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Evidence on scrutiny of public bills, 1984

The following evidence was given to the House of Commons Select Committee on Procedure and printed with its Second Report of Session 1984-85, Public Bill Procedure, HC 49-II, pp 79-93. See also the written evidence.

MINUTES OF EVIDENCE TAKEN BEFORE THE PROCEDURE COMMITTEE

TUESDAY 18 DECEMBER 1984

Members present:

Sir Peter Emery, in the Chair
Mr A J Beith Sir Hector Monro
Mr Christopher Chope Mr Charles Morrison
Viscount Cranborne Mr J Enoch Powell
Mr Hugh McCartney Mr Fred Silvester
Mr Robin Maxwell-Hyslop Mr Roger Sims

Memorandum submitted by The Study of Parliament Group's study group on legislative procedure

Examination of witnesses

Dr Philip Norton, Secretary, and Mr Nevil Johnson, Chairman, Study of Parliament Group, called in and examined.

Chairman

248. Dr Norton, may we first of all welcome you, thank you for coming and thank you for the paper you put in which is helpful, provocative and allows us to see a constructive point of view which I am certain the Committee is grateful to you and your colleagues for producing. Might I ask whether at the start there is anything you would like to say in addition to or subtracting from your paper before we get into any questions?

(Dr Norton) No. I think the paper covers the points we wish to make at this stage, and I think we are both ready to answer questions rather than take up time by adding to what we have put in.

249. May I start by asking you why you consider that the present method of the committee stages of Bills has been accepted by the House for so long?

(Dr Norton) As we have indicated in the paper, I think it is the way the practice has developed over time, and it is partly a function of the fact that committees are very much subsidiary to the chamber of the House, that there has been the development of party over the past century, and the fact that Standing Committees were introduced essentially for the convenience of government, particularly the 1907 changes. lt has developed from that and produced the system which we now have. As the Procedure Committee indicated in 1978 and as we pointed out in the paper, it has been very much an ad hoc development, not a rational, structured development.

250. But even if it is ad hoc, would you not say it has become very much accepted as part of the whole structure of Parliament at the moment and is considered by the Opposition to be a necessary method of harrying the Government?

(Dr Norton) There are two aspects to the question of the procedure at the Standing Committee stage. It is quite clearly accepted that it should remain where it is and basically in the form in which it is. The other area where there is a problem is the area of party conflicts which take place at the moment. On the one hand, there appears to be qua the Opposition some advantage, (I think the presumed advantage is not what people believe it to be), but I believe there is a distinct disadvantage to a lot of Members of the House serving on Standing Committees, and I believe it is in that area where there needs to be most change.

251. Do you think there is more evidence of partisanship in committees now than there was previously?

(Dr Norton) I am not sure if there is any increase in partisanship in terms of verbal contributions at the Standing Committee stage. I would be inclined to say there is less partisanship in terms of the voting behaviour of Members serving on Standing Committees. It has been noticeable that there has been a marked increase in the willingness of Members to vote against a measure on the Floor of the House and in Standing Committees, and that has been the case since the seventies. For example, in the 1970-74 Parliament I think there were as many defeats taking place in Standing Committee as in the preceding three Parliaments, so partisanship in terms of voting has declined markedly.

252. Would you welcome that?

(Dr Norton) Yes. I am a believer in party opposition but there is a greater case for cross-party scrutiny and influence, particularly at committee stage.

253. Lastly, when you speak about the unpopularity of service on Standing Committees do you consider that that applies to all Standing Committees, or do you consider it is only those which are particularly contentious, like nationalisation or privatisation?

(Dr Norton) As a generalisation, my impression is that service is unpopular on Standing Committees qua Standing Committees. Certain committees, because of their nature, may be attractive to certain Members who have a particular interest but, as a general rule, my impression is that Members are not too keen to serve on Standing Committees as Standing Committees, independent of whatever subject they are covering.

Mr Maxwell-Hyslop

254. At this point, Dr Norton, I notice that in your excellent memorandum the one territory you do not voyage into is that which covers the question of the alternative of the whole committee stage of a Bill being taken on the Floor of the House rather than in a discrete committee. Is that because it is not of particular interest to you? To take the Finance Bill, that is taken partly downstairs and partly upstairs and it has established a precedent; we now have the Local Government Bill part of which is being taken on the Floor of the House and part upstairs. Did you feel it was such a different territory on which to focus in your paper that it called for a separate paper if you were to cover it, or did you not feel it was relevant to this Committee's terms of reference which are concerned with the procedure on Public Bills?

(Dr Norton) I think it would be relevant to this Committee's terms of reference. The reason it is not here is that in terms of our consideration it did not impinge itself much on our consciousness. My view is that, in line with one or two other matters the Committee has considered, it would be the focus of a separate paper rather than something we should attempt to work into the submission we have made.

(Mr Johnson) Might I add a remark on the interesting point that Mr Maxwell-Hyslop has raised, because I think it has a bearing on the whole history of Standing Committees and indeed on the earlier questions we have been dealing with. It seems to me that in the House of Commons Standing Committees have always been seen as in some part a derogation of the rights of the whole House. It may be that some sort of memory of that fact helps to explain why Members accept the system broadly speaking as it is now. When you look at other parliaments (I do not wish to go into it in detail) I do not think that, in the history of their committee systems, you have anything like the same sense of their being basically a derogation from what ideally would be the right procedure, namely, that the whole House considers the matter; it is seen much more in terms of some sort of division of labour and in terms of satisfying the various demands of the political parties represented in the particular chamber.

Mr Sims

255. Dr Norton, as I understand it you are advocating something very akin to the allocation of time system with which we are familiar to be decided in advance in respect of most, if not all, Bills. You seem to imply this would not necessarily mean detailed timetabling in every case, but clearly it would need to be fairly specific; otherwise, it would cease to be a timetable. How do you meet the argument that if you do that, once you get into committee on a particular clause it may well come up in discussion that here is a rather important point that was not evident perhaps to the Business Committee which laid down the timetable? The committee would be wanting to go into it more closely and the hand would be going round the clock, so in fact it would actually put debate into a straitjacket. How do you meet that argument?

