CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 74-iii

House of commons

oral EVIDENCE

TAKEN BEFORE THE

Political and Constitutional Reform Committee

Ensuring standards in thE quality of legislation

Thursday 21 June 2012

RT HON Lord Butler OF BROCKWELL KG, GCB, CVO, Sir Nicholas Monck KCB, and Nat le Roux

Evidence heard in Public Questions 99 - 148

USE OF THE TRANSCRIPT

1.

This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2.

The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the Political and Constitutional Reform Committee

on Thursday 21 June 2012

Members present:

Mr Graham Allen (Chair)

Paul Flynn

Mrs Eleanor Laing

Mr Andrew Turner

________________

Examination of Witnesses

Witnesses: Rt Hon Lord Butler of Brockwell KG, GCB, CVO, Better Government Initiative, Sir Nicholas Monck KCB, Better Government Initiative, and Nat le Roux, The Constitution Society, gave evidence.

Q99 Chair: Thank you, gentlemen, for coming in today and helping us on our inquiry on ensuring standards in the quality of legislation. It is a very wide-ranging topic, one of great interest to the Committee. We are charged by the Liaison Committee, on behalf of all the select committees in the House, to come up with something practical and workable, and we look forward to your help in doing that. Would you care to kick off and make some sort of opening statement about your position before we get into questions?

Lord Butler: I think not, Chairman. If it would be agreeable to you, we would like to answer your questions. If at the end there is a point we have not managed to get across, if you would give us a chance then, we would be glad to do it. Just to say that Nick Monck and I are both former Permanent Secretaries, so we have seen this process from the inside. We think that is where the solution to the problem must start, so that is the particular angle from which we have looked at it.

Q100 Chair: Just to kick us off, I had this debate with friends from Parliamentary Counsel last week. It was how you get to a point of view when you are inside the machine-which you have clearly got to now you are outside the machine-how do we penetrate the culture so that people will open up a little bit and be responsive to what we are trying to do here, which is essentially to make Parliament an effective partner, when the drive from government is, "We have our bill, how quickly can we get it through?", which is obviously a countervailing culture.

Lord Butler: Yes. I read the evidence of both your previous witnesses, which I thought was excellent, if I may say so. I was particularly struck by Daniel Greenberg saying, in answer to question 11, "The beginning for legislation should not be an introduction of the bill-it should not even be the introduction of a draft bill, the presentation of a draft bill, because that is still a draft elephant and its basic bone structure is settled. It should be the policy commission, the policy process, something more than pure consultation, which, as I say, can be very passive. That should be the beginning and that should be part of the planning". We agree with that very strongly.

I think the basic trouble is that passing legislation is too easy for the Executive because of the built-in majority, and they start on the process too late. We have seen from inside that the departments bid for a place on the legislative programme. They do not get that place until quite late in the day. It is highly competitive. That is the point at which they can go public that there is going to be a bill, and they get pressed then to introduce it at the start of the session and to get it ready as quickly as possible. That does not leave enough time for proper consultation, proper explanation of why the legislation is necessary and cannot be done in some other way, or for proper costing and proper exploration of its practicability. I think it is all done too hastily.

You say, "How can Parliament help with that?" It is a question of changing the behaviour of the executive. But if the executive knows that it has to answer to Parliament for having gone through proper processes in preparing legislation, we believe that that will change the behaviour inside government-change the behaviour of the executive-because no minister likes being criticised by Parliament for having introduced ill-prepared legislation. On the fact that it is ill-prepared, I do not think we need to make the case; the number of amendments, the number of changes, the number of repeat bills-70 Home Office bills under the last Government.

In our evidence, you will see that I put down a question in the House of Lords about how many bills in the last session of Parliament-2005 to 2010-have not even been implemented in whole or in part. The answer was that 77 bills were not ever implemented in whole or in part. Why? Because they were overtaken or because they were found to be impracticable and had to be amended because they were defective in one way or another, which does suggest that there is something basically wrong with the process at the moment. If Parliament did something to hold the Government to better standards of preparation we believe that could be amended. I am sorry, that was rather a long answer.

Sir Nicholas Monck: If one got these changes, I think the way it would work is that having made the preparations that we talk about would be a way of increasing a department’s and a minister’s chance of getting a slot. Because if they reacted in the way Robin has described, you just would not get a slot if you could not answer those questions about standards. We hope that is how it would work.

Q101 Chair: Nat, I am very sorry I got straight into questioning there. You are not with the party, so to speak. You are a separate entity.

Nat le Roux: No, semi-detached.

Chair: Would you care to make some opening remarks?

Nat le Roux: Yes. Thank you very much for the opportunity to contribute to this inquiry. I should start by saying that we strongly support the work of the Better Government Initiative in this area, and on many of the detailed matters that we have started to talk about, we would very much defer to their expertise. As you know, our own particular interest is in improving the process of constitutional change, which is sometimes normally treated as a separate subject from improving legislative standards generally, but we would argue that, at the very least, there is a significant overlap. As I think we have tried to suggest in our written evidence, we believe that a parliamentary initiative on legislative standards generally could assist in establishing a more coherent treatment of constitutional legislation specifically. Much of what we have to say here, Chairman, is in response to question 4 in the call for evidence-the case for distinguishing constitutional and ordinary legislation, which to that extent is perhaps bolted on to the main subject matter here.

Q102 Chair: All right. We certainly have some questions on that. Just a last one from me. I think people realise that there is a weight of history and precedent in some of the things that we all do in this place and in Whitehall and elsewhere, and if we were starting afresh we would not start from here, or whatever the expression is. In a way, haven’t we seen, particularly in Wales, Northern Ireland and, above all, Scotland, institutions who pretty much started with a blank sheet of paper? It is a bit of a tangent, but do you feel there are things that we can learn from those institutions and the way that they have set about their new role as devolved institutions?

Lord Butler: I only know this from hearsay. I have no direct experience of it, but what I read and what I hear is, yes, I think they have had the advantage of starting with a new system and they do not find it so easy to produce legislation. They are forced to take more care in producing it and they do produce a better quality of product. As I say, that is only hearsay.

Sir Nicholas Monck: I gather one thing that happens in Scotland is they do have more access to official policy advice before the election than has happened here. It would be perfectly possible here with the fixed Parliament.

Chair: From personal experience, it seems to me there is a lot more communication between the various institutions and organisations, even informally, than we have here, and I think they tend to move a little quicker because of that-not necessarily superficially speedily, but actually able to resolve problems and do the necessary consultation in a shorter time span. Maybe some friends from Scotland, Wales and Northern Ireland will be coming to talk to us about how they have started afresh, and get some inspiration from them.

Q103 Paul Flynn: Even those of us who take a cynical view of the value of legislation would be surprised by the fact that there are 77 Acts that were either not put fully into force or not put into force at all. I know that represents to all of us many, many hours of sitting in the Chamber in activities that are absolutely futile. Taking the great canards in politics: dogs bark, children cry and politicians legislate. It is our answer to every problem on earth and in heaven. That is the religious view of politicians, the great myth that keeps this place going. I do not know if you have gone further into this but, of the 77 Acts, which are the most egregious examples of futile legislation? We talked last week of a Legislative Reform Act, which was put through in 2001, and it was so incomprehensible that there needed to be a new Act in 2006 to explain what the first Act was all about. Can you think of any others from 2005 to 2010 that were examples of utter futility?

