Review of the operation of the Backbench Business Committee

Written evidence submitted by John Hemming MP (P 259, 2010–12)

Introduction

In this memorandum I put forward some suggestions for consideration by the Procedure Committee in its review of the Backbench Business Committee. Most of these proposals relate to technical changes which would assist the Committee in performing its functions, based on the experience of the first session of its operation. These have been discussed in the Committee as and when we have confronted various challenges as we go along.

Summary

The demand for debates in backbench time looks likely to continue to exceed supply. The allocation needs to be used as effectively and efficiently as possible. In this memorandum we invite the Procedure Committee to consider a number of possible changes to the current arrangements for backbench business.

Time for backbench business

The Procedure Committee is invited to consider:

· ways to facilitate better forward planning of the parliamentary calendar to provide predictable allocations of days to backbench business;

· whether some of the traditional set-piece debates, for example on defence and security and on foreign affairs including pre-European Council debates are appropriately allocated as backbench business;

· whether there could be a system of "repaying" time taken out of backbench business by ministerial statements.

General powers of the Committee

The Procedure Committee is invited to consider whether:

· the Backbench Business Committee’s practice of holding public sittings at which Members put forward their proposals for debates should be formalised in Standing Orders;

· the Committee should have power (and be implicitly required) to report to the House on the way it goes about its task;

· the Backbench Business Committee should be given power to propose business motions regulating the timing of debates at the sittings it controls.

Types of backbench business

The Procedure Committee is invited to consider:

· whether the Backbench Business Committee should have a power in Standing Orders to schedule select committee statements;

· whether the Committee should have power to schedule debates on motions to annul statutory instruments subject to negative resolution procedure;

· whether there is a need to clarify in Standing Orders that debates arising on Reports from the Standards and Privileges Committee are not backbench business;

· to what extent our successors should be encouraged to continue to experiment with new forms of proceedings which could meet demand in ways not currently encompassed by traditional ways of conducting our business.

Westminster Hall

· The Procedure Committee is invited to consider whether changes to Standing Orders are needed to facilitate more imaginative use of sittings in Westminster Hall, and to reinforce its status as an equal debating Chamber.

1. Time available for backbench business

The Committee intends to set out in some detail the problems it has faced in scheduling backbench business in this session in its "end of term" report. Within the scope of the current parliamentary calendar the 35 day allocation is unlikely to be substantially extended.

Predictability

The main problem we have faced in this Session is the unpredictability of when we will have time to allocate. To avoid the problems of an uneven distribution of backbench time, it would be possible to set aside a particular day or part-day for backbench business each week. This would have the advantage of predictability and would enable the Committee to plan ahead when scheduling debates. Alternative approaches might include naming the days for backbench business in a motion agreed at the start of the Session, in the same way the House does for Private Members’ Bill Fridays. The House could be invited to consider and decide on this suggestion as part of the review of the operation of the Backbench Business Committee.

There could be a more flexible approach from the Government to the scheduling of business on its days. Where it is clear that business is likely to finish early, it should be possible to make provision for a short, topical debate or three-hour debate to be allocated by the Backbench Business Committee.

In any event, I would hope that the successor Committee in the new Session will meet the Leader of the House and Government whips at an early stage to discuss whether a mechanism could be established to allow backbench business to be timetabled in a more strategic way-at least a term ahead if possible.

"Set-piece debates"

Our experience in this Session has made it clear to us that seeking to schedule all the traditional "set-piece" debates (five defence debates, the St David’s day debate, the International Women’s Day debate, the pre-European Council debates and so forth) in backbench time would be a failure to recognise the wishes of Members for time to debate many other matters. In my view there is a strong case for arguing that the defence debates, the pre-European Council debates and the debates on the Intelligence and Security Committee (at least unless and until it becomes a House committee) are more appropriately considered in government time, if they are to be ring-fenced as immutable requirements. It might be helpful if the Procedure Committee offered its own view on this issue.

