Sir George's Minority Report on Modernisation
6 Jul 2000






Draft Report, proposed by Sir George Young, brought up and read, as follows:

"Summary

1. We are unable to agree with the proposals in the Chairman's
draft Report on Programming of Legislation and Timing of Votes.
Over the past three years, all the members of the Committee have
worked together on proposing changes to the procedures in the
House. Our objective has been to enhance the way the House
approaches its primary tasks of legislative scrutiny and holding the
Government to account; and, up to now, all members have
contributed to the production of unanimous reports.

2. At times, we have done so with some misgivings; our view has
been that Parliament needs strengthening of its ability fully to
examine all Government Bills, secondary legislation and
resolutions. But we recognise that it was right to review how the
House operates and that, where possible, the Committee should
proceed by agreement.

3. We are however concerned at the way Parliament, over the years, has been marginalised and bypassed - a process which has accelerated in recent years. We believe that the terms of trade Parliament and Executive need to be tilted back towards
Parliament.

4. But the proposals in the paper make it yet easier for Government to get its legislative programme through the House and, in so doing, lessen rather than encourage proper and adequate scrutiny.

5. The proposals on the programming of legislation do not recognise that the Government has a role to play in improving the operation of the House by reducing the sheer volume of often badly-drafted legislation. Instead of this, they promote an
acceleration of the current process, making it easier for Government to get its legislative programme through the House and, in so doing, lessen the prospect of adequate scrutiny and making the constitutional duty of Opposition more difficult. We
make some proposals of our own which are more in keeping with the House's traditions of evolutionary change.

6. The proposals on the timing of legislation are manifestly for the
convenience of Government supporters; but the procedures of the
House are not primarily aimed at being family-friendly but rather at
enabling the House properly to carry out its duties. These
proposals will heighten the cynicism of the political process.

7. The Chairman's draft Report suggests that the proposals are "a
further incremental change in the way in which the House works".
Not only is this entirely unsubstantiated, but we see them as a
missed opportunity to reassert the duty of Parliament to provide
better opportunities to hold Government to account.

Programming of Legislation

8. We recognise the pressure from many Members, embodied in
the representations made by Anne Campbell, for changes in the
hours of the House. The Chairman's draft Report explores whether
Parliamentary business can be arranged in such a way as to ensure
greater certainty in the time at which votable business finishes and
therefore in the time when Members can go home.

9. We have no interest whatsoever in unnecessary protracted
sittings of the House. They risk making the House look ridiculous.
The four Conservative members of the Committee spent 72
collective years between 1979 and 1997, being kept in the House
far later and more often than has happened in this Parliament, by
Members who, now they are in Government, press reform on
them.

10. As we have agreed in the past, we accept that there should be
changes which minimise the need for late night sittings, compatible
with proper scrutiny. The Finance Bill committee stages, for
example, used to take place on the floor of the House, whereas
now they are mostly taken in Standing Committee.

11. However, the Chairman's draft Report wholly fails to analyse
the reasons why the House has recently been sitting late. It
therefore tackles the symptoms, without diagnosing the cause. It
proposes less time for the process of scrutiny, and for the
responsible role of opposition at a time when more time needs to
be allocated to scrutinising legislation and statutory instruments.

12. Not only does the draft Report fail to look at the causes; but it
does not examine alternative solutions such as rearranging the
Parliamentary year to see whether an earlier rising of the House
might be accommodated with the loss of a week or two of the
recesses. Instead, it focuses on one particular solution which has
the consequence of restricting debate within the Chamber.

13. Contrary to what is sometimes asserted, the reasons why the
House has been sitting late are not because the Opposition has
needlessly prolonged debate. Annex A contains a detailed analysis
of those occasions where the House has taken substantive
business after 10pm. It shows that the principal reason for sitting
late is the sheer volume of business tabled by the Government -
not protracted discussion by the Opposition. Annex A, which is
detailed, is summarised for convenience in Annex B.

14. This increase in the number and complexity of the
Government Bills has been widely commented on. Madam
Speaker says in her letter (Appendix 1) "As background to that
observation, I note that Government legislation introduced in this
House or brought from the House of Lords in the current session
to date comprises a total of 2537 pages (excluding consolidation
bills). The equivalent figure for the long 1997-98 session was
1901, and for session 1998-99 was 1590."

15. This is further substantiated in the June 2000 Constitution Unit
Bulletin under the headline "Legislative Logjam." "But the
originators of the logjam are the Government. They plan each
session's legislative programme in Cabinet committee, which is
where collective discipline has broken down. Bills are allowed into
the legislative programme which are insufficiently prepared, and
then subjected to rafts of government amendments as they go
through Parliament...If Mr Blair is serious about joined up
government he could start by giving more authority and support to
the Legislative Policy Committee of his own Cabinet. That is
where collective responsibility and discipline need to be exercised,
by detecting and blocking inadequately prepared bills; not by
leaving the mess to be sorted out later by Parliament."

