. The government may be more reluctant to accept sensible amendments in the public glare of parliament than it would be in a party committee or caucus. What is astonishing is not that there is now substantial cross voting in the House of Commons, but that until 1970 government party MPs were prepared to rubber stamp bills into which they had had no input.
This lack of prior access to the detail and structure of bills does not mean that government party members have no influence on what bills are put forward. All the major parties have committee structures for their parliamentary parties. Conservative backbench MPs have a weekly meeting, called the ‘1922 Committee’, which ministers are entitled to attend only to discuss matters within their responsibility. There are also numerous ad hoc committees-perhaps as many as twenty-set up to deal with particular matters, and they spawn many subcommittees. These committees may raise matters for discussion in the 1922 Committee. No votes are taken there, but the Whips attend and report the feeling of the meeting to party leaders.
The committee structure of the Labour Party is much more rigid. All ministers attend meetings of the parliamentary party and formal resolutions are considered and often voted on. These resolutions are then held to be the policy of the party. There are also twenty or so departmentally related committees which, when Labour is in opposition, are chaired by the relevant shadow minister. There may also be special working groups set up to consider major bills after they have been introduced, and to report on them to the party meeting.
All prudent prime ministers-including Margaret Thatcher-are sensitive to the likely reactions of government party backbenchers, and will disturb them only if the policy reward is worth it. The exception was Edward Heath who, despite having been chief whip, seemed insensitive to backbench views, and he ultimately paid the price. Many examples of backbench influence over legislation could be cited, and this pressure is obviously more effective if the government’s majority is small. The Whips may well negotiate amendments with dissident government backbenchers, to avoid the embarrassment of cross voting and even possible defeat. During the 1951-55 Churchill Conservative administration, for instance, when the government had a majority of only seventeen, backbench pressure resulted in the introduction of commercial television, and the speeding up or amendment of policies such as MPs’ pay, teachers’ superannuation, judges’ remuneration, and development councils.
Canadian MPs almost invariably follow the party line on legislation, both on the floor of the House and in committee. There are occasional defections, but these do not cause problems. When they occur, they are usually orchestrated by the whips to permit a member to make a symbolic protest-either because of conscience or strong local pressure-but not so as to cost the government a division.
Before bills are introduced into the House their outlines are considered in secret by the government caucus, and bills may be modified or even withdrawn as a result of caucus pressure. But in public the parties vote solidly. The party whips are the key to discipline. The whips used to have some peculiar problems. When there is a division in the Canadian House of Commons, the bells ring for either fifteen or twenty minutes, depending on the nature of the division. It used to be the custom that, when the bell-ringing time had elapsed (and they sometimes rang for a little longer than scheduled to allow for tardy MPs) the government and opposition whips advanced side-by-side to the speaker and bowed, indicating that all was well, the bells could stop and the division begin. In 1983 there was a dispute over whether an omnibus bill should be split and the parts voted on separately. The government would not agree, and the opposition whip refused to make the ceremonial entry. The bells rang for fourteen days until the government agreed to split the bill. The standing orders were soon amended to eliminate the whips’ ceremony.
The whips allocate office space, they usually decide who participates in debates and question time and who is on which committee, and they play a major role in deciding who goes on overseas trips with parliamentary delegations. Except in the UK, where the government chief whip commands even greater patronage, these powers are unmatched in the other parliaments.
Another important factor in ensuring party discipline, at least on the government side, is the short expectation of political life of the average Canadian MP which, coupled with a long tradition of political patronage, is a powerful tool for the whips. ‘A very high proportion of government MPs will someday, when their parliamentary career ends, obtain a position of reward (patronage) as judge, member of board or commission, or ambassador.’
The great weaknesses of the committees considering bills were their changing membership and their partisan nature. If a committee member was unable or did not want to attend a meeting, a replacement was provided to keep up the party voting strength. The method of selection of the replacement was constantly changing-sometimes it was done by the MP, sometimes by the whip-but it resulted in an unstable membership, often largely unaware of what had gone on before. Worse still were the so-called ‘goon squads’ organised by the whip, who marched in as a vote was about to be taken, presented their credentials and asked a colleague ‘which side are we on?’ On controversial bills there is a high degree of partisanship, with cross voting almost unknown. In the decade of the 1980s, not more than five clauses in bills were amended against the wishes of the minister.
The recent decision to permit non-MPs to be appointed to the committees should improve the quality of the reports of the committees. These non-MPs are usually experts in the matter being considered, and although they cannot vote they should make a contribution to the committee reports. To overcome the problem of the replacement of committee members, the nomination of ‘associate’ members by the House of Commons should remove the need for goon squads; these associate members are also available for sub-committees. They will not of course alter the partisan nature of committee reports, for the associate members selected will always be of the same parties as the missing committee members.
Until 1987, it was extremely rare for opposition amendments to be accepted. Indeed, from 1977 to 1987-eleven years during which nearly 2000 acts of Parliament were passed by the Fraser Coalition Government (1977-83) and the Hawke Labor Government (1983-87)-except for the two bills amended by the legislation committees, not a single opposition amendment to any bill was accepted in the House.
