House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

PROCEDURE COMMITTEE

 

 

PROGRAMMING OF LEGISLATION

 

 

Wednesday 11 February 2004

MR ROGER SANDS, MR DOUGLAS MILLAR and MR ALAN SANDALL

Evidence heard in Public Questions 1 - 46

 

 

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Procedure Committee

on Wednesday 11 February 2004

Members present

Sir Nicholas Winterton, in the Chair

Mr John Burnett

David Hamilton

Mr Tony McWalter

Sir Robert Smith

Mr Desmond Swayne

________________

Examination of Witnesses

 

Witnesses: Mr Roger Sands, Clerk of the House, Mr Douglas Millar, Clerk Assistant, and Mr Alan Sandall, Deputy Principal Clerk, Public Bill Office, examined.

Q1 Chairman: A very quiet, courteous and constructive entry, which is what we expect from the senior Clerks of the House of Commons. On behalf of the Procedure Committee, can I welcome Mr Roger Sands, who is the Clerk of the House of Commons, Mr Douglas Millar, who is the Clerk Assistant, and Mr Alan Sandall, Deputy Principal Clerk, Public Bill Office. Gentlemen, you will know why we are here. I think it is very appropriate that we should be undertaking an inquiry into the programming of bills and the way that it has operated since it became very much a formal and regular part of the way that the House of Commons considers legislation. Can I welcome you and thank you for being prepared to come and be questioned by Members of this Committee. Can I start from the Chair, and perhaps I should address all questions to Mr Sands as the Clerk of the House but obviously any of his colleagues can also comment. To what extent is it possible to improve, in your view, the operation of programming by procedural changes, and how much has to be left to the way in which Members themselves operate the system?

Mr Sands: I would certainly put weight on the second of those, Chairman. I indicated when I gave evidence to this Committee on a previous occasion that I sometimes feel too much weight is put on procedure and procedure is usually just a vehicle, it can be used constructively or occasionally it can be used destructively. I think concentrating on the way it is used rather than the details, although in our memorandum we do draw attention to a few details, it is the latter that I would recommend this Committee concentrate on.

Q2 Chairman: Thank you. By the way, I should have thanked you very much for your memorandum, P12, on the programming of bills. Before I pass on to Desmond Swayne, do you think that programming has worked or does require adjustment? This is a general question, not getting into the nitty gritty which will come later in our questioning.

Mr Sands: Undoubtedly the procedure works in a technical sense and I think that there are cases which one can point to. The Modernisation Committee in its last report on this issue pointed to two examples: one of good programming, as they saw it, and one of bad programming. I think if one went through most cases you would be able to put them into one or the other category. Again, I do not think it is fundamentally a matter of procedural adjustment, it is the way in which it is used and the safeguards which apply to its use. At the moment it has to be said there really are no safeguards. When it was first introduced it was seen as being essentially a consensual procedure. The term used in the early reports of the Modernisation Committee was "agreed programming". In all the initial examples during 1998 and early 1999 the motions were, in fact, agreed and were signed by representatives of all three main parties. The Government's ambitious programme of constitutional reform got through the House with surprising ease in hindsight largely because of agreed programme motions of that sort, but that consensus broke down in the course of 1999 and since then the whole procedure has become highly contentious in a party political sense and was, I think, at one stage, seen by the Opposition as just having been taken over by the Government Whips' Office and used in a very ruthless partisan fashion. You cannot do anything procedurally to cure that.

Q3 Chairman: But you still think that this inquiry looking into it is worthwhile?

Mr Sands: Yes, I do. I hope in particular that you might take evidence from the Whips of Government and Opposition to get their perceptions of how it has worked, whether the programmes that are presented to the House for agreement after Second Reading have been adequately negotiated or not, what sort of consultations go into them. I think that sort of informal background to the use of procedure is perhaps the most critical thing to look at just at the moment.

Chairman: Thank you. Do either of your colleagues wish to add anything?

Q4 Mr McWalter: Just as a follow-up to that. You say nothing can be done procedurally but if Members were aware of some of the data we have seen about the number of clauses of bills that have not been arrived at in Committee they may well take the view that the default should be that if there is no agreement between parties there should be something other than just the Government deciding what the timetable has to be. You say nothing can be done procedurally but I do not understand that. Surely something can be done procedurally and you could have a paper which sets out the options, perhaps with the authority of the Speaker or whoever, which actually says that the current system is failing in the following regards and the default position could be quite different from the position we have at the moment.

