Examination of Witnesses (Questions 60-79)
PROFESSOR DAWN
OLIVER, MR
PHILIP COWLEY
AND DR
ALEXANDRA KELSO
17 MAY 2006
Q60 Mr Sanders: Before I came here
nine years ago I used to think that government legislated and
Parliament questioned the need for that legislation, but being
here what I actually find is that governments indeed put forward
legislation but Parliament tries to amend it, or occasionally
on pure partisan grounds tries to block it. Where in the process
can you build in an effective questioning mechanism of the need
for that legislation in the first place?
Dr Kelso: That really ought to
be happening at the second reading anyway.
Q61 Mr Sanders: But it is not.
Dr Kelso: Yes, but in terms of
the theory that is where it should be happening. So perhaps before
you start thinking more about the Committee stage take a step
back to the broad principle of the debate which should be taking
place at second reading. You say it does not take place and perhaps
that is where some of the concerns are then raised at the Committee
stage, that the broad principle is that people want to question
it again in Committee because it has not been done at the second
reading, and whether perhaps these stages need to be collapsed,
that there is a sense that there are too many stages with too
many discrete things happening in each when perhaps more things
should be happening across fewer stages.
Q62 Mr Sanders: When was the last
time a Bill was defeated or withdrawn at second reading?
Dr Kelso: Was it the Shops Bill?
Mr Cowley: 1986. It partly depends
what you are talking about because often Bills are introduced
and then withdrawn, or occasionally Bills are introduced and then
withdrawn. But the last time a government lost a Bill at second
reading was 1986 and that was the only time in the whole of the
twentieth and, so far, twenty-first century that a government
with a secure majority lost a Bill at second reading. One or two
other Bills lost at second reading but the minority administrations—
Q63 Chairman: The Shops Bill.
Mr Cowley: The Shops Bill. So
the answer very rarely. I think my answer to your question would
be that in practice once government has decided that it wants
to legislate it is going to legislate and, again, if I were choosing
where to concentrate my energies in terms of reforming the process
it would not be to try to somehow increase the likelihood that
government gets defeated at the second reading because I think
is a pointless exercise; it would be instead to think about how
you improve the Bill once it is here. I do agree with the point
made earlier about the House of Lords.
Q64 Sir Nicholas Winterton: What
about the government withdrawing the Northern Ireland (Offences)
Bill after the Standing Committee stage? That is very recent.
Mr Cowley: I said Bills are occasionally
withdrawn but not very often. I cannot think of many others in
the last 30 years.
Chairman: Theresa May.
Q65 Mrs May: I apologise to my colleagues
on the Committee because they have heard me say this before—but
then Nick always raises the Business Committee—but I just
wonder if there is another way around this particular problem,
which is to have an initial stage before the second reading, which
is a debate about the issue? One of the bees in my bonnet is that
Parliament spends most of its time talking about specific bits
of legislation, we do not talk about the issues and we do not
talk about the issues in ways therefore that are relevant to most
people in hearing what Parliament is talking about. I wondered
if we could insert a stage where government comes forward with,
"This is the problem and these are the sorts of ways that
we might think of solving it," where there is a much more
open debate, which if it is on a vote is not on a Whipped vote
necessarily, where you are getting a view of Parliament as to
how an issue should be addressed and what the problems are, and
then government is able to formulate legislation with the information
that has been gleaned in that debate. There is an enormous issue
about political will there, which I entirely recognise, but it
seems to me that what we are trying to search for is to get that
debate about the principle, about the objectives, about what is
this legislation for, and I think that is better taken aside from
any specific piece because as soon as you have something written
on paper people start debating what the piece of paper is saying
rather than just the principle.
