The Modernisation
Committee's proposals concerning the Legislative Process
Introduction
1. The Chairmen's Panel
currently comprises the Chairman and Deputy Chairmen of Ways and
Means, together with eighteen other Members nominated by Madam
Speaker. Under Standing Order No 4, the nominated Members may
be called upon by the Chairman of Ways and Means to serve as temporary
chairmen in Committee of the whole House; and under Standing Order
No 85 they are, more regularly and more familiarly, appointed
by Madam Speaker to act as chairmen of all standing committees
those on delegated legislation and European legislation,
and the Grand Committees, as well as all standing committees on
public bills.
2. Standing Order No 85
also empowers the Panel to consider matters of procedure relating
to standing committees and to report its opinion thereon to the
House from time to time. The Panel normally meets two or three
times each session to consider matters of procedure and practice
and to ensure as far as possible a common approach to procedural
problems confronted by the Chair in standing committees. It has
also for many years reported formal resolutions near the start
of each Parliament on certain matters of practice which have as
a result become part of the established procedure in standing
committee.
3. This is, however, the
first time for many years that the Panel has agreed to make a
full Report to the House, and we have done so for two reasons.
First, the proposals contained in the Report of the Modernisation
Committee on The Legislative Process[1]
will, if implemented, have significant implications for procedure
and practice in standing committees dealing with bills, and the
Panel's collective experience is directly relevant to the House's
consideration of those proposals. Second, some of the proposals
would impinge directly on the role of the chairman of a standing
committee, requiring the chairman to exercise judgement on a wider
range of issues than hitherto and, it might be argued, exposing
the Chair to a greater risk of controversy than hitherto. We therefore
welcome the invitation by the Leader of the House to respond to
her Committee's proposals,[2]
and feel it right to comment reasonably frankly on their implications
for us, as chairmen.
4. We nonetheless do not
think it appropriate for us to express any collective view on
the merits or demerits of the main procedural changes proposed;
those are matters for the House as a whole to resolve, with the
advice of the committees the Procedure Committee, and now
the Modernisation Committee appointed expressly for that
purpose. But we have no hesitation in welcoming the main thrust
of those changes: to improve the opportunities for the House to
be involved earlier in the formative stages of legislation, to
improve the information (from both Government and other sources)
available to Members in their detailed examination of bills, and
to improve the organisation of committee debates in such a way
that Members on all sides have reasonable opportunities to raise
issues and propose amendments, while ensuring that the time of
all concerned (including our own) is not squandered.
5. We note the Modernisation
Committee's suggestion that the changes proposed to be made should
for the most part be of an experimental nature. Apparently useful
changes in the past have on occasion proved in practice to be
of little or less value than expected: some have languished in
standing orders unused and unloved (such as the existing provisions
for report stage committees and for the standing committee on
regional affairs); while others have become too firmly established
in standing orders, despite their inadequacies, and have been
overused and even less loved (such as standing committees on delegated
legislation in their present form). A general acceptance that
the changes now proposed will be subject to review, refinement
or even rescission before being written into the permanent standing
orders of the House will be welcome.
Programming
of legislation
6. Programming subcommittees:
Paragraph 89 of the Modernisation Committee's Report sets out
proposals for the "programming" of bills as an alternative
to informal timetabling or the blunt weapon of the guillotine.
In the case of such a bill committed to a standing committee
or special standing committee the proposals envisage the appointment
of a "programming subcommittee" to prepare a programme
of meetings and a detailed timetable for the consideration of
the bill in committee within the limits laid down by the House.
The chairman of this subcommittee would be the chairman
(or one of the chairmen) appointed by Madam Speaker to the standing
committee itself, and where two or more such chairmen are appointed
we would expect the firstnamed chairman to fulfil this function.
7. The role and responsibilities
of the programming subcommittee would be somewhat wider
than that of a business subcommittee appointed under the
guillotine procedure. Notably, standing orders would require
the subcommittee to take into account (i) "the need
for all parts of the bill to receive proper consideration";
(ii) "the rights of the Opposition and other parties and
Members to be given adequate time to discuss matters to which
they attach particular importance"; and (iii) that "sufficient
time should be allowed for consultation with those outside Parliament".
The current standing order relating to the business subcommittee
(No 120) provides no such guidelines and, in practice, the timetables
proposed by the latter, while no doubt seeking where possible
to take account of the known interests of minorities, have tended
to reflect fairly roughandready deals through the
usual channels not surprisingly, in circumstances where
there has usually been urgent pressure of time and, not infrequently,
some acrimony between the parties and their managers.
