Examination of Witnesses (Questions 220-239)
SIR ROGER
SANDS KCB AND
DR MALCOLM
JACK
5 JULY 2006
Q220 Mr Vaizey: No, it would be a
special standing committee appointed separately to look at bills
coming out of a specific department.
Dr Jack: I see.
Sir Roger Sands: I did notice
that the example you gave was to deal with all Home Office bills—
Q221 Mr Vaizey: You might need about
four committees for that part of it, but it is just the principle
I am interested in.
Dr Jack: The reason I mentioned
it is that I was, of course, thinking of the Armed Forces Bill
and the exercise on that, which has just recently taken place
and the Select Committee there spent four months and produced
a voluminous report on the bill, which I have got here. I think
that exercise was generally thought to be extremely successful,
but this is perhaps sui generis. The Committee did recommend
the procedure as a procedure to be followed by the House.
Sir Roger Sands: But that is very
time-consuming and resource-intensive, a full select committee
on a bill, and it is difficult to envisage that one could apply
that across the whole of the Government's legislative programme.
I think that the special standing committee format is a better,
practical option to go for, in the first instance at any rate.
Q222 Mr Howarth: I chaired the Armed
Services Bill Committee, in fact I have submitted a memorandum
to the Committee on it.[23]
One of the characteristics where it was different from a special
standing committee, which I felt was very helpful—although
it did cause some confusion for some of the sketch writers—was
that the minister was a member of the Committee and so he was
able to be involved in the select committee stage of it as well
as then in the detailed consideration of it when we behaved to
all intents and purposes as though we were a standing committee.
It meant that not just the members of the Committee gained a body
of expertise in the issues which underlay the clauses of the Bill,
but also it was a relationship with the minister and his officials
and the bill team which I felt was a very, very productive process.
I know neither of you were directly involved in it, but presumably
from the clerk of that Committee you will have picked up—
Dr Jack: Yes, we had very favourable
reports about it, but, of course, as Roger has said, it was an
enormous exercise, which you will know only too well, lasting
for four months. There were eight evidence sessions and 42 memoranda,
so it really was a big operation.
Sir Roger Sands: There was one
point, Mr Vaizey, which I did not pick up, which was the language
of bills. I have great sympathy with this because I have seen
them, I think, getting more convoluted over time. There are some
exceptions, of course. I hesitate to mention it in this company,
but the Human Rights Act is always held up as a glittering exception,
one which is very brief and very clear.
Chairman: It is very well drafted.
Mr Shepherd: Not everyone in the
Government seems to want it!
Q223 Chairman: It was very elegantly
drafted by Edward Caldwell and Christopher Jenkins and the content
was good, too.
Sir Roger Sands: Indeed.
Mr Shepherd: A declaration of
independence by the Chairman! But I do not want to get into declarations
of independence. I am grateful for your memorandum. It starts
off with scrutinising, amending and passing bills as a primary
function of Parliament. This echoes what this Committee and its
predecessor have heard from time immemorial, ie construction.
It ends up with, going through the points which you do here, things
in which we have great interest. Your conclusion: "There
is no indication that government business managers are likely
to be willing to relax the degree of control which they exert
over the legislative process and its scheduling." Then finally
down to "but significant additional time in the Commons is
only likely to become available if there is a reduction in the
volume of legislation introduced, or a rebalancing of the legislative
timetable between the two Houses." You support some of this
by tables and they are tables which this Committee in its past
has looked at, and I am thinking particularly of what you, in
the language of the House, refer to as the "operation of
programme orders" but which, in many aspects, have the features
of guillotines. Why I am appreciative of this is because it is
like often squeezing a stone for blood to actually see what is
happening to our consideration of legislation. You know I have
a long-term interest in this and just looking at 2004-05 and 2005-06,
as far as we have got, we look at whole rafts of important bills.
Identity Cards, the number of group readings not reached because
of the guillotine or the knife, or whatever it is, two out of
seven. These are major and hugely controversial bills. What conclusion
do you draw from this? I draw the conclusion, though you may want
to knock it down, that we are not considering bills because of
the tightness of these timetables, that important concepts about
our liberties and freedoms are not discussed in the Commons and
that we are becoming redundant to where the power and authority
now lies, which is negotiations with their Lordships. I am sorry,
that is a highly controversial area for a Clerk of the House.
