Examination of Witnesses (Questions 60-79)
25 FEBRUARY 2004
RT HON
SIR ALAN
HASELHURST MP, MR
ROGER GALE
MP AND MR
PETER PIKE
MP
Q60 Chairman: I think we are getting
into some detail. I have to say to Mr Pike that I am not sure
that all amendments are of equal merit. All amendments may well
be in order but they will not necessarily be of equal merit. As
I know Sir Alan would very quickly remind me, the chair has no
view on that. Can I change the direction of our question? Sir
Alan, in your paper you expressed the concern, I think quite rightly,
that lengthy front-bench speeches in programmed debates impede
proper consideration of parts of a Bill by the House and you recommend
consideration of introducing time limits for speeches in standing
committee, including those of a minister. Can I ask you: how would
this work? Would the entitlement of Members to speak more than
once in committee nullify any such advantages, or would you in
fact abolish the right to speak more than once?
Sir Alan Haselhurst: I make the
qualification about the effect of Pepper v Hart, that ministers
now do need to get certain information on to the record. There
is an argument which says that if that is a problem which is causing
the length of a speech to be extended, your committee could consider
the possibility of some document being written into the record:
it would essentially be there, if you like, for subsequent legal
purposes. That is a radical suggestion but I merely throw it out
as one possibility.
Q61 Chairman: Words have been whispered
in my ear that it might be placed in the explanatory memorandum.
Sir Alan Haselhurst: Indeed, there
may be ways round that in order that it would have the validity
that is necessary to satisfy the requirements of Pepper v Hart,
but otherwise it is a matter of consideration whether a minister's
speech should be limited to a certain time, as backbenchers have
had to endure over the years, as it were to set a new pace within
the committee. I think that if a time limit is imposed generally
upon the front bench and back bench, then consideration would
have to be given to whether or not there could be repeat interventions,
and people would have to concentrate more on putting what they
wanted to say into their speech. The only problem, in terms of
the nature of debate in committee, is that sometimes it is the
quick intervention and so on that promotes and develops the debate
in committee. One certainly would not want to rule that out, and
so one might have to take a slightly more generous view of what
constitutes an intervention in the committee if only one actual
major speech was permitted.
Mr Gale: I personally would not
be in favour of curtailing speeches because if the chairman is
doing his or her job properly, then either what is being said
is in order or it is not. If it is not in order, it should not
have been said at all. If it is in order, one hopes it is relevant
to the debate. I think the grounds as laid out in Pepper v
Hart are very valid. Perhaps we could come back to that. To
curtail a minister, some of whom are very good at seeking to respond
generously and properly to backbench contributions from both sides
of the House, or to limit his or her ability to do that because
other things need to be said as well as part of the brief, I think
would be very damaging indeed to the process. Some ministers take
the view that civil servants have written this material and that
therefore it has to be read because otherwise the civil servants
would be upset. Some take a more pragmatic view. (I think Sir
Alan made the point about this perhaps for Pepper v Hart
purposes.) And say, "I will write to the honourable gentleman"
and three days later in committee a letter appears which is circulated
around the whole committee; that kind of material, instead of
having to be debated, could be published as an annex to the Hansard
and therefore become, for Pepper v Hart purposes, part
of the record. That might go some way towards solving the problem.
Sir Alan Haselhurst: Sir Nicholas,
so that your committee has a range of opinions available to it
on this matter, where a minister may be observed to be spending
time talking about what an Opposition Member has put forward rather
that explaining his own position is where possibly speeches are
getting extended. We all know that political advisers are now
playing over the years a more prominent role in government. It
may be that there is political material being inserted into the
folders to assist a minister. That is undoubtedly contributing
to a lengthening of the contributions. That is why I would urge
you at least to consider, even if in the end you dismiss the possibility,
some kind of brake upon the extent of ministerial contribution.
Chairman: I think research assistants
for back-bench Members themselves are now contributing increasingly
to the material that Members use in standing committee. I am not
just blaming ministers.
