CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 786 -iii

HOUSE OF COMMONS

ORal evidence

taken before the

Procedure Committee

Private Members’ bills

Wednesday 16 January 2013

Thomas Docherty, Charlie Elphicke and Ben Gummer

Evidence heard in Public Questions 96-133

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 Procedure Committee

on Wednesday 16 January 2013

Members present:

Mr Charles Walker (Chair)

Sir Roger Gale

Tom Greatrex

Mr David Nuttall

Jacob Rees-Mogg

Martin Vickers

________________

Examination of Witnesses

Witnesses: Thomas Docherty, Member of Parliament, Charlie Elphicke, Member of Parliament and Ben Gummer, Member of Parliament, gave evidence.

Q96 Chair: Mr Gummer, Mr Elphicke and Thomas Docherty, we were having a discussion a few moments ago as to whether, if colleagues did not turn up, we would be quorate with you as witnesses. I think the view was we would be, was it not? The alternative view was we could remove you from the panel, sit you there, and you could come back next week as a witness. You were our ace up the sleeve.

Gentlemen, thank you for appearing before the Committee. As you will have gathered, we are investigating Private Members’ bills and whether anything can be done to improve the process, which is why we thought we would see you, because you have been involved in the process and we thought you might have some interesting views that you want to share with us. If your views are not interesting, we are far too polite to tell you that they are not. Anyway, without further ado, I shall let Martin Vickers open up the questioning, because he is often the last, but today he shall be the first.

Q97 Martin Vickers: All right, gentlemen. Thank you for coming along. Private Members’ bills: a lot of effort for very little reward. You know you are not going to or you are very unlikely to succeed with getting one into law. There are many easier ways of highlighting a particular subject. Why did you choose your course?

Charlie Elphicke: I have tabled four presentation bills, and I found them very useful in that they provide a talking point, and it gives you an excuse to talk to a department and raise particular issues. One bill was on the future of the Port of Dover, which concentrated the mind of the Department for Transport wonderfully so that just before Christmas that they got on and announced that the privatisation threat of the previous Government was ended.

Another was about the right of children to see both their parents. Again, it was to keep the pressure up on the Department for Education. I withdrew it when they said they were finally going to legislate in this area in the Children and Families bill. So to that extent, they are useful discussions.

I started a debate with my property disputes bill about sorting out property boundaries and dealing with the fast-track boundary dispute resolution procedure, and I got discussions with the Ministry of Justice on that. The final one is the British Bill of Rights, which I tabled, so that it would be a road towards, as I see it, a Conservative manifesto, and enable a debate to take place in Parliament on 1 March. I view this as not something that is going to get into law, but a way of advancing the debate.

Ben Gummer: I had one bill, which I had no expectation of becoming law. It had the modest aim of completely reconstructing the budgeting arrangements of the Government. I did not expect it to get anywhere. In the event, it had even less time than I expected because Third Readings were rolling over on to the day when I was going to be heard, so I only had, I think, seven minutes, in the end. I suppose you will ask the question later about whether the Private Member’s bill process is suitable for raising points, as Charlie said, because that is effectively what we use it for now, but that is what ten-minute rule bills are used for too. It seems to all of us, and we had a long time to talk about it, that it is a missed opportunity for all of the inventiveness and interest and interesting ideas that are going on across the House, all sides,1 which could be brought before Members.

Q98 Chair: What is the missed opportunity?

Ben Gummer: You will want to explore this, but whether we are really using private time for Private Members’ bills as productively as possible, and whether they are giving Members-who are elected by their constituents not just to form a Government or an Opposition, but also to instigate legislation-the opportunity to do that.

Thomas Docherty: I think, Mr Chairman, provided that Ministers extend a reasonable level of courtesy to Members who hold bills, they can be very productive. Taking Mr Vickers’ point, if your goal from the outset is to pass something into law, then I accept Mr Vickers’ point that our success rate is not great. Of my 10 bills, they cover nine Ministers, and I have met now with seven out of nine Ministers, because I have not particularly approached the two who have not, and it would appear as if I am getting from those discussions a bill in Government time on one of the issues, which I think they are going to announce on Friday. I am getting impact assessment reports done from at least three of the bills. The outcomes are too far away but what the Ministers are saying is, "Look, we think you are raising an important point. I would have to think about it", and that is an achievement: very much what Charlie said. "If you withdraw your bill at the appropriate point, we guarantee we will ask, say, the regulator to look at the issue that you have raised and give the department a report on it within 12 months." I think, Mr Vickers, what I would say is that you are absolutely right. If I want to see my name as a legislator, it is a failure. If I have pressed the Government to do something, I think it was worth the night’s lack of sleep.

Q99 Chair: Thomas, Charlie, are these all your own bright ideas, or do you get the slots and then almost open up your office for various people to come through and pitch their ideas to you, or are these all things that you were going to do anyway?

Charlie Elphicke: For me, it was what you would call internally generated. Doing a presentation bill, you are not going to be given a hand-out bill, so you cannot make momentous reforms on the measurement of the coinage of the nation. Nevertheless, if you look at the issues you are concerned about and you want to press in that particular session, it is a really, really useful tool to do that.

Q100 Chair: Did you decide you had four issues, or were you successful in securing four of these opportunities and then you met with lobbying groups and pressure groups? Or was it really, "These are the four things that I want to do, so this is what I am going to do"?

