Paul Evans: Legislative Procedures as Living Institutions

Paul Evans has a long and impressive trajectory studying and implementing legislative procedures. He served as the British House of Commons’ Clerk between 1981 and 2019. During these years, he advised on all procedures and business related to that legislative body. He retired as Clerk of Committees, and was responsible for the staff of the House’s select committees. He was also an adviser to the Hansard Society Commission on the Scrutiny Role of Parliament in 2000 and chair of the Study of Parliament Group from 2005 and 2008.

In this conversation with POPVOX Foundation Fellow Beatriz Rey, he reflects on his latest chapter “Reimagining Parliamentary Procedure,” part of the book Reimagining Parliament, reviewed by Rey in the July edition of ModParl. In the chapter, Evans identifies the problems with procedures in the British parliament, such as their complexity, illegitimacy, and capture by the Executive:

“The danger is that procedures become so rule-bound and complex at some point that they don't make sense to anyone outside of the process. And the other problem is that they don’t make sense to people inside the process as well.”

The chapter proposes a roadmap for reimagining procedural institutions, which includes rethinking the entire legislative process from beginning to end, including how we call bills (which he thinks should be called “draft laws”). Evans sees procedures as living institutions that need to be constantly looked at and perhaps revised. According to him, procedures work well when they make legislators feel they’re making a difference. Indeed, he suggests that is the way to improve the functioning of legislatures: “the more you can make procedures feel meaningful and lively, and people feel being heard, and debate takes place with people shifting positions with nuances going on, the more you disincentivize grandstanding.”

He highlights two international experiences: the select committees in the British context and the practice of changing procedures in the New Zealand parliament (an institution he sees as a repository of good practices).

This interview has been edited for clarity and length.

How would you define legislative procedures?

They are the process by which you achieve a decision with hopefully minority consent. But you have clarity. The important thing about procedures is that they allow debate and deliberation, but they also are clear about the decision: what decisions are in play and what decisions have been made. And hopefully, as long as they appear to be procedurally fair, they will engage to a degree at least on the loser’s consent.

And why would you say that they are important in any legislative body?

In any democratic legislative body, there are very wide ranges of views. These views can be very adversarial. And in any such situation, you need rules which first of all constrain debates so that it is civilized. It is vital that most of the voices, at least if not all of them, are heard. That is the point of a legislature. The rules need to make sure that that is enabled. But also, legislatures make laws that apply to everybody. People have to be able to look at those laws and assure themselves that they have been made according to due process.

You write that parliament needs to command procedural legitimacy from its members and the electorate. Why the electorate as well? And has it ever commanded legitimacy from voters in the UK?

The reason you have to command procedural legitimacy among the electorate is that they must — let's be honest, politics is, in a sense, a minority pursuit among most of the population. Most of the population doesn't pay much attention, certainly not to the details of political debate and what goes on in their legislatures. In order to consent to the framework of law within which they then conduct their lives, voters need to have a broad sense that these laws have been made by a process which is reasonable, which hears different points of view, acknowledges different points of view to an extent, and then has a way of making a decision. The procedural legitimacy is not always at the forefront of the electorate’s or the people’s minds, but when there is a pushback, an injustice, that is when it goes crucially into play. You asked whether the UK, in particular, commands it. I think we don’t want it to sound too complacent, but we can say that the revolutionary forces in society which are present have not commanded huge popular support because there is a general sense that the parliament is duly elected and is free to make its decisions, and that it represents a reasonably broad consensus within the population. Therefore, there isn’t the drive in a more unjust context that there would be to take action against the government of a more radical or violent kind. So I think there is evidence that a degree of consent is going on.

You discuss how procedures in the British parliament are divorced from human procedure. Could you expand on this?