Mr Sands: Yes, you are quite right to pick me up on what I said, Mr McWalter. I realised as soon as I had said it that it was not accurate because of course you can do things procedurally. Originally when programming was first conceived by the predecessor of this Committee way back in the mid-1980s it was seen, quite rightly, as a very powerful tool and the suggestion was that because it was such a powerful tool it ought to be mediated through a fairly high level committee with quite a strong independent presence, let us say chairmanship by a Deputy Speaker or something like that. That suggestion has been repeated occasionally since then but has been constantly resisted by the Whips' Offices, I think it is fair to say, of both main parties, so I would rather put that to one side as a possible procedural remedy which is not in practice available. I think the same would apply to a stipulation which one could write into the Temporary Standing Orders saying that a programme motion will only get the benefit of these very drastic procedures if it is signed by Members of more than one party. I might mention that I was involved in the drafting of the Temporary Standing Orders as part of legislation in the year 2000 and that did feature in one of my early drafts but it did not survive the scrutiny of the usual channels.

Q5 Chairman: Is that not the problem, Mr Sands, that the Standing Orders of this House to all intents and purposes depend upon the usual channels, but particularly the usual channels of the Government party and that is because only the Government can table a motion to change Standing Orders? Is it not really about time that the House itself established a committee, perhaps under the chairmanship of the Speaker, to table changes to Standing Orders which would put the House of Commons rather than the executive back in the driving seat?

Mr Sands: I think you are taking me a long way beyond programming, Chairman. I think that perhaps that is not an entirely fair perception of the way things have gone over the years. In general until, let us say, the creation of the Modernisation Committee, which is a rather different animal from its predecessors, and you are in a better placed position to judge how different than I am because I have never given evidence to it, nor indeed been invited to, but before that it was the tendency for procedural change to originate in cross-party committees such as this and to come forward to the House on the basis of some degree at any rate of acquiescence, if not consensus.

Q6 Chairman: Is not part of the problem that the Modernisation Committee is, of course, chaired by a Government Cabinet Minister and, therefore, it is not quite the same as a House of Commons select committee because most of the proposals actually emanate from the Leader of the House's office?

Mr Sands: I do not think that in itself is necessarily a bad thing. Indeed, it could be seen as a good thing because a recommendation coming from such a committee by virtue of that fact is much more likely to see the light of day before the House, but I think it does put an obligation on that committee to roll the pitch perhaps rather more thoroughly than has been done in the past.

Q7 Mr Swayne: To what extent does the evidence suggest that programming has led Members to be much more focused in tabling amendments to the standing committee, or have they simply continued tabling any number of amendments in the hope that knives will fall and that will bring disrepute to the system? Equally, as a separate issue, to what extent has the implementation of programming had an effect on the selection of amendments by chairmen?

Mr Sands: Can I ask my colleagues to deal with that. The Clerk Assistant is very much in the lead at the moment on proceedings on legislation in the House. Alan Sandall has a lot of contemporary experience of standing committees.

Mr Millar: As to Mr Swayne's first point, Chairman, I do not think it has had that much impact on the volume of amendments that are tabled. I think what has had a great impact on the volume of amendments tabled, particularly at committee stage, is the speed with which bills tend to go through the House. When I was Deputy Principal Clerk in the Public Bill Office in the 1980s bills would go through standing committee in a much more leisurely way than they do now. Now we automatically go to four sittings a week, sitting morning and afternoon, and on its own that tends to make the passage through committee much quicker and makes it harder for outside interests to alert Members to their concerns and offer the options for tabling amendments which might address those concerns. I do not think it has had a particular impact on the volume, although Alan, who has more recent experience, may have a view on that. As to the criteria for selection, I think it has had no impact. The only thing one can say is in the House the Speaker has to be aware of the fact that there is limited time and, therefore, may have to be a little bit more selective in terms of choosing the groups which will be debated, but in general that would be more by way of having larger groups rather than not selecting amendments which hitherto might have come before the House.

Mr Sandall: I do not think the existence of programming has had any marked difference on the way Members table amendments and it certainly has not affected the way in which chairmen select them as far as standing committees are concerned.

Chairman: A very succinct response.

Q8 Sir Robert Smith: Even before programming presumably people had to be ingenious in the way they tabled amendments to try to get to the head of the group if they wanted to lead that group in debate anyway. Presumably even in the absence of programming people had some thought as to how the legislation would progress.

Mr Millar: Absolutely, that must be true. The chairman is always aware of, or sensitive to, any artificiality which may be introduced in the drafting of amendments simply to try to engineer that a particular amendment comes higher up in the bill than another one.

Q9 Chairman: It is correct, is it not, and I speak as a Chairman of standing committees, that the chairman of the standing committee can allow an amendment that is not the lead amendment in the group to be subject to a vote?

Mr Millar: Absolutely.

Q10 Chairman: So there are ways of ensuring perhaps different views in a group of amendments can be voted on if necessary. That is correct, is it not?

Mr Millar: Yes, you are quite right.

Q11 David Hamilton: Could you tell us how the programming has affected the work of the Public Bill Office?