Lord Butler: I chose the Home Office as the example because there were so many Acts that followed on from each other and, incredible though it may seem, 4,000 new criminal offences were created. Your witness Mr Greenberg was talking about the squatting offence-there was much too quick a reflex action. It does matter. The public feel afflicted by it. The people who have to implement it lose heart. When you ask for particular examples, I think, no; I talk in general terms, just about the mass of legislation, and that is what I think is a bad part of British governance.

Q104 Paul Flynn: To what extent does the complexity of legislation undermine clarity? We see a tendency to react to whatever is the scare of the day. The media scandal is often one that is perceived to be a problem and possibly is found not to be a problem. But given the fact that the Acts themselves have grown in length, possibly because of the ease of using computers and so on, is complexity a major problem?

Lord Butler: As your last witnesses said, I would take the view that drafting has actually improved and the language is easier to understand. The world has become more complex, but there is a process by which, when a department has a slot, they add things to it like Christmas trees, so you get much longer bills. There is also a complexity that comes in through constant correction. What I would say about that is if there was more exploration of policy, of its practicability, of its necessity, you would not have to have legislation tumbling over itself as we do at the moment.

Q105 Paul Flynn: Politicians rightly see themselves as the guardians of the manifesto on which they were elected, and they feel they have to carry out the wishes of the electorate. I believe your plea is to make sure the legislation goes through in a way that can be smooth and efficient, rather than getting involved in the legislation itself or the aims behind it. Are there examples you could quote us of other governments, where they have a far more effective system of legislating than we have that we could borrow from?

Lord Butler: I am afraid I am not sufficiently expert to answer that question, but it is so obvious there is something wrong with our legislation process that I cannot believe there are no other countries that are not better.

Q106 Paul Flynn: You were talking about adding things on like a Christmas tree; they certainly do this in America, where you have a piece of legislation so you can add on a leisure centre in your own department or a new dam in your own state in order to get it through. It can be completely irrelevant to the actual bill that is going through and deals are done to ensure support for it. I presume there are places that are even worse than ours. How do you see Parliament working in partnership with the executive to produce better legislation? Are we on the back benches not performing our role as we should?

Lord Butler: I do not think that that is the main problem, although I think the House of Commons is given too little time to scrutinise legislation properly and a lot of it has to be done at the Lords end of Parliament, but there is nothing wrong with that. No, what is needed is for the Government to have to go through processes that filter the legislation and improve its quality before it first comes to Parliament. That is what we are after. If that happened, we think it would help the Government, because not only would legislation go through more easily but it would be more implementable, it would be more practical and it would not have to keep being revised. That is what we think is necessary.

I am told my old department, the Cabinet Office, produces 300 pages of guidance to departments on the preparation of legislation. But it is all procedural and it is not about what we think are the important points, about explaining the policy to Parliament and the public, why legislation is the solution to it, why it is necessary and it cannot be done in some other way and what its objective is, which can then be tested later by post-legislative scrutiny. If the Government inside the executive concentrated on going through those processes, we would have less and better legislation. What we are after is that the Government should commit itself to some standards for the preparation of legislation, which Parliament could then monitor.

I recall that when I was Head of the Civil Service, Giles Radice and the Treasury Select Committee, which looked after the Civil Service, drafted a Code of Practice for civil servants. They produced it; the Government would not have produced it itself. Then the Government adopted it, because it was so obviously sensible, and it has become the code for civil servants. It would be wonderful if this Committee-if it is persuaded that there are improvements that can be made in the preparatory process-were to suggest a code that the Government would have great difficulty in not adopting. Then, when bills were introduced, Parliament could monitor whether the preparation had been adequate.

Q107 Paul Flynn: That is very useful. I am sure the Government would be very grateful for our work on this.

Lord Butler: We have done something to help you because we have suggested some of the standards that should be set, as indeed the Hansard Society did, as indeed has the Leader’s Group on House of Lords Procedure, which I sat on. At the back of our evidence there are some suggestions about what such a code might include.

Q108 Paul Flynn: Just a final point, because I think others will want to follow that up. I mentioned Dame Irene White’s view last week. She has a very long memory of Parliament as an MP many years ago, and her father was a civil servant going back to the time of Lloyd George. Her view is that a permanent and endemic part of parliamentary life was the shortage and quality of the parliamentary draftsman. There was always a logjam, and the politicians perceived that as such. We were told last week that that is not true anymore. I think what you said in your answer there suggests that it possibly has, so the quality of drafting and the speed of drafting has improved.

Lord Butler: Yes, absolutely. As I say, the mischief lies further back in the policy-making in the department.

Sir Nicholas Monck: I could just add one thing. Robin spoke about the perfect solution of government accepting a draft of standards provided by this Committee, if you decide to do that. But it would be successful even if they proposed something that is different. What is needed is that there should be some standards-preferably agreed between Parliament and the executive-against which what is presented to Parliament for you to spend your time on can be judged.

Chair: I think that is a very helpful suggestion and it goes with the grain of the way we try to do things on this Committee; for example, producing a code on independence for local government, being fairly clear about the changes required in the electoral registration legislation, and even the Cabinet manual. I think you are going with the flow, and I am sure colleagues will think carefully about your suggestion.

Q109 Mr Turner: Before I worked for the Civil Service, even before then-which is goodness knows how long ago-there was something called HSSSSA, which is the Health and Social Security and Social Services Act, which was passed by Norman Fowler and his colleagues. I have not looked at it, but I am told that it was quite a detailed piece of legislation, whereas now it seems to me that the detail is left to beyond the bill becoming law, and is subsequent. Do you recognise that, or do you disagree with me?

Lord Butler: I do not disagree with you. One of the jobs I do in the House of Lords is to sit on the Delegated Powers Committee. At the moment we are very busy because there are all the bills at the start of the new Parliament. We are wading through those to see what Henry VIII powers there are to change legislation by statutory instrument, and advising the House where it ought to consider whether these are appropriate. There are an awful lot of them. No, you are quite right, that is a feature that has grown.

Q110 Mr Turner: Presumably you would think that is not satisfactory, compared with the more detailed law that was passed in 1980 or whenever it was. Am I correct in that assumption?

Lord Butler: Certainly as far as the Delegated Powers Committee are concerned, we think some of it is appropriate and some of it is not. When we think it is not appropriate, we say that to the House. We say, "This is something that ought not to be changed by statutory instrument, and if the Government subsequently wants to change it, it ought to do it by primary legislation".

Q111 Mr Turner: What we have done is to have more staff drawing up and drafting bills, but what on earth are they producing? Are they spending their time on bills or are they spending their time on subordinate legislation? As Members, we seem to have two ways of not dealing with them, because that is what we do generally: we either put our hands up or we do not put our hands up. It is only the Government that directs something. Is it a good thing that we have more people producing more legislation, half of which we probably think should be in more detail, but that is why people are not complaining now as they did 10 years ago?

