House of Commons - Matters for the Procedure Committee in the 2015 Parliament

Matters for the Procedure Committee in the 2015 Parliament - Procedure Contents

Matters for the Procedure Committee in the 2015 Parliament

Introduction

1. This is the thirty-first report which we have produced in this Parliament. Our reports have ranged widely across the practice and procedure of the House: from Ministerial statements to the procedure for indicating Queen's and Prince of Wales's consent to proposed legislation; from the e-tabling of written questions to the appointment of lay members of the Committee on Standards. We have also pursued matters through correspondence, without reporting to the House: in 2011, for example, we considered Ministerial correspondence on the procedural implications of moving to spring to spring Parliamentary sessions;[1] more recently, we have offered the Speaker the advice which he sought from us on the House's expectations concerning the release of Ministerial statements.[2] Wherever possible, we have sought to maintain transparency by publishing such correspondence on our website. We have also held public oral evidence sessions on matters which have not resulted in a report: on the membership of public bill committees and the Committee of Selection in June 2013,[3] for example, or in April 2014 on delegated legislation.[4] Our inquiries have been a balance between matters referred to us—whether by the House, by the Speaker or by individual Members—and matters which we, as the group of Members charged by the House with considering the practice and procedure of the House in the conduct of public business, have considered to be worthy of detailed consideration.

2. Our reports have resulted in considerable procedural change in this Parliament. Perhaps the most obvious example is the reform of sitting hours which took place in 2012 following our report Sitting hours and the Parliamentary calendar.[5] Also very significant, though yet to take effect, are the recommendations of our report on e-petitions, agreed by the House on 24 February this year, which have the potential to bring about a significant enhancement of the relationship between the petitioning public and their elected representatives.[6] We look forward to seeing the results of that change in the new Parliament. Other reforms have been less high-profile, but have nonetheless made an important contribution to enabling the House and its Members to fulfil their role effectively. On 13 October 2011 the House agreed to our proposals for the use of hand-held electronic devices in the Chamber and committees. Early in this Parliament we responded to a request by the House to consider the means by which lay members might be enabled to participate in the proceedings of the Committee on Standards: the standing order changes which were implemented as result were largely based on our recommendations.[7] The House has also agreed to our recommendations on the ability to table explanatory statements to amendments to bills[8]—which has greatly improved the accessibility of proceedings on legislation—and on written statements by Members answering for statutory bodies.[9] More recently, the House has agreed to changes to the way business in Westminster Hall is conducted and organised, to take effect from the start of the next Parliament.[10] Finally, we have reported on a wide-ranging review of the standing orders relating to public business conducted by the Clerk of the House, and have brought forward a package of revisions to the standing orders which we hope the House will agree should be implemented from the start of the next Parliament.[11]

3. Our intention in bringing forward this report is to inform the House, and especially our successors in the new Parliament, of those matters which we have considered but not brought to a conclusion in this Parliament. First we consider the ongoing work of monitoring written Parliamentary questions, fulfilling the responsibility which we set ourselves of reporting regularly on the work which we do in this area, which we hope our successors will continue in the new Parliament. We then draw attention to three subjects—private Members' bills, motions "That the House sit in private" and European scrutiny—on which we have done significant work but where further work with the Government is necessary before proposals can be brought to the House. Finally, we invite our successors to continue work which we have not been able to conclude in four areas—programming of legislation, elections to positions in the House, the sub judice rule, and notification of the arrest of Members. In one of these cases, programming, a further decision of the House will be necessary before the end of this Parliament in order to enable our successors to bring the matter to a successful conclusion.

Monitoring of written Parliamentary questions

4. At the start of this Parliament, we assumed on a trial basis a role in monitoring the timeliness of answering of written Parliamentary questions and considering complaints about late and unsatisfactory answers. As envisaged in the report of our predecessors in the last Parliament who proposed that we take on this role, we have produced regular reports on the exercise of this role.[12] In the first such report, published in May 2013, we announced that we would be taking on the role on a permanent basis.[13]

5. The role has taken two forms: first, investigating complaints from Members about answers which they considered unsatisfactory; and second, receiving and evaluating sessional statistics in a standard format on the time taken by departments to respond to WPQs, which are provided to us by the Leader of the House.