Charlie Elphicke: These are the four things I wanted to do.

Q101 Chair: All right. Thomas, how does it work for you when you make a decision on how-

Thomas Docherty: It might be a surprise to colleagues on the Committee, but I am something of a nerd about parliamentary procedure, and I had a conversation with someone in the Whips Office about this process, and I think it was their suggestion originally that it is a great opportunity for the Opposition, because the Opposition is not allowed to table its own bills-which I think is ridiculous-to take some of the ideas that the front bench has kicked around and try to explore what they might look like as bills. We kicked it around over 36 hours to say, "What might we do on the MoD team?" There were some issues I was absolutely passionate about, lobbyists being one and some of my Select Committee stuff as well, and we took them as long titles. What I found, Mr Chairman, to be particularly interesting is-for example, I met this morning with ATOC, the Association of Train Operating Companies-to take the idea of that long title about minimum fares and say, "Well, what could it look like if the Department for Transport tried to legislate?" It is an academic exercise in trying to understand what you could do, using the law.

Q102 Chair: Ben, I know you only had one, but-

Ben Gummer: I had a Ten-minute rule bill as well, which then became policy, so I have experience of doing something that was then adopted by the Government. You are right, it is part of a suite of things that you deploy-media campaign, getting lobbyists on board, in this case think-tank lobbyists, I will put it that way. That then creates a momentum that, hopefully, if it is helpful and agreeable for Government, they might take up.

Q103 Chair: Can I ask you what your ten-minute rule bill was about?

Ben Gummer: I did a ten-minute rule bill on tax statements, for which it is perfectly suited because it is a simple idea that can be compressed into a short speech, and it was opposed, which is, I suppose, unusual.

The Private Member’s bill was far more complex and was a proper piece of legislation, and there was not the time for it, which I expected, and it had some of the same effect. It generated some media coverage, and I was able to drum that up, but no, it did not really result in a parliamentary debate, just because of the exigencies of parliamentary time.

Q104 Sir Roger Gale: 1983, as Sir Peter Tapsell might have said, was a very hot summer. The reason I know that is because the straw and stubble was burnt after the harvest, and it filled the town of Margate with ash, as a result of which I introduced a Straw and Stubble Burning (Control and Licensing) Bill, which went precisely nowhere, immediately. But I think I am right in saying that it was Mr Gummer’s father who enacted it as a Government measure seven years later. The only purpose of mentioning that, other than to put John Gummer’s name on the slate, is to say that it does seem to me that, from what you have described, the process is actually working. None of you appear to feel that this is a direct route to legislation, and I suspect you are hinting that neither should it be. So do we need to change it at all? Or is it the process of pressure that ultimately somebody will respond to if it is a good idea, even if it is on the "not thought of here" basis?

Thomas Docherty: I am always loth to find myself being the glass half empty to Sir Roger’s half-full. I think it is working in part, Sir Roger, and that is partly because of the courtesies that Ministers are showing. I cannot speak for colleagues here, but I think it is frightfully frustrating, looking at no individual in particular, that it is quite possible that these issues will not get an airing either on this Friday or, in my other case, 1 February. As Charlie said, I think there was less than 30 minutes. It would have been better having an Adjournment debate to air the issue on the Floor of the House, and then you have seven minutes. I think the procedural tactics that can be deployed-I don’t know if colleagues want to talk to me afterwards about this coming Friday-mean that we are not moving those issues forward properly, and I think we need to change the system to at least do more to give some of these bills an airing on the Floor of the House. Sir Roger, did you get an airing back in 1983?

Q105 Sir Roger Gale: Sort of. Not for very long, and it was a ticking time bomb, but the time bomb did go bang eventually. What I am trying to tease out of you is whether you think the purpose of the Private Member’s Bill is ultimately to persuade Government to legislate, which is a way of getting stuff on the Statute Book, other than via Government hand-out, which is not what we are talking about.

I think you, Ben, mentioned the suite of measures, and is it not just part of that suite of measures? Are we seriously saying that we should create a vehicle to get something on to the Statute Book? That is what I am trying to drive at.

Charlie Elphicke: Can I take that? I think all three of us, in our discussions over a very long night in the Public Bill Office, found it is a game of two halves. There is as it is now, and there is as it could be. As it is now, it is a tool to prompt a dialogue. We are all, in a way, part of a dialogue of the running of the nation, the laws of the nation, and you use a Private Member’s Bill broadly not to get into law, but as a tool to either get Government to make a decision-in my case, Port of Dover-or to start a debate about what a future manifesto or future law might be-Human Rights Act, in my case-such as the stubble burning reform, which eventually was legislated on, presumably after you prompted the discussion, and it takes some years and eventually pops out as a Government measure.

Then there is the other side, which is the legislative process as it could be, and Parliament has a choice. Either it can just be broadly a stool pigeon of the Government, wait for Government to present bills and process them like a sausage machine and spit them out the other end, and there you have a law of the country, and effectively only the Government can promulgate a bill, like a nineteenth-century German Landrat, which is the procedures of that legislature, or we give Parliament itself and Members of Parliament an opportunity to have a real debate and make real laws. That is about the structure of the Friday sittings itself, rather than the structure of tabling bills.

