Select Committee on Modernisation of the House of Commons Appendices to the Minutes of Evidence


Memorandum from the Chairman of Ways and Means



  1.  This memorandum is submitted in response to an invitation from the Clerk of the Committee, dated 4 March. I should make clear that, although I have consulted members of the Chairmen's Panel and have included, in the second section of the memorandum, some detailed observations about the operation of programming in Standing Committees and their Programming Sub-Committees, the main body of the memorandum reflects my personal views and I am solely responsible for its contents. As to the first section of the memorandum, I appreciate that most members of the committee are aware of the outline history of programming; but I thought it important to set out my own perception of the story so far and to emphasise the extent to which the concept and purpose of programming appear to have changed since it was first introduced.


Origin of Programming

  2.  "Programme motions" were first introduced in 1997-98 following the Modernisation Committee's First Report of that session, entitled "The Legislative Process". But the basic idea—that Government bills should be timetabled from the outset so as to deter filibustering on the earlier clauses and encourage balanced consideration of the whole bill—had been around for many years before that. For example, the Procedure Committee made recommendations on those lines in 1984-85 (Second Report, HC 49—I); and so did a Hansard Society Commission on the legislative process, whose report was published in 1992. That report, entitled "Making the Law", apparently had a great influence on Ann Taylor and the Modernisation Committee under her chairmanship.

  3.  Both the Procedure Committee and the Hansard Society Commission linked their recommendations for regular timetabling of Government Bills to proposals for the establishment of a committee to regulate the House's legislative business, with a strong independent membership or chaired independently by the Speaker. Timetable motions were to be based on the committee's proposals. But the respective Whips Offices have always strongly resisted any proposal for replacing or formalising the usual channels in such a way; and so it was perhaps no surprise that the Modernisation Committee rejected that idea as lacking "the flexibility which is the hallmark of the usual channels". The Committee instead said that what it was aiming to achieve was "a process which is more open and formal than the usual channels but is equally less rigid and structured than a Legislative Business Committee". The Committee also said that the needs of all parts of the House, including backbenchers, must be taken into account. But exactly how this was to be achieved and what the "process" was to consist of was not made clear.

  4.  The word "programming"—strictly speaking a misnomer, because the procedure applies to individual bills rather than the Government's legislative programme as a whole—was similarly chosen to represent a procedure that was more formal than voluntary agreements reached through the usual channels but more consensual than an imposed timetable or guillotine. The clear implication was that no programme motion would be put to the House unless there was consensus on its provisions.

Programme Motions, 1998-2000

  5.  The programme motions moved in the period between the beginning of 1998 and mid-2000 were, in procedural terms, no more or less than agreed guillotines. Most of them were drafted in somewhat shorter and simpler terms than a conventional guillotine motion, but they were moved under the pre-existing Standing Order (No 83) relating to the allocation of time to bills. The single distinguishing feature that marked them out as programme motions was that they were signed by representatives of each of the three main parties represented in the House.

  6.  In 1998 there were 11 programme motions of this type; in 1999 only four; and in 2000 again only four. As the Parliament entered its third year, it was evident that consensus was becoming more difficult to achieve. To reinforce the point, there were also a few cases when Opposition Members debated non-timetabled Government bills at a length which did not appear to be justified by the bills' content. The Modernisation Committee, by then under the chairmanship of Margaret Beckett, accordingly returned to the subject of programming to decide what should be done. A copy of the letter which I submitted for the purposes of that inquiry is attached. Among other things, I commented on the sporadic use that had been made of Business Committees and the fact that, even when they were convened, their proceedings tended to be something of a charade and did not take proper account of the interests of backbenchers.

  7.  The inquiry in 2000 led to a split in the Modernisation Committee. The Conservatives voted against the Chairman's draft report and submitted their own minority report, which is printed in the minutes. This suggested that agreed programming should continue for some controversial and lengthy bills, but that for the generality of bills it would be sufficient for the House to be given clear and accessible information about informal agreements, made through the usual channels, concerning the planned progress of business. By contrast, the majority report, adopted by the Committee, proposed that the House should commission new Sessional Orders which would provide a formal framework for programming, separate from the Standing Orders relating to guillotines and the Business Committee. It also recommended that "all programme motions introduced under our proposals should contain provisions that proceedings on any particular day should be concluded at about 10 pm (or 7 pm on a Thursday)". The Sessional Orders recommended in the report were approved by the House on 7 November 2000 and took effect at the start of session 2000-01.