Complaints

6. We have received around twenty complaints from Members concerning unsatisfactory answers to written Parliamentary questions since our last monitoring report. We are pleased to be able to report that in the overwhelming majority of those cases which we have taken up on behalf of the Member concerned we have been successful in obtaining for the Member either the information which they sought, or some clarification from the Minister of why that information cannot be provided. In a number of cases, the further information provided has gone formally on the Parliamentary record: for example, Gregory Barker, Minister of State at the Department of Energy and Climate Change, made a written Ministerial statement on 12 May 2014 to give a more complete response to a question from Julie Elliott concerning onshore wind capacity;[14] more recently, David Gauke, Financial Secretary to the Treasury, indicated his willingness to provide improved responses to a number of questions from Jim Cunningham which were subsequently retabled, and answered more satisfactorily.[15] We hope that our successors will be willing to maintain their role in pursuing unsatisfactory answers and obtaining further and better answers where necessary. The successes we have achieved in this role throughout this Parliament, ensuring that Ministers cannot get away with providing sub-standard responses to Members' questions, has clearly demonstrated the worth of our predecessors' original proposal.

Timeliness of answering

7. We received the annual memorandum on departmental performance in timeliness of answering of written Parliamentary questions from the Leader of the House in July 2014, with statistics relating to the 2013-14 session. We have published the memorandum on our website, together with a table giving the figures for each department in percentage terms.[16] As shown in the following table, the memorandum demonstrates that overall performance across Government has improved considerably since the Committee first began monitoring it:

Ordinary Written Named Day

2010-12 Session 69% 69%

2012-13 Session 76% 73%

2013-14 Session 85% 78%

That improvement is very welcome, and again demonstrates the worth of our predecessors' proposal that the Procedure Committee should take on this role.

8. As in previous sessions, though, the overall improvement masked considerable differences in the answering performance of different departments. Once again, the Department of Health, despite receiving by some margin the largest volume of questions, managed to answer 99% of them within acceptable timescales. The Foreign and Commonwealth Office recorded that it answered every one of the 1610 ordinary written questions it received last session within acceptable timescales, and 99% of its named day questions were answered substantively on the day named. At the other end of the scale, the Department for Communities and Local Government answered only 64% of ordinary written questions and 62% of named day questions on time, the Home Office 60% of ordinary writtens and just 35% of named days, and the Ministry of Justice 37% of ordinary writtens and 17% of named days.

9. We wrote to the Secretary of State for Communities and Local Government and the Home Secretary requesting an explanation of their poor performance and an account of the steps which were being taken to improve it: their replies have been published on our website.[17] In the case of the Home Office, we have also requested, and received, regular monthly updates on performance. We are pleased to see that, while progress initially was slow, the most recent figures submitted show that the steps being taken by that department to improve its performance are now beginning to bear fruit. Those figures are published on our website.[18]

10. In the case of the Ministry of Justice, the figures were so poor that we decided that it was necessary to invite a Minister to come before us in person and account for the department's performance. We were particularly concerned because the figures had fallen so dramatically from those which the department had produced in 2010-12, when it had answered over 90% of both ordinary written and named days questions within acceptable timescales. Unfortunately, our initial session with Simon Hughes, Minister of State for Justice and Civil Liberties, and James Crawforth, Principal Private Secretary to the Lord Chancellor and Secretary of State for Justice,[19] did not satisfy us that the department was handling the situation satisfactorily. Consequently, we called the Secretary of State himself for a further session of oral evidence in November 2014.[20] Only following that session did we feel that the necessary focus was being placed on improving performance, and even then it will not be until the figures are provided for the 2014-15 session that it will be possible to demonstrate that the measures being taken have been successful. If the overall improvements across Government are to be maintained—and if departments whose performance is unacceptable are to continue to be held to account—it will be necessary for our successors in the new Parliament to maintain this role in monitoring departments' performance.

Matters which the new Committee may wish to take up again

PRIVATE MEMBERS' BILLS

11. Our report Private Members' bills was published on 2 September 2013.[21] It set out an ambitious set of proposals for reform of private Member's bill procedures which recognised and built on the clear desire across the House for change. The central aspect of our proposals was the proposition that it should be possible to timetable, or "programme", private Members' bills. Implemented well, we said, timetabling enables appropriate debate and discussion of a bill whilst preventing the delay of a bill's passage by procedural tactics or filibustering. We recommended that the House be invited to decide whether it should be possible to programme private Members' bills, and offered two possible ways of achieving it.[22] We also recommended a number of other reforms to the private Member's bill system designed to increase the transparency of the process so that interested parties—both inside and outside the House—understand what is happening; and to ensure that the process is a genuine opportunity for debate, scrutiny and, if it is the will of the House, passage of a backbench legislative proposition.

