Examination of Witnesses (Questions 207-219)
SIR ROGER
SANDS KCB AND
DR MALCOLM
JACK
5 JULY 2006
Q207 Chairman: Sir Roger and Dr Jack,
you are welcome to the Modernisation Committee and it comes on
a day of some moment. As the House is first informed of Sir Roger's
impending retirement, there will be an opportunity for all of
us, Sir Roger, to pay tribute to your work as Clerk. May I say
to Dr Jack sitting next to you, congratulations on the appointment
as Clerk of the House of Commons, which, as the official notice
made clear, was an appointment approved by Her Majesty, which
is an interesting reflection of the constitutional relationship
between the House and the Monarch. Thank you also for the memorandum
which you have submitted. As you know, we are conducting an inquiry
into the legislative process. Sir Roger, you have given us a helpful
memorandum on this. I certainly acknowledge what you say in paragraph
2, that the legislative procedure has been pretty exhaustively
reviewed by various bodies since the Modernisation Committee was
established in 1997-98 and that as a result it is difficult to
come up with ideas which are significantly novel. I accept that.
The issue is, which of these proposals for improvement do we run
with? You may also have been briefed by Helen Irwin that one of
the issues we are looking at in some detail is whether the special
standing committee procedure could become the norm with departure
from that having to be specifically agreed by the House at the
point of referral to the Committee. Could I begin by asking, as
you look forward to your retirement and back on your 41 years'
service in the House, if you had a magic wand, what would be the
changes in the legislative process which you would introduce,
now that you have got the freedom of retirement and total licence
to say, "They should have done it this way"?
Sir Roger Sands: I think the House
has to process what is put in front of it and one of the major
problems is that so much has been put in front of it in recent
years. One of the annexes to the memorandum does give the number
of pages and it does yo-yo up and down a bit from time to time,
but it does show that basically since about 1993 it has risen
from round about 2,000 to about 3,500 now and that is excluding
big consolidation bills and those sort of one-off items.
Chairman: If I could just interrupt you
there. To make the customary division, 1997, the average between
92 and 97 of the pages was around 2,000 and post 1997 it was 2,600
and it appears to be rising.
Mr Shepherd: The last three years
were well over that average, but carefully constructed, Chairman.
Chairman: It is on the record.
Mr Vaizey: 2001 is the lowest.
Q208 Chairman: Yes. I am sorry, Sir
Roger, we interrupted you.
Sir Roger Sands: All I can say
is that when I was the Clerk of Legislation, the job which Malcolm
now occupies, we had our first two-volume Finance Bill. That was
the first time it had ever happened and we had to invent a new
process for producing the thing. Now that is routine and we have
just had our first three-volume bill. It is not the Finance Bill,
it is the Company Law Reform Bill, but that has set a new standard,
which I hope will not be emulated by too many departments and
ministers in the future. Obviously you do have to look at the
volume of material which the procedures of the House have to deal
with. I think if I had a magic wand, we would get back to the
levels which prevailed about 20 years ago.
Q209 Sir Nicholas Winterton: Less
legislation, Sir Roger?
Sir Roger Sands: Yes, I think
that would make it much easier for the House to do a good job
on what is presented to it. I think there is a limit to the capacity
of the system to absorb new proposals.
Q210 Mr Howarth: Is that less bills
or shorter bills, or both?
Sir Roger Sands: The number of
bills has remained reasonably constant, I think I am right in
saying.
Dr Jack: Yes, that is right.
Sir Roger Sands: So it is a question
of size. I think the Government business managers have this figure
of about 35 bills a session in their heads and are very reluctant
to be kicked out of it, so what they do instead is wrap what might
have been two bills 20 years ago into one and present them to
the House as one bill; so the 35 has become pretty elastic.
Q211 Chairman: I remember when I
was at the Home Office we used to do that! Could I press you on
this issue. You have made the point, which I understand, that
if legislation ran to fewer pages and the total volume was less,
it would be easier for the House to digest that legislation. That
said, it was certainly my experience when there was a very heavy
programme, when I was Home Secretary, that there is no necessary
connection between the degree of controversy that a bill generates
and its length, most certainly not. Could I just press you on
whether there are some changes in the process over which you would
like to run your magic wand, apart from putting a spell on government
ministers so that they are rather less verbose?