Q62 Sir Robert Smith: To come on
to Pepper v Hart aspects, when there are proven amendments
tabled to pin down ministers so that there is more guidance for
the courts than on the face of the Bill, is not the interaction
really crucial? It is possible that the probing interaction, that
bit in Hansard, is going to be of most use to the court and therefore
you could not really reduce that to a memorandum that was tabled?
Sir Alan Haselhurst: I accept
that but, by the very fact that we have started considering these
things and these expedients and their advantages or disadvantages,
it has to be seen in the context of the overall time available.
If the committee is prepared to sit longer, if the usual channels
are prepared to see the committee sit longer, if the Government
is prepared in a situation where it is in effect dictating the
terms of a programming motion to be more generous, these problems
will be of less significance.
Mr Pike: At the very first programme
meeting on the Housing Bill, the minister, Keith Hill, indicated
that he would like the first amendment on a clause to look slightly
wider, which would be helpful to any subsequent amendments. We
knew we were doing that; my co-chairman, Derek Conway, and myself
knew exactly where we were going in administering that. On the
first group of amendments under any clause, we allowed slightly
longer and slightly wider speeches, but we knew it would help
the subsequent debate and so we allowed a little bit more latitude.
Q63 Chairman: Are you saying, Mr
Pike, and I think I share the drift of the logic of what you are
saying, that if you allow a marginally wider debate on a major
group of amendments, that might eradicate the need for a "clause
stand part" debate?
Mr Pike: I would certainly take
the view that if you have had a long debate on amendments, you
do not need a "clause stand part" as well, unless any
person can really show some aspect that has not been covered within
the amendment, yes.
Q64 Chairman: You are saying you
are going to be a very tough chairman.
Sir Alan Haselhurst: This whole
subject needs macro-management rather that micro-management.
Q65 Chairman: May I very quickly,
particularly to Sir Alan, ask this. The Modernisation Committee
recommended in 1999-2000 that all the detailed provisions that
apply when programming is used are now set out in Sessional Orders.
Has this had the desired effect of allowing the House and all
Members to see what is proposed much more easily than hitherto
was the case, or do some Members remain "outside the loop"
in terms of their understanding of the impact of lengthy contributions
on the time available for debating groups of amendments?
Sir Alan Haselhurst: Sir Nicholas,
I would not wish to be disrespectful of my colleagues, but I do
sense that there is often a lack of understanding of what is going
on in particular situations. The chair, and indeed the clerks
more especially, are ordered to give advice but the complexities
of our procedures sometimes are not immediately fathomed by a
colleague who has a great interest in a particular matter and
is wishing to press that matter; he does not immediately see the
overall shape of things.
Q66 Chairman: I would assume that
your colleagues, Mr Gale and Mr Pike, would agree with that?
Mr Pike: I think there is clearly
an acceptance of the understanding of constraints on time as a
result. The only thing I still find is that people do not understand
that they are not moving the third, fourth or fifth amendment
in a group, that the only amendment that is being moved is the
first. There are some people with very lengthy experience who
still do not understand that.
Sir Alan Haselhurst: May I add
that our procedures at the moment make it quite difficult to ensure
that an individual backbench Member, or on some occasions a group
of backbench members who may not be entirely ensemble with
their front bench, has time for matters of interest to them, amendments
to the Bill, to be considered. I have yet to think of a perfect
way in which that particular matter can be dealt with fairly.
Mr Gale: One point has arisen
out of that. Given the way the "knives" now work and
the way that block votes are put together—and I appreciate
this is potentially open to abuse so it is a difficult area—if,
for example, during the course of the Higher Education Bill under
clause 5 an amendment in relation to clause 17 had been grouped
and debated earlier and the mover or sponsor of that amendment
had indicated to the chair that they wished that particular amendment
to be singled out and voted on later, as things stand, it would
not be possible because that clause would be grouped and voted
on as part of the remaining clauses.