Mr Cowley: The problem with that
surely is that the time period between that debate and any Bill
actually appearing, given how long it takes to draft a piece of
legislation, will be so vast that it would not be clear what the
connection was between those two. In a sense we already have lots
of debates about issues; Parliament, as I understand it, spends
less than half of its time actually legislating and the rest of
the time is debating and questioning and so on. So I am not sure
that we need any more general debates. I could see the point of
having a debate linked to some prospective Bill that might come
but the time period involved would have to be immense. You would
either have to have civil servants working 24 hours around the
clock to try to get some pieces of it—and it would then
be very badly drafted legislation because it would then have been
drafted in such a rush on the back of the debate anyway that I
am not sure that it would work in practice. In theory it is a
lovely idea and as a second best solution that is always partly
what I would hope pre-legislative scrutiny could do, although
I appreciate that is not as broad a point as you are making. But
it has always seemed to me that the advantage of having pre-legislative
work was that the battle lines are less widely drawn. Still, it
has not got around the issue that has been raised a couple of
times here about do you need this in in the first place at all?
But I think that is a fight that is not worth fighting, frankly.
There are fights worth having but that one is not one of them.
Professor Oliver: I think that
is a really interesting idea, particularly this idea that Parliament
should have an opportunity to know what the government considers
to be the issue and what the various options for solving it might
have been and why they have decided that this is the way to do
it. It strikes me that if that has to be done at second reading,
if the government were required to produce documents setting out
those various things and saying, "We have considered criminalizing
it, taxing it," or whatever it is, "and we think this
is the best way to do it," that might help, particularly
if the House of Commons Library, for example, was producing—which
I believe they do—some second reading packs which highlight
the points that have been made and whether these are things that
Members might like to think about. So that might be a way of trying
to focus discussion at second reading on that very issue.
Q66 Sir Nicholas Winterton: That
is what the White Papers are about. White Papers very often precede
legislation and that is to an extent part of what my colleague,
Theresa May, is trying to get at, but I think she has tried to
make it more relevant, more pertinent and more focused.
Professor Oliver: To what extent
are White Papers debated? Possibly as part of the second reading
debate but. . .
Q67 Mr Sanders: But what White papers
and any of the other mechanisms do not do is actually test whether
the remedy to the problem is not already out there, and why that
existing remedy is not working, and it is justifying the need
for that legislation because either the remedy does not exist
or the existing remedy is not working, and there is no mechanism
for testing that.
Professor Oliver: I take that
point but if Members were able to somehow adopt a pattern for
their debates such as, "Has the government dealt with that
matter? Have they really convinced us that the present arrangements
are not working or they would not work better if there were more
civil servants doing it," or whatever, then I would hope
that that would surface in the debate and the fact that it would
surface in the debate might put the government off putting forward
a proposal anyway unless it was pretty sure that it could satisfy
Parliament that it was needed.
Chairman: Paddy Tipping.
Q68 Paddy Tipping: We have not talked
yet about the Report stage, which is a pretty unsatisfactory process
with sometimes only the Minister and the enthusiasts who have
been on the Committee, who have the stamina to go forward, understanding
what is going on, with very large groupings of amendments and
many groups these days do not get discussed at all and go up to
the Lords. What would you do to improve Report stage?
Mr Cowley: One thing I have discovered
recently, I suppose over the last four or five years, from talking
to Labour MPs, is that one reason why it is now more common to
see large rebellions against the Whip at second reading, which
never really used to happen in the way they currently do, is because
Labour backbenchers feel excluded from the Report stage debate—the
combination of the nature of the report but also the programming
of the report.
Q69 Sir Nicholas Winterton: Exactly.
Mr Cowley: And because they are
not so confident that they will be able to get their amendments
debated and voted on at report the small focused targeted rebellions
on pieces of legislation, which used to be the way you would deal
with these things, have been replaced over the last four or five
years by large rebellions at second reading. MPs are now much
more likely than they ever have been, for certainly the last 40
or 50 years, to try to kill a Bill in its entirety. They have
not been successful at it but they have been trying to do it,
and recently they only stopped doing it because the opposition
voted with the government. That is because they feel shut out
from this process. That is not an answer about report itself,
but I think there is a growing problem at report that the combination
of report and programming means that MPs feels excluded from the
process.
Chairman: Mark Lazarowicz.