(Dr Norton) We did consider it and we were careful not to provide any precise formula, partly because we took the view that in a sense we might be straying into an area where this Committee would wish to make proposals of its own as to what should be done rather than that we should put down anything specific. We are conscious of the point that there might need to be changes in the timetable to allow for more debate than had been intended and for circumstances in which it turned out that the time allocated did not need to be used up (the latter could be dealt with far more easily in a timetabling motion than in a situation where one might need to allow extra time). Presumably, you might need supplementary motions, but if timetabling was a general feature of the House it would go through the Business Committee and take on a formal aspect when it came to approval.

256. But it will then be the Business Committee which in effect has told the Standing Committee how to organise its affairs, whereas at least at the moment in theory, if not in fact, it is the Standing Committee which makes its own decision. It is not uncommon for an informal timetable to be agreed which does give a degree of flexibility. Are you suggesting that the Standing Committee would be able, of its own volition, to change the timetable which the Business Committee had imposed, or would it have to go back to the Business Committee?

(Dr Norton) My own view is that where it required an extension of the timetable it would probably have to go back to the Business Committee. At the moment Standing Committees do sometimes make informal timetables, but their actual formal powers are limited in that respect. It would not be much of a derogation of the powers of the Standing Committee; they would have to go back to the Business Committee for an extension. Presumably, there might be provisions for timetabling where, for example, they found they did not need the allocated time in order to look at a particular clause; it could make its way back into the timetable so the Committee did not have to go back to the Business Committee. It might include phrases like "unless completed earlier", or something like that.

257. So, on a particular sitting if it is agreed that they will discuss clauses 1 and 2 and finish at one o'clock and at half-past twelve they are still going through clause 1 and it is quite evident that it will be impossible to deal with clause 2, does the Standing Committee adjourn until the Business Committee has agreed to a revised timetable?

(Dr Norton) I am conscious of the problem, and we have not thought of any way of writing into the timetable motion a degree of flexibility which would allow the committee to decide for itself, but in principle it would not be undesirable for the Business Committee to stipulate some general timetable within which it would be possible for the Standing Committee to have some leeway. I am not sure how it would be worked into the procedures, but I think it is desirable.

258. You do not favour the Standing Committees themselves drawing up a timetable?

(Dr Norton) I think it would create problems if you left it to each individual Standing Committee to decide its own timetable. I would be inclined to rely on the wisdom accumulated in the Business Committee to do that; I think you need to have it from the point of view of standardisation, drawing upon the wisdom of those serving on the committee rather than leaving it to an ad hoc committee.

Chairman

259. Before you leave that, could I ask you why you take that view, Dr Norton, when there has been a timetable motion agreed and the Business Sub-Committee is made up of a committee which it is thought can successfully decide the allocation of time in the overall sphere, and indeed is flexible enough to make decisions?

(Dr Norton) I can see the value in doing that, but at the moment it is very much dependent on the individual committees in the few instances where it is done. I think one has to be more systematic about it. There is an argument for leaving it to a formally constituted Business Committee.

260. But do you consider that a general Business Committee--perhaps something like the Committee of Selection--would have enough detailed knowledge of all legislation which was going to come before the House to be able to make rather specialised decisions about which part of which Bill was important and which was not and therefore to allocate time, whereas at least the people actually on the Standing Committee would be likely at least to have read the Bill; there may be greater problems if you just have a central body doing it?

(Dr Norton) I am not sure if it creates greater problems. There is a potential problem, but there would be a problem in just leaving it to a Standing Committee of Members drawn up for the purpose of considering a particular Bill. They may be more au fait with the provisions of the Bill but the Business Committee may be more au fait with the likely areas of conflict on a particular type of Bill. The knowledge which the Business Committee might have of the procedures might be greater, even though there might be greater knowledge on the part of the Standing Committee in relation to the particular provisions of the Bill. I think there would be problems. I acknowledge that there would be problems and advantages either way, but my inclination is to leave it to the Business Committee.

(Mr Johnson) To add a further remark, to some extent more of a gentle dissent from what my colleague has said (which is perhaps justified since the Study of Parliament Group does not operate according to the principles of collective responsibility), if I may say so, Mr Sims has touched on a very important point which affects the autonomy of Standing Committees. They have a certain amount of autonomy. Reflecting quickly on the questions which have been put and the answers given, it seems to me that if anything like the system envisaged in this paper were to be introduced there would have to be some informal means of allowing Standing Committees to express a view on the general timetable to which they were going to be subject. Again thinking about it straight off the cuff, one could envisage the timetabling of a Bill, the Business Committee initially laying down some draft timetable and leaving it open to some to-ing and fro-ing between the relevant Standing Committee and the Business Committee before reaching a final decision. Speaking for myself, I do recognise that there is a serious issue here.

261. Do you not consider that delay brought about by the Opposition during the committee stage upstairs allows the Opposition or the opponents of the Bill, to mobilise public opinion or informed opinion about the Bill and perhaps the unforeseen circumstances which often arise during the course of a Bill that people have not actually thought of, and therefore if the Opposition has got this delaying power would it not limit their ability to alert people outside the House?

(Dr Norton) I do not think that is the case in relation to Standing Committees. It seems to be the wisdom in this House that the power of delay might force concessions from the Government. I think that in taking evidence from one of the Clerks at an earlier session the point was made that there was no obvious occasion which sprang to mind where delay alone had forced a concession from government. As to the argument that delay as far as the Standing Committee is concerned allows for the mobilisation of public opinion, there is not much evidence of it. Delay is important not in relation to the Standing Committee stage in this House but in relation to what happens to the Bill between this House and the other place; that is where delay is far more important and allows time for the Opposition to be mobilised. I can think of various instances where it happens, and the obvious one is the Bill in the last Parliament to impose fares for the bussing of school children from rural areas. I think delay is important, but not in relation to what goes on at the committee stage of this House; it does not allow time for the mobilisation of public opinion. I do not think public opinion has all that much interest in measures when they are being dealt with in committee.

262. I believe Mr Bradshaw's paper points out that there were five major Bills, the Parliament (No. 2) Bill, the Scotland and Wales Bill and three other instances, where delay did have a major effect?

