House of Commons - Modernisation of the House of Commons

Select Committee on Modernisation of the House of Commons Written Evidence

Chairman of Ways and Means (M 31)

INTRODUCTION

1. I welcome the opportunity to contribute to the Modernisation Committee's consideration of the process of legislation. Some of the issues mentioned in the Committee's Press Notice of 9 November 2005 raise questions which are not for me as Chairman of Ways and Means, nor for the Chairmen's Panel. What follows, therefore, concentrates primarily on the passage of bills through Parliament.

2. I should say at the outset that part of the problem of achieving more effective scrutiny of legislation—whether by pre-legislative scrutiny, by committing bills after second reading to a select committee, or by post-legislative scrutiny by a departmental select committee—is time.

3. Given that legislation is inevitably a complex process, the House has yet to find an ideal formula whereby, both in the Chamber and in committees, all the substantive matters in a bill can receive scrutiny within a reasonable compass of time. Scrutiny extends the proceedings on the bill in question and this, in turn, puts pressure on parliamentary time for legislation and introduces an element of uncertainty into the overall legislative timetable. Ultimately, the extent to which time can be made available for more thorough scrutiny is likely to depend, at least to some extent, on the size and complexity of the Government's legislative programme for the session and on the ability (willingness, even) of Members to give priority to the scrutiny process in the face of increased demand from constituencies and the pull of the increasing number of parliamentary committees and groups.

STANDING COMMITTEES

4. Any discussion about the possibility of modernising the work of standing committees engages two issues that are interlinked: programming and sitting hours.

5. The vast majority of Government bills are now programmed. [5]In my Memorandum to the Modernisation Committee in Session 2002-03 I suggested that the use of internal knives in standing committees on programmed bills was "frequently unhelpful" and that it was often genuinely difficult to estimate the length of debating-time that a specific part of a bill would require. [6]That Committee recommended that the programming sub-committee "should keep the operation of knives under careful review".[7] That recommendation was evidently heeded, since the fashion for a multiplicity of internal knives in standing committee has been superseded by the tendency to set a simple out-date. I have no evidence that this change has made any difference to the length of time devoted to each part of a bill and it seems to have been a positive move.

6. The Committee should also note that, provided there is agreement between the Whips, it is perfectly possible to give a bill orderly consideration in standing committee without any programme at all: since the beginning of the last Parliament only one Finance Bill[8] has been programmed and there is no evidence that lack of a programme caused any difficulty in securing an agreed conclusion to the proceedings in standing committee.

7. The second issue is that of sitting hours. I noted in my previous Memorandum that standing committees needed more flexibility in times of sitting. [9]One effect of programming that was possibly unintended was that committees soon got into the habit of adjourning immediately after the fall of the last knife in the afternoon, even though they were at liberty to sit until someone moved the adjournment. The result of this is that there is now an informal "tariff" of two-and-a-half to three hours for an afternoon sitting. In the days when the moment of interruption of business in the House was 10 o'clock, committees routinely sat in the late evening after a dinner-break but nowadays they rarely do so; at the time of writing, in the current session there had been only 18 sittings of standing committees on bills that had lasted for three hours or more and only two of those had lasted for more than four. [10]

8. The change in sitting-times and the expectation of "regular hours" that have been engendered by programming have together led to fewer hours being spent in standing committee. No doubt standing committees could be more effective if they were enabled to devote more time to clause-by-clause scrutiny—but there is no guarantee that the new generation of Members would be prepared (or be encouraged) to sit for the necessary number of hours. It should not be forgotten that 418 of the current membership—65%—entered the House on or after 1 May 1997.