Mr Pike: It can be. We had one
on which quite clearly I was given advice by the clerks that it
could not be and then the clerks re-read the Standing Orders and
I was still able to allow one that had been debated three weeks
before—and I was on the guillotine and covering the whole
lot—because it had been debated and they had indicated at
the time that they wanted a division. Mr Conway had given the
agreement that it could be voted on and I was told I could take
it and I did allow a vote on it.
Q67 Chairman: Can I say, Mr Pike,
that I think you are correct. That is certainly the advice that
has just been given to me by the clerk. If in fact a particular
amendment for which a division is to be allowed had been debated
earlier, when they reach that clause to which it is actually relevant,
it could be voted on. I think that is important.
Sir Alan Haselhurst: If I may
say, there is a difficult discretion to be exercised by the chair
on Report Stage where in fact there is perhaps only an hour between
knives and Members come to the chair or have, in the course of
their remarks, indicated in the previous section that they would
like a separate division; sometimes they may press between them
for two or three divisions. It can completely blitz the next knife
appearing. These two issues interact and so the chair is forced,
if you like, to take probably a restrictive view on the number
of divisions he will allow, despite the fact that it was being
sought by the Members in question.
Q68 Mr Luke: I think I should preface
my question by acknowledging the wide disparity there is in the
knowledge of the panel of experts we have before us today. The
questions I ask have been slightly touched on earlier by Sir Alan.
Order B sets out provisions for a Programming Committee to arrange
the timetable for a committee of the whole House, Report Stage
and Third Reading. In recent years, I am led to believe there
has hardly ever been a Programming Committee for the Report Stage
of a Bill. With the short deadline for tabling amendments, is
the Programming Committee system unworkable for this stage of
the legislative programme?
Sir Alan Haselhurst: The Programming
Committee sits only rarely. I have not found myself being overtaxed,
as it were, by the number of Programming Committees that I have
had to chair. As I think I said in a previous memorandum to the
Modernisation Committee, some are perfunctory; there has, in effect,
been an agreement between the usual channels before Members enter
the room and the procedure that I have to follow can be completed
in 45 seconds. On other occasions where there has not been an
agreement, I have had virtually to send the committee away until
they get agreement. I mentioned a moment or two ago one occasion
when I tried hesitantly to broker an agreement, which an independent
chairman might feel inclined to do, for the convenience of everyone,
but it is not easy to make progress. In the end, they had to go
away. The usual channels with, if you like, a shotgun at their
head, still had to come to an agreement, which then went through
formally in the Programming Committee. To have a Business Committee
which looks at it, which is a proposal that originally came from
the Hansard Society and which has some echo in the Rules Committee
in the United States House of Representatives, but only some echo,
is a totally different way of trying to do it. It is more formal,
giving more people an opportunity to put on the record their views
on certain matters, but it is wholly alien to the practice of
this House, which has usually been about the power of the usual
channels.
Q69 Chairman: I am sure I am reflecting
Iain Luke's position: is the power of the usual channels in the
best interests of the good scrutiny of legislation?
Sir Alan Haselhurst: My adviser
tells me that that is something on which we could not possibly
comment! I merely observe that this House has been ruled by the
usual channels, mostly amicably, whatever is said in public, but
sometimes there have been periods of attrition where perhaps Members'
interests and the scrutiny of legislation have suffered.
Q70 Mr Luke: The other questions
I was interested to ask you were about the drafting of amendments.
My experience on Standing Committees has been through the Finance
Bill where interested outside bodies have submitted draft amendments.
Such organisations obviously would need a certain amount of time
to conduct the consultations on this. The question I would like
to put to you is: within the present system, is there any way
in which consultation with those very learned outside bodies outside
Parliament might be enhanced during proceedings on a Bill so that
we get better law and better legislation, other than by means
of a Special Standing Committee? Is the present timetable hampering
consultation with these outside bodies?
