Examination of Witnesses (Questions 240-259)
19 MAY 2004
RT HON
PETER HAIN
AND MR
PHIL WOOLAS
Q240 Chairman: That was very helpful
and the Leader will have the opportunity of responding.
Mr Hain: If the programme motion
moved after the second reading, clearly that sets an out-date.
If in the course of scrutiny it is felt that the out-date should
be extended or revised, then there is flexibility in the system
to do so, as we did, for example, with both the Pensions Bill
and the Higher Education Bill, largely, in the case of the Pensions
Bill, as a result of additional or an unexpectedly large number
of Government amendments. I think it is important to remind ourselves
in the round that there was never a golden age of scrutiny of
all bills, of every clause in every bill. That just did not apply,
as the Modernisation Committee reported, and in fact there was
actually deep and widespread dissatisfaction with the haphazard
nature of a great deal of scrutiny, concern over filibustering
and pressure from Members over a number of years of all parties
for some form of timetabling in Government Bills to be introduced.
So, I think that fine-tuning the system, as we did following the
Modernisation Committee's report and your own recommendations
as a result of further study will obviously be considered very
carefully, is one thing, but throwing the programming baby out
with the bath water is altogether another matter.
Chairman: I have to say as the Chair
of this Committee that that is not our intention. We believe there
is a role for programming and it is perhaps the finessing of it,
the fine-tuning of it and the role that the Opposition necessarily
needs to play in programming is what must be recognised.
Q241 Mr Luke: The Shadow Leader of the
House in his evidence to this Committee made the point that the
official Opposition do not believe that the majority of bills
need to be programmed. What steps do you take to agree on an out-date
from Committee on a voluntary basis before deciding to table a
programming order?
Mr Hain: First of all, I think
that you cannot have programming on an ad hoc basis. You either
decide to operate in that way for legislation or you do not. It
is always the intention and it is indeed in the Government's own
self-interest to generate a consensus with the Opposition through
the usual channels. I think it would be a mistake to use programming
only where we cannot agree as a weapon of last resort. I think
it works best when we can achieve a consensus and I think the
existence of programming encourages and can to some extent force
a consensus. On the issue of an out-date, there is scope for that
to be revised and it has been revised in the two examples I have
quoted and I dare say will be in the future.
Q242 Mr Luke: Obviously the out-date
may well be the major point of divergence between yourselves and
the Leader of the Opposition. How much on average does the out-date
differ between yourselves and the Opposition?
Mr Woolas: All out-dates are discussed.
The imperative on the Government for an out-date is actually determined
by the required Royal Assent date first of all, which may be in
itself determined by financial, legal and real-world events. For
example, the out-date on the Higher Education Bill, believe it
or not, the whole timetable was determined by the requirement
of the University Admissions Departments to print their prospectuses.
They told the Department for Education that they had to be ready
by the first week in January and the legislative timetable worked
backwards from that. The second criterion is of course the House
of Lords because, as well as the usual channels where we have
specific timetabling within bills here, we also of course have
to be very cognisant of the timetables—they do not do specify
timetabling in bills but they have their plan for the legislative
programme overall and of course the Government do not necessarily
have their say in there. Those are the two main criteria. For
the Opposition—and it is not for me to say but in my experience
of the conversations—they will take a judgment which is
political, that is in part their job, what they can get out of
cooperating in one area that they want in another area and is
also down to pragmatic things and I think one of the changes that
has helped programming and that discussion take place in the better
way is actually the parliamentary calendar because there is a
general acceptance, although there can be flexibility forwards
and backwards, that the parliamentary calendar does help in timetabling
the overall legislative programme and, within that context, the
discussions will take place.
Mr Hain: I think it might be helpful
to add, further to that question that, if the concern is that
the Government are not providing enough time in some instances,
I should perhaps report to the Committee that, of the 15 standing
committees that were reported this session, four have reported
early. So, provided there is flexibility and provided that the
Government have some certainty about the out-date and are in a
position to have significant influence over that through programming,
then the scope for filibuster and for wrecking tactics in terms
of the progress of the Bill is reduced but actually, from the
Opposition's point of view, the opportunity to focus on the things
that really matter to the Opposition are improved. So, it is a
win-win when it operates properly and, by and large, it is operating
properly.