12. The Government's response to that report accepted some of the Committee's recommendations, in particular those aimed at increasing transparency and understanding of the system by clearing off the Order Paper notices relating to bills which had no realistic chance of debate. It did not, however, accept the central recommendation that it should be possible to programme a private Member's bill to ensure that it could be brought to a decision. In an attempt to secure consensus and to bring about some much-needed change to private Member's bill procedures, we discussed the matter in some depth with the then Leader of the House, and in the light of those discussions brought forward a revised package of proposals.[23] The centrepiece of our revised proposals was that the House should agree that there should be a convention that the question on second reading of a private Member's bill should be put to the House at the end of a full day's debate, in the same way that the House expects the question to be put on second reading of a Government bill. This would enable the Chair to apply speech limits, where necessary, to prevent filibustering.

13. We hoped that the House would be given the opportunity to decide upon our revised recommendations in time for them to be implemented from the start of the 2014-15 session. However, we have to date received no formal Government response to our proposals, nor has the Government made time for them to be debated on the floor of the House.[24]

14. There is a clear desire across the House for change to the procedures for the consideration of private Members' bills. We hope that our successors in the new Parliament will build on the considerable amount of work which we have done towards securing meaningful reform to ensure that desire for change is satisfied.

MOTIONS "THAT THE HOUSE SIT IN PRIVATE"

15. In our report on private Members' bills, we referred to the "nonsense" of each private Members' Friday starting with an inconsequential division on whether the House should sit in private, and recommended that the motion "That the House sit in private" no longer be permitted to be moved on a private Members' Friday. The Government responded to that recommendation to the effect that it believed that "it is in the interests of clarity that the rules of the House governing the powers of Members should, as far possible, apply equally to all sitting days", and suggested that we might wish to consider further whether it was necessary to keep this rule (currently embodied in Standing Order No. 163) or to provide for a sitting in private by another means.

16. We carried out that further consideration and reported on it in our Second Report of 2014-15.[25] We concluded that there was a strong case for reform of the procedure to achieve two aims:

· preventing abuse of the procedure through its use for objects other than holding a private sitting; and

· where appropriate, enabling debate before a decision to sit in private is made.

We consequently recommended the repeal of the existing Standing Order No. 163 and its replacement with a revised standing order which gives discretion to the Speaker, or the chair, to allow debate on a motion to sit in private, to put the question forthwith, or to decline to propose the question to the House. The revised standing order which we put forward also includes provision for the House to come out of a private sitting and return to sitting in public.

17. We received the Government's response to our recommendation in the form of a letter from the Leader of the House, dated 12 February 2015, which we have published on our website.[26] In the response the Leader says that the Government "is open to proposals for reform on this front but has some reservations about the recommendations in the Committee's report". Despite the assurances we received from the Speaker himself about the proposals we put forward,[27] the Government argues that "there is a risk that the Speaker would be put in an invidious position if required to make a judgement in relation to a debate without recourse to the necessary information". It concludes that "whilst recognising the arguments for change the Government is not […] persuaded that the option proposed by the Committee represents the best solution".

18. The use of motions to sit in private on private Members' Fridays remains, as we concluded in our original report on private Members' bills, a waste of time, and adds to the lack of clarity about procedures on private Members' Fridays.[28] Our successors in the new Parliament may wish to pursue this issue with the Government, with the aim either of persuading the Government of the merits of the solution we have proposed or of bringing forward an alternative proposal which the Government finds more acceptable.

EUROPEAN SCRUTINY

19. Our colleagues on the European Scrutiny Committee published their report Reforming the European Scrutiny System in the House of Commons in November 2013.[29] Their report specifically invited us to consider those of their proposals which were relevant to us, which we have done in a series of informal discussions with the Chair of the European Scrutiny Committee and with the Leader of the House, as well as two formal oral evidence sessions with Members of the House who had served on European Committees.[30]

20. In those discussions we attempted to build on the recommendations of the European Scrutiny Committee and on the Government's response to those recommendations.[31] Our aim was to bring forward proposals which would address, in particular, that Committee's concern about its ability to secure timely debates both in committee and on the floor of the House on the documents which it has recommended for debate. Regrettably, we have not yet been successful in coming up with a solution which finds favour with the Government, despite the considerable compromise which our proposals represent on the recommendations made by the European Scrutiny Committee in its report. We would expect our successor Committee in the new Parliament to wish to continue to work with the successor European Scrutiny Committee to seek changes which can command broad support.

Unfinished business

PROGRAMMING

21. We published the report of our inquiry into the timetabling, or "programming", of legislation on 5 December 2013.[32] The report noted that programming has become an established, and broadly accepted, feature of the transaction of legislative business; but that nonetheless criticism has persisted of certain aspects of the way programming operates, especially at the report stage of bills. Our particular concern, which we sought to address in the report, was that on many report stages several groups of amendments, often containing significant Government amendments, are not reached for debate and scrutiny, but instead pass the elected House undebated.