Sir Roger Sands: I think if I
had a magic wand, the item—which is something I have been
attached to for a very long time and actually wrote what was originally
the Sessional Order and is now the Standing Order—would
be carry-over. I have always been very enthusiastic about that
and I have been sorry that since it was introduced and became
a Standing Order it has been relatively little used. I think the
reason for my enthusiasm about this procedure is that it has the
capacity to eliminate the artificial crises which the business
managers tend to play on to keep everybody on their toes. More
seriously, it should enable a more rational planning of government
business over the lifetime of a Parliament so that we are not
in the position here in the House for a chunk of the year spending
our time doing second readings, and then another chunk of the
year everybody vanishes to the Committee Corridor and they are
in standing committees, and then everybody is back in the House
for Report stages.
Q212 Sir Nicholas Winterton: Yes,
but by agreement, Sir Roger, or because of Government diktat,
carry-over? It is a diversion, but you can answer that question.
Should it be by agreement?
Sir Roger Sands: I am reluctant
to get drawn into the argument about how business is managed,
but yes, obviously there has to be negotiation already between
the usual channels and whether that negotiation was formalised
in the way I know you are keen on, Sir Nicholas, or remained as
it is now, there would obviously have to be discussion which would
cover not just the progress of individual bills but the planning
of the session more generally.
Chairman: We are going to suspend. Could
I ask colleagues to come back as quickly as possible. We will
start as soon as we are quorate.
The Committee suspended from 3.30 pm to 3.39
pm for a division in the House
Q213 Chairman: If I could just say to
Dr Jack, if you want to come in, do, please, come in at the same
time.
Dr Jack: Shall I start then? I
would like to add a comment.
Q214 Chairman: Please do.
Dr Jack: It was really just to
confirm what the Clerk was saying about volume from the engine
room, as it were, rather than the bridge. I have got three piles
of bills in my office, each of which is about six inches high.
The first two piles are bills introduced in the Commons since
the beginning of this session and the third is a pile of six inches
of bills introduced in the Lords, so there are one and a half
feet of bills lying on that table. I did just want to add the
point that I think we should not lose sight of the Lords in this
whole equation because legislation is an activity, obviously,
of both Houses of Parliament and the Lords is a significant initiating
Chamber for legislation, as well as a revising Chamber.
Q215 Sir Nicholas Winterton: And
mainly non-controversial?
Dr Jack: Yes, by and large.
Q216 Ms Butler: My remit is around
technology. I agree with you that a lot of the modernisation ideas
which have been put forward have been previously discussed, maybe
not so much in technology, but what I find hard to cope with is
why we have not moved forward on a lot of the modernisation ideas.
With regard to technology, I would like to see some kind of electronic
voting. That might make you gasp out loud, but I would like to
see some kind of electronic voting taking place at some stage.
I know we are probably centuries away from that happening, but
how about the scope to extend deferred divisions? Do you feel
there is scope to extend that and maybe rolling up votes at the
end of the second reading so that we can vote in block instead
of having to vote, then hang around and come back and vote again,
yesterday being a classic example?
Sir Roger Sands: On electronic
voting, no, I would not gasp out loud at all, and the matter has
been examined by the predecessor of this Committee at some length.
My understanding is that there was no consensus about its desirability.
One of the main problems, of course, is not having the sort of
Chamber where every Member can sit at their desk and press a button.
I was in one such chamber at the end of last week in Copenhagen
and it is so easy there. There are 170-odd members and everybody
has got a desk and the buttons are in front. That would make a
great difference, but unless this House is willing to cut itself
down to 400 or so, then I do not see it being practicable. On
deferred divisions, we have in the past—when I say "we"
I mean the clerks—advised against extending this any further
for the process of legislation, for the principal reason that
when you are going through a bill, there is a logic to the process
and one decision does, very often, tend to hang on another and
you cannot start deciding about supplementary things in a bill
until you have decided the big issue of principle. One can get
oneself into terrible trouble about this. That said, there are
possibly one or two things one could do to extend the scope of
deferred divisions. Knowing that this Committee was interested
in that, I was discussing it with Malcolm yesterday and we agreed
that there is no reason in principle why it should not extend
to, let us say, money and ways and means resolutions taken after
the second reading; but the fact of the matter is that they are
almost never divided on now. I think the practical difference
it would make would be very minimal. When you are going through
the Report stage of a bill, as we are today, I think deferred
divisions become very difficult, not least because the Government
tends to want to get the bill up to the Lords, and when are we
deferring the votes to? So I would not like to say anything which
encouraged this Committee further down that road. I know the method
of voting is very time-consuming, but I think the procedural principles
which are involved are very difficult to break down.
