APPENDIX 47
Memorandum from Mr Paul Tyler CBE MP and
Mr Andrew Stunell MP
PROPOSAL FOR A LEGISLATIVE BUSINESS COMMITTEE
INTRODUCTION
1. The tension between Parliament's roles
as legislature (where it is charged with making law, primarily
at the behest of the executive) and scrutiniser (in which it becomes
the focus for scrutiny of the Government's policies and the forum
in which the concerns of the population at large are represented)
has increased considerably as both the quantity of legislation
and the power of the executive has increased.
2. The House of Commons is very unusual
in mature parliamentary systems in that there is not even an informal
mechanism for round table discussions of options for handling
the Business. Rather, there are an unknown and undocumented series
of bilateral discussions through the "Usual Channels"
with no measure of their usefulness or effectiveness. Even within
the United Kingdom, its three young, devolved legislatures—the
Scottish Parliament, the Welsh Assembly and the Northern Ireland
Assembly—have some form of Business Committee in which discussions
can be held over the parliamentary timetable.
3. We believe that a key challenge facing
both the executive and the legislature is the need to develop
a mechanism that strikes a balance between the prerogative of
the Government in getting the legislation it is committed to implementing,
and the right and duty of parliamentarians to scrutinise the policies
and actions of the executive.
4. Time has traditionally been a blunt weapon
wielded by Government and Opposition to achieve objectives that
are either destructive of legislation or the process of scrutiny.
We believe that a more sophisticated view is required that sees
time and its management as a tool for the forensic examination
and constructive amendment of legislation in the House of Commons.
5. To that end, we contend that a Legislative
Business Committee is vital to satisfy the responsibilities
and duties of parliamentarians, whether as members of the executive
or the legislature.
CONTEXT
6. We continue to accept the pre-eminence
of the first three "essential requirements of a reformed
system" for managing the scrutiny of legislation:
(a) The Government of the day must be assured
of getting its legislation through in reasonable time (provided
that it obtains the approval of the House).
(b) The Opposition in particular and Members
in general must have a full opportunity to discuss and seek to
change provisions to which they attach importance.
(c) All parts of a Bill must be properly
considered.[15]
7. We have also seen some very positive
developments since the Procedure Committee recommended in 1985
the setting up of a Legislative Business Committee to timetable
individual Bills likely to last over 25 hours in length. For instance,
the Government have more or less implemented the Jopling recommendation
related to what the House knows as programming through a hybrid
of the two options suggested:
We recommend that the House should take steps to
apply timetable provisions to all stages of Government bills after
second reading either by setting up a new committee to
deal with the allocation of time to all bills when they are committed
to a standing committee or by making arrangements for the standing
committee to which each bill is committed to allot the time for
its further consideration by the committee and for its remaining
stages.[16]
8. This arrangement, whilst still in need
of improvement, is a welcome improvement over the haphazard and
relatively opaque nature of negotiations that operated previously.
9. However, the continued engagement of
the House, political parties and interested experts with modernisation,
and the prospect of reform of the House of Lords, present a unique
opportunity for timetabling to be taken beyond the issue of individual
Bills to a broader look at the parliamentary timetable.
10. The issue of broader timetabling has
an established pedigree of consideration by both members and officials
of the House of Commons and outside expert investigations.
11. The Jopling Report recommended "that
the dates of the Christmas, Easter and Whitsun recesses be announced
at the beginning of each session"[17].
In evidence to the committee Alistair Darling recommended that
the Committee "consider timetabling of all business"
and indicated that "[he] would favour as much notice being
given [of business] as possible". The Ripon Commission, published
by the Hansard Society in 1993, recommended that "Government
should move towards the adoption of a two-year legislative programme"[18]
and noted that "if parliamentary scrutiny of bills and delegated
legislation is to be improved, as many Members wish, much more
extensive formal-timetabling of all legislation will have to be
accepted."[19]
12. The Modernisation Committee's 3rd Report
from 1997-98 recommended experimentation with the carry-over of
public bills through the use of sessional orders.
