PARLIAMENTARY IMPACT IN THE LEGISLATIVE PROCESS Paper presented to 2016 Political Studies Association Annual Conference
Steven MacGregor University of Stirling
[email protected]
Work in progress – not to be quoted without the author’s permission
Introduction This is an exploratory paper which sets out a strand of wider PhD research about how parliaments “make” the law or, more specifically, what happens to the legislation put before them by the executive. The intention is to address questions such as, whether parliaments change the legislation they scrutinise. If they change it, in what ways. The paper argues that in addressing these questions there is scope to move beyond the now common conclusion that “parliaments have an impact and it’s more than we think”, and deal more directly with the policy and technical impact of amendments. The paper sets out original research which shows, through analysis of the Gaelic Language Bill’s passage through the Scottish Parliament, how detailed analysis of changes to the structure and policy content of Bills can be conducted on a case-study basis. It shows how amendments can be grouped into different categories, enabling a picture of common or uncommon forms of parliamentary impact to be identified if repeated across a range of Bills. Although the paper is focused on the Scottish Parliament and is limited to a single case-study at this point it has relevance to the ongoing debate about how best to identify and quantify parliamentary impact in the legislative process. Literature review A wide range of studies into parliamentary impact have been conducted. A large part of this literature is high level, typically counting simple Bill or amendment success rates. Some examples of this are Di Palma’s (1977) analysis of Italian post-war analysis of aggregate rates of approval of Bills; Kerrouche’s (2006) count of Private Members’ Bill and amendment success rates in the French Assemblee Nationale; Damgaard and Jensen’s (2006) amendment count of the Danish Parliament; Newell’s (2006) Bill success count of the Italian Parliament; Pettai and Madise’s (2006) Bill success count of post-communist Estonia, Latvia and Lithuania; and Maurer’s (1999) Bill success count of democratic Spain. While all of scholarly merit in their own right, these quantitative approaches offer limited insight to the significance or policy nature of parliamentary impact. At the opposite end of the spectrum are studies, such as that conducted by the Hansard Society (2008), which analyse Bills on a case-study basis. This qualitative work provides a richer perspective on the passage of legislation and the actors involved in that process, offering a window into the policy issues which individual Bills deal with. The principal drawback is that the descriptions of parliamentary impact tend to be very case-specific and don’t easily allow for comparative analysis. Important developments have been made in seeking to address the middle-ground between these quantitative and qualitative approaches. This starts with Griffith’s seminal work of 1974 on the UK Parliament (updated recently by Louise Thompson 2013, 2015]). Griffith sought to ‘try to estimate the impact which Parliamentary scrutiny has on Government bills’ and his methodology and methodological findings effectively provide a baseline against which to consider subsequent research:
His approach focused principally on the relative success of government and non-government amendments He described the policy impact of a number of amendments in his sample in considerable detail He identified that some amendments were more significant than others
He identified that many non-government amendments were inspired by the parliament, and that these should be included as evidence of parliamentary influence
Griffith’s conclusion is essentially that simple counts of amendment and Bill successes are misleading and underestimate parliamentary impact in the legislative process. He showed that by analysing more closely the original inspiration for government amendments we can find more evidence of parliamentary impact, and he argued that there was evidence that this combined (direct and indirect) parliamentary impact was not insignificant. Griffith’s research had its limitations, particularly in its lack of quantification of parliamentary impact. Through Kreppel (1999), Tsebelis and Kalandrakis (1999), Tsebelis et al (2001), Kreppel (2002) etc., progress was made on this issue in a stream of European Parliament-focused research. This research introduced coding scales to help measure (a) the extent of the success/adoption of amendments and (b) the relative significance of those amendments. In terms of (a), scales were developed which recognised that some amendments were accepted verbatim, some rejected entirely, and others residing somewhere between the two ends of that spectrum. In terms of (b), the principal development was to enable the categorisation of some amendments as very minor (making not much more than terminological changes to the text of a Bill) and others as very significant (making substantial policy changes or policy additions to a Bill). Coding for significance and adoption rates in this way created a reasonably standardised approach to amendment significance analysis capable of being replicated across different parliaments. Shephard and Cairney (2005) and Cairney (2006) carried out detailed research on amendment outcomes in the first session of the Scottish Parliament from 1999 to 2003. They built upon the coding approaches used for analysing the European Parliament and applied them to the Scottish Parliament, modifying the significance scale to bring out key differences in amendment impact (typographical; clarification; and substantive amendments). Like Griffith, their analysis showed that government amendments were often brought forward in response to