From 1987 to 1994 there was a trickle of opposition amendments accepted, but this was largely because opposition members took to moving some of the amendments suggested by the all-party Senate Scrutiny of Bills Committee. This committee, of which more will be said later, has independent legal advice and examines the technical aspects of all bills. The government, knowing that the amendments would probably be made in the Senate anyway, sometimes found it convenient to accept them in the House.
The 1994 reforms did not make any significant difference to the number of opposition amendments to bills which were accepted by the government, which until 1999 still never reached double figures. In that year no less than eight bills were amended on opposition motions, and one had nineteen such amendments and another fourteen. The reason for the dramatic change was that the government was fighting to get major tax reforms through the Parliament, and obviously thought that if it showed a reasonable approach to the handling of legislation, the opposition or the Australian Democrats or the minor parties or Independents in the Senate might show more flexibility in their approach to the tax legislation. Indeed, the minister handling the Broadcasting Services Amendment Bill (No. 1), to which fourteen opposition amendments were accepted in the House of Representatives, thanked the opposition spokesman for his general support for the bill, and said that ‘I have no doubt at all that that bipartisanship should extend to the government’s tax legislation.’ Whether this approach will survive the passage of the tax legislation remains to be seen.
Party discipline is rigid in the House of Representatives. Cross-voting is very rare-almost unheard of-in the Labor and National parties. In the Labor Party, voting against or abstaining from voting in favour of a caucus decision normally results in expulsion from the parliamentary party and political oblivion. There was only one occasion in the past three decades when a Labor MP broke ranks, and he survived! The Labor MP representing the gold-mining centre of Kalgoorlie voted against the Labor Government’s 1988 gold tax. The caucus understood his problem, suspended him for a period which covered the summer parliamentary recess, and then forgave him. He was finally expelled from the Labor Party in 1995 for expressing many views which were contrary to Labor Party policy, particularly on immigration and racial policy, including attending meetings of extreme right groups such as Australians Against Further Immigration and the League of Rights. He held his vast electorate as an Independent in 1996, but was defeated by the Labor Party candidate in 1998. About ten Labor Party MPs and senators threatened to break ranks and vote against the Gulf War in 1991, but in the event the motion was carried without a division. There was one recorded ‘no’ vote, but it was by an Independent.
The National Party does not have the strict rules of the Labor Party, but it is a small, extremely cohesive group. The Liberal Party is the maverick. Its federal platform says (slightly tongue in cheek) that MPs should be ‘responsible to their electors alone, and not subject to direction by people or organisations inside or outside Parliament.’ Liberal MPs sometimes use this right, but not to much practical effect.
Cross-voting is most significant when a party is in power, for it may result in legislative amendments. In fact, during the 1975-83 Fraser Coalition Government one or more Liberals cross voted on eleven procedural motions (most of them moved by the government to limit debate) and on seventeen amendments to government bills, but the government did not lose any of the procedural motions and none of the amendments to the bills was carried. None of the cross voters was penalised by loss of selection as the Liberal candidate in the next election. Indeed, in some cases their position was strengthened, for they were representing the views of the party organisations in their states, which were opposed to what the federal government was proposing-on matters such as retrospective change to the income tax laws or the continuation of an anti-competitive internal airline system. Nor was any action taken by the parliamentary party. None of the cross voters was expelled or publicly criticised in the party room. Five of the cross voters later became ministers.
On bills on which the government party is deeply divided, a free vote is sometimes permitted, but only if an agreement can be reached with the opposition to grant similar freedom to their members. Free votes on government bills are rare, having been permitted only four times in the past 30 years. The bills concerned dealt with the abolition of the death penalty (1973), family law (1974 and 1983), and sex discrimination (1984).
Party discipline is extremely strict in New Zealand, and a Labour or National Party member would never be away from the Parliament without a whip’s approval. Labour members sign a pledge to vote as their caucus decides; they cannot even abstain. The National Party members are not pledged, but they have a very high degree of conformity, and all important matters on which they may be called upon to vote will have been previously discussed and agreed in the National Party caucus.
There was only one occasion between 1970 and 1999 on which cross voting cost the government a bill. This was in 1998 when two National Party MPs voted against a bill concerned with the Auckland Regional Council. The vote was tied, and in accordance with standing orders the bill was lost. This was the first defeat of a government bill in the twentieth century. Defeats on important clauses are also very rare. A National Party cross voter was publicly told by Prime Minister Muldoon that his re-nomination would be opposed, but the party president pointed out that the parliamentary leader had no standing in the matter. Those who cross vote repeatedly may suffer minor slights, such as lower priority in the competition for speaking opportunities, leave from the House or overseas trips. The most effective deterrent is undoubtedly the probability of the denial of ministerial office, though the minister of finance in the 1990 Bolger National Party government had cross voted in 1984 and cost the Muldoon Government an important clause. The overwhelming National Party victory in 1990, and the consequent arrival of a large contingent of new members, caused an upsurge in cross voting, but the government’s majority was such that this did not cause any real problems.