Sir Alan Haselhurst: I think any
timetabling of a Bill, if it is harsh timetabling, does put pressure
on that interaction which many Members find valuable. Not every
Member is an expert on the detail of a particular clause or sub-clause
and is genuinely pleased to have an input which he or she begins
to trust, as it were, after a while, if they know the people who
are providing that comment. Yes, there does need to be time. The
Special Standing Committee procedure, which has not been over-used—it
was devised quite some time ago—is a means but of course
that period of consideration then ends just as pre-legislative
scrutiny comes to an end, and then you are into the detail of
a Bill. Amendments may come forward on which you would like to
get advice from a trusted outside source. You then see Members
moving out of the committee room into the gallery or outside into
the corridor to take advice as the thing comes along. There is
that approach. Generally speaking, in this House, in terms of
the passage of a Bill, if the time in total that has been allocated
to it is satisfactory, that has not been a problem. It is only
when there appears to be little time before the Standing Committee
is convened, less time than there used to be between Second Reading
and the first meeting of the Standing Committee, that I think
there has been some pressure, and similarly if there is a very
short time between the completion of the Committee Stage and report
to the House.
Mr Pike: I am hopeful that the
pre-legislative scrutiny as it works more will show that we are
producing better Bills. I think most people would agree that,
whichever government is in power, it would be hoped to have less
Bills and better Bills and that every government wants to produce
too many. Perhaps that is one of the problems and not that we
do not have enough parliamentary draughtsmen, although that is
one of the things that is being increased at the present time.
If I understand it correctly, the present Leader of the House
is aiming to go back to the normal convention of giving two weekends
after a Bill has come out of committee before it goes to the Report
Stage, which we had slightly moved away from. I believe the present
Leader of the House is of the view that that should aim to be
the norm. He is not guaranteeing it but I think he accepts that
that gives slightly more time to the type of problem that Sir
Alan was referring to, that if it finishes, like the one last
night, and if it is going to be the next week in the House—and
I do not know if it will be as I do not know what next week's
business is—it does give more time if there is another weekend.
Q71 Chairman: I think these traditions
also related, did they not, and I think Sir Alan has referred
to it, for a period between Second Reading and going to Standing
Committee. Would you yourself support any decision of this committee
that might recommend that those traditions be honoured?
Sir Alan Haselhurst: I cannot
see any reason why they should not be. We have all managed that
way in the past and the government has got its legislation, which
it is entitled to do, subject to proper scrutiny and if it continues
to command the majority. So I do not see how a government is disadvantaged,
as it were, by maintaining those traditional intervals.
Chairman: Those are words of excellent
wisdom.
Q72 Rosemary McKenna: I think what
we are seeing now that this is taking place and our inquiry is
taking place in the middle of the transition from how things were
in 1997 to how they are going to be in the future. If you look
at the change of hours and the knock-on consequences of that,
and sometimes that can be seen as negative—and I agree with
what Peter Pike has just said—I think the pre-legislative
scrutiny and much more of that is the way forward. I hope that
that is how things will progress. I think that would help considerably
in all of these issues. Given where we are at the moment and in
trying to make sure that the Members' interests are protected,
Mr Pike referred to a problem in Standing Committee where there
is a division called in the House and it causes chaos. The Chairman
of Ways and Means said in paragraph 7 that perhaps an injury time
could be allowed for in Standing Committee for that kind of thing.
How would you see that working? Would the knife be delayed for
the life of the time that it took to have the division and would
all subsequent knives be delayed?
Mr Pike: I personally would go
for allowing 15 minutes for each division that has occurred. It
can be extremely difficult. One division you can often absorb
without a problem. If it is just a 4 o'clock division because
it is a half-day Opposition Motion, then it is not a problem but
if I take the Planning and Compulsory Purchase Bill where one
afternoon I think I had five divisions on an afternoon when there
was a knife on a committee and where I had major problems anyway,
I can say that was a bad example of programming. The Modernisation
Committee used it as an example of bad programming. That committee
finished in January and, as Sir Alan said, it did not come back
for months and months and then it was recommitted to committee.