The general argument is that procedure develops out of the normal. We all are accustomed to sitting around in a bar or pub or wherever, around the family dinner table or whatever, having a debate, an argument. And those debates and arguments become fairly unstructured. If you look back in parliamentary procedure, the debate structure wasn’t all that different from what happens around the family dinner table. However, as the government becomes more complex, as the need to make decisions becomes clearer, as the law begins to develop around that, you need to have procedures. And procedure, in particular, tells you what you’re deciding, so you know what you’re deciding, and when it’s being decided legitimately. And if you go back to the 17th century or so in the British Parliament, they didn't necessarily have a question before the House. They would have a debate, and then the Speaker’s job was to propose, listen to the debate, or propose a summary in a sense of a decision. And they’d have a vote on that, and if they didn't agree with it, they’d try again, and they’d keep on going until they came to an agreed thing. And interestingly enough, Quakers (a Christian group that arose in mid-17th century England) have a similar approach. Their way of doing business is rather similar to that 17th century parliamentary business. As the law becomes more technical and more complex, as the need for decisions becomes more pressing, clarity of decision making also becomes more pressing, and as time begins to shrink relative to the amount you have to do, procedure begins to take over. Procedure begins as going out of that normal human process. People begin to make rules about it, purifying it, making it more purposive, and so on and so forth. These are all things that happen in procedure. And then gradually, it becomes less like the argument around the family dinner table, more rule-bound and more complicated. And I think the danger is that procedures become so rule-bound and complex at some point that they don't make sense to anyone outside of the process. And the other problem is that they don’t make sense to people inside the process as well.

Could you give an example of a procedure that doesn’t make sense?

If you look at the way we do laws in the UK, we have things called committee stage and report stage at the House, and it’s all done by textual amendment. Often, the textual amendments are to draft legislation which in itself is highly complex, and it’s very difficult to see what the textual amendment effect is and what it means. MPs don’t have a lot of time to understand all these things so they’re often dealing with a really loose set of words on the page in a highly rule-bound way. And they know they care about whether or not children under five should be allowed to have smartphones or whatever the law is about, but they don’t understand how this law relates, how these words on the page, how these words they're debating, how this decision they’re making really relates to that question. And I think that’s what I’m talking about: the departure from human procedure.

“One of the things I’m trying to do in my chapter is say: perhaps it’s time for us to go back and have another look at the way they make laws and try to make it more like how people actually think.”

How people debate and decide things. They do it through ideas, concepts, principles and all other kinds of things. And it’s quite easy to lose sight of that in a very highly complex process. And that’s what I’m trying to say about human procedure.

You highlight the need for public participation in the pre-legislative stage. Why is this important? Should this take a specific institutional form?

I have some small experience of citizens’ assembly bodies. A few years ago, I went to one about environmental laws. And it was the last weekend where the participants in this assembly were trying to come up with proposals for the government. They wanted protection for the environment. There were groups of dozens doing these things each with a separate topic. I was wandering around trying to help them, to talk to them. What really interested me was seeing these people who were genuinely from all walks of life, all ages, and types of employment, realizing that it was really difficult to make choices. An awful lot of politics is about trade-offs. Whether you want to protect the owl or the bowl, whether you want to have cleaner rivers or more water. So much of our politics is about trading off things. It’s not about having exactly what you want. It’s not about being able to do exactly what you need. I thought that experience was really educational. So much of the time parliament is pushed into a position by the media or by populist rankings in which politicians make a choice as if there was only that choice. And not talk about trade-offs. There’s only one answer to this question. It’s not that this is the best answer we can come up with, and it’s debatable. There's just one answer. So public participation is at least as much about educating the public as it is about educating or informing politicians themselves. It’s about bringing them in as partners and making them understand the sheer complexity and difficulty of making laws for society. And hopefully that will generate more consent.

This dimension of politics in terms of trade-offs seems lost in the public debate.

It’s a shame. A big shame. And it’s the sin of the media, apart from anything else, amplified by social media, which encourages position-taking rather than debate, and abuse rather than disagreement.

Relatedly: how can legislative bodies deal with the incentive that social media offers for Members to work mostly towards position-taking?

That’s a huge question, which I’m not sure I have any kind of answer for. You have to think about what the incentives are for politicians. And they’re mixed. A lot of it is about getting re-elected. That’s where you're driven to the grandstanding statement, the video, and so on. But also you can hope, and it is the case, that a lot of politicians are driven by principles and wanting to change things, and wanting to choose what they see as the better. The trouble with many legislatures, and I include Westminster in this, is that a large portion of the legislators who are not actually in government, if they’re not a powerful [Member], in the controlling majority set, and even if they’re in the majority party, but not in government, they can feel very disempowered (depending on whether you have a Congressional or a parliamentary system, of course, you get a different balance). It’s almost like procedures take away their individual agency. And so, the more you can make procedures feel meaningful and lively, and people feel being heard, and debate takes place with people shifting positions with nuances going on, the more you disincentivize grandstanding.