parliamentary pressure or prompting and that this needed to be taken into account in understanding the overall impact of parliaments in the legislative process. Again, the conclusion was that this combined (direct and indirect) parliamentary impact was not insignificant. Russell has further evolved amendment analysis in a range of research articles, such as Russell and Johns’ (2007) concept of amendment “policy strands”, which help trace the origin of ideas through to final amendment form and ultimate success or failure; Russell and Sciara (2008) explored measuring significance by considering it within the context of the Bill being amended, and with specific reference to whether the issues it addressed had been mentioned by the Government at Second Reading; Russell in 2010 looked at the extent to which the Government seeks to overturn defeats in the Lords (it often doesn’t) and the significance of those defeats (some of which were on substantive policy issues). One of Russell’s recent articles (2015 et al) brings together many of the earlier techniques she employed and uses them on a large sample of over 4000 amendments from 12 case-study Bills traced through the Commons and Lords. Russell’s broad conclusion, with a particular focus on the impact of the Lords, is that parliamentary impact on government legislation is underestimated and that its combined (direct and indirect) impact is not insignificant. This brief literature review demonstrates that a number of different approaches to the study of parliamentary impact in the legislative process have been deployed. These can
be summarised as set out in the table below, drawing out the key features of each approach and the pros and cons of each. Type Bill success counts
Form Quantitative
Pros Quick; easy, readily replicable
Amendment success counts
Quantitative
Identification of original inspiration of significance testing of amendments
Quantitative, usually with some qualitative analysis
Bill case-studies
Qualitative, with potential quantitative applicability
Quick; relatively easy; replicable; provides more information than simple Bill success counts Helps understand original inspiration for amendments. Provides for scaling significance. Remains replicable across parliaments. Helps differentiate parliamentary impact on individual Bills; helps describe policy issues dealt with by Bill and impact of those amendments
Cons Doesn’t provide an understanding of impact during passage of Bills Doesn’t provide for understanding initial inspiration, or significance. Time-consuming; requires value judgements; issue of “significance” remains relatively abstract Time-consuming; casestudy means general conclusions are difficult; not easily replicable across a wide range of Bills or different parliaments.
Although the work of Kreppel, Shephard and Cairney, Russell etc. has helped in developing more sophisticated and statistically robust approaches to the analysis of amendment impact, it is arguable that these approaches are in one sense providing more elaborate ways to say what Griffith said in 1974 – that governments tend to dominate the legislative process; governments tend to sponsor most amendments; legislatures are unable to progress many of their own amendments; but legislatures are often successful in persuading the government to make amendments on their behalf; and sometimes those amendments deal with significant matters. The question about what does that parliamentary influence actually mean in practical policy terms does not tend to feature in the literature in any significant way (although Russell et al (2007) have touched upon this in some of their recent research. There is arguably therefore a gap, and the intention of the PhD from which this paper is drawn is to explore this issue and see what developments can be made. The starting hypothesis is that the technicalities and specialisation involved in the drafting of legislation potentially provide an opportunity of themselves to develop an understanding of the practical impact of parliamentary amendments. Legislation must be drafted in a way that is intelligible to at least the courts, and ideally a much wider range of users. That requires a basic level of clarity about its intended legal effect. It is drafted, usually, according to specific stylistic tendencies by drafters who have accumulated years of experience. The issues dealt with in legislation are seldom unique – vastly different policy issues may still require a common legal framework to be hung around them. If the drafting approach follows generic patterns then there is obvious potential for amendments which are lodged during the parliamentary process to exhibit similar generic tendencies. For example, if a range of Bills have provisions on offences and penalties, consultations or parliamentary processes, it is likely that the drafting of the provisions establishing each of them will have some commonality. Therefore, might parliamentarians who come up against recurring types of drafting develop recurring ways of reacting to those provisions? Are amendments typically of a type, dealing with common issues even if they are spread across a variety of policy topics? Or, is it the case