In 1989 a Labour member was removed from the chairmanship of a select committee because he abstained from voting on a bill to sell the Bank of New Zealand. On the other hand, another Labour member suffered no adverse consequences in 1974 when he voted against the compulsory acquisition of wool, the caucus turning a blind eye because of the MP’s electoral problems. But only two cases in the Labour Party in 30 years is an extraordinarily low rate of cross voting.
The amount of time the government is prepared to permit the parliament to spend on business not initiated by the government is a fair indication of its respect for the institution. Private members’ bills provide MPs with a device with which they can criticise government policy and put forward policy suggestions which they consider important. Professor Mallory has claimed that, in Canada, practically every significant measure of reform in modern times has been introduced by a private member, usually but not exclusively from the opposition. The ideas which receive public support are often eventually taken up by the government.
The House of Commons makes a much more generous allocation of time for private members’ bills than do any of the other parliaments we are considering. In a normal session, which lasts from the end of the summer recess in September or October until September or October of the following year, between ten and thirteen Fridays are reserved for such bills. Friday is chosen both because the House rises earlier and also because there is usually a free vote on private members’ bills, which means that MPs not interested in the bills can leave the House and have a long weekend, or perhaps visit their constituencies.
Which backbenchers are permitted to move bills is decided by a ballot, with about 60 per cent of backbenchers-that is, over 400-entering it. The first six can be certain of having a bill debated, the next six probably will, and so on. Another method of introducing private members’ bills is also available. Each Tuesday and Wednesday a backbencher may move for leave to bring in a bill. Only one such motion is accepted each day, and the mover may speak for ten minutes, explaining the purpose of the bill. This usually gives the publicity the MP is seeking, though very few bills introduced in this way eventually become law. MPs may also give notice of a bill; the bill is presented formally, and the MP does not make a speech at this stage. MPs cannot present such bills until the ballot bills have been presented, so there is very little likelihood of them being debated.
Each year a total of about fifteen private members’ bills can be expected to be given a second reading, and having crossed this hurdle nearly all of them complete the remaining stages, which are the same as for other public bills. There are usually many amendments, either in the standing committee or at the report stage, in order to get the bill into acceptable shape if it looks like being passed. The House of Lords nearly always passes private members’ bills which have succeeded in the Commons, though it occasionally proposes amendments.
Many members who are well placed in the ballot do not actually have a bill ready, and they are inundated with suggestions. Ministers with bills for which there has not been time in the government program look for pliable backbenchers who have done well in the ballot, and they often find them. About a third of the private members’ bills which are passed are in fact government bills moved by a backbencher. Of course backbenchers often do have passionate convictions, but they will get a bill through only if it is reasonably uncontroversial or there is substantial cross party support.
A good example of a bill passed against government wishes is the National Audit Act of 1983, which had its origins in a report by the Public Accounts Committee in 1981. The PAC report aimed to reform the powers, staffing and method of appointment of the Comptroller and Auditor-General. This was firmly rejected by the Thatcher Government, acting on the advice of the Treasury which was anxious not to see its own powers diminished. When the National Audit Bill was introduced by a backbencher, with co-sponsors from all parties, the government had to yield, though it managed to win some last-ditch struggles, of which the most important was the very regrettable decision to exclude the audit of nationalised industries from the scrutiny of the Comptroller and Auditor-General.
The flavour of private members’ legislation is best given by examples. In 1984-85 and 1985-86, acts were passed relating to Agricultural Training Board; Betting, Gaming and Lotteries; Charities; Controlled Drugs (Penalties); Dangerous Vessels; Hospitals Complaint Procedure; Prohibition of Female Circumcision; Wildlife and Countryside (Service of Notices); Corneal tissues; Drainage Rates (Disabled Persons); Forestry; Incest and Related Offences; Marriage (Wales); Protection of Children (Tobacco); and Protection of Military Remains.
Controversial bills, on abortion for instance, have very little chance of passing. Delaying tactics by passionate opponents will usually succeed, for the chair will not normally accept ‘gag’ motions on private members’ bills. A source of successful bills-about 20 per cent of the total-is the House of Lords, but a private member’s bill passed by the Lords will meet a dead end unless it is taken up by an MP.
Many bills are introduced, particularly by the opposition, not with any expectation of them being passed, but in order to gain publicity for particular causes, and the tactic can be very successful.
Not more than one or two private members’ bills become law each year, but at least some of the bills are brought to a vote. There is a ballot of the many contending bills and motions which are put forward, and twenty are drawn by the Deputy Speaker at the beginning of each session. A committee considers the twenty, and selects six bills and motions which will be brought to a vote, after up to three hours’ debate. Private members’ bills cannot involve expenditure, and ‘should be legally and constitutionally acceptable, differ from specific matters already declared by the government to be on its legislative agenda, avoid being couched in partisan terms and avoid dealing with any matter which the House could address in some other way.’ A successful private member’s bill banned smoking on Parliament Hill.