Lord Butler: People are complaining actually, and I think parliamentarians are complaining.

Q112 Mr Turner: But what are we complaining about?

Lord Butler: You are complaining about the volume and the complexity of the legislation and that certainly you, in the Commons, do not have as much time as you would like to scrutinise the legislation. But, even more importantly, the public are complaining. As I say, it cannot be right, surely, that in the last Government-I am not making a political point-there were 4,000 new criminal offences.

Q113 Mr Turner: I agree with you about that. The problem is we are not in a position to oppose our Government, either here or two and a half years ago. We have to find a way of persuading the Government, of whatever colour, that they are doing things that are a waste of time. How do you advise us to take up the baton and, well, throw it at them?

Lord Butler: That is precisely our point. If Parliament set standards of preparation, which the Government would have to say whether they had complied with or not, then that would affect upstream behaviour.

Q114 Mr Turner: It would if it were implemented. The problem is that we, who mostly support one side or the other and want the stuff to go through, can produce all sorts of guidance but when they are in a hurry they will rush to push stuff through.

Lord Butler: Absolutely. There will be cases when that is necessary. But what we say is that they ought to have to account for that, to say, "Well, we haven’t had a White Paper in this case. We haven’t had public consultation. We haven’t had pre-legislative scrutiny because this is very urgent". In many cases they will be able to make a case for that. After an election the Government wants to get going. It wants to hit the ground running. Some of the legislation that was introduced it the last session they could have taken a bit more time consulting on and preparing, but it is understandable that a government should want to get on with that. But they ought to explain. They ought to be obliged by Parliament to explain, "We haven’t gone through as rigorous a preparatory a process as the standard suggests we should have done, for this reason". Parliament will normally accept that. I think the very fact of having to explain and account will change behaviour.

Q115 Mr Turner: What do you think?

Sir Nicholas Monck: I agree with that. Of course the standards are not only for the bill and the preparation, but also for the documents accompanying the bill available to inform MPs about what the purpose is. For example, to have a clear statement of the purpose of a bill-not necessarily in the bill but in the documents somewhere-would be useful, and also evidence about whether people in the frontline of services have been consulted. Both those things would help you to see if there was something in the bill where either there was no evidence that the thing was workable, or that it did not seem to be related to the purpose and the intended benefits. I think that would help MPs.

Q116 Mr Turner: I am afraid I take the view that people would tick the boxes. They would not do the work, and that is the problem. What we need to have is some power where, for instance, when amendments are thrown in at the last step in the House of Lords, the Lords are prepared to say, or for that matter we can say, although we are less likely to do so, "Well, this will only be there for two years, and you have to put proper legislation in and the temporary amendments will be dropped automatically". It has to be something much more energetic that makes it much more demanding on the Government because otherwise it will not have an effect. Do you not agree with that, Mr le Roux?

Nat le Roux: I do agree with that. I agree with the points from my colleagues about early stage preparation being crucial to this. Another angle, which rather ties into your point, is whether there are common structural features of legislation that are both intrinsically undesirable and capable of objective assessment by Parliament. Brainstorming this in preparation for this evidence, we came up with three such characteristics, two of which have been mentioned already. One is whether the intended effect of the draft legislation could be achieved using existing powers, either in parallel or in part. In other words, is this legislation purely demonstrative and playing to the gallery rather than legislating in the proper sense?

The second is whether the legislation is being used as a vehicle for extraneous matters, and this is the point about Christmas tree bills that Robin was making. I can quite see why a department or a minister, who only gets one slot, might want to heap as much into it as possible. The third is whether the legislation grants ministers, or public bodies, powers that are wider than necessary. I think the point is not that Henry VIII powers are, in themselves, undesirable-in a limited context, they have become necessary; it is whether the Henry VIII powers are wider than necessary. A very useful role for Parliament, particularly for the Legislative Standards Committee, would be to explicitly identify Henry VIII powers in draft legislation, which are not always obvious, and provide a commentary on their extent.

Lord Butler: I do not think we are claiming that what we are suggesting would change the Government’s behaviour overnight or completely, but it would be a useful thing that Parliament could do to press government in the right direction, because ministers do not like being criticised by a committee for not having maintained the standards that they themselves have set. As we have seen within the department, civil servants will say, "Minister, if you produce the legislation in this form, I think you are going to have quite a rough ride with the Legislative Standards Committee". That influences the way that things happen inside government.

Q117 Chair: Andrew, can I just take your point a little bit further? The elephant in the room really is that we do not have an effective separation of powers, so that, as Andrew points out, at the end of the day the majority party will want to vote through its legislation. When we came across this difficulty on the Wright Committee, a number of us made it very clear that it had to be explicit that government should get its business and, therefore, "Do not be afraid of some of the things we are proposing. We are trying to make the business better and make the House function better, but at the end of the day you will get your business through the House", which I think, at the heart, is what governments of all political persuasions are interested in. I am thinking on my feet here, as you have provoked this thought and Andrew’s question has provoked this thought. Do we say something similar? In effect the Legislative Committee is doing this, but do we need almost a concordat between government and Parliament that says, "Look, we’re not trying to change that fundamental. Government will always get its business, but these are some of the things that we feel could make that partnership work better"?

Lord Butler: I think that is absolutely right. We suggested that the Legislative Standards Committee, if there is a Legislative Standards Committee to help put pressure on the Government, would report to Parliament whether the necessary processes had been done. It would be the nuclear deterrent for the Committee to recommend to Parliament that a bill was so awful that they should not give it a second reading. I cannot imagine that happening. But, like the nuclear deterrent, the possibility of it has an effect on the way people behave.

Chair: Until we have Members of Parliament who feel they can square the circle and ultimately vote for their party-if it is in government-but also hold government to account on its legislation as part of their job, and unless we can create that framework of reassurance for Andrew, for me and for other colleagues who think about these issues in the House, we are not going to get anywhere. That is why I welcome the contributions that you have made.

Sorry, Andrew, I thought that point was worth pursuing. Please continue.

Q118 Mr Turner: The question is what do you mean when you say "get their legislation"? Do you mean as it goes in or what it comes out looking like? What does that expression mean?

Lord Butler: We hope that something better would go in as a result of this.

Q119 Mr Turner: Sorry. What I meant was, from our point of view, is it us saying, "They’ve got the right to get their legislation"? Does getting their legislation mean rather poor legislation going in, approved by the majority party, or is it going to be the legislation coming out? Because it is not just because they have drawn it up badly, it is because things are dropped in at the last minute.

Lord Butler: Yes, that is absolutely right-I mustn’t talk too much-but what we believe, from having worked in government, is that this is in the Government’s interests, as well as in Parliament’s interests. If they have taken more time and trouble to explain and to prepare, or not to have legislation if it can be done by other means, it is in the Government’s interests as well as Parliament’s interests. I believe there are a lot of people in government who agree with that; for instance, I think Sir George Young agrees with that. Of course, one has to help him because he is under tremendous pressure from his colleagues who say, "Come on. We, the department of such-and-such, want this bill. Do not put difficulties in the way". The business managers are often saying, "No, we’ve got too big a legislative programme", or, "This bill is too big" but they need some help.

