UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1097-ii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

SELECT COMMITTEE ON MODERNISATION OF THE HOUSE OF COMMONS

 

 

The Legislative Process

 

 

Wednesday 17 May 2006

PROFESSOR DAWN OLIVER, DR PHILIP COWLEY and DR ALEXANDRA KELSO

Evidence heard in Public Questions 39 - 82

 

 

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Oral Evidence

Taken before the Select Committee on Modernisation of the House of Commons

on Wednesday 17 May 2006

Members present

Mr Jack Straw, in the Chair

Ms Dawn Butler

Ann Coffey

Mr George Howarth

Mr Greg Knight

Mark Lazarowicz

Mrs Theresa May

Mr Adrian Sanders

Graham Stringer

Paddy Tipping

Mr Edward Vaizey

Sir Nicholas Winterton

________________

Witnesses: Professor Dawn Oliver, Professor of Constitutional Law, University College London, Dr Philip Cowley, Reader in Parliamentary Government, University of Nottingham and Dr Alexandra Kelso, Department of Government, University of Strathclyde, gave evidence.

Q39 Chairman: Good morning. Thank you very much Professor Oliver, Dr Cowley and Dr Kelso for coming. You are probably more familiar with the workings of this Committee, having read your papers, than I am. You are very welcome. I will ask you, Professor Oliver first, and then your colleagues on either side, just to make any brief statements you may want to make and then we will pick it up from there. If I may just say, although this is my first meeting as Chair of the Modernisation Committee I have taken a keen interest in the legislative process, both through 18 years of opposition and then particularly four years as Home Secretary, with inevitably one of the largest legislative loads of any Minister because it goes with the job, and I am far from certain that the process we have is both efficient and effective. I was struck by one of the papers indicating your view that some of the Modernisation Committee decisions over the last nine years have made the system more efficient, maybe from a government's point of view, but not necessarily more effective in terms of enhancing scrutiny by both Houses and improving the quality of legislation.

Professor Oliver: Thank you very much, I am very pleased to have the opportunity to talk to you. My main interest, as you may know, is in the extent to which the legislative process could be structured, looking at objective things. So I think the political side of things, that happens, that is fine, but I think there is also potential to develop the more structured principle-based, et cetera, aspect. Looking at that I think it is helpful to recognise that the legislative process does not start in Parliament it starts right back in the departments, and my suggestion that it would be helpful if parliamentary Committees adopted standards and checklists is that that would help Parliament, but it would also feed back into the departments so that if departmental lawyers, Ministers and so on knew that when their Bills got into Parliament that Committees were likely to raise particular issues then that might mean that the departments' draftsmen and so on took care to be able to meet the points that will be raised in Parliament. The checklists or standards that I have in mind - and I have looked at other jurisdictions on this, which I myself found quite helpful - could cover informational matters, procedural matters and substantive matters. So informational matters, of course that does happen to an extent but that Parliament and its Committees should be provided with information about the evidence base for the Bill, the objectives of the Bill - why there is a problem, how the Bill, it is thought, will solve the problem - any regulatory impact assessment - and I know there are RIAs - but depending on the subject matter environmental impact, constitutional impact, family impact and so on, so that Parliament is informed about what the government thinks this Bill will do. It does not follow from that that the Committees would say, "That is fine, there is a Regulatory Impact Assessment," or whatever; my idea would be that that would give the Committees something to get their teeth into. They might say, "You say that the regulatory impact is going to be X but we are not so sure, can you expand on this?" So it would open up a debate. That is the informational side of things. The procedural side would be for Parliament to be informed of what kind of consultation has taken place with interested outside bodies - I think consultation is the main thing - possibly what sort of process has been gone through within government, but that is probably something more for government. Then thirdly, I think it would be helpful if there were what I call substantive standards. These might be not generic to start with but particular Committees might articulate substantive standards. The obvious examples would be the Joint Committee on Human Rights. Their standards are largely, of course, set out in the Human Rights Act and the European Convention but also in other international instruments, and the question would be: does this Bill meet the requirements of Human Rights Instruments, and so on? But for the Constitution Committee and for other Committees concerned with constitutional matters I think there are a whole lot of standards which are not written down very explicitly anywhere, but I found quite a lot in the Constitution Committee's reports - and one could do the same with other Committees' reports - like is there provision for access to a court if an administrative person under this Bill makes a decision that affects people's rights and they need access to it? And in tribunals, subject to the Council on Tribunals, does this affect the criminal law and so on? So there could be standards of that kind which I call substantive, which are not, by and large, party political. I think there is pretty broad consensus on a lot of these things and I have given some illustrations in my article, which you may have seen, and there is a whole lot more that I extracted from the Constitution Committee reports, but it would be quite possible for people to go through the reports of other Committees and identify recurring concerns that if set out in some kind of a checklist would help the Committee when it is dealing with particular Bills, and also might feed back into government. So it would say, "We are going to be asked about X, we had better get our explanation or justification for not doing it sorted." So that really is my interest in the legislative process.