It is possible for individual MPs to introduce bills, but only seven such private members’ bills have been enacted in the century since the first meeting of the new federal Parliament in May 1901. Ten private members’ bills passed the House of Representatives, but three of them failed to pass the Senate. Of the seven successful bills, three have been passed since 1970. The first of these was to formalise the general agreement that the new Parliament House should be built on Capital Hill, and the third dealt with a curfew for Adelaide Airport. The second was much more controversial. The Northern Territory legislature passed an act which came into effect in 1996 to permit a doctor to end the life of a terminally ill patient at the patient’s request. A government backbencher in the federal Parliament moved a private member’s bill which would remove the powers of the legislatures of the three territories (Northern Territory, Australian Capital Territory and Norfolk Island) to make laws which would permit euthanasia.
Although the federal Parliament clearly had the power to override territory laws, there was considerable disquiet about the power being exercised. All three territories protested, and the Senate Scrutiny of Bills committee concluded that the bill ‘may be considered to trespass unduly on personal rights and liberties’ because it would override a decision of the democratically elected government of the Northern Territory. This was the attitude taken by Prime Minister Howard when the issue of mandatory sentencing of repeat offenders came up some years later, but on the voluntary euthanasia issue he supported overriding the Northern Territory legislature.
The Senate Legal and Constitutional Legislation Committee also examined the bill and discussed the issues in its report, but made no recommendations because it was ‘a private member’s bill and is subject to a “conscience vote”.’ The committee received more than 12 000 submissions, an unprecedented level of community interest in a bill.
There was a ‘free’ vote (that is, a non-party vote) on the issue, but although this was supposed to be based on the consciences of the individual members, they could not ignore the powerful and well organised religious organisations passionately opposed to euthanasia. Although public opinion surveys indicated that 75 per cent of the public supported voluntary euthanasia for a dying person, the supporters were not nearly as well organised politically as were the opponents. In the event the bill passed both houses and became law in 1997. Three people had ended their lives under the Northern Territory act before it was overruled.
No opposition bill originating in the House has become law in modern times. Governments do not take kindly to bills moved by opposition MPs, feeling that they are usurping the role of government or at the least giving the opposition undesirable prestige. About one and a half hours are allocated each sitting week to private members’ business, and bills must compete with motions for the available time. In practice, the opposition concentrates on motions critical of the government and on bills and motions which it is thought will cause the most political impact, without any expectation of being able to pass a bill.
The Australian states
Except in Tasmania, where the Greens managed to pass four private members’ bills when they held the balance of power under minority Labor or Liberal governments, successful private members’ bills are rare in the Australian states. In Queensland, although standing orders allowed for them, there were none even introduced from the 1920s until 1992. Then there was a dramatic change, with 39 bills being introduced in the next eight years. What was even more dramatic was that two of them actually passed.
Every second Wednesday while the House is sitting there is a Members’ Day, when up to three non-government bills can be introduced. They may be voted down at this stage, if the government does not like the bill and can muster the numbers.
Otherwise, they are sent to the relevant select committee for public input. If there is substantial support for the bill, the government may introduce its own bill on the issue, and the private member’s bill then lapses. With minority governments, which have been common since MMP was introduced, it is not uncommon for bills to be reported back to the House with a recommendation that they proceed. The government cannot block such bills, for standing orders impose a deadline for the committee to report back, and the government cannot vary the order of their consideration by the House. Of course the bills cannot be passed if they involve expenditure which is not agreed by the government, and a minority government may be able to muster support to defeat other bills which it dislikes. From the end of the Second World War until 1990 only nine private members’ bills became law, and all but one of the successful MPs was in the government party. Since then there has been a slight improvement, with four being passed during the 1996-99 minority government. Typical subjects for the bills have been fireworks, abolition of the death penalty, adult adoption and homosexual law reform.
In the UK private bills deal with local matters, and are promoted by bodies such as a local authority, a nationalised industry, or a private company or charity. If the bills are not controversial they may be given a second reading without debate. Controversy may arise from local factions. The acquisition of land may be opposed, for example. Debate may also arise from political opportunism, if the promoting body is someone like British Rail, and MPs see an opportunity to air their views on its performance.
After the second reading, a private bill is referred to a small private bill committee, comprising four members if the bill is opposed, either by MPs or by a petition. If the bill is unopposed, the committee strength is seven. The committee on an opposed bill hears counsel representing the promoters of the bill and the petitioners against it, and both may call witnesses who may be cross-examined. The committee, like a court, hears only the evidence presented to it, and it has the power to recommend rejection of the bill or amendments to it. The subsequent progress of the bill is the same as for a public bill.
In Canada there are few private bills, and the necessary investigations are effectively left to the Senate, where most of them are introduced.
Private bills are almost unknown in the Australian Federal Parliament. Such a bill would have to be based on a petition, and would have to have special relationship to the interests of the petitioners. If such a bill were ever introduced, it would be handled in the same way as a public bill.
In New Zealand private bills fill in the gaps in the general law, or alter the effect of public acts, for the benefit of individuals. There are particular requirements for local consultation before these bills can by introduced into Parliament, but essentially they are handled in the same way as public bills, though they do not have the same certainty of passage as public bills introduced by the government.