Programming after December 2000

  8.  The most notable feature of those Sessional Orders (apart from their inevitable length and complexity) was that, whereas the July 2000 report of the Modernisation Committee had still referred to "agreed programming" and had clearly stated that the existing procedures covering guillotine motions would continue to be available for those occasions when agreement could not be reached, the Sessional Orders did not make agreement a prior condition for the operation of programming at all. Throughout session 2000-01, all programmes were imposed by the Government without consensus; and in all but two cases (one of which was on an agreed measure and the other on a measure which was not intended to complete its passage before the election[6]) the Motions were divided upon when moved in the House. Of course that session was always expected to be curtailed by a general election, and the pre-election atmosphere and the imperative that bills should make rapid progress were factors in the situation. But it was difficult to escape the conclusion that a reform which had originally been proposed as a way of securing a fair balance between the interests of the Government, the Opposition and other sections of the House and ensuring adequate consideration of all parts of each bill had become just another weapon in the Government's armoury for managing the business of the House. The Opposition's role was limited to influencing the detailed allocation of what they generally regarded as the inadequate total time allowed for consideration in committee and on report.

  9.  I acknowledge that the Opposition has to share a degree of responsibility for this disappointing outcome. The stated refusal of many Opposition Members to support almost any aspect of the modernisation agenda or even to engage in constructive discussion about them was a discouraging background to the Committee's inquiry in 2000. But the Government's failure at that time to offer any significant concession in return for the substantial advantages of guaranteed delivery of its business and no late sittings gave no indication of a commitment to meeting the original aspiration of reform.

The new Parliament

  10.  In the new Parliament revised Sessional Orders were adopted. The extended length of the current Session (June 2001 to October 2002) has also reduced pressure on timetables. The Sessional Orders still leave the Government with the whip hand, but the revisions have opened up the possibility of greater flexibility in the operation of particular programmes.

  11.  In recent weeks there have been welcome signs of a willingness to make use of this flexibility in response to representations. The report date for the Standing Committee stage of the Employment Bill was extended and the number of days provided for the Report stages of the Education Bill, the Adoption and Children Bill and the Commonhold and Leasehold Reform Bill [Lords] was increased. Even so the general effect of programming has been to secure the passage of bills through the House in shorter periods of time than was historically the case. Not only has the number of sittings of Standing Committees been limited but it has also been the case that Committees have met with the minimum delay after second reading with four sittings routinely scheduled each week, making it difficult for Committee members to establish proper contact with outside interests wishing to lobby them about the detailed provisions of a Bill. There have also been many cases, both in Standing Committee and on report, when substantial parts of the bill and numbers of groups of amendments remained undebated when the final knife fell. I understand that the Committee has been provided with the relevant statistics.

  12.  The insistence of the previous Modernisation Committee that "all programme motions . . . should contain provisions that proceedings on a particular day should be concluded at about 10 pm (or 7 pm on a Thursday)" has been a major factor contributing to this truncation of debate. Programme orders, even for quite substantial Government bills, have typically provided for the report stage to be brought to a conclusion at 9 pm and third reading at 10 pm. If, for example, a private notice question is granted on that day and is followed by a ministerial statement, the report stage may well not begin until about 5 pm, leaving just four hours or so for consideration of the selected amendments. With the best will in the world, such a time allocation is often quite inadequate and tends to operate particularly harshly on minority and backbench interests.


Programming Sub-Committees

  13.  It is also worth reviewing the experience of programming in Standing Committees, and particularly the work of Programming Sub-Committees. On the whole they have operated with fewer procedural problems. It can be unsatisfactory for the initial meeting of a Programming Sub-Committee to be held to agree the programme and the order of consideration of a bill on the morning of the first meeting of the Standing Committee; the Standing Committee may then convene without full knowledge of the proposed programme or of the proposed order of consideration. Such meetings have been particularly problematic when there have been no pre-meeting discussions to establish understanding between the parties.

  14.  Discussion (in the sense of genuine interchange between parties/participants) in Programming Sub-Committees has been sparse. There is no evidence of any consistent practice of prior consultation with Opposition parties.

  15.  Programming Sub-Committees generally do not meet after the first meeting except to make essential changes relating to internal knives or sittings or to give effect to changes decided by the Government. Where there is a wish on the part of the Opposition to move internal knives, the Government has generally facilitated such proposals. To date, however, Programming Sub-Committees have generally not provided a forum for reviewing the overall operation of the programme, the desired date for the conclusion of the Committee stage and the length and distribution of time for report stage, matters which they are empowered to consider under Sessional Order C.