(Dr Norton) I would dispute that in the way it is stated. If one takes the Parliament (No. 2) Bill as an example, it was not solely delay which was responsible. The only reason Members were able to engage in delaying tactics in relation to that Bill was because the Government did not believe it would have a majority on a guillotine motion; it did not think it would have a majority in the division lobbies. Procedural motions on Bills tend to maximise opposition to the measure in question, and that would not be changed with the proposals we are putting forward; it would be open to the House to deny a majority to the timetable motion that the Business Committee brought forward. If we are on the point about the No. 2 Bill, the opponents of the measure probably did themselves a disservice by saying it was withdrawn by using the power of delay alone, because showing up the weaknesses of the Bill in debate by sustained scrutiny was just as effective in ensuring it died a death as using the power of delay. Our proposals are designed to enhance the powers or critical scrutiny on the part of the House, so I am not persuaded by the argument about delay as it applies to the committee stage of Bills.

Mr Silvester

263. The Civil Aviation Bill last week and this week has had its sittings motions defeated so it has not sat, although it "sat" twice, if you see what I mean. Presumably, under this system the clock would have started ticking the moment the committee of elders, or whatever it is called, allocated the time for the Standing Committee to start its work. If they continue to refuse to sit and approve sittings motions presumably the clock will stop without the Bill having been discussed in committee. How would you deal with that?

(Dr Norton) Fortunately, I would not be the person who would have to deal with it. It is one of those cases where, if the committee was so minded, it would be dealt with, not through the use of the usual channels, but by way of the Business Committee saying, "Here is a problem." I do not see that one can necessarily provide a procedure for that particular eventuality.

264. It is more important than that because on this basis the Government could sit on its hands and wait until the period had expired and say, "Thank you very much. We will now go to the next stage." In that event the combined power of the Opposition to do down the Bill would be weakened?

(Dr Norton) In that instance, yes.

265. It would not be only in that instance; others would follow the example?

(Dr Norton) Yes.

Chairman: Would you not be able to put a caveat on it? As Mr Silvester was talking I was thinking that the timetable from the Business Committee could apply after the sittings motion had been agreed, and if that was so the problem would not arise; it would still give the committee the power actually to reject the decision of the Business Committee, if one existed to do this, and indeed it might give the committee the ability to deal with the "flexibility" point, in that if put to the Government during the sittings motion the Government would give undertakings in order to try to get the matter reviewed. Again, we are looking for flexibility. I do not know if it is possible to do that.

Mr Silvester: It would give a premium to the debate on sittings motion.

Chairman

266. Yes?

(Dr Norton) We have not considered the specific point which is made, but off the top of my head I cannot think of a more sensible solution than the one you suggest to allow for the flexibility which we intend to maintain.

Sir Hector Monro

267. On the subject Mr Silvester brought up, I have myself had experience of sittings motions running for a couple of sessions. It would seem that if the committee was going to do the timetable one would never get a conclusion. Would you consider it a possibility for, say, the Front Bench spokesmen and the whips on either side, under the chairmanship of the chairman of the committee, to make a decision, or do you think it has to be a broader franchise for timetabling?

(Dr Norton) I think it would have to be a broader franchise because that is one of the things we are trying to achieve. We are concerned to go beyond the usual channels and to have a greater input from other parts of the House.

268. What some Members of this Committee feel is that it would be very difficult to get a broader committee which had detailed knowledge, as the Chairman said, of the legislation under consideration, and what might look to them a considerable time for the first ten clauses might be highly presumptuous to the Members of the Standing Committee?

(Dr Norton) There is not necessarily a dichotomy between a broad committee and people with detailed knowledge. Presumably, the Business Committee has Members who in a sense take a broad view but who also have detailed knowledge available to them. I do not think it is a choice between one and the other; it is a combination of things in the Business Committee, which is why we tend to favour the idea of a Business Committee.

Mr Powell

269. Have you found it necessary in studying this matter to classify legislation according to its content: for example, whether it is generally acceptable but complex, whether it is sharply divisive, or whether it is legislation on which there are hesitations on the side of the majority? Would you not find that the effect of the procedural proposal was very different according to the type of legislation to which it was applied?

(Dr Norton) I would agree with that general proposition. We did not consider, if you like, the categorisation of measures in relation to the proposals for timetabling; it was something which came up in discussion on Special Standing Committees as to what types on Bills might be referred to them. In relation to timetabling, on Bills generally there is probably some scepticism about trying to fit bills into hard and fast categories. It is my view that it is for the Business Committee to decide what a particular Bill amounts to in that respect and what should happen in terms of timetabling.

270. The fact that categories cannot be hard and fast does not necessarily mean that the content of the Bills is of vital importance in connection with the effect on timetabling. Did you feel anxiety as to timetabling in the case of any Bills which it is generally agreed are of great complexity?

(Dr Norton) I do not think it created any problems from the point of view of our consideration; I think it would more likely to create problems from the point of view of the Business Committee.

271. Were you not afraid that in such Bills aspects new to the committee and the House might well appear as they proceeded and might be suppressed by the effect of a pre-determined timetable?

(Dr Norton) No. If that became apparent later on, if it was not apparent earlier, in the instance you cite it would probably make such a Bill particularly appropriate to the Special Standing Committee procedure. But if it became apparent only later on that there were important matters coming up, our presumption is that the committee would seek to acquire the time in order to explore those matters.

272. How can a committee acquire time when there is a timetable motion?

(Dr Norton) By going back to the Business Committee and requesting a change in the allocation of time, should it appear necessary, in view of the importance of the issue which has come up and which was not realised before.

273. Is there confusion between the effect of a timetabling motion and the effect of the Business Committee? It is the timetabling motion which determines the limits within which the committee works?

(Dr Norton) Yes, but we are envisaging that if the timetabling motion was changed it would have to be on the recommendation of the Business Committee which proposed it in the first place.

(Mr Johnson) To comment briefly on the issue which has been raised, attention has very properly been drawn to what you might call the absence of predictability in relation to the effects of timetabling having regard to the types of Bills being considered, and clearly there is a difficulty here. It seems to me, on the other hand, that a Business Committee of the kind envisaged would over time use very broad categories of the kind you have indicated and it would develop a certain feel, in its allocation of time, for those categories. It would not get it right on every occasion, but it would get it right on quite a lot of occasions. In addition, I would have thought we must not overlook the fact that already in an informal way time spent on what you have described as complex but not highly contentious Bills is often quite limited because there is general agreement through the usual channels and amongst Members of the Standing Committee that you will in fact hope to get through that particular type of Bill in a relatively short time.

