Examination of Witnesses (Questions 340
- 359)
WEDNESDAY 29 APRIL 2009
Baroness Royall of Blaisdon and Chris Bryant MP
Q340 Lord Morris of Aberavon:
So this Committee really would be wasting its time if it tried
to define circumstances. I go back in history and we have spent
a lot of time looking at the Dangerous Dogs Bill and the legislation
in which I was involved after the Omagh disaster. Is there a sort
of political imperative that something must be seen to be done
that sometimes motivates emergency legislation?
Chris Bryant: I would draw a slight distinction,
My Lord, if I might, between what you yourself said, which is
that once the Government thinks it is a good idea and it persuades
the opposition then it is okay and say that we have very strong
checks and balances in the constitutional settlement that we have
between the two Houses that means that it is only Parliament that
in the end decides whether we should be expediting legislation.
I think to limit Parliament by saying that this could only apply
in certain categories would be a mistake, because there would
just come a time when Parliament might have to say "I'm sorry,
we got this wrong, let's revisit it." Of course a lot of
these things are proceeding by convention. The amount of time
between each stage and so on are all by convention, but I think
they have served us pretty well in making sure that we have the
checks and balances that are necessary.
Q341 Lord Morris of Aberavon:
Would you agree that we would be wasting our time in trying to
define circumstances?
Chris Bryant: I am very hesitant to tell you
that you would be wasting your time, My Lords!
Q342 Lord Morris of Aberavon:
I have done a lot of that in my time.
Baroness Royall of Blaisdon: Perhaps I could
add that I think the exercise in which this Committee is currently
engaged is an invaluable stock-taking. I think it is very necessary
for Parliament to look at procedures from time to time and to
see whether or not procedures have been properly used, if they
have been abused, but I would strongly counsel against, if I might
be so bold, the Committee setting criteria. I think it would ill-serve
government.
Chris Bryant: It might just be worthwhile my
saying, as a business manager, that in the Commons the Leader
of the House and myself are very aware that if we have any of
these issues of the amount of time allocated to a bill wrong,
we will know that very, very swiftly. The Whips will know that
from their opposite numbers. I know there is a former Chief Whip
from the Commons amongst your midst anyway, but he has moved on
to much greater things now. Many of you will know those processes,
but on top of that, in the Chamber, when it comes to business
questions every Thursday, the Leader of the House has to defend
the amount of time that is allocated. I think that is a pretty
good convention. For the most part, when the whole of the Chamber
howls, the Leader of the House gives way.
Q343 Lord Rowlands:
Two things come running through your submission. One is this theme
that Parliament has to agree and the second is that there has
to be cross-party agreement. I would like to explore both of them
for just a second. Mr Bryant said there is a Commons procedure
called the allocation of time. There is a Lords procedure which
is that you have to put a motion down to suspend the standing
orders. To your knowledge has there been any occasion when in
fact Members of this House have wanted to debate that motion and
possibly debate or vote on it?
Baroness Royall of Blaisdon: To my knowledge
there is not. I may be wrong, and if I am I will certainly come
back to you, My Lords. I think it is an issue which we as a House
should look at closely. I know that this Committee is looking
at ways—and I am sure you will come on to it later, My Lords—whereby
perhaps the Government could/should be more open or more open
to discussion about timetables on expedited legislation. To date,
when the motion is put before the House it usually just goes through,
which from a business manager's perspective is absolutely great,
and it obviously reflects the agreement which has been made between
the usual channels, but of course it is open to any Member of
the House to speak to that motion, and perhaps that is something
the Committee should look at.
Q344 Lord Rowlands:
As I understand the process now, you seek all-party agreement,
and the first thing you do is to fix the date of Royal Assent
and then work back from that. You look at how expedited the legislation
has been from the date on which you decide you want Royal Assent.
What determines the date of Royal Assent? You say, "We have
to have the bill by this particular date" and that is where
you start from, I gather. Is that right?
Baroness Royall of Blaisdon: It is.
Chris Bryant: This was not a piece of emergency
legislation but just one incidence which I think might help in
the discussion. On the Criminal Justice and Immigration Act last
year we had to have Royal Assent in time to deal with the issue
of prison officers and whether they could strike, and it was necessary,
in order to allow sufficient debate on some elements of the bill,
to ditch some of the other elements of the bill. So there will
be moments when we are time-limited by a factor which is outside
government or Parliament's control. That is when the decision
about the Royal Assent date is absolutely key to us. Also, for
instance, on the Northern Ireland Act this year, though there
was quite a bit of discussion in the House of Commons about whether
there was a real need to proceed precisely to this timetable,
nonetheless there was a very strong feeling that we had to make
it possible for the Northern Ireland Assembly to put together
its legislation for a new Justice Department if they wanted to,
so that we could then do the next stage through Parliament of
the necessary orders by the summer recess. Again that is what
helped determine when we thought we needed Royal Assent.