that all amendments are genuinely unique, understandable only within the particular context of their parent Bills? Applying policy impact analysis to the Scottish Parliament The intention in the PhD from which this paper is drawn is to conduct a series of casestudies of individual Bills scrutinised by the Scottish Parliament to identify what impact the parliament has had on them individually, and then to collate that information to identify any thematic types of impact which the parliament has had. The intention is deliberately not to make the main form of analysis a numerical scale of significance of the types used by Kerppel, Shephard and Cairney, Russell etc. Although this form of analysis will be carried out as part of the wider PhD in order to enable comparative analysis with their results, the intention is instead deliberately to delve into significantly more detail than is usual about the structure and policy make-up of Bills and how these change during the passage of a Bill. While the principal interest is in the nature of parliamentary impact the opportunity will also be taken to consider the nature of the amendments which the government makes to its own Bills. The case-study in this paper provides a comprehensive analysis of what happened to the Gaelic Language (Scotland) Bill during its passage through the Scottish Parliament. The Gaelic Language (Scotland) Bill (GLB) dealt with a relatively minor policy area – the development of Gaelic, a minority language of Scotland spoken by about 1% of the population. It was also a relatively small Bill of thirteen sections and two schedules which lends itself to use as an exploratory case-study. It was processed through the parliament in 2004/2005 at a time when a Labour/Liberal Democrat coalition commanded a majority of votes in the legislature, and became law in 2006. Its parliamentary passage was characterised by cross-party support for the principles of the Bill. Description of the policy themes of the Bill (as introduced) The Bill, at introduction, was structured into six different themes, described in Table 1 below. In summary, the Bill created a public body to promote Gaelic, required the creation of a National Pan for Gaelic, enabled the development of individual Gaelic Language Plans by public body and provided for guidance on the provision of Gaelic education to be produced. Although the policy issues dealt with by the Bill were relatively niche, the mechanics of how it would operate (setting up and empowering a public body to lead implementation of government policy) were not novel and are replicated across a variety of different statutes. Table 1 Theme
Description
Bord na Gaidhlig
The central provision of the Bill, establishing a public body to promote and facilitate Gaelic development and specifying its broad functions This section placed a duty on the Bord to develop a National Plan for Gaelic to provide strategic direction to Gaelic development These sections provided a power to the Bord to require any Scottish public authority to develop a Gaelic Language Plan, setting out how they would promote Gaelic development, and specifying the approval and update mechanisms of those plans; it also enabled the Bord to develop statutory guidance which public authorities would have to have regard to when developing their Gaelic Language Plans This section enabled the Bord to issue statutory guidance on the development of Gaelic education.
National Plan for Gaelic Gaelic Language Plans
Gaelic education
General
These sections set out the interpretation and commencement provisions of the Bill for the other sections of the Bill Schedule 1 set out the detail of the Bord’s constitution, such as the minimum and maximum numbers of members of the board of the Bord. Schedule 2 amended other statute consequential to the provisions of the Bill, such as inserting the Bord into the schedule of public bodies required to comply with the Ethical Standards in Public Life etc. (Scotland) Act 2000
Schedules
Amendments to the Bill Table 2 Total amendments 85
Substantive amendments 51
Successful substantive amendments 36
Data on the parliamentary passage was extracted from the Official Report of the Scottish Parliament. Table 2 shows that a total of 85 amendments were lodged during the Parliamentary passage of the Bill. 51 of these amendments were substantive.1 Of the 51 substantive amendments, 36 were successful. Of the 36 successful substantive amendments, 22 were lodged by the government and 29 by the legislature. On the face of things then the government and legislature would appear to have amended the Bill in broadly equal measure. However, analysis of the parliamentary record shows that the legislature’s impact was significantly greater than these numbers suggest. Of the 22 amendments lodged by the government, only 9 appear to be ‘original’ government amendments (in that they do not appear to have been brought forward in response to prompting by the legislature), and 13 were amendments which appear to have been inspired by the legislature (for example, where the government responded to a request for amendment made by the legislature in the Stage 1 Report, or where an MSP withdrew an amendment at Stage 2 so that the government could bring back a revised version at Stage 3). In simple numerical terms then, the Parliamentary record shows that the legislature was responsible for lodging or inspiring 27 of the 36 substantive amendments made to the Bill during its Parliamentary passage. The next question is what was the impact of these amendments on the Bill. Scale of the changes made to the Bill This question can first be addressed by looking at structural changes to the Bill. Table 3 shows the scale of change by looking at what text was added to or removed from each part of the Bill. The table sets out the original word count of the theme, the number of words which were added or subtracted during the Bill’s passage and the total numerical change involved, the final word count of each theme and the overall percentage change.
1 For example, an amendment to the Bill added cross-border public authorities to the list of bodies which could be required to produce a Gaelic Language Plan altered a large number of references in the Bill from “Scottish public authority” to “relevant authority”. For the purposes of this analysis, only the substantive amendment which made the first change is counted as a 'substantive' amendment, with consequential amendments to revise “Scottish public authority” to “relevant authority” discounted.