E-petitions

I agree that time for the debate of e-petitions should not come out of our existing allocation of backbench time. This possibility was not envisaged when the Committee was established and did not form part of the calculations made to determine the allocation of backbench time agreed by the House at that date. The proposals of the procedure Committee for the creation of additional, ring-fenced time for debate of e-petitions is therefore to be welcomed. This would not preclude Members from continuing to apply to the Backbench Business Committee for debate of a subject connected to an e-petition in the Chamber. The Committee could continue to consider subjects on their merits and according to the criteria it has set out, and some such subjects may still lead to debates and potentially votes on a substantive motion rather than having a general debate.

Ministerial statements

The time available for backbench business is scarce relative to demand, and inelastic. The Government has chosen to make ministerial statements at the end of question time on several days on which backbench business has been scheduled. A statement can take up to an hour or more out of the day’s business. Since backbench business has been preponderantly scheduled for Thursdays, there is regularly 45 minutes or an hour taken out of those days by the Business Question, even when there are no other statements.

It is recognised that statements are valued by backbenchers as well as the opposition, and the Speaker has laid considerable emphasis on the importance of major announcements being made to the House before they are made to the media. It would be impractical to insist that ministerial statements are only made on days when government business is to follow. However, given the pressure on backbench time, the Procedure Committee may wish to consider whether the time taken by statements should be returned to the Backbench Business Committee in the form of additional days and half-days equivalent to the accumulated time taken by statements on backbench days.

2. Powers to receive written and oral submissions from Members

Unlike departmental select committees, when the Backbench Business Committee was established its standing orders did not include a power to send for persons, papers and records. This power forms the basis on which select committees take formal written and oral evidence. It was perhaps not envisaged that a committee dealing largely with the scheduling of business would have a need to meet in public. However, you will be aware that the Committee has introduced a system of public meetings at which Members of the House come and put to us in public their proposals for matters to be debated in backbench time. These public meetings have become an important element of the transparent way in which we operate, enabling backbench Members to make public representations and the public to know which subjects have been proposed.

To date, these public sessions have not had the same procedural status as the evidence sessions held by other select committees and, whilst this has not severely hindered our work, I would suggest that the opportunity provided by the review of the Committee should be taken to rectify an anomaly and provide us with an explicit power to hold public hearings. This could be either the general power "to call for persons, papers or records", or a more restricted power. That more restricted power could be achieved by amending paragraph (6) of S.O. No. 152J as follows:

(6) The committee shall have power to invite Government officials to attend all or part of any of its meetings and to receive submissions from Members of the House orally or in writing.

3. Power to make reports

The Committee was not given the usual power of a select committee to report from time to time. This has meant that we have had to use the slightly cumbersome system of making Special Reports. I do not envisage that the Committee would make any extensive use of this power, but it should be free to report to the House on any matter concerning its work and should be encouraged regularly to report on its activities so that it may be held to account by the House for the discharge of its functions. I invite the Procedure Committee to give consideration to adding a new paragraph to S.O. No. 152J as follows:

(8) The Committee shall have power to report from time to time on matters relating to the determination of backbench business.

4. Business motions

The Committee has regularly split debates on a full day in the main Chamber into two separate topics, and have sometimes recommended the duration of each debate. More recently, its practice has more often been to allow the Speaker and his Deputies to steer the timings with regard to the number of Members who have applied to speak in each debate, and this has generally worked well. However, I believe that a power in standing orders for a member of the Backbench Business Committee to move a motion forthwith at the start of backbench business to regulate the timing of subsequent debates would be a useful reserve power, and might assist the House in general by giving a predictable time for the start and finish of debates. A good example of when this would have been useful is the debate on Monday 12 March at which the Standing Orders relating to the Backbench Business Committee were debated and changed, along with several other unrelated and less controversial changes. If this had been a backbench day, it is likely that debate on the first set of changes might have taken the whole day, and crowded out all other debates. This restriction means that complex questions such as those cannot effectively be decided on backbench days. I recognise, however, that a power to suspend the operation of the moment of interruption (beyond allowing for divisions on complicated questions to take place at the end of a debate) would be likely to be unacceptable. I therefore invite the Procedure Committee to give consideration to introducing a new paragraph (4A) in S.O. No. 9 along the following lines:

(4A) If a notice of motion in the name of the Chair of the Backbench Business Committee stands upon the order paper at the commencement of public business at any sitting too which the provisions of paragraph (3A) of Standing Order No. 14 apply, to the effect that any specified business may be proceeded with at that day’s sitting though opposed-

(a) until a specified hour (being no later than the moment of interruption specified in paragraph (3) of this order); or

(b) until either a specified hour (being no later than the moment of interruption specified in paragraph (3) of this order) or until the end of a specified period after it has been entered upon, whichever is the later (but no later than the moment of interruption specified in paragraph (3) of this order);

or in a form combining any or all of these effects in respect of different items of business, if the motion is moved by a member of the Backbench Business Committee the Speaker, after permitting, if he thinks fit, a brief explanatory statement from the Member who makes and from a Member who opposes any such motion respectively, shall put the question on that motion.

5. Backbench statements

The Committee has experimented with allocating time for the Chair of a select committee to introduce a report published by that Committee on the floor of the House in a form of ‘mini-statement’. I consider that this has proved to be a successful innovation, helping to highlight and promote the work of select committees. But the ‘statements’ the Committee has scheduled have not taken place under the same procedural mechanism as Ministerial statements, since the Committee has no power to timetable this type of business. Instead, the Chair of the committee has moved a ‘take note’ Motion on the subject of the publication of their Report, taking interventions as necessary and sitting down after 20 minutes. Whilst this improvised procedure has served its purpose, it would be neater and clearer to members and others if the Procedure Committee recommended that the Backbench Business Committee had power to schedule select committee "statements" in standing orders. I would hope that this would be done in such a way as to enable them to be scheduled on days when backbench business is not to follow. The possibility was canvassed by the Wright Committee of allotting some of the existing "Ten-minute Rule" slots (one at the commencement of public business on each sitting Tuesday and Wednesday) to select committee Chairs to introduce reports or having equivalent slots on Mondays and Thursdays. [1] The power established under the standing order should also enable the Committee to vary their length (for example, 30 minutes might be a more appropriate time limit for a very popular topic), and should not constrain the Committee in respect of the choice of report. I also believe that the power could usefully be sufficiently flexible to allow it to be used for statements by committee Chairs on matters other than the publication of a report (for example, the launch of an inquiry).

6. Prayers against Statutory Instruments

The implicit presumption in the Statutory Instruments Act 1946 is that motions to annul negative procedure instruments will be debated by the House if such a debate is sought by a Member. But successive governments have honoured this constitutional presumption more in the breach than the observance. Official opposition "prayers" [2] are usually debated either on the floor of the House or (more usually nowadays) in a Delegated Legislation Committee. But the chances of an ordinary backbench Member or group of Members securing such a debate are slim. This issue was raised but not clearly answered by the Wright Committee, which questioned whether such a situation was in accord with the spirit of the new category of backbench business. It noted in its first report that only two prayers against statutory instruments were taken on the floor of the House in 2008-09. It commented:

Such business is scheduled by Government in response to demand and arises out of ministerial actions, but is not in fact initiated by Ministers, nor is the relevant motion moved by them. [3]

In its second report, the Wright Committee added:

Motions seeking to annul secondary legislation … are implicitly included in the category of government business in the draft Standing Order. That would not rule out the possibility of the Backbench Business Committee allowing a prayer in backbench time … [4]

"Backbench business" is now defined in S.O. No. 14(3C), largely by defining what is not within the category. Under sub-paragraph (a) of that paragraph government business is defined. The definition-largely uncontroversial-includes "proceedings under any Act of Parliament". This covers mainly proceedings relating to statutory instruments. So far as affirmative procedure SIs are concerned, there seems no grounds to quarrel that those are ministerial business. But it appears to me that the definition is widely enough drawn to also cover "prayers" against negative procedure instruments, contrary to the conclusion of the Wright Committee with reference to those same words.