Q40 Chairman: Thank you very much. Dr Cowley?

Dr Cowley: I would make three brief points. The first would be - and it was not, I think, my paper that you referred to - that there probably is a consensus amongst academics that the changes since 1997 have made things more efficient but not necessarily more effective; I think that would be a good way of summing it up. More efficient for government but I think also for Members - I think they have probably made the life of Members better, and that is not to be sniffed at.

Q41 Sir Nicholas Winterton: Better or easier?

Dr Cowley: Probably both but that is not to be sniffed at and I think that the demands we were placing on members before 1997 were excessive, and I think something that enables people to have a more normal life is not a bad thing - just because you go into politics does not mean that you should be strapped to the rack whilst you are down here. So I see no problem with that. The problem has been that it is difficult weighing up the changes since 1997 to conclude that they have also made the legislature better against the executive. Some of them have done no harm but taken on the whole it is difficult to say that they have made Parliament stronger. That said, they have not made Parliament necessarily worse either, and I think that would be my second broad point, that if you compare Parliament of today with Parliament of, say, 50 years ago, Parliament today is much more effective than it was 50 years ago in a whole range of ways, and I think parliamentarians themselves are partly to blame for the way that the media flagellates you for somehow being useless and ineffective compared to some mythical politicians of 40 or 50 years ago; there is no evidence for that at all and, if you want, we can talk through why that is. The third broad point I would make is that I can think of ways I would like to strange the structures and the procedures of the Commons, and I expect you all can as well, but actually you would not need to change many of the structures and procedures of the Commons to make things better than they are, all you would need is the political will to use the structures that already exist - more pre-legislative scrutiny, please, lots of use of Special Standing Committees, for example, and a range of other things which we can talk about. More carry-over - let us stop trying to legislate everything within a year and take instead the norm that we take two years for a run of the mill Bill to pass through its legislative stages. Let us have Special Standing Committees as the standard and force government to insist that they are not used if they want them to go to a normal Standing Committee or to some other mechanism. There is a whole range of things we can do already without needing to implement drastic changes to the legislative process, although I can think of, and presumably other witnesses and people around the table can also think of things that they would do.

Q42 Chairman: Dr Kelso.

Dr Kelso: Just as an opening remark, I would like to echo much of what Philip Cowley has said. The efficiency/effective distinction is one that I think you really need to be aware of when you look at any kind of attempt to reform the legislative process within the House of Commons. It struck me, certainly when I have done recent research, when I have spoken to MPs about this, that often times the two terms are used interchangeably as if efficiency and effectiveness mean the same thing. I think actually what you have to be aware of is that when you talk about something being efficient in the context of Westminster, when you talk about an efficient system it is about making the best use of limited resources. It is the same as it would mean in any context; you have limited resources be it time, be it money for Committees or what have you, and you have to use those as efficiently as you possibly can. That then, for me, goes into two different areas. There is perhaps a streamlining aspect of it which often can refer to things like changing sitting hours, which means making the way things work just a little more sensibly perhaps - changing them, adapting them, perhaps to make sitting hours suit different people in different ways, and of course there are various views on what that means. There is also the aspect of expediting legislation, expediting the legislative process, which is perhaps what this particular inquiry is more interested in, and I think that refers to having a process by which government gets its legislation with the minimum kind of interference from Parliament, the minimum input of resources in terms of ensuring that the legislation comes out accurately at the other end in terms of what it wanted to see. When you talk about effectiveness, by contrast, it has a very different view of the relationship between Executive and legislature, in as much as if you want to make Parliament, or the House of Commons in this context, more effective what you specifically want to do is rebalance in some way the relationship between the executive and the legislature. It often starts from the assumption that there might be something wrong with that relationship and that it should be rebalanced in some kind of way in order to make it perhaps more in favour of Parliament. Those two things, effectiveness and efficiency, are not necessarily mutually exclusive, and I think that is a key thing that can be overlooked, the assumption that if you are pursuing an effectiveness agenda it is somehow at loggerheads with an efficiency agenda. That does not necessarily have to be the case; but, that said, looking at what the Modernisation Committee has pursued since 1997 it has very much fallen into efficiency type issues with less attention to effectiveness issues, and in fact the one key time that effectiveness was looked at was perhaps with respect to the Select Committee Reforms in 2001/02. Perhaps to finish up in my opening remarks, what struck me - and before I came down here I wanted to think of some things I wanted to say that I thought might be useful to you - I pulled out the first report from the Modernisation Committee way back in the heady days of 1997/98 - that was HC 190, The Legislative Process - and reading that through I was struck by how optimistic it sounded about the potential for what could be done about the potential for actually making a difference, particularly with the new intake of MPs and what actually could be done with that. Then when I looked at the terms of reference for what you are trying to do now it actually seems you are trying to do the same thing that you were back then, but a great deal of it simply has not been achieved. So I think in this kind of exercise what perhaps is the most useful thing to do - and I think you do acknowledge that in your terms of reference in your briefing paper - is that you are not trying to come up with vastly new or great innovations, but make better use of what is already where which was what the aim was those nine years ago.