8. The new prescription,
if taken seriously and operated in the spirit intended by the
Modernisation Committee, will require a significantly different
kind of "deal", particularly if account is to be taken
of the concerns of backbench committee members. We would expect
the frontbench representatives on the subcommittee accurately
to represent the rights and interests of their backbenchers even
when they may not accord directly with their own: but it is likely
that other members of the full committee would expect the chairman
to act if necessary to protect their interests in the subcommittee
and they would be right to do so, for if these requirements
are actually written into standing orders it will be subcommittee's
express duty to take them into account, and therefore the duty
of the chairman to ensure that that is achieved.
9. We anticipate some difficulties
for the Chair in this process but hope that, if the House has
approved this experimental procedure the parties will wish to
give it a fair wind and will cooperate accordingly. In the
subsequent debate in the full committee it would be highly desirable
for the role of the chairman in the subcommittee to be protected,
and not open to questioning, in order to maintain the convention
of the strict impartiality of the Chair.[3]
Accordingly it would be our expectation that the chairman
in such circumstances would rule out of order any discussion of
the private deliberations of the programming subcommittee,
debate being limited to the motion embodying the subcommittee's
conclusions and any amendments thereto.
10. We envisage some difficulty
in the interpretation of the requirement that the programming
subcommittee should ensure that "sufficient time"
is allowed for consultation with "those outside Parliament".
In the case of a special standing committee formal consultation
would be provided for through arrangements for the taking of oral
(and written) evidence before line by line consideration of the
bill began. In the case of a normal standing committee, however,
there is no such mechanism, and it is only too easy to imagine
considerable differences of view about what constitutes "sufficient"
time for adequate consultations of a purely informal kind. No
doubt appropriate compromises would be reached on this issue also,
but the Modernisation Committee's proposal on this point lends
further weight to the suggestion made by Chairman of Ways and
Means,[4]
but not pursued by the Committee, that all standing committees
on bills should be empowered to receive and publish written evidence.
If this power were granted, appropriate deadlines relating to
different parts of the bill could be spelt out in the programming
subcommittee's proposals.
11. Power of the Chair
to extend time for debate: Paragraph 89(xii) of the Modernisation
Committee's report proposes that the chairman should have power
to extend by up to one hour the time for debate on a particular
question under the agreed programme "where it appears to
him or her to be necessary to ensure that all parts of the bill
are properly considered". This would provide a degree of
discretion to the Chair (in some ways similar to the power to
defer adjournment until 1.15 pm under certain circumstances, under
Standing Order No 88(ii). It is a power we would expect to
use only in exceptional circumstances, and a Chairman would be
unlikely to use it unless he had clear assurances that to do so
would meet the general convenience of the committee, and would
not result in the inadequate discussion of later clauses or amendments.
12. There is one additional
point which requires clarification: standing committees are currently
prohibited under Standing Order No 88(i) from meeting between
1.00 pm and 3.30 pm. Whatever other flexibility is to be introduced
into the arrangements for the sittings of standing committees
(referred to in paragraphs 48(iii) and 97(iii) of the Committee's
Report), we believe that this enforced interlude in the proceedings
should remain in order to provide Members, staff (and chairmen)
with the certainty of a lunchbreak, and to facilitate Members'
attendance at Questions in the House. We therefore very much
hope that the revised standing orders will not be drafted in such
a way as either to remove the automatic 1.00 pm adjournment, or
to allow it to be overridden by the chairman's power to extend
debate. If the latter were to be permitted we doubt very much
whether chairmen would make use of the power at this time, even
if requested to do so by Members.
13. Bills in Committee
of the whole House and on Report: Under the existing guillotine
procedures provision is made (in Standing Order No 82) for the
appointment of a Business Committee, chaired by the Chairman of
Ways and Means, to prepare a detailed timetable for the consideration
of a guillotined bill in Committee of the whole House or on Report.
The Modernisation Committee's proposals appear to be silent on
this subject in respect of bills subject to a programming order,
the implication being that the full details of the timetable to
be followed in Committee of the whole House or on Report would
be embodied in the original programming motion (or a supplementary
motion). Although the Government may have no present intention
to commit a programmed bill to Committee of the whole House, it
seems to us to be odd that the detailed arrangements in such a
case, and in the case of any programmed bill on Report, should
be left to the usual channels, unconstrained by the considerations
required to be taken into account by a programming subcommittee
in standing committee. In our view, it would seem logical for
a Programming Committee to be appointed in the case of bills committed
to Committee of the whole House, with a composition similar to
the present Business Committee, and subject to the same constraints
as those imposed on a programming subcommittee. In the
case of programmed bills reported from a standing committee or
special standing committee, proposals for the detailed arrangements
on Report could be made either by a specially constituted Programming
Committee, or by reconvening the relevant programming subcommittee
for that purpose.