Thomas Docherty: Can I come in? I have been able to persuade those Ministers that I will not press for Divisions on certain of those bills in return for getting something, because they are working to the assumption that those bills are going to get some airtime on the two Fridays. It is not helpful to parliamentary debate for colleagues to kill debate by talking something out ahead of it just because they object to the bill itself. I know there are some colleagues in my party who enjoy pressing things through Division just to show how unreasonable the Government can be. I would much rather have a 30-minute to 45-minute debate where I speak for 15 minutes; the Opposition Front-Bench speaker speaks for 15 minutes and the Minister speaks for 15 minutes, and we then say, "That is a good debate. Let’s move on".

Ben Gummer: I think, Sir Roger, the inquiry that you are making is much more important than as a procedural matter over Private Members’ bills. You are rediscovering the nature of Parliament and what we are supposed to be doing here, and the decisions that you make here could influence the estimation of Parliament in our constituents’ minds, which, at the moment, could not be much lower. I am not saying that is going to be solved by allowing Backbenchers to bring forward legislation. The life of this place is pretty limited beyond the big set-piece debates that we have, Government versus Opposition, the circus: that opportunity where we can come together and debate issues, not necessarily along party lines; to bring forward ideas that might not be in a Government agenda; to be able to explore ideas. Some of the big legislative moments in Parliament’s history, whether on abortion or slavery or a whole series of other things, originated in Private Members’ bills. If we could have more of that, I think that would be beneficial, not just for democracy but also for Parliament, and I completely agree that we should not leave it to Government or come to a default position where only Government is legislating on virtually everything.

Q106 Chair: I am going to call Tom. We had Phil Davies, the excellent Member for Shipley, for whom I have the highest regard. Can I just read into the record a statement he made before Christmas and allow that to form part of your thinking in the debate that is going to go on for the next 20 minutes? "The only time I ever find popularity with the Whips Office is on a Friday, when we find a common purpose. If they want a Bill talked out and think that I might share that particular view, they are happy for me to do that. I do not want to speak for Chris"-Christopher Chope was sitting alongside him-"but I am sure that we have both had occasion when, in effect, we have felt-even if we have not been instructed-that the Government was happy to let us talk the Bill out. We would then get all the brickbats that go with that, but they were happy that we were doing it because they did not want to get their hands dirty."

Ben Gummer: If I may make a rejoinder to that, because Philip was the reason why I had seven minutes in my bill, because he was objecting to a series of provisions in the Scrap Metal Dealers bill that came before me, which is understandable. But there has to be a balance, surely, at some point, between the ability of Members across Parliament to be able to offer their views and generate a debate on issues, and three or four Members consistently deciding, from an ideological position, that they wish to restrict debate by default in the office. I also agree that he does a great service to Parliament in many ways but on that day he was not at the Whip’s bidding and I am not sure we have that balance right. I too do not want to see unnecessary legislation, but much of the stuff that we were proposing was not about-

Chair: What you wanted was a chance at a hearing.

Ben Gummer: Yes.

Q107 Tom Greatrex: On the point that at least two of you made about this being a useful way to be able to get the attention of Ministers and, therefore, hopefully then to achieve some of the aims, rather than necessarily to get a piece of legislation on to the Statute Book, presumably the issues around people talking at great length about other bills do not really matter too much because you have already had that engagement with Ministers before you get to that point, have you not?

Charlie Elphicke: I could not disagree with that more. There is what I call in my own mind the courtesy of a vote. If we have gone to the effort to table a bill, colleagues should enable us to have the courtesy of the determination of the House of Commons in a Division as to whether they approve that or disprove that at Second Reading. My ideal way of working Fridays would be to have a set-time-limited debate for each bill-say an hour or two hours; however long it is-but it should be able to be brought to a vote. Otherwise you end up with this, dare I say it, slightly unholy conspiracy between the Whips Office and the Friday club on both sides of the House of Commons, who work together to basically make sure that no Backbencher has any ability to carry through any law for a determination of the House as to whether it is a good measure or not. I think that is discourteous to Members who take the time and make the effort to bring a bill to the House. If they disagree with it, fine; vote against it. But to talk it out is discourteous, and it should be programmed so that we at least have the chance to progress legislation.

Q108 Chair: Tom, if I could just say as an aside, it is interesting on occasion or rewarding to have votes on ten-minute rule bills, is it not?

Thomas Docherty: As you know, Chairman, I defeated Richard Bacon’s ten-minute rule bill on the repeal of the Human Rights Act, and I will be there on 1 March to follow it up. It was partly because of this Committee because we had had a discussion about Ten-minute rule bills simply getting nodded through so that Greg Hands or another Whip will simply shout "Object" at 2.30pm and kill it. I think it was better to have two 10-minute debates to air some of the issues before the House, and with the greatest respect, having a one-to-one private meeting with a Minister is a war zone, but the greater public good I think is served by getting the Minister to put on the record the Government’s thinking about an issue. That is why I think airing the debate is so important. I certainly do not speak for Charlie. For me, pressing a division for the sake of getting beaten is not my goal. Ideally, if I had got one of the bills into Committee and had a really good airing of the issue line-by-line, that would have been fantastic, but I look round the room and I suspect my fate on Friday could well be in the hands of colleagues on Friday.

Chair: David Nuttall is looking very severe at the moment. Tom, sorry, I interrupted.

Q109 Tom Greatrex: To follow on from that, I think you said it, Mr Elphicke, I will ask the other two. Will you agree then that there should be timetabling of Private Members’ bills to ensure that you do get the opportunity to have more than seven minutes and, if you so wish, to push it to the vote at the end?