Q43 Chairman: Thank you very much. If I might ask a couple of questions and then pass the baton on to others. Professor Oliver, when I read your paper I was struck by the examples you gave of this idea of standards and being, as it were, on the other side of the wire for some time, I am struck that the introduction Section 19 of the Human Rights Act, with the certificate, and the requirement for Regulatory Impact Assessments has quite significantly affected consideration inside government of legislation, and neither were there when we came into administration, and both require there to be a greater degree of seriousness. That is fine, but my only reservation about what you suggest is whether you would end up with a tick in the box mentality, and I would like to hear what you have to say about that.

Professor Oliver: I do not think it would. For example, if standards of this kind were articulated a bit more in government - and I absolutely accept that the Human Rights Act and Regulatory Impact Assessments mean that that is done - if there were any kind of a tendency to tick box in government as Bills were produced there is no reason at all to think that the parliamentary Committees would tick the same box because, apart from anything else, on every Committee there are opposition Members and they are not going to say, "The government says this is compatible with human rights so we do not worry," or "The government says the regulatory impact is fine." So I do think there would be any chance at all of parliamentary Committees ticking boxes, unless it was obvious, and I think there would be people on every Committee who would be saying, "I am going to look at this carefully, I do not see why we should believe them."

Chairman: Dr Cowley you say, as it were, do not reinvent the wheel but make use of existing procedures which have not been used as much as they should. I am attracted to the idea of Special Standing Committees and I recall that I used a Special Standing Committee once when I was Home Secretary for what became the Immigration Asylum Act 1999, and I think it improved the Bill and improved the way that Parliament looked at it because those two were connected. The problem that I ran into when I next wanted to use a Special Standing Committee was the Whips saying, "Not enough time" - and that is an eternal verity. Do you have any evidence from overseas where this kind of mixed arrangement is used, that in practice it does lead to a logjam, or could we argue that it may lead to slightly more time being spent in the Commons but actually less difficulty when the matters go to the Lords?

Mr Knight: Sorry, but presumably when you were told that by the Whips that was before you could carry a Bill over?

Q44 Chairman: That is true, Greg, but it does not affect that many Bills.

Dr Cowley: The Whips will always tell you that there is not enough time - that is the point of Whips - and part of that is because we have this culture that we have to get these things through, out and on to the statute book, and certainly before carryover it was a more legitimate argument than it would be now. I would quite like to see almost all Bills carried over and then you have two years and then you would have absolutely no reason to argue that the evidence gathering in the Special Standing Committee, which is a matter of weeks not months, would excessively add to the time that Bills were taking. There may be occasions when that is not possible, there may be occasions when time really is so short that things have to be curtailed, but I really cannot see the time involved in Special Standing Committees is so great that we could not use it almost as a matter of course on Bills. Not just your experience but all the experience from the early 1980s when they were first tried was that almost all the people involved in the Committees thought they were a vast improvement on the Standing Committees that were previously existing; it was something which at the time lots of people thought, "Here is the future" and then for a variety of political reasons, predominantly being the Whips in the 1980s also told people that there was not enough time to do things. There is no great evidence from overseas one way or the other because the systems overseas tend to be so different, so in lots of legislative systems it is quite common for Bills to be introduced and then work their way very slowly through Parliament, sometimes taking two or three years, and sometimes they are just sitting on the agenda and have never been resolved because they do not have the idea of a cut-off either after one or two years in many systems. But even with a system which says that if they are not through in two years they die I see absolutely no reason why we could not use them more than we do at the moment.