Q345 Lord Rowlands:
I am curious, because you make such a point about the date of
Royal Assent, as it were, being the starting point of an agreement
between the parties, as to how you fix that date. What are the
specific factors that fix that date?
Baroness Royall of Blaisdon: If we discover
that there is a gap in existing statute law, we know that from
a certain date the Government is going to be contravening a law,
as it were, therefore we have to ensure that we comply with the
law before we are in contravention of the law.
Q346 Lord Rowlands:
Compliance.
Baroness Royall of Blaisdon: Compliance. We
have to comply with the law.
Chris Bryant: Sometimes what they really mean
is "as soon as possible" having made sure that parties
are content that we are able to give it enough legislative time
to be able to consider the legislation properly.
Q347 Lord Shaw of Northstead:
Sir Joseph Pilling told us that "it may be a mistake to look
at this issue as a choice between the expedited or emergency procedure
and the normal procedure. There may be an issue to be explored
about how expedited and how emergency, as it were, the procedure
ought to be." In other words, is there possibly a halfway
stage or can the brake be applied or lessened during the process
of the bill? If one takes up that point, if in fact the Government
has a large majority, cannot it rule over any pre-arranged procedure
and carry on with its majority?
Chris Bryant: We have a majority in our House—and
long may that continue—but we do not in your House, and
so we as business managers (the four business managers: the Chief
Whip and the Leader in the Lords, and the same in the House of
Commons) meet on a regular basis, and a major part of the consideration
is what will the House of Lords want out of this process. What
will the cross-party consensus want out of this? It is worth saying
that "cross-party" in the Commons means something slightly
different from in the Lords, not least because quite often the
people who are least happy with arrangements on emergency legislation
are members of the Government's backbenches who have not necessarily
been involved in the process of determining that timetable. But,
again, the Leader of the House has to defend the argument on the
floor of the House and then there is a vote.
Baroness Royall of Blaisdon: In relation to
the amount of time devoted to each bill, this differs according
to the complexity and sometimes the controversy surrounding such
a bill. With the Northern Ireland Bill earlier in this session,
in the House of Lords we spent 4 hours 48 minutes and in the House
of Commons 6 hours and 29 minutes, whereas on the Banking (Special
Provisions) Bill we spent 11 hours and 9 minutes in the House
of Lords and 9 hours and 58 minutes in the House of Commons, because
of course that was a much longer, more complex, and in many ways
a much more controversial bill. The time devoted does depend on
the bill itself.
Chris Bryant: Also, in the case of the Banking
(Special Provisions) Bill there were Government amendments which
were introduced in the Lords and there were no amendments introduced
in the Commons. There was pretty much unanimity about the need
for those amendments but it meant that it was necessary to have
further time.
Baroness Royall of Blaisdon: The Government
amendments were introduced, if I might add, My Lords, as a consequence
of the debate. They were consensual amendments which arose as
a consequence of the demands, as it were, of the opposition parties.
Q348 Lord Peston:
In the case of a number of these bills, would they not have happened
whether we had to rush them through or not, and, therefore, if
we had considered them more slowly and carefully we would have
ended up with a better bill? In other words, do we not have a
danger of a kind of Gresham's law here, that bad bills drive out
good? It is all very well to say, "Well, we can come back
to it," but we all know that in practice it is very hard
to come back. To take the Banking Bill—which I know we had
to have because of an economic crisis—it is a very faulty
bill. Clearly anybody looking through economic policy, as I do,
knows that the banks are not doing what we want them to do by
a million miles. It looks as if there is not the slightest chance
that we are going to have another banking bill within the foreseeable
future. Is not one of the things that ought to be weighed in the
balance—and for all we know is, which is what I would like
your opinion on—that if we use special time for a bill we
are in danger, whilst saving the immediate situation, of doing
some longer term damage? Are there not long-term costs that have
to be borne in mind?
Baroness Royall of Blaisdon: I do not think,
My Lords, there is necessarily a corollary between a bad piece
of legislation and an expedited piece of legislation.
Q349 Lord Peston:
I am sorry, I do not mean bad; I mean not as good as it should
be.
Baroness Royall of Blaisdon: Okay. I take that
point on board, My Lord. I guess any piece of legislation can
always be improved. Of course it is correct that there is not
as much time for scrutiny with expedited legislation. Neither
is there as much time to gather the information which is often
provided by outside bodies, et cetera, et cetera. However, the
noble Lord cites the Banking (Special Provisions) Bill and I am
sure that that could have been perhaps better than it was, but
there are other pieces of legislation which have been expedited
which I think have been very good pieces of legislation.