22. We proposed a package of measures revising the way report stages are organised designed to ensure that there is the opportunity for at least some debate, and therefore the possibility of votes, on all groups of amendments and new clauses/schedules tabled to a programmed bill. The starting-point for the new arrangements was to bring forward the deadline for tabling of amendments and new clauses/schedules from two days to three days before the day on which debate is to take place. The earlier deadline for tabling amendments would enable a draft selection and grouping to be agreed by the Chair by the end of the second day before the debate, which would in turn enable a detailed supplementary programme motion, taking account of selection and grouping, to be tabled the day before report stage, for agreement on the day.

23. Following a further report by this Committee,[33] the House agreed on 8 May 2014 to a trial of these arrangements, to last for the course of the 2014-15 Session. In our report we said we would review the operation of the trial towards the end of the 2014-15 Session, with a view to making a further recommendation about whether the arrangements should be made permanent, and whether they might also apply to bills taken in Committee of the whole House.[34]

24. We are grateful to the Public Bill Office for having provided us with a memorandum summarising the experience of the trial so far. That memorandum is published as an appendix to this report. It suggests that "in practice, for a number of reasons this Session had not produced very much evidence as to the impact of the change in the tabling deadline on programming", and continues "For this reason […] it would be helpful if the experiment could be continued for the duration of the 2015-16 Session, so that a more substantial body of evidence could be obtained."[35]

25. The Public Bill Office memorandum goes on to observe that

Although the earlier deadline has been trialled with the specific intention of assisting with effective programming, it has had other advantages in practice. The earlier deadline means that Members seeking to take part in a debate have earlier notice of all the amendments, and the earlier decision on selection and grouping also assists Members (including Ministers and their officials) in preparing for the debate.

It also notes that "the Public Bill Office has not received any complaints from Members about the earlier cut-off for tabling amendments."[36]

26. Nonetheless the memorandum also makes the following comment:

The change in the deadline for the report stage of programmed bills has […] highlighted inconsistencies in the tabling deadlines for committee and report stages. At the moment, the deadlines are as follows:

a. Committee of the whole House (programmed and un-programmed bills): two days

b. Public Bill Committee (programmed and un-programmed bills): three days

c. Report stage on programmed bills: three days

d. Report stage on un-programmed bills (in practice, these are nearly all private Members' bills): two days.

There is some evidence, based on the experience of the current session, in which two substantial bills were in Committee of the whole House, that some Members, and their staff, find the differences in practice relating to committee and report stage confusing.

27. The Public Bill Office's recommendation is that "the experimental three day deadline for amendments at report stage be extended for the duration of the 2015-16 session, with the aim of gathering sufficient data for the Committee to review and report on before the end of that session", and that "the experimental deadline be extended to amendments in Committee of the whole House of all bills and at report stage of un-programmed bills".[38]

28. We note the Public Bill Office's observations, and agree with its conclusions. We recommend that the trial of the three-day deadline for amendments at report stage be extended for the duration of the 2015-16 session, and extended to amendments in Committee of the whole House of all bills and at report stage of un-programmed bills. We hope that our successors in the new Parliament will review the experience of the trial in time for a decision to be taken about whether it should be made permanent before the start of the 2016-17 session.

29. The shortening of the deadline for amendments was just one part of a package of measures which we proposed in our original report on programming. Our other recommendations—such as greater use of recommittal in cases where large numbers of Government amendments are tabled at report stage,[39] and the amendment of the programming standing orders to enable the Speaker to select for separate decision non-Ministerial motions relating to Lords Amendments[40]—did not find favour with the Government. Our successors may also wish to revisit the other recommendations of that report and see whether further progress can be made with improving the way programming of bills operates, especially at report stage.

ELECTIONS TO POSITIONS IN THE HOUSE

30. In our report 2010 elections to positions in the House, we reviewed the experience of the series of whole-House elections, to the posts of Speaker, Deputy Speaker, chairs of the major select committees and chair and members of the newly-formed Backbench Business Committee, which took place at the start of this Parliament. We made a number of recommendations for improvements to the way those elections are conducted, which we have taken up and incorporated into our recent report on revision of the Standing Orders.[41] We also made a number of other recommendations, including that provision be made for the appointment of temporary Deputy Speakers to cover for the extended absence of an elected Deputy Speaker and for the payment of temporary Deputy Speakers, and that the House be given the opportunity to decide whether a contested question on whether to reappoint a returning Speaker should be decided by an open division or a secret ballot. These matters have not yet been put to the House and our successors in the new Parliament may wish to pursue them to ensure that the House is given an opportunity to consider our proposals.

