Examination of Witnesses (Questions 139
- 159)
WEDNESDAY 24 MARCH 2004
MR GRAHAM
ALLEN MP, MR
MARK FISHER
MP, MR RICHARD
SHEPHERD MP, MR
PAUL TYLER
MP AND RT
HON SIR
GEORGE YOUNG
BT, MP
Q139 Chairman: Can I warmly welcome
our witnesses this afternoon who will help us with our inquiry
into the Programming of Legislation. I think it is true to say
that all of our five witnesses are experienced and distinguished
Members of the House and I am very grateful to them for accepting
our invitation to come and help us with our inquiry. We have Graham
Allen on the extreme right—
Mr Allen: Not from where I am
sitting, Chairman.
Q140 Chairman:—whose views
on reform are well known and who represents Nottingham North.
Mark Fisher represents an area not very far from my own constituency,
Stoke-on-Trent Central. Richard Shepherd, the Conservative Member
for Aldridge-Brownhills, and his position as regards the importance
of Parliament and freedom of information are very well known.
Paul Tyler, again a distinguished Liberal Democrat who has a great
deal to do with changes in this place. Sir George Young, who has
held important ministerial office. We are very grateful to you
all for coming to help us with our inquiry. It is important. There
is considerable dissatisfaction at the way that programming is
working, not the concept of programming itself. Can I put the
first question? It appears that there is a fundamental difference
of view between those who seek to divide up the time available
in an agreed manner and those who view programming as a measure
which prevents Bills being properly examined. Do you see any way
of reconciling these two views? Can I perhaps start with a Government
Party Member, Graham Allen.
Mr Allen: Thank you, Chairman,
and thank you, colleagues, for your very kind invitation to address
you today. I think it might be helpful just to say a word or two
about the history of this, certainly from my own perspective since
I was incarcerated in the Government Whips' Office at the time
this happened. The Government Chief Whip who moved this on most
was Mrs Ann Taylor, and I would claim some credit, if allowed
to, as one of Mrs Taylor's greatest supporters on moving programming
forward. The original concept was that providing the Government
got its Bill by a given date, an out-date from committee, the
internal timetable actually since, to be blunt, Government could
command the majority of votes in a Standing Committee and on the
floor did not matter as much as the out-date. I think in a fit
of generosity, which in some cases you may say has backfired,
the Government quite counter-culturally allowed Parliament, and
specifically allowed the Opposition, the ability to internally
timetable a Bill. As a closet moderniser who for some reason got
into the Whips' Office, I thought this was a great breakthrough.
Indeed, on the Bills that I was whipping I used this to ultimate
effect whenever allowed to with the Opposition Whips to ensure
that the internal timetabling of Bills, for example on the Finance
Bill when I was the Whip to the Chancellor and on Bills where
I have been the Whip to the Deputy Prime Minister, was optimised
for the benefit of the Opposition so that the key issues from
Parliament's point of view could be heard and the key issues from
the Opposition's point of view could be heard. However, unfortunately,
and again you will want me to be blunt, Chairman—
Q141 Chairman: I do indeed.
Mr Allen: I think it is fair to
say that because of the particular personalities who were dominant
in the chief Opposition Party, the Shadow Leader of the House
and Shadow Chief Whip and other personalities, it was felt at
that point that somehow this was collaboration and that this was
a trick and Parliament was better served by keeping MPs here to
three o'clock in the morning and all that nonsense which, thankfully,
we have done away with. That philosophy, that mentality of a scorched
earth parliamentary view, which has meant that Oppositions have
achieved very little change over the years, predominated in the
higher decision making circles of the Conservative Party. The
result was, of course, that many Government Whips were, therefore,
left high and dry wishing to participate constructively with their
opposite numbers but with their opposite numbers unable to assist
because of the orders they were working under. Therefore, Government
Whips could not then say "Fine, we will have to withdraw
the Bill", Government Whips were then put in the position
of saying "Well, if you are not prepared to make me an offer
on what the internal timetable should be, I have to bring in the
internal timetable myself, perhaps on some sort of crude division
of the clauses half by half way, a quarter by a quarter of the
way", that sort of stuff. In many ways, the failure of this
experiment, which I think was unbelievably generous and uncharacteristically
generous by governments of whatever party, occurred because the
Opposition failed to take advantage of it. Now we are in a situation
where the collective memory of people like myself and Mrs Taylor
and that generation of Whips has gone, so Government Whips now
assume that it is their right to internally timetable and we have
ended up with an Opposition in a position where they not only
have to suffer an out-date being imposed upon them, they also
have to suffer and then complain and whinge and say "Oh,
my goodness, this is terrible how we are being forced to do this"
having the internal timetable.
Q142 Chairman: Surely as a parliamentarian,
believing in parliamentary democracy, you cannot believe it right
for large tranches of legislation to go through undebated because
of the coming down of the knives?
