CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 786-i
HOUSE OF COMMONS
ORAL EVIDENCE
TAKEN BEFORE THE
PROCEDURE COMMITTEE
PRIVATE MEMBERS’ BILLS
WEDNESDAY 28 NOVEMBER 2012
PROFESSOR THE LORD NORTON OF LOUTH and DR RUTH FOX
Evidence heard in Public Questions 1 - 51
USE OF THE TRANSCRIPT
1. This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
2. The transcript is an approved formal record of these proceedings. It will be printed in due course
Oral Evidence
Taken before the Procedure Committee
on Wednesday 28 November 2012
Members present:
Mr Charles Walker (Chair) Nic Dakin Thomas Docherty Sir Roger Gale Mr James Gray John Hemming Mr David Nuttall Jacob Rees-Mogg Martin Vickers ______
Examination of Witnesses
Witnesses: Professor the Lord Norton of Louth, Professor of Government, University of Hull, and Dr Ruth Fox, Director of the Parliament and Government Programme, Hansard Society, gave evidence.
Q1 Chair: Thank you, Dr Ruth Fox and thank you, Lord Norton, for coming before the Procedure Committee, to have a canter round Private Members’ Bills. What are they for? Are they any good? Do we have too many? Do we have too few? What can we do better? What should we do less of? I am just going to quickly ask each of you, if you so wish, to make a brief introductory statement. Dr Fox, why don’t you go first, and then we will have Lord Norton. Dr Fox: I do not have any statement beyond the paper we wrote about 18 months ago; it is slightly out of date now, but I think the same points and principles apply. I believe the paper has been circulated to Members, so I am content to take questions or whatever.
Q2 Chair: Excellent. Lord Norton, you have submitted some pre-session written evidence, but is there anything you would like to say before we start? Lord Norton of Louth: Only that I think my starting point would be the quote from Winston Churchill, “Not every happy thought which occurs to a Member of Parliament should necessarily find its way on to the statute book”. I think that is a constraint one needs to begin with. That is the context in which I look at it. If you are thinking about facilitating getting Private Members’ Bills on to the statute book, you need to ask why, what is the purpose. I would be somewhat wary. Chair: Absolutely. Right. So, without further ado, James has intimated he would like to ask a question.
Q3 Mr Gray: It seems to me that central to all of this discussion is not whether we change the times when these Bills are heard, nor whether we change the procedures to make them easier to achieve the statute book, both of which are mechanical things that could be reasonably done. I think your paper—I hope you do not mind, Dr Fox; I am going to focus on Lord Norton—goes to the heart of it by saying, “What are these things for?” I liked your 2 analysis of the pessimist who would say they are completely useless and the optimist who would say, “Let us find a way of making them all into laws”. But you then come to a sort of slightly odd conclusion, I think, which is, broadly speaking—I am paraphrasing and you will correct me—that having a debating Chamber, a way of expressing views, airing thoughts, is of itself useful, even if none of them became law, and the variety of reasons we give for that. I have two problems with this. First, does that not diminish the status of Parliament? It would become a chamber expressing people’s views and all the things that you lay out in your paper very succinctly, rather like the Oxford Union does? Secondly, if that is your view, why is it you then go on in your third part of your paper to talk about two or three ways in which procedure and timings could be changed, which might be thought to be making it easier for the Bills to pass? The third part of your paper seems to me to be inconsistent with the second part, if you follow my thinking. Very rude of me; I did not mean that to sound rude. Lord Norton of Louth: Let me start with your basic point. No, it does not diminish the status of Parliament because I think a lot of this derives from a mistaken view of what the point of a legislature is, because people are normally driven by what is in some dictionaries, which is that the legislature is a law-making body. Hardly any legislature is a law-making body in terms of it being the body that crafts legislation and puts it together; that is done by the Executive typically. What defines legislatures is that they are law-assenting bodies; that is the crucial, core defining function. It does not become the law unless Parliament has given it its approval. Parliament, therefore, has crafted a key role in debating what the Executive brings forward before deciding whether to approve, amend or reject it and that takes up most of the time of the legislature. That is entirely appropriate, particularly in a system where you have representative and responsible Government. You have a party in Government that stood on a particular platform, it seeks to generate a coherent programme of public policy, and it is then up to Parliament to check it, to see whether it wishes to approve it and whether it is the most appropriate way for achieving its end. That is really what Parliament is about. But there is a role for Parliament in terms of not allowing the Government to have a complete monopoly so that Members themselves can raise issues, pursue them, and that is the real value of Private Members’ Bills in the way that I have described them, because Members can then raise issues free of Government concern. My point is not that that is the end of a process but you raise them as the start of a process. Parliament is a very good arena for hearing different views and for hearing the opposing views, then it is a matter of seeing what the support is, and whether there is a basis for taking it forward. The purpose of the Private Members’ Bill in itself is not that that Bill will get into law, but that does not mean the intention is not to achieve a change in the law—that comes later. It is the start of the process in getting it going. I do not think what I am saying in any way diminishes the status of Parliament. What it does is provide a role for Private Members to take the initiative in raising issues, getting them aired. As I say, at times there is a very powerful agenda-setting role, so it is providing that outlet in a way that—
