House of Commons - Procedure

Select Committee on Procedure Fourth Report

2 Programming: the general principles

11. The Modernisation Committee's latest Report sets out some principles which it applies when considering programming, namely:

a) "The Government of the day must be assured of getting its legislation through in a reasonable time (provided that it can obtain 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;

d) Bills need to be prepared properly so as not to require a mass of new Government amendments."[17]

We believe that these principles form a useful starting point, although we note that paragraph a) can be interpreted in a variety of ways and is not universally accepted.[18]

Cross-party agreement

12. We have already drawn attention in paragraph 4 to the fact that the Modernisation Committee's expressed intention that programming should be an activity agreed between the parties (with allocation of time motions remaining available if agreement were unforthcoming) is not recognised in the procedure set out in the sessional orders. In fact, if anything, programming has the capacity to be a more draconian form of allocation of time, given the lack of the need for a three-hour debate on each occasion when it is to be used and the provisions for various questions to be combined if put after the allocated time has expired.

13. By the time that the sessional orders were passed in November 2000, it was clear that the principle of agreed programming had broken down. Eleven bills were covered by agreed programme orders in 1997-98, but only four in each of 1998-99 and 1999-2000.[19] Mr Graham Allen, who was a whip at the time, ascribed the breakdown to a lack of willingness by the Opposition Whips to negotiate on the timetable within an overall limit;[20] Sir George Young to a lack of agreement on the "out-date" from standing committee.[21] Mr Heald said that "the Government refused sensible requests for flexibility and ended up guillotining everything" … "every time we could not reach agreement we got guillotined".[22] He suggested that the sessional orders were completely unacceptable, but "if we went back to what preceded it, then we could, with goodwill, make it work".[23] He expected that voluntary agreements on out-dates would be achievable, and that the majority of bills would not need to be programmed.[24]

14. Mr Hain, on the other hand, thought that programming was working well and that the Government had recently made further efforts to achieve a consensual approach, pointing out that one third of the programme motions of the current session had been agreed to without division.[25] Mr Phil Woolas stressed the importance of the relationship between the whips on standing committees in making programming work.[26]

15. Referring to complaints about undebated clauses and schedules, Mr Hain said that "there was never a golden age of scrutiny of all bills, every clause in every bill";[27] the Modernisation Committee's 2003 report, which also says this, goes on to say: "on the contrary, prior to the introduction of programming, there was deep and widespread dissatisfaction with the haphazard nature of scrutiny", which had led to proposals for various types of timetabling.[28] We challenged this version of events, given that, before programming, only a small proportion of bills were guillotined, but Mr Hain pointed out that often clauses were undebated as a result of informal arrangements.[29] Although some clauses or schedules of non-guillotined bills were not debated, we believe that this was usually because Members had no points to raise, rather than because they were prevented from debating them.

16. Mr Hain said that he saw programming as something to be operated on legislation in general rather than "on an ad hoc basis".[30] He described programming as "a win-win when it operates properly and, by and large, it is operating properly".[31]

17. The Clerk of the House suggested that, although there were procedural changes of detail which could be considered (see paragraph 43), we should concentrate on how the procedures were being used and the safeguards applying to their use.[32] The Chairman of Ways and Means wrote: "In my view, no procedural mechanism, however ingenious, will work unless backed by the political will to make it succeed".[33]

18. We believe that, if programming were used as originally envisaged by the Modernisation Committee, namely only when there is cross-party agreement, it would have the potential to be a more effective way of considering, and improving, legislation, and we regret that it has come to be seen as the same as the guillotine, though more widely applied. We recommend that the sessional orders should be changed to allow programming motions to be decided without debate only with cross-party support; on other occasions the Government would, if necessary, have to justify such a motion in a one-hour debate. In exchange, we would expect parties to adopt a constructive approach to programming.

Programming too soon?