Mr Allen: Absolutely. That is
why, firstly, an appropriate amount of time should be agreed for
discussion but, secondly, where the key issues are to be debated
they should be in the gift of the Opposition, I think that is
a generous thing to say, and then the key issues are by definition,
from the Opposition's point of view, going to be debated. If that
is forgone then I am afraid we are back in a position of which
I will give just one very brief example. I have just finished
on the Higher Education Bill and there were two superb debates
from all points of the House on the two key clauses and the rest
of the time was being wasted quite deliberately in order to say
"Oh, we did not have enough time to discuss some other key
clauses". It is a game, Chairman, and it is a game which
ultimately leads Parliament to be held in contempt by those we
represent. It is far more sensible to have a realistic timetable
where, above all, Opposition spokespeople can have their say so
that Parliament can be seen to be debating some of these issues
seriously.
Q143 Chairman: Thank you. Sir George
Young.
Sir George Young: I agree with
what Graham Allen said at the beginning, I think the Government
is entitled to an out-date. That has benefits not just to Government
but to those who are serving on Standing Committees, they know
when the Bill will end, and it is a great help to those who are
following the Bill from outside. I have no difficulty with having
an out-date. I think what happened when the new regime started,
as far as my memory is concerned, was not exactly as Graham Allen
indicated in that I remember adding my name, as I think Mr Tyler
added his name, to some of the Government programming motions.
So when the new regime started there was not a total embargo from
the Opposition at that time to what was going on; indeed, as I
said, we officially supported the concept. What has happened is
that for whatever reason there is not the flexibility within the
time available to do justice to the Bill. There are Members on
your Committee, Chairman, who have served on more Standing Committees
probably than I have. Certainly in the last two years I have been
on two Bills and on both Bills there were clauses which were wholly
undiscussed and at the same time we rose early in other sessions
because we had reached the appropriate milestone. I think what
is needed is more flexibility within the agreed out-date to do
justice to the Bill. In answering your question, if I may say
so, I think there may be a third way between those who are fundamentally
opposed to any programming, on the one hand, and those who adopt
a rather rigid approach on the other. It seems that we have not
quite found that third way with the flexibility that we need in
order to make the system work satisfactorily.
Q144 Chairman: Thank you. This Committee
is really charged with the duty to find the very way in which
it will work, and work for the benefit of the House. Paul Tyler.
Mr Tyler: Chairman, I very much
welcome the fact that your Committee is looking at this because,
as you will know from your work on the Modernisation Committee,
we got so far and frankly got stuck. I think bringing fresh minds
to this is very helpful. Perhaps I might just ask you and your
colleagues, if you have not already done so, to look at a very
small written piece of evidence that I gave to that Committee
which is in our report on Programming of Bills, the first report
of Session 2002-03,[1]
which at least has the advantage of being less than a page long
and there are not many documents of that kind in this building.
I will not take you through that, Chairman, but can I just go
back to points that colleagues have made already. I think the
critical issue is to ensure that those who are going to have the
most active role in deciding programming are those who have an
interest in its success. By that I mean that those who are actually
within the Committee, it seems to me, on a Bill should have the
responsibility for deciding how that Bill should be considered.
You from your experience, Chairman, as Chair of many a Standing
Committee, will be well aware that where that degree of responsibility
is accepted by the Committee, and given to it and recognised by
the Members of the Committee, there is a much greater likelihood
of success in dealing with all parts of the Bill in a way which
is not only satisfactory to both the Government of the day and
the Opposition but produces a better product which surely must
be what we are all interested in. What I and my colleague were
suggesting on the Modernisation Committee is that we should try,
and it may be difficult, as Graham Allen was suggesting, to return
to the consensus that was there at the outset of this process
in this way: there should not be an attempt to programme time
within the envelope of the end date until the Committee was actually
set up, until the Members who know they are going to be dealing
with that Bill are in place. There should not be any attempt to
programme the timing until the Committee of Selection has appointed
the Committee Members and those Committee Members have been accepted
by the House. Thereafter it should be a matter for the Committee,
using a Programming Sub-Committee, not only to decide the outline
at the outset that they hope is going to be able to work efficiently,
but if there are changes, if suddenly there is a whole flood of
new amendments and new clauses from the Government, which is not
unheard of, that Programming Sub-Committee should be asked to
convene and deal with that matter. If in other circumstances it
seems that greater progress is being made than the original programme
agreed by the Committee had outlined, then the Chairman should
be in a position to ask the Programming Sub-Committee to meet
again and see whether a revised programme is appropriate. Putting
the responsibility on the actual Members of the Committee to decide
how they want to allocate the time seems to me, and to my colleagues,
a better way of ensuring that the Opposition get what they want,
ie important areas of concern to them are going to be discussed,
those Government backbenchers who may have concerns about a particular
Bill have a better opportunity to ensure that those areas of the
Bill that they are concerned with are discussed, and it is very
much a question of self-discipline within the Committee rather
than outsiders setting the terms of that programme.
Q145 Chairman: Can I tell colleagues
that I want all of our witnesses to give this opening response,
so Richard Shepherd will be after Mark Fisher, and then any supplementary
questions on this matter can be put.
