Examination of Witnesses (Questions 120-138)
10 MARCH 2004
RT HON
ERIC FORTH
MP AND BARBARA
FOLLETT MP
Q120 Mr Swayne: Yes, within the programming.
Barbara Follett: I know that the
minority parties would say that they are not catered for because
I have heard them say this. I do not have any particular experience
of it, but they definitely feel that. With backbenchers—Mr
Forth is completely right—at the moment the average number
of times a Labour backbencher can hope to speak is about 4.5 or
5 times a year. And I really do not mind: you then decide where
you are going to use that limit. But sometimes, when your constituents
feel very strongly about something, it is a problem. I know that
some changes have been made to how people are called but in fact
they are still called really in hierarchical fashion. The system
does not, I do not think, work terribly well for backbenchers,
but I do not really know how to make it work better.
Q121 Mr Swayne: Might I suggest a programme
to educate backbenchers and, indeed, the spokesmen of minority
parties as to how they table amendments to secure the head of
a group and then they will be called first.
Barbara Follett: That is true.
Mr Forth: I think there is always
a difficulty in a parliament of 650-odd—sometimes very odd!—members,
where 610 of them belong to the three major parties. It is very
difficult for us to find a satisfactory way to cater for the other
40 members who are distributed over, what, seven or eight parties,
including one very distinguished independent Member of Parliament
currently—and one whipless one as well, now that we are
mentioning it! How you cater for that diversity is the real problem.
I do not think we have ever really got round to tackling it. Even
picking up the consensus dreamer's point and saying, "Can't
we all sit round in a cosy sort of consensus and hash these things
out?" again it is difficult to see how you could resolve
these sort of numbers in that respect—because, with the
governing party with 400 out of 600 and something, and the main
opposition party with a paltry 160, how do you deal with the Scottish
Nationalists or Plaid Cymru or the SDLP?
Q122 Chairman: Ulster Unionists?
Mr Forth: I will not go through
the whole list, Sir Nicholas, but I think this is a very real
problem. For a long time, as I recall, the Liberal Democrats were
given the responsibility to speak on behalf of the so-called minority
parties. That broke down because I think in the end even they
were not, it was felt, able satisfactorily to represent that interest
because putting together all the minorities in one did not do
justice to each of the minorities. So I do not have an answer
to it. I think what Mr Swayne has said is a positive suggestion
but I think in our Parliament it is difficult to cater for these
small minorities when you have such an overwhelming number from
the major parties.
Mr McWalter: Order B currently sets out
a provision of having a programme committee for report stage and
third reading. In practice, the provisions of Order B are disapplied
unless there is a committee of the whole House, so you do not
actually get a programming committee to allocate the time for
those stages. You have both indicated—and we are grateful
for that—in response to earlier questions, that you think
actually those later stages are more important than currently
they are evaluated as being. Do you think the Programme Committee
could have a role in trying to ensure that there is an appropriate
portion of time and that it does give members, particularly those
who have not had an opportunity to speak at second reading or
at standing committee, an opportunity to contribute to the formation
of the bill?
Q123 Chairman: Tony McWalter has asked
a very serious and, I think, a very, very sensitive and important
question.
Barbara Follett: I am inclined
to say yes, much as I do not like over-regulating situations,
but just because of the problems that Desmond Swayne raised, we
do have to give chances for the multitude of views there are in
this House. I would just like to correct Eric Forth: there are
two whipless ones at the moment. Mr Galloway.
Mr Forth: Ah!
Barbara Follett: We have to make
sure they are heard and their points of view heard, so I think
there is a case for it. But it is something we would have to approach
with extreme caution.
Q124 Mr McWalter: The Member for Bromley
does not like programming of committees, so presumably he is going
to think that there is no role for the Programme Committee, even
though it is trying to achieve an end with which I suspect he
would agree.
Mr Forth: How well you know me,
sir!
Q125 Chairman: You had better answer
him, Mr Forth.
Mr Forth: Yes, I had better.
Q126 Mr McWalter: I have been entertained
by you many times.