The chairing of Programming Sub-Committees

  16.  The position of the Chair of a Standing Committee has not been called into question as a result of their taking the chair of Programming Sub-Committees. On one or two occasions, it has been difficult to find a Chairman for a Programming Sub-Committee of which little notice has been given, particularly on a Monday evening; a longer notice period for the first meeting would be desirable—which would also facilitate discussions between the parties.

Effects of internal knives

  17.  The anticipation of internal knives during proceedings has affected the course of debate on a bill. There have been examples of Members either spinning some debates out so as to ensure that a knife bites or, conversely, skipping through debates faster than they would wish so as to ensure that particular amendments are debated before a knife falls.

  18.  Of course, any intention on the part of any one opposition party to get to a certain point at a certain time also needs the cooperation of the other parties. For the time to be utilised most effectively, there needs to be active cooperation between the whips or representatives of all parties on a Committee. It is important that the Government, as well as the Opposition parties, seek to make progress and do not simply rely upon the falling of arbitrary knives to guarantee progress of a Bill.

  19.  On bills where there has been a large number of internal knives, problems have been magnified: it has been more difficult for Committees to keep up with the programme because there has been less flexibility to reduce debate on some clauses to allow for more debate on others. Whips have been willing to move or suppress knives, but often have decided to do so late in the day, when it has been difficult to reorganise accordingly. Where the pressure created by internal knives has resulted from the inadequacy of the total time provided, such changes of course do no more than postpone the problem. It should also be pointed out that the current sessional orders allow no flexibility in the falling of knives when a Standing Committee has to be suspended for a division in the House.

Knife procedure

  20.  The technical operation of Sessional Order D for putting questions under a knife has not given rise to any problem in standing committees, but a number of amendments could be proposed to this and the other Sessional Orders to confirm established practice.

Committee of the whole House

  21.  Because Committee of the whole House Bills are generally comparatively short, programming has not been a significant problem except in the case of the "emergency" Anti-terrorism, Crime and Security Bill. In that case, the position of the Chair in selecting amendments was constrained by the knowledge that so little time was available for the Committee to deal with a large number of clauses and amendments raising important principles.



  22.  If the basic idea behind the concept of programming has been to achieve balanced consideration of legislation, progress to date can frankly and brutally be described as nil. The impartial observer, comparing the situation now with the situation 10 years ago, would be bound to ask what had changed. Except by chance or where an unusual degree of cordiality has existed, bills are scrutinised no more comprehensively than hitherto. In its supposed main purpose programming itself has made not an iota of difference. What has happened as a result of recent changes is that the Government gets its legislation with less delay and Members go home earlier. It would be hard to claim on this evidence that scrutiny has become more rigorous.

  23.  In truth discussion of this subject over the years has been mixed with a liberal measure of hokum. It is rare for a Government which commands a majority in the House of Commons not to be able to obtain its legislation within the bounds of a normal session and usually by the dates it has set (although not always published). If delay is the Opposition's main weapon, the evidence of history shows it to be a pretty ineffective instrument. In general a Government is entitled to get its legislative programme through the House, but only after justification in the face of challenge and scrutiny from the Opposition and, sometimes, backbench sources. Equally an Opposition cannot routinely expect to defeat bills, but it is entitled to have an adequacy of time to test them in debate.

  24.  There is little difference between a programme and a guillotine if there is no shred of agreement between the two sides of the House. Programming without consensus (reluctant or otherwise) could be argued to be meaningless. If at the same time there has been no increase in the proportion of a bill which actually receives detailed scrutiny, the benefits of the previous deliberations of the Modernisation Committee appear extremely meagre when measured against stated purpose.

Ways forward

  25.  If there is to be a real improvement in the quality and scope of scrutiny related to programming both Government and Opposition must abandon their entrenched positions. Perhaps the starting-point should be an agreement on the parliamentary calendar. Whatever obfuscation and bluster is heard on one side and the other, everyone knows that there is an overwhelming desire to have breaks at set times so that family and constituency demands can be accommodated. Other Parliaments have not found it essential to play an endless guessing game. The current Leader of the House has shown commendable initiative in giving longer notice of recess dates. Just as Parliament can be recalled during a recess if occasion demands so could a sitting or a session be extended by a day or two if an emergency arose.