Mr Sandall: It has certainly made the pressure of work much more intense in recent years, largely because of the greater speed with which bills tend to go through. Going into afternoon sittings with effect from the first day of committee stage, for example, is an enormous difference compared to ten or 15 years ago.

Q12 David Hamilton: Is there any difference in how programming has operated between those bills that have had pre-legislative scrutiny and those that have not?

Mr Sandall: I think we would take the view that bills which have had the benefit of pre-legislative scrutiny have been better scrutinised in standing committee. I think the extent to which programming itself has had an impact on that is probably debatable.

Mr Millar: Could I add to that, Chairman. One of my colleagues who sat through the marathon of the Joint Select Committee on the Draft Communications Bill, and also Clerk of the standing committee on the same bill in the following session, commented to me that there was less need for time to be taken up with probing amendments designed to elicit the Government's intentions. Those sort of amendments where a Member could not understand why it had been drafted in one way rather than another perhaps were fewer at standing committee stage but, of course, given that a lot of Members who had been on the joint committee were then on the standing committee, and other Members on the standing committee had read the joint committee's report, he notes that there was a much higher degree of knowledge of the bill, so much greater interest in it and a greater degree of expertise which in itself brought forth more amendments. In the case of that bill he would say it led to better scrutiny rather than quicker scrutiny.

Q13 David Hamilton: Has anyone looked at the Scottish example? In the last six years that the Scottish Parliament has been sitting they have done a lot of pre-legislative work and it is actually quite a strong element in the Scottish Parliament. Have any of you looked at that to see whether that might be something that could be applied far greater down here?

Mr Sands: As I understand it, I think the big difference there - I am not a great expert on the Scottish Parliament - is that is very much a committed based parliament. They have given much more power ab initio to their committees than is the case with us. The other consideration, of course, is it is a parliament with a form of proportional representation and, therefore, there is a certain process of negotiation that needs to go on which is conducted initially in the committees before a viable legislative proposition emerges.

David Hamilton: There is an old saying that every upside has a downside. PR is the downside in the Scottish Parliament.

Mr Swayne: It is a fatal weakness.

Q14 David Hamilton: We agree. Are there any differences between the way of working of Programming Sub-Committees (of standing committees) and that of previous Business Sub-Committees under the guillotines?

Mr Sandall: I have no experience of Business Sub-Committees, I am afraid.

Mr Millar: Neither have I directly but I suspect when you think of a Business Sub-Committee under a guillotine or a Business Committee in respect of proceedings of the whole House, this will have been set up as a result of very long consideration of that Bill in standing committee. We used to have the idea that was commonly held by Members that you had to have 100 hours of debate on a bill in a standing committee before the government was justified to introduce a guillotine. That was not invariably the case but nonetheless that gives you a flavour of what preceded it. At that stage the government did not necessarily feel that it had to be as accommodating because they had already accommodated a great deal. When you come to programming, obviously the Government have provided the framework within which the bill is considered and, therefore, without any specific knowledge of discussions between the usual channels, my understanding is that from time to time there are quite extensive discussions within the usual channels to try to get co-operation within the framework which the Government have decided.

Q15 Chairman: Our witnesses have indicated that pre-legislative scrutiny means that there has been better scrutiny and there is a greater understanding of the bill. What they have not responded to is an earlier question. Does current programming mean that legislation is currently going through inadequately scrutinised? Do our witnesses, Mr Sands, Mr Sandall and Mr Millar, think it is right that large sections of important legislation should go through the House in standing committee, and even in some cases during the report stage, undebated?

Mr Sands: No, of course it is undesirable in principle but in practice there can be many reasons for that happening. Sometimes one can suspect that it is because the Opposition has simply not co-operated with the planning process and so has deliberately engineered a situation where some clauses have not been debated. That has been the suspicion on one or two occasions. Equally, I am sure there are a number of occasions when the time allotted clearly was not adequate however the cake was to be carved.

Q16 Chairman: Do you think that the Speaker should have a role in this, that he clearly should have a blocking mechanism, as it were, to prevent legislation passing through the House with large tranches of it undebated? Do you think that he has any role to play in seeking to ensure that the House finds some time to debate all important parts of legislation? Currently, of course, he has no role. Do you think that he should have such a role?

Mr Sands: To be frank, Chairman, I think that would put much too great an onus on him, one that would be very difficult to discharge because it would entail an exercise of detailed judgment as to why the situation has arisen, that the standing committee has reached the end of the bill and has not dealt with 50 clauses: what was the reason for that, was it a good reason or a bad reason? I just cannot imagine how we would be able to advise the Speaker on that background or how he would be able to make a judgment which would not be seen to be politically charged in one way or the other.