Q243 Chairman: So, what you are saying
to the Committee is that you yourself do see an increasing use
of flexibility because, while the out-date may be finite and must
be stuck to, what goes on in between before the out-date is reached
really is very much for the Committee and clearly, in that debate,
the Opposition Parties will be able to dictate very much what
they want time to debate.
Mr Hain: Yes and that happens
in practice. It is not in the interests of the Government to frustrate
the Opposition from the ability to focus on the things that it
really wants to focus on. It is in our interest to encourage that,
otherwise you do not have a proper scrutiny of the bill and you
do not have an opportunity to build a consensus. The Government
have no interest in creating circumstances where there are not
the greatest opportunities for a consensus. It is in our interests
to get one.
Q244 Chairman: So, you would share the
view of all who are deeply concerned when a bill leaves standing
committee with many of its clauses and schedules and new clauses
undebated?
Mr Hain: Yes and no. Yes and no
in the sense that this has always happened. This is nothing peculiar
to programming. It has always happened that a limited number of
clauses and schedules have been subject to detailed scrutiny,
partly because the others may well not be regarded as sufficiently
of concern or may be non-controversial or completely acceptable.
So, I do not think the fact that a chunk of a bill or a schedule
or two has gone unscrutinised or undebated means that therefore
there has been a complete failure. It may well be from the Opposition's
point of view, in fact I dare say it is likely from the Opposition's
point of view, that actually nodding that business through means
that there is no real concern about it and that you focus on the
areas where you have concern, otherwise you would never get any
legislation through and the Government could not actually govern.
Q245 Mr Luke: In some cases, there is
quite a gap between the end of the Committee stage and the Report
stage in the House. Does that not indicate that, in some instances,
you may not be as generous with the time you allocated for Committee
stage as you could be?
Mr Hain: I do not think so unless
evidence is provided to the contrary. I think there is a great
deal of advantage of going into Committee in the way that it does
reasonably quickly after the Second Reading in order that the
Bill can be progressed and in order that you can manage your business.
As you will understand, the Government have to manage a whole
number of bills at the same time at various stages in both this
House and the House of Lords and, unless you have some certainty
about where you are going and when, the whole system can become
pretty chaotic.
Q246 Chairman: How would you respond
to the Civil Contingencies Bill that reported in February and
is only coming forward for Report and remaining stages next week?
Mr Hain: I just respond by saying,
that is what is happening!
Q247 Chairman: It is unfair of me but
that is an example and the Civil Contingencies Bill is an important
bill and it might have had extra time for debate because it is
not now until May, having reported in February, that the bill
is going to be in its Report stage and remaining stages.
Mr Woolas: There is a natural
pressure, I think everybody in the room would recognise, on governments
of any colour to want to get there early and the pressure upon
the floor and the Leader of the House to allocate a time for debates
and so on is not as flexible as people, particularly at 12.30
on a Thursday, would have us believe that it is. In that particular
case, I do not think it would be fair to say that insufficient
time was given, given the nature of the bill. That is not, as
you know, Chairman, a particular party-political bill. I think
the other point I would add, if it reassures members of the Committee
on this point about how one decides how much time to give to each
section of the Bill, it is often the case that one's own back
benchers will be a major criterion as well as the Opposition in
how one timetables. I can think of the Commonhold and Leasehold
Reform Bill where back benchers on the Government's side had genuine
important constituency interests and were demanding much more
time on those clauses than indeed the Opposition and the Government
Whips were, and that we were able to accommodate but of course
the danger without timetabling in that particular instance is
that those back benchers, who very reasonably were putting forward
their constituency point of view, would have taken a lot more
of the Committee's time by tabling amendments and forcing debate
had they not got a satisfactory chunk of their timetable. So,
when one timetables on a programme motion, it is not just Opposition
Government, there are other criteria, and I know that that happens
on the other side. Often the back benchers on the other side gang
up on the Whips and demand time and I believe that the programming
facility can allow those pressures to be reconciled in a mutually
convenient and satisfactory way.