Q120 Chair: Making that idea explicit-that it is a partnership and that we are here to help, and getting government to accept that-is going to be one of our interesting jobs as we come to draft the report.

Sir Nicholas Monck: Chair, is it conceivable that the Government would say, "No, it is not a partnership. It is just for us to send you a lot of rubbish and you stamp it"? I do not think they would ever say that, and I think the Prime Minister-

Chair: No, but they do it, even though they do not say it.

Sir Nicholas Monck: They do it, but I think reminding them that they cannot say it in public would be quite useful.

Chair: Yes. But it will be a culture change for government to say, "You are an effective partner". In order for that to happen we go back to Andrew’s earlier point, which is that for us to be an effective partner we also have to say, "Ultimately, when the vote comes forward, we are partisan political animals and we will support our parties". That is a difficult contradiction sometimes, even for Members of Parliament who want reform, to come to terms with because they feel, "If I help make legislation better I am somehow opposing it". We need to change that mindset and, "If I vote for the legislation ultimately, I am accepting every dot and comma, even though I disagree with certain parts of it". It is the nuance there that we have been robbed of over the years because we have become a rubber stamp in many ways.

Mr Turner: Can I-

Chair: Andrew, please do, yes. I think this is an interesting debate.

Q121 Mr Turner: No government has got its majority before the election. So it is a question of persuasion, but a lot of that persuading is going to a minority rather than the large minority.

Lord Butler: Yes, and if I may say so I think the Chairman gets the paradox very well. On the one hand, the Government ought to welcome Parliament improving its legislation. On the other hand, whenever it does it in practice they think Parliament is a terrible nuisance and they want to give as little opportunity to do it as possible. I have seen this in the House of Lords. If we amend a bill they want the House of Lords abolished.

Chair: Let’s not go there, particularly since we have a very expert member of the Joint Committee on my immediate right, who is just about to ask some questions. Eleanor, over to you.

Q122 Mrs Laing: Thank you. I was hoping to slip in that reference without even referring to it, but we will come to that in a moment. This is a fascinating exploration of the relationship between government and Parliament. I find it difficult to imagine that any government, of any colour or persuasion, could see the House of Commons as a partner in getting legislation through when a large proportion of Parliament-both Houses-is there because it is opposed to that government. We have a system that is based on conflict in democratic engagement. How could we expect a government ever to see Parliament as a partner in that way?

Lord Butler: But it is based on conflict. As the Chairman said, there is a convention accepted by the Opposition, as well as by the Government, that in the end the Government gets its business. The Opposition obviously want to make the case against the Government for public purposes, but they also sincerely believe there are improvements they can make to the legislation as well as just opposing it. In the final stage, they won’t oppose it. They accept the Government has to get its legislation through. It is the same in the House of Lords.

Q123 Mrs Laing: Yes. I accept that, but even being optimistic about the way in which this reform could help-I believe it could; it is a well worthwhile route to go down-have you observed any significant differences we have had? Pre-legislative scrutiny, for example, is fairly new.

Lord Butler: Yes. I think there are great improvements through that. I think the Government does believe in it. I think the present Leader of the House of Commons believes in it and much more is being done, and that is all to the good, which should encourage us not to give up hope. Things do improve, and that is one of the ways in which it has improved.

Q124 Mrs Laing: Mr Chairman, I was going use an example of a bill that is before the House. We won’t say which bill it is. There is a bill before the House that has been subject to pre-legislative scrutiny, and a particular clause of that bill has been significantly criticised by the Committee that did the pre-legislative scrutiny. That clause is not just an add-on; it is fundamental to this particular bill. A revised version of the bill is due to be put before the House in the near future. What path should be taken if the Government ignores the pre-legislative scrutiny and the criticism of that particular fundamental clause of the bill? I am sorry if that sounds opaque, but I am being deliberately opaque because we are not discussing politics here. We are discussing procedure.

Lord Butler: I can speculate about which bill you are thinking of and what the provision is. It is the Government’s right and, if the Government does not agree with what the pre-legislative Committee has said, it will maintain its position. But the fact that the pre-legislative Committee has criticised it is not undamaging-it may be damaging to the Government; it means that a case can be made against it-but it does sharpen the Government’s act in explaining why it is going to insist on its original provision and not accept the advice of the pre-legislative Committee. But the pre-legislative Committee has done a good and necessary job, in my view.

Q125 Mrs Laing: Exploring further the possibility of a Legislative Standards Committee. In an example such as the one I have given, would a Legislative Standards Committee then come in post the pre-legislative scrutiny stage or before the pre-legislative scrutiny stage? I can see great advantage in having a Legislative Standards Committee. As Lord Butler said, the fact of ministers having to explain to a Legislative Standards Committee exactly why they have certain wording in a certain clause and, therefore, that they would have to account for the way in which they have done it, would change behaviour because nobody would want to look as if they were trying to pull the wool over the eyes of the legislature, would they?

Lord Butler: Can I just say a word about how I envisage a Legislative Standards Committee would work? It would follow any pre-legislative scrutiny. It would follow publication of the bill. It would not get into the policy. It would not get into the drafting. What it would do is report to the House, between the publication and the second reading, whether the Government had gone through the sort of processes that are likely to make a good piece of legislation. That is what it would do. The fact that the Government had put the bill through pre-legislative scrutiny would be a thing that would be very likely to make the Committee say, "Well, this bill has been well prepared".

Mrs Laing: I can see that. I think that takes us quite a lot further forward.

Q126 Chair: Do any of the other witnesses want to comment on that?

Nat le Roux: There is an obvious potential difficulty in all of this, which is that the line between the content of policy and the quality of the draft legislation is not always going to be an entirely crisp and clear one. Take the question, "Is the policy evidence-based?" Well, different statistics can be produced to justify different results. A conclusion I draw from that point is that if a Legislative Standards Committee is to be effective, what it is doing has to be as objective as possible in terms of standards. If there is a grey area that is somewhere between policy content and standards of legislation, that has to be conceded to government.

Mrs Laing: Yes, I-

Q127 Chair: Can I just add something, Eleanor? Members of Parliament need to be convinced that government is serious when they do this because-as a great advocate of pre-legislative scrutiny-I could not tell you what the provisions are, whether it is built into most timetables now. That is because a lot of the time when we hear about these steps forward Members do not believe that government actually want this to work. They still believe governments of all political parties want their bill, and push it through. Again, this is really a comment for my colleagues on the Committee; there probably has to be some sort of very clear political declaration: "We are going to do business in a slightly different way in future and you can have faith that government does want to hear your voice as a legislature". That has to be managed very effectively.

I can imagine Chief Whips of all parties having hysterics if the Prime Minister of the day said, "There’s now going to be a new relationship between Parliament and government and we are going to listen a lot more, although we still want our bill". I think the Chief Whip would probably run up the road to No. 10 Downing Street in order to make representations-let me put it that way. If you are going to say to individual Members, "We want your views. We want you to approve this legislation," you need to be pretty clear about where that stops. Otherwise people may well say, "I have put a lot of work into this bill. It has not done what I wanted. They have not listened to me and I am going to vote against it". Then, of course, the Chief Whips of all parties start to have problems. The point I am making for my colleagues is that we do need to have something, not just an aspiration for parliamentarians to get involved. We need a clear political signal from the Executive that there needs to be a new relationship so that Members understand their new responsibilities.