9. Similarly, my view is that if standing committees are going to become a vehicle for more effective scrutiny of policy (as opposed to scrutinising the text of the bill, important though that undoubtedly is), then an obvious route is greater use of the special standing committee procedure. Given the impact that this would be likely to have on the Government's timetable, however, one would have to question the feasibility of such a course. Recent history is against the suggestion: there has only been one special standing committee since the beginning of the last Parliament. [11]Regular use of pre-legislative scrutiny, on the other hand, might allow for more give-and-take before Ministers feel bound to defend every dot and comma in front of them once a bill has been presented. Again, this might be seen as an extension of the length of time devoted to scrutiny, although effective pre-legislative scrutiny could in some cases lead to shorter committee stages. A concomitant of pre-legislative scrutiny might have to be greater flexibility in relation to carry-over.

REPORT, THIRD READING AND CONSIDERATION OF LORDS AMENDMENTS

10. Report stage is a very different procedure from standing committee or Committee of the whole House; and though programming of proceedings in standing committee has sometimes worked well, it has become clear that report stages often need more time than they are allocated at present. There is a tendency to allow a day for report and third reading on all but the most complex bills. The result of this is that simple, relatively uncontentious bills often finish early, while controversial and complex ones are rushed.

11. Coupled with this is an inevitable tendency to tailor the selection and grouping to the time available. There is no point in creating 15 groups of amendments when it is unlikely that the House will be able to debate more than seven or eight, with the result that groups tend to become larger and more generalised. This is now an ever-present consideration in the selection process, both for Committee of the whole House and for report stage. Whether or not this is a worthwhile development is again debatable: in the case of the recent Terrorism Bill some Members of the House thought that important matters of detail were being brushed aside as a result of broad groupings. I draw the matter to the attention of the Committee as an observable by-product of programming.

12. I also detect a change in the nature of third reading debates which, because of the shortness of the time that is usually allocated to them, have almost become a formal proceeding—as was the case, for example, with the Terrorism Bill. I would invite the Committee to reflect on the true purpose of a third reading debate: to discuss the principle of the bill in question, rather than to range over matters that it does not contain. The traditional purpose of third reading is now observed only in its breach, while the debate itself can often be cut to ribbons by time lost to divisions at the end of report stage or by speeches that are more appropriate to second reading.

13. It is currently the case that some bills need more time than they receive at present while others need less. I am very doubtful that more frequent use of programming committees would alleviate the situation since, ultimately, these are issues that have to be negotiated between the Whips. Whilst the Whips may try to take into consideration the relative length and complexity of bills when deciding on the time to be made available for report and third reading it is a very difficult judgment to get right every time.

14. As to Lords Amendments and Messages, the problem of delay is partly a function of the system of communication by Message. The US Congress resolves differences between the two Houses by means of a Reconciliation Committee; and adopting a similar system at Westminster might seem superficially attractive. However, the American system is very different from ours in all sorts of ways and any comparison with US procedure must always take into account the fact that at Westminster legislative business is controlled by the Executive—and that control is exercised largely in the Commons, not in the Lords.

15. It is not clear that communications between the two Houses could be speeded up by any simple procedural reform. The difficulty of relations between Lords and Commons lies primarily in the fact that no party has a majority in the Lords (nor, under the present constitution of that House, is any party ever likely to have one). The process of communication requires the Government to consider its response to a defeat in the Lords and to draft any alternative propositions that it is going to put forward in lieu of a proposition that has been rejected. It is not the physical delivery of the Message that causes any serious delay but, rather, the process of deliberation by Ministers; and the House would have to be suspended in any event while the Government business-managers pondered their next move.

16. Finally, one should not underestimate the importance of the Lords in the overall scrutiny process. One cannot feel easy with the situation when, for want of time, the elected Chamber has been unable to give any consideration to important parts of a bill and has been obliged to leave that consideration to the Upper House. A considerable amount of legislation also begins in the Lords.

POST-LEGISLATIVE SCRUTINY

17. The Committee's Press Notice mentions post-legislative scrutiny as an issue on which views are sought. The first thought that comes to mind is that select committees already scrutinise existing legislation in the course of inquiries into the operation of Government policy. The second is that Government itself conducts a considerable amount of post-legislative scrutiny as part of its own development of policy—which is why, for example, the major part of the text of any modern Finance Bill consists of amendments to existing legislation.