Your chapter makes the case for decentralization in the UK. That is, the “time-bound bearpit of the plenary” should be “dethroned” so that the more “open-ended world of committees” is at the center. How could one approach politicians to make this change feasible?

This is quite a Westminster-specific recommendation. You have these two systems: one where all decisions are made in the plenary, and one where most decisions are made in committee (and may or may not be rubber-stamped by the plenary). Clearly, in the ones where all decisions are made in plenary, which is effectively what the House of Commons is, there’s very little time for debate. There’s very little time for detailed cross-examination, for considering everyone, and so on. If the committees do not have some power to change what political scientists call ‘rewired powers,’ then they would be less incentivized, then their incentives are wrong. They will go off in the wrong direction. Again, it’s more about what has happened in the UK since we created our system of special committees in its present form in 1979. They have, as an institution, developed within that framework and become more powerful, more influential. But we haven't caught up our procedures with that. The committees operate in one theater, and the plenary operates in a different theater, and there's very little connection between the two. It’s making a connection that's important. The point is that the way you make a change is partly by creating the vehicles of change and hoping the political will then comes along to fill them up.

You describe the experience of the departmental select committees (as opposed to the legislative committees) in the UK parliament as a promising model of deliberation. Could you tell us about their role in the British legislative process and why it is important? Would you say other parliaments should look at this experience to mimic it?

We have two kinds of committees in Westminster: the legislative committees and the scrutiny committees. The scrutiny committees are essentially based around the structure of government, so there is a specialist committee tracking, marking each government department (foreign affairs, defense, energy, and so forth). Those committees are quite small. They usually have eleven or so Members of Parliament. But what they don’t have is power over the budget or legislation. Now, this is really freeing because the party managers don’t care about them too much. These committees can’t do too much harm. And they do really good work. They do inquiries, look at policies, take evidence from experts, they deliberate, and they do it all in private. There’s no grandstanding — I mean, they do all their deliberation privately. They take evidence in public, but the rest of it is in private. That whole process is much more free-flowing than the one you would see in legislative committees, which deal with making law in various stages. Legislative committees are quite separate. They are not permanent, they are not expert, they meet in public, and there are these complicated rules about how they debate. They are largely pointless in my opinion. They’re captured by lobby groups. The only people who follow them or are interested in them are the lobby groups. Nobody sees them. Because they work as a mini-plenary format, they don’t have the deliberative quality. What I try to do [in the chapter] is marry the two types of committee up. But if you put all the legislation into the specialist committees, which they do in the Scottish Parliament, the Welsh Parliament, and in many other places, I’ve seen it in the Bundestag, for example, they then become a pulpit of ideological warfare. That distorts the procedure so there’s a quite difficult balance to be constructed between these two approaches. One of the ways is trying to get some of the lawmaking process more into this additional deliberative human process and less into the highly structured, outstanding adversarial process. But there are risks, right?

Just to clarify: you’re not making the case for abolishing regular committees, but merging the work of these two systems?

I would probably abolish regular committees if I had the power to do so, but I wouldn’t prompt their work as it happens into the deliberative, specialist committees. I’d hope that draft laws could be scrutinized by specialist committees in quite a different way than we do now. And in a way which keeps their freedom to not have to be managed severely by the party managers.

You write that procedure must be predictable but not unchanging. How often would you say that procedures need to change in a healthy democracy?

It obviously depends on external circumstances. I often turn to the New Zealand Parliament when I’m looking for good practices. There, they have a three-year electoral cycle (which is a bit too short, but leaving that aside) they have a kind of standing rule or convention that, before the end of each of those three-year cycles, the procedure committee has to review the rules and make recommendations for how they should change in the next cycle. Those changes might be small or large. What they do is adopt them at the end of the three-year cycle so that the people who are agreeing with the changes are experienced with procedures. They don’t massively change them. They just tend to tweak them here and there and sometimes come up with a new concept. I think that’s a very good model. It’s more a matter of reviewing them constantly. If you look at the Standing Orders in the House of Commons [written rules which regulate the proceedings in that legislative body], you notice they are incomprehensible because there are so many detractors of history. They’re abolishing practices that nobody’s ever heard of and creating practices nobody ever uses. They’ve just accumulated over the 200 years and there’s never been a real cleanup. That’s a huge job now, but had we been doing it regularly, as a bit of practice every four or five years, or however often we felt was necessary, once a parliament, once an electoral cycle, it seems sensible because then the changes would be fairly minor.