Lord Butler: I think that the present Leader of the House has said this loud and clear. I could produce speeches, and I am sure you will, where he said that, and I think he means it because there is more pre-legislative scrutiny. What I hope is that we are strengthening his arm. I agree that there may be a difference between the Leader of the House and the Whips in this respect but, from our point of view, the Leader of the House is a good guy. There is worry in government-again, we have discussed this with the present Leader-that a Legislative Standards Committee would be scope for the Opposition to create political difficulty. I would like to reassure the Government that I do not think that that is so. It is really a factual thing: "Has the Government explained what the purpose of this bill is? Has it consulted?" These are factual things. There is not much room for political argument about it. I think it would cause the Government to go through the necessary processes and, if it doesn’t get into policy, I do not see much scope for there being political difficulty. I may be naïve but I think that is the case.

Chair: Of course, what we are looking for is a structural answer here because good Leaders of the House come and go. Shuffles happen, personalities change and the Leader of the House, I have to say, traditionally has been a reward or a demotion rather than because someone has a real insight into the House. We are very fortunate at the moment, and I am on record as congratulating the current Leader and Deputy Leader for what they have done in allowing Members of Parliament to elect their colleagues to this Select Committee, and indeed to elect the Chair, and a number of other reforms. It is a good regime at the moment for those of us who think the House can do better, but it could change at any moment so I think we need to look for structural changes. Colleagues in the Committee need to ask for reinforcement at the highest political level to whatever structural changes we come back to.

Paul, I am just going to call Eleanor on her question, which I rather rudely interrupted, and then I shall come back to you to finish that point.

Q128 Mrs Laing: Sadly, it is not making for a lively Committee this morning because I agree with the Chairman entirely on what he has just said.

Chair: You always do.

Mrs Laing: I usually do, Chair. I suppose what we are all trying to do is see the current Leader of the House replicated in perpetuity because having an enlightened Leader of the House, who really is a parliamentarian and believes in Parliament, does give us the opportunity for progress of exactly the kind that you have all been working on-as, indeed, we have in this Committee. Of course, we are all aware that-I was going to say "at any moment", I hope not at any moment-at some point in the future we could have a different government, a different Prime Minister and a different Leader of the House who would have a completely different attitude. I suppose what we are trying to do is to put in a mechanism whereby Parliament becomes more effective. Personally, I think the idea for a Legislative Standards Committee is the right way forward.

Just thinking about how it would work and what it would do, I do not know if it is obvious to observers, although it is certainly obvious to anyone who has worked in government, that one of the ways Members of Parliament can scrutinise the detail of legislation, and the purpose of legislation, is during the Committee stage of a bill when we put down what we refer to as probing amendments. I have done that many times and I am sure other Members of the Committee have too. You put down an amendment, something like, "In clause 8.1(b) delete ‘should’ and insert ‘must’." That gives the opportunity for about an hour’s debate, not about "should" and "must" but about the way in which that particular clause would work. I would argue that system actually works quite well.

That takes us on to the issue of time for scrutiny by Members of Parliament. Have you taken into consideration the effect of always having timetable motions on bills now? Not so long ago, we did not have timetable motions. I found myself explaining this to some new Members of Parliament only yesterday. They had no idea that just a very short time ago we did not have automatic timetabling and that we were able to look further at bills.

Lord Butler: In the good old days when we grew up, the Opposition had some leverage over the Government because it had the weapon of time. Timetable motions are a great shame actually. We nearly got to them in the House of Lords over the Voting System and Constituencies Bill and, mercifully, we just drew back from the brink, so there are no timetable motions in the House of Lords. The House of Lords can make up for some of the things that are squeezed out of consideration in the House of Commons, and that is Parliament acting jointly.

We do not believe that having a Legislative Standards Committee would add to the time because all it would be is a committee that looks at the facts, reports to the House and does not take any parliamentary time. Its report would be available at second reading and the Government would be criticised if it had not properly prepared the bill, but that is all it is. One of the points that I wanted to bring out is that we have no less than three committees on statutory instruments-certainly we do in the Lords. We have the Merits Committee on Statutory Instruments, the Delegated Powers Committee and a Joint Committee on Statutory Instruments. It is very odd that we have all these committees looking at statutory instruments and nothing looking at the real business of Parliament, which is main legislation.

Q129 Paul Flynn: The issue has been raised. Even Chief Whips are not what they once were. We heard an anecdote last night about one of our past Chief Whips-Mr Michael Cocks, of happy memory. It was a comment that would not be acceptable now. They are very different creatures now and they cannot impose the kind of discipline in the crude way that they did in the past. We do have an ardent reformer, not only in the Leader of the House but in the Speaker of the House as well. We have a number of other coincidences that have come together that makes this a good time for reform. We are not enslaved to the traditions of the past in the same way as we were, because part of the recent past is a shameful one and we want to escape from it. We want to rebuild trust in politics.

I do not think there has never been a better opportunity. With the coalition, we have the effects of the two parties coming together with a civilising effect on one another-possibly on both-so there is a chance to have not doctrinaire policies but consensus policy. There has never been an opportunity like this to put in real reforms. Think of the setting up of the International Criminal Court. It happened that there was a tiny slot of about five years. It could not be done 10 years earlier and it could not have been done 10 years later, but I think this moment is now the best time to get a code that will be acceptable to government because of all those who were keen on reform in this Committee and outside or in high office.

Lord Butler: I am hugely encouraged to hear you say that.

Q130 Paul Flynn: This is an interesting point. Last week, I asked for an example of fine legislation, a shining example of the best legislation, and what they suggested was a bill drafted by a peer, which is the Defamation Act. That is extraordinary, isn’t it? But there we are.

Lord Butler: We should not be too dispirited. Parliament does make advances. They have done so through the Wright Committee, as you said. We did when we got select committees established in 1979. We also get some reversals with the growth of timetable motions, but I do not think we should be dispirited, in the slightest, about trying to make Parliament work better.

Paul Flynn: Sure.

Chair: Those of us who stayed up until 4.00 am and had to listen to Mr Eric Forth probably would not share your view, Robin, about timetable motions. I think bad timetable motions are like bad anything, really. Enabling all the items of concern in a bill to be addressed may well require timetable motions, but you are tempting me to break my own rules of order. So I will get back to Eleanor, who will put us on the straight and narrow again.

Q131 Mrs Laing: How can I frame a question to our witnesses that is really a follow-up of what the Chairman has just said? Have you discovered in your deliberations that it might often be the case that a timetable motion prevents large chunks of a bill ever being mentioned in the House of Commons? Not in the House of Lords but in the House of Commons, large chunks of a bill are completely ignored and passed on a nod. Have you ever discovered that that might be the case?

Lord Butler: Very, very frequently.

Mrs Laing: Thank you.

Sir Nicholas Monck: I like the suggestion that when a bill goes to the Lords and there are large chunks of it that have not been discussed-I think a peer suggested it-it should be indicated on the bill: "This has not been discussed at all in the Commons". That seems a very sensible notion.