Q248 Huw Irranca-Davies: Could I test
you a little further on the issue of the out-date being set and
the correct timing for it and it may be helpful if I read to you
a short piece from the Hansard Society briefing paper of last
month in which they said, "There may be a case for a delay
between Second Reading and the fixing of the outdate, so that
points raised during the Second Reading of debate may be taken
into account." I inquire as to your view as to the possibility
of fixing the out-date either after the Second Reading or after
a few sittings of the Standing Committee, or perhaps that is too
flexible.
Mr Hain: I think it is clearly
preferable to allow Members, the Government and the Whips an opportunity
to consider the balance of debate and issues and concerns raised
in Second Reading clearly, but you also need to bear in mind constantly
the need to get that Government business through. I do not say
that in any steamroller fashion. On the contrary, we are just
as anxious and I think have good cause to claim through pre-legislative
scrutiny and so forth, to get as great an amount of common scrutiny
as possible, but the timetabling of the start of the Committee
and the out-date compared with the Second Reading has to be taken
in the round with the overall management of a full series of bills
to go on.
Q249 Huw Irranca-Davies: From your earlier
comments, you are clear that there is some flexibility in amending
the out-date once you are in that stage.
Mr Hain: Yes and indeed that flexibility
has been shown and demonstrated by what has happened just recently.
Q250 Chairman: As a supplementary to
what Mr Irranca-Davies was saying, do you not feel that it would
make a more rational way of proceeding if the Government and the
Opposition parties were able to take into account the issues that
were raised by Members during a Second Reading debate and not
have the programming motion taken immediately after the vote,
ie that there would be a gap, as Mr Irranca-Davies has said, of
a day or two and the motion could still then be put without debate
but it would have taken into account the issues raised during
the Second Reading debate?
Mr Hain: There are two issues
here. One is the out-date, which of course is set in the programme
motion and I do not think that is particularly an issue to change
unless, in the course of scrutiny, you decide to change it for
the reasons we have already discussed, but I think that, in terms
of the actual management of the Committee's business and how the
Programming Sub-Committee decides matters and so on, obviously
it is sensible to take into account what has happened in the Second
Reading.
Q251 Mr Atkinson: As a supplementary
to that, leaving aside the issue of the out-date—and Mr
Woolas mentioned the Finance Bill and, in the previous Finance
Bill, there was a lot of criticism from outside bodies that their
issues had not been properly debated—the Leader may be aware
that this current Finance Bill is not programmed at all. There
was not even an out-date on it and, since I am the Whip on it,
it is proceeding rather well.
Mr Hain: These are issues to do
with excellent whipping on both sides!
Q252 Mr Atkinson: The issue is knives
or what we call the knives which I think are the problem to the
Committee and I think that the Programming Sub-Committee is really
battling in the dark when it tries to put in knives at an early
stage of the proceedings. The question I want to ask you is, if
there is an out-date agreed, formally or informally, providing
that is stuck to, why is it necessary to have knives at all because
the Government get their business when they want it and therefore
the speed of the Committee and the way it proceeds is really in
the hands of the usual channels and the Opposition?
Mr Hain: Can I first of all say
on the Finance Bill, I think it is very much a special case and
has only recently been programmed. Provisions have always been
subject to wide consultation and, as you indicated, we achieved
formal agreement on the timetabling of the Bill this session,
so a programme motion was not necessary. On the other hand, if
progress were not to be made, we would not hesitate to programme
it. The other reason of course is that the Budget was a lot later
last year. On the question of knives, I think it is significant
that, following the Modernisation Committee's report—and
I do not mention that report in any gratuitous fashion but I think
it has helped improve things and doubtless the Procedure Committee's
consideration will do the same—and representations made
by the Chairmen's Panel, we significantly reduced the number of
internal knives this session. The Committee might find it useful
if I just gave some of the facts here. Of the 17 programmed bills
which have been committed to Standing Committee this session,
eight have had or are expected to have no knives incorporated
into their programme resolution, apart from the end time, the
out-date. Of the nine bills so far where Programming Sub-Committee
has agreed to the incorporation of knives in addition to an end
time, two had one knife, two had two knives, two had three knives,
one had four knives and two had five knives. So, I think the balance
of that shows that knives are sparingly deployed. In the last
session, in total nine bills had no knives, one had one knife,
three had two knives, five had three knives, four had four knives,
one had five knives, one had six knives and one had seven knives.