Q17 Chairman: Surely chairmen of standing committees are bearing that responsibility bearing in mind that they are not supposed to permit tedious repetition and filibustering, which often is a form of tedious repetition. If there clearly has been surely the Speaker can reprimand the persons responsible or the political party responsible because he or she, as Speaker, should have the best interests of the House at heart and the Speaker should ensure that legislation is adequately scrutinised by the House.

Mr Sands: I think it will be your experience, as it is mine, Chairman, that there are many devices short of actual tedious repetition, such as fairly frequent interventions in a speech, the proliferation of amendments which are perfectly in order and viable amendments but which nevertheless perhaps would not be seen as having such a high priority as others. All these are ways in which if an Opposition is so minded it could create a situation where several clauses have not been debated which a chairman really could not discipline.

Chairman: Thank you.

Q18 Mr McWalter: I very much want to support the general drift of the Chairman's questions. When a Committee reports, and it has a substantial number of clauses and groups of amendments which have not been tackled, is there no kind of report made by the Chairs of that standing committee to the Speaker? Is there no indication of why this happened? Is there no room for people to complain that in various ways the business has been dealt with poorly or the timetabling was inappropriate? Surely, following the Chairman's line of questioning, the Speaker in the end is meant to be the custodian of the rights of back benchers, and if back benchers are being silenced on important matters, through whatever mechanism - inadequate programming or very poor use of the time, or even malicious manoeuvres by Whips or whatever - I would have thought there has to be scope for a report to be made, and for the Speaker, in some circumstances, though not always, to take cognisance of that report, which might involve just reporting to the Government that a particular Whip, say, seems to be particularly incompetent or whatever. There could even be some accountability for Whips in here somewhere! It cannot be beyond the wit of man to have a system in place which calls in some of these things from time to time and hopefully reorganises things in a way which would improve the whole business.

Mr Sands: It is certainly not beyond the wit of man; indeed, it was precisely considerations of that sort that led to the initial advocates of programming, as it has come to be called, to suggest, as I mentioned earlier, that this procedure should be mediated through a committee with a degree of independence in its chairmanship. That at the very least would have guaranteed that there had been genuine consultations before a programme motion was tabled. At present, there is no independent validation of that. We have had the experience of a Minister getting up to move a programme motion, in the days when they were still debated - they are not debated now, of course - and saying "This has been agreed" and his Shadow opposite number getting up and hotly denying it. If you have a committee that has met under independent chairmanship, with minutes being taken and all the formalities that attend on such an occasion, you at least know whether there has been agreement or not, and if there has been agreement, you know what has been agreed.

Q19 Chairman: Can I say we are very grateful for that proposal from you and your colleagues, who have huge experience. Can I put the next question: in recent years there has hardly ever been a Programming Committee for the report stage of legislation, remaining stages. With the short deadline for tabling amendments, is the Programming Committee system unworkable, and could it be improved?

Mr Millar: I have been Clerk of the Programming Committee on a few occasions, Sir Nicholas, and we tend to have had a Programming Committee when the bill has been controversial or when it has had particular features which require the proceedings to be managed to enable certain subjects to be properly debated. I am thinking of the Adoption of Children Bill and so on, where particular clauses or particular amendments were enabled to be debated by the programme. In such cases, that has worked well. Where the Opposition's main thrust against a bill tends to be simply a series of new clauses, there is no reason why a Programming Committee needs to meet to prioritise those. One would have expected the Opposition to have prioritised those for themselves. The Programming Committee certainly can add value and it does formalise the discussions which the usual channels have, but you come back to the problem that if there is going to be no real agreement through the usual channels, all that you do in the Programming Committee is get the Government to say what its proposals are and that programme is agreed by the Programming Committee instead of it just being placed directly on the Order Paper.

Q20 Sir Robert Smith: What is the difference between new clauses and how would the Opposition prioritise?

Mr Millar: Presumably, they know which new clauses they want most. As everybody knows when a bill is going to report, they table their new clauses very soon after the Committee Stage has finished and everyone knows that, without intervention, the bill will be considered in the order new clauses and then amendments to clauses. That is how it is done, with Government new clauses taking priority at the beginning.

Q21 Sir Robert Smith: If it is a bill that has highlighted the need for considerable areas of debate on new clauses, is there no way of breaking up the time? Presumably that would require a Programming Committee.

Mr Millar: Indeed. The Government can table an order of consideration motion or a programme motion on their own initiative for Report Stage.

Q22 Sir Robert Smith: But for the Opposition, who has priorities to influence that?

Mr Millar: On a number of occasions I have known the Government to propose programmes at the behest of the Opposition.

Mr Sands: The background to what the Clerk Assistant was saying is that on many bills there is an observable tendency for the Opposition, and sometimes other Members as well, to be more interested not so much in the bill that is there and amending it, but using the bill as a peg on which to hang other ideas which they would like to ventilate. That is why we tend to get this proliferation of new clauses at Report Stage.