Mr Fisher: Chairman, thank you
very much. I think for most Members of this House, the principle
as you outlined it in your question is easy to agree, that if
programming is agreed by all sides then it is a thoroughly desirable
and sensible way of conducting our business. Equally, it goes
that if it is imposed then that is not the case. The practice
is very much more difficult because the distinction between agreement
and imposition, where one slides into the other, is absolutely
crucial. If we could always have an out-date by agreement rather
than by imposition that too would help. I would take this whole
debate back one stage earlier, which is something that I know
you and your Committee have looked at, and certainly all five
of us in different fora in this place have also looked at, the
whole idea that Government should have sole rights and say over
the business of this House. There are many of us in this room
who believe that the business of the House should and ought to
be a matter for the House itself by agreement with the Government
but not by imposition of the Government, and that is why many
of us promote the idea of some sort of Joint Business Committee
rather than having Government impose both the content and the
timing of all the business of this House. Of course, every Government
has a mandate to govern, and that is all governments, has a right
to its programme, its legislation, its time and its business,
but this House also has duties and responsibilities and we have
a duty and a responsibility in this House, whoever is in Government,
to scrutinise the legislation that is put before us. The very
first Bill that I served on in this House in 1983 was the privatisation
of the telecommunications industry, Mr John Golding's Bill, where
we, as the Opposition,—many of these issues go back to this—outrageously
manipulated the system to make life as difficult, as pointlessly
difficult frankly, for the Government as we could. We thought
we had no other way, we only had the weapon of time, and we wanted
to cause as much bother to a piece of legislation that we thought,
with hindsight possibly misguidedly, was wholly misconceived and
we did everything that we could session after session to delay
it in a way that Members who were not in the House at that time
would find hard to believe, that we would go on regularly through
the night in Committee totally pointlessly. Mr John Golding taught
me how to do what he called a "Swiss roll" of Committee
debates where he would unroll his argument in favour of an amendment
and then he would say "Ah, we will now roll it back and I
will argue against myself", thus doubling the amount of time
that his speech took up scrutinising a particular amendment. There
were lots of old hoary things like that and it was totally pointless,
it was not helping the legislation of this House, it was not helping
Parliament. It was a huge abuse and it gave rise to the quite
correct momentum behind the idea of programming. There are plenty
of signs that programming itself is open to abuse from the other
side, from Government, and we have to find a way of acting in
goodwill and by agreement. That is going to be very difficult.
It is probably the most political element of this legislature:
time. It is the one area where people have embedded vested interests
and find it extremely difficult to express goodwill and find a
way of doing what all of us ought to be doing, both ensuring that
any Government ultimately gets its legislation but that that legislation
is well and truly and properly scrutinised. It is quite clear
under this present system that is not happening, just as it did
not happen under the old system, and that makes the work of your
Committee so important. I feel I have not helped you at all find
a way of teasing out that middle ground, but that is why we are
here this afternoon.
Q146 Chairman: Exactly. I hope that
by the end of the afternoon when we have finished questioning
you that you all may have contributed to a solution which will
form part of our report. Mr Richard Shepherd.
Mr Shepherd: Thank you. I do not
believe you can tease out a solution to this. Your introductory
remarks suggested, and I think you used the words, "divide
up in an agreed manner" and reconciling that with the consideration
of Bills. The historic role of legislation going through this
House has to be to cast the Opposition as the determinant of how
a Bill is driven. The Government proposes, it has a majority,
it believes that the measure that it is proposing is appropriate
and in the interests of the nation and, therefore, it is up to
the contrary view to present its arguments, and that is how Parliament
has always functioned. When consigned to Committee without date,
although we all know that there were informally agreed out-dates,
the Opposition itself determined where it was. It was what Sir
Geoffrey Bowman, I think, said to you, sir, and I in another Committee,
that the political consideration of measures, the legal consideration
is done elsewhere. In that context these measures that have come
in front of us, Sessional Orders, etc., strike at the very heart
of the primary purpose of Parliament, which is the antagonistic
contesting of Government's propositions. It is true that Government
is Government because it has a majority and it will ultimately
get its way, but we have a long history of weighing the balance
of how this has gone right through the last century and even Erskine
May itself says of these guillotines, because that is what
we are dealing with, we are looking at a system that has no distinguishable
features from the guillotine as was practised. I will just quote
from the 1997 edition a short passage which says: "Guillotine
motions . . . may be regarded as the extreme limit to which procedure
goes in affirming the rights of the majority at the expense of
the minorities of the House, and it cannot be denied that they
are capable of being used in such a way as to upset the balance,
generally so carefully preserved, between the claims of business
and the rights of debate". I think it is very important to
remember where we come from. If we look just across the last half
century from the great Labour victory of 1945, in 46 years only
67 Bills were guillotined; only three in the Parliament when Labour
came in with that huge programme of social reform, only three
Bills were guillotined. Yet in the six years of New Labour from
3 June 1997 to 21 October, despite the attempts of my good friend
and colleague, Sir George Young, and others at this table to try
and make progress by signing even an agreed timetable motion,
and six of them took place, this Government has now guillotined
94 Bills. It is a systematic way of asserting majoritarianism
and, therefore, defeats and disengages both Members of Parliament
and the public from the process of legislation.