Chairman: Thank you. Nicholas Winterton.

Q45 Sir Nicholas Winterton: Alexandra Kelso talked about what people thought, that there might be an imbalance between the executive, i.e. government, and the legislature, i.e. the House of Commons. Is that your view, because I think it is widely shared by many Members of Parliament in all political parties? And do you believe that a Business Committee, albeit the government would have a majority on that Business Committee, which could well represent backbenches as well as the official usual channels, might create a situation in which that imbalance between the authority of the executive and independence of Parliament and the authority of Parliament might be put more in balance than it is at the present time? Because you posed that question, that there was something wrong between the executive and the legislature. Can a Business Committee, representative of the House as a whole, actually contribute to putting that right?

Dr Kelso: I think the issue of an imbalance comes in with what is it that you want Parliament to do ultimately within the political process? Once you work that out that is how you get a sense of whether there is an imbalance or not. I think on one hand you have to be very, very careful - and I think Philip Cowley brought this up - of the sort of declinist rhetoric that you hear about Parliament going down the tubes. You really have to dismiss that. Simply reading Philip Cowley's book on how backbench behaviour has developed over recent years is testament to the real power that Parliament has when it decides to use it. So I think in one respect you have to be very, very careful about drawing conclusions which suggest that Parliament is weak, it is in decline from some mythical golden era that has long since passed - you have to be very careful about that. That said, there is no question that there is some kind of asymmetry between Parliament and the executive, but that is simply a product of the Westminster system; it is simply a product of the political system that we have in this country, and it is no good to lament that there can never be complete symmetry between the two, it is just not the way it works. So hoping for a time when there is some kind of strong Parliament which consistently thwarts government or imposes its own legislation over government legislation is pining for a time that is simply never going to come about, and possibly never really should come about either. Under the system we have governments are elected, not necessarily Parliament - it is governments which are elected to do something, not Parliaments in that particular respect with respect to legislation. That does not mean to say that there are not things that can be done to make sure that Parliament actually does the things it is supposed to do, and it goes back to the question what is it that you want Parliament to do? If you want Parliament to govern then you have the wrong political system actually, for a start - that is a fundamental problem. If you want government to govern then actually things are perfectly okay, but the point is that Parliament is there as a scrutiniser of government and that is the point at which you have to start looking at things that can be in hand. It is not to complain that Parliament is weak or it does not do its job - it clearly does do its job and it is clearly not weak - it is about enhancing the way it can scrutinise government. At that point it then perhaps leads on to your second point about the potential for some kind of Business Committee. I think when you start to look at issues like that what you are talking about is to what extent can Parliament or the House of Commons have some kind of corporate identity? This is something I have been quite interested in recently. We know what we mean when we talk about government or when we talk about parties, but we are not always necessarily sure what we mean when we talk about Parliament - is it the government that sits within Parliament, is it the parties that compose it? When you talk about Parliament as an identity it does not really make that much sense. But these kind of mechanisms such as Business Committees, okay, it is an extra institutional imposition on to what is already perhaps an overly institutionalised system of work, but it is one mechanism to take some degree of decision-making away from the usual channels and to leave it with other people. Who those other people are has always been the stumbling block as far as a Business Committee goes; and it almost seems that the risk of making a mistake about how you make up a Business Committee or what it gets to do or what decisions it makes, because there is potential risk in that, it has simply never really been attempted. So perhaps the clue is not to be fearful of the risk and to be able to take a step back, which is what happened with sitting hours - there was a degree of experimentation, it sometimes worked, it sometimes did not, and there were a great degree of views over it worked or whether it did not, but at least there was a step taken to try and change it in one respect.

Q46 Sir Nicholas Winterton: The reason I asked that question was that in our evidence last week a Labour Member of Parliament, David Kidney, actually supported the idea of a Business Committee giving Parliament greater say over perhaps the use of its time so that there was a meaningful role for bank benchers.

Dr Kelso: And I think it is a valuable thing; it would be a good institutional innovation in that regard.