Q224 Chairman: Yes or no, is it true?
Sir Roger Sands: Let me pin my
colours to the mast straight away. I support the concept of programming,
but I would find it very hard to support the way in which it is
often used. Programming is an enormously powerful tool and it
can be used constructively or it can be abused, and one sees examples
of both constantly; but the principle, I think, is correct. I
do not think that the idea of open-ended debate of everything
is sustainable. It has not been for a generation. We recognise
it just by the way we do second readings, which is not controversial
any longer, by and large. Second readings used to be debated for
as long as there were people who wanted to speak on them, but
now we accept that they will be taken in one day and the number
of speakers is trimmed to the time available.
Sir Nicholas Winterton: But is
that right?
Q225 Mr Shepherd: Sorry, could I
finish? You will remember, because it is 41 years, we were reminded
today, when John Biffin was addressing this issue as Leader of
the House of Commons, where he said that the automatic guillotine
or routine programming of bills would undoubtedly act to the advantage
of the Executive, the Government. In fact the House rejected it
at that stage, which I think was 1986, was it not? What we have
seen now is non-consideration of large chunks of important bills,
a diminution of the power of the Commons versus the Executive,
and furthermore a diminution of the power of the Commons in relation
to their Lordships.
Sir Roger Sands: I am against
an approach to procedure which results in debate being conducted
as a process of arm-wrestling rather than real engagement; and
I think when we had open-ended debate on legislation that was
what tended to happen far too often and guillotining was the way
you broke through. You stopped the arm-wrestling and it was almost
the only way to do it. I think people began to realise that was
not constructive and programming—or as it used to be called,
"guillotining from the beginning"—was the answer
to that problem. But it does have to be used with sensitivity,
and I have to say that the Government business managers do not
always do that. There is a sort of one size fits all approach,
particularly to Report stages, where we have this standard pattern
of a Report stage until an hour before the moment of interruption,
a final hour for third reading, and you can have that for a bill
this size or a bill this size, and that is hopeless.
So when I see that, I share some of your despair, but I think
it is one thing to say that and another thing to say we have got
to go back to a so-called "golden age".
Mr Shepherd: Sir Roger, I appreciate
the Clerk of the House and the great gentleness with which the
Clerk forwards his propositions, but your actual operation of
programme orders does not support the concept that we are examining
under this guillotining or operation of programmes. The huge numbers,
certainly in 2004, of numbers of groups at third reading not reached
is startling in some instances. To read them out, because a wider
world will not know what we are talking about, but we are talking
about Identity Cards in one of the instances. We are talking about
some very important pieces of legislation and I think your paper
is more forceful than the words you are using here. Maybe I have
misunderstood the paper, but I do not see how a committee can
be looking at the legislative process without acknowledging truthfully
to itself that the barriers which you have identified, the Government's
hold over and non-consideration of Opposition through the usual
channels, the opportunity to tailor a guillotine motion which
comes into immediate action after second reading, and then the
Report stage of bills of which huge tranches, again, are not available
to Members of the House because of the operation of a very tight
scheduling. That is my concern. When we formulate what a report
is going to be, we tiptoe around this because by nature we have
a Cabinet Minister sitting in the chair. You have got to make
the point.
Q226 Chairman: This is question and
answer, rather than debate.
Sir Roger Sands: Perhaps I could
comment briefly. I got myself in a wee bit of trouble yesterday
before the Joint Committee on Conventions of the House of Lords,
when a Member of their Lordships' House was making a similar point
about the extent to which the Commons actually considers legislation,
and I said that we can measure two things absolutely objectively:
we can say how many clauses in a bill have not been debated by
the House and we can show, as this schedule does, how many clauses
have been put to the House en bloc under the terms of a
programme order knife. What we cannot do objectively is to say,
"What reasons underlie that?" What I was hinting to
their Lordships was that they made a great mistake if they did
not just take the bill as it reached them and deal with it on
its merits. There can be all sorts of reasons. Sometimes it is
because the amount of time which has been allowed under the programme
is manifestly inadequate. Sometimes it can be because the time
allowed under the programme has been manifestly adequate, but
people have set out deliberately to try and demonstrate that it
was not. Sometimes it can be—and this happens in committee—that
there are a lot of clauses in the bill which are not debated because
people have looked at them and thought there was no reason to
debate them. So you can only subjectively judge on the reasons
underlying these figures.