274. Some of the things you have said appear to imply that a timetabling motion is introduced on the initiative or advice of the Business Committee. Am I mistaken in thinking that?

(Dr Norton) Yes.

275. You are giving that impression. Would you be surprised to hear that in fact it is the Government which decides what is to be in the timetabling motion and the Business Committee is merely academic in filling in the details?

(Dr Norton) In terms of present practice.

276. Are you proposing a practice which would subordinate the decision of government to the recommendations of the Business Committee?

(Dr Norton) We would seek to move the initiative to the Business Committee in the same way that the House sought to move the initiative to the Committee of Selection when it came to the appointment of Select Committees.

277. Do you suppose that the Government would transfer the decisive power of determining a timetabling motion and the length of time it ought to allow to a committee unless it was equally dominant in that committee?

(Dr Norton) I do not see why it would want to assert its dominance. There are currently the usual channels in the process of timetabling where the Opposition, as I think Mr Biffen said in evidence, has a large say and tends to get its way on timetabling. I do not see why it would necessarily change because it is formalised in a Business Committee.

278. But if all Bills were timetabled would the Government not acquire an irresistible interest in influencing the time allocated to them since that would determine what they could get through in a session?

(Dr Norton) Yes, but the other non-government Members would have an irresistible interest in making sure there was an allocation of time appropriate to the Bill in question.

279. Have you taken any evidence on the proceedings in the Business Committee?

(Dr Norton) We did not go into the proceedings in the Business Committee as presently constituted in any great detail.

280. Have you any idea of the ruthlessness with which the Government's majority of three determines what the minority of two will automatically accept?

(Dr Norton) That is why we wish to have a larger Business Committee with more experienced and senior back-benchers on it.

281. But is it not a committee in which there is a government majority?

(Dr Norton) Presumably, there would be a government majority in the same way that there is a government majority on all committees.

282. Do you think it would act differently if it had more Members?

(Dr Norton) I think there is a probability that that would be the case.

Chairman

283. Are you not arguing that the new type of Business Committee which your paper puts forward should operate in a "politically neutral" manner as the Committee of Selection operates in a "politically neutral" manner? I put inverted commas round those phrases because if there is anything "politically neutral" in this House I have never come across it. Is that what you are arguing for?

(Dr Norton) If we are being realistic, we would like to see the procedures operating in a less partisan manner, and that is where we put the emphasis.

(Mr Johnson) If I might again make a slightly dissenting remark, I do not think I myself have any illusions about the existence of totally non-partisan and neutral bodies in the British House of Commons. I would be prepared to concede that in considering proposals of this kind one is always coming up against what I will describe as tension or conflict between those who on the one hand would seek to make various aspects of the parliamentary process more sensible, rational and objective, and those who, on the other hand, always take as their starting point the political realities in the House which can often lead to the conclusion that very little change at all is possible.

Mr Chope

284. In the light of what Mr Powell has been asking you, are you still sticking to the fixed timetable for all Bills, or are you suggesting that perhaps you should concentrate on those Bills where it is recognised that problems may arise?

(Dr Norton) There are two points here. I think I should say that "fixed timetable" might give a misleading impression. We are not seeking a rigid imposition of timetable; we are arguing that there should be some degree of flexibility written into the timetable. We are not saying it should be confined to particular Bills because one would still have the problem that in committee stage there would be the presumed weapon of delay. Where Government back-benchers feel it is incumbent on them to get a measure through, there is a consequent emphasis on adversarial proceedings and a tendency to think in terms of party conflict and, in terms of the usual channels, the despatch of business. The emphasis is not on scrutiny of the measure. What we are proposing in our package. if you like, is a change of emphasis, and I do not think that imposing a timetable on a few Bills will achieve it. I think you need timetabling in addition to other things which we are proposing to allow for a more balanced consideration of measures and to avoid wastage of time on controversial measures, allowing time for back-benchers to scrutinise what on the face of it are innocuous measures which the Government and Opposition want to rush through. That might encourage more participation by back-benchers, which is also relevant to the point that the Government is more likely to be influenced by a combination of Government back-bench opposition and the Opposition rather than a straight delay by the Opposition. There might be an opportunity for back-benchers to speak to the Opposition more constructively rather than have unproductive attempts made to frustrate the measure. We want to change the emphasis to allow for a greater degree of cross-party influence in ordinary Standing Committees and in Special Standing Committees. Christopher Price mentioned the Mental Health Bill where cross-party collaboration resulted in the Government being forced to concede some changes. We are trying to move the emphasis in the direction of more effective scrutiny. I agree with Mr Biffen that the purpose of the committee is to subject Bills to scrutiny rather than waste time on controversial points, and that is what we are trying to achieve.

Mr Maxwell-Hyslop

285. Could Dr Norton define what he means by "scrutiny"? Does he mean the identification of ambiguity, or does he mean the discovery of unintended consequences? If he means both of those things could he exhaust his meaning of "scrutiny" as briefly as he can?

(Dr Norton) I do not think I can exhaust it; it encompasses both. One looks at the provisions to see if they are the best way of achieving what the Bill aims to achieve or, if not, whether there are alternative ways of going about it, and whether or not the Government can be persuaded to accept those.

286. If that is the object of scrutiny would that not be better encompassed in the idea which has sometimes been canvassed of a pre-legislation committee rather than a committee once the Bill has been introduced in concrete form at Second Reading'?

(Dr Norton) On the face of it that would be so. The problem with that is that it would be a far too radical proposal because it would move the House away from its existing role, which is essentially a policy-influencing one; it would seek to move it more into the area of policy-making which is not the role it has played since the middle of the nineteenth century. I am not sure it is well equipped to move into that role or that it would prove acceptable to the Government, so, although it is a good idea, I do not think it is achievable. I think it is too radical and would clearly change the relationship between Parliament and that part of it which forms the Government.

287. Is a Standing Committee as currently selected by the Committee of Selection the best vehicle for scrutiny in the third sense Dr Norton mentioned, not looking for ambiguity and not looking for unintended consequences, but for the most efficient instrument for carrying out the long title of the Bill, because it is a well known fact that if you want to get on a Standing Committee you speak on Second Reading and if you want to keep off it you keep silent on Second Reading'? That does not necessarily mean--or does it--that that is the best criterion by which to choose people for the function of scrutiny?