Mrs Laing: Yes.

Lord Butler: Again, it was part of our recommendation in the Leader’s Group report on House of Lords processes.

Q132 Mrs Laing: It is very difficult. We all know the meaning of the unparliamentary word that is never mentioned, "Filibuster". It is not difficult for parliamentarians to speak for a long time about absolutely nothing. If one does it in order, it can be quite an art. But of course it is a clever way of using time in order to oppose the Government. When we say "The Government should always get its business", which everybody accepts, on what grounds should the Government always get its business? Is it because that particular government was elected on a particular manifesto? What if the business before Parliament is not manifesto business? Should the Government still get its business?

Lord Butler: It is part of our constitutional convention that you elect a government for five years, it becomes the Government because it has a parliamentary majority, and during that period it has a very strong presumption that-unless it loses the support of some of its own side-it is going to get its legislation through. It should not do it without difficulty, and sometimes there are things that it would like to do that do not go through. I recall 90-day detention without trial. Parliament prevented it from getting that through. The restriction of trial by jury; again, Parliament restricted getting that through. There are times when the Government is-and should be-stopped from getting precisely what it wants out of Parliament.

Q133 Chair: Those issues tend to be ones of continuing controversy rather than, "We’re in opposition. You’re in government. We’ll just stop your bills. We’ll stop your business". They are of a different order and I think what I am trying to distinguish is that, in the general run of business in the House, we need to define a space where Members of Parliament of all parties can make sensible amendments and hold government to account for the proposals they put in legislative form to Parliament, while reassuring government that this is not just a weapon in the general guerrilla warfare of one party against another. I think those terms need to be very clearly defined. Eleanor has just given a very good example of the thinking that, if we are not careful, could lead to reform being halted because we are not clear and precise about the new territory that we are trying to grow proper accountability in.

I am going to move on now, if I may, and talk about some of the constitutional stuff because I am conscious that Nat has not had much of a bite so far. Just a general question to get you started, Nat, about making the case for differentiating between different types of legislation, constitutional and others, for example.

Nat le Roux: There is a "why" and there is a "how" here. The Government, in their response to the Lords Constitution Committee’s report last year, seemed almost to deny that there was any distinction between constitutional and ordinary legislation. Of course, in terms of current parliamentary process, that comes close to being true. The only distinction is, at the decision of government, some first-class constitutional bills have their committee stage on the Floor of the House. At a level of principle, why, even in the absence of a codified constitution, should one treat constitutional bills separately?

I suppose the first point is that constitutional legislation practice is the architecture of the state and the elements of the constitution are unavoidably interconnected, so an alteration in one part of the building has unforeseen consequences in other parts. Mr Blair’s attempt to abolish the office of Lord Chancellor has perhaps been an illustration of that. There is interconnectedness, which is not true of other types of legislation perhaps.

The second point is that some constitutional legislation has an effective presumption of irreversibility, despite any doctrine of the sovereignty of Parliament. Scottish devolution, for example, was understood at the time, and continues to be understood, as something that the Westminster Parliament could not in fact reverse.

Thirdly, and this is more recent, there is the re-emergence of specific structural features in constitutional legislation, which we have not seen for a long time. These are so-called manner and form restrictions, where a piece of legislation passed by an ordinary majority imposes restrictions on future Parliaments about how that legislation is to be implemented or repealed. The two examples we had last year were the Fixed Term Parliaments Act, with its provision for a super-majority for dissolution under some circumstances, and the referendum lock in the European Union Act. Those are very interesting and potentially difficult mechanisms, and something that you would not find in legislation that is not constitutional.

That is the "why". Coming to the "how", what legislative standards might one want to impose on constitutional legislation, which would be different from ordinary legislation, and how might you do that? Those different standards can be divided into two sorts. First of all, enhanced standards; the same sort of standards that you would apply to ordinary legislation, but applied in a stricter way with greater rigour. An example of that would be the requirement that consultation and pre-legislative scrutiny should not be waived on grounds of alleged urgency, if a bill is constitutional. The idea that the Parliamentary Voting System and Constituencies Bill was introduced very quickly at the beginning of a session, without any of that preparation, is something that would be contrary to these enhanced legislative standards.

Then you can think of certain sorts of additional standards that might apply specifically to constitutional legislation. One is the proposal of the Lords Constitution Committee, that a written ministerial statement should be required for constitutional bills, setting out the impact of the proposed legislation on existing constitutional arrangements. That is addressing the point on interconnectedness. Another one that occurred to us is that referendums on constitutional matters are becoming more common, but there is no agreed principle governing which type of proposed legislation might require a referendum and which might not.

As we have seen in this Parliament, a change to the voting system, which would be regarded as sub-constitutional in some states, apparently does require a referendum, but a fundamental change in the nature of the Upper House, or certainly its composition, apparently does not require a referendum. A suggestion might be, in the case of that type of major constitutional legislation, that the minister should be required to explain why a referendum is or is not being proposed. One can think of other examples.

The final point is the possibility that if the principle of separate standards for constitutional legislation is accepted, it might be appropriate that those legislative standards are scrutinised by a different committee from the general Legislative Standards Committee. The argument for doing that is, as I have tried to indicate, that some of the material is specialised; this point of interconnectedness; and finally, the general point that the introduction of processes can in itself have a strongly normative effect. If different committees reviewed standards for constitutional and ordinary legislation, even if in fact they were applying exactly the same standards, all those in the political process would, over time, be encouraged to behave as if there were a distinct category of constitutional legislation- something that we would very much support.

Chair: That is very helpful. Paul, did you want to come in on that?

Paul Flynn: No.

Q134 Mrs Laing: We are now focusing on something very important. Earlier we were talking about any government getting its business. When it comes to constitutional change, am I right in thinking that you are suggesting that that business is, in some ways, of a more serious and more permanent nature than the normal business of government?

Nat le Roux: Yes, I would agree with that. I would not go so far as to say that government ought not to get its way in matters of constitutional change, but it should be harder for them. For a long time, up until 1997, there was not much in the way of constitutional legislation and since then we have had lots and lots of it. A lot of that constitutional legislation is piecemeal. A lot of it seems to be designed to address popular dissatisfaction with politics generally, in a rather curious way. So the alleged urgency of the Parliamentary Voting Act is explained in terms of popular concern about MPs’ expenses by at least one minister, when it seems to me to have really nothing to do with that at all. Yes, I agree with you, these are structural matters that are to do with the rules of the game, rather than the game, and the standards should be higher.

Q135 Mrs Laing: I entirely agree with you on those points. If it is accepted that the standards should be higher-I think a lot of people would agree with that-is there a case for saying that the passing of such legislation should be subject to more than just a simple majority in the House of Commons and indeed the House of Lords?

Nat le Roux: There certainly is a case for that, and that is what you would find in the great majority of democracies; not only do their constitutions not change very often but when they do change there is a super-majority requirement of some type. I might in some future world think that that was desirable, but I do not think it is going to happen any time soon so I have focused on things that could realistically be achieved, which would start the ball rolling in the direction of making constitutional change both more coherent and more difficult for individual governments.

