by G. R. Evans
The Higher Education and Research Bill has now had seven sessions before the Lords in Committee, ending on 30 January. As Lord Willetts acknowledged, it has become ‘famous’ for the sheer number of ‘letters’ promised to various Peers at the Committee stage, by those tasked with undertaking the role of the Minister in the Commons: Lord Younger (Spokesperson on Higher Education in the Lords), Baroness Goldie (who stood in for him from time to time) or Lord Prior. Lord Prior was appointed Parliamentary Under Secretary of State at the Department for Business, Energy and Industrial Strategy only on 21 December 2016 and he too found himself unable to provide answers on 30 January when the Lords were discussing UKRI, which is to be the responsibility of his own Department of State. (‘Rather than ad lib on this, I had better consult officials and write to the noble Lord’).
These ‘letters’ occupy an anomalous place in the legislative process. The steps by which a Bill passes into an Act of Parliament ready for Royal Assent are fully transparent in every respect but this. First the Commons then the Lords have their First and Second Readings and their Committee stages, the debates are now broadcast live and a verbatim account may be read in Hansard the next morning. But when a Minister cannot give an adequate response to a question raised in debate he may simply offer to write one of these clarificatory ‘letters’ which, unlike Written Answers to Questions put by MPs or peers, do not appear in Hansard.
The assiduous reader of Hansard may want to know what the promised letter says. Even Lord MacKay of Clashfern, who has been a member of the House of Lords since 1979, declared himself not sure in the debate on 30 January:
My noble friend mentioned a letter. I was at a meeting last week with a number of people interested in the Bill and its progress [the CDBU Annual Lecture given by Martin Wolf]. They mentioned the letters referred to in Hansard. They asked where they could see them. I was not certain, but I assume they are in the Library.
It is possible to find out. Such letters may indeed be deposited in the Library of the House of Commons or the House of Lords by a Minister or by the Speaker. However, the online search for a deposited letter is a slow business because one may search under only limited fixed headings. There seems no systematic linkage of a given letter with the exact passage in the debate to which it refers, though it would surely be easy enough to provide that link.
It all looks rather a muddle. In the case of the letters so far written to Lords during the Committee stage some appear in duplicate with more than one number; some with the same text are written separately to different Lords by name. Appendices said in a letter to be attached to it are often not there.
There seems no easy way for Lords to discover what has been deposited, no routine notification of deposit of a particular letter, no listing of letters outstanding and not yet written (as there is for Questions requiring Written Answers). Deposited papers are not ‘presented or laid formally before Parliament’ though the public may access them and members of either House may now ask to have a particular letter by email. So there is some degree of transparency and orderliness. But at the crucial final stages of the Bill it will be hard work for Commons, Lords or general public to be confident that all the Government’s arguments including those in the letters are marshalled together for detailed review. The ‘all Bill documents’ link on the Bill’s website does not include them. It should.
These letters on points which baffled Government spokesmen in debate are surely too important to be treated so casually in the legislative process. If as appears to be acknowledged, the number promised in the committee stage of the Higher Education and Research Bill is quite exceptional, the need to examine the role of such letters in an otherwise transparent legislative process seems clear.
It is especially important in the case of the Higher Education and Research Bill, of which Baroness Deech said at the end of the final Committee session that it ‘is not much more than a framework, albeit a very heavy framework, on which later policy is to be hung’:
Now that we have reached the end of the Committee with so many gaps in the Bill, can the Minister assure us that there will be some process of post-legislative scrutiny to ensure that this experiment is working?
Those gaps might indeed be filled by the promised letters, of which comparatively few appear yet to be available, but where they are so numerous and extensive they should surely be provided, online, in a consolidated set. Lord Watson put his fear frankly:
the Minister sought to reassure noble Lords that he will reflect on all amendments. That will be of very limited value if, at a later date, he simply comes back on Report or in letters to say that, having reflected, he is not minded to accept the amendments’ (Lord Watson, 11 January).
Those letters surely ought to set out the process of ‘reflection’ in giving their promised answers or Government will have failed shamefully to explain itself.