Mr Forth: Mr McWalter is half
right. I will concede that the existence of the programming sub-committees
is a step in the right direction, in that it provides a vehicle
potentially for discussion and debate, and that does happen. One
is aware of that. But let's not forget, Sir Nicholas, in the end
the government has a majority. In our parliamentary system, the
government always has a majority and the government will always
get its way. Therefore, in that sense, I do not think we should
look too much to the Programming Sub-Committee process to resolve
many of these problems because, quite simply, in the end the government
will decide and it will have its way. I think we can say that
they are an attempt to move us forward, and on some bills and
with the chemistry between some members they will achieve a result,
but I do not think they are the answer because, in the end, if
there is a government determination to push a bill through in
a particular time, at whatever stage, the government will have
its way anyway.
Q127 Mr Illsley: Just to come back to
the suggestion I think, Eric, you made in your submission, that
programming is squeezing the amount of time that outside bodies
have to input into a committee stage of the bill, could I ask
for a comment from you both on how we can enhance that or protect
it under the programming system. Do you think it is the case that
outside bodies are getting less time? Other than, say, the special
standing committee or the draft and pre-legislative scrutiny,
is there any way we can maintain that outside input into a committee
stage?
Mr Forth: My contention would
be not whilst the system at the moment is determined to constrain
standing committee time to the extent it now is. Committees are
now shockingly brief compared to what they used to be, and of
course I concede that in the old days a lot of time was wasted
by filibustering—and, frankly, low-grade filibustering,
Sir Nicholas, if I may say so: I like to see a bit of quality
filibustering, but the low grade stuff is pretty offensive! If
one just thinks in one's mind through the process—putting
aside pre-legislative scrutiny for the moment, and I fully concede
that that is or should be an opportunity for a very full consultation
of legitimate outside interests and I would welcome that—once
one gets into the parliamentary stage, if you get a fairly rapid
succession between the first reading of a bill, its second reading
debate, moving into standing committee, very brief standing committee
and so on, then the opportunity for government backbenchers/opposition
members to consult with the interest groups, to receive their
possible draft amendments, to have the debate in committee, see
the amendments debated and so on, becomes very limited indeed.
And my fear is that, at worst, that may either discourage the
outside groups from wanting to take legitimate part in the parliamentary
process and/or it may shunt their participation from the Commons
to the Lords. If members of the Committee are satisfied or relaxed
about the burden of the parliamentary scrutiny and consultation
process going to their Lordships' House, that is a very interesting
and very important decision to make. But if we, as members of
this House of Commons, want to continue to regard our role as
being prime, then I think we have to look at all this very seriously
indeed.
Barbara Follett: I think our role
should be prime, and is prime. We have to make sure that we guard
it—which is why I am glad that this Committee is conducting
this investigation. I think Mr Illsley's question is a very good
one because this is rather difficult to do. I suspect it was difficult
well before programming came in because governments of any kind
want to move their legislation through fairly quickly: with or
without programming, they have to get it all through by the summer
or all through by Easter. I think that we probably have to look
to pre-legislative scrutiny for most of the input. For example,
the Housing Bill had an enormous amount of pre-legislative scrutiny,
and I have not looked at the amendments recently but there were
not as many as usual on a bill of that size and of that interest
because they had had so many representations beforehand. I think
there are going to be one or two things that are suddenly thrown
up, but with firms and with interest groups now employing lobbyists
who look ahead, look at what the Queen's Speech is going to bring—I
am already getting lobbied on potential legislation in the next
Queen's Speech, stuff which, frankly, I had not even realised
we were going to think about, and probably we are not or possibly
we are not—people are ahead of the game. I think we are
probably going to have to look at front-ending for a lot of that
consultation process, with only one or two bigger glitches coming
up later. I know this is a difference between how Mr Forth and
I look at it.
Q128 Chairman: Could I pose a simple
question to both of you (again, a yes or no answer): Is it your
view that successive governments have sought to put through too
much legislation?
Mr Forth: Yes.
Barbara Follett: Yes.
Q129 Mr Illsley: At the moment, if a
division in the House is called during a programmed committee
stage there is no facility whereby we can add on injury time.