(Dr Norton) I take your point on that, though my experience of Second Reading debates suggests that the relationship you have mentioned is a tenuous one rather than a usual one.

Chairman

288. If you think that, can you give us some evidence on it, because from the moment I heard it I felt it was not something which was widely accepted by the Committee, so if you have some evidence on it we would be delighted to have a paper from you.

(Dr Norton) I would have to check it. This point relates back to the seventies when some Members who deliberately spoke on Second Reading were put on the Committee and others who did speak were not. I think my answer to the original question would be that to some extent in the existing political framework of the House Standing Committees are the best way of going about it in terms of existing political realities. I think some amendment could be made to meet the point you are making. We have not put it in the paper. That is a personal view. Dealing with your point about memberships and how they are appointed, no doubt there would be a problem in the House in having Standing Committees which in practice and not just in name had permanent Members. I am not altogether averse to the view that there might need to be a core membership of Standing Committees, and that overlaps with the point Christopher Price made, that a Member of the Standing Committee might be on the relevant Select Committee. There might be a case for having a core membership, which would deal with your point about people who have built up expertise in a certain area.

Mr Maxwell-Hyslop

289. I ask the question in particular because the predecessor to this Committee two Parliaments ago, when it was considering Select Committees, was taxed to some extent with the problem whether they should be appointed by government motion or a Committee of Selection, and it was quite clear that if the ability to emasculate a Bill or, by delaying tactics, wreck it were to rest in Standing Committee as now, unlike Select Committees the Government would want to retain in its own hands the nomination by government motion of the Standing Committee. On the other hand, for a Select Committee which has a wholly different function, this could safely be entrusted to the Committee of Selection, so it does raise the question of what you mean by "scrutiny of a Bill". If by "scrutiny" you mean that the committee appropriates to itself the judgment as to the most efficacious way of executing the long title of the Bill it is a major transfer of function from government to a Standing Committee and is greater than has ever been known heretofore, certainly since the days centuries ago when the House of Commons set up committees to draw up Bills. This strikes me as the most radical point inherent in your paper?

(Dr Norton) I must confess I had not seen it as being that radical in terms of the proposals being put forward, and I do not think there is necessarily a dichotomy between your point about the Government wishing to maintain its majority on Standing Committees and my point about a core membership appointed for a Parliament which might be able to subject measures to more informed scrutiny in terms of the provisions in the Bill which seek to achieve the long title. You could have both at the same time; in terms of the practicalities it is achievable. I do not necessarily agree it is quite as radical as you perceive it to be.

Chairman

290. On a matter of fact, before your Group produced the paper had it seen the Parliamentary All-Party Reform Group questionnaire and the answers given to that questionnaire?

(Dr Norton) No; I saw it subsequent to the report being brought out.

Mr Beith

291. Nothing you have said so far appears to segregate from Standing Committees Bills taken in a committee of the whole House, although certain examples were adduced earlier in our exchanges of Bills considered by a committee of the whole House. I take it it is your view that any analysis you make of the two must be quite separate?

(Dr Norton) Yes.

292. What you say in your paper is concerned with Bills in Standing Committees?

(Dr Norton) Yes.

293. On the Business Committee itself, how do you think it would proceed? A number of questions were asked earlier about the Government majority on the committee and the influence it would exercise. Can you tell us anything about the German example and committees elsewhere of this kind, as to the extent to which they merely rubber stamp decisions which have taken place outside their meeting rooms or have some independent or autonomous status?

(Mr Johnson) If I might try to answer Mr Beith's question, beginning not specifically with West Germany, although it happens to be the country I know best, I would like to make a more general point. This is that if we look at committees and councils analogous to the type of structure proposed in this paper what we find is that they are committees which represent the principal figures in the party management in the particular parliamentary bodies in question. If you look at this historically, of course it is very easy to understand why that is so, because so many of the European parliaments have a history of numerous parties, and inevitably if you are going to get any kind of agreement on how the business will be handled, somehow or other you have to bring together a considerable number of party leaders. Bringing it into focus, it seems to me that a Business Committee elsewhere normally operates as a committee which brings the parties and their floor leaders and deputies into the discussion of the on-going programme. The agreement about the programme resulting from that and the extent to which it reflects the wishes of the Government will depend on the political strength of the Government and the majority it has got. Again, in the case of coalition governments, it is natural that such governments have to make quite substantial concessions; in other words, the equivalent of the Business Committee may have a relatively greater degree of autonomy. Bringing it back into context, it would seem to me fairly obvious that a Business Committee would have to work with a government majority, and obviously, for the reasons already mentioned, the Government would attach a lot of importance to the decisions it reached and it would very often want to apply its majority. Perhaps it would not be too pessimistic to hope that over time it would also be recognised that the Business Committee was one in which there was always some degree of give and take between the Government majority and the other parties represented on it. After all, that would in a broad sense be consistent with the tradition of the House and the relationship between the House and the Executive.

294. Was there any feeling amongst the Social Democrats in the German Bundestag before the last election that they were powerless on the Business Committee because they were outnumbered by the combined forces of the parties in government?

(Mr Johnson) I do not think so, but of course your question now refers much more specifically to the Council of Elders as it is called in the German Parliament. In relation to that, I must stress that it is not strictly a decision-taking body; it is essentially an advisory body to the President of the Bundestag and its function is both to advise him and to bring about agreement between the parties. Indeed, that second function is specifically mentioned in the Standing Orders. What the Council of Elders does is to look at the future business of the Bundestag in the light of what has already been considered and discussed in the party committees within the Bundestag. That is then brought together in this somewhat large body (after all, it consists of 27 people), and the results are then put before the Bundestag. Technically, though it is a formality, it is the Bundestag itself which takes the decision on its own order of business; it is technically determined by the Parliament itself, though clearly it is generally speaking, not a matter which is objected to: the Bundestag operates on the basis of the conclusion which this body has reached.

Mr Maxwell-Hyslop

295. Do you see the Business Committee as a committee permanently in existence, like the Committee of Selection, for instance?

(Dr Norton) Yes; it is our presumption that it would be.