Thomas Docherty: Yes, unless you believe that the Government should be the sole maker of legislation in this country.

Tom Greatrex: Do you share that view?

Ben Gummer: Yes. I think we would be missing a trick to do some really exciting things in Parliament. I supported the idea of bringing Fridays forward to Wednesday evenings so that you have more Members here, having really lively timetabled debates. We could all be here, have dinner and recreate some of the atmosphere that I know many other Members feel has been lost, and some of the parliamentary debate about issues that are not necessarily in a manifesto. It would be rather exciting and we would have a bit more life. At the moment it is not. It is exactly as Charlie says. It has become a rather unholy alliance. Controlling Fridays is not really to do with Backbenchers or ideas that are not coming from Her Majesty’s Government, which I am not sure is entirely healthy.

Chair: Jacob is going to ask a question. One of our previous witnesses said, "Not every happy thought that a Backbencher has should end up in law", but Jacob will touch on that. It might have even been Jacob who said it. I am not sure.

Q110 Jacob Rees-Mogg: I do not know, but it is a thought I would sympathise with. I want to come back, Charles, to what you are saying on Parliament and legislation, because it seems to me that we are not the US House of Representatives, and that because of the way our Government is based within Parliament, it is always the case that bills will not get through unless they have at least the acquiescence of the Government. I want, Ben, to come back to what you were saying about the Scrap Metal Dealers bill, which was essentially a Government bill, and it was pretty outrageous that they put through a complex Home Office bill as a Private Members’ bill. It was a detailed, many-claused bill. That was an issue that the Government ought to have been dealing with, and that Philip Davies got a compromise out of Government on, which is why you got your seven minutes in the end. I think the Government was shamed into that because it was recognised that it was a Government bill rather than a Private Member’s Bill.

Though there is this lovely idea that there was a golden age of Parliament, when all the legislation came by individual Members for address of grievance, I do not think that is true, and that the only way to make Private Members’ bills work is the way Thomas is suggesting. That is where you play the game, and you say, "I will not call for Division on this because I know this is against Government policy. I know, therefore, it will either be talked out or killed in committee or got rid of one way or the other, and that if I want to have half an hour or an hour or an hour and a half’s debate on it, I need to say, ‘I am not going to put it to a Division’". Then there is no need for anybody to talk it out, and it is up to private Members to decide individually what their bill is about. Is it about getting the issue discussed, getting it to the head of the queue for manifesto creation and so on and so forth? Or are they going to dig their heels in and feel that by getting the publicity that filibustering gets them, as with daylight saving, they will play a bigger game and a better game by seeing their bill destroyed by the processes of the House and that helps people by promoting a cause?

I just wonder if we are being unrealistic in thinking that we can have legislation that Governments do not like, and that that just is not going to happen, and that, therefore, any system that we come to has to look at that other aim of getting a discussion of issues without turning it automatically into legislation.

Thomas Docherty: First of all, let me say, whenever I hear Mr Rees-Mogg speaking in the Chamber, I believe I am living through a golden age.

On the broader point, back to the idea of not every thought deserves to become law. Let me say, by the way, I think Kate Emms and Simon Patrick-I don’t know what you guys think-have been absolutely superb. They have taken some of those thoughts, not just of mine but of other colleagues, and turned them into something that is structured. We had to go and do the work with our researchers, but they are able to take some pretty obscure ideas and make them at least look like they are half-decent: that ability to test an idea.

Let me give you one of the examples. One of the bills that I have is about how you would get a train company to have to offer the passenger the cheapest available fare. It sounds reasonably straightforward, but having met with the Association of Train Operating Companies and the DfT and our front bench, it is quite difficult. The regulations around fares and franchise structures are 1,000 pages. What we have now come up with is that we will, in effect, create a code of conduct that the train operating companies have to abide by. What you would do is pass the code of conduct under delegated legislation. The regulator has to enforce it, and there will be fines if the train operating company does not do that. If Kate Emms and Simon Patrick had not spent half a day trying to work through that, we could not have taken that idea, Mr Rees-Mogg, and made it into something that was workable. That bit of the process is what is so good about it. But I keep coming back to it: it would be criminally unfortunate if we did not give those issues an actual airing, I think that is what we are all in agreement on.

Charlie Elphicke: I will just pick up on that. I accept that we are not the US House of Representatives, and I think we all accept the Government has strong, even overweening, power on Parliament. You have to forgive me; I am just an old-fashioned Tory and I do not inherently trust Government. I do not inherently trust bureaucracy, as a machine and as a concept. I think there is a lot to be said for the citizen legislator raising concerns of their constituents to put forward changes to the law that could be made, and for the House of Commons, which is there to represent the people as a whole, to be able to have a vote and a determination on the laws of the land. I think that that would be an inherently healthy development for the status of Parliament and the strength of Parliament as against the machine.