General matters
relating to standing committees
14. Paragraph 97 of the
Modernisation Committee's Report sets out a number of proposed
changes intended to apply to all standing committees on bills,
whether or not subject to a programming order.
15. Voluntary timetables:
Paragraph 97(i) proposes a "sensible agreement" to ensure
that all parts of a bill are discussed, in cases where a formal
programme does not apply. This is obviously desirable, but would
be of very much more value if the details of such arrangements
were to be made generally known to the chairmen and backbench
members of the committee concerned, which in recent years has
by no means always been the case.
16. Consideration of
clauses and schedules: Paragraphs 97(ii) and 48(ii) of the
Committee's Report propose the application to the existing clauses
of a bill of the procedure currently applied only to new clauses
and schedules, thus providing a general debate (and vote) on the
principle of the clause before the consideration of amendments,
the main objective being to reduce the number of probing amendments
and to allow the committee to concentrate only on amendments "genuinely
seeking to improve the details". We see some difficulty in
adapting to this method of proceeding.
17. If the use of the procedure
is to be at the discretion of the Chair, it is unlikely to be
used very widely except with the general support of the committee
concerned. There will, of course, be occasions when so many amendments
clearly of a probing nature have been put down to a clause that
a chairman might under existing conventions group most or all
for a single debate, which would cover much of the principle of
the clause; and in these circumstances the use of the new power
might be advantageous; but it is not always easy to be certain
that an amendment is tendered purely for "probing" purposes,
and the use of this power would not in all cases significantly
reduce the number of amendments or groups of amendments selected
for debate. Much would in practice depend on the behaviour of
Members in tabling amendments, and it is not possible to anticipate
with any certainty what the effect would be on the chairman's
selection and grouping of amendments. Paragraph 48(ii) suggests
that the new procedure would mean that "amendments which
would effectively undermine or negate the principle purpose of
a clause would presumably be less likely to the selected by the
Chair": but that reflects what is already the general practice.
18. In her letter to the
Chairman of Ways and Means the Leader of the House invites guidance
from us on how this new procedure would effect a chairman's selection
of amendments, how it would influence our selection of manuscript
amendments, and how we might interpret the scope of debate on
selected amendments after the principle of a clause had been agreed.
The selection of amendments is a matter entirely under the control
of the individual chairman, and is not subject to challenge or
questioning. Apart from our few remarks above, we do not think
it would assist chairmen in performing their tasks under the new
dispensation if we were to spell out groundrules which might then
be used in attempts to challenge or criticise their decisions.
19. If this were to be an
experiment conducted across the board in all standing committees
then at least all participants would know what to expect.
We would prefer the procedure to be applied uniformly to all standing
committees and special standing committees on bills for an experimental
period - perhaps for the remainder of this session or for the
following session. This would expose the widest possible number
of Members and chairmen to the experiment and make it much easier
for the House as a whole to judge whether or not it should be
continued on a permanent basis.
20. Times of sittings:
Paragraphs 97(iii) and 48(iii) propose the removal of "many
of the constraints and conventions on the times during which a
committee may meet and the number and timings of sittings".
Under existing rules standing committees are largely constrained
in their meetings in only three ways: (i) they may meet only once
on the first sitting day; (ii) they may not meet between 1.00
pm and 3.30 pm; and (iii) they may not begin any meeting on a
day when the House does not sit.
21. The prohibition on meeting
twice on the first day is generally convenient, and it is always
open to the Government to request the chairman concerned to call
the first meeting in the afternoon, thus allowing a very long
meeting on the first day if the Government so desire. We are
not convinced that this rule needs to be changed, given that it
is always possible for the Government to give notice of a motion
to permit a standing committee to meet twice on the first day
if they so wish: it remains, in our view, a small but not unimportant
protection for backbenchers.
22. We have already expressed
the view that the mandatory break for lunch should be
retained, for the reasons explained
in paragraph 12 above.
23. Permission for standing
committees to meet "notwithstanding the adjournment of the
House" would bring them into line with select committees.
There may be occasions when this would be desirable. We would
hope, however, that this power would be used sparingly, and only
in the case of genuine need for urgency in the consideration of
legislation. Members already have a very heavy burden of work
during sessions, and days off whether on "Jopling"
Fridays or more extended recesses are necessary for them
to perform many of their other functions in their constituencies
and elsewhere outside the House. The possible accumulation of
new committees implied by the Modernisation Committee's Report
must already give rise to some concern about the burdens likely
to be imposed on Members, and we hope that they will not be unnecessarily
aggravated by the general extension of standing committee proceedings
into the recess. We acknowledge, however, that there may be occasions
when, for instance, a special standing committee is taking
evidence when this might be justified.