Q70 Mark Lazarowicz: There is another
interesting point on which I am tempted to comment, but I will
keep my comments to the last point made by Paddy in relation to
the Report stage where it tends to be, as he rightly points out,
the Members who took part in the standing committee, and if you
go to Westminster Hall debates or anywhere else it tends to be
the Members responsible for producing the report are the ones
who do all the speaking in the debate and no one else even tries
to get in. So the process which is presumably meant to be Parliament
as a whole responding to what the Committee or other bodies have
done is actually just a reiteration by the people on the Committee
in the first place, so it seems to rather miss the point. I wonder
if you have any suggestions as to how we could actually change
perhaps both the procedures—but it may also be a question
of changing the culture of what MPs do as well, I accept that—how
do we change the situation so that these report backs from Committees
of various sorts become more of an opportunity for Parliament
as a whole to consider issues? That is my main question, and a
second brief comment is in relation to making standing committees
more effective. It seems to me that trying in some way to make
sure that standing committees and even SI Committees include people
with some interest would make so much difference to the way of
operating. You referred to the example that SI Committees are
normally boring to most Members and they have no expertise on
the issue, but actually if you go an SI Committee you can see
that there would be some Members who might well be interested
in the subject matter but they are extremely unlikely to end up
on the Committee. So I wonder how one could make more practical
use of Members' expertise, not just on standing committees but
on SI committees as well?
Dr Kelso: I was interested in
terms of what you were saying that at the Report stage it tends
to be the same people who actually participated at the Committee
stage. Actually if you think about it that has been a concern
about select committees as well, that select committees work hard
and make these great reports and then when they debate them on
the floor of the House it is the select committee that turns up
to do it, so really is there any feedback mechanism taking place
there that is of any use to anyone? And it seems to be a similar
situation with the standing committees in as much as it is the
same people coming along to discuss things that they already know.
Of course the two things are not the same sort of procedure and
there has been the comment that at the Report stage it is only
ever really government amendments that are accepted at that stage
so what is the point in turning up and making a point if it is
not going to be of much particular use? In one respect what is
really wrong with it only being government amendments that are
being accepted anyway? Is it really the job of Parliament to undo
government's legislation? Probably not. So in one respect that
might not be so much of a problem, depending on the nature of
things that are taking place behind the scenes, in as much as
government will often accept amendments or put them forward itself,
rather than have the embarrassment of accepting an opposition
amendment actually on the day. In terms of creating some kind
of body of expertise, that is up to MPs to actually want that
to happen. They pushed for it in the late 1970s in order to secure
the select committee system, which is only now really starting
to come into its own in terms of its capabilities and its potential.
What interest does government really have in seeing MPs get together
and share all their expertise and become a real force within the
House of Commons in terms of real information and real expertise
on certain areas? If you think about it in realist terms why would
they be interested in that? At one level they could be interested
because it is useful for them, and that is always the reason that
has been put forward—government benefits by having a collection
of MPs who know what they are talking about on a certain issue.
But in terms of a mechanism to put it together I think MPs themselves
have to decide whether they want to actually be in some kind of
institutional structure which enables the pooling of these resources
and expertise rather than acquiesce, in a sense, with the current
system, whereby they are thrown to the four corners by the winds,
if you like.
Mr Cowley: I would quickly add
that for all its flaws one great thing about the Report stage
is that the Whips do not select who is there, which they do on
standing committees, and therefore you can be pretty certain that
almost no matter how controversial the Bill it will go through
at Standing Committee stage without too much difficulty. You cannot
be that certain at Report stage, and although there is a frustration
amongst backbenchers about Report stage that is where the defeats
have happened recently—two of them were at report, rather,
and two of them were at Lords' amendments. There is still a function
for it, and interestingly it would not have been the bit that
I would have flagged up as the problem. That is not to say it
cannot be improved—almost everything can be improved—but
I would have thought that standing committee is more of a problem
than report, and I would have thought that Lords' amendment stage
at the moment is probably more of a problem than the report, if
only because the Lords' amendment stage is becoming increasingly
important as the Lords becomes more assertive and may become more
assertive still.
Q71 Chairman: And the problem there
is shortage of time?
Mr Cowley: Shortage of time and
the fact that it becomes adversarial and things just ping back
and forth. I do not think that anybody thinks that those debates
that take place at three in the morning as the Bill is pinging
back and forth fulfil any function at all, except as a formal
structure around which the real negotiation is taking place behind
the scenes.