13. More recently, the Norton Commission,
appointed by the Leader of the Conservative Party in July 1999
and reporting in July 2000 after considerable evidence-taking,
made the following observation:
"Parliament has experimented with the carry-over
of bills from one session to another. We believe that this should
be the norm, not the exception, subject to the proviso a bill
must be enacted within fourteen months of the date of its second
reading."[20]
Norton also proposed that timetabling of the
days available to a particular bill be undertaken by a Legislation
Programme Committee.[21]
14. In December 2000, the Hansard Society's
Scrutiny Commission published a pamphlet by Greg Power in which
he argued that all business should be timetabled and that business
should be arranged formally by a `bureau', giving the opposition
a role in the organisation of the business timetable.[22]
15. The Leader of the House has demonstrated
a continuing commitment to establishing a different calendar basis
for the scrutiny of legislation. In his speech to the Hansard
Society in May 2001 the Leader of the House said that the House
should "set ourselves the ambition of organising the legislative
programme on a `pipeline' principle. Ideally this would involve
a two year rolling programme." This was further explored
in his consultative memorandum to the Modernisation Committee
in December 2001:
21. The Commons would have much more
opportunity to carry out scrutiny of legislation if Bills were
carried over from one Session to the next. Plainly there must
be a time limit on the period within which any Bill must complete
all stages, and the quid pro quo for greater flexibility
on the carry-over between Sessions should be a requirement that
all Bills must complete all stages within a fixed period of months.
16. In M115 to the Modernisation Committee
(memorandum on the Programming of Government Business), 2001-02,
the Chairman of Ways and Means, Sir Alan Haselhurst, makes the
following suggestion to improve scrutiny: "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". He also makes some very important observations
on the point of timetabling of Business as a whole:
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 . . .[23]
17. In his speech to the Hansard Society
in May 2002 the Leader of the House reiterated his desire for
"a mechanism to permit the carry-over of a Bill from one
parliamentary year to the next, to allow a longer time for Parliament
to carry out scrutiny".
Legislative Business Committee Function and Operation
18. We believe that it is important to consider
the issue of carry-over in the context of the more general timetabling
of parliamentary business.
19. We maintain the view that we need an
evolutionary approach to reform. We also maintain the view that
in the interests of better scrutiny, the Opposition's forfeiting
of its capacity to undermine the Government's day requires the
Government to take a view of the legislative calendar that effectively
forfeits its ability to dictate the parliamentary year without
reference to Parliament. Time is a useful tool of Government and
Opposition, but only when its management is used to give effect
to improved scrutiny—not just express the frustrations of
one side or the other. If the House collectively "owns"
the basic timetable then it should reduce (if not completely eliminate)
the need for such a negative approach to the consideration of
the Government's legislative programme. Once again, it reinforces
the understanding that, providing the Government commands a majority,
it has a responsibility and duty to attempt to secure the completion
of scrutiny of its legislative programme. Conversely, opposition
parties and backbenchers have a right and duty to ensure that
each bill is well and truly examined.
20. In the first instance, there should
be speedy implementation of the recommendation from the Modernisation
Committee that "There should be discussions at the earliest
possible stage of the Government's legislative proposals as a
whole. We propose therefore that the Government should begin informal
talks with all parties just after the Queen's Speech."[24]
21. Secondly, we envisage the setting up
of a Legislative Business Committee that would consider a recommendation
on the terms of the parliamentary year proposed to it by Government.
This would include identifying and agreeing the recesses, non-Sitting
Fridays, days for Private Members' Business, the time available
for the consideration of select committee reports, the sittings
of the House devoted to Opposition Business and the time available
within a fixed number of weeks for the Government's legislative
programme.
22. The Legislative Business Committee could
then consider an outline timetable for the introduction of legislation,
again proposed by Government and subject to advice from counsel.
23. These two exercises, undertaken as soon
after the Queen's Speech as possible, should then enable the Legislative
Business Committee to become the vehicle by which a view of the
detailed timetable could be taken. This would include the Business
for the following week, the Provisional Business for the subsequent
week and, hopefully, an outline of Business expectations in the
third and fourth weeks.
24. As part of that process, the Legislative
Business Committee could consider which Bills ought to be subject
to the experimental application of Sessional Orders to carry them
over from one session to the next and determine the "life
span" of the Bill. Effectively, the Legislative Business
Committee, having identified the date for Second Reading, would
establish the "out date" by which a Bill should emerge
from its Commons processes. It would also be the vehicle by the
House expressed a view on the scheduling of Lords amendments.
