Examination of Witnesses (Questions 20-39)
11 FEBRUARY 2004
MR ROGER
SANDS, MR
DOUGLAS MILLAR
AND MR
ALAN SANDALL
Q20 Sir Robert Smith: What is the difference
between new clauses and how would the Opposition prioritise?
Mr Millar: Presumably, they know
which new clauses they want most. As everybody knows when a bill
is going to report, they table their new clauses very soon after
the Committee Stage has finished and everyone knows that, without
intervention, the bill will be considered in the order new clauses
and then amendments to clauses. That is how it is done, with Government
new clauses taking priority at the beginning.
Q21 Sir Robert Smith: If it is a bill
that has highlighted the need for considerable areas of debate
on new clauses, is there no way of breaking up the time? Presumably
that would require a Programming Committee.
Mr Millar: Indeed. The Government
can table an order of consideration motion or a programme motion
on their own initiative for Report Stage.
Q22 Sir Robert Smith: But for the Opposition,
who has priorities to influence that?
Mr Millar: On a number of occasions
I have known the Government to propose programmes at the behest
of the Opposition.
Mr Sands: The background to what
the Clerk Assistant was saying is that on many bills there is
an observable tendency for the Opposition, and sometimes other
Members as well, to be more interested not so much in the bill
that is there and amending it, but using the bill as a peg on
which to hang other ideas which they would like to ventilate.
That is why we tend to get this proliferation of new clauses at
Report Stage.
Q23 Chairman: So you would like to see
Members of Parliament being more responsible and to table amendments
and new clauses that are directly related to the bill before the
House?
Mr Sands: You tempt me into adopting
your adjective. I think "responsible" suggests people
are being irresponsible, and I would never, ever suggest that.
No, I think it is for Members to decide how the limited time available
to them is best used, and if they decide to devote their time
to new clauses, it at any rate suggests a feeling that the bill
as it stands is broadly okay; there is not one big thing they
really want a go at. It is rather like people who fail to fill
in a questionnaire; you assume that they are broadly content.
If they do not seek to amend the bill as it stands, you assume
they are broadly content with it.
Mr Millar: The Speaker will take
into account, Chairman, the need to get as much debated as possible
within the available time, and if something has been done to death
in standing committee, as you know, it is not normally the case
that that matter will be returned to on Report. Clearly, if there
are propositions being proposed for Report Stage which are central
to the bill, and others which are not quite so central, the Speaker
will bear that in mind in making a selection.
Q24 Mr McWalter: I certainly, as you
will gather, feel pretty impatient at the way many of these things
operate. The context of my next question is looking at the French
Parliament, which has just had the debate about the wearing of
the hijab in schools, and 130 people were called to speak in that
debate, whereas in this Parliament last week we had a bill where,
by the time the front benches had spoken, it was time for wind-up.
I think there is a huge contrast between the way we are doing
things. I think it needs to be improved. One of the things I would
just like to ask is whether you feel that the operation of the
programming orders is clear to Members, or do Members just seem
to be totally confused at how we could have arrived at a situation
where there was no room for any back bench contribution at all?
Do people understand how this has arisen, do you think, and what
their rights are in this regard?
Mr Sands: Which bill was this?
Q25 Mr Burnett: There was a debate on
the Local Government Settlement. It was not a bill as such; it
was an order, and it literally was a disgrace. One hour and 52
minutes, and many people wanted to speak. The Minister generously
took lots of interventions, but nevertheless, he spoke for 52
or 53 minutes.
Mr Sands: The question of time
limits on ministerial speeches is something that I know has been
considered from time to time, but has never been written into
our Standing Orders, and it occasionally agitates the occupants
of the Chair when we have our morning conferences and post mortems.
Mr McWalter: This is not really the point.
The Minister, as was said, in fact used his time comparatively
well to try and let other people in, but the issue was that two
hours had been allocated for an issue governing 25% of public
expenditure, with huge repercussions over hundreds of governmental
functions within each of our constituencies. It is the allocation
of the two hours that Members feel completely frustrated about,
about how they influence that. Again, if we did have a hijab-type
debate, there would be a day allocated for Second Reading and
huge numbers of Members who wished to speak would be excluded.
We need some way of trying to organise it so that, where there
is clear evidence that there are a lot of people who want to make
a contribution to the debate, the system is responsive.
Mr Burnett: Can I just make a point?
If you are the governing party, you rule the roost in this place,
and if the Government MPs will allow that to happen, will allow
their Whips to dictate those sorts of timetables—
Mr McWalter: It is about programming.
It is about the powers of those who fashion that schedule. It
is clearest and sharpest when you have a very constrained Second
Reading debate or an order, but those powers, when manifested
in committee, look to be particularly pernicious.
Chairman: We take that point. I share
the concern, and while I was not here last week, I have to say
I was deeply concerned that so little time was given to back benchers
on matters relating to police and local government, which are
critical to every single Member of the House, and too few got
the opportunity to speak. That comes back to the point I put to
the Clerk of the House earlier, that the House itself should have
more say over how it spends its time. But that is another matter.