Table 3 Section
Original word count
Words added
Words deleted
Word change
Final word count
% change
Long title
77
7
1
+6
83
+8%
1 – Constitution and function of Bord
213
45
1
+44
257
+21%
2 – National Gaelic Language Plan
275
66
52
+14
289
+5%
3 – Gaelic Language Plans
352
80
8
+72
424
+20%
4 – Review of, and appeal against, notices
305
54
4
+50
355
+16%
5 – Approval of plans
278
217
16
+201
479
+72%
6 – Monitoring of implementation
228
2
6
-4
22
-2%
7 – Review of Plans
168
2
2
+/-0
168
+/-0%
8 – Guidance, assistance, etc. by the Bord
242
88
2
+86
328
+36%
9 – Guidance on Gaelic education
127
49
60
-11
116
-9%
10 – Interpretation
113
59
12
+47
160
+42%
11 – Regulations and Orders
42
0
0
+/-0
42
+/-0%
12 – Consequential amendments
6
0
0
+/-0
6
+/-0%
13 – Short title and commencement
66
1
1
+/-0
66
+/-0%
Schedule 1 – Bord na Gaidhlig
1029
3
3
+/-0
1029
+/-0%
Schedule 2 – Consequential amendments
125
0
0
+/-0
125
+/-0%
Totals
3646
673
168
+505
4151
+14%
This structural analysis shows that no sections or themes of the Bill were deleted during the legislative process, and no sections or themes were added. Where a significant number of words were deleted from a section, a broadly equivalent number replaced them. The broad structure of the Bill therefore remained intact and, accordingly, it would seem unlikely that the resulting policy substance of the Bill would be significantly different from what it was when introduced to the legislature. This preliminary level of analysis, which can be done quite quickly, could be used to pinpoint Bills which have undergone substantial change during the legislative process (or to identify those which appear to have changed little). Significantly, with the exception of schedule 2, all sections and themes in the Bill were amended to some degree during its passage. At a minimum then, the detail of how the Bill operated would appear to have changed as the Bill progressed through the legislature. That the Bill grew in size – an additional 505 words were added, leading to a 14% increase in the size of the Bill while its overall structure and policy remained the same – would suggest the addition of detail or complexity to the original provisions of the Bill. There was significant variation in the scale of the changes to the sections and themes of the Bill. At one end of the spectrum, the schedules of the Bill remained essentially in their original form. In schedule 1, only three words were added and the same number
deleted to what was, in word count terms, the largest theme of the Bill. At the opposite end of the spectrum were the sections which dealt with Gaelic Language Plans. This was the second largest theme of the Bill, and here 441 words were added and 38 deleted, an overall growth in the size of the theme of 26%. The most heavily amended section of the Bill was section 5, which dealt with the process for how Gaelic Language Plans were approved. This section had 217 words added and 16 subtracted, an overall growth of 72%. Such a significant level of change would suggest either fundamental revision of the way in which the section operated, or the introduction of a significant new level of detail or complexity in the section. The policy impact of amendments How then did these structural changes translate into policy impact? Table 4 summarises how each substantive amendment changed the Bill, differentiating between direct government amendments, direct parliamentary amendments, and those government amendments which appeared to have been inspired by the parliament. These amendments set out a variety of error-correcting, procedural and process-based changes to the Bill which on the face of things seem to be quite specific to the policy of the Bill. It is also reasonably clear from this initial analysis that direct government amendments were essentially devoid of policy impact and that parliamentary impact was more significant. Table 4 Section
Amended by government
Long title
No 'original' government amendments
1
No original government amendments.
2
Corrected a drafting error relating to the 5-yearly update of the National Plan.
3
Enabled the Bord to request the development of Gaelic Language Plans by public bodies before the first National Plan for Gaelic had been produced by the Bord.
4
Corrected an incorrect crossreference created by a previous amendment.
Amended by legislature Delivered by the government Description of the status for Gaelic which the Bord was to work towards delivering was enhanced to include ‘equal respect’ to English. Similar to the amendment in the long title, the outcomes the Bord was to pursue in the outcome of its functions were broadened to include ‘equal respect’ to English.
Specified that the Parliament must be consulted in the development of the National Plan, and that the final version be laid in the Parliament. Required that the National Plan be updated every 5 years rather than when considered appropriate by Ministers. Specified that the National Plan must contain strategies for the development of the Gaelic language, culture and education. Required the Bòrd to take the potential to develop Gaelic into account when considering which public bodies to ask to develop Gaelic Language Plans, and for public bodies to do the same when developing their Gaelic Language Plans.
No amendments delivered by the government for the legislature.
Directly amended by legislature No direct legislature amendments.