I agree with the Wright Committee that Motions to annul statutory instruments do not fall into any intuitive definition of government business, and invite the Procedure Committee to consider whether any change to S.O. No. 14(3C) is needed to put beyond doubt the power of the Backbench Business Committee to schedule such debates on the floor. I would also invite the Procedure Committee to consider whether it should be open to the Backbench Business Committee to give time for motions to refer instruments subject to negative resolution procedure to a committee and be able to put motions relating to negative procedure instruments which have been reported from a committee for decision forthwith on the floor of the House. I would not expect any of these things to happen frequently, but the possibility of their doing so on the initiative of backbenchers could, we believe, be an important reassertion of accountability of Ministers to Parliament for the delegated legislation they make.

I invite the Procedure Committee to give consideration to making the following amendments to Standing Orders:

Standing Order No. 14

Paragraph (3C)(a) to read (changes shown in italics):

(a) government business, that is proceedings relating to government bills, financial business, proceedings under any Act of Parliament (except proceedings to which Standing Order No. 17 (Delegated legislation (negative procedure) applies), or relating to European Union Documents, or any other motion in the name of a Minister of the Crown;

Standing Order No. 118

Insert a new paragraph (4A) as follows:

(4A) Where a Member has given notice of a motion to which paragraph (4)(a) of this order applies, that Member may, at the commencement of public business on a day on which backbench business has precedence, make a motion that the instrument be referred to such a committee; and the Question on that motion shall be put forthwith.

In paragraph (6), replace "(3) and (4)" with "(3) to (4A)".

7. Other new forms of proceeding 

The Wright Committee suggested that the Backbench Business Committee might look at other innovative forms of proceedings, including for example: short speeches of say ten minutes each at the beginning of proceedings (either in the Chamber or in Westminster Hall) not requiring a ministerial reply, or a series of three-minute "constituency statements" at the start of a day’s business. Other events might include, for example, short debates on topics on the floor of the House, lasting say thirty or forty-five minutes or an hour, fitted around other business including government business; or sessions modelled on ministerial statements but on topics chosen by backbenchers, where a Minister makes an opening statement on the topic and then responds to a series of questions from the floor for an hour in total. This could even be tried in relation to responses to petitions. It is might also be possible to hold sessions where backbench holders of internal positions such as the Chairs of internal select committees or the other governance bodies of the House are exposed to this kind of cross-examination. I would invite the Procedure Committee to consider whether to encourage further innovation in the types of proceedings used by the Backbench Business Committee, and whether any changes to Standing Orders would be necessary to facilitate them.

8. Westminster Hall 

It is nearly ten years since the establishment of sittings in Westminster Hall as a fixed feature of the House. They have generally been backbench time, the more so since the Backbench Business Committee was given the duty of allocating Thursday afternoon three-hour sittings in partnership with the Liaison Committee.

Raising the status of sittings in Westminster Hall 

Those who come to the Committee with topics for debate, however, often appear to regard a debate in Westminster Hall as a second best. I invite the Procedure Committee to give consideration to steps that might be taken to reinforce the status of sittings in Westminster Hall in the eyes of backbenchers, and to emphasise their equal procedural status with sittings in the main Chamber. There are some small "tweaks" to the Standing Orders relating to Westminster Hall which I believe would assist in achieving this.

Substantive motions in Westminster Hall 

Standing Order No. 10 governs proceedings in Westminster Hall. There is a general perception that such proceedings are confined to adjournment debates moved (even if only formally) by a Minister. However, paragraph (3) of the Standing Order says that the business taken in Westminster Hall "shall be such as the Chairman of Ways and Means shall appoint", and does not limit it to adjournment motions. There are two constraints or protections on such other business.