Let’s face it, Government has so many tools. Those of us who sat through the Daylight Saving bill remember. How long was the Queen’s money resolution not signified for? It went on and on and on as a way just to kill a bill and defer it. That is a mechanism. Then you have party leaderships of all major parties, through their Whips Office, who then engage their respective Friday clubs to talk out all legislation. In this way, the Government machine or indeed the Opposition machine, is able to kill bills through people who regard themselves as terribly independent-minded from Government, but in reality are doing the bidding of their party leaderships. They would violently disagree with that grenade that I have just haplessly dropped but there is an element of the way it works. What I am saying is, if we have timetabling, you can bring it to a vote. I like Ben’s idea of a Wednesday evening sitting so everyone can be here, everyone can have a say and everyone can vote on it. What we would have to do and the only way it could realistically work, is if there was an understanding that there were still bills that were under free vote and not a whipped vote.

Q111 Chair: Jacob, could I just ask one quick question on a point of clarification?

Jacob Rees-Mogg: Yes.

Chair: Jacob makes a very good point. At the end of the day, Government runs the Chamber, and if Government does not want your bill, Charlie, to go through, it will kill it. You would be more than happy to accept that if Government wants to kill your bill, that is absolutely fine. It just has to get its Backbenchers there, allow it to go to a vote, and whip it.

Charlie Elphicke: As I was saying, if you bring in timetabling, you will have to maintain the understanding that these are still free votes. The understanding of the Friday sittings is that they are not whipped votes, except for the informal payroll vote. It would be a pointless exercise to timetable if the response of party leaderships was to then whip their respective parties for or against a particular vote. That is a real risk, if you went down a timetabling route, that the response might be to then have whipped votes of what really is Backbench Business. That would be unfortunate.

Q112 Jacob Rees-Mogg: There is always a risk; it is an inevitability. That was my next question.

Chair: Sorry, Jacob. I do apologise.

Jacob Rees-Mogg: No. My next question was exactly that point, that if you have it on a Wednesday evening, there will be whipped votes either then or deferred votes that will do exactly the same thing. Yes, you will get your airing, but the Government is not going to allow a whole string of Opposition backbench bills to pass on Wednesdays, even on the basis of ten-minute rule bills. It will get the payroll to vote them down, whereas obviously in ten-minute rule bills, the payroll does not vote.

I think there is a charming romanticism in what you are proposing that would not in fact change things. The difficulty with Private Members’ bills is that we are pretending that there is this opportunity for Backbenchers to change the law, which exists only in a very narrow field, that you can change very minor laws or you can change the law according to a hand-out from the Government. What you cannot do is change the law in a significant way in opposition to the Government. If that is what you are trying to do, the most you can hope to do is begin a debate. I think Thomas had a very good point on this. It may very well have been a better means of getting a debate going by having the detail of a bill to explain how it could be done, than simply to have a Backbench Business debate. I think that is true and important. But these bills are going to be killed one way or another, and it is merely a question of how. Is it going to be done by David and me talking for a couple of hours? I quite like supporting the Government sometimes. Or it is going to be done by whipping people to vote them down on Wednesday evenings, which will be very, very unpopular with a lot of other Members of Parliament who quite like the idea that we finish after 7.00pm on Wednesdays and do not want to have to come back at 10.00pm to vote down the Motherhood and Apple Pie Section 2 Bill.

Q113 Chair: Can I ask Ben? Ben has always been at the tail-end of the session, so you can kick off now, Ben.

Ben Gummer: I agree, Mr Rees-Mogg, as I have with almost everything you say, and there is no point looking back to a golden age, and we are different. The Crown legislates in Parliament. But we have to also see how Parliament changes, and it has changed considerably over the last 20 years. The effect of timetabling and guillotining has changed extraordinarily the powers of Backbenchers and the nature in which Parliament decides business. The mood has changed and the practicalities have changed.

Not only that, there are plenty of people who have brilliant ideas on both sides of the House, who now prosecute them through pamphlets, groups, whether they be The Forty, the Conservative 301 or the Free Enterprise Group or whatever, and then put pressure on Ministers. It would seem to me that is not a bad thing, but we have a Chamber here; why can’t we bring more of those ideas in front of the full House and have them debated and then have them killed? I suspect you are right. It doesn’t matter, in the end when it happens. The Government will vote down many of these measures but at least there will be some time to debate them. In the end I suspect the increasingly independent Backbench corps will find the pressure not to vote down every single measure that is brought before Parliament on a Wednesday to be quite significant. There would be a process of negotiation.

We also miss out on those opportunities where there is a cross-party consensus. I am working on something at the moment with Frank Field on early intervention. It would be absolutely ideal to bring it before the House in a Private Member’s bill. It would be of great interest to both the Government and the Opposition. It would be a genuine parliamentary effort. At the moment, would you do it? No, because it would be a waste of time. The likelihood of having any time to explore it on Floor of the House would be very limited.

Thomas Docherty: At the start of this Parliament, a number of colleagues got in quite a tizzy about Backbench business. It was time that Natascha’s Committee had allocated for motions. We had some very lively and robust discussions on one that Mr Nuttall brought, I remember. I think the two Whips Offices were very, very clear that just because it was Backbench Business time, it did not mean that the Government and Opposition were not entitled to have views on it. Where I disagree with Charlie is just because this is, in effect, Backbench legislative time, the Government and Opposition are perfectly entitled to take a view on it.

On the issue of payrolls being put in or out of ten-minute rule bills, certainly I think, without giving away any of our state secrets, Mr Greatrex and me, the Shadow Cabinet takes it on an issue-by-issue basis. The Human Rights Act, the one that Richard Bacon wants to do, Ed Miliband and Sadiq Khan are very clear we support that Act. If you look at who voted with me, there was a huge number of frontbenchers. If the Government chooses not to put this payroll in, either on Backbench Business time or ten-minute rule bill time, that is a matter for a parliamentary secretary. That should not be our starting point.