Chairman: Ann Coffey.

Q47 Ann Coffey: In one of our previous inquiries we spent quite a lot of time talking about private Members' Bills and the opportunity for individual Members to put statutes - in fact my colleague here, Mark, has very successfully sponsored a private Member's Bill - which are traditionally are on a Friday. But I think it is one opportunity that Members have as individual Members to make a difference, and have you any observations on the opportunities for private Members' Bills and how Members use them, their effect on Parliament and their usefulness or otherwise?

Dr Kelso: Perhaps the first observation to make is that often the private Members' Bills which are successful are the ones that are sponsored or in some way enabled by the government, in as much as it is something that the government would like to see, that is not too fussed about seeing or not seeing and is happy to relent and let the thing go forward. Whether that is how MPs want the system to be is an entirely different matter. There is certainly no question that some of the most important, particularly social or conscience legislation, has been the result of private Members' Bills where government perhaps feels that it does not want to deal with the subject, and in that respect it is obviously valuable, and the fact that it does not come from government perhaps speaks volumes for the way that private Members are willing to go ahead with something. To the extent to which does that mean you should enable more private Members' legislation - possibly, if you think that that is the way that Parliament should function. Do MPs feel that there is a great deal of legislation out there that could have a private Member's route but of which government simply would not be happy to see? I think what it comes down to is that you can have the mechanism but is government happy to, in a sense, sit back and enable these pieces of legislation to proceed, or is it going to let the vast majority of it fall away before it gets beyond second reading?

Dr Cowley: I am going to get the date wrong but the killer fact is that since I think it is 1956, and that is almost certainly not the right date, no private Member's Bill has reached the statute book that was divided against at second reading without government time. Effectively, the government controls the process. My view on private Members' Bills is somewhat similar to my view of the Business Committee - I would probably like to see it made slightly easier for private Members' Bills that really do have overwhelming support in the House reaching the statute books, sometimes against the wishes of government, and that is all to do with time and that requires freeing up mechanisms by which time can be controlled by Members, in the same way that I would quite like a Business Committee. But I am not naïve about what that will do. To return to a hackneyed, overused phrase now it is all about shifting the balance, and it will not shift it very much but it will shift it in the right direction, and it seems to me that that is the way to be going, with small incremental steps that will allow just slightly to change the balance between the executive and the legislature, and allowing private Members' Bills that have overwhelming support to reach the statute book without being strangled at birth by government strikes me as a positive development.

Chairman: Ed Vaizey.

Q48 Mr Vaizey: On the Special Standing Committees, how would you see them working? Would you see them merging with Select Committees or do you see them as having distinct functions?

Dr Cowley: If you were designing the system from scratch you may well try and do something like they are doing in Scotland and you effectively merge the Select and Standing Committees together and you would have them meeting before the second reading of the Bill - all of those developments. But you are not designing it from scratch so in order to get it achieved and make it practicable I would go with the existing arrangements, they are Standing Committees but at the beginning they can have, I think it is three evidence taking sessions. That would not be ideal and it would not be perfect but it would be better than we have at the moment and that is the way we should be going. So you do not get the full benefits of the Select Committee about cross-party development and a weakening of partisanship, but at least you have some evidence taking, you have the ability of outside people to come and present evidence and there is some clear evidence from the ones in the 1980s that that resulted in people changing their views on the Committees and it involved government backbenchers more than would happen on a Standing Committee at the moment. And then they revert back to being a normal Standing Committee. As I say, that is not how I would design it if I were designing it from scratch but it would work and it would be better than we currently have.

Q49 Mr Vaizey: Would you not want to have permanent membership, as it were, over a Parliament so that Members built up a particular expertise?

Dr Cowley: Ideally that would be wonderful but I would settle for having ad hoc Committees but which took evidence.

Q50 Mr Vaizey: On the way that Standing Committees work, it struck me as a new Member only sitting on one Standing Committee that the opposition really is left to sink or swim. Do you have any views in terms of the kind of clerical support that the opposition could get in terms of being able to scrutinise a Bill more effectively?

Dr Cowley: Not really. I have never thought about it from that angle, if only because I have never assumed that that was the real problem. I would assume one could give you lots more secretarial support and research support and it would not make Standing Committees any better. They have always been the weak point of the system and they still are. I remember - it is frightening to think - it must be almost 15 years ago sitting in a Standing Committee and then talking to a Conservative Minister then about what he had just been doing in the Standing Committee and he accepted then that this was a complete waste of time and he was simply batting away - going through the motions and batting away.