24. Time limits on speeches:
Paragraph 97(iv) proposes that the chairman of a standing committee
should have power to limit the length of speeches. It is not clear
whether this is intended to be a power to be exercised for a whole
sitting, or merely in respect of a particular debate, and this
needs to be made quite clear. Nor is it clear whether such a prohibition
should apply only to backbenchers (as in the House) or to Ministers
as well. In our experience there are frequent, and not always
unjustified, complaints from backbenchers about the length of
ministerial interventions in standing committee debates: in
our view, therefore, the power to limit the length of speeches
should apply to Ministers and other frontbench spokesmen.
25. The Modernisation Committee's
proposals do not make clear whether the imposition of time limits
on speeches in standing committee would be expected to override
the very longstanding convention (which applies also in Committee
of the whole House) permitting Members to speak more than once
to the same Question in committee. To depart from this convention
- which contributes much to the discussion of detailed points
in committee - would be a significant change and a potentially
serious erosion of Members' rights, and should not be attempted
by this means. Where a time limit is imposed, it must not
prevent a Member from speaking more than once to the same Question.
26. We understand that appropriate
timing mechanisms are already being developed for this purpose,
and we foresee no insuperable difficulties in operating a system
of time limits. We would nonetheless expect it to be used only
sparingly, at least in the shortterm.
27. Access by advisers:
Paragraph 48(v) of the Committee's Report proposes that the constraints
applied to advisers to backbenchers, and particularly to Opposition
frontbenchers, in communicating with Members before and during
committee meetings should be lifted. We have grave doubts about
this proposal, although we sympathise with the motives of
the Committee in proposing it. The difficulties arise in particular
because all standing committee meetings are held in public, and
a clear distinction must therefore be drawn between members and
all others: it should be remembered, for instance, that in most
standing committees, including those on bills, not even other
Members of the House are able to enter the floor of the committee
room during meetings. Officers of the House (including the clerks
and shorthand writers) are similarly debarred from approaching
Members in their places, and Government officials are permitted
to communicate with Ministers only by the passing of messages.
The Modernisation Committee's proposal raises important questions
of principle and should not be accepted at this stage.
Special Standing
Committees
28. In the Chairman of Ways
and Means' letter to the Leader of the House last July, he suggested
that we might reconsider our predecessors' resistance to the appointment
of members of the Panel to take the Chair at the evidencetaking
sessions of special standing committees. We have now reconsidered
this matter, and agree with the Chairman of Ways and Means that
there should be no prohibition on the appointment of Panel
members for this purpose, provided that it is clear that the
Chairman's role is limited to ensuring a fair allocation of questions
and the time available for questioning, and that Panel members
performing that role would take no direct part in the questioning
of witnesses, other than for purposes of elucidation and clarification.
Indeed, we have every confidence that this role could be,
and usually should be, performed by Panel members without in any
way compromising the impartial role of the chair in the later
consideration of a bill, line by line.
Standing committees
on delegated legislation
29. In paragraph 83 of their
Report the Modernisation Committee comment that "No examination
and reform of the legislative process would be complete if it
were confined solely to United Kingdom primary legislation",
and indicate that the Government is to make an "interim response"
to the Report of the Procedure Committee on this subject.[5]
We have already referred above (paragraph 5) to the present standing
committees on delegated legislation as an example of a procedure
too wellestablished in standing orders and overused, `though
unloved, and our Chairman referred in his letter to the Leader
of the House to "the frequent waste of time, effort, resources
and talent which many such meetings involve". Several generations
of Members (and chairmen in particular) have suffered what is
overwhelmingly regarded as a wholly inadequate procedure for considering
delegated legislation. It will be unfortunate if the large new
intake of young Members have to suffer in the same way
and perhaps unlikely that they will tolerate the arrangement for
long. We very much hope that the Government will respond positively
and speedily to the Procedure Committee's Report, and that the
present system which contrasts so unfavourably with the
arrangements for debating European legislation will be
replaced at the earliest opportunity.
1 Fourth
Report from the Procedure Committee, Session 1995-96 (HC 152). Back
2
Letter from the Chairman of the Select Committee on Modernisation
of the House of Commons to the Chairman of Ways and Means, 29
July 1997 (reproduced as an annex to this Report). Back
3
There is a distinct difference between this procedure and that
which applies when the report of a business sub-committee is considered
by a standing committee under Standing Order No 120, since in
the latter case the Question on the sub-committee's resolutions
is put forthwith. Back
4
see Appendix 5 to the Committee's Report. Back
5
Fourth Report from the Procedure Committee, Session 1995-96 (HC
152). Back
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