Q147 Chairman: Before I ask my colleagues
to come in on those questions that they wish to ask, specifically
can I ask Richard Shepherd: in your alternative draft report for
the Modernisation Committee, you advocated a return to the system
of guillotining Bills when the Government has found "that
the delay in the scrutiny of Bills by the House is unreasonable",
rather than using programming from the outset. How would you define
"unreasonable delay"? In the previous system, did Standing
Committees not waste time, as has been said by at least one or
two of our witnesses in their comments in response to my question,
clocking up 80 or 100 hours before the guillotine was actually
imposed? Is not the programming system perhaps a more constructive
way to achieve organised debate?
Mr Shepherd: Yes, it is true,
and still in Standing Orders, that under the guillotine procedures
as set out there, debates could go on in Committee until such
time as the Government decided that this was counterproductive
or not in its interest or inappropriate. That was a decision the
Government took. It could be supported, as everything in this
House, by a majority on the floor of the House of Commons. They
also had to take the consequences of that. It was something to
do with the terms of trade, as I think Sir George has often alluded
to. There was a degree of negotiation that could take part in
that. I just make the note that even under what is a difficult
old system, in 52 years only 46 Bills were guillotined and that
meant that the Opposition had a run of striking at those, and
that was all parties at the time, which they thought were inappropriate
or politically sensitive or whatever the political judgment that
was made by the Opposition. This has totally changed that and
taken it away. On the apportionment of Bills, who knows where
they are to be apportioned. I think back to the Poll Tax Bill.
It was its lengthy process through the House of Commons that actually
began to unravel the argument that the then Government was advancing
so that it limped on to the Statute Book with a growing opposition
from Conservative Members of Parliament themselves. It was the
process of examination, long, lengthy and painful, that enabled
people to actually reflect, "I begin to understand what this
Bill is about". We are now having a gaggle of Bills go through.
I am sorry to give such a lengthy answer but the nadir of the
present system was on 29 January 2001 when the Government introduced
the Criminal Justice and Police Bill, as you may remember. It
was done under a tight guillotine, I would call it, a timetable
motion. In fact, it could not report out of Committee because
Ann Widdecombe stood up and, therefore, it had to be reported
back to the floor of the House of Commons that it had not concluded
its discussion. What had happened there was the Bill had only
reached clause 90 out of 132 clauses. There were amendments yet
to be considered, and this was the important section on the police
itself. By doing that, the Government then retreated, and I think
this is the motive behind much of this, to an Order which says:
"The Bill shall be deemed to have been reported to the House
as amended by the Committee and if those clauses and schedules,
the consideration of which has not been completed by the Committee,
had been ordered to stand part of the Bill with the outstanding
amendments which stood on the Order Paper in the name of Mr Charles
Clarke." The Speaker advised the House that there is no precedent
for such a motion, ie the House voted for a lie. I have taken
the extreme case but this is where this dainty argument leads
to.
Chairman: Thank you very much. We have
had some forceful views expressed. Are there any supplementaries
on the answers that we have received so far?
Rosemary McKenna: Specifically on the
last point, and it ties up with the point that was made earlier
that the Bill was reported to the House, that particular one and
others, where not all the clauses have been discussed. Is that
not because the Opposition was at that time playing games and
deliberately not allowing discussion about specific clauses in
order to be able to then say on the floor of the House that this
was not discussed? Is not all of that what we have to get our
heads round and try and say we want to find a method here of taking
things forward where that kind of thing cannot happen? I agree
with Graham Allen, I think that it does bring us into disrepute
if we are seen to be playing that kind of game.
Q148 Chairman: I think that is really
for Richard Shepherd to answer.
Mr Shepherd: In respect of the
Bill itself, the Chairman of the Committee stated that there had
been no impropriety in the discussion of that Bill.
Q149 Rosemary McKenna: To say there
is no impropriety is because it fits the rules of the House, but
it is if there is a deliberate ploy to prevent discussion. I have
sat on a Bill where I have been there for a couple of hours thinking,
"Why are we discussing this clause? It means absolutely nothing".
I now understand that it was a game that was being played. Would
you not agree that there are often occasions when games are played
that are not helpful?
Mr Shepherd: Within the envelope
of the timetabling?
Q150 Rosemary McKenna: Yes.
Mr Shepherd: I am sure there are,
as there always will be in any system. Unless you are going to
say that I have to debate line one within one and a half minutes
and spell it out, I do not see how you can stop that. Debates
find their own feet often within the envelope of the Committee
stage. That is my concern, that you are cutting out the proper
consideration that it is for the Opposition to determine where
they should fall. Most legislation actually is non-contentious,
we all know that, and in fact would go through routinely. The
Liberal Democrats, for instance, supported the idea of timetabling.