Q51 Mr Vaizey: Why, because it is simply seen as a process to be got through as opposed to an actual process to properly scrutinise legislation?

Dr Cowley: Far too often, yes.

Q52 Mr Vaizey: Even by the opposition as well? A process to score points as opposed to a process to scrutinise legislation?

Dr Cowley: I think the opposition probably find it more useful than the government backbenchers do, but that is not saying much.

Chairman: Theresa May.

Q53 Mrs May: If I can draw your attention to what I think is another weak point of the system, where the effectiveness in Parliament as a scrutinising body actually is reduced and the balance between the executive and Parliament shifts in favour of the executive, is the increasing use of secondary legislation, vast amounts of which get absolutely no scrutiny whatsoever, and that which does get scrutiny gets very limited scrutiny. I wondered whether all three of our witnesses could comment on that increased use of secondary legislation; whether any of the ideas that you have in changing the legislative process, for example the better scrutiny of primary legislation, longer time for primary legislation and Special Standing Committees, do you think that would lead to a reduction in secondary legislation?

Professor Oliver: I do not know that it would myself; I do not feel an expert on it. I do not honestly see primary legislation dealing with the sort of matters that are often in the secondary legislation. I do not think I have any deeply interesting thoughts about it, except something that does come into my mind occasionally, both with primary and secondary legislation, is whether it would not be helpful if there were independent bodies or bodies reporting to Parliament, but non-politicians, who undertook more of the objective type of scrutiny that is often called for with delegated legislation and, come to that, with Bills. I am not pushing that but a lot of this is very boring work, to be honest, and sometimes there will be politically important or constitutionally important points to make about delegated legislation and a lot of the points will be political really, and that obviously is for Parliament.

Q54 Mrs May: You yourself talked about setting better objectives for legislation in the first place, and one of the problems increasingly today is that primary legislation is drafted in rather vague wording which allows for the detail to come in the secondary legislation rather than trying to put that in on the face of the initial Bill and I wondered if the better setting of objectives upfront could in fact give more scope for putting the detail into the primary legislation because everybody would know exactly what the Bill was aiming to achieve and therefore would presumably be better able to judge the detail that was necessary to do that.

Professor Oliver: I do think that would help, although there is a limit to the extent to which setting out objectives lends itself really to going into a Bill or into legislation. Certainly if there were ministerial statements about what the objectives were then that could be taken as a guideline as to whether the subordinate legislation that is brought forward is consistent with what the government said its objectives were. So that might be helpful.

Dr Kelso: I was going to say, the point that Dawn raised, that when it comes to things like secondary legislation there almost seems to be a sense within the House of Commons that there are some things that are deeply unsexy and that people just do not want to spend time working on them, and things like secondary legislation unfortunately fall into that category along with other things. There are some Committees, for example, looking at these types of issues, like the Delegated Legislation Committee, where it is hard to find people perhaps on them. I think as long as that attitude prevails then there can be a great deal of hand wringing about so much of our lawmaking comes through the secondary legislative process, but until a sufficient number of MPs are willing to step up and actually do something about it you can have as many discussions about it as you like but they are not going to get anywhere.

Dr Cowley: I was going to say exactly the same really. It is clear that anything to do with secondary legislation is like a sort of punishment Committee - it is like the Crossrail Bill Committee is at the moment; you get put on it if you have done something very, very naughty.

Q55 Chairman: The Chairman is getting a salary so I cannot accept that!

Dr Cowley: The Chairman is but the infantry is not. The rise of secondary legislation is one of the evils of modern government, there is no doubt about that, and most people would rather see much less secondary legislation. It is a rise that predates this government and you can see it throughout the whole of the post-war era, and some of it is simply to do with the complexity of modern government and therefore some of it is inevitable, but I think there is currently a desire to push some of it on to secondary legislation rather than deal with it in primary legislation. I am really attracted to the idea of being more explicit upfront about the objectives of pieces of legislation. I think if we could try to move towards that that would be a real step change, and ideally I would like to see that combined with more use of sunset clauses, and in particular almost self-destructing legislation that required renewal, which said in the Bill that the aim would be it would only be renewed if X, Y and Z had been achieved by the piece of legislation, and then if it had not been achieved by the piece of legislation the legislation would lapse.