Hybrid bills in the UK are public bills which may affect particular private interests. The committee stage is usually handled by a select committee, which examines the bill in the same way as the private-bill committee, and then reports to the whole House. Typical hybrid bills were the Channel Tunnel Bill and the British Museum Bill. Such bills are not common, with the four introduced in the 1986-87 session being regarded as most unusual.
In New Zealand local bills are used to deal with the multiplicity of boards and similar bodies which run local government business in New Zealand. Such bills must affect a particular locality only. During the 1990s, 54 such bills were passed.
In 1988, a demand from the Australian Senate that all government departments should give details of any legislation which had not yet come into operation received the answer that some sections of various acts had not been proclaimed because they ‘provoked considered and continued ministerial and bureaucratic opposition on enactment’ and were ‘therefore not proclaimed’. So much for the powers of the legislature to legislate! At the same time the Senate discovered that parts of acts had been left, unproclaimed, on the statute books for more than 50 years.
Decisive action was taken. The government, under Senate pressure, agreed that in future acts which were to commence on proclamation by the government should include a specific date, or a period after the royal assent, when the act would commence automatically-if not already proclaimed. If it were undesirable to specify a date because, for instance, there had to be similar legislation enacted by the state parliaments, the reasons were to be set out in the explanatory memorandum. The Senate also passed an order requiring that all departments and authorities advise the Senate, twice yearly, of all unproclaimed legislation, the reasons for the failure to proclaim it, and a timetable for its future proclamation.
This is a very effective arrangement. It is worth noting, though, that it was enforced by the Senate not the House of Representatives. The House of Representatives, which is of course controlled by the government, would have been most unlikely to have initiated such action to control that government.
There is a similar problem in the UK where, as a typical example, the Easter Act of 1928 has still not been proclaimed. No effective action has been taken.
Legislation by press release is largely confined to Australia among the national parliaments, because of the relatively low number of sitting days there. An example of legislation by press release was the announcement by the Australian Treasurer, in February 1990, of an intention to increase the tax on luxury motor vehicles. The Treasurer added, in another press release, that ‘the government would expect motor vehicle dealers to make provision for the additional liability pending passage of legislation in the forthcoming session of parliament.’ The dealers complied, though in fact the Treasurer was telling them to break the law as it stood, comforting them by saying they would not be pursued by the Taxation Office. More blatant contempt for Parliament and interference with a theoretically independent Taxation Office would be difficult to imagine.
The Australian Senate has taken effective action to control abuses of legislation by press release, but has not been able to prevent its use. This is partly because the Australian Speaker does not have effective power to discipline ministers who make policy statements outside the Parliament, but largely because ministers can argue that, with the Parliament not sitting for three-quarters of the year, the announcement of the policy (usually concerned with taxation) could not wait for the Parliament to come back.
The Australian House of Representatives sits for an average of only about 61 days a year, whereas the UK House of Commons sits for about 170 days, the Canadian for 135 days, and the New Zealand House of Representatives for 95 days. The short sittings in Australia make it almost impossible to give proper consideration to government bills or to provide reasonable time for consideration of private members’ bills.
The pressure for the very short sittings in Australia seems to come from two complementary directions: from the backbenchers and from the ministers. Backbenchers want to be in their electorates so they can hold their seats, for their activities in Canberra do not seem to most of them to help much in this regard. Certainly any suggestion that they should spend twice as many days in Canberra each year would be greeted with dismay.
An English MP has recorded that, when he was first chosen as the Conservative candidate for a constituency he had never before visited in his life:
I asked whether I would be expected to live in the constituency. ‘Here in Preston? Good God, no!’ came the reply. ‘It’s a very marginal seat. You’re a young man. [He was twenty-four.] You’re bound to sow some wild oats, and it would never do to sow them in the constituency’. I then asked how often I would be expected to come to the constituency. [The Chairman] answered that regularity was the important thing. He wanted me to come once a month. If I came less there would be criticism. It was a very sensible approach.
Such behaviour would almost certainly be fatal for an Australian federal backbencher. The executioners would not be the voters, who probably would not notice, but the local party members who either choose the candidates or have a substantial influence on who is selected.
The ministry’s approach is equally negative in Australia. At least while Parliament is not sitting it is more difficult for the opposition to gain publicity, which is very satisfactory for ministers. While Parliament is sitting all ministers must be available and briefed for the daily question time, though the question time rostering system introduced in 1994 reduced this pressure. However, it was only a trial, and it was not continued when the Coalition came to power in 1996. Even when there is nothing which concerns them happening in the House, ministers must be within four minutes travel of their seats in the chamber, to answer quorum calls or to vote in snap divisions. The 1989 change in the quorum of the House of Representatives from one-third to one-fifth enabled many ministers to be exempted by the whips from answering quorum calls, but they still have to be available for divisions, which may be called at any time without warning. It is understandable that a minister responsible for a complex department or involved in important Cabinet discussions would find his duties in the legislature a tiresome distraction, and would hold the view that the less the House sits the better, provided he can guillotine his legislation through. Of course if publicity for one of his bills through extensive debate would help the government (or the minister) politically, such a debate can usually be arranged, for the government controls the program of the House.