The final thing I would want to say is that it is unfortunate we do not get more things into Committee. If we were able to not just have a 30-minute to an-hour-and-a-half discussion, if we can get those things into a line-by-line discussion, the Government does not ever have to let it back out again, but we really could get some good discussions going, and that I think would be a step forward.

Chair: Charlie, have a brief go at that, and then I will bring David in.

Charlie Elphicke: Just very briefly, my personal preference would be to keep the Friday sittings and have timetabling, and at least allow a vote to be taken. I think the current situation is a farce beyond the prompting of dialogue that we all use it for.

Q114 Mr Nuttall: On the question of time, mention has been made of timetabling. To each of you, leaving aside the amount of time a bill is in Committee, could you give the Committee an idea as to how long you think, it ought to spend being considered on the Floor of the House? That is Second Reading, Report and Third Reading: the approximate number of hours you think would be fair. Perhaps Ben first.

Ben Gummer: I am thinking on the hoof. With Westminster Hall debates, there is a process for deciding the length of time you feel the debate is appropriate for, and you could have a similar situation here. There would be some very complex bills put forward by people, which might merit an hour or an hour and a half. There might be some that are very simple one-line amendments for which arguments could be put pretty quickly in half an hour. That might be one solution. So long as there was a period of time where people felt that you could put the proposition, it could be opposed decently, there could be a debate around the main issues, and then, if necessary, a Division could be brought. That feels like an hour.

Q115 Chair: Ben, who would decide? Who would decide on how much time each bill got? Would it be the Backbench Business Committee?

Ben Gummer: Why not the Backbench Business Committee? It could be. It works rather well at the moment.

Q116 Mr Nuttall: So, you would expect them to look at the bill and think, "This looks like a one-hour bill or a three-hour bill"?

Ben Gummer: You could make an application. I could put in an application to say, "I wish to have a debate of this period of time because I think it merits it". They could disagree with that and say, "We think it should be smaller or longer". I have to say I have not thought this through in great detail, but I do not see why process wouldn’t necessarily work.

Q117 Mr Nuttall: Would the same apply on Third Reading? I am just pointing out that it starts to get very complicated.

Ben Gummer: Absolutely.

Q118 Mr Nuttall: Even at that basis, would you agree that it might be a minimum of three hours per bill?

Ben Gummer: Yes. If it gets through to Third Reading, clearly you would have to have more time afforded to it. Anyway, there would be fewer bills by that stage, many fewer.

Q119 Mr Nuttall: Well, if they had been killed off. Charlie and Thomas?

Charlie Elphicke: Yes, I would say two hours for Second Reading; two hours for Report and Third Reading. The reason is that in my experience-and it may just be me-after two hours’ debate in the House of Commons, novel points tend to be raised with increasing rarity. I think broadly that two hours is enough to give an issue a good airing and allow people enough information to take a view.

Q120 Mr Nuttall: So two hours. If we included in that time the promoter, who would have first crack and would have to explain the bill, the Shadow Minister, and the Minister, that does not leave much time for Backbench Members on both sides of the House, bearing in mind the number of parties, to contribute.

Charlie Elphicke: We already have a procedure for that. An introducer of a Backbench debate has an understanding of no more than 20 minutes. You could say to the frontbenchers on either side that they could do it on a winding-up basis, so 10 minutes each, and then have a classic time limiting for anyone else who wants to speak in between. That is already catered for. Indeed if you look at the Opposition day debates, they only seem to last a couple of hours; three hours at the most. They split their days to maximise the amount of coverage they can do.

Thomas Docherty: I happen to have one of my bills here, Mr Chairman. It is my bill for 1 February. The long title was, "To provide that certain offences committed towards members of the Armed Forces shall be treated as aggravated; and for connected purposes". It is a one-clause bill. It simply amends section 146 of the 2003 Criminal Justice Act to put assaults, verbal or physical, against armed forces personnel on to the same footing as people with disabilities and attacks based on homophobia. It is a one-clause bill. It does not take that long to discuss. Obviously I am smiling because I know the Leader of the House is taking a very close interest in this. I am sure the House Business Committee will be forthcoming, and that might be the solution. We do programming all the time. Every bill has a programme motion attached to it. These are one and two-clause bills at most. It does not need that long. If you kept the Fridays, you could say, "It shall last no more than two to two-and-a-half hours", and you could get through two bills. Alternatively, if this Committee is so minded, we could do it on a Tuesday, Wednesday or Thursday night and do up to-the key phrase here is "up to"-three hours.

Q121 Mr Nuttall: First of all can I just put on the record that I think the length of the bill bears no relationship to the amount of time that might be required? I just throw in, for example, you could have a one-line bill that said something along the lines of, "This House repeals the 1972 European Communities Act". Are you suggesting that that bill could be debated within an hour? I think it rather might take some time to debate that. Let me just put this on the record. Taking into account today’s ten-minute rule bill, there are now 60 bills in the queue. There are 65 hours across the year for Private Members’ business on the 13 Fridays. We already have 60 bills in the queue, and let’s not forget that several bills have already passed from the Commons to the Lords, and indeed some have already become law. You can do the maths. There is no way, however you divide this cake up. However tight you make it, there will always be a long tail of bills that get no more than the 10 minutes on the Floor of the House.