Those are figures which I do not think have been fully checked
and, when it comes to the record, they probably will have been
in the meantime, but they are of that order. So, what I think
you get is a picture of, yes, knives deployed but not, as it were,
knifing members of the Committee in the back the whole time but
used in a sensible and sparing fashion to permit the focus to
be on key debates and issues of concern.
Q253 Huw Irranca-Davies: I think that
the Leader of the House has gone a fair way to answer this question
but it would be worth clarifying it. At the risk of using that
over-used phrase the "middle way", one of the matters
of evidence we received is the feeling that, in terms of knives
and guillotines, where in the good old days before I was here,
you could get into debates on committee that would clock up 80
or 100 hours before finally a guillotine would be invoked in order
to stop it in its tracks as it had gone too far ahead, certainly,
at least one person said to this Committee that they feel now
that it has gone the other way where you actually have those guillotines
and the full programming in place before you even know what is
coming and it could be followed by a raft of amendments as the
Committee begins and that gives it no flexibility. So, what do
you feel about the middle way approach where you get into a Committee
stage and then you decide what is going to happen in terms of
guillotines?
Mr Hain: Perhaps I could bring
in Phil on this to speak from his own experience.
Mr Woolas: What is happening is
that the pendulum is swinging back. At the extreme before programming,
one would look at the National Minimum Wage Bill which had the
longest sit-ins of Standing Committees that we have ever had and
I speak from personal experience. The difficulty, apart from the
time, was that it was not as if in practice the Committee members'
time was spent discussing each clause and each schedule. In practice,
what happened was that a particularly controversial area would
be strung out for many hours and that meant that progress was
very difficult which meant that guillotines were used. When knives
were introduced, the prime purpose of the knife, as was explained
in the debate on the House, is in fact not to benefit the Government
but is to benefit back benchers and, crucially, outside bodies.
If one looks at the Local Government Finance Bill, which was a
bill of I think five chapters, each chapter was on a completely
different area and external groups, whether voluntary or statutory
bodies, were able to plan their own lobbying, their own travel
in their own time around those things. However, I think it is
fair to say that the knives were set too draconically. What is
happening now, as the figures that the Leader has just given by
relevant illustration, is that there is a more consensual approach
and more commonsense coming into it. So, I think that your middle
way has been achieved. It is often the successful way, is it not?
Mr Hain: Not a third way, a middle
way!
Q254 Chairman: Of course, there could
well be a problem if Opposition Parties have wanted to debate
what they consider to be particularly important aspects of a bill
and that in fact, from time to time, Members of the Government
or even Ministers might speak at abnormal length in replying to
debates which means that important parts of the bill that the
Opposition want to debate are never reached before the knife comes
down.
Mr Woolas: Equally, for reassurance,
the Government are trying to make this work and I believe successfully.
There are also many examples where ministers wish to put on record
their policy for very important reasons of clarifying the intent
of the law which is often what a ministerial reply in Standing
Committee is about, where a knife that is too draconian may prevent
or risk the prevention of a minister from being able to do that.
So, there are incentives from the Government side to make the
knives sensible as well and to cluster the debates around the
important things in the Bill.
Chairman: I can only express from the
chair that the wisdom and good advice that is flowing from Government
Ministers at the moment and from the Committee be practised by
the House on all occasions. Then we would get better legislation.
Q255 Rosemary McKenna: I think we all
live in hope is the answer to your last comment! So, you would
not agree with the Chairman of Ways and Means who suggested that
maybe all that was necessary for a timetable in a standing committee
is an out-date?
Mr Hain: No, I would not because
I think that for some of the reasons that Phil Woolas has explained,
from the point of view of Members focusing on the things—and
this is primarily back bench and Opposition Members, self-evidently—that
they really want to home in on and from the point of view of outside
bodies and members of the public who can then turn up with some
certainty and plan ahead for when the particular issue or clauses
that interest them are being debated, I think it is a sensible
way to proceed in the way that we are now.