I am not sure whether it was a punishment but I was Chairman of
it again when it was recommitted. On one of the afternoons when
we had a major problem, we had something like five divisions.
In fact, they were going to change the programme; they had just
agreed to change the programme, and we were going to adjourn for
a programming sub-committee when there was a division in the House;
there were several in a row. When I came back, I could not allow
them to do that because the knife had fallen whilst we were out.
I said, "I am sorry, I have now got to put the questions
that I should have put at that time and you cannot do it".
If they had finished just a minute earlier and caught my eye,
we could have had a programming sub-committee, but we were caught
because we did not know when it was going to come. At Report Stage
you might have an idea but you do not know exactly.
Q73 Rosemary McKenna: Sir Alan, what
do you think about this? It was you who suggested that injury
time was a possibility.
Sir Alan Haselhurst: Yes, and
I hope it is one to which you will give consideration. We do that
in debates in Westminster Hall. I think it is all the more important
if you are working on rationed time within a Standing Committee
that you should be able to add the equivalent time that has been
lost. There are complications because people are not necessarily
expecting that to happen. Everyone, from the chairman and ministers
downwards, is going to have his own schedule altered by that fact,
but I think it is something which, if I may respectfully say so,
is for this distinguished committee to weigh and see whether or
not it is a recommendation that should be followed.
Q74 Rosemary McKenna: The Clerk of
the House has suggested that the Chairman of a standing committee
should have the discretion to delay the falling of the knife 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 the time. Would you
support that? Would it be workable, or would Members press for
that additional 15 minutes every time? Would it be abused and
is there a propensity for abuse?
Sir Alan Haselhurst: There is
no provision that has ever been made that cannot be abused in
some way or another. So much does rest on common sense and goodwill.
I think it would then be up to the chairman of the committee to
decide in his or her discretion whether that would be a proper
occasion to allow that. The chair would have to have regard in
those circumstances to any possible knock-on effect that you could
have by allowing that time: would it be taking time from something
else where there are Members very anxious to speak?
Mr Pike: The chairmen used to
have a discretion. I have not chaired a Private Member's Bill
but I was once on a Private Member's Bill many years ago where
somebody thought they had managed to talk out a Private Member's
Bill and suddenly the chairman asked: "It is quite clear
we can reach a conclusion on this. I have powers to extend the
sitting by 15 minutes", and the Bill completed its Committee
Stage. Somebody sat down and thought that they had managed successfully
to block it. I did not know that the chair had that discretion.
It was when I was a fairly new Member and I did not know that
such a power existed. I am not sure whether it is still there.
I am told it is still there.
Q75 Rosemary McKenna: What seems
to be coming out of this is a desire to make programming work,
and I would support that very much because I think programming
and pre-legislative scrutiny is a good way forward to get better
Bills and get them through as easily as possible, but what we
cannot be seen to be doing is compromising the independence of
the chair. Is there a way that this committee could consider giving
the chair more powers but not to compromise the independence of
the chair?
Sir Alan Haselhurst: If there
is a way, it would be best found by this committee because it
is then coming from a relatively unimpeachable source, as it were.
It is not for chairmen themselves to say what they should or should
not do. The chairs abide by the rules that the House has agreed
on. If there is a way of doing it by which the House will be satisfied
that the independence of the chair is not compromised, then I
am sure that that would be to advantage. We suggest one or two
ways in which it might be helpful for the chair to be given that
discretion. We have guarded it with a caveat about the independence
of the chair.
Q76 Mr McWalter: This follows directly
from what Rosemary McKenna has said. I would like the opinion
of the panel on this. Would you want the committee possibly to
suggest that the procedure be different where a Bill has been
subject to pre-legislative scrutiny to where it has not been so
that effectively you try and retain the rights of backbenchers
in both of those scenarios when in fact under one case you would
probably have had a good opportunity to influence the development
of a Bill and in the other case you might not have done? Would
you like to see us make that sort of distinction?
