APPENDIX 42
Memorandum from the Chairman of Ways and
Means
PROGRAMMING OF GOVERNMENT BUSINESS
INTRODUCTION
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.
A. BACKGROUND
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.
B. PROGRAMMING
OF COMMITTEE
STAGES: DETAILED
POINTS
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.
C. CONCLUSIONS
AND PROPOSALS
Assessment
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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