Bord’s advisory functions (to provide advice when asked, or proactively) were both widened to include Gaelic education and culture as well as the Gaelic language. The Bord was given a new function to report to Ministers on implementation of the European Charter for Regional or Minority Languages Shortened the timescale within which Ministers had to act when approving the National Plan.
Required the Bord to take the National Plan for Gaelic into account when considering which public bodies to ask to develop Gaelic Language Plans, and for public bodies to do the same when developing their Gaelic Language Plans. Placed a duty on Ministers to consult the Bòrd if they made statutory regulations specifying content which Gaelic Language Plans must contain. Set time limits (where none previously applied) for Ministers to act if a public body appealed against having to
5
Corrected an incorrect crossreference created by a previous amendment. Clarified a cross-reference to another section of the Bill. Rephrased the provision in the Bill which required public bodies to implement the measures in their plan. Required public bodies (where no obligation previously existed) to publish their plans according to any guidance given by the Bord.
No amendments delivered by the government for the legislature.
6
No original government amendments. No original government amendments. Gave the Bòrd the ability, where none existed previously, to vary or revoke any guidance it produced on the development of Gaelic Language Plans. No original government amendments.
No amendments delivered by the government for the legislature. No amendments delivered by the government for the legislature. In common with the amendments made to the long-title and section 1, required the Bòrd to use the guidance to further the pursuit of ‘equal respect’ for Gaelic.
7 8
9
10
No original government amendments.
11
No original government amendments. No original government amendments. No original government amendments. Introduced the Gaelic form of ‘Chief Executive’ in place of the English form. No original government amendments.
12 13 Schedule 1 Schedule 2
Specified that in other education legislation, the development of Gaelicmedium education by a local authority must be done in accordance with its Gaelic Language Plan. Specified that the Bord must publish a draft of its education guidance, rather than just consult those with an interest. Required the guidance to be submitted to Ministers for final approval, rather than having to seek Minister’s initial approval to develop guidance. Broadened the coverage of the Bill beyond Scottish public authorities to include cross-border public authorities. No amendments delivered by the government for the legislature. No amendments delivered by the government for the legislature. No amendments delivered by the government for the legislature. No amendments delivered by the government for the legislature. No amendments delivered by the government for the legislature.
prepare a Gaelic Language Plan, or about the time it had been allotted to prepare the plan. Required the Bord, when considering whether to approve a plan, to have regard to the same criteria as the public body did when preparing the plan, and for Ministers to have regard to the same criteria if a plan was referred to them for adjudication. Enabled the Bord and public bodies to discuss the final content of a plan, rather than the matter being immediately referred to Ministers when disagreement arose. Required Ministers to act within a timescale (where none previously applied) when a plan was referred to them for adjudication. No direct legislature amendments. No direct legislature amendments. No direct legislature amendments.
No direct legislature amendments.
Broadened the coverage of the Bill to include the Food Standards Agency (in addition to Scottish public authorities and cross-border public authorities). No direct legislature amendments. No direct legislature amendments. No direct legislature amendments,. No direct legislature amendments. No direct legislature amendments.
Categorising changes to the Bill To help make sense of the impact of these amendments they can be grouped together according to their relative significance and the themes which they addressed. Doing so begins to demonstrate that the nature of the amendments has have more generic application than might at first seem to be the case. To help consider the relative significance of the amendments it is possible to draw out three different overarching types of impact:
Category A – amendments which effectively have no policy or procedural impact. Category B – amendments whose impact appeared to be predominately procedural and do not significant change the underlying policy of the Bill. Category C – amendments which appear to have a substantive policy impact.
It is also possible to identify different amendment themes. Examples of this are amendments which deal with drafting errors, or codes of practice, or guidance or timescales or consultation processes. Using this approach, Tables 5 and 6 summarise the relative significance of government and non-government amendments and the themes which they addressed. Table 5 - Direct Government amendments Category Theme A Drafting B
Terminology Code/guidance
Specific impacts Error correction x 3; Clarification of provision Change of word Extension; process x 3
C
n/a
n/a
In terms of direct government amendments, they could all be placed straightforwardly in categories A and B, in the case of the former having no substantive impact on the operation of the Bill or its underlying policy and in the latter dealing with procedural rather than policy issues. Direct government amendments were stereotypically amendments of a 'technical' tidying-up nature, correcting errors in drafting or providing clarification of provision. Typical of this was the amendment which altered the sequence which had to be followed around the production of Gaelic Language Plans and the overall National Plan for Gaelic, enabling the former to be requested before the latter was in place (which the Bill did not originally allow for). Two of the three themes – “drafting” and “terminology” – are likely to be found across most Bills if it is accepted that the principal government interest will be in tidying-up its Bill and ensuring it is fit for purpose rather than adding new policy topics. Non-Government amendments In terms of successful amendments either brought forward by or inspired by the parliament, the analysis shows that the bulk of these sat in category B with only one arguably sitting in category A. The cumulative impact of non-government amendments was procedural, introducing new layers of process or complexity into how specific parts of the Bill operated (for instance, introducing new consultation requirements) and introducing or shortening timescales by which action required to be taken. The closest to a substantive policy impact which the amendments came to was in extending the range of bodies to which the provisions of the Bill applied. Like the original government amendments it is again clear that the non-government amendments which were made did not change fundamentally any aspect of how the Bill operated. The themes under which the amendments fall – particularly “duties”, “code/guidance” and “delegated/order-making/direction powers” – are again likely to be typical of the types of amendment which will be made as they relate to core aspects of the framework on which a significant amount of statute sits.