16. The point was well made by Gwyneth Dunwoody on June
28th when she asked the Leader of the House "which half of her
legislative programme she is thinking of abandoning" so the House
could rise for the Recess. (Col 714. June 28th)

17. Not only is the legislative programme too unwieldy; it has
been poorly managed. The Disqualifications Bill was rushed
through the House of Commons in January, but has only had first
reading in the House of Lords. The Freedom of Information Bill
had its first reading in the House of Lords on 6 April and has not
progressed beyond second reading on April 20th. The Political
Parties, Elections and Referendums Bill, which the Home Office
would like to be on the statute book before the summer recess,
has had one day in committee in the Lords on 11 May and is not
due to be discussed until after the summer recess. This may cast
doubt about the rules under which the next General Election will be
fought.

18. A bill that was promised in the Queen's Speech has now been
abandoned. "Legislation will be introduced to improve the
education of children with Special Educational Needs." But it has
not been.

19. Problems arising from the volume of legislation have been
compounded by poor drafting. Inadequate recognition has been
given of the need to draft bills properly so that the best use is made
of the House's time. The parliamentary draftsmen have a finite
capacity to draft bills, and if they are asked to do too much, a
price is paid by devoting time to amendments as the bills goes
through; occasionally, fresh primary legislation is required in a later
session.

20. The Financial Services and Markets Bill returned to this
House from the Lords with 675 amendments, of which only 15
were non-Government amendments.

21. On March 2nd, the Government dropped the water and
telecommunication sections of the Utilities Bill, despite having
claimed to have consulted industry before introducing the Bill.

22. As Lord Alexander of Weedon said in his Constitution Unit
lecture on June 28th, "And in many cases the Government has
used the legislative process to tidy up bills which were defective
because the hard-pressed Parliamentary draftsmen and women
had insufficient time to do their highly skilled and increasingly
complex work."

23. To cope with this growing workload, the guillotine is being
used more frequently than in previous administrations to drive the
programme through. This is shown in Annex C. So far this
Parliament, 18 bills have been guillotined, more than the 17 in the
six Major years.

24. These underlying causes of the congestion in the business of
Parliament are neither discussed nor addressed in the Chairman's
draft Report. Instead, it proposes a supposedly more "efficient"
procedure. This would process the same volume of ill-considered
legislation more quickly and with greater certainty, much to the
benefit of the Government. Further, the paper proposes
constructing this entirely new edifice on fragile and untested
foundations.

25. So far, the agreed programmes which form the central feature
of the draft Report have neither been extensively tested, nor have
they been an unqualified success. And of course all programme
motions, whether agreed or not, have the potential to limit the
rights of backbenchers who are not party to the agreements to
have their amendments debated.

26. As Madam Speaker has said, "Their success is ensuring that
all parts of a bill are properly considered has perhaps been more
mixed." The Chairman of Ways and Means goes further. "If then
the justification for programming is that it allows debating time to
be spread or rationed so that all parts of a bill can get appropriate
attention, observation from the Chair would lead me to conclude
that this outcome has not been frequently achieved...Later he says,
"However, I ought to say in parenthesis that the evidence for how
the new arrangements have worked in practice is thin."

27. Annex C to the Chairman's draft Report shows how often
sections of bills that have been programmed have not been
discussed. Of the programme motion on the Northern Ireland Bill,
the paper states (para 2) "By then the available time had run out,
and Clause 2 was disposed of without further debate, and Clauses
3 to 9 and the Schedule to the Bill without any debate." Of the
programme motion on the Transport Bill, the paper states (para 5),
"42 groups of amendments were selected by the Chair; 11 of them
were debated, but 31 (of which 4 consisted of minor and drafting
amendments) were not reached."

28. The supplementary guillotine motion for the Lords
amendments to the Representation of the People Bill allowed two
hours for debate on the motion and on the Lords amendments.
Four groups of amendments were debated but eight were not.

29. Yet on these modest, short-lived and not wholly satisfactory
foundations, a whole new edifice for programming all bills is to be
constructed.

30. We believe, as an alternative, that the Opposition should
continue to agree programme motions for the remaining stages of
controversial bills, as with the Local Government Bill [Lords] on
July 4th and 5th, and the Transport Bill last month. This can ensure
that debates on the important issues take place in prime time and
give the House more experience of agreed programme motions.

31. We have no objection to a Standing Committee Business
Sub-committee deciding how a Standing Committee stage of a Bill
should be organised, if it sets out to ensure that all parts of the bill
are able to be considered.

32. We also suggest that, where agreements on progress of the
business of the House are arrived at through the usual channels,
these should be more widely known and at the earliest possible
moment. This will bring benefit both to those inside and outside the
House, and keep the flexibility that these arrangements have over
the rigidity of a time-table motion.

33. We believe that this offers a better way forward, in the
tradition of evolutionary progress, than the proposals in the draft
Report. These one-sided proposals contain no recognition that the
Government should make a contribution in return for the great
benefits that the draft report proposes to give the Government. It
should be remembered that improvements or amendments to
procedure have only worked when they have had the assent of all
parties in the House. It is not the role of a responsible Opposition
to validate proposals which accelerate an over-ambitious and
badly drafted legislative programme.