Would you agree we can extend the amount of time taken for the
division? In other words, do you agree injury time for divisions,
even where there is a programme motion?
Mr Forth: I would have thought
that would be a very helpful, if relatively minor, improvement.
Barbara Follett: My only caveat
is the number of divisions that may occur. But, I think, in principle,
yes, as long at it was not abused.
Chairman: Could we now pass on to the
role of chairman. Barbara Follett has referred to this in some
of the answers she has given.
Q130 Mr McWalter: I was interested in
the view, I think of both, of you that, in a way, chairmen of
committees could potentially be much more proactive about the
management of the business and trying to gather the sense of the
committee when it is clear that it wants to spend a bit more time
on a particular event. Certainly, I was in a Northern Ireland
committee at one stage, at a very sensitive part of the evolution
of the Belfast Agreement, and we were guillotining some stuff
that actually meant that people were potentially were moving into
a situation where they might have agreed, the guillotine came
down and they both ended up on opposite sides of the division
bell. I think it actually did some damage to the peace process,
so I think these things can be quite important. The question is
how we get the chair to do that kind of work. I suppose, as the
Procedure Committee, we are looking to see if there is some way
in which perhaps it should be formalised in standing orders so
that they have some responsibility to seek to protect the interests
of all backbenchers or all parties, or however you put it, in
the conduct of proceedings. Then there is still an issue about
how they do it. The suggestion we are entertaining at the moment—and
it may not come to this, and I am sure Mr Forth will not like
it—is the thought that the chair could actually convene
the Programming Sub-Committee and say, "Look, it is clear
there is much more interest in this clause than was previously
thought. It is vital we give it an extra day." Do you think
that some formalisation of what you are admitting to be the responsibility
of the chair, an enhanced responsibility for the chair, is appropriate.
How would we do it? Would that compromise the impartiality of
the chairman if in fact he or she was seen to be proactive in
making changes to the timetable in that kind of way?
Mr Forth: I suppose I have to
declare an interest as a relatively new member of the Chairmen's
Panel on this, and the Committee should be aware of that. I would
be rather attracted by the thrust of Mr McWalter's question, Sir
Nicholas, because I see no problem with giving a chairman a greater
and more positive role. After all, there is a convention, is there
not, that the chairman, if he knows the committee that he is going
to chair will not participate in the divisions at second reading,
and that the chairman is, in a sense, the representative of Mr
Speaker and must therefore have a strictly impartial role. That
I think is well understood and I am sure it is completely observed.
Going forward from that, I would have thought that if there were
a general agreement about it, it maybe would be worth, for an
experimental period, seeing if giving standing committee chairmen
a greater role would work. The chairmen already have very considerable
powers, as Sir Nicholas knows and exercises, to seek to prevent
abuse, repetition or whatever it may be within the committee,
but maybe that could be extended; that, if a sense emerged that
a particular matter deserved further attention and yet a knife
or a guillotine was going to intervene, a degree of flexibility
could be introduced. Maybe the committee could even interrupt
proceedings, having taken informal soundings, convene a meeting
of the Programming Sub-Committee there and then, and seek to get
an agreement for some sort of extension or relaxation of time
limits. I find that a rather attractive idea.
Barbara Follett: I do too. I think
it might have even happened on the Fire and Rescue Services Bill
at one point.
Mr Illsley: That power is available too.
It actually happens. It is usually through the usual channels,
where the usual channels would realise that a guillotine is likely
to fall and preclude debate. They would agree with the Programming
Sub-Committee.
Q131 Mr McWalter: Where the usual channels
work, I do not think any of us have a problem with it. We all
have a feeling that usual channels often do not work. Indeed,
we all know government whips, when they put you on a committee,
say, "We'll put you on a committee but you will not speak,
will you?" They do not say that to me but I hear they say
it to other people. There is a sense in which getting the business
through quickly is often given such a large priority that the
efforts of somebody to influence the way the debate goes is given
shorter shrift than it should be. There are two potential custodians
of that. One certainly is the usual channels, but I suspect that
that is not a very good custodian in a lot of cases, and the other
is someone representing the Speaker who is there to represent
the interests of Parliament that a full examination of the legislation
be held. That is the thinking we have behind thinking that the
chair really does need to be given a stronger role. It becomes
accepted it will be normal and more unusual than it is now. You
are both nodding; that is good.