Chairman: George Howarth.

Q56 Mr Howarth: Could I just agree with the earlier part of Dr Cowley's comments about private Bills? As a veteran of the Spitalfields Market Bill nearly 20 years ago, which was sold to me by a then pairing Whip called Ray Powell on the basis that I would only be on it for an afternoon, six months later I was still sitting on it. In fact I had not even been here long enough to deserve punishment for anything! I think he was relying on my good nature. On the other general points about how we do legislate, the thing that has struck me quite forcibly over the last few years is that those on Select Committees build up a body of expertise, but then it remains contained within the Select Committee. I have recently had the useful experience - at least for me, I do not know about for anybody else - of chairing the Armed Forces Bill, and I do not know if any of our guests have had the opportunity to look at that process but it is in fact a hybrid process whereby the Committee starts off, to all intents and purposes, with the same role as a Select Committee and then, having completed that process, converts itself into, again to all intents and purposes, a Standing Committee, and I have written to the Chairman about that. I found that a very satisfying experience because first of all you had the opportunity to build up a body of expertise and then you had the opportunity in a more formal way to apply it to a piece of legislation. I suppose the question is: has anybody had the opportunity to study that process and, if so, what do you think?

Professor Oliver: I have not, I am afraid, no, but it sounds a good idea.

Dr Cowley: The problem, and it is why in my answer to Ed Vaizey I said I would accept the practical step but just moving to Special Standing Committees rather than using Select Committees for a piece of legislation, there is a real risk of overburdening the Select Committee, and that what you would find is that instead of doing good scrutiny work, which many Select Committees now do - and it is one of the huge changes in the Parliament of now compared to the Parliament of the 1950s or the 1960s that we have a really well developed embedded and relatively Select Committee system - these bodies would simply become legislative machines. It may work once or twice and there is no reason why, therefore, not to do it occasionally, but I would not like to see that at the moment as the default position for pieces of legislation. For one thing you might discover, if Select Committees were permanently dealing with legislation, that some of that cross-party working that currently goes on would cease to go on because the realities of partisan politics would intervene and they would stop them being quite as effective as they currently are. I have not studied the Armed Forces Bill but it is always cited as an example of quite an effective process in the same way that Special Standing Committees are and in the same way that pre-legislative scrutiny is currently, by and large. So it would be another of these things that we could do with the existing procedures and we should encourage, but I think probably as a default position is going too far.

Chairman: Greg Knight.

Q57 Mr Knight: I take your point about not wanting to overburden Select Committees but I still think that the biggest weakness in our system is the ad hoc nature of Standing Committees and because of the ad hoc nature they do not have the appetite for in-depth scrutiny and they do not have the knowledge, and you get appointed to a Standing Committee not because you have expertise in a particular area but because the Whips say, "You have not done a Committee yet this year and it is therefore your turn." I think this could be fairly easily remedied by having, as Ed Vaizey said, Special Standing Committees set up for a Parliament, and I think then you would see the process moving in the same way as we have seen Select Committees moving where the expertise has developed over a Parliament and Ministers cannot get away with not answering the point because they are facing a detailed and thorough grilling. I think the other problem with the Standing Committee process, which is almost in every case a worthless exercise, is that Ministers treat any attempt to change the Bill as an attack on them and as an attack on their policy, and I am afraid they are encouraged to take this position by civil servants, who have also worked to get the Bill together and who will hand the Minister a piece of paper the first word of which is "resist", when even a constructive and helpful amendment is made. So I would value your comments on that. I think the only way we are going to make the Committee process of a Bill worthwhile is to have Committees that are there for a Parliament and Ministers treating their Bill more as a draft Bill and where they are willing to look at constructive amendments which do not go against the grain of government policy.

Dr Cowley: If you could achieve that that would be wonderful. I wonder whether this is an example of at the best being the enemy of the good though. If you were able to get a change like that through the Standing Orders of the House through the House and get it as the default position that would be much better.

Q58 Mr Knight: We have a new Chairman, so we live in hope.

Dr Cowley: We do, but what does strike me is that it might be easier simply to change the rule. At the moment the default position is that Bills go to Standing Committee unless decided otherwise and it might be easier to have Bills going to Special Standing Committees unless decided otherwise, and that might be an easier change. It would not be as effective as that which you are suggesting but would still be a step in the right direction. I would have thought that one of the lessons of the last eight or so years is that things that look too radical and which frighten the horses too much do not get achieved, and whilst personally I would be delighted if what you are suggesting happened I would much rather see some change than no change.