Q26 Mr Burnett: From your experience
of people wandering into the office saying, "What is going
on?" or coming up to the table, the kind of questions you
are getting from Members, do you feel they understand what programming
orders are about and what is going on, or do you think there is
an element of coming up to you after the event and saying "How
did this happen?"
Mr Sands: I think they understand
in principle only too well what is going on. Sometimes the details
of where a particular amendment is going to come and how divisions
are going to fall are obscure; but that can be the case irrespective
of programming, it has to be said. Even before programming, the
grouping of amendments sometimes caused difficulties for Members.
Q27 Chairman: Or even the non-selection
of amendments?
Mr Millar: That is a matter for
the Chair. It was my experience that when a group of amendments
is of particular interest to a large number of Members—
I am thinking of the amendments on Single Sex Adoption and the
amendments on the Hunting Bill and so on—those Members who
are trying to organise for a particular point of view take advice
in advance and usually know exactly what is going to happen. We
will advise them—within limits, obviously—on their
best tactics to ensure that they can get their point of view aired
on the day. So Members who really wish to know, generally know
how to find out.
Chairman: Can I say from the Chair before
we pass on to John Burnett to question you, I think the Houses
of Parliament have the best clerks of any legislative assembly
or parliament that I know of, and the advice that they give is
always impartial and their service to the House is absolutely
transparent and total.
Q28 Mr Burnett: I endorse what you have
said, and I think we all do, and we are grateful to you. The Clerk
said too much weight, as a general point, is put on procedure.
I very much agree with that. It could and should be significantly
simplified. The point that I think Tony and all of us feel that
the House should take more control over its own business is absolutely
beyond argument. It is a critical point. The Clerk has suggested
three minor amendments. They are not earth-shattering. One is
that there be injury time allowed in standing committee to compensate
for suspensions for divisions in the House. What do you consider
the best way to make that work? Then there is another suggestion,
that the chairman of a standing committee should have discretion
to delay the falling of the guillotine by up to 15 minutes, in
the same way as the end of a sitting can be delayed if the bill
could be finished in that time. Would this be workable, or would
Members press for an extra 15 minutes every time? The third point
is the operation of programming, which we have talked about anyway,
and whether it is clear to Members.
Mr Sands: These were proposals
that were put up to me by the Public Bill Office as a result of
experience in the last session or two, so perhaps I ought to ask
Alan to explain the background to them.
Mr Sandall: There have on occasion
been instances where it is quite clear some time in advance that
the knife is going to fall at a pre-ordained time. It is too late
in practical terms to do anything about it, but perhaps owing
to some defect in the management of the business, the Minister
may perhaps not have been given adequate time to reply to the
debate, and the Committee as a whole might want to hear from him
for another few minutes, but it does not have the option because
the time at which the debate must come to an end has been set
in advance. It might be helpful just to have a little flexibility—15
minutes would certainly cover it—just to allow a debate
to be brought to a more natural conclusion in those circumstances.
Q29 Mr Burnett: Do you think that that
time should be added on to the time for debate allocated for that
day?
Mr Sandall: There is not necessarily
a fixed time allocated for a debate on a particular day, because
the afternoon sitting of a standing committee has no fixed end
time.
Q30 Mr Burnett: I see what you mean,
because it is more informal than that, as it were.
Mr Sandall: Yes. A morning sitting
must finish at 11.25 but an afternoon sitting goes on until the
Whip moves the adjournment.
Q31 Chairman: I have to say, I think
that is quite a constructive and flexible minor adjustment that
the chairman would have within his discretion an extra 15 minutes
maximum, particularly in a case where there has been no injury
time because of what has occurred in the Chamber and the fact
that the business has been suspended while a division takes place.
That does seem to me to be a very constructive, very modest gesture.
You yourselves feel that would be a very sensible proposal to
put forward?
Mr Sandall: We think it might
be helpful on the margins.
Mr Sands: I think as a general
rule, Chairman, we feel that the experience shows that the more
complicated a programme is, the more likely it is to go wrong.
There was a tendency in the early days of programming to have
a very elaborate structure with lots of knives and everybody was
very clever—three-quarters of an hour here, half an hour
there—and it never really worked, for all sorts of reasons.
The more flexible a programme is, or open-weave, if I can put
it that way, with perhaps just a cut-off at part 1 or part 2 of
the bill and so on, the better.
Q32 Chairman: Do you think, in a way,
that in standing committee, Mr Sands, more authority should be
given to the chairmen of standing committees to decide, in the
light of representations made to them, the time from when it goes
into committee to the out-time which has been decided by the House
in the programming motion? Do you think that more authority should
be given to the Committee through the Chairman than currently
is the case?
Mr Sands: The changes made to
the Temporary Standing Orders in 2001-02 did give a lot more flexibility
to the Programming Sub-Committee, and it is always, as I understand
it, within the authority of the chairman of a standing committee
to reconvene the Programming Sub-Committee if he or she wishes
to do so and thinks it would be constructive to do so. So there
is that level of discretion available to the chairman already.
Q33 Sir Robert Smith: So at the moment
the chairman has the discretion to look at the way things are
going and can if he thinks it would be helpful get that Programming
Committee back together to try and make best use of the rest of
the time?