Sir Alan Haselhurst: My instinctive
reaction would be "no"; I think it would be very difficult
to have almost a different set of rules for different approaches
in one's mind to chairing the committee of a Bill which had received
pre-legislative scrutiny and one that had not. I really do hesitate
to believe that that is a good idea.
Q77 Mr McWalter: On the other hand,
if there were a different set of rules, that could have the effect
of giving an incentive to the Government to utilise the process
for privilege and scrutiny more often. That is my thought.
Sir Alan Haselhurst: I think the
Government is committed to pre-legislative scrutiny. I think that
if it is seen by the House as a whole to have a useful function,
then it is an idea that will take root and will become a regular
part of our procedures. It would be very difficult to preclude
then from the processes of the actual standing committee on the
Bill any arrangements which we currently have.
Chairman: I pass on to Sir Robert Smith
who is going to deal with the role of chairmen, which we have
touched on already.
Q78 Sir Robert Smith: On the pre-legislative
scrutiny, I think a lot of select committees are slightly worried
that they may be chasing a certain line of inquiry and then they
suddenly find themselves with a Bill thrown at them by the Government
saying, "This is your choice for pre-legislative scrutiny",
tripping up what other scrutiny they are trying to carry out at
the same time. Obviously this is going to develop and we may have
to look more carefully at how that works. On the issue Sir Alan
raised about the commitment of people: if you are going to have
more time in committee, people need to make a real commitment
to be there if they want to have more scrutiny. Are we reaching
the point, with the way this is going, when maybe we have to look
at the way other parliaments operate and at sessions when the
parliament operates in its committee structures so that there
is not a clash with the main chamber, and then at sessions when
parliament operates in main debate when that is the focus of the
work through the parliament?
Sir Alan Haselhurst: By all means,
the Procedure Committee and the Modernisation Committee could
look at these things. I think that is painting a much bigger picture
than I feel competent to address just now in answer to that question.
I think it would require very detailed consideration, almost possibly
I dare to suggest a Speaker's conference to contemplate something
as fundamental as that. I would stick to my point that the peculiarity
of the job of a Member of Parliament is that he or she has to
split himself between constituency responsibilities, which have
grown over the years, and a scrutiny function, which has also
grown over the years. That, to my mind, suggests more hours than
fewer.
Q79 Sir Robert Smith: You have touched
quite a lot on the role of chairmen. What, under the current Standing
Orders, is the position of the chair? You mentioned earlier that
in the end the Speaker's role is to protect Parliament and the
backbenchers. Does the chairman at the moment in committee have
a role to protect the interests of backbenchers, or is the impartiality
such that it is just to serve the whole committee?
Mr Gale: That role has been eroded.
The answer to your question has to be "yes" but it is
difficult for a chairman when in the committee he acts for the
Speaker. The Speaker's role very clearly traditionally has been
to protect the interests of the backbencher. However, if the chairman's
ability to do that is restricted by time, then it is not infrequently
not possible to do that. I can give you a "for instance",
a very recent one. The first guillotine on the Education Bill
fell theoretically at 11.25 on a Thursday morning. I was chairing
that session and I was asked by consent by both the usual channels
and the minority parties to allow the sitting to end at 11.20
because everybody on the Education Bill also wanted to be on the
Floor of the House for Education Questions, which were immediately
after Speaker's Prayers. We had a guillotine to get in in the
time. As it happens, on that particular morning, there were no
government amendments. Government amendments especially have to
be voted on as part of a package. If the advice that we have been
given this afternoon, and I am sure it is, is correct and any
other matters that the chair has agreed shall be voted on also
have to be voted on, you can see a situation where you are, once
again, having to curtail debate. The problem with curtailing debate
is that by implication you are curtailing the right of a backbencher
to speak.
| 