Q256 Rosemary McKenna: I actually agree
with you from the other side because I spent a lot of time here
lobbying during the Local Government Scotland Bill and our officials
had to spend a lot of time in London in the expectation that an
issue was going to be discussed on a, b, c, d or whatever day
fruitlessly and very expensively when, given the present system,
you would be able to plan much, much better in a way which would
have been more effective and certainly more cost effective.
Mr Hain: Perhaps I could just
add briefly to that point by saying that the figures I have indicated
show that sometimes no knives are necessary and things can sail
ahead quite comfortably knifeless, as it were. I think it is also
important—and perhaps I should just put this on the record—that
programming does not take the politics out of Parliament. Rather
naturally, the Opposition tends to dislike Government legislation
and seeks to frustrate it, quite legitimately, that is the role
of the Opposition. I think the main conclusion must be whether
the main parties engage positively in the discussions on the programme
and can work very well including on the issue of knives.
Q257 Chairman: Would you say that the
role of the Chairman of the Business Sub-Committee is critical
in this?
Mr Hain: Yes, I do. I think that
the role of the chairman generally is critical. I would say that
in front of you, Chairman, but I mean that sincerely. I think
that a chairman who has the experience and the authority can bring
to the usual channels discussions and to the overall handling
of a bill a great deal of additional benefit.
Q258 Rosemary McKenna: You probably agreed
with the Chairman of Ways and Means when he said that although
there are often complaints of insufficient time to consider bills
in standing committee, the standing committees were showing a
marked unwillingness to sit beyond 5.30 which they could do without
having to amend the relevant programme. What is the Government's
attitude to the sitting hours and would you agree if the Opposition
asked for longer sittings?
Mr Hain: Yes. As you know, there
is no requirement, certainly not from the Government, for standing
committees to rise at a particular time; it is a matter for discussion
in each committee and the Government are always willing to accommodate
the wishes of the Committee. I do agree with the Chairman of Ways
and Means on this point. The 5 pm knife, if you can describe it
as that, has come to mean the close of play for the evening, though
there is no requirement that this should be the case. On the one
hand, I guess from the point of view of Members, there may be
some consumer resistance to going beyond that time because people
want to get back to their offices and have other business to discharge,
but there is absolutely no reason and we certainly would not want
to be in a position—and I can say this quite unequivocally—of
wanting the 5 pm end time to frustrate proper scrutiny and the
proper progress of the bill.
Mr Woolas: I would like to try
and help the Committee by giving a practical example. Pre-knives
and pre-programming when what took place may be described as filibustering,
in practice a lot of that contribution was in reality taking place
to help the respective front benchers get more time to prepare
for the next clauses. So, you could spend two hours on a clause
that either the Minister or the Opposition themselves were up
to speed on in order to give him or her time to get ready for
the next one. What happens with knives is that it helps everybody
plan their preparation time for the discussion of their amendments.
In fact, one of the strongest weapons of the Whip on either side
is the threat that says, "We are going to make you go beyond
5.00 if you don't play ball", and I do not mean in policy
terms, I mean in how amazing it is that that focuses the mind.
From the Government's point of view, the out-date is important.
How often one meets between then and for the duration is not actually
that important. On the start times, the 8.55 is mentioned a lot.
Only two per cent of standing committees in this session have
actually started at 8.55. A draconian Whip's Office would want
that figure to be 100% but, if the Committee could meet agreement
within itself—
Q259 Chairman: I think the chairmen prefer
the later one of 9.25.
Mr Woolas: The chairmen are omnipotent.
With or without a Business Committee, the chairmen decide the
timetable.
Mr Hain: I think there has been
a response certainly from our side on this because it was a matter
raised with me very soon after I came into post as Leader of the
House and we have responded. I understand that most committees
are now meeting at 9.30 am, some at 9.10 am, but only one this
session at 8.55 am.
Mr Atkinson: I think I should get on
the record that one of the reasons why we wanted to start at 9.30
was actually for the clerks who have to do a lot of work before
a committee starts and to start at 8.55 put a huge burden on them
to come in before 7.00.
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