Table 6 - Non-Government amendments or government amendments inspired by the parliament Category Theme Specific impacts A Drafting Amendment to long title B Duties Extension x 4 Code/guidance Consultation x 2; timescales x 2; content; process x 2 Bodies Extension x 2 Delegated/orderEnhanced x 2; consultation; making/direction powers timescales x 2; process x 2 C n/a n/a
Summarising how the Bill changed during its parliamentary passage Table 7 below sets out these changes in the context of how significantly they changed the themes of the Bill. The purpose of this table is to help with visualising what impact amendments to the Bill had to it in an overall sense rather than their impact individually. It helps show clearly that the Bill which was passed was effectively the “same” Bill as was introduced in the sense that all of its key components survived intact and no significant new topics were added. This was of course predicted by the earlier structural analysis. It also helps shows again that the substantive changes which were made to the Bill were drive by the parliament and that this impact was spread across the framework of the Bill. The Government’s influence, by contrast, was much more limited both in impact and in spread. Table 7 Theme Bord na Gaidhlig
Description The central provision of remained the establishment a public body to promote and facilitate Gaelic development, but with its functions expanded and the legal status of Gaelic enhanced. Overall change – marginal (refocused aspects of section) - all changes attributable to parliamentary influence
National Plan for Gaelic
This section still placed a duty on the Bord to develop a National Plan for Gaelic to provide strategic direction to Gaelic development, but specified strategic elements of its content, prescribed its regular update, created timescales to ensure its timely development and involved Parliament more in the process. Overall change – marginal (added level of detail in operation of section) - all substantive changes attributable to parliamentary influence; government amendment corrected drafting error
Gaelic Language Plans
These sections continued to provide a power to the Bord to require the development of Gaelic Language Plans. The criteria on which to develop plans was altered to reflect the enhanced legal status of Gaelic, flexibility provided to determine the final content where disagreement arose and timescales put in place to ensure timely approval. Overall change – medium (altered principles on which section based, and added detail to sections) - changes attributable to a combination of parliamentary influence and government amendments
Gaelic education
General
This section continued to enable the Bord to issue statutory guidance on the development of Gaelic education. This power was, however, constrained by requiring a draft of the guidance to be published and requiring that the final version be submitted to Ministers for approval. Overall change – medium (revised operation of section) - all changes attributable to parliamentary influence These sections continued to set out the interpretation and commencement provisions of the Bill for the other sections of the Bill. The interpretation of ‘public authority’ was amended to increase the
range of bodies which could be asked to develop Gaelic Language Plans.
Schedules
Overall change – medium (widened scope of the Bill) - all changes attributable to parliamentary influence Schedule 1 continued to set out the detail of the Bord’s constitution, such as the minimum and maximum numbers of members of the board of the Bord. Schedule 2 amended other statute consequential to the provisions of the Bill, such as inserting the Bord into the schedule of public bodies required to comply with the Ethical Standards in Public Life etc. (Scotland) Act 2000. No substantive amendments were made to how these sections operated. Overall change – nil (no substantive changes involved) - all changes attributable to government amendments The Bill was passed in the same structure as it was when introduced to the Parliament.