296. Do you see it as being manned by a government motion on the order paper or by the Committee of Selection's nomination? This is crucial, is it not?

(Dr Norton) Yes, it is a crucial question. We have not considered it. Expressing a personal opinion, I would be inclined to prefer a motion from the Committee of Selection.

297. And Mr Johnson?

(Mr Johnson) I do not think I have any further comment to make.

298. Would you endow it with two functions: first, the total span of the committee stage of the Bill, and, secondly, every division in that span? If it proved unacceptable to the Government to have the committee nominated by the Committee of Selection, which of these two alternatives would you regard as preferable: the sacrifice of the nomination by the Committee of Selection or the sacrifice of the totality of span as being within its determinative powers?

(Dr Norton) I am not sure one would necessarily get the conflict you envisage because the Government would have a majority on the committee.

299. The Government had a majority on the committee which twice threw out the sittings motion on the Civil Aviation Bill.

(Dr Norton) The purpose of the Committee would be to try to reach agreement by consensus, and Mr Johnson raised the question of the Council of Elders. If agreement cannot be reached there it goes back for agreement to be reached elsewhere. I am not sure it would be the wisest way of resolving it. There is nothing else which comes to mind.

300. Do you regard it as very important that the selection of this committee should be by the Selection Committee or that it should determine the total span of the committee stage as opposed to dividing up the span agreed between the usual channels?

(Dr Norton) My personal opinion is very much in favour of the former, that is, the Committee of Selection nominating the membership; I think that is crucial, and I would certainly opt for that given that particular choice.

(Mr Johnson) I am less sure that nomination by the Committee of Selection is right. Indeed, over time I am not even sure it would make a very great difference.

301. When we come to the titbit which you are offering to the Opposition as its reward for agreeing to a total span--in other words an allocation of time motion--do you regard it as a valuable titbit that the Business Committee should have power to refer it to a Special Standing Committee? I have in mind that when reading your paper I got the impression that you envisaged the primary function of the Special Standing Committee in effect to be the calling of witnesses who wanted to give evidence, as opposed to permitting a committee of the House of Commons to take evidence that it wished to take to illuminate certain aspects which it wanted to have illuminated?

(Dr Norton) I do not think there is necessarily a problem in the latter respect. You may remember Merlyn Rees's observation in relation to the Bill he cited at the Committee stage where there were plenty of unsolicited memoranda coming in (he gave the figure of 77) and there were no great problems in selecting the witnesses who could properly appear before that committee. It would be up to the committee to decide what evidence it wished to hear. I do not necessarily envisage a problem there, but I do not think I regard it as "offering a titbit" because Special Standing Committees would be valuable bodies for carrying out the function of scrutiny of Bills.

302. Of course, at a time of minute government majorities the other advantage of consuming time is that the Government might fall; indeed, sometimes it is expected to fall any day. Do you regard the important weapon of delay in timetabling as being adequate compensation to the Opposition for the alleged advantages of a more rational allocation of time in committee and a less partisan manning of the Standing Committees?

(Dr Norton) Yes, quite simply. I do not think there is much in this presumed power of delay; I think it is part of the perceived wisdom along with other myths about the way proceedings go on which have no basis in fact. I do not think that in practice you are giving very much in return for what I think is a very real advantage, particularly in relation to Special Standing Committees.

303. But it is contingent on the Government's majority. I am sure you would agree it is quite possible that the last Labour Government could have fallen by one vote, and could have fallen very much earlier than it did, in which case the whole mass of legislation which reached the statute book, or which was brought into execution after reaching the statute book, would not have done so, so delay could have been absolutely crucial?

(Dr Norton) Yes, but I do not see how you can write into any procedures the possibility that the Government might in some circumstances fall; it is a fact of political life and you cannot do anything about it.

Viscount Cranborne

304. If I might ask one quick question about the allocation of time, in your memorandum you point to the fact that informal arrangements already exist. Do you think there is any virtue in maintaining that informality? Do you not think that informality is an asset?

(Dr Norton) There are occasions when I think informality is an asset. I think the problem might not lie with the informality but with the bodies where the informality exists anyway and extending it beyond usual channels, and the only way to do it is through the creation of the Business Committee.

305. You say you do not propose that most Bills should be subject to Special Standing Committee consideration, and you discuss in very general terms, if I may say so, which Bills should be. May I ask you to be more specific about that? What Bills do you think would be suitable for Special Standing Committee procedure'?

(Dr Norton) It is easier to see it in the negative sense of those Bills which would not be appropriate for such referral. I think we would take a view very much in line with what some of the previous witnesses have said, namely, that Bills which embodied principles on which there was a clear partisan divide in the House would not be appropriate for such a procedure; there would be little to be gained from that. Christopher Price said that Bills involving heavy financial provision might not be appropriate. I think there are certain Bills like that which would be suitable for exclusion. One can say there are certain categories which might not be relevant for consideration. I am reluctant to start identifying categories which are appropriate for transfer, because if you look at the five Bills considered so far they fall into different categories. Christopher Price, for example, described the Mental Health Bill as a lobbyist Bill. I do not think categorisation is necessarily achievable; it might provide a straitjacket, and I am not sure it is our task to recommend specific categories. If we might go back to what Merlyn Rees said, he said that on the Bill he was chairing he had to make up the proceedings as he went along, and that would have to be the case as far as the Business Committee was concerned. There are some Bills which might seem on their face to be appropriate and others might seem dubious, but my view is that you have to look at Bills on a case by case basis and evaluate them on their merits. I would be very wary of having fixed categories as to what Bills might or might not be referred to Special Standing Committee. Some Bills may have a polyglot character and may seek to achieve rationalisation through different means on which it is known outside bodies disagree. That might be a general category which would be appropriate, but I am reluctant to go further than that because I do not think we can impose a straitjacket on the Business Committee beyond indicating that certain categories might be appropriate and certain categories might not. I would be averse to saying to the Committee this sort of Bill should be referred and this sort should not.

306. If I might press you, I understood you to say at the beginning you thought that a Bill about which views were divided strictly on party lines would not be appropriate?

(Dr Norton) Yes. But there might be a Bill embodying several principles and stipulating various means for their realisation on which outside bodies disagreed and on which there might be a partisan divide in the House on Second Reading, but not necessarily so clearly on certain provisions of the Bill. I would not necessarily rule out Bills on which there has been a clear partisan divide on Second Reading; I do not want to make it that clear-cut because I can think of one or two Bills in that category.

