Daniel Greenberg, PLC consultant:
The Back-bench Business Committee (a Select Committee of the House of Commons) has announced two debates that will take place on subjects raised by members of the public by way of e-petition. The decision comes after some initial controversy when these two petitions received support in excess of the 100,000 signatures originally mentioned by the Prime Minister as the “threshold” for debate but were not selected because of the lack of Parliamentary support.Of the two debates, only one will take place in the Chamber of the House of Commons itself. The debate on “the disclosure of documents to the Hillsborough Independent Panel” will take place on Monday 17th October 2011 in the Commons Chamber, based on an e-petition which has received around 140,000 signatures.
The debate on responses to the August riots – based on an e-petition which has attracted around 250,000 signatures – will be taken on Thursday 13th October 2011 in “Westminster Hall”, which in this context means a large Committee room. Debates in Westminster Hall are open to the public, but are generally less well attended by Members of Parliament and receive less media publicity than debates in the Chamber.
Importantly, however, by convention the most appropriate government department will be expected to send a Minister to respond to each of these debates, ensuring that they involve some engagement with and by the government, in the course of which MPs can press for action and for explanations of past or future policy.
It remains to be seen how effective e-petitions become as a political and social tool. The danger is, of course, that despite initial enthusiasm, if they are seen rarely to result in even debate, let alone action, the public may become disillusioned and participation may diminish. With that in mind, the Backbench Business Committee has announced that it will consult on ways of dealing with e-petitions within the House of Commons. The consultation is likely to consider, in particular, the present requirement for an e-petition to be supported by MPs before it can be selected for debate, something about which the Committee has already expressed concern. Under the present arrangements, an e-petition which receives 100,000 signatures is sent automatically by the government to the Committee for consideration: but it can be sent for debate by the House of Commons only if at least one MP persuades the Committee that the subject deserves to be debated.
Apart from the political and social implications of e-petitions, a feature of this new process which PLC Public Sector will be monitoring with particular interest in the medium and long-term is the public law implications.
At one level, an e-petition has no legal effect at any stage: even if debated, and even if voted on, neither a debate nor a vote of the House of Commons can itself change the law. But now that the courts are showing increasing willingness to have regard to the Parliamentary history of legislation, e-petitions touching on matters relevant to legislation going through Parliament could have a practical effect on their eventual interpretation. For example, when attempting to determine whether silence on a particular matter in an Act is the result of inadvertence or deliberate policy, the fact that it was addressed by e-petition – perhaps in conjunction with the experimental “Public Reading Stage” of a Bill – could be relied on as evidence that the issue was likely to have been within the contemplation of the legislature at the time. For information on the “Public Reading Stage” of a Bill, see our Practice note, The legislative process in the UK and how bills become law.
There may be other ways too in which e-petitions acquire some kind of legal significance, despite having been designed as only a focus for debate. The administrative law of consultation, for example, is developing all the time, and the availability of e-petitions could come to have significance in that context.
For the e-petition site see http://epetitions.direct.gov.uk.
Daniel Greenberg; Consultant, PLC Public Sector; Parliamentary Counsel, Berwin Leighton Paisner LLP; Editor, Craies on Legislation.