Overall
Overall change – marginal (detail and complexity added, but no fundamental policy revisions) - bulk of changes attributable to parliamentary influence
Scope for comparative analysis - Griffith revisited The single case-study approach probably has most value as a demonstration of method given the limited conclusions that can be drawn from the experience of one Bill. To show how this type of analysis might be applied to a wider range of Bills and amendments, and to offer some assurance that there is merit in going down the route of thematic amendment analysis, I reviewed some of the qualitative data in Griffith’s work on parliamentary impact on government legislation in the UK parliamentary session 196768; 69-70; and 70-71. The analysis uses Griffith’s own amendment descriptions to identify broad categories of parliamentary impact which were not explicitly articulated in the original research. (discounting those where the information provided was insufficient to create a meaningful summary, leaving a total of 166 amendments fully analysed). From this, it was possible to use the same broad categories of parliamentary impact (Category A – amendments which had little or no policy or procedural impact; Category B – amendments whose impact appeared to be predominately procedural; Category C – amendments which appeared to have a substantive policy impact) as used for the Gaelic Language Bill analysis and within those categories to again identify common themes of amendment. A summary of this analysis is provided below, with further detail available from the blog post at the following link https://politicsphd.wordpress.com/2015/05/17/categorising-parliamentaryamendment-impact-in-the-legislative-process-griffith-revisited/. It can be seen immediately that a large number of amendments fall within common themes, and that all of the themes identified in relation to the Gaelic Language Bill analysis are replicated in the Griffith analysis. Table 9 Category
Total
Themes
Specific impacts
A
10
Drafting
A B
7 46
B B B B
10 8 7 7
Terminology Delegated/Ordermaking/direction powers Time periods Consultation Duties Court procedure
Clarification of provisions; cross-referencing; removed word Titles; alternative word; definition Extension; dilution; time-periods; consultation; process Increase/creation Extension; time periods; process Additional Increased discretion; monetary values; appeals; reduced discretion; jury; role of clerks; removal
B
7
Bodies
B B B B B B B B B C
7 5 4 2 2 1 1 1 1 14
Parliamentary procedure Appeals Licences Press Grants Exemptions Code/guidance Accounts Cross-border issues Offences/penalties/sanctions
C C C C
8 6 4 4
Taxation Rights Compensation Benefits
C
1
Deletion of policy component
Creation; board procedure; appointments; structure Creation; dilution Dilution; extension Increased discretion; restrictions Restrictions; access Extensions; restriction Addition Addition Reduced discretion n/a Extension; dilution; fine increase; creation; legal aid Reduction Extension; dilution Process; extension Increased entitlement; increased flexibility; reduced discretion; content n/a
Category A Of the total 166 amendments, my view was that only 17 (a little over 10%) fell into category A – that is, amendments which had little or no policy or procedural impact. These were “drafting” and “terminological” amendments whose impact on the Bill was effectively neutral. An example of this was an amendment to change the name of a public body referenced in a Bill, or another example was the insertion of a missing crossreference in one-part of a Bill to another part. These amendments are typical of “tidyingup” amendments, ensuring that legislation will work correctly, or correcting drafting errors or making superficial changes to Bills which have no practical or policy effect. Category B Of the total 166 amendments, my view was that a total of 112 (almost two-thirds) fell into category B – amendments whose impact appeared to be predominately procedural, such as those which deal with delegated powers, time periods or reports. These amendments show impact in relation to the procedure of how the legislation would operate rather than substantive (or significant) policy issues. An example is the quarter of the amendments (46 out of 166) which related to delegated or order-making powers or powers of direction, relating to how Ministers, or other authorities, may exercise the powers given to them under Bills. Sometimes amendments were made to positively enable Ministers or other authorities to take action during the implementation of Bills (for example, to extend Ministers powers to compulsorily purchase land) but a large number explicitly sought to restrict the discretion Ministers had to use the powers given to them under a Bill (for example, one amendment ensured that Ministers could not defer without limitation abolition of specific forms of wildlife control). That so many Bills had delegated powers is not unusual. The drafting of legislation lends itself to the creation of powers for Ministers or others to take action in implementing a Bill. It is usually not possible to specify on the face of a Bill precisely what action will need to be taken in implementing a Bill, and there is often a desire to ensure flexibility if implementation needs to change over time. Nor is it surprising that so many amendments relate to these delegated powers. Where delegated powers are very wide, it is understandable that parliamentarians will wish to place some limits on what Ministers are able to do.