First, paragraph (9) of the Standing Order provides that if, at the end of a debate, when a Question is put for decision, the opinion of the Chair as to the decision is challenged, the Question is not decided and the Chair shall report the motion to the House where it may be put for decision forthwith.

Second, paragraph (10) of the Standing Order provides that if the business at a sitting in Westminster Hall is anything other than an adjournment motion, six Members rising in their place may cause those proceedings to be terminated immediately.

The first of these constraints, designed to avoid any division taking place at a sitting in Westminster Hall seems appropriate. However, the second appears to me to be an excessive constraint: some business could be appointed for such a sitting and the whole sitting could be aborted by six Members without notice, causing the whole sitting to be wasted (as there would be no opportunity for other business to be immediately scheduled). Looking more closely at paragraph (10), it may appear that it was defectively drafted: it seems to have been intended to allow the vetoing of the use of a sitting in Westminster Hall to be used for an "order of the day" (that is for all practical purposes some stage of a bill) to be taken there against the wishes of a minority.

I invite the Procedure Committee to consider whether Westminster Hall could be better utilised if the Backbench Business Committee were able, with the consent of the Chairman of Ways and Means, to schedule a substantive motion for debate. Such motions could only be agreed by unanimous consent. I therefore invite the Procedure Committee to consider an amendment to paragraph (10) of Standing Order No. 10, either to omit it completely or to restrict it to proceedings arising under paragraph (7) of the Standing Order.

Paragraph (7) of the standing order provides for a Minister to move a motion (only with the leave of the House) that an order of the day might be proceeded with at a sitting in Westminster Hall. The provision has never been used. Following the other changes to the standing order it appears to me that the restriction of this power to Ministers looks anomalous, and indeed obsolete. I invite the Procedure Committee to consider whether paragraph (7) of S.O. No. 10 should be amended either to extend the power to move a motion for the referral of an order of the day to Westminster Hall to Members acting on behalf of the Backbench Business Committee, or to remove it.

Other types of business in Westminster Hall

Paragraph (3) of Standing Order No. 10 provides for the Chairman of Ways and Means to allow question times in Westminster Hall, under arrangements determined by him. I would invite the Procedure Committee to consider whether some innovative uses of the power to hold question times in Westminster Hall might be negotiated with the Chairman of Ways and Means to experiment with some form of backbench-driven question times. I note that the standing order does not restrict these arrangements to questions to Ministers.

 

9. Reports from the Committee on Standards

It has been disputed territory whether Motions relating to reports from the Committee on Standards and Privileges are backbench business. The Chair of the Backbench Business Committee tabled an Amendment to the motion to split the Standards and Privileges Committee into the Committee on Standards and the Committee of Privileges which the House agreed on 12 March.

Its effect would have been to clarify that motions relating to the conduct of Members of the House, following an investigation of a complaint by the Commissioner for Standards and a report from what will in future be the Committee on Standards, are not backbench business.

In my view, it is neither sensible or appropriate for motions of this kind to be taken in backbench time. This is because:

· Such motions need to be dealt with promptly. The Backbench Business Committee may well not have time available at short notice.

· The time taken for debate of such motions is unpredictable. Most are dealt with very briefly by the House. It is much simpler for the Government to deal with this kind of unpredictability, since they can regulate the timing of business at a sitting in a way the Backbench Business Committee cannot. It would be silly for that Committee to allocate a portion of one of its days to a debate on such a motion which might be over and done within a few minutes but could potentially absorb a whole day.

· These motions are not discretionary. The Committee could not-and should not-be choosing whether or not such a debate should be held. The debate has to be held, and natural justice requires that it should be held quickly. The Backbench Business Committee has no proper role in weighing whether such a debate should be given time against other competing demands on the time at its disposal.

I therefore invite the Procedure Committee to consider the following change to sub-paragraph (3C)(f) of Standing Order No. 14 (the proposed change is shown in italics):

(f) business set down at the direction of, or given precedence by, the Speaker, or arising from a report from the Committee on Standards.

John Hemming MP

March 2012