It will be a struggle to change such attitudes, and to make arrangements to eliminate unnecessary attendance by ministers in the House, but until they are changed the House of Representatives will continue to be a very defective legislature.
Mention has already been made of the use of the ‘guillotine’ as a means of limiting debate on bills which the government considers to be unduly protracted. The government has other weapons. Under the standing orders of the Australian House of Representatives, if someone moves the gag-the motion that the question being debated be now put to a vote, which can be moved at any time, even in the middle of an MP’s speech-the chair must put the question at once. This gag motion is used successfully about 30 times a year. In most other parliaments, the chair has the right not to put the gag motion if, in the opinion of the chair, useful debate is still going on. In Canada the gag cannot be moved while another member is speaking, and the motion may be debated. MPs who have spoken on the main question may speak again on the gag motion, so that it is not a very effective method of limiting debate. In the New Zealand Parliament the chair will not accept a gag motion if it would be ‘an infringement of the rights of the minority’, and another MP’s speech cannot be interrupted by such a motion. In the Australian House of Representatives the gag is used about 50 times a year, averaging nearly once every sitting day.
An alternative to the gag is a motion that the MP speaking be no longer heard. It is used in the Australian House of Representatives about 30 times a year, which is once every second sitting day. This is a useful way for a ruthless government to cut short the speeches of opposition MPs without ending the debate, when that would frustrate government party members wishing to speak.
In most of the parliaments debate tends to be a succession of prepared speeches, unrelated to one another, and not creating a serious intellectual argument. In the UK House of Commons there is a procedure by which an MP wishing to make an ‘intervention’ while another MP is speaking in a debate may stand, and the MP speaking may, if he wishes, yield to the other for a brief statement or question. This is a useful way of enlivening debate and clarifying obscure arguments, though it is of course sometimes abused. Unlike the other national parliaments, the UK House of Commons does not have time limits on speeches. There was a brief experiment in 1979-80 with ten minute limits on speeches between 7 pm and 9 pm on the second readings of bills, but it was not popular and the idea lapsed. However, the Speaker can make it clear when he thinks a speech is going on too long, and it is wise for a backbencher to take heed, otherwise it may be very difficult for that MP to get the call in a future debate.
‘Interventions’ would not be workable in houses where an MP has a limited speaking time, for MPs almost invariably feel the allotted time is too brief, and would resolutely resist all interventions.
In the Canadian House of Commons an MP used to be allowed to speak for 30 minutes on most questions. In 1982 this was changed to twenty minutes, but a further period of ten minutes was provided for ‘question and comment’ on what had just been said, with the original speaker being given a right of response to each. When giving MPs the call, the Speaker gives preference to members of parties other than that of the original speaker, but not to the exclusion of members of his or her party. Since there is no precise time set down for the length of each question or comment, the Speaker will sometimes establish how many members are interested in participating and then apportion the time for each intervention accordingly. Occasionally the Speaker will interrupt a member who is not being relevant, but this has not been a major problem. The great feature has been that members have actually begun debating questions, rather than delivering a series of prepared speeches.
There is a growing move in many places, particularly the United States, for the voters as a whole to be able to initiate or veto legislation, rather than leaving the task to their representatives. These citizens initiated referendums fall into three categories. The first involves submitting to a referendum, at the demand of a certain percentage of the electorate, a law already passed by the legislature, so that the electorate has an opportunity to veto that law. The second category involves putting a proposed law to a referendum, at the request of a prescribed percentage of the electorate. If the referendum is carried the law is enacted, without any requirement for the approval of the legislature or the government. The third type of citizens initiated referendum does not involve law-making. At the request of a prescribed percentage of the electorate, a proposed law can be put to a referendum to obtain community views on its desirability. The law is not enacted by the referendum, but a heavy vote in favour would put great pressure on a government to move a similar law in the legislature.
There are real problems with giving law-making power to the voters. All the legislative checks and balances which have been built up over the years would be demolished. Drastic and deceptively simple solutions would be adopted to complex problems. Perhaps the most serious effect would be to remove any protection of the reasonable rights of minorities. Parliaments do try to perform this role. They are not always effective, but they do try. Pressure groups would also constantly be trying to bring their issues before the public. There would be frequent referendums on the death penalty, abortion law reform and on other issues which are socially destructive and divisive.
In California, where referendums are binding on the legislature, the courts have the power to negate their results if they attack fundamental rights or essential government powers. In 1989 a huge majority passed a referendum to halve the cost of car insurance premiums. Of course, the first court dismissed this patently stupid idea.
New Zealand introduced the citizen initiated non-binding referendum process in 1993. New Zealand has had plenty of experience with advisory referendums initiated by the government, principally to shed the responsibility for difficult decisions on socially divisive issues. Since 1894 there have been 42 such referendums, 31 of them on the subject of liquor licensing. With the citizen initiated referendums, a proposal for a referendum is submitted to the Clerk of the House of Representatives, together with a five hundred dollar fee. The Clerk determines the final wording of the referendum question, and the proposer must then collect the signatures of at least 10 per cent of registered electors and present their petition to the Clerk. The Governor-General determines a date for the referendum, which must be within twelve months of the presentation of the petition, unless 75 per cent of the members of the House of Representatives vote to defer it, which they may do for up to two years. The House of Representatives may also change the date of the referendum so that it coincides with a general election.