Chris Bryant: The Government would prefer, full
stop, not to have to expedite legislation and that should be the
assumption of our constitutional settlement. That is the basis
upon which we proceed, which is why we have all the conventions
that we have about the time between each stage and so on. I am
intrigued. Baroness Royall has already mentioned the figures from
the Northern Ireland Bill, where we ended up spending more time
in the House of Commons than in the House of Lords, but that was
with an allocation of time motion, whereas in the House of Lords
you did not have such timetabling. I think sometimes a piece of
legislation may not be as good as it could be but we have to balance
the need for swift action against whether we are doing detriment
to the quality of the legislation that is so significant that
we would have been better to have taken more time. In the Banking
(Special Provisions) Bill case I think we have been proven right.
Prevarication would have undone us.
Q350 Lord Peston:
We had to have a bill done—I am not denying that—but
I would like to see when we are going to have another banking
bill and I do not see it for quite some time.
Chris Bryant: Who knows?
Q351 Baroness Quin:
I am trying to clarify a little bit the nature of the cross-party
agreement. If you take something like the Banking Bill, it was
controversial, and I think it was voted against by the opposition
in the Commons. Presumably the cross-party agreement is on the
fact that legislation is needed to deal with a particular situation
and that a timetable is agreed, but, beyond that, politics comes
into it, as ever, and there are disagreements. Are there any examples
of bills that you know of under the emergency procedure, either
under the present government or indeed the previous governments,
where there has not been cross-party agreement on (a) the need
for the legislation and (b) the timetabling of it?
Baroness Royall of Blaisdon: To my knowledge
there has not been, but I may well be wrong. I cannot imagine
how one would succeed in getting either the process underway or
in getting the piece of legislation if there were not cross-party
agreement. Certainly from the House of Lords' perspective it would
be impossible.
Chris Bryant: In the Commons I cannot see how
that could happen. I could see that there would be ferocious debates,
but any political party is then faced with the issue of: "So,
are you really saying that we should not be legislating in this
area or at an expedited pace?" There are very, very regular
conversations between the "usual channels," between
the Whips, about every piece of legislation as it goes through
and, if a committee stage ends on a Tuesday, whether it is all
right by the House to bring forward the remaining stages a week
and a half later, the following Monday, or not if there has been
a bank holiday in between, and so on. I would say that the relationship
between the Whips' offices in the House of Commons is pretty emotionally
intense.
Q352 Baroness Quin:
Even if a government had, like in 1997, a very substantial majority
and it wanted to bring something in because it felt it was important,
even though somehow or other this was being objected to by the
other parties, are you saying that, in order not to jeopardise
the normal functioning of the usual channels, the Whips' offices
and so on, a government even in that position would not go ahead?
Maybe there just are not any examples, but I am trying to get
to the point where a government has a huge majority and it sees
something is important even though the other parties are objecting
to it.
Chris Bryant: We might have a huge majority
in the Commons but I think, almost immediately, if the business
managers in the Commons were to seek to use an expedited process
on a bill in the Commons and then to try to get one through in
the House of Lords, the Lords' business managers would say, "We
just couldn't get that through." It would mean that (a) there
would be a process story about this piece of legislation which
would be unhelpful and would hide the policy which you are trying
to deal with, and (b)—and I am treading on my colleague's
toes here—would completely skew the processes in the House
of Lords, and that consensual basis is, as I understand it, absolutely
essential to the way you do your business, and so we would be
told, "No way, José."
Baroness Royall of Blaisdon: I also think that
by their very nature, because expedited bills are a reaction to
certain circumstances, they tend to be bills in which we can find
consensus. They are not political in the usual sense of the word
because a circumstance has arisen and most people would agree
that there has to be a response to those circumstances.
Q353 Lord Rodgers of Quarry Bank:
On the question of expediting emergency legislation, both preparation
and in debate, a proposition was given to this Committee by Professors
Miers and McEldowney where they suggested there should be a template
for emergency powers and the idea of having what was referred
to as "off the peg" draft legislation against any other
way; in other words, you would have a pattern, it would be discussed
between a select committee of the Commons. As I understood it,
if the occasion arose, there would be a minor amount of redrafting
because a formula was there. I do not know whether this is a new
proposition and whether you have been aware of it before. Does
it make any sense to you?
Baroness Royall of Blaisdon: I cannot say that
I, My Lords, have heard of such a suggestion. In drafting bills,
there is, I am sure, a clear departmental procedure and Parliamentary
Counsel clearly has a clear procedure already. I am not sure whether
or not a template, as it were, would assist. There are already
procedures there, and I cannot think what a template, as it were,
would add to those procedures which already exist.