Timing of Votes

34. When one considers the timing of divisions, the proposal to
defer those votes which normally take place after 10 pm until the
following Wednesday must be immensely attractive to the
Government. But helping Government at the expense of the
Opposition and at times of their own backbenchers is not the
intention of the procedure of the House. The proposals would
certainly be convenient for those who want to vote in the afternoon
in midweek, without the related inconvenience of being anywhere
near a debate after 10 pm.

35. While we see the attractions, from the Government's point of
view, of deferring votes on the motions as set out in para 32 of the
Chairman's draft Report, we find the arguments on the other side
more powerful.

36. One of the principal purposes of the Chamber is to debate
and then come to a decision. The concept of Members voting
once a week on a whole range of different and important issues
that have been discussed on the previous four sitting days, when
they may not even have been in the House, is insupportable. The
absolute divorce of decision from discussion in the method
proposed, for the convenience of government supporters, will
heighten cynicism about the relevance of debate and discussion,
and undermine confidence in the parliamentary process.

37. The two arguments used to establish that votes can be
delayed from after the immediate debate do not support the major
change of voting proposed in the report.

38. On debates on Estimates, if the day is divided to deal with
two reports and there is a motion requiring a division which would
normally be taken at 7 pm, this can be postponed under standing
orders until 10 pm, a delay of only three hours.

39. So far as amendments during committee or report are
concerned, where amendments in different parts of the bill are
grouped for debate, one of those amendments may not be voted
on until the part of the bill relevant to the amendment is reached.
However, that is usually later in the same day, during the
proceedings on that bill.

40. Neither of these two "precedents" begins to justify the
proposed postponement of divisions to a "mass vote-in" on a
Wednesday. That a similar procedure might have been adopted in
other Parliaments has never been a reason for Westminster to
copy it; and, in any event, we note the comment of Martin
Westlake on page 202 of A Modern Guide to the European
Parliament: "This detachment from debate on the one hand, and
grouping (of votes) on the other, inevitably removes the climactic
element from parliamentary debate and makes the Parliament seem
like a voting machine."

41. The proposal would further aggravate two existing problems
and create some new ones. First, it will diminish attendance and
interest in the Chamber; the casual attender of the debate after 10
pm will often raise points of interest which can destabilise the
Minister and occasionally give rise to a division.

42. Second, it must make it yet easier for the Government to get
even more secondary legislation through parliament, when there is
a need for the Government to be challenged more often - a point
forcefully made by the Liaison Committee's recent report, Shifting
the Balance: Select Committees and the Executive.

43. It will create new problems; the deferral of a vote on a matter
discussed on a Wednesday evening until the following Wednesday
will delay the implementation of decisions taken by Parliament.
Urgent decisions, which could not wait for days, would have to be
taken forthwith at the commencement of business. Prime time for
debate will therefore be taken up by a series of conventional votes.

44. Divorcing the vote from the debate also further reduces the
likelihood of Member's being influenced in their voting behaviour
by what is actually said in debate. If there is a substantial gap
between a debate in which the Government has come in for
criticism from its own side and the actual vote, then there is time
for the Government whips to bring the dissenters to heel.

45. The suggested arrangements for deferred votes are described
as analogous to the procedure used for private Members' bills
ballots. We do not accept the analogy. The private Members' bills
ballot requires a Member to register only once and registration
may take place at any time during sitting hours on two consecutive
days. (Erskine May sets out these procedures on page 495.) This
is a ballot; not the passing of legislation.

46. Under the proposals in the Chairman's draft Report, there
would, potentially, be many questions upon which Members would
be required to record their votes. It is envisaged that a voting sheet
would be prepared for Members to complete, but the report does
not clarify how each question would be described on the sheet in
order to ensure there was no confusion amongst Members as to
the issues upon which they were voting.

47. A string of divisions in the House could interrupt the period of
recording of votes. Members could find themselves in a position
where they had taken part in a debate but the vote was deferred
until a day when they were absent on, for example, select
committee business.

48. The related proposal that all programme motions introduced
under the Committee's proposals should contain provisions that
proceedings on any particular day should be concluded at about
10 pm (or 7 pm on a Thursday) has important consequences that
have not been fully thought through.

49. At the moment, report stages frequently occupy time between
10 pm and midnight - and occasionally later. For example, the
report stage of the Learning and Skills Bill, which was completed
in one sitting day beginning at 4.18 pm, lasted until 12.41 am; and
the first of the two days spent on remaining stages of the
Countryside and Rights of Way Bill lasted from 3.43 pm to 11.34
pm.

50. If that time is to be foregone by curtailing debate at 10 pm,
and bills are still to be properly scrutinised, then either the House
will have to sit for longer in the year; or there will have to be fewer
bills. Neither option is put forward for consideration, so the
proposal will simply further curtail discussion on Government bills.

51. For these reasons, we cannot commend the Chairman's draft
Report and its proposals to the House.












 
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