What has happened in the event is they are now consistently voting
against the timetabling motions, for a variety of reasons which
this Committee understands and which presumably will form part
of the discussion the Committee is going to have.
Q151 Mr McWalter: I think the representations
we have had so far are far too interesting to leave without some
supplementaries. I was going to ask a question of Graham Allen,
because when I first came to the House I had a conception of a
Government Whip which I now know to be highly inaccurate, and
you were in fact my regional Whip and I very much admire the way
you did the job and the extraordinary rationality and responsiveness
to Parliament which you showed, but you got sacked! I was wondering
whether somebody is going to stay as a Whip who is perceived to
be giving scope to the Opposition, or someone who is seen to be
giving scope to those members of the Government side who have
a less than fully developed capacity to be a Trappist monk. The
problem comes down to the fact that Government and Opposition
both have a rather macho view of what counts as a Whip or what
counts as a Leader of the House or what counts as the sort of
person who can be trusted to deliver, and those mechanisms in
fact mean that it was not an accident you ended up with some people
who were hard to work with, you were replaced by people from outside
as it were who were hard to work with as well. Is there anything
which should be done about those mechanisms?
Mr Allen: I regard myself as a
recovering Whip; as a poacher turned gamekeeper for a period and
hopefully now back poaching, Sir Nicholas. I hope I did my job
conscientiously and imaginatively, but nonetheless in terms of
programming that was something that the Whips' Office as a whole
but certainly very strongly under the leadership of Mrs Taylor
decided was a positive way to go.
Q152 Mr McWalter: She has been sacked
as well!
Mr Allen: On this issue, to be
serious, it was felt this was a commendable thing to do. We were
trying to make Parliament work as best we could, certainly not
releasing Parliament from the control of the executive because
we had that out-date, which is what the Government wants. In an
odd way, law is regarded by the political classes, and by that
I mean the civil servants and the executive, as being far too
important to leave to Parliament, and that is why we have what
is normally a farcical Standing Committee process. There can only
probably be one person in the room who feels any sense of satisfaction
having sat through a Standing Committee process; it is not a fulfilling
job. You are there essentially to go through a ceremonial, you
are not there to give a positive contribution. In many ways that
is why some of us have sought to invent pre-legislative scrutiny
because legislative scrutiny is so appalling and so trivialising
and so missing of all the key political issues. One of the key
things about programming too is that it allows not only the Opposition,
which I have made great play of and for good reason, to participate
in debates but sensible, agreed programming between the Whips—and
it has to be between the Whips, whether as many members of the
Committee are involved, as Mr Tyler says, as possible but at the
end of the day somebody has to be responsible for doing this deal—and
the Whips acting sensibly can under this system ensure that Government
backbenchers can make a serious contribution too. Invariably,
under the current system Government backbenchers are told to shut
up and bring their correspondence to Committee; another absolute
farce which if people outside knew was going on would be outraged.
Again just in my most recent experience on the Higher Education
Bill, clearly there were strong differences in the Government
party on this issue and they were expressed, not merely very eloquently
by Mrs Campbell and Mr Mudie, from one point of view, but also
from people who thought the policy was an extremely good one,
who were allowed to express that view without taking precious
time from the Opposition, who participated very well in those
debates. So I think it is quite important to see this not merely
as a way of getting the business through the House but within
the very tight constraints of the Standing Committee process—which
we really should break the taboo on and have a look at whether
we can do it better and in a different way—ensure that Members
of Parliament can express their views and bring their experience
and their constituency view-point to make better law. I have not
been on a Standing Committee in my 16, 17 years in the House which
actually ultimately has really made better law in the way I would
be satisfied defending it publicly; it has been a formality most
of the time.
Mr Atkinson: I would sympathise with
a lot of what Mr Allen has just said, having sat through 176 hours
of the Local Government etc (Scotland) Bill as a Government backbencher
and never opened my mouth once. I know the feeling.
Chairman: That was your fault!
Q153 Mr Atkinson: The problem, and
I talk now as a current Whip so I do not have any views, as you
know, Chairman, is an out-date is fine but the Government can
abuse that out-date, and as the Government's legislative timetable
gets under pressure then that out-date becomes unreasonable and
that makes a mockery of the whole idea. The out-date works informally,
but if the Government tries to shorten that period of time it
does not work.
Sir George Young: You will only
get the Opposition to agree the internal divisions of a Committee
stage if they are comfortable about the out-date. Where we indicated
assent to programming motions in the last Parliament, that was
because we had agreement on the out-date. That has to be a pre-condition,
as Mr Atkinson rightly says. If there is no agreement on the out-date
then of course you will not get agreement on the subsequent division
within a constricted timetable. If one wants to take this trick,
and I think there is a way through, there has to be an element
of trust and understanding between the various parties involved.
A key element has to be the out-date. Now the Government can carry
over Bills, a flexibility they did not have before to the same
extent, it ought to be easier to reach agreement with the Opposition
parties on out-date than it was before. Once you have achieved
agreement on the out-date then you can have a sensible discussion
about how you divide it up. So Mr Atkinson has indicated a possible
barrier which, if it was removed, might enable us to make sensible
progress.