Chris Bryant: I also cannot see how a template
could cover the Human Reproductive Cloning Act 2001 and the Criminal
Evidence (Witness Anonymity) Act 2008. They both arose from a
similar problem, which was a legal problem in the courts, but
I cannot see how a pro forma would meet the needs.
Q354 Lord Rodgers of Quarry Bank:
Is there a commonality, do you think, between emergency legislation?
Is there anything common to the characteristics, except that it
was necessary very soon?
Chris Bryant: I think all we are really saying
is that there is not properly speaking, except in relation to
the Civil Contingencies Act, anything that is emergency legislation.
We do have situations where Parliament decides, granted the checks
and balances that we have both already mentioned, that it is necessary
to expedite the process and to take stages in the two Houses more
swiftly than usual. I might just say, My Lords, I think there
is one area, particularly in the Commons, where there is a problem
with expediting legislation, which is where we have to take all
stages in one day, because it means that it is difficult to table
amendments after second reading. In the Commons we have had a
standing order change to allow us to table amendments before second
reading, but that is not ideal because quite often a Member will
say, "I'm sorry, I didn't know what you really meant by this
bill until I heard the second reading debate." We have made
an undertaking in the Commons that we will do our level best to
make sure that, even if there is just a day between second reading
and remaining stages, we will try to do that in the future.
Baroness Royall of Blaisdon: My Lords, as the
noble Lords will know, it is our practice in the Lords not to
do all stages on one day.
Chris Bryant: We learn from you sometimes.
Baroness Royall of Blaisdon: Excellent.
Q355 Lord Norton of Louth:
To pursue a point touched upon by Lady Quin in relation to cross-party
agreement, you have stressed that you proceed on the basis of
cross-party agreement. I really want to tease out how you are
defining that term, because cross-party is not necessarily the
same as all-party. How encompassing is cross-party agreement?
Is it sufficient, say, if you have opposition agreement, or do
you try to encompass all parties before proceeding?
Baroness Royall of Blaisdon: In the House of
Lords it means the Conservative Party, the Liberal Democrats and
the cross-benchers.
Chris Bryant: It is rather more complicated
in the House of Commons. Because the two main parties are in such
substantial numbers, we do try to make sure that that relationship
is established first with the Official Opposition and with the
Liberal Democrats, but also with the smaller parties, in particular
in relation to Northern Ireland legislation. Obviously it is very
important that we are able to make sure that they are at least
not very discontent. I have only been in this job for a few months,
but I have noticed already that sometimes people who say that
they are very discontent in the Chamber, afterwards, in private,
are less discontent, and, indeed, quite happy.
Q356 Lord Norton of Louth:
Essentially, there are no veto players, in the sense that if the
opposition, say the Liberal Democrats, are in agreement, you would
not regard any other parties, say, as being able to exercise a
veto in proceeding with expedited passage.
Chris Bryant: No, there is not a veto. There
is not in the House of Commons. In the end, we have a debate and
a vote, if necessary. We do not proceed entirely by consensus.
But we do understand that when it goes to the Lords we will have
to be proceeding by consensus. That is always part of the business
managers' decision-making process.
Baroness Royall of Blaisdon: In the House of
Lords, we begin our discussions with the Conservatives because
they are the major opposition party, but then we go on to the
Liberal Democrats and the cross-benchers.
Chris Bryant: Always at my back I hear, "The
House of Lords is drawing near."
Chairman: At times we share it.
Q357 Lord Rowlands:
I noticed in the list of bills that we put at the back of the
questions, and there are some 30 of them, all of those bills were
carried in one day in the Commons but there are six of them that
went through the usual processes in the Lords. Does that not cast
some doubt on the ability of the fast-track approach in the Commons,
that six out of these bills went through the usual processes and
were not fast-tracked at all in this place?
Chris Bryant: We have made a commitment in the
House already to do as much as we can on this issue of allowing
people to be able to table amendments properly after second reading
than before.
Q358 Lord Rowlands:
There are six bills here that were not expedited at all in the
Lords which went through the Commons in one day, including the
Dangerous Dogs Bill and the Aggravated Vehicle-Taking Bill. What
is the explanation for that?
Baroness Royall of Blaisdon: I think that just
reflects the fact that in the House of Commons the Government
has a majority and therefore they can expedite bills in a day,
but in the House of Lords there is no cross-party agreement and
we are a self-regulating House.
Q359 Lord Rowlands:
I understand that, but to go from a process of a bill which is
dealt with in one day in the Commons and not to even have a modestly
expedited process on six of these bills does put a question mark
over the validity of the original pushing of the bill through
in the Commons, does it not?
Chris Bryant: I think all the bills that we
were referring to are ones that happened sometime before I was
around, so I do not know them very well. I think they might even
have been when you yourself were in the House of Commons, My Lord.
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