Q136 Mrs Laing: Could it be said that there is something of a precedent in the Fixed Term Parliaments Act, some parts of which do require more than a simple majority in the House of Commons to bring about the particular end, which would be the dissolution of Parliament?

Nat le Roux: Yes, depending on which side of the debate one is on. That is, at a level of principle, a sort of "own goal", isn’t it? It is a concession that under certain circumstances super-majority might be appropriate.

Mrs Laing: Yes. It is a concession, isn’t it? It is beginning to set a precedent: if it has been done once, it cannot be argued that it cannot be done at all. That is helpful. Did Sir Nicholas or Lord Butler have anything to say on those issues?

Sir Nicholas Monck: I have nothing on this.

Lord Butler: I think it was admirably put.

Q137 Mrs Laing: What about the actual classification of a matter being constitutional or not? I come down again to what we were discussing earlier, namely, conflict between party political activity and parliamentary activity. You can never take the politics out of anything that happens in the Palace of Westminster; members of a government will find a way of putting an argument that suits them at the time. Of course they will. There is nothing wrong with that. It is the very nature of our democratic engagement. There will be times when it suits a government to say, "Such and such is constitutional legislation", and it could be that the very same issue at another time they would wish to identify as not being constitutional. Do you see a way in which rules could be laid down here? We are straying into the realms of the Chairman’s favourite subject of a written constitution. I wasn’t thinking of that. I was just thinking about this very specific issue of identifying constitutional legislation.

Nat le Roux: It is very difficult. At the Constitutional Society we are engaged in an exercise at the moment to see if we can improve on the current definitions that are kicking around, but the essential problem is this: most of the attempts to define matters or legislation, which are constitutional, come down to a list of subject matter. If some proposal is on that list or conforms to that list, it is constitutional and if it doesn’t, it is not.

The difficulty with that is that while we can all agree, or think we can agree, that at the core some things are obviously constitutional, there is always a grey area where, as you say, it can be argued either way. These list-type definitions-Sir John Baker’s is the one that has had the greatest currency recently-end up using words like "substantial" or "significant". So "significant alternations" or "substantial alternations" or whatever it was would be a piece of constitutional legislation and, of course, then we are into subjective territory. There are some alternative approaches that you can take, but they do not really do the job because they are too narrow, so the point I was making earlier is that if there was a presumption of irreversibility I think most people would agree that that piece of legislation was, by its nature, constitutional. However, there are not very many of them, apart from the ones granting independence to colonies and so on. There are only about a dozen on the statute books. That is too narrow to be helpful.

In the end-coming to the point-someone has to decide. There is not an absolutely objective definition against which one can test whether something is of constitutional or even major constitutional importance and everyone will agree. One of the secondary purposes behind my proposal that legislative standards for constitutional legislation should be handled by a different committee is that the effect of that is to suck that decision away from the executive and back to Parliament because, without knowing what the detailed mechanism might be, those two committees would have to divide the territory between them in some way and, effectively, would thus be making the decision about what did and did not fall within that constitutional definition.

Q138 Paul Flynn: The question of the piecemeal nature of legislation has been suggested. Can we see any mechanism that will stop that? Having seen how legislation was formed on devolution in this place, which was usually the result of horse trading within the government party itself, leading to devolution, to devo-max and then ending up in the holy grail of independence, the process is on that slippery slope. It will be done as political opinion changes. Is there anything you think you could take, which would avoid it being done on the basis of a single Act going through, that is not related to what is likely to happen in the future or what is happening in other parts of the United Kingdom?

Nat le Roux: As things stand, all one can hope to do is to change the culture to make it more embarrassing for government to introduce major constitutional changes in a piecemeal, thoughtless or self-interested way. In terms of formal processes, short of a wholesale constitutional revision-in effect a codified written constitution-I do not see any formal way that you can prevent government introducing bills that are of a constitutional nature and, if those bills happen to be piecemeal, there is no structure to prevent it.

Q139 Paul Flynn: There might be another reason for being optimistic at the moment, and that is the weakening of the dependence that so many MPs and party leaders have on the popular press, with the decline of the influence of the Murdoch press, and with that the bills that are regarded as being the worst pieces of legislation. The Dangerous Dogs Act was the result of a campaign by tabloids. The 90 days was put forward and supported by The Sun newspaper who excoriated those brave independent MPs who opposed it-many from the Labour Party-and stopped it happening. They were criticised as being friends of terrorists, just as the opponents of the Dangerous Dogs Act were described as people who were in favour of children being mauled by dogs. That happens to be the system here. Again, we have just had an extraordinary by-election in which a man was elected on a cause that no main party supports-the withdrawal of troops from Afghanistan-and a refusal to even discuss it.

Chair: Just before Nat comes back on that. Robin, you need to leave us, I understand by-

Lord Butler: By 11 o’clock. I have the Intelligence and Security Committee, but I do not want to be discourteous.

Chair: Not at all. On the contrary, we really appreciate you taking the extra time to stay but please feel free to attend to important matters of state. Thank you so much for coming along this morning. We will carry on with our remaining two witnesses.

Paul Flynn: If I can bring this long discourse-

Chair: Yes, if you can bring it to a question, Paul.

Paul Flynn: Yes, indeed. It assists my train of thought. I am writing a book at the moment. In fact, I have a long story about this-

Chair: No, we do not want the long story. We would like the question, Paul.

Paul Flynn: Yes. The thing is that it is not the change of culture we need; it is the elevation of the value of independent backbenchers to be recognised.

Nat le Roux: I agree with that and, going back to your point about the media, I think it is-tongue-in-cheek-actually a good thing in one way that the press take rather a limited interest in constitutional matters because it does at least have the effect of removing some of those pressures you were talking about from government, although not in all cases. The whole question of the Scottish referendum, which is going to be the looming question of the next couple of years, is one that the popular press is going to become seriously exercised about. Our experience in trying to provide public education on constitutional matters over the last two or three years is that there is, frankly, very little public interest in a lot of this territory, and that is borne out by various polls when people are asked to put various things in order of priority.

Given government’s natural tendency to want to legislate and make their mark and change things-for good or bad reasons-I think it does very much come down to Parliament to do what it can about this. I am a great believer in the idea that behaviour is changed by small changes in structure and relationship and by putting small building blocks in place, which cause people to think twice about constitutional tinkering. The cumulative effect of that over time is quite valuable.

Q140 Chair: I want to get back to the Legislative Standards Committee, if I may. Nick, should it be a bicameral Legislative Standards Committee?

Sir Nicholas Monck: We did not want to give a strong opinion on that. I think that would be the simplest thing to do, and that is what the Lords Leader’s Group has recommended. I think it is entirely a question for Parliament and I know this is all sensitive, so if there are two that is okay by us. It is not our-

Q141 Chair: Where exactly in the legislative timetable do you think it would be of optimum value?

Sir Nicholas Monck: Before the second reading is what we want envisaged but, again, that is a-

Q142 Chair: At that point would you be able to call in ministers to make some observations on the preparation of the bill?