Q23 Chairman: So you would like to see Members of Parliament being more responsible and to table amendments and new clauses that are directly related to the bill before the House?

Mr Sands: You tempt me into adopting your adjective. I think "responsible" suggests people are being irresponsible, and I would never, ever suggest that. No, I think it is for Members to decide how the limited time available to them is best used, and if they decide to devote their time to new clauses, it at any rate suggests a feeling that the bill as it stands is broadly okay; there is not one big thing they really want a go at. It is rather like people who fail to fill in a questionnaire; you assume that they are broadly content. If they do not amend the bill as it stands, you assume they are broadly content with it.

Mr Millar: The Speaker will take into account, Chairman, the need to get as much debated as possible within the available time, and if something has been done to death in standing committee, as you know, it is not normally the case that that matter will be returned to on Report. Clearly, if there are propositions being proposed for Report Stage which are central to the bill, and others which are not quite so central, the Speaker will bear that in mind in making a selection.

Q24 Mr McWalter: I certainly, as you will gather, feel pretty impatient at the way many of these things operate. The context of my next question is looking at the French Parliament, which has just had the debate about the wearing of the hijab in schools, and 130 people were called to speak in that debate, whereas in this Parliament last week we had a bill where, by the time the front benches had spoken, it was time for wind-up. I think there is a huge contrast between the way we are doing things. I think it needs to be improved. One of the things I would just like to ask is whether you feel that the operation of the programming orders is clear to Members, or do Members just seem to be totally confused at how we could have arrived at a situation where there was no room for any back bench contribution at all? Do people understand how this has arisen, do you think, and what their rights are in this regard?

Mr Sands: Which bill was this?

Q25 Mr Burnett: There was a debate on the Local Government Settlement. It was not a bill as such; it was an order, and it literally was a disgrace. One hour and 52 minutes, and many people wanted to speak. The Minister generously took lots of interventions, but nevertheless, he spoke for 52 or 53 minutes.

Mr Sands: The question of time limits on ministerial speeches is something that I know has been considered from time to time, but has never been written into our Standing Orders, and it occasionally agitates the occupants of the Chair when we have our morning conferences and post mortems.

Mr McWalter: This is not really the point. The Minister, as was said, in fact used his time comparatively well to try and let other people in, but the issue was that two hours had been allocated for an issue governing 25 per cent of public expenditure, with huge repercussions over hundreds of governmental functions within each of our constituencies. It is the allocation of the two hours that Members feel completely frustrated about, about how they influence that. Again, if we did have a hijab-type debate, there would be a day allocated for Second Reading and huge numbers of Members who wished to speak would be excluded. We need some way of trying to organise it so that, where there is clear evidence that there are a lot of people who want to make a contribution to the debate, the system is responsive.

Mr Burnett: Can I just make a point? If you are the governing party, you rule the roost in this place, and if the Government MPs will allow that to happen, will allow their Whips to dictate those sorts of timetables---

Mr McWalter: It is about programming. It is about the powers of those who fashion that schedule. It is clearest and sharpest when you have a very constrained Second Reading debate or an order, but those powers, when manifested in committee, look to be particularly pernicious.

Chairman: We take that point. I share the concern, and while I was not here last week, I have to say I was deeply concerned that so little time was given to back benchers on matters relating to police and local government, which are critical to every single Member of the House, and too few got the opportunity to speak. That comes back to the point I put to the Clerk of the House earlier, that the House itself should have more say over how it spends its time. But that is another matter.

Q26 Mr Burnett: From your experience of people wandering into the office saying, "What is going on?" or coming up to the table, the kind of questions you are getting from Members, do you feel they understand what programming orders are about and what is going on, or do you think there is an element of coming up to you after the event and saying "How did this happen?"

Mr Sands: I think they understand in principle only too well what is going on. Sometimes the details of where a particular amendment is going to come and how divisions are going to fall are obscure, but that can be the case irrespective of programming, it has to be said. Even before programming, the grouping of amendments sometimes caused difficulties for Members.

Q27 Chairman: Or even the non-selection of amendments?

Mr Millar: That is a matter for the Chair. Can I just say something? It was my experience that when a group of amendments is of particular interest to a large number of Members - I am thinking of the amendments on Single Sex Adoption and the amendments on the Hunting Bill and so on - those Members who are trying to organise for a particular point of view take advice in advance and usually know exactly what is going to happen, and we will advise them - within limits, obviously - on their best tactics to ensure that they can get their point of view aired on the day. So Members who really wish to know generally know how to find out.

Chairman: Can I say from the Chair before we pass on to John Burnett to question you, I think the Houses of Parliament have the best clerks of any legislative assembly or parliament that I know of, and the advice that they give is always impartial and their service to the House is absolutely transparent and total.