So far there have been three such referendums, and two have passed. In 1995 there was a referendum on whether the number of professional fire fighters should be reduced. This was heavily defeated. Two more were put at the time of the 1999 election. One of these asked whether ‘there should be a reform of [the] justice system placing greater emphasis on the needs of victims, providing restitution and compensation for them and imposing minimum sentences for all serious violent offences.’ This was carried by more than 90 per cent of the votes. The second referendum proposed to reduce the number of MPs from 120 to 99. There was widespread support for this proposal too, more than 200 000 New Zealanders being prepared to sign the petition. The referendum was carried by over 80 per cent of the votes. There was no effective campaign against it. Unlike Australia, there is no public funding for the two sides in such referendums, and the case for the larger number of MPs-principally their availability for select committees-was simply not put effectively. In any case, no action has been taken by the government to implement the successful proposals, although after the 1999 election a select committee was set up to review the working of the MMP electoral system, and this committee might look at the number of MPs.
As a retiring Speaker said recently in the UK House of Commons, ‘it is in parliament in the first instance that ministers must explain and justify their policies.’ But it is only in the UK that any serious action has been taken to control ministers in this regard. In the other parliaments, ministers all too often make their policy statements outside the parliament, usually on television or at public meetings, so as to gain maximum publicity without the opposition having the chance of an immediate response. One defence offered for such behaviour is that it was necessary to announce the policy immediately, and parliament was not sitting at the time. This excuse does not bear examination, for many of the policy statements are made during a parliamentary session. And if it is argued that parliament was not sitting, the answer is that most of the parliaments should sit for a great deal longer, which is necessary for other reasons.
Ministers in the UK House of Commons do make a considerable number of policy statements to the House, immediately after the one hour question period. These statements can be questioned by the shadow minister and by other MPs, which proceedings possibly lasting as much as an hour.
This is not to say that the UK system is perfect. The Speaker has no formal power to insist that ministers should make policy announcements to the House, but successive Speakers have spoken strongly in private to erring ministers, and have clearly indicated dissatisfaction if the matter was raised in the House on a point of order. A Speaker has said that she had made her views known, both publicly and behind the scenes, to both the governments which were in office during her time as Speaker. A Speaker can also embarrass an erring minister by permitting a private notice question (especially from a shadow minister) on why the policy statement was not made to the House, which might force the minister to come to the House to answer the question, causing awkward publicity for him.
Despite these controls, the tendency of UK ministers to make policy statements outside the House of Commons has grown sharply in the 1990s. A former minister in the Thatcher Government, Sir Norman Fowler, has written that when he:
first joined the Commons in the 1970s it was ‘a shooting offence’ for ministers not to tell the House first. In the 1980s that tradition broadly continued as [he could] testify as a member of Margaret Thatcher’s cabinet. The rot set in during the 1990s and the result is today that parliament is a very different place. Announcements are regularly made outside the Commons-all too often as spoon-fed exclusives.
Of course not all the policy announcements are important enough to justify a statement at prime time in the House. Some deal with minor issues, which could be dealt with by a written answer to a (planted) written question.
Nevertheless the contempt of parliament shown by many ministers in the other legislatures justifies some action, and the UK model is worth looking at, though whether many of the Speakers would have the will to take action is doubtful. Perhaps formal restrictions should be placed on ministers making policy statements outside the parliament while the parliament is in session.
Let us consider the performances of the lower houses against the standards of an ideal legislature.
None of the lower houses has insisted that all new programs of expenditure or taxation should be debated and agreed by the lower house before being incorporated in the budget. None of the lower houses scrutinises proposed government expenditure effectively. The efficiency aspect is particularly neglected.
Few government bills are subjected to searching scrutiny. Except in the UK, the outlines of public bills produced by the government are usually considered by government party caucuses before being introduced into the parliament. Significant amendments may be made by the caucus, and bills even rejected, but once the caucus has passed a bill party discipline is used to resist any opposition amendments, with very rare exceptions when the minister finds one attractive. In the UK Parliament, where public bills are not considered by the party caucus before introduction into the House, the caucus discussions are effectively held in public in the House of Commons. Some amendments are then made because of pressure from government party MPs, and the results are much the same as in the other parliaments. Cross-voting is thus extremely rare, and many bills are passed which would have been rejected if MPs had been free to vote as they really believed, rather than being constrained to follow a decision of a majority of their party, or their party leaders. What is being lost is one of J.S. Mill’s ‘indispensable requirements ... a readiness to compromise; a willingness to concede something to opponents and to shape good measures so as to be as little offensive as possible to persons of opposite views.’
None of the lower houses has set up a specialist committee to examine all bills to check that there are no legally objectionable features, such as making some obligations or penalties retrospective, or giving unreviewable powers over ordinary citizens to bureaucrats, or inappropriately delegating the power to make laws. Such objectionable provisions are quite common in the laws proposed in all the parliaments.