What are bad examples of procedural changes?

If you want a bad example, you go to the House of Representatives in Washington. There they remake the rules at the beginning of every Congress, every two years, and basically what happens is they just rig them in favor of the majority and silence the minority. The rule must be consensual. It must command the respect of all sides of the House, which doesn’t happen. Also, if you have a really majoritarian culture in which, for instance, the minority gets no committee chairmanships, gets very little time, doesn’t get a lot of initiatives going on, of course the next time when the sides change, they take revenge. It’s a ratchet effect.

How has the process of digitizing many steps in the parliamentary process affected the perception and practice of procedure? How should we think about the balance of procedure and efficiency?

There’s no doubt that the internet has made a huge amount of material available to anyone who can log on, which would previously be really hard to get and probably quite expensive. Just one little example: to follow a bill through all its stages, you had to buy a copy of Hansard for the committee stages, for the daily stages, and that was quite expensive. And you could order it by post, or you had to go up to London and buy it, a hard copy, and so on. Now you can see it all within 24 hours online. You can see the bill documents, you can see the government’s background papers, if you're prepared to put the investment in. That’s a huge, huge change in accessibility in my lifetime. And it’s got a lot of people out of business (many agencies whose jobs was keeping the big players informed about what was going on in London). Now, you don’t need an intermediary to do that. That's very important. I think there are risks, obviously, attached to this disintermediation, but that aspect of digitalization is all positive.

What could be the impact of AI for procedure?

Let me take an example. We have something called Parliamentary Questions [questions formally put forward by MPs to members of the government]. Questions are a way in which Members demonstrate their engagement statistically. We have something called the Table Office, whose job is to edit and sift these questions so that they are relevant, not repetitive, which they find increasingly difficult given the volume. And then they send them to the government, the government answers them, and that’s all done electronically. Within a short time, I can see a situation in which all the questions from Members are generated by Chat GPT. The Table Office uses AI to edit them and forward them to the government, and the government uses AI to answer them. And there will be no human intervention at any point in any of this process of holding people accountable. That seems to be a bit weird. There are pressures driving us in that direction. I always used to say when I was talking to audiences about parliament: the problem of parliament is not a lack of information, it’s too much information. It’s always been the case in my experience. It’s a really good way of making legislators impotent: giving them all the information you possess. They will never be able to find their way through it or understand what the key points are or whatever. And then you need a huge amount of expert advice and input and knowledge to interpret all that information. It’s a very useful weapon in the government’s hands (giving too much information rather than too little). You can imagine a benign version of AI which really does extract what’s important from this huge amount of information. My experience of AI so far, which is very limited, is that it’s not benign and it’s quite stupid as well. So I’d rather rely on a human.

The King’s speech at the opening of Parliament stated that: “The Government will propose a modernization committee of the House of Commons which will be tasked with driving up standards, improving work practices and reforming procedures.” Are you hopeful that procedural reform might be a part of this effort?

The government has put their money on this idea. They’re going to have to show some outcomes. So I am hopeful. And I think the other factor that will be interesting to see how it plays out is that, for the first time in living memory, more than 50% of the members of the House of Commons are brand new. There are a lot of people coming with fresh eyes who haven’t been socialized or brow-beaten into accepting the way things are. I’m hopeful that will provide quite a lot of pressure for change as well. But I think yes: they’ll have to do something. Whether it will be all good and whether it will work, it’s a different question.

Let’s hope that they read your chapter.

I will be writing to the Modernization Committee early on, since they're in the inquiry. Setting up their programme for them.

Is there anything that I didn't ask you that you think would be important to highlight about the chapter, about modernization, about improvement of legislative institutions?

I think the key stumbling block is always the political will and time and attention from legislators. And there are a lot of forces driving their time and attention away from what we (nerds) think of as their core job, which is law and scrutinizing the government. And they think it’s getting re-elected. It’s really hard to marry them. As I say, it’s about incentives. But people never feel better than when they feel they’re making a decision. They feel they're making a difference. And I think that’s what a procedure needs to be able to do: make them feel they're making a difference.