19. If proceedings on a bill are to be programmed, the current sessional orders require a programme motion to be tabled in advance of its second reading and to be put to the House immediately following the decision on second reading.[34] Mr Heald expressed the view that this was too early to make decisions about the length of the committee stage.[35] The Chairman of Ways and Means suggested that we should consider whether the "out-date" should be left out of the programme order and be suggested by the programming sub-committee "once the pattern of debate for a particular bill has become clear".[36] The Hansard Society also raised the possibility of programme motions not being moved until after the standing committee had held four sittings.[37]

20. Mr Hain, however, said that the timetabling of an individual standing committee "… has to be taken in the round with the overall management of a full series of bills to go on", but that the date originally fixed could be changed later if necessary.[38]

21. We believe that it is sensible to retain the initial practice of setting an "out-date" for committee in the initial programme motion put to the House, but believe that this should be taken 48 hours or more after second reading to allow the "out-date" to take account of the second reading debate, and any recommendations made, and with the possibility of voting on an amendment (without debate) before the main motion; in addition, we expect the Government to be flexible about adjusting the out-date in the light of experience during the committee stage. This is particularly important if substantial Government amendments are tabled, but may also be necessary for other reasons.

The role of standing committee chairmen

22. The programming sub-committee of a standing committee is chaired by one of the chairmen of the standing committee (who are appointed by the Speaker from the Chairmen's Panel). In its 1997 Report, the Modernisation Committee envisaged that a programming sub-committee should:

take into account the need for all parts of the Bill to receive proper consideration and the rights of the Opposition and other parties and Members to be given adequate time to discuss matters to which they attach particular importance.[

The Chairmen's Panel pointed out that if this new requirement were introduced, it would fall to the chairman to ensure that it was carried out.[40]

23. The Modernisation Committee did not repeat this recommendation in its 2000 Report and it did not appear in the sessional orders. Nevertheless the Chairman of Ways and Means told us that:

Sir Alan also, however, stressed the need to ensure that the existing impartiality of the chair should not be jeopardised by this.[42] The possibility of the chairman taking the initiative was supported by Mr Paul Tyler,[43] Sir George Young and Mr Mark Fisher.[44]

24. The Clerk of the House expressed the view that a chairman could already take the initiative in reconvening a programming sub-committee, although Mr Alan Sandall thought that this would happen only if the chairman "was reasonably sure that the meeting would in fact produce an agreement".[45] Mr Peter Pike told us that he sometimes suggested that the whips should discuss whether to call for a meeting.[46] Mr Woolas said: "if a chairman wanted to suggest to the usual channels that the timetabling motion was not working, they do so",[47] although perhaps the Government does not consider this much of an imposition, as Mr Hain pointed out: "since the Government can count on the majority of the Programming Sub-Committee it is hardly necessary for us to resist calls for it to meet …".[48]

25. Chairman already have the power to intervene when necessary and some have already done so. We believe that this is a suitable activity to assist with orderly consideration of the bill, and that such initiatives behind the scenes should not give rise to accusations of partiality.

Dispensing with a programming sub-committee

26. During our consideration of a draft of this Report, the issue arose as to whether a programming sub-committee meeting is really necessary if the proposals which it is to consider have already been agreed through the usual channels. Although there may be occasions when such an agreement may turn out to be to the detriment of other members of the Committee, there is an obvious method of testing this. A Standing Committee should be empowered to consider a Government motion embodying any proposal which could have been reported from a programming sub-committee, without the need for a sub-committee meeting, unless any member of the Committee objects when such a motion is moved.

Pre-legislative scrutiny

27. Successive Modernisation Committee reports have advocated pre-legislative scrutiny, and the Government is publishing increasing numbers of bills in draft to allow this. We asked the clerks whether such scrutiny shortened the time required to consider the bill itself later on: the general opinion was that, while the existence of the relevant committee's Report on the pre-legislative scrutiny dealt with many issues which might otherwise have been raised by probing amendments at committee stage (especially if members of the previous committee were appointed to the standing committee), other issues would arise because Members were better informed (and outside bodies would be better able to brief them). The conclusion was that the consideration of the bill would be better, rather than briefer.[49] This was also the view of Mr Hain.[50] We believe that pre-legislative scrutiny is desirable in itself, but it does not have any particular implications for the system of programming.

17 HC 589 (1999-2000), para 5; HC 1222 (2002-03), para 11 Back

18 Mr Richard Shepherd challenged the assertion that "the Government has a right to its business" (Q 157). Mr Mark Fisher thought that the business of the House should be "a matter for the House itself by agreement with the Government but not by imposition of the Government" (Q 145). Back

19 Clerk's memorandum, Ev 2, para 8 Back

20 Q 141 Back

21 Q 153 Back

22 Ev 61; Q 187 Back

23 Q 189 Back

24 Q 188, 191 Back