307. By "partisan divide", do you mean a party political divide, or do you mean "partisan" in a more general sense?

(Dr Norton) I mean a divide between the Government party and the Opposition party, a clear partisan divide where the two parties face each other.

308. In that case, do you differentiate between the division into parties on everyday business of the House and the division into "pros" and "antis" on such Bills where there is clearly a division on principle, like the Abortion Bill?

(Mr Johnson) Surely, in such cases the point is that usually the Government's own position is not committed; it is not at stake. There may be something which is hotly disputed between and across parties, but nevertheless it can be treated in some senses as non-partisan simply because the Government is not engaged in it one way or the other.

(Dr Norton) The point is that Bills might be candidates for this procedure because the Government is not committed and there is no clear divide; it may extend to several Bills where on Second Reading the Government is in general united with the Opposition but where on certain provisions the parties are not united and there might be opposition from outside. There may be several principles involved and there may be a great many clauses, some of which may be contentious in a party sense but not in the sense of the Government versus the Opposition. I do not rule out consideration of a Bill in that way if the Business Committee is of the opinion that it should be subjected to the procedure.

309. I would like to go back to the point Mr Maxwell-Hyslop made about the nature of "scrutiny". What is the purpose of the Special Standing Committee? Is the purpose to enable the people on the Special Standing Committee to have a better understanding of the Bill and its purpose, in which case is there not quite a good case for scrutinising more Bills than you suggest by that procedure? If, on the other hand it is merely there for people to come and give their views and to make sure they are properly aired, can it not equally well be done under the present system whereby they lobby their own MPs?

(Dr Norton) We do not give a figure for the number of Bills which would be appropriate for consideration by Special Standing Committee. I am in favour of the greater use of them, and I am impressed by the use to which they have been put so far. I think they are valuable for the purposes of hearing evidence from witnesses from outside and examining that evidence. Witnesses can come before an authoritative forum and can express their views in that forum publicly rather than lobby Members privately; otherwise, nobody is clear by whom Members have been lobbied or whether they have been lobbied. If outside groups explain their case to a committee of the House they are more likely to accept the Bill even if the committee does not accept their evidence. It is very important that they should be allowed to come before the committee, because they are making representations in the open, and it is far better that those groups can say what effect the Bill will have on them rather than say it to a Member who then proposes an amendment. It is a forum where it is far easier to evaluate the merits of the case and the source from which it comes than would be the case if the Bill were simply opposed by Members of the House, in which case the House would know little about the genesis of that opposition. I think there is a lot to be said for having committees to examine witnesses in the formulation of a statute rather than the existing procedure.

Sir Hector Monro

310. On the carry-over of Bills, the only thing we are all agreed on in this Committee is that we have too much legislation. Whilst there is a procedure for carry-over at the moment, it is very sparingly used. Would it not perhaps create more legislation because the Government think it had more of a sporting chance of getting Bills through?

(Dr Norton) No. When Mr Bradshaw appeared before the Committee Mr Powell put to him the point that it might increase legislation because the Government would say, "We want to get five Bills through and we know we will get five Bills through", whereas in other circumstances it might not be able to get them through. This is perceived wisdom. If the Government wanted to get five Bills through, it would do. Looking at our proposals I am not at all persuaded by the argument that they would be decisive in enabling the Government to get more legislation through. We are trying to achieve a balance in terms of the consideration of legislation rather than providing a means whereby you can get more legislation through. I do not quite see how it would work either with timetabling or with the carry-over provision. It calls for a greater balance, and I do not think the carry-over proposal would necessarily produce an increase in the number of Bills going through. However, to allay the fears of those who believe it might happen we have suggested that the Business Committee would be required to produce a report each year and to monitor the progress of the new proposals; it would report to the House on the effect on legislation.

311. Your recommendation is that it is part of a package deal, including the timetabling experiment?

(Dr Norton) We think it makes greater sense as a package, as we mention at the beginning. Each proposal should be evaluated on its merits, but we think that together they make for a more coherent and better balanced procedure.

312. I find it very hard to accept we should have a carry-over of Bills if we have a timetable, because it would not seem to be necessary if the timetabling committee did not wish to proceed into another session and could not timetable within the normal 35 or 37 weeks that the House sits, and if it was not that way round and we did not have a timetabling motion any Opposition worth its salt would talk for even longer in committee and force a carry-over just in the hope that the Bill might fall one way or the other?

(Dr Norton) They might try it. I would agree that if you have a timetable it reduces the need for the carry-over procedure, but it would still be necessary to have it for Bills at the end of the session. Although one can timetable Bills in this House one does not have responsibility for timetabling Bills in the other House or for what amendments are made there; that would have to be taken into account as well, so you would need a carry-over procedure. If there are long public sessions before a Special Standing Committee it might come into play, although I was thinking more in terms of a carry-over provision for the other House. Timetabling would reduce the need to carry-over but there would be a residual need for it.

(Mr Johnson) If I might add a remark, it seems to me that though we have included carry-over as part of the package of suggestions here, it is aimed at a rather different problem, namely, the actual distribution of the legislative workload over a year, perhaps a calendar year rather than a parliamentary year. I think that in fairness one has to make that acknowledgment; it is really getting at a somewhat different aspect of the planning of parliamentary business.

Chairman

313. May I pose what I see as a crucial question and one which this Committee will have to answer if one is to proceed with your suggestions, because it is a question which the House will ask? What leverage would remain with the opponents of Bills, apart from the ability to improve them, to defeat the Government if they know that, whatever the delaying factor may be, the Bills somehow or other are going to be put on to the statute book?

(Dr Norton) Presumably, at the moment they know they will get on to the statute book. Our proposals will ensure that there is a better statute going on to the statute book. Oppositions are not under any illusions about Bills getting on to the statute book.

314. But would you consider that the inability of the Government to get the British Telecom Bill through before the general election was a victory for the Opposition or undermined the influence the Government had to bring it forward to the next Parliament?

(Dr Norton) Probably a bit of both. I think we are dealing with a different problem; we are looking at the calling of an election as opposed to carrying it over to the next session. I do not see how you can write into the procedure the circumstance of the Government calling an election; I do not see how you can work it into it.