Barbara Follett: I would like
to see that happen; I think it is a very good idea.
Mr Forth: That leads me into making
one extraordinarily risky observation and that is, following that
point and again agreeing with it, that the Chairman of Ways and
Means might want to look even more carefully than I am sure he
presently does at the appointment of chairmen of certain committees
to ensure that the chairmen, because, these days, we invariably
have co-chairman, were of suitable weight and experience to grip
what could be a difficult committee. Although I have said over
and over again that the Government cannot and should not seek
to anticipate the length of deliberations, I think we all have
a fairly good feeling for when a committee is likely to be relatively
uncontroversial or likely to be a real hot potato and I would
have thought that, following Mr McWalter's very interesting and
positive suggestion, the appointment of chairman would have to
reflect that in order to make it work effectively.
Chairman: I am very encouraged by what
the witnesses have said because, though I should not say it from
the chair, it happens to meet my own view because I do believe
that chairmen of committees can have a major influence on the
way in which the Committee is conducted and the way in which they
proceed with their responsibilities and I think that the House
should recognise that in a more positive way. Can we now come
to David Wright who is going to deal with the annual programme.
Q132 David Wright: I did manage to sneak
my question earlier on in the session in part. My final part of
the question was about carry-over and you have mentioned carry-over
briefly. Do you think that carry-over is a successful or will
be potentially a successful device in terms of improving opportunities
for contributions and improving opportunities for opposition?
One example that I can think of recently is the Planning Bill
which was carried over. I managed to speak in second reading in
committee and on both report days and there was quite a significant
amount of time available for contributions. Does carry-over not
mean better scrutiny?
Mr Forth: No. It is a mirage!
I will show my hand at this stage because I think that the Government
are fooling themselves. What carry-over does is buys time and
more legislation in year one and probably year two but, come years
three and four of a Parliament, if the Government are not very
clever and very self-disciplined, the congestion of legislation
will have been pushed towards the back end of the Parliament.
I am actually rather relaxed about it as a member of the opposition
currently. The Government may well benefit in the early years
of carry-over through lack of self-discipline or running into
time difficulties in one session or another but I do not think
that, in the longer term, it will benefit the Government or indeed
the parliamentary process. To that extent, I think it is a fiddle.
Barbara Follett: I could not disagree
more with Eric Forth on that. I think that carry-over is part
of trying to get the proper scrutiny of legislation and also to
get proper legislation through. Quite a lot of legislation over
the past 50 years has been too rushed, has not been thought through
and governments of all colours have had to retract or wished they
had never put it through. I like carry-over. The Planning Bill
is an absolutely good example. It is very complex, people have
strong feelings about almost every clause of it, your constituents
about strong feelings about and people have different attitudes
in different regions. I do think that, if it is used wisely, it
is an immensely helpful tool. If it is used badly and in a disorganised
fashion, what Mr Forth said may come to pass and an inefficient
government would rue it, but I think that carry-over is useful.
Q133 Chairman: Can I just put to you
the question that, while a case could be made out for the carry
over of government business announced in an election manifesto
or at the beginning of a parliamentary session, do you think that
carry-over should also apply to private members' bills which have
not appeared in either a government programme at the beginning
of the session or of course inevitably in an election manifesto?
Barbara Follett: I have never
considered that, so I am thinking about it carefully. My instinct
is probably "yes". There have been some really good
private members' bills such as high hedges and the one on gangmasters.
There have also been some seriously wacky ones.
Q134 Chairman: Where do the wacky ones
as against the other ones produce the balance?
Barbara Follett: You can hear
me weighing this up. My instinct is to look at it very carefully
and say "possibly". I am afraid that I am going to sit
on the fence here because I do not know enough about it but I
can see that there are virtues.