Mr Allen: If we go into game-playing,
all bets are off and we can all muck about and make 80 hours-worth
of speeches, et cetera, but we are no better for it. If we act
maturely, and the attempt to programme was a way of trying to
get Parliament to act maturely, we can do better on scrutiny and
we can do better on accountability. In terms of the out-date,
Sir George is absolutely right. One of the possibilities your
Committee, Sir, might consider is this is a matter of parliamentary
process, and whether we parliamentarians see Parliament as a fight
between an executive and a potential executive, which I think
with respect is Mr Shepherd's view, or whether we see a very distinct
parliamentary interest which is not always even within the governing
party necessarily in favour of the executive, which is my view,
I think the Speaker, who speaks for Parliament, with the authority
of Parliament, might be more deeply involved in agreeing in a
sort of objective way, or as objective as we can be, with the
various parties the appropriate length of time, perhaps starting
by going on precedent. Certainly when I was doing programme motions—I
do not know if it is the same now—it used to be the Deputy
Speakers who would be there to agree the programming sub-committee
timetable, and they would be in the chair in a Standing Committee.
That brought some authority of a neutral nature which actually
assisted me as a Government Whip in ensuring we had sensible,
external and internal timetabling. So whether the Office of Speaker—and
I do not mean the Speaker personally—could be used in a
sensible and mature way by all parties to help this process on
is one possibility. If we choose not to take that, if we choose
to play games, as Ms McKenna says, all bets are off and we can
be sat here, as we used to be, until late at night or in Committee
spending two or three days on clause 1, line 1, rather than doing
what the electorate put us in to do, Sir Nicholas, which is to
scrutinise and make the law better.
Q154 Chairman: Thank you very much
for that. I think this Committee will give very serious consideration
to what you say. The only danger and problem is just how far can
the Office of Speaker get involved without the Speaker trespassing
into what could become party political, and we do not want to
undermine in any way the impartial and vital role of the Speaker
in presiding over this House and the interests of this House.
Mr Tyler: To add a couple of points,
Chairman. Safety valves, I think, are extremely important here,
partly because we want to prevent the Speaker being dragged into
a difficult situation. Two safety valves seem to me important.
One is where a very considerable number of Government changes
are proposed during the Committee stage. I believe very strongly
that the Committee, under the guidance of the chair of that Committee,
should then have a responsibility, not just a right but a responsibility,
to seek out whether there could be an extension of time. There
have been occasions when the Government has agreed to extensions
of time but I think it should lie with the Committee through the
chair to have that safety valve. The second safety valve, where
it is apparent to the Committee and particularly to the chair
that sections of the Bill have not been given adequate scrutiny,
there surely should be additional time at the Report Stage on
the floor of the House for the consideration of those parts of
the Bill which have not been considered. At the moment there is
a ridiculous situation in this House—it is one of those
misnomers we all live with—you have a Report Stage but no
report from the Committee. A report from the Committee which indicated
which parts of the Bill had been debated would help to exert pressure,
in the open air of publicity, to demonstrate at Report Stage what
was appropriate.
Q155 Chairman: Can I ask Richard
Shepherd whether he would agree with that last remark?
Mr Shepherd: I do, yes.
Q156 David Wright: I wanted to return
to a point Mr Fisher made earlier and broaden it a little. One
of the problems I perceive is that the Queen's Speech is no longer
clearly an announcement of the Government's programme of business,
it is an exercise to put across a message to the country on a
particular day. Do we not need to have a much more comprehensive
annual programme of legislation which is discussed by the parties,
where there is an agreement about which Bills are likely to be
contentious and which Bills are likely to secure a deal of agreement,
and do we not need to split parliamentary time accordingly, maybe
have certain Bills with two or three days of debate on Second
Reading, others perhaps could have a Second Reading in maybe half
a day. We would then need to allocate Committee time and Report
Stage time more effectively. We carry over, as Sir George has
already mentioned, so we have an opportunity to move Bills between
sessions. Do we not need to have a much more mature debate about
an annual programme of legislation?
Mr Fisher: I entirely agree. That
last point is very well taken. I also agree with Paul Tyler's
point about a genuine Report Stage. I would like to tie what David
Wright has said to what I touched on in my opening remarks, the
idea and necessity I believe in a number of different areas for
a Business Committee of this House, in which the Government would
have a very important part but the House itself would have a very
important part and it should not be under the complete control
of the Government. Then, as it were, an annual Second Reading
Debate on the programme of that Business Committee, looking at
how the House is going to spend its time over the year, allowing
the very strategic arguments about what this House is legislating
on, for and why and in what proportions over the year, would be
one part of that. But it strikes me you have encapsulated, and
the debate so far has reinforced your encapsulation, the nub of
the problem, which is goodwill, and this tension of vested interest
between Government and Opposition. The only way round that I believe,
and Graham Allen has touched on this as well, is to put it into
a safety valve chamber, as it were, and a Business Committee would
allow these things to be worked out reasonably, and have a chance
of working them out reasonably and rationally there before they
get into the games playing and the posturing which has so bedevilled
the old system and the new.