Q28 Mr Burnett: I endorse what you have said, and I think we all do, and we are grateful to you. The Clerk said too much weight, as a general point, is put on procedure. I very much agree with that. It could and should be significantly simplified. The point that I think Tony and all of us feel that the House should take more control over its own business is absolutely beyond argument. It is a critical point. The Clerk has suggested three minor amendments. They are not earth-shattering. One is that there be injury time allowed in standing committee to compensate for suspensions for divisions in the House. What do you consider the best way to make that work? Then there is another suggestion, that the chairman of a standing committee should have discretion to delay the falling of the guillotine by up to 15 minutes, in the same way as the end of a sitting can be delayed if the bill could be finished in that time. Would this be workable, or would Members press for an extra 15 minutes every time? The third point is the operation of programming, which we have talked about anyway, and whether it is clear to Members.

Mr Sands: These were proposals that were put up to me by the Public Bill Office as a result of experience in the last session or two, so perhaps I ought to ask Alan to explain the background to them.

Mr Sandall: There have on occasion been instances where it is quite clear some time in advance that the knife is going to fall at a pre-ordained time. It is too late in practical terms to do anything about it, but perhaps owing to some defect in the management of the business, the Minister may perhaps not have been given adequate time to reply to the debate, and the Committee as a whole might want to hear from him for another few minutes, but it does not have the option because the time at which the debate must come to an end has been set in advance. It might be helpful just to have a little flexibility - 15 minutes would certainly cover it - just to allow a debate to be brought to a more natural conclusion in those circumstances.

Q29 Mr Burnett: Do you think that that time should be added on to the time for debate allocated for that day?

Mr Sandall: There is not necessarily a fixed time allocated for a debate on a particular day, because the afternoon sitting of a standing committee has no fixed time.

Q30 Mr Burnett: I see what you mean, because it is more informal than that, as it were.

Mr Sandall: Yes. A morning sitting must finish at 11.25 but an afternoon sitting goes on until we reach the adjournment.

Q31 Chairman: I have to say, I think that is quite a constructive and flexible minor adjustment that the chairman would have within his discretion an extra 15 minutes maximum, particularly in a case where there has been no injury time because of what has occurred in the Chamber and the fact that the business has been suspended while a division takes place. That does seem to me to be a very constructive, very modest gesture. You yourselves feel that would be a very sensible proposal to put forward?

Mr Sandall: We think it might be helpful on the margins.

Mr Sands: I think as a general experience, Chairman, we feel that the experience shows that the more complicated a programme is, the more likely it is to go wrong. There was a tendency in the early days of programming to have a very elaborate structure with lots of knives and everybody was very clever - three-quarters of an hour here, half an hour there - and it never really worked, for all sorts of reasons. The more flexible a programme is, or open-weave, if I can put it that way, with perhaps just a cut-off at part 1 or part 2 of the bill and so on, the better.

Q32 Chairman: Do you think, in a way, that in standing committee, Mr Sands, more authority should be given to the chairmen of standing committees to decide, in the light of representations made to them, the time from when it goes into committee to the out-time which has been decided by the House in the programming motion? Do you think that more authority should be given to the Committee through the Chairman than currently is the case?

Mr Sands: The changes made to the Temporary Standing Orders in 2001-02 did give a lot more flexibility to the Programming Sub-Committee, and it is always, as I understand it, within the authority of the chairman of a standing committee to reconvene the Programming Sub-Committee if he or she wishes to do so and thinks it would be constructive to do so. So there is that level of discretion available to the chairman already.

Q33 Sir Robert Smith: So at the moment the chairman has the discretion to look at the way things are going and can if he thinks it would be helpful get that Programming Committee back together to try and make best use of the rest of the time?

Mr Sands: Or indeed to propose an extension of the overall out-date. It is noticeable that there are more occasions this session already when we find coming to the House a supplementary programme motion, shifting the out-date back a week or so, which presumably has come from some initiative such as I have described.

Q34 Sir Robert Smith: Would there be a record anywhere to date of the Chairs initiating this or whether it has come through the usual channels?

Mr Sandall: Any standing committee chairman would be reluctant to convene a Programming Sub-Committee on his own authority, unless he was reasonably sure that the meeting would in fact produce an agreement.

Chairman: Can I confirm that, as a chairman of a standing committee? Alan Sandall is absolutely right. Normally, the chairman of a standing committee would only take such action at the request of both sides of the committee, who would see the good intention and the good purpose of perhaps seeking to extend the out-date by one further sitting or a couple of further sittings.