Q72 Mark Lazarowicz: But it is going
to be hard to avoid that situation, in any sort of system with
bicameral chambers with a different majority, is it not? That
point is the real crunch, it is always going to be contentious;
it is not going to be easy to have a sedate inquisitorial system.
Mr Cowley: The crunch area occurs
because of the time compression and the time compression is caused
either because the Bill has not been carried over so it is the
end of the session or, as in the case of the terrorism legislation,
it has to be enacted now because the existing legislation is no
good. If you carried more Bills over and you had a two-year span
and government was sensibly structuring the Bills to reach the
Lords way before the end of the session there would be absolutely
no reason why you could not have a much more sedate and sensible
consideration of Lords amendments.
Chairman: Thank you. Dawn Butler.
Q73 Ms Butler: Somebody mentioned
about whether there are laws already out there that the government
has already tackled an issue or is there a better way to tackle
the issue. Do you think that if we had a more robust post-legislative
kind of policy that that would help identify whether we have already
identified the problem and can just improve on that? There are
two other things. The benefit for the government in having a pool
of knowledge and expertise together so that we can have better
legislation, which is more relevant to the public and which, as
it goes through the stages, will have less amendments, I think
is one of the benefits and that is why we are looking through
all of this. Also the point that Philip raised about backbenchers
perhaps not feeling so much a part of the process or that they
have an input to the process, I think that would help if they
were able to utilise their expertise. The other issue about which
I would like your views, which the Committee knows that I always
bring up, is how do you think we could improve accessibility for
the public and Members of Parliament in regard to Bills and how
the legislative process works and how Committees work, and how
do you think we can utilise technology in that?
Dr Kelso: If I can come in on
the final point, but I will say something briefly about the post-legislative
stage first, if I might? It seems to me that there are so many
things that people want Parliament to do. Post-legislative scrutiny
has always been one that perhaps is not always done particularly
well. At some point you have to address the resource implications
of getting Committees or MPs to do these things. It is always
the poor select committees that are nominated to do all these
tasks and I always feel really quite sorry for them because they
do such a good job that whenever there seems to be something that
Parliament does not do just as well as it could it is always the
select committees that are nominated as being the best way forward.
So if we are going to get select committees to do even more then
there has to be a resource implication for that and it is not
going to work if the resources are not there. In terms of accessibility,
I think this is a really interesting issue and here is why. It
tends to be the case that whenever there is a suggestion that
people might want to follow legislation, they might want to see
how it makes its way through, they might want to see the current
format of a Bill, there is always the sense of why on earth would
anyone want to spend their free time doing something like that
because it is really deadly dull. If you even look at what a Bill
looks like it is not the sort of thing you want to spend your
free time doing, possibly, there may be other more enjoyable things
to do. That said, that does not mean that you set it aside and
assume that it is so extremely boring that no one is ever going
to want to follow it so we can do as we will. There are of course
many people, not just atomistic in terms of individuals, but small
groups, interest groups, who perhaps do not have access at the
earlier stages of the policy process—and I am not talking
about the legislative process—when government is dealing
with it and putting the thing together. There are plenty of organisations
and groups that do not get access at that stage, and it may well
be that they would like to have more capabilities to look at things
at that stage, and that is when the accessibility issue is a real
problem. As a brief test I decided to go online yesterday to see
how easy it was to find out stuff about any given Bill that was
making its way through the House, and as somebody who uses the
website quite a lot it is relatively easy to find out where you
are going. That said, I think if it was your first visit to the
site there is every chance that you would either fall asleep within
a few minutes or simply never, ever find what it was that you
were looking for. So when you do then find the Bill, even if you
want to press on—there is some material, of course you can
look at Explanatory Notes, and then of course there are amendments
depending on what stage the Bill is at—at the stage of putting
those pieces of information together it is actually really, really
hard. For example, in most word processing packages that you can
use on your computer, if you make changes to the document there
is some rudimentary way of highlighting how you are making those
changes—it is not hard, it is not difficult and is really
straightforward—and why is that not something able to be
done at the stage of making information available? Here is the
original material, here is the original Bill, here is the Explanatory
Note and let us show you how this all links in; here is what we
are explaining; here is how the amendments have come up; here
is what it would change. That is not reinventing the wheel at
all, that is really, really straightforward stuff that should
be available in terms of the technical aspects of it, and it is
really not hard at all. So it is not surprising that if people
have to print out reams of material in order to sit in three piles
and cross-reference it is not hard to see why people do not go
ahead and do that.