Ben Gummer: I do not think anybody is proposing a counsel of perfection, Mr Nuttall. It is merely trying to improve a system that is not working terribly well for most Members of Parliament at the moment. It is not out of a sense of bitterness. People are bringing sensible measures; some of them are completely crackers. But everyone is an elected Member of Parliament, and in the end it is a discourtesy and a disservice to our constituents. Part of our role is to introduce and vote on private Members’ business. It has been for centuries. At the moment, that is largely being denied to most Members. I agree with you, it is going to be very difficult to do it, but there are surely improvements that could be made.

Q122 Mr Nuttall: Lots of bills have already gone through in this Session.

Ben Gummer: Some of them are hand-out bills, a road that I disagree with because I think it defeats the point. If you put your name on a ballot and you have no idea why you are doing it, I do not really understand why we are persisting with that. Many people put their names in the ballot, expecting, if they do win, to be given a bill that they are going to promote. It seems to defeat the point of Private Members’ bills. But I don’t want to get myself in any more trouble.

Mr Nuttall: I thought we had not gone down that road.

Ben Gummer: I know you haven’t.

Q123 Sir Roger Gale: I would like to start to grope towards an idea that comes really from what all three of you have been saying. One of the problems that we all face is that public expectation is raised by Private Members’ bills in the fond belief that this is a way of changing the law and making something happen. I am not saying it is never the case, but by and large it does not. If you take a case in point, Tom’s circus animals Bill is on the Order Paper for Friday in the fourth position. He might choose to withdraw two of his bills in front of it, because he happens to have three, and clear his base for it. Do you have four now?

Thomas Docherty: Five.

Q124 Sir Roger Gale: Five. I am underselling. Even if he does that, I had a call from the BVA, of which I am a member, saying, will I support this. In principle, I am in support of it, but the fact of the matter is there is not a snowball in hell’s chance of that particular measure becoming law, as it stands. That is really a cruel deceit on our part, on the public. I am not blaming Tom for it. It is the fact of the situation.

I come back to the golden age, which probably did not exist, but I think it is a fact that prior to heavy whipping, the creation of the Whips Office in the back end of the 1800s, by and large, legislation, other than armed forces, foreign policy and macro-taxation, was all private Members’ stuff, and you had to create a coalition of Members in order to get anything through the House. That is how it was done. To some extent we have got back to a situation with the Backbench Business Committee, where up to a point some of that is being reintroduced. We have now got to a situation where, by and large, Backbench debates, which are auditioned for, are not generally voted on. They can be, but generally speaking, motions are not voted upon.

Let me put a thesis to you. Given everything that you have all said, and I will pick up something that Tom said particularly, supposing we limit the number of private bills to the amount of time available to be allocated by audition by the Backbench Business Committee. So effectively they are sieved by peers-personal peers, not House of Peers; peer pressure-and that Committee decides which ones will go forward, depending on how much support they have, how many Members have put in to say, "Yes, we would like this to run".

If you went down that road, you then come to Tom’s buffer, which is that far too few pieces of legislation of this kind get into Committee. Government likes to kill things early on if it does not like them, but there is reason why any bill should not go into committee. Government takes private bills on occasion and amends them out of all recognition. "Certainly, if you want to get this through, son, you have to do what we say, but yes, we can see there is a germ of something here and we will do it; or we kill it." But isn’t the object of the exercise to get material into committee where it can be debated properly line by line and then reported back to the House? If you had a situation where first of all it was filtered, then the presumption would be that it would go into Committee; that you would not kill it on Second Reading. Might you not then give the public a rather fairer chance of thinking that something could happen?

Thomas Docherty: The problem, first of all, about the Backbench Business Committee being the vetting body is that the Government has an inbuilt majority. Secondly, I am not sure, looking at perhaps the past membership of the Backbench Business Committee, you would necessarily have the most productive discussions going forward to the Floor of the House.

There was a vetting process. The three of us were prepared. Ben arrived- at 1.00pm, was it, Ben, the previous day?-and had given the commitment to do 21-plus hours in order to get one of those slots. To me it is a bit like the Harrods sale. For the benefit of Mr Rees-Mogg, Harrods is a popular grocery store for the aspiring middle classes. There is a finite product available. There is a finite amount of time and you have to get in early. This is criticising colleagues. I am surprised you have not asked us about: is it right that I can turn up and have 10, or that Charlie can have four. That is where the abuse of the system can come in. I think in the last session, Mr Chairman, Mr Chope had almost every single Friday because he got in really early and took them all, and that is slightly undemocratic. In theory, had I beaten these two gentlemen there and was not a bit more grown up, I could have got here at 12 o’clock when these guys arrived, said, "That’s tough, I’m taking all six Fridays because I have got here first", which would have been ridiculous and undemocratic. That is the kind of flaw we should be addressing.

Chair: Does anybody else want to respond before we move to Jacob?

Charlie Elphicke: Yes. What Thomas has not said is that when he first turned up in the Bill Office and I was there, he said, "How many bills do you have?" Ben and I had agreed that anyone else who turned up, we would try to scare them away. I said, "I have 20 bills", and he looked at us very long. Then Ben walked in and Tom said to him, "Elphicke has 20 bills", and Ben said, "Charlie, it’s all right. We like Tom".