Sir Nicholas Monck: We envisage that it would only be a one-session meeting, because you do not want to make it political, basically, so it is just a question of going through the standards and saying whether they are there or not; possibly with a paper from some people from the Scrutiny Unit if there were resources for that. They have said they could do it if there were resources. Then the decision would be a report saying, "This is okay and the document provided by the Government explains why they have not done something but they have done most of it" or something like that. Otherwise, it would say, "This does need more work". So the choice for the Government would be either to do more work, which would be a delay, or bullying the thing through and overruling the recommendation of the Legislative Standards Committee, and that would be a loss of face as well as delay. We imagine that that would come into play in practice very, very rarely because, as we have said, we hope that agreeing standards would affect the behaviour and improve the quality.

Q143 Chair: The sanction is name and shame as an ultimate.

Sir Nicholas Monck: Plus a bit of loss of parliamentary time; but, yes, basically.

Q144 Chair: Some of us have held that select committee reports themselves, if you had the ability to put them on the Floor in a more rigorous way than we can at the moment, would engage select committees in a process of negotiation with government, because you would argue, "Well, look, if you can give us the nod on four of our recommendations, perhaps we will downplay the other three". Then you immediately get Parliament and the Government into a process of interaction, which ultimately would be a very productive way forward.

Sir Nicholas Monck: I agree.

Q145 Chair: Just to give you the opportunity to answer the arguments that because legislative scrutiny is so poor, what we are really doing is trying to find other ways to handle this, so we invent pre-legislative scrutiny, and we invent post-legislative scrutiny. Are we answering the fundamental problem or just bolting on another bit of mechanism and avoiding the fundamental problem that legislative scrutiny itself is inadequate and that is what needs addressing rather than-as some would argue-introducing the Legislative Standards Committee?

Sir Nicholas Monck: I notice your earlier witnesses said that very often scrutiny was quite effective and very effective. I do not think we are starting from there, but what we are starting from is the proposition that was also put forward by earlier witnesses, that if a bill reaches Parliament in a bad state there is a limit to how much change you can bring about in Parliament, and if it is fundamentally flawed you cannot do that in Parliament. I think one of your questioners said that the core business of the Parliament is to stop bad legislation. We are trying to reduce the number of cases of that, and also to give a place where your supporters club, Chairman-you used the term-can get together, and are free and can act effectively.

Q146 Chair: Yes. There was disbelief on both sides with the previous witnesses when they felt they were given a hard time by Parliament. I think a number of us on this side of the table felt we very rarely get the opportunity to use our expertise, not to give people a hard time but to genuinely probe and make sure the legislation is better, which many of us think is one of the core functions of our jobs as Members of Parliament. I think there was a little bit of a miss from those witnesses who said that.

Sir Nicholas Monck: Yes. There is the time question, which that is highly relevant to bringing in the expertise of MPs. I could say something else about time if you like?

Chair: By all means.

Sir Nicholas Monck: We take the line that a key feature of an agreement, which we have always envisaged between Parliament and the executive, would be that the executive would not have a legislative programme that was too big for it to be possible for adequate scrutiny to be provided by Parliament. That is a precondition for the whole thing; it is not detailed about rules but that is important. That is another thing that, as I understand it, the present Leader agrees with.

Chair: It is one of those things where if there is a will there is a way, if there is in fact good will. That is why I return to the question of having a very clear political declaration from No. 10 if this is to work. I go back to the concept of timetabling. When timetabling was invented, it was genuinely an attempt to cut out this nonsense of people talking on one amendment for days at a time, and actually to get proper discussion.

If I may just be allowed a brief reminiscence from the Whips’ Office, I remember one of the first bills that I was in charge of and going to see Sir Alan Haselhurst with my opposite number from the Opposition. We sat down and we went through very, very carefully what we felt were the key issues. I wanted the Government to get its bill. The Opposition wanted key debates given adequate time. Sir Alan refereed in a very, very impartial way, and we agreed a timetable motion that everybody was very happy with. If you want to do it in that way, you get better legislation. If you want to use your massive majority to sledgehammer something through, you can make even the best concept useless and irrelevant by abusing the power of the majority. Again, I am feeling my way back really for Members to think about this. Unless the people at the very top say, "We want this to work", there will always be mechanisms for stopping it working.

Eleanor, I know you have one final question. Paul, did you want to come back?

Paul Flynn: A very brief one.

Q147 Mrs Laing: Of course, the time to which the Chairman is referring was, I think, when timetable motions were not automatic. They had to be justified by the minister to Parliament as a whole and, because they had to be justified, the minister had to speak to them. Now the minister speaks for about two minutes and that is the end of it. It is assumed that there will be a timetable motion, and surely there can be no doubt that that is a curtailment of democracy.

It is not for me to make points but to ask questions. If the Legislative Standards Committee, which many of us support and think would be an excellent idea and an improvement to our legislative process, were not to be accepted by government or not brought in, is there a halfway house whereby the purpose of a Legislative Standards Committee, and the statement of compliance and so on, could in some way be incorporated in the work of pre-legislative scrutiny as it currently stands?

Sir Nicholas Monck: I think it could be. At the moment, on the Legislative Standards Committee, our feeling is that the first thing to do is to agree the standards. There is not really very much point in arguing about whether you do or do not want the Legislative Standards Committee unless there is a text for the Government to respond to-to say either, "We think this is right", or explain why they favour something else. It is an extraordinary lacuna at the moment that there is no agreement about standards between the executive and the Parliament. It seems very odd. To answer your specific question, when a draft bill comes in for pre-legislative scrutiny, it would be possible at that point to do the same thing as we have described, and for that to be taken into account and possibly, when the bill comes back the next time, you might just want to revisit it-the Legislative Standards Committee. It might be a good way of dealing with that. From our point of view, the prime thing is that there are agreed standards or at least government-supported standards, but hopefully agreed.

Paul Flynn: I recall the torment at 3 o’clock in the morning with the Cardiff Bay Barrage Bill. The Bill straddled three Parliaments, and I vividly recall inventing a mythical creature called "the barking Grangetown rat" to a House that was exhausted or inebriated at 3.30 am in the morning when we had reached amendment five of 250 amendments tabled by Rhodri Morgan. Looking back on that, and knowing the faults of any change you make, I hope that if we are working together-which I very much hope we will on this-we will be conscious of the fact that by introducing new reforms we do not introduce new weaknesses as well. That is the difficulty when the pendulum swings from one abuse of the House and we end up with something that might be an absurdity at the other end. I just want to thank everyone for their evidence this morning, and I hope that this can be a way forward for all of us.

Q148 Chair: Any comments?

Sir Nicholas Monck: No, I think I have made the points that I would have made on that.

Nat le Roux: So have I.

Chair: Excellent, there is nothing that you want to put on the record that we have missed. You have the opportunity to write to us as well and I would appreciate keeping the dialogue going. We need to be exact about how we get this done. We also need to get the political side nailed down and make sure that government feels that it can still get its business, while treating us respectfully as a partner that can contribute to legislation.

Nick, Nat, and Robin in his absence-I thought at one point we had the football system where the armband would be passed to Chris, who would leap out of the dugout and come to the table-thank you so much for your time this morning. I really appreciate it. Thank you so much. Thank you, Members.

Prepared 9th July 2012