Mr Shepherd: But you will remember
the Criminal Justice and Police Bill of 2001, where in point of
fact in the committee it did the criminal justice part of it but
because of an interruption in the committee it did not do the
police bit of it and it fell because of the 2001 Election, but
the House of Commons deemed that the bill had been considered.
I think it is the first time in the history of the House of Commons,
and it was a lie.
Q227 Sir Nicholas Winterton: Absolutely!
Dr Jack: I was just going to come
in on the notion of voluntary programming, which I think is what
Roger is getting at, namely the idea that really there are examples
of this, quite successful examples. One might be the Finance Bill.
The way the Finance Bill is dealt with in standing committee is
done more or less on a voluntary basis, but the programme, as
Sir Nicholas knows very well, is very clearly agreed and established.
That is part of the culture—if I can put it that way—of
that committee and it links up to other aspects of the work of
that committee. I think that is one example. The other is a historical
example, I think, which goes right back to the early nineties
when I was in a previous incarnation in the Public Bill Office
and the bill—some said the bill was to privatise the electricity
industry and others to de-couple it from the nationalised status
it was in—was taken through the House by the present Prime
Minister in fact, who was then Shadow Opposition Spokesman on
Energy, and that was done on a massive and very controversial
bill with an agreed programme. We did not call it "a programme"
because it pre-dates programmes, but that certainly did happen
and it was quite a successful operation. I think it depends partly
on the sort of culture in which the matter is approached.
Mr Howarth: It is only to support
a point against Richard, and I would never accuse Richard of wasting
the time of the House, but I can remember the 1988 Housing Act,
which was at the Report stage, where we went through the night
and I was speaking myself for two hours on an amendment about
the Durham Aged Miners' Housing Association, and I freely confess
before this Committee that not everything I said at that time
of night and in those circumstances over two hours made a whole
lot of sense. There was not this golden age. Oppositions will
always use, and who can blame them, the opportunity they have
to detain the House and detain the Government and that is not
a sad fact, it is part of the function of being in Opposition.
Q228 Mrs May: Chairman, I apologise
to everyone for my late arrival at the Committee, so do stop me
if the questions I raise have already been discussed. I wanted
to raise two areas, if I might. The first is the issue of secondary
legislation and the increase in volume of secondary legislation,
and the impact that has, both on Parliament's ability to scrutinise
what is happening, but, secondly, any practical issues which that
raises for the Clerk's Department if you are dealing with primary
legislation which is increasingly vague in its terminology and
reliant upon secondary legislation, where often the content of
which is not available when the primary legislation is being discussed.
The second issue I wanted to raise was post-legislative scrutiny.
There is a very elegant paragraph, Sir Roger, in your memorandum
on post-legislative scrutiny. Having read it, I am not sure whether
you are in favour of post-legislative scrutiny or not, and I just
wondered whether perhaps you could elaborate a little on your
views on that.
Sir Roger Sands: I will leave
Malcolm, if I may, to deal with secondary legislation as that
falls within his current empire. What I was intending to say on
post-legislative scrutiny was that I did not see it being what
I think this Committee would regard as part of the regular legislative
process. Pre-legislative scrutiny has, almost, become part of
the legislative process in that it is possible to think of a bill
proceeding in a different way if it has had that pre-legislative
scrutiny. But post-legislative scrutiny I just regard as part
of the general role of the House in scrutinising what Government
is up to. The House has passed an Act of Parliament, it has given
the relevant department a new instrument to use and it is of course
right that in a few years' time—the length of time will
depend upon what the instrument was and what it was intended to
achieve—it should go back and see what use has been made
of it. But that I would see as part of the normal scrutiny activity
carried out, almost certainly, by the departmental select committees.