Q35 Sir Robert Smith: Just exploring the role of the chairman a bit further, you have highlighted one of the questions we need to look at. Could the chairman take the initiative in representing the interests of back benchers more? Could this be done informally or would it be enshrined in Standing Orders? Is there a role for the Chair to be more protective of back benchers in the committee?

Mr Sands: I have no recent experience of Programming Sub-Committees. That is when the bill is in standing committee. I have some slightly out of date experience of Programming Committees for the whole House, and there I know in the early days of programming, the current Chairman of Ways and Means made very clear his feeling that there should always be at least one genuine back bench member of the Programming Committee, and he banged the table a bit about that, and it happened. Whether it had enormous impact in practice on the outcome I would not like to say.

Q36 Sir Robert Smith: When the Chairs of standing committees are chairing the Committee, under the current Standing Orders, they are a completely neutral Chair of that committee, and the way the House operates, would it be easy in the Standing Orders to try and steer them towards seeing their role as the protector of back benchers, and ensuring effective scrutiny of the executive, or are they really there as neutral Chairs of the committee?

Mr Sands: I think they have taken a slightly more proactive role in programming Sub-Committees than they would when the full standing committee was meeting, and the evidence given from the Chairmen's Panel by the Chairman of Ways and Means on behalf of the Chairmen's Panel is that it has not in practice interfered with their impartiality; it has not impaired that in any way. How proactive they have been in actively speaking up for back bench interests I do not know.

Mr Sandall: I think that is largely a question of personalities, but it is easier for a standing committee to do that in the context of a Programming Sub-Committee, which operates as a Select Committee like this, sitting round a horse-shoe, in private, with the doors closed, and perhaps influence can better be brought to bear in that relatively informal context than in the more formal setting of the standing committee itself.

Q37 Chairman: I think that is extremely good advice, Sir Robert, but I think Mr Sandall is right; it does depend upon the personality of the individual chairman. I happen to believe that chairmen should take a more positive role in standing committees because I think they can lead not only to better scrutiny but to better discipline in the committee as well, which is good for the progress of legislation. Can I come on to a matter that we have touched on, Mr Sands: concerns have been expressed by the Deputy Speaker and the Chairman of Ways and Means, and on the floor of the House of Commons, that lengthy front bench speeches in programmed debates - and colleagues around the table today have reflected that - impede proper and full consideration of parts of a bill by the House. Is the inclusion in Standing Orders of provisional limits or guidance on the limits on speeches from not only back benchers but front benchers as well in programmed motions and debates a feasible option? I have used the word "guidance" as well as perhaps "provisional limits". Do you believe that this would really respond to the concern expressed by Tony McWalter earlier in our deliberations?

Mr Sands: I do not think you can put guidance in Standing Orders. A thing is either a rule or it is not a rule, and the history of this Committee is littered with what I might describe as pious aspiration-type recommendations. I am afraid that in the end, they do not have a great deal of shelf life. I suspect that the current occupants of the Chair would actually welcome some rules about this. You would need to talk to them rather than to me about that, and this is not limited to programmed debates, because in a sense every debate is subject to a time limit; a Second Reading debate is not programmed but everybody knows it has got to finish at the moment of interruption, whether 7 o'clock or 10 o'clock, so there is a time constraint there, and the longer the Minister takes, the less time there will be for back benchers. What the Chair now finds increasingly is that, as soon as the scroll goes up on the enunciator saying that there is going to be, let us say, a ten-minute limit on speeches in a Second Reading debate, Members see it, get the message, and leap up to intervene in the Minister's speech and make their point that way, and of course, that expands the Minister's speech and the problem gets worse. They do not see an answer to that problem.

Q38 Chairman: Is there an answer?

Mr Sands: They cannot put a closure on interventions. If a Minister accepts an intervention, the Chair can do nothing about that.

Q39 Mr McWalter: Chairman, I do not think there is a problem. That at least allows Members to get their point over in a very economical and concise way.

Mr Sands: Indeed - well, sometimes, yes.

Q40 Chairman: Can I say to you, Mr Sands, that you have, I think quite rightly - and that is what I wanted you to do - said you cannot put guidance in any form of Standing Orders; it is either a rule or it is not a rule. Do you believe that debates and scrutiny would improve if in fact front bench spokesmen did have limits on their speeches? Such a limit would clearly reduce their willingness to allow an intervention on any occasion. You and I know Members of governments and oppositions who have made brilliant speeches from the front benches without any prepared notes, surviving and feeding merely on interventions.

Mr Sands: It would undoubtedly reduce the liveliness of the initial stages of a debate. The corresponding advantage would be that it would provide a fairer structure for the debate overall. That is a balance which I think only politicians can make, but I do myself begin to think that the length of front bench speeches has become a serious problem in the context of ever tighter limits on back bench speeches.