Minority party representation on the Backbench Business Committee and other select committees

31. In our report on the 2010 elections to positions in the House,[42] in the report of our review of the Backbench Business Committee,[43] and in later oral evidence and correspondence with the Chair of the Backbench Business Committee and the representative of the minority parties who has been invited to attend meetings of the Backbench Business Committee under the current provisions of Standing Order No. 152J,[44] we have pursued the matter of minority party representation on that Committee. In the correspondence which followed our May 2014 oral evidence session on this matter, we said

Having given the matter very careful consideration […], we continue to recognise the strength of the argument for granting full membership of the Backbench Business Committee to a representative of the minority parties. We acknowledge also the difficulties which the minority parties have experienced in ensuring appropriate representation across all select committees following the Wright reforms. We consider that the position of the minority parties vis-à-vis select committee membership needs to be considered in the round, rather than looking at BBCom in isolation. We are not persuaded that this is the right point in a Parliament to be addressing that issue. Much better would be to do so as close as possible to the start of the next Parliament, when the new composition of the House will be known and some principles could be established which could apply throughout the Parliament. We will write to the Leader of the House to ask him to ensure that he or his successor as Leader in the new Parliament address the need to ensure appropriate minority party membership representation on the Backbench Business Committee and across all select committees in the discussions which will take place at the start of the Parliament.

32. We will be writing to the Leader of the House in fulfilment of the promise made there, and our successors in the new Parliament may wish to revisit the issue of minority party membership representation on select committees in the light of the outcome of the discussions at the start of the Parliament to which we refer in the correspondence.

THE SUB JUDICE RULE

33. One of the members of this Committee, John Hemming, has drawn to our attention two specific points about the operation of the sub judice rule:[45] one concerning the application of the rule to "separate" proceedings in a civil case, and the other concerning the application of the rule to public petitions. In February this year we invited the Clerk of the Journals, Paul Evans, to discuss these matters with us informally. In the course of discussion Mr Evans raised a number of wider points about the operation of the sub judice rule, which was last considered by this Committee in 2005.[46] We consider that the matters raised by Mr Hemming and by Mr Evans merit more detailed and sustained consideration than we have been able to give them in the time remaining to us in this Parliament, and we suggest that our successors in the new Parliament may wish to make such consideration one of its early tasks.

NOTIFICATION OF THE ARREST OF MEMBERS

34. Another matter which we suggest should form part of the early work of our successors in the new Parliament is the procedure for notification of the arrest of Members. Mr Speaker wrote to us in January of this year inviting us to inquire into the current practice of the House being informed where a Member has been arrested, and to consider whether the practice should be altered. We have made some progress on this matter, but the discussions which we have had so far with the Acting Clerk of the House and others have demonstrated that that the issues involved are not straightforward, and we have not been able to conclude our deliberations and make a report to the House in this Session. We hope that our successors will be able to build on the work which we have already done and bring this matter to a resolution quickly once the Committee is re-established.

1 Ministerial correspondence relating to Spring to Spring Parliamentary sessions - 8 February 2011, Ministerial correspondence relating to Spring to Spring Parliamentary sessions - 9 March 2011, Ministerial correspondence relating to Spring to Spring Parliamentary sessions - Draft Motion and Ministerial correspondence relating to Spring to Spring Parliamentary sessions - 15 March 2011, published on the Committee's website. Back

2 Exchange of correspondence between the Speaker and the Chair of the Procedure Committee concerning the release of ministerial statements, published on the Committee's website (16 January 2014). Back

3 Committee of Selection and Membership of General Committees - corrected evidence - 19 June 2013 (HC 216-i). Back

4 See inquiry page on Delegated legislation on the Committee's website. Back

5 First Report of 2012-13, Sitting hours and the Parliamentary calendar (HC 330) Back

6 Third Report of 2014-15, E-petitions: a collaborative system (HC 235) Back

7 Sixth Report of 2010-12, Lay membership of the Committee on Standards and Privileges (HC 1606) Back

8 Fourth Report of 2012-13, Explanatory statements on amendments (HC 979) Back

9 Fourth Report of 2012-13, Statements by Members who answer on behalf of statutory bodies (HC 1017) Back

10 First Report of 2014-15, Business in Westminster Hall (HC 236), and Fifth Report of 2014-15, Business in Westminster Hall: Government response and revised Standing Order No. 10 (HC 1035) Back

11 Sixth Report of 2014-15, Revision of Standing Orders (HC 654) Back

12 Seventh Report of Session 2012-13, Monitoring written Parliamentary questions (HC 1095); Fourth Report of 2013-14, Written Parliamentary questions: monitoring report (HC 1046) Back