‘Legislation by press release’ is largely confined to the Australian Federal Parliament as far as the national parliaments are concerned. This is because the Australian Parliament sits for such a small number of days each year, and as a consequence it may become necessary to announce and enforce action on a taxation matter while Parliament is not sitting. The Senate has taken effective action to prevent abuses of the use of this power. It is most unlikely that the House of Representatives would ever have taken action on this matter.
The parliaments should not put up with unreasonable delays by the government in proclaiming acts duly passed by the parliament. Here too the Australian Senate has taken effective action to prevent abuses by the government.
What can the Australian House of Representatives learn from the other national lower houses in order to improve its performance as a legislature?
The first and most important lesson is that it must be prepared to sit longer, probably at least twice as many days as it does now. It must also recognise that, if it sits longer, ministers will require release from excessive attendance in the House so that they can get on with their administrative tasks. Rostering of ministers at question time is an obvious step which should be re-examined, and the exemption of ministers from quorum calls and ‘pairing’ of ministers with opposition members for unimportant divisions should be extended.
Fortunately the Senate has taken the necessary steps to control abuses of ‘legislation by press release’ and the failure to proclaim legislation passed by the Parliament, but the House of Representatives must copy the UK House of Commons by giving the Speaker the power, and encouragement to use the power, to ensure that ministers do not make policy announcements outside the House while it is sitting.
The Senate has also taken the important step of setting up a Scrutiny of Bills committee with independent legal advice, to ensure that there are no legal defects in proposed legislation. The Scrutiny of Bills committee examines bills when they are first presented to the Parliament, so their report is nearly always available before the House considers a bill, and there is therefore no need for the House to duplicate the committee.
In the Canadian and New Zealand lower houses, virtually all government bills are referred to committees for public examination. In both of these houses the pressure of this work has meant that little committee time is available for other investigations. Neither Canada nor New Zealand has an elected upper house to assist with such inquiries. In Australia the Senate is available to perform this role, though there are some defects in its performance, as will be discussed in Chapter 8. There is little to be said for committees of both houses carrying out public inquiries into controversial bills, and it would seem best to leave such inquiries to the Senate, where no government is ever likely to have a majority, and the inquiries should be searching.
Only about 10 per cent of government bills are controversial, and the remaining bills usually slip through the House of Representatives with no proper examination of their details. There is much to be said for public input being invited on these bills, for experts in the community might well point out problems which had been overlooked. The Senate Scrutiny of Bills Committee also raises issues which require investigation on many bills. Non-controversial bills could well be handled by committees of the House of Representatives. As the bills would not have been opposed in the House, committee members would almost certainly approach any problems raised in a non-partisan way.
There is something to be said for the ‘pre-study’ of bills, as used in Canada and New Zealand, though it is important that any public comments should be available, not only to the government, but to the committee considering the bill. Australia should also consider carefully the arrangements for private members’ bills in the UK, a system which would become possible if the Australian House of Representatives greatly increased its number of sitting days.
The House of Representatives should copy the procedure of the Canadian House of Commons and permit expert non-MPs to serve on the committees considering bills. These experts are able to question witnesses, take part in committee debates and the drafting of reports, but not to vote. It should also consider providing committees with associate members, to fill any temporary committee vacancies and serve on any sub-committees if they are needed. The Canadian procedure by which committees may be used to draft some government bills should be watched, but should not be adopted unless its success becomes more evident.
The debating procedure in the Canadian House of Commons, whereby the last ten minutes of a MP’s 30 minute speech are available for ‘question and comment’ on what has just been said, has resulted in serious debate rather than a dreary succession of prepared speeches, unrelated to one another. The problem for the Australian House of Representatives is that such a procedure requires strict control by the Speaker, which might not be available in the Australian House.
A powerful and effective Speaker would also be needed to control two other abuses of power by the government-the use of the guillotine and the gag. The Canadian House of Commons has the best procedure for controlling abuse of the guillotine, for its standing orders provide that if agreement cannot be reached between the parties on the time allocations for the handling of each bill, the government may move the guillotine, but not less than one sitting day must be provided for each stage of the bill. This would make the use of the guillotine very unattractive to an Australian government!
Steps should also be taken to restrict the use of ‘gag’ motions-the motion that the question being debated be put to an immediate vote, which in the Australian House of Representatives can be moved in the middle of an MP’s speech. This is not permitted in most other parliaments, and in those parliaments the Speaker also has the right not to put the motion if, in the opinion of the Speaker, useful debate is still going on.
Even if all these improvements were made it does not seem likely that they would make the Australian House of Representatives into a really effective legislature, though it would be a great deal better than it is now. The problem is the tightness of party discipline, which would too often prevent questions being considered on their merits. It does not seem possible that the Australian lower house will adopt the looser party discipline of the UK House of Commons. It seems that the smaller the parliament the tighter the party discipline. Besides, looser party discipline would be likely to damage the continuing electoral college role of the House of Representatives, by causing very undesirable instability in government.
The problem seems insoluble. Perhaps a single chamber simply cannot be a decisive electoral college and an effective legislature.
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