Q125 Chair: How many of you were there? How many people stayed overnight? Was it just the three of you, when you queued?

Ben Gummer: Yes. Hancock was there for a bit, and then Caroline Lucas came and did not want to sleep over.

Charlie Elphicke: She was very sniffy about the whole thing.

Q126 Chair: Really you were, for that period of 18 hours, the three most boring men in Britain, possibly.

Ben Gummer: No, because we could bring beer up. It was good fun.

Charlie Elphicke: And we reached an accommodation.

Q127 Sir Roger Gale: I am sorry, but there is a possibility here that we might find a way forward.

Ben Gummer: Sir Roger, I completely agree with your proposal. On first reading, it is an elegant way forward. I agree also with the position that you come from, which is that all of us take a few months or years to understand what is going on in this place. And of course not everyone is going to be interested in the minute procedure of the House of Commons. But you are right that there is a deceit that is committed on the public, that they imagine that because legislation is being proposed and put before the House, first it is going to be argued, and second there might be a Division on it, which is not so. This place is not correctly mapping across to what we are trying to say to the public we are doing.

Sir Roger Gale: That is right.

Q128 Chair: I would agree with that, and we promote that deceit through early-day motions, for example. "Ben Gummer has tabled a Commons motion on X," which is broadcast all over eastern radio." I am sure it did not, in your case, but you get the drift.

Ben Gummer: I don’t sign them, for that reason.

Q129 Jacob Rees-Mogg: On the mechanics of a closure, if three hours would be allowed, you could have a situation on a Friday where a bill went through by 18 votes to 17. I wondered whether you think it might be better to have, after three hours or whatever the time is, an automatic closure vote in which, if 100 people voted, then the Second Reading would be taken automatically, so that you had some ability to ensure that there was genuine support for the bill without changing the basic rule that if you have 35 people vote in a Division, that the Division stands. Or would you like to see after three hours an automatic Second Reading vote. I quite like having a requirement that there is a reasonable number of people there.

Thomas Docherty: I take your point about minimum turnout but you should not need a closure motion to get the vote. If the Government does not like your bill, the Government needs to find one more person. I take your point about a minimum threshold of 30 to 35. But after that-

Q130 Jacob Rees-Mogg: 35. It is in Standing Orders.

Thomas Docherty: Yes, but we could change the minimum. Leaving that aside, the Government just needs to get one more person than you to defeat on a simple majority. The idea of having to get 100 in order to then get your vote is wasting 15 minutes’ time and two sheets of paper.

Q131 Jacob Rees-Mogg: It would be unlikely the second vote would pushed to a Division, I would have thought, if you got the 100.

Thomas Docherty: I think that is a bit archaic to keep that. We already have a programme motion so you have already agreed after up to three hours there would be a motion. As we would have on Monday, the Government did not have to win by a certain majority. It just had to win a straight vote on Second Reading.

Q132 Jacob Rees-Mogg: Yes. On Opposition days, to get the vote, you have a closure, even though the closure is never in fact voted on. Therefore, if it was more contentious, you would have the ability for people to ensure that there were at least 100 there, and they would not need to use it if it was a relatively uncontentious Second Reading.

Thomas Docherty: I think it is archaic.

Jacob Rees-Mogg: Not all archaic things are bad.

Thomas Docherty: Indeed.

Charlie Elphicke: I think it comes down to a question of quoracy, and where you set the quorum level.

Jacob Rees-Mogg: The quorum is 35 in any division; 40 plus the tellers and Speaker.

Charlie Elphicke: If you are going to have timetabling, you might want to then look more closely at the quorum and say, "What should the real quorum be? Should it be 40? Should it be 50?" and pick a number.

One point I would like to come back on is Sir Roger’s point, which is an important question. I thought of another way of skinning the cat in terms of what you do practically speaking. With the Ten-minute rule bill you could say it is not a First Reading, because all it is is a vote on whether you have leave to bring the bill in. It is a First Reading vote. You could accelerate it and say, "Treat First reading as done. It is a real vote on Second Reading, and it can then go from a ten-minute rule bill vote in the Floor of the House straight to Committee". I think there is a lot to be said for that, because a lot of it is about having the chance for an airing in Committee, and it is deeply frustrating to colleagues that you do not get to committee and do not get the airing. It is the airing that is perhaps the most important stage.

Chair: David Nuttall will want to pursue that thought further, will you not, David?

Q133 Mr Nuttall: Yes. The problem with that is that only a handful of people who were chosen, presumably handpicked by the promoter, would get the opportunity to be able to debate the bill in Committee if you have effectively bypassed the Second Reading, which obviously would be against all the historical-

Thomas Docherty: Of course it would be easier for a private Member to get a bill in than it is for the Government. If the Government cannot get a bill in in 20 years, then private Members clearly should not be allowed to. That would clearly be-

Mr Nuttall: Bizarre.

Ben Gummer: I do not accept the premise that you keep the current bill-picking system. I think you change that.

Mr Nuttall: All right. That is quite a bit wider than our remit.

Chair: On that happy note, should we release these three wonderful gentlemen? Well, two, because you are going to come back, Thomas, I hope. Can I thank you for coming in? It has been fascinating discussion. You have been very candid in your responses, and undoubtedly you have advanced the thinking of the Committee. Thank you very much.


[1] Witness correction: insert “on” to read “on all sides...”.

Prepared 11th March 2013