Q74 Mr Vaizey: I am afraid that suggestion
is far too sensible; it could not possibly be taken forward!
Dr Kelso: It does go back to the
sense that most of what you are suggesting is not new, it is not
really hard and most of it is commonsense, and the fact that it
has all been suggested before suggests that at some point you
actually have to do something about implementing a reasonable
number of these things.
Chairman: Time passes on, but
thank you, that is very helpful. Ann Coffey.
Q75 Ann Coffey: Again in a previous
inquiry we spent a lot of time talking about how we can make discussions
in Parliament better fit in with what was happening in the media,
the wider news media outside, and one of the things we did was
to shorten the notice that you put in for oral questions. But
again, at that time we also discussed the idea of having a topical
question. To some extent that happens if the government makes
a statement about something that has happened, or the opposition
can get an urgent question agreed by the Speaker, but I guess
that is a kind of hit and miss affair, and the idea was that in
fact maybe opposition parties or individual Members could have
a time where they could discuss a particular issue that was happening
at that moment outside and was seen to be relevant to people,
because part of the problem was people not seeing this place as
being relevant because what was being discussed in here was not
actually connected with what was happening out there, and therefore
Parliament was sidelined to a large extent. Do you have any observations
on that? Maybe Parliament should be sidelined and maybe we should
just plough on legislating irrespective of what happens out there?
Dr Kelso: I think in terms of
the sidelining debate Parliament does not simply want to follow
what the media says are the big issues of the day. You as MPs
are in the almost enviable position, depending how you look at
it, of actually having a constituency base where you can see for
yourselves what it is that is annoying people and what troubles
them, what they are concerned about and so on. To what extent
does that link up with how the media portrays those issues is
the first thing to think about. There should not be an exercise
in Parliament chasing the media spotlight by any stretch because
that is not really going to happen. Parliament has been sidelined
in as much as it can be slow to do things and slow to respond
to things, I do not think there is any question about that, unless
you see changing the notice for questions as one step in that
direction, and in terms of topicality there are probably a number
of things that you can do. I think what you do not want to do
is simply chase the spotlight and always trying to have the media
attention on you because that comes by virtue of the nature of
the thing that you do, not by how quickly you respond to issues.
Of course, the two are linked at some level—if it takes
you two or three weeks to debate things that are really crucial
of course people are not going to see you as doing much of a particularly
relevant job. But at the same time the decision to focus on Parliament
comes out as the nature of the level of the work that it is doing
and I think if you look at the media attention focused on Parliament
during the Iraq War debate, for example, it had an unprecedented
level of media attention because it was seen to be addressing
a really interesting topical issue that people were keen to talk
about and it was doing it in a really reasoned and mature way;
it was not simply because it was chasing an issue, it was quite
clearly something that had to be debated.
Q76 Ann Coffey: I understand the
difficulties of balance, but I am asking whether a topical question
is a way of getting a better balance.
Dr Kelso: I guess like most of
these suggestions these are all good ideas.
Chairman: It is not quite on the
main point of the inquiry.
Ann Coffey: It is.
Chairman: It may be on the main
point of the inquiry but nonetheless time is running out. Nick
Winterton.
Q77 Sir Nicholas Winterton: Can I
pick up Philip Cowley on a matter that he raised because I think
he is the only one of our witnesses this morning that has, and
picking up a response from our Chairman, the Leader of the House,
who said that the House of Lords is proving to be more and more
important because large tranches of legislation are leaving the
House un-debated, and therefore the Lords are obliged by the duties
and the responsibilities that they have particularly to give in-depth
consideration to those parts of the Bill that have not been properly
debated. This is very often due, as Philip Cowley said, to programming.