I think it would almost certainly end up being a waste of resources
if we were to try to build in a new piece of machinery which always
clicked in with every piece of legislation after a set amount
of time. I just think that people would not find it a sensible
use of time.
Q229 Chairman: Dr Jack, do you have
anything to add?
Dr Jack: I was just going to add
on the point of delegated legislation that of course that is separated
in the House service from the bill part of the operation, in fact,
although there is nominally one legislation service and that part
is conducted, as you know, by the select committees. So there
is not really a direct link between that work and the bill work.
Sir Roger Sands: This is a case
where the fact that we have two Houses of Parliament has been
quite useful. The House of Lords has thrown quite a bit of resource
at this issue. They have set up a statutory instruments Merits
Committee, they have set up a Delegated Powers Scrutiny Committee
and the latter certainly has done some very good work.
Sir Nicholas Winterton: But should
the House of Commons be involved in that? We are not going to
get the questions in which matter, unless we intervene.
Chairman: Theresa has asked the question.
Sir Nicholas Winterton: It is
all part of it.
Q230 Mrs May: Perhaps you might like
to answer Sir Nicholas's question as well, but the way you just
responded suggests that the secondary legislation issue is nothing
to do with the primary legislation, but it is. It has an impact
on how we handle primary legislation, and that is what I am trying
to get at.
Sir Roger Sands: Yes. The balance
between what is set out in the primary legislation and what is
delegated to be done subsequently is exactly what the Delegated
Powers Scrutiny Committee in the Lords is trying to look at. It
is trying to judge in each case, when Parliament is being invited
to delegate a legislative power, is that appropriate or not? I
think they have had some success in whittling down the number
of what used to be called "framework bills". I think
there are fewer cases of really complete frameworks where you
look at the bill and you have no idea how it is going to be used
at all, which I agree is destructive of good parliamentary scrutiny.
Chairman: With Mrs May's permission and
Nick's, could I just ask a supplementary!
Sir Nicholas Winterton: Sir, if
you wish!
Q231 Chairman: Thank you. Does the
fact that there has been a whittling down of framework bills—
Sir Roger Sands: I think that
is true.
Q232 Chairman: Is it that what the
Government draftsmen are saying would account for the greater
length of bills these days, in other words more is now put in
the primary legislation which previously went into regulations?
Dr Jack: I suspect the real reason
is the growing complexity of law in almost all areas.
Sir Roger Sands: Yes. The attempt
to reduce the number of delegated powers I think would be a relatively
minor contribution.
Q233 Sir Nicholas Winterton: Could
I just ask the question, and Theresa will come back and, I think,
finish this series of questions. Do you think that the Lords and
Commons should work together in joint committees rather than separately
in dealing with secondary delegated legislation? It seems to me
that both Houses together have a huge amount of experience and
expertise and that where the Procedure Committee previously has
suggested there should be a joint committee and the Government,
for whatever reason, rejected that, do you think it would be a
good thing to have a joint committee? Do you think that this joint
committee should be able to amend secondary legislation, which
at the moment they are not able to do?
Sir Roger Sands: No, I think amendment
of delegated legislation is a contradiction in terms. If you can
amend it, you have not delegated the power, so no, I do not; I
have always thought that was a blind alley. But Parliament retains
the right to reject a piece of delegated legislation, that is
right and proper, and if they do, then the Government has to go
back and think again. On joint activity, there is, of course,
a Joint Committee on Statutory Instruments which looks at such
questions as their technical vires and the other matters
set out in the terms of reference of that Joint Committee. We
have a small legal team in the Legal Services Office which supports
that work, so all these statutory instruments do get read in Parliament
and there is a small band of dedicated Members of both Houses
who see the results of that reading and can pick up points if
necessary.
Q234 Sir Nicholas Winterton: Does
Malcolm Jack have any comment on that?
Dr Jack: I do not have anything
further to add to that.