Sir George Young: I agree with
Mark Fisher that we should seek to repatriate the business of
the House, but it would have to be done in such a way that the
Government was able to get its business through. If I could draw
the opposite conclusion to the one Mr Wright has just drawn, one
could say we no longer need the Queen's Speech at all. We are
moving away from an annual programme of Bills towards a rolling
programme of Bills which can be introduced at any point in the
cycle and simply carried over. So one could draw exactly the opposite
conclusion, that there is now less need for the sort of process
he described in November because you are no longer confronted
with a cut-off in October. So I think we can play that argument
both ways.
Mr Tyler: I wanted to endorse
absolutely what David Wright said. In fact this was a recommendation,
Chairman, as you may recall, of the Modernisation Committee, Second
Report of 1999-2000, paragraph 18: "There should be discussions
at the earliest possible stage of the Government's legislative
proposals as a whole. We propose therefore the Government should
begin informal talks with all parties just after the Queen's Speech."
I will not read the whole paragraph. That meeting took place when
Robin Cook was Leader of the House just after the Queen's Speech
of 2002 but has never been repeated, although that report was
actually accepted by the House. So implicitly, and as a start,
the system is in place but it has not been used.
Mr Allen: Our legislature is owned
lock, stock and barrel by the executive, and therefore nothing
we propose will get through unless the executive approves of it.
Why should the executive change? The executive might change and
allow Parliament more independence and more effective scrutiny
because the system is currently failing. We are producing appalling
law, we come back year after year trying to put it right because
we rushed it through last year. Personally my experience of leading
on the Child Support Agency Act is a classic one, we have come
back now four times to try and get that right. On Criminal Justice
we have come back. Because we do not listen to people. So we have
to do that. But even Governments may see that Parliament can add
value to this process if Parliaments are allowed to get on and
do their job properly. In terms of the Business Committee, I think
that is where we are going to have to go ultimately on this route,
and I would commend some of the work which Mr Fisher was going
to put in as evidence to the Committee, and I hope he will, in
respect of the Business Committee concept. I think it is extremely
valuable and I think would command all-party support.
Q157 Chairman: Do you think then
that the House itself through the Business Committee if we have
one, should be responsible for tabling changes to Standing Orders
rather than the Government tabling them? Because really the power
of the executive rests in its authority to be in charge of Standing
Orders.
Mr Allen: I think that is a possibility.
We could get there but we would need to take the executive with
us, since they control every dot and comma of our daily agenda.
One of the answers to this problem is to have proper pre-legislative
scrutiny. If we had proper pre-leg we would not have so many amendments
at the end and in fact we would be in a position to say, "We
will not tolerate amendments at the end because this Bill has
gone through the proper process. If you want amendments you are
going to have to bring forward a new Bill." That would sharpen
up and discipline the Civil Service if we had pre-leg. One of
the things about the executive is that they told me, when I pressed
this, "We cannot even let the chairmen of the Select Committees
know what Bills are coming up because we need to reveal them in
the Queen's Speech." What an absolute nonsense. There is
a long list circulating and has been circulating for six months
in Whitehall of Bills which will be in the Queen's Speech, or
the Queen's Speech will be drawn from next time round. Really
it is quite important we tackle both those questions. One of the
key changes would be the one which Mr Wright has proposed, which
has a long history, and also the way in which Mr Fisher has worked
through this concept of a Business Committee which I would commend
to the Committee for examination.
Mr Shepherd: A whole series of
ideas. I do not accept, first of all, that the Government has
a right to its business. That is a very modern construction and
we have just seen, for instance, on the top-up fees issue that
many people took my view that they were not necessarily entitled
to their own business. That is part of the parliamentary process.
It was not a manifesto commitment. I also take exception to Parliament
owned lock, stock and barrel by the executive. That is a slur
and reflection on us. Parliament is up to us. Unless we assert
that, unless we only see ourselves as creatures of party, it will
be owned by the executive. It is up to us as individual Members
of Parliament to assert, and that is in a sense what we are trying
to do here. Whether it is to seek it through programming or whether
there is a Commission of the House of Commons which sets that
up, ultimately that has to be taken by a vote on the floor of
the House if Members feel strongly enough about it. We know two
Committee Chairmen who were returned to their places when the
Government tried to stop it. That was the view of the House. So
I am not negative about the role of Members of Parliament, I think
there are days and tides in the fortunes of all Governments where
what Graham is asserting is not absolutely true. It ought not
to be true if we believe in the purposes and functions of this
House as elected representatives. So I do feel strongly about
that. All I came here to identify was, the tables are there now,
I believe your distinguished Committee has sought the information
on how this is working, what is the time allocated to every individual
Bill, have they considered parts within the time. I did not properly
respond to the question on the Criminal Justice and Police Bill,
it came out with its order on 31 January and this 120-clause Bill
had to report back by 6 March. That is the sort of timetable we
are consistently getting. We can make wider comments that there
is far too much legislation. I have been here 25 years, you, Sir,
have been here a lot longer, and I cannot remember even half the
drivel of legislation which has gone through here as parties have
asserted the new nirvana and the world will be improved by the
advances we make. That is why I want to see the culture of Parliament,
our own self-esteem, revived. It cannot be as long as these matters
are determined beyond our grasp and we can make them within our
grasp.