Mr Millar: Can I just make one very small point? One of the difficulties with programming, timetabling and so on is that most Members only sit in for a very small proportion of the debates, so they do not benefit from the accumulated experience that the experienced Chair or the experienced Deputy Speaker has in the Chair. They can see what is happening, but most Members are focusing only on the debate in which they are participating, and that is why sometimes they do not resent it if they do not get as much time as they wish to make their point, because that is the most important subject to them.

Mr Burnett: I would endorse the first part of what I think the Clerk has just said. You can get more out of an intervention - I think this is roughly what you are saying. There are pluses and minuses. The plus of allowing a longer front bench speech is that back benchers get the opportunity to intervene, and often you can get more out of a sensible, sane intervention than you can listening to a whole lot of back benchers droning on for hours on end, repeating themselves.

Chairman: I am not sure that everything you have just said, Mr Burnett, will be too happily received by colleagues in the House.

David Hamilton: Interventions can also alter the statement the Minister is making. They also change the debate that they takes forward. I sat through the whole day on Monday on the Scotland Bill, and the interventions and the hostility that the Minister met with changed the whole way the debate went through that full session, and I think it is really quite an important aspect of interventions where people (a) do get their point across, (b) challenge what is being said by the statement, and that allows the long speeches to be organised as they come forward. I think that is a good indication of how interventions can work very well.

Q41 Chairman: Do you think - and this is perhaps drawing you into something you might not want to be drawn into - that guidance from the House to Ministers that they should come with much shorter prepared speeches, which would then allow sufficient time for a number of interventions, would be a good piece of guidance - not in Standing Orders, but in other ways?

Mr Sandall: Could I perhaps remind you that one element of the Jopling settlement agreed between the then Government and the then Opposition in about 1995 was that both sides would use their best endeavours to restrict the length of front bench speeches. It is there as a written answer. It may well have been a dead letter all the time, but you may wish to remind both sides of it.

Chairman: Words of wisdom! Do not worry; that will feature in very heavy type in our report.

Sir Robert Smith: It is already in our report.

Chairman: It is already in a report on procedure for debates, private members' bills and the powers of the Speaker, which only earlier this week I asked the Leader of the House when he was going to reply to and find time for a debate.

Q42 Mr McWalter: This is about the Annual Programme and how things go. The Hansard Society Report Making the Law in 1992 called for a committee to oversee the annual legislative programme, but those recommendations in the end were not implemented. Is there any evidence of discussions between the parties of the distribution of the legislative programme during the year?

Mr Sands: I am not aware of any such evidence, Mr McWalter.

Q43 Mr McWalter: Has carry-over of bills helped at all?

Mr Sands: It has been used so little that it has not yet made a great difference. Personally, I am a supporter of carry-over of bills, because I think if it were used more systematically, it could help the rational spread of business over the lifetime of a parliament. But it is still regarded with great suspicion by even the government whips, who you would have thought would find it useful, because they think it would destroy the discipline that now exists with the sessional cut-off.

Q44 Mr McWalter: They are used to doing things one way and will carry on doing it that way, but the effect of carry-over again ought to be to allow more rational consideration of legislation and more opportunity for those with some contribution to make to make that contribution. Is there some way in which we can procedurally try and tilt the balance rather more in favour of carry-over when matters are contentious or when there are a large number of would-be contributing parties?

Mr Sands: I do not think carry-over was ever intended to extend the overall time that any one bill would take. What it was intended to enable was the government bringing in bills rather later in the session than they would now contemplate doing. Of course, we have reached the stage in the Parliament when perhaps that is not something they would be looking to do in any case, but it is one of those things which I think might just get into the bloodstream gradually. It is going to be a gradual process.

Mr Millar: There is a limit to the impact that carry-over can have while there is not agreement between the Houses on it. At the moment all carry-over of bills is first house carry-over from this House.

Q45 Sir Robert Smith: On the smoothing out of the year, the fact is that Parliament has got into the papers these last few weeks for being unable to keep going until the moment of interruption on several days, and the idea was that bills which started late in the last session would be able to use that time, because the new legislative programme is not fully up to speed.

Mr Sands: Indeed. At present we are in the part of the year where when I go up to the Public Bill Office it is like the Marie Celeste; there is no-one there for most of the day because they are all in Standing Committee, and there must be huge numbers of Members there, which then affects attendance in the Chamber, and that is just the pattern of the session as we have got used to it.

Q46 Chairman: Mr Sands, Douglas Millar, Alan Sandall, is there anything that you would like to add to the evidence that you have given to us or to the questions which you have been asked to respond to?

Mr Sands: Not as far as I am concerned, Chairman, no.

Chairman: Then on behalf of the Procedure Committee, can I thank you very much indeed for the very valuable and positive evidence that you have given to us. I am confident that a lot of it will form important parts of our report. Thank you very much indeed.