Q235 Mrs May: I am sorry to labour
the point, but I wonder if I could just come back on this. It
is a neat argument that if the legislation is delegated, then
by definition you should not be able to amend it because that
is the whole point of the delegated power, but when you have an
increasing amount of legislation, which is going through in the
form of delegated legislation, so you have increasing numbers
of incidences where the power is delegated to the Government to
bring forward the statutory instrument and what you are seeing
is less and less scrutiny of the detail of the legislation by
the House of Commons and, indeed, the Lords. That is the issue
I am trying to get at, that yes, you are right in absolute terms,
in terms of delegated legislation, but it does bring problems
because it reduces the ability of the House of Commons to scrutinise
legislation if more and more of it is done in this delegated way
when there is only an hour and a half debate and an opportunity
to say yes or no absolute and no opportunity to fine-tune the
particular instrument concerned.
Sir Roger Sands: It is quite a
long time since I attended a standing committee on delegated legislation,
but my impression of them is that they are not one of the aspects
of the activities of the House which engage Members to a tremendously
high degree.
Q236 Mr Howarth: Ten or fifteen minutes
probably!
Sir Roger Sands: I think we have
the machinery there and it can be brought into play. What I do
regret very much is that the opportunity for the House as a whole
to vote on negative instruments has effectively been removed,
and I feel quite strongly that was an abuse.
Q237 Sir Nicholas Winterton: You
are absolutely right. Hear, hear!
Sir Roger Sands: I got myself
into serious trouble with the Government Chief Whip recently by
advising the Speaker that it was proper for the Opposition to
put down such a motion for vote on an Opposition Day, but that
is the only occasion recently when the House has been able to
vote on a negative instrument, and I think that is regrettable.
Q238 Chairman: Do you think we should
re-look at that?
Sir Roger Sands: Procedure committees
have repeatedly suggested that the present system is not appropriate,
and I agree with them.
Sir Nicholas Winterton: Very good.
Chairman: Thank you. I would like to
offer my apologies now, but I have got to go. My departure is
illustrative of an issue which I am raising with the Chairman
of the Liaison Committee, which is the way in which a whole series
of committees are now compressed into Tuesdays and Wednesdays
and I want to see whether we can expand the working week a little
better, or make use of the working week a little better.
In the absence of the Chairman, Sir Nicholas
Winterton was called to the Chair
Q239 Mr Knight: Do you agree that draconian
and inflexible programming is not something we need to suffer,
nor should we suffer it? I would like to take issue with George
Howarth. I do not think Oppositions always have sought to frustrate
government business and Dr Jack gave a very good example. When
I was in the Government Whip's Office the one person I could always
do business with was the current Prime Minister because my only
concern, as Government Whip, was to get an end date for the standing
committee, which was then totally un-guillotined. The Prime Minister
in his capacity then was always willing to agree an end date provided
the Government allowed set debates on the parts of the bill which
he regarded as controversial, and that is how it should be. Is
not the big problem with the present system that it is very much
a lottery at Report stage whether controversial issues get debated,
because if they come low down in the pecking order they are hit
by the termination of the Report stage, there is no debate and
very often no vote on these very controversial parts. Is that
not something really which we should not put up with and are there
ways of refining it? The Blair example is a good one. Tony Blair
was New Labour before he invented the phrase "New Labour"!
Sir Roger Sands: I agree with
the underlying point you are making, which is that relationships
between the usual channels are crucial in this matter. If they
are working constructively, as they have been on quite a number
of bills in recent months, problems like the one you mention about
controversial and serious issues getting squeezed out by the programme
can be resolved because one of the things you can do in a programme
motion is re-order the proceedings. You can manipulate it so that
the key issues are, as we use the phrase, "protected"
and they are almost guaranteed debate; there has been a lot of
that recently. The other virtue of programming for the backbench
Member who is not involved directly in proceedings is that it
does enable the Whips to put in stop points at which divisions
are fairly predictable. So you can look at your diary on the day
and say, "I am going to be needed at four o'clock and six
o'clock," and so on. So there is a number of incidental virtues
to programming which I do not think should be minimised.
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