David Hamilton: As someone who has only
been here three years, I have this concept in my head of a light
at the end of the tunnel but the tunnel is never-ending. The independence
of Parliament and goodwill of Members are alien concepts to me
because I have not seen that since I have been here. As an ex-miner
who is used to confrontation, I find this place rather bruising.
One of the things I would like to ask about, and maybe I am not
aware of it, is pre-legislation. The good thing about pre-legislation
is it allows maximum discussion at a time when confrontation is
not there. If the Government come forward with an idea of where
they wish to go, pre-legislation allows that debate, not a heated
debate, not on a timescale which is restricted, it allows the
debate to take place. I think, Mr Chairman, with your guidance,
one of the things I do think we should do is look at the Scottish
Parliament example where there is a very new concept but it has
been working very well. I think pre-legislation tied up with the
Business Committee which has been talked about, is an idea we
should take on board. I would be interested, as Graham Allen has
mentioned pre-legislation, to hear the points of view of other
senior members because I think that is an option which could assist
us through this process.
Q158 Chairman: Could those who have
not answered, and Graham Allen has, indicate their support for
pre-legislative scrutiny?
Mr Fisher: Entirely. I would go
further and say Mr Hamilton's point about the Scottish Parliament
is also true of a Business Committee. I believe you have something
akin to a Business Committee there. If your Committee was minded
to look at bringing a report back to this House of the way the
Scottish Parliament deals with both those things, we would be
hugely in your debt, Sir. One further thing, you were talking
about Standing Orders and the power they give. There is one key
Standing Order and I have not got it in front of me but I think
it is Number 14, and that is the lynch pin of the Government's
control. It is that Standing Order which says that only the Government
may put substantive motions on our Order Paper. It determines
the business of the House. I think it is Number 14. It is that
which gives control, that is the post-Irish question Standing
Order.
Q159 Chairman: I have just had a
word murmured in my ear. It may be 14 but the Government has "the
priority".
Mr Fisher: Precisely, it is the
priority over all else that neuters the House and makes it very
difficult for the House to have an independent identity, much
less an independent responsibility. It must be the only organisation,
club, society, institution, which cannot determine of its own
free will what its business is, what business is put in front
of it. We are in the hands of the Government because of Standing
Order 14. The Scottish Parliament has managed to form, as I understand
it, an orderly way of doing business without putting their head
into the mouth of a Standing Order in that way. I do hope your
Committee will look at how they have managed to achieve that.
Sir George Young: The Government
is doing well in producing more bills in pre-legislative form
but it ought to do even better.
Mr Shepherd: I have served on
two of these pre-legislative committees, on corruption and on
freedom of information, and in both cases the Government rejected
the solid work done by us and proceeded ahead. It is a mixed answer
that I am giving here.
Mr Tyler: I very strongly endorse
both of the points David Hamilton made. Just to add two other
advantages of the pre-legislative process. One is you can have
a Joint Committee of both Houses of Parliament so you can have
the advantages of both Houses and the expertise from both Houses
working together on the Bill. The other is, it is not constrained
by the parliamentary year. You do not have to close it off. You
can start the pre-legislative scrutiny at this time of year, carry
it through into the next session and then produce the Bill later
in the next session. Both are practical advantages.
Mr Allen: May I apologise for
having to leave the Committee, Sir Nicholas, I have an appointment
with a Government Minister. Can I strongly endorse pre-legislative
scrutiny. Could I ask the Committee to consider whether it would
recommend that pre-legislative scrutiny should be the standard
process rather than the process which may be adopted, the standard
process from which you can deviate if you wish, so that can take
place. In the strongest possible terms can I recommend that last
great extension of franchise, if you like, in that pre-legislative
scrutiny should take place on-line so that the electorate themselves
may feed in bright ideas as Bills develop conceptually in the
pre-legislative state. This worked incredibly well on the Communications
Bill when it was tried. I think allowing the electorate some influence,
as they have done very effectively through the Petitions Committee
for example on the Scottish Parliament, would be a break-through.
Certainly if the BBC did it, it would be one of the great break-throughs
for their public service obligation too.
Chairman: You have, I think, Mr Allen,
approached this Committee on the subject of petitions. If you
have not, another Member has. I am just advised by my Clerk that
you have indeed and we are in receipt of your letter and it will
in due course be considered. What you have said is now on record
and clearly will be taken properly into account by the Committee.
1 HC 1222 (2002-03), Ev 1. Back
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