Chairman: I think you are a considerable
politician with that last response! Are there any other remarks
that either of our excellent witnesses, Eric Forth and Barbara
Follett, would like to make to the Committee before we conclude
our deliberations?
Q135 Mr Illsley: It is a question in
relation to the annual programme and it is question for Eric Forth.
What would be your reaction to a system perhaps—and I am
thinking of a rough and ready system off the top of my head—where
we agreed through the usual channels at a Queen's Speech that
we have a system whereby the length of time available to a bill
is determined on the size of the bill, the number of clauses and
whatever, and you had a start date and an end date but the opposition
were allowed to determine how the time in between was dealt with?
Could that be acceptable as a form of programming to you or is
the end date the crucial aspect?
Mr Forth: The end date is crucial.
If I can give away another trade secret, I actually think that
knives are helpful to the filibusterers, if there ever were any
such people and if they managed to escape the eagle eye of the
Chair of the Committee. No, it is the end date that is absolutely
crucial to this. The opposition gains very little if the Government
say in a spirit of rare generosity, "Having set a very tight
ending, you can decide how much time is used up on different things
in the Committee" because the opposition will say, "Fine,
but if it is not enough time for the whole bill, all we are doing
as the opposition is taking the blame for parts of the bill not
being scrutinised."
Q136 Chairman: Following up Eric Illsley's
very sensible and constructive point, do you think that if there
were more meaningful discussion between the government of the
day and the usual channels of the government and Her Majesty's
opposition and other opposition parties that an end date or an
out date could be agreed that was acceptable to all parties or
a majority of parties in the House?
Mr Forth: I do not see how the
opposition can know how long a committee stage will take either.
The criticisms I have made of the government would apply equally
to the opposition. I, for the life of me, cannot see how a responsible
and effective opposition can predict before the Committee even
starts deliberating how long proper scrutiny is likely to take
and, worse than that, what we are saying potentially is that the
Government will start with a hugely ambitious legislative programme
and then come to the opposition and say, "Given that we are
going to want 35 bills this session, we want you to agree now
how we are going to shoehorn that in."
Q137 Chairman: Both you and Barbara Follett
have indicated that, in your views, there is too much legislation
being sought by successive governments. We have taken that on
board and, if we can control that, is the question I put more
relevant?
Mr Forth: Yes. If your Committee
can constrain the Government's excessive legislating, then we
will all cheer!
Mr McWalter: I am not sure that is quite
the point. If, for instance, there was an out date and it was
agreed and, without filibustering and in view of complications
during the course of the bill including obviously very often large
numbers of government amendments and so on, the chairs had the
powers we were talking about earlier, it would not be too bad
to have an indicative out date that people were working towards
and, where it had become clear that that was unrealistic, that
that could be shunted for a couple of weeks or whatever. It might
be possible to combine the idea of having some form of constraint
with some sort of discipline in the process with also having a
degree of flexibility about how the actual need to debate the
matter properly can be incorporated into the system. So, I would
hope that we might find a way forward on that. Without that, you
end of course with an opposition saying, "Yippee, you want
35 bills but you are going to be lucky to see five of them"
and that cannot be right either. That is the constraint that I
think we are all under.
Q138 Chairman: Do you want to comment
on that?
Mr Forth: I think that would be
a step in the right direction and would be worth trying.
Barbara Follett: I agree.
David Wright: The difficulty is whether
the opposition to a bill comes from the Government's own benches!
Chairman: Maybe that is a point on which
we should conclude!
Mr McWalter: The opposition then say,
"They're taking our time!"
Mr Swayne: Can we bring this community
love fest to a conclusion!
Chairman: We were just about to do that.
I thought you were interrupting my deliberations and my decision
to do that. Can I, on behalf of the Procedure Committee, thank
the right honourable Eric Forth and Barbara Follett for, I think,
the most enlightening and the most invigorating and the most exciting
and, in a way, the most provocative evidence that we have so far
received. I am confident that it will form part of the recommendations
that we ultimately produce in our report and can I thank you both
very much for the very lengthy responses you have given and the
very positive responses that you have given to the questions put
to you.
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