These types of amendment are evidence of parliamentary interest in, and impact upon, the process and procedure of legislation. They tend not to have a material policy impact on Bills, but their effect of requiring or limiting actions to be taken in implementing legislation cumulatively amounts to a meaningful level of parliamentary impact on how legislation actually operates, and its significance should not therefore be discounted. Category C Of the total 166 amendments, my view was that a total of 27 (about 20%) should be categorised as category C amendments – those amendments which appear to have a substantive policy impact. In these cases, the primary impact of the amendments were clearly to do with a substantive policy issue or impacted clearly on the day to day lives of ordinary people rather than the administrators charged with implementing legislation. Typical of this was amendments relating to offences and penalties, changing the nature of the criminal law and the sanctions which members of the public would face if they fell foul of the provision. An example of this was an amendment which increased the level of fine which would apply to a specific offence. The best example of a “pure” policy amendment was an amendment to create an English Tourism Board, which was a material change to the original approach of the Bill which established only a UK Tourism Board, a Welsh Tourism Board and a Scottish Tourism Board. Griffith quoted the view of the MP successful in passing the relevant amendment – “The most difficult thing in the world is to get any Government of whatever complexion, to change the major structure of a Bill once it has been presented. Governments can frequently be got to do this before a Bill is actually before us in print, but to have made so major an amendment and to have altered the whole structure of the Development of Tourism Bill is a major achievement for us”. Conclusion How to identify and measure impact in the parliamentary process is a long-running issue within the legislative studies discipline. A range of approaches have been developed, with significant advances made by Kreppel, Shephard and Cairney, Russell etc in developing more robust ways of identifying direct and indirect parliamentary impact. The value of these approaches should not be neglected and particularly the scope they offer for comparative analysis across parliaments. Although not replicated in this paper it is intended that they will be utilised in the wider PhD from which the paper is drawn. There is though arguably scope to develop a finer-grained and more policyfocused approach, looking at the policy content of Bills and amendments which are made to them to understand more precisely how parliaments shape the Bills that they process. The Gaelic Language Bill case-study in this paper showed how detailed analysis into structural changes to a Bill can provide insights into the nature of parliamentary impact. This analysis is probably most useful as a sign-posting exercise – a quick analysis method by which to consider the extent to which a Bill was amended during its parliamentary passage. That sign-posting would help to identify Bills which were suitable for deeper analysis – where a Bill grew or shrank significantly, or sections or themes were added or deleted, it would suggest itself for further analysis to discover why those changes occurred. Although not a cast-iron rule, the more significant the level of textual change involved, the more likely that the policy or substantive operation of the Bill would have changed during its parliamentary passage. Considering whether themes
or sections of a Bill were added or deleted provides more certainty about how much change has occurred to a Bill. If no sections were added to or deleted from a Bill it is almost certain that there has been no significant change to the policy parameters of the Bill. As well as performing a useful sign-posting function, a textual analysis of multiple Bills would help build up a picture of whether significant textual change to Bills was a common phenomenon or not and whether it changes over time (e.g. do we see more significant changes to Bills in minority government settings compared to majority government settings). The more detailed and time-consuming level of analysis is to consider how amendments actually change the policy of a Bill, and is suitable mainly for case-studies because of the focus on unique policy issues within specific Bills. However, it can be seen that it is possible to draw generalisations about the nature of the changes which are made in a Bill. In the Gaelic Language Bill case-study, for example, levels of detail were added to how sections of the Bill operated without changing their central purpose. Such generalisations could be used to build up a picture of the nature of the changes that both the legislature and government are making to legislation as it passes through the legislative process across a wider selection of Bills. That common themes do arise across a wide range of Bills can be seen in the analysis of Griffith’s research. This type of analysis would help show, for example, the level of ‘tidying-up’ of Bills which government undertakes when its Bills pass through the legislature, and whether that is the primary focus of government amendments. It would also help show the extent to which government introduces (of its own accord) new policy to its Bills and it would help show the nature and extent of the changes which the legislature was able to effect both through its own amendments and through those it persuaded the executive to bring forward on its behalf. There is scope to argue about the categories of impact which have been used in the paper, or where individual amendments best sit within these categories, but the analysis of the Gaelic Language Bill and Griffith’s data appears to demonstrate that a significant part of the amendment impact which the parliaments had (either through their own amendments, or amendments it inspired the government to make on its behalf) was generic in form, arising across a range of Bills. It is also clear that relatively few of the amendments were about genuinely substantive and unique policy topics, relevant only to the Bill to which they were made. However, it is equally true that relatively few amendments had no impact at all. They were more likely to be about process and procedure, and the mechanics of how legislation operates or is implemented. The tentative suggestion from this author is that repeating this type of analysis across a broad range of case-studies will produce similar results. We will probably find that parliament’s impact, apart from in exceptional cases, is not to transform or radically change or add to the policy of the Bills put before it but to change the detail and mechanics of the legislation and to add new layers of process which often constrain the actions of government. The intention now is to apply the analysis across a broad range of Bills which have been processed by the Scottish Parliament to see whether these predictions hold true or whether parliamentary impact has more or less policy and procedural significance than suggested here.
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