Mr Sands: Or indeed to propose
an extension of the overall out-date. It is noticeable that there
are more occasions this session already when we find a supplementary
programme motion coming to the House, shifting the out-date back
a week or so, which presumably has come from some initiative such
as I have described.
Q34 Sir Robert Smith: Would there be
a record anywhere to date of the Chairs initiating this or whether
it has come through the usual channels?
Mr Sandall: Any standing committee
chairman would be reluctant to convene a Programming Sub-Committee
on his own authority, unless he was reasonably sure that the meeting
would in fact produce an agreement.
Chairman: Can I confirm that, as a chairman
of a standing committee? Alan Sandall is absolutely right. Normally,
the chairman of a standing committee would only take such action
at the request of both sides of the committee, who would see the
good intention and the good purpose of perhaps seeking to extend
the out-date by one further sitting or a couple of further sittings.
Q35 Sir Robert Smith: Just exploring
the role of the chairman a bit further, you have highlighted one
of the questions we need to look at. Could the chairman take the
initiative in representing the interests of back benchers more?
Could this be done informally or would it be enshrined in Standing
Orders? Is there a role for the Chair to be more protective of
back benchers in the committee?
Mr Sands: I have no recent experience
of Programming Sub-Committees. That is when the bill is in standing
committee. I have some slightly out of date experience of Programming
Committees for the whole House, and there I know in the early
days of programming, the current Chairman of Ways and Means made
very clear his feeling that there should always be at least one
genuine back bench member of the Programming Committee, and he
banged the table a bit about that, and it happened. Whether it
had enormous impact in practice on the outcome I would not like
to say.
Q36 Sir Robert Smith: When the Chairs
of standing committees are chairing the Committee, under the current
Standing Orders, they are a completely neutral Chair of that committee,
and the way the House operates, would it be easy in the Standing
Orders to try and steer them towards seeing their role as the
protector of back benchers, and ensuring effective scrutiny of
the executive, or are they really there as neutral Chairs of the
committee?
Mr Sands: I think they have taken
a slightly more proactive role in Programming Sub-Committees than
they would when the full standing committee was meeting, and the
evidence given by the Chairman of Ways and Means on behalf of
the Chairmen's Panel is that it has not in practice interfered
with their impartiality; it has not impaired that in any way.
How proactive they have been in actively speaking up for back
bench interests I do not know.
Mr Sandall: I think that is largely
a question of personalities, but it is easier for a standing committee
to do that in the context of a Programming Sub-Committee, which
operates as a Select Committee like this, sitting round a horse-shoe,
in private, with the doors closed, and perhaps influence can better
be brought to bear in that relatively informal context than in
the more formal setting of the standing committee itself.
Q37 Chairman: I think that is extremely
good advice, Sir Robert, but I think Mr Sandall is right; it does
depend upon the personality of the individual chairman. I happen
to believe that chairmen should take a more positive role in standing
committees because I think they can lead not only to better scrutiny
but to better discipline in the committee as well, which is good
for the progress of legislation. Can I come on to a matter that
we have touched on, Mr Sands: concerns have been expressed by
the Deputy Speaker and the Chairman of Ways and Means, and on
the floor of the House of Commons, that lengthy front bench speeches
in programmed debates—and colleagues around the table today
have reflected that—impede proper and full consideration
of parts of a bill by the House. Is the inclusion in Standing
Orders of provisional limits or guidance on the limits on speeches
from not only back benchers but front benchers as well in programmed
motions and debates a feasible option? I have used the word "guidance"
as well as perhaps "provisional limits". Do you believe
that this would really respond to the concern expressed by Tony
McWalter earlier in our deliberations?
Mr Sands: I do not think you can
put guidance in Standing Orders. A thing is either a rule or it
is not a rule, and the history of this Committee is littered with
what I might describe as pious aspiration-type recommendations.
I am afraid that in the end they do not have a great deal of shelf
life. I suspect that the current occupants of the Chair would
actually welcome some rules about this. You would need to talk
to them rather than to me about that, and this is not limited
to programmed debates, because in a sense every debate is subject
to a time limit; a Second Reading debate is not programmed but
everybody knows it has got to finish at the moment of interruption,
whether 7 o'clock or 10 o'clock, so there is a time constraint
there, and the longer the Minister takes, the less time there
will be for back benchers. What the Chair now finds increasingly
is that, as soon as the scroll goes up on the annunciator saying
that there is going to be, let us say, a ten-minute limit on speeches
in a Second Reading debate, Members see it, get the message, and
leap up to intervene in the Minister's speech and make their point
that way, and of course, that expands the Minister's speech and
the problem gets worse. They do not see an answer to that problem.
Q38 Chairman: Is there an answer?
Mr Sands: They cannot put a closure
on interventions. If a Minister accepts an intervention, the Chair
can do nothing about that.
Q39 Mr McWalter: Chairman, I do not think
there is a problem. That at least allows Members to get their
point over in a very economical and concise way.
Mr Sands: Indeed—well, sometimes,
yes.
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