Mr Vaizey: Thank you very much,
Sir Roger, for a very interesting paper. I was one of the members
of the Committee who were very interested in the idea of deferred
divisions, but I did find your reasoning in your paper very persuasive,
as reinforced there, and also on pre-legislative and post-legislative
scrutiny as well, and I think I share your concerns about post-legislative
scrutiny potentially becoming simply, without wishing to paraphrase
or misrepresent you, another attempt to have another bite at the
cherry rather than a constructive exercise. My particular interest
is special standing committees on bills and I am not quite sure
whether taking evidence at a special standing committee would
add anything particularly to the process of scrutinising a bill.
What I would like to see, and would like your views on, is first
of all whether you think it is feasible to appoint a departmental
special standing committee at the beginning of a Parliament, say,
a Home Affairs special standing committee, which would then sit
for that Parliament and scrutinise bills coming from that department
so that a level of expertise and experience was built up. Also,
your views—and this may simply be a matter of resources
and, therefore, not something you would have a view on—on
whether or not the Opposition in particular should have clerical
support in the way that a select committee has clerical support
in order to enable them to, I think, scrutinise a bill more effectively.
I also would like to know your views on parliamentary language
and the language of bills. I think the recent bill coming from
the Department for Constitutional Affairs has been heralded as
a new version of plain speaking. I have not had a chance to look
at it, but whether or not progress can be made on that. Just as
a thought, in terms of the discussion we have had on legislation,
in the figures you have given for the volume of legislation, how
much of that is delegated legislation and how much of that, do
you think, is the result of European legislation being drafted
for domestic legislation?
Q217 Chairman: There is a lot of
questions there, I am afraid.
Sir Roger Sands: That is quite
a list, yes. To deal with the last point first, the figures which
are quoted in the memorandum are for primary legislation, what
is in bills. It does not cover delegated legislation at all. How
much of that primary legislation is derived from European Union
obligations, I am afraid I could not say off the top of my head.
Q218 Sir Nicholas Winterton: Why
not?
Sir Roger Sands: I simply do not
know, but it would be likely to be pretty small because in general
under the European Communities Act 1972, one can implement a European
Union Directive directly through delegated legislation, so it
would not be covered in those figures. On special standing committees,
although I have spent large chunks of my career in the Public
Bill Office, I have never been a clerk to a special standing committee,
partly because there have been so few of them. So I have no direct
experience, but my impression is that, with one or possibly two
exceptions, the experience of people, both Members and officers
who have been involved with them, has been positive. They thought
they added something to the mix in being able to test the arguments
for the bill with some outside witnesses at the start, to interrogate
perhaps a minister with his civil servants who have been engaged
for months and months in preparing the bill. I have often been
in the situation of seeing a standing committee engaged in a rather
artificial exercise where one had Members who were finding difficulty
coping with the detail of the bill, and a minister who was possibly
finding it difficult too. Behind the minister there are civil
servants who understand every detail of it, and in the public
gallery there are some interest group people who also understand
every detail of it and are passing notes. So the debate is in
some respects being conducted by proxy. You can break through
that to a degree with a special standing committee because you
can sit down with interest groups and talk to them and you can
sit down with civil servants and the minister and talk to them,
and then you can have your political debate on the bill. That
is the essence of the procedure. I do not know if Malcolm has
more direct experience.
Dr Jack: I do not have any direct
experience either because there have only been nine special standing
committees since 1980, I think, so they also happened when I was
not in the Public Bill Office.
Q219 Mr Vaizey: A special standing
committee appointed separately from a select committee.
Dr Jack: Yes, but a select committee
looking at a bill, I think you were getting on to.
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