  26.  Once a session has been "programmed" in this way, it ought to be possible to have more open planning of how it is to be filled. If tradition is to be observed, the usual channels might be the forum for settling this global approach. A certain number of days would be allocated to Government legislation. After particular bills have been published the question of detailed programming would arise. This should not be left to the usual channels. Whatever their other virtues, the usual channels do not represent the backbenches and the adequacy of their representation of the minority parties has not been without question.

  27.  Programming is a procedure which is capable of being used constructively and consensually, in the interests of balanced and effective scrutiny. Equally it is a procedure which is capable of being used destructively, merely as a routine guillotine to make life more comfortable for the Government and its supporters and without adequate regard to other interests in the House. For that reason, those committees and outside commentators who originally advocated the systematic timetabling of Government legislative business envisaged that such a system would be operated through a representative committee with a degree of independence from Government and a degree of transparency in its deliberations. Most developed parliaments have such a body. In my submission to the Modernisation Committee in the last Parliament I betrayed some interest in the Rules Committee of the United States' House of Representatives. I believe that such a vehicle would repay study by the Modernisation Committee. If it is indeed rare that an Opposition can overturn as opposed to amend Government legislation, a Rules Committee could be the body in which their case for extended scrutiny could be heard. It would also allow for voices other than those of the Official Opposition to be heard.

  28.  Alternatively, Programming Committees and Sub-Committees should perhaps be permitted to set the overall length of time for proceedings and not just the internal division of a time frame set by the Government in the original programme order. The Sessional Orders are already flexible enough to allow for the possibility of a programme motion which (for example) provides for proceedings in standing committee to be programmed but does not set a fixed date by which the bill is to be reported out of the standing committee. So far, however, the Government has not been willing to concede that degree of flexibility to Programming Committees and Sub-Committees.

  29.  Much the same point can be made about report stages. Sessional Order B provides for the appointment of a programming committee, chaired by the Chairman of Ways and Means, for any bill which is to be programmed in committee of the whole House or on report and third reading. But the Government's normal practice has been to disapply this provision for the report stage and third reading of bills which have been reported out of standing committee. The reason for this is not clear; and it has had the disadvantage that there has been no forum for agreeing internal divisions of the available time. This has sometimes led to problems, particularly where for larger bills two days have been set aside for report stage and third reading. On the Education Bill, for example, only five debates were held out of a possible 19, no intermediate knives having been set, apart from third reading. Programming committees for report stages should perhaps be the norm rather than the exception.

  30.  In paragraph 12, I mentioned the problems that often arise when a report stage which has been programmed to terminate at a fixed hour is squeezed by extended proceedings on Private Notice Questions or Statements. It may be that, in its wider consideration of sitting hours and the arrangement of business, the Modernisation Committee will recommend a fixed hour for the House to enter upon its Main Business for the day. Failing that, some degree of flexibility needs to be built into programming so that proper legislative scrutiny is not unreasonably squeezed out by competing demands. The programme order for the report stage of the Proceeds of Crime Bill[7], which was expressed in terms of periods of time rather than clock hours, provides a model which should perhaps be generally adopted. Similarly, the assumption that a Bill should be allocated either one or two full days for report and third reading may have led to Bills that could profitably have had more than one day but less than two full days not being given adequate time.

Related issues

  31.  It is impossible to discuss the scrutiny of Government legislation and the amount of time allocated to it without reference to certain other considerations. The extent to which pre-legislative scrutiny becomes the norm and the length of the subsequent interval before a bill commences its passage may both be factors influencing the extent and shape of an optimum programme. As no-one can entirely predict the degree of public interest which a piece of legislation can generate there should be an element of flexibility in a programme to cope with circumstance. This must imply a willingness on the part of Members on some occasions to depart from their normal hours of sitting. I have already referred to how a programme can be structured to take account of statements and PNQs. In return for what might be seen as the prize of a fixed calendar some late hours might not be thought to be too great a sacrifice.

  32.  If the House wants to have greater foreknowledge of what it is discussing and when; and if it wants to satisfy those whom it represents that it is giving proper priority to the quality of legislation which it enacts, there has to be give and take on all sides. Up to now that has not been evident.

Sir Alan Haselhurst MP

16 April 2002

6   The Bills were the Rating (Former Agricultural Premises) Bill and the Adoption and Children Bill. Back

7   26 February 2002. Back

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