Q59 Chairman: Can I offer this observation really for Members of the Committee? I agree with Greg Knight that it never seemed to me to be sensible to have a Standing Committee run where you are resisting everything because you are often resisting good ideas; but in addition to that you are also storing up problems for yourself in the Lords. This is something which I have discussed informally with colleagues, and I think that one of the things we have to address in this Committee is the need to give the Commons a more active role in scrutinising legislation because otherwise there is reputational damage for the Commons vis-à-vis the Lords, and it ought to be the elected House which is doing at least a significant part of the work and effectively scrutinising Bills. Adrian Sanders.

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?

Dr 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.

Dr 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.

Dr 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.

Dr 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 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 is 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 it, 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 services 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?

Dr 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.

Dr 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 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.

Dr 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 Select 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?

Dr 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, any sort of bicameral chamber 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.

Dr 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 has 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 it 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 perhaps 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 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?

Dr 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.

Dr 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.

Dr 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.

Q80 Sir Nicholas Winterton: What about the report stage being un-programmed?

Dr Cowley: Again, it would be great if the report stage then was not abused by people in the way that I suspect it might be.

Chairman: Could I put a final question, which is a point that was raised by one colleague, on the staffing support for Standing Committees as compared with Select Committees? This strikes me as being very stark, that for Select Committees you now have really very substantial underpinning of what Members do from the House. As I say, I have never served on a Select Committee, apart from this one, but I have seen that because if you are a Minister going before a Select Committee you face people who are really pretty well informed and who have the clerk's expertise and also the advisers to the Committee feeding them with questions, providing them with support in private discussions and so on, which means that if you are a Minister you really have to think very carefully about how you are going to perform. Let me say, I have not been on a Standing Committee as a Minister because on the whole that is a matter for Ministers of State and Party Secretaries, but I was on many Standing Committees in opposition from the frontbench and the backbenches, and the absence of support from the House meant that you actually very much ---

Sir Nicholas Winterton: In opposition.

Q81 Chairman: In opposition, but also for the government Members as well, you were under huge pressure from pressure groups who are outside, they did provide support and in a sense they picked on individual Members and developed them, nurtured them, patted them on the head if they were reading out the brief and not if they were not. You are always going to get some of that but you do not get that so much in Select Committees because people are able to think more for themselves, and I think if you moved to the Special Standing Committee arrangement, dealing with that disjuncture, where one minute there is support and then suddenly there is not is an issue. That is my instinct; I do not know what your view is?

Dr Cowley: I cannot see any good argument against increasing the resources to MPs on Standing Committees. It is worth saying that the stark distinction between the resources for the Select Committees and the Standing Committees is a fairly recent phenomenon; if we had gone back even eight years you would have found Select Committees with far fewer resources than they currently have, and it has been one of the improvements over the last four years really that there has been a sharp increase in resources available to Select Committees. I cannot see any reason not to do it. What it will not do though is remove the fundamental weakness of the Standing Committee, which, as it stands at the moment, is the lack of any formal outside contact and the fact that it is merely replicating the debate at second reading in terms of its structure.

Q82 Chairman: Any last comments from Professor Oliver and Dr Kelso?

Professor Oliver: On that, I suppose a difficulty is the extent to which the Members of Standing Committees require the sort of non-partisan support that the House can provide, obviously, or the more partisan political support which it would not be appropriate for the House to provide.

Dr Kelso: One final comment on that. There has always been a fear whenever it comes to discussing resources, whether they are Select or Standing Committees, that it will result in a system like the American congressional system where the Committees are actually run by the staff. This always seems a strange concern for me in the Westminster context because it is MPs who are in charge and as long as MPs ensure that that continues to be the case then there should not be any fear, and it almost seems that when you put it in comparative perspective I am sure that Parliament spends far less than other legislatures do and it does not seem too much to ask to have the basic tools to do the job.

Sir Nicholas Winterton: But surely you must take account of the short money which is made available to opposition parties, which gives them the opportunity of having an input for research and policy and the rest. So perhaps there is rather more assistance to Standing Committees and their Members, particularly the shadow spokesman, than there was.

Chairman: Professor Oliver, Dr Cowley and Dr Kelso, thank you very much indeed; I certainly found it very interesting and my colleagues have too.