25. It is important to note that we envisage
the process of programming individual Bills continuing in much
the same way as it does now, but with the relevant Committees
and sub-Committees paying due regard to the framework timetable
laid down by the Legislative Business Committee.
26. In each instance above, it would be
for the Legislative Business Committee to deliberate upon proposals
put to it by the Government, attempting to reach an agreement
rather than force the issue to division.
27. It is important to recognise that the
Government's ability to "guillotine" legislation would
remain a reserve power (or "safety valve") in the event
that the parliamentary timetable or individual Bill timetables
cannot be agreed.
28. We would hope that, given time, the
Legislative Business Committee might more properly come to be
recognised as a Parliamentary Business Committee, not merely concerning
itself with legislation but becoming a vehicle for the House of
Commons to manage its overall timetable more rationally, making
creative use of the facilities available for scrutiny (such as
Westminster Hall), and, whilst continuing to acknowledge the unique
and privileged position of the executive, ultimately safeguarding
the rights and responsibilities of all its members.
Suggested Composition
29. We have no fixed view over the composition
of the Legislative Business Committee, though it should be chaired
by a non-voting representative of those presiding over proceedings
(most probably the Chairman of Ways and Means). It should also
include in its membership the Leader of the House or his/her representative
and business managers from the first and second opposition parties.
It should also consider whether it wants to include a representative
on behalf of the minority parties and senior backbench parliamentary
experience, perhaps from representatives of the Chairman's Panel
the Liaison Committee and/or party nominations.
30. Whatever its final composition, there
will be a need for close liaison between its members and the parties
through the `usual channels', and discussions with the Liaison
Committee and the Chairman's Panel, to ensure that business can
be timetabled in a way that addresses the concerns of Members
of Parliament.
The Prospect of Lords Reform
31. Whilst the Standing Orders of one House
cannot bind another, their interpretation and application, and
the general conduct of Business in one House (notably the management
of time), establishes a causal relationship with the other. We
contend that a Legislative Business Committee would help confirm
the primacy of the House of Commons over the House of Lords and
its reformed successor. The initiative on the parliamentary timetable
would be clearly set from the House of Commons.
Conclusion
32. With the wealth of expert opinion and
research available, from the Conservative Party's Norton Commission
to the Hansard Society and Greg Power, along with so much evidence
from other mature democracies, it is difficult to understand the
unique objection to Westminster experimenting with some form of
round-table legislative timetabling.
33. It is our conclusion that both Government
and Opposition can only benefit from a more considered and long-term
determination of the parliamentary calendar and that the House
should be encouraged to begin with some form of experimental timetabling
at the earliest opportunity.
June 2002
15 1st Report of the Select Committee of Modernisation
of the House of Commons, HC190, 1997-98, The Legislative Process.
pgvi (reiterated in Memorandum from Mr Paul Tyler and Mr
Andrew Stunell, Appendix 4, 2nd Report Modernisation Committee
1999-2000, Programming of Legislation and Timing of Votes). Back
16
Report of the Select Committee on Sittings of the House, HC 20,
1991-92, pg xxi. Back
17
Report of the Select Committee on Sittings of the House, HC 20,
1991-92, pg xxv. Back
18
Report of the Ripon Commission, Hansard Society 1993, Chapter
7, para. 483. Back
19
Report of the Ripon Commission, Hansard Society 1993, Chapter
7, para. 512. Back
20
Strengthening Parliamant, Report of the Commission to Strengthen
Parliament, July 2000, pg 22. Back
21
Strengthening Parliament, Report of the Commission to Strengthen
Parliament, July 2000, pg 22. Back
22
Creating a Working Parliament: Reform of the Commons Chamber,
Hansard Society's Scrutiny Commission, 2000. Back
23
Programming of Government Business, Memorandum from the Chairman
of Ways and Means, M115 2001-02, para. 27. Back
24
2nd Report of the Select Committee of Modernisation of the House
of Commons, HC589, 1999-2000, Programming of Legislation and Timing
of Votes, para. 18 pg viii. Back
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