18. It is difficult to see how any more formal system could be devised. Given that in every Session Parliament makes a vast amount of primary and secondary legislation, any proposals for systematic post-legislative scrutiny will have to include some system for deciding precisely which pieces of legislation should be scrutinised. Since defects in an Act or an Instrument are not usually apparent until it has been in force for some time, post-legislative scrutiny would probably involve looking at legislation after it had been in force for two or three years. The complexities of this are self-evident, and any such scrutiny would have to be undertaken either by the existing departmental select committees or by an ad hoc select committee established for a particular inquiry. That said, however, the lessons learned from technical (as opposed to policy) scrutiny might lead to improved legislation in the first place.

THE COMMITTEE'S CONSULTATION ON ALTERNATIVE OPTIONS

19. The recent paper by the Modernisation Committee, Committee Stages of Public Bills: Consultation on Alternative Options, seeks opinions on the various options for committal of a public bill other than a standing committee. [12]Various points arise.

20. The Committee asks whether different approaches appear to recommend themselves in respect of particular legislation. The answer to this is almost certainly "yes". It seems to me that the special standing committee option is only feasible in the case of a bill where there is a genuine cross-party consensus as to the principle and where Ministers have not come to a final conclusion as to the detail. In recent years, for example, both the Children and Adoption Bill of Session 2001-02 and the Children (Scotland) Bill of Session 1994-95 were referred to special standing committees. All sides of the House agree on the importance of a robust legal structure to guarantee the welfare of children: the technical means by which this is to be achieved is an obvious topic for a special standing committee. Similarly, the practice of committing successive Armed Forces Bills to a select committee recognises the fact that their scrutiny requires specialist knowledge that most Members do not possess. On the other hand, it is not clear that there is much to be gained from committing a controversial bill to enact Government policy in a particular area to anything other than a standing committee.

21. The Committee also asks about flaws and strengths in the current procedures. SO No 91 (special standing committees) provides for "up to four morning sittings" within 28 days for the purpose of agreeing a programme and taking evidence. This was drafted in the days when standing committees sat on Thursdays from 10.30 am until 1 pm. Obviously, the motion appointing a special standing committee can vary the terms of the standing order, but perhaps the standing order itself needs revision to take account of the changed sitting-times of the House.

22. I also note the fact that the Select Committee on the Armed Forces Bill currently before the House has been given power to admit the public "during consideration of the bill"[13] so that clause-by-clause consideration can be taken in public. This might be a helpful precedent for future select committees on bills, if the Modernisation Committee is inclined to recommend more extensive use of select committees for that purpose.

CONCLUSION

23. Current thinking on sitting-patterns has been influenced by two successive Parliaments (1997-2001 and 2001-2005) characterised by very large Government majorities. There is always a danger that in an "unbalanced" House both Opposition Members and Government backbenchers will begin to disengage from the parliamentary side of their duties in favour of constituency work: the former because they can see no prospect of winning a division, the latter because they assume that their Government will always have its way.

24. In my submission to the Modernisation Committee's inquiry into programming I pointed to the inevitable tension between the general wish for better scrutiny on the one hand, and the Government's desire for swift despatch of business on the other. [14]There is an equal tension between Members' desire to hold the Government to account (coupled with the natural inclination of Opposition parties to obstruct Government business) and an apparently growing desire in all parties to spend more of the working week in the constituency. I cannot help wondering whether the Committee should consider that the remedy might be fuller sitting weeks but fewer of them.

25. In my earlier submission I aired the possibility of employing a procedural means of settling the pattern of business but doubted that such a radical change would be welcome to either side of the House. [15]That remains my view.

Rt Hon Sir Alan Haselhurst MP

January 2006