I have read Philip Cowley's book, The Rebels, and I have
a copy of it here, and I have to say that it makes interesting
reading. It is particularly about the period of Labour government
but it is very revealing. Philip, you said that backbenchers are
now rebelling at second reading because they can no longer guarantee
to get called or to have their amendments debated at Report stage
because there is a limit put on Report stage under programming
motions. Firstly, on programming, do you think that a programming
motion should not be put immediately after second reading debate
without debate, but should be put some 48 or 72 hours later when
the usual channels, government, opposition have actually seen
what the issues are that are raised during the second reading
debate, upon which they can judge then the importance of how long
the standing committee and subsequent stages might be? Do you
also think there should be no programme motion on Report stage,
which is the only occasion that any Member of the House is guaranteed
to get called because they cannot guarantee to get called on a
second reading debate because they are generally now only one
day rather than over a longer period, and therefore there is a
limit, and they cannot speak on a standing committee unless they
are selected to go on the standing committee, so the only stage
at which a Member of Parliament can speak and should be allowed
to speak, particularly if that matter is important to him or her
or their constituency or their own interests, is the Report stage?
So how do you think that programming, as part of our legislative
process should be adjusted to allow proper scrutiny and proper
participation?
Mr Cowley: I am struck not only
by your very flattering words about the book—all good bookshops!—but
also by the fact that if we had been here, say, 20 years ago and
you had invited three academics to give evidence on ways of improving
the legislative process and you had mentioned programming we would
all have been in favour of programming. Programming was one of
the great reformist ideals from the 1960s onwards, that the legislative
process was a mess because it was not properly structured and
we would need to improve the structuring by having some sort of
programming. So the problem is not programming per se,
it is the type of programming we currently have and we moved,
I think, very swiftly downhill from the initial proposals that
came up after 1997 to what we currently have. The reason we shifted
downhill, as Members of the Committee know, was a combination
of the desire of the Whips to control debate, with frustration
on the Labour benches about the way that some Conservative MPs
were opposing that, and there was an unholy alliance working to
almost nobody's benefit between the two groups, I think.
Q78 Sir Nicholas Winterton: Absolutely.
Mr Cowley: So I would like to
see programming relaxed somewhat, it is currently too tight; I
think the automatic programming in the way that it currently functions
is too harsh. I am not sure that having a pause between the second
reading debate and the programming vote would necessarily matter
since at the moment there is no reason why, in that the usual
channels can consult with one another anyway, and what is currently
happening is that often the desire of the Conservative side is
simply being overruled and that would happen anyway, even if you
had a two or three day gap, I would have thought, between the
second reading and the vote.
Q79 Sir Nicholas Winterton: But you
would at least know what the major issues were that had been raised
by backbenchers during the course of the second reading debate,
which at the moment you do not.
Mr Cowley: You would, but if the
Whips are doing their work they will know anyway what the major
issues that are going to be raised are, and they are choosing
to ignore them now more often or not, and they would, I think,
continue to choose to ignore them even if you had a gap between
the second reading and the vote. It is not to say that I would
not do it but I could not necessarily see any great advantages.
Similarly, it would be great if we debated programming motions
but everybody in this room knows why we do not debate programming
motions because the same issues came up time and time again, it
was not being constructively used and therefore there was a desire
to save Parliament's time instead of giving certain Conservative
Members, many with whom I have good relations, the chance simply
to repeat the points they had made at every other programming
debate. So it will require a combination of political will to
shift to a situation which would be better. As for the Lords,
I would say that I think the reason the Lords is currently sending
more legislation back is not primarily because more and more legislation
is leaving this House un-scrutinised, but it is because the House
of Lords was reformed and is now far more willing to stand up
to the government than it was before, and a far more effective
second chamber than we used to have and probably more effective
now than at any time since 1911, and I think it would be doing
that almost regardless of whether this legislation were leaving
this House un-scrutinised. But I do agree with the point that
the Chairman made that there is a problem at the moment, which
is amongst informed circles that there is a perception that it
is the un-elected House that does the scrutiny work and not the
elected House and that the balance is wrong there.
|