Viscount Cranborne

315. Are we not assuming that the Government has an overall majority? There have been long periods in the House of Commons when the two-party system has not applied, however much we may have laboured under the illusion that the natural situation of Parliament is a two-party system. One can think of the 1930s and large chunks of the nineteenth century when that was not so. To assume that the present situation will always obtain is possibly an error, because it might conceivably be the case. if there were to be a change in the system of election, that in Parliament there would be a multiplicity of parties and coalitions, in which case it might be more realistic to maintain the power of delay. I can think of circumstances where governments can change or deals are struck which will mean that Bills may be lost as a result of delay?

(Mr Johnson) I venture to say that in those circumstances you would not need the power of delay at all; there would be delay simply because of the political circumstances.

(Dr Norton) If the Government is in a minority it does not have a majority.

316. But the circumstances of the Government can change; it might not be in a minority or majority. There could be circumstances in which a Bill going through Parliament is affected by a change in the circumstances of the majority in Parliament without a general election?

(Dr Norton) Yes, but I do not necessarily see that that would work against our proposals; I do not necessarily think it would affect them, if you are arguing that there is a balance between the two sides, in the sense it would encourage greater consensus on the part of the Business Committee to reach agreement there. The Government would have to be careful to carry as many Members as it could with it to make sure the two sides were balanced.

317. What I am trying to do is make a very simple point. It is conceivable that a Bill will start its progress through the House in one set of political circumstances and within the compass of the committee stage, even a guillotine committee stage, the circumstances could change, in which case the power of delay would become extremely important?

(Dr Norton) The circumstances could change, as they did in the 1974-79 Parliament when the Government slipped into a minority in April 1976, but if it changes in the sense of the Government suffering by-election losses and so on, in a sense the power of delay is a real one, but that is the reality of government. I do not see a problem in relation to the terms we are proposing. I accept there is an academic argument supporting your suggestion that there is more likelihood of hung Parliaments.

318. It has happened in the past?

(Dr Norton) Yes, and historically majority Governments are the exception rather than the rule, but it would not work against our proposals.

Chairman

319. Before we come to a conclusion, there is one part of your paper you have not mentioned. I would like to ask you if there is anything you would like to mention, now we have had our questioning, which you feel we have perhaps neglected or have incorrectly emphasised. First of all, do you consider that the committee stage of a Bill ought to be to improve it rather than allow parliamentary political harrying?

(Dr Norton) I would assent to that assertion; that is the purpose of the committee stage.

320. Secondly, have you considered whether there would be a greater chance of that happening if government Members on that committee appeared to be more free to participate and were encouraged to participate in that committee than appears to be the case now?

(Dr Norton) Yes. As I tried to say earlier, it is central to our argument that greater participation of government Members might encourage greater scrutiny of and influence over measures, given that the most effective influence is exerted by a combination of Government back-benchers and Opposition Members. That is at the heart of what we recommend.

321. Do you think the Opposition might object to it much?

(Dr Norton) I think it would be in their interests not to object to it.

322. Lastly, are there any points you want to put to us to underline or correct anything you have said to us?

(Dr Norton) I would merely wish to reinforce what we have said. I was struck by the remarks made by Mr Biffen when he appeared before you, and many of his observations we would find agreement with. His principal assertion was that the purpose of a committee was to scrutinise and any change in the existing practice must seek to be flexible and must maintain public trust, insofar as the public take any interest in committee proceedings as well as maintain the interest of Members. Our proposals are largely in line with those criteria. The primary goal is scrutiny. We would like to have a procedure where there is timetabling but some flexibility. If committees are seen to be engaging in effective scrutiny of Bills it enhances the public's respect for the House and the measures themselves. I think that if committees were seen to be no more than rubber-stamping procedures--and some critics say they are at the moment--it would not enhance the public's respect for the measure or the House. If the House is seen to be subjecting measures to scrutiny it enhances the status of the House, and there is a greater likelihood of the measures themselves being accepted by the groups to which they are directed. In terms of the interest of Members, I suggest there is clear support for some of the proposals we are making, particularly timetabling. You mentioned earlier the questionnaire sent round by the Commons Reform Group and the responses it received. I was struck by the proportion of Members who were in favour of timetabling: it was the second highest majority, other than for the possibility of limiting the length of speeches. I think it would attract support from Members on all sides looking at it from the point of view of the House, the Government or the usual channels, so we are trying to provide a procedure which will allow for the realisation of the goals set by the Leader of the House, because he himself did not seek to provide any proposals for their realisation. In a sense we are admittedly going somewhat beyond his "minimalist" position, but our proposals seek to realise the goals he puts before the Committee.

(Mr Johnson) May I make a remark chiefly in order to avoid any possibility of misunderstanding in relation to what was said earlier about the foreign experience, particularly the methods of the German Bundestag. All the remarks made in the paper, and certainly what I have said tonight, are concerned with the work of these business committees. The Council of Elders in the case of the German Parliament is settling the agenda for plenary sessions; in other words, none of what was said has any direct bearing on what goes on in committees and how the committee systems of legislatures like the German Bundestag operate. I would also like to take the opportunity, having underlined that point, to stress that certainly in continental European parliaments (this is eminently true of the Bundestag) one of the interesting facts is that Standing Committees, which are essentially specialised, operate according to a very much less formal procedure than anything we have in the British Parliament. They are neither Select Committees taking evidence nor are they Standing Committees debating in public; for the most part (I simplify it somewhat) they are consultative, supervisory committees operating in private and operating round the table under very informal procedures. Of course, that does make a very big difference to the quality of the committee stage of the legislative process which then occurs; in other words, we are talking of parliamentary practice which is in very fundamental respects rather different from anything we have here at Westminster.

(Dr Norton) Following on from that, of course the committee stage precedes what is in effect a Second Reading procedure, so it is very different because the business committee only comes in to deal with a subsequent stage on the Floor of the House, like in the United States where the position is completely different.

Chairman: Mr Johnson and Dr Norton, thank you for giving us your paper, thank you for giving us your time and thank you for giving us the benefit of the very great mental energy which must have gone into preparing your presentation this evening. We are most grateful to you.


Prepared by Simon Patrick, 2 June 2001