Q4 Mr Gray: That is moving on to my second question. If that is the case, then the fact that they are difficult to get through and they are hidden away in some dusty and obscure corner and nobody pays attention to them is a good thing, because Churchill’s point becomes pertinent. Fine; let us not change it, let us leave it where it is and let us hope that none of this ghastly legislation becomes law. All it is is a way of tickling the Prime Minister’s bottom in the hope that he will do something worthwhile. Lord Norton of Louth: I wouldn’t quite put it like that. I take the first point you started off with, which I think is right. It doesn’t take up much time, but I don’t regard it necessarily as down there and not to be given much notice, because it matters to those Members who wish to raise it and it matters to people outside. The key thing is the 3 opportunity to raise it, to get it on the record and to get a Government response. It doesn’t have to be a full Chamber. It doesn’t matter necessarily if it is a Friday. It is the process that becomes extraordinarily important for getting the issue raised and people outside take an interest in it. As I say, you get a response. Equally importantly, you are promoting your case, you hear what the other side is as well, and that is the basis on which you then see if there is a basis for taking it forward. But in an agenda-setting role the mere fact of getting it on the record is extremely important. I do not disagree with the substance of what you are saying, but I express it differently and perhaps more positively.
Q5 Mr Gray: But if that is the case, then why do you, in the second part of your paper, suggest various improvements that would make them easier to pass? You talk about having a different day, and you also talk about having a Private Member able to move a motion— Lord Norton of Louth: Yes, to allow the debate to go on on a Friday. If you change the times, that does not necessarily make it easier. I say it is either a matter of convenience or it might add more time for debate. It does not mean you get them through, because the procedural rules are the same. That is the second point. On the first point, I was clear to emphasise this was only in exceptional circumstances. There may be occasions when the House itself clearly wants to get a measure through and on that occasion you might say, “It is not really fair that you allow just a handful of Members to block a really important measure the House has agreed on”. It is just to allow that mechanism in that exceptional circumstance that I think would be to the benefit of the House while still maintaining those restrictions. It is not just a free-for-all of making it easier for any Member to pursue a Bill.
Q6 Mr Nuttall: Already, if there was that number of Members in the House, 100 of them could vote to curtail the debate, so I am not quite clear why you would want to have 150 to carry on. Lord Norton of Louth: You can move the closure, but, of course, if there has not been enough time for considering it—and it is also when you come to Report stage as well, so it is looking at the other end. You would need 100 to move closure, but you still have the 2.30 cut- off. Mr Nuttall: Yes. Lord Norton of Louth: It is allowing you to—
Q7 Mr Nuttall: But by then they would have had five hours. Lord Norton of Louth: But if you are in Report stage you still need to carry on; that is the point.
Q8 Thomas Docherty: May I declare at the start that I am the Commons Member who is liaison officer for the Hansard Society? As the Chairman has said, this is a session to kick around some ideas prior to us setting our terms of reference for the inquiry. Already we are doing what we do very well, my Lord, and sucking into the detail. What do you both feel are the big issues that we should be considering as an inquiry? Rather than focusing on the individual lines of detail, what are the concepts that we should look at? Dr Fox: I think you go back to the first principles of what is the value of Private Member’s legislation? What is the role that it serves? Do you accept that there is a role for Members, Back Benchers, to initiate legislation? Is there value in that? Is that something that 4
Members want? If so, then how do you put in place processes and procedures to make that as efficacious as possible? I think it is quite important from the Hansard Society’s perspective that whatever those processes and procedures are does not lead to a flood of every Member bringing forward a Bill that goes through, or processes and procedures that make it easier to get on to the statute book. That, to my mind, is not the purpose. To my mind the test should always be the same as it is for Government legislation, in the sense that there should be proper opportunity for scrutiny and debate, and there should be proper preparation and proper drafting. If that is not in place, then you would not want a huge amount of that legislation going through. The Government has an interest in this, it seems to me, in respect of financial matters. It has an interest in the coherence of a statute book, in compliance and administrative issues. There are a range of interests that have to be reflected in that and the question is: what process do you adopt that enables Members—if you think that they should have that opportunity to put issues to a vote before their colleagues—to bring forward a Bill? What processes do you put in place to make that efficacious? I think there are other elements, as Lord Norton has referenced, which are the value of debate and discussion and topicality in terms of Members being able to raise matters of concern to their constituents or, more widely, in respect of policy, although that has to be thought about perhaps differently than it was five or 10 years ago in that there are new opportunities for bringing forward topical issues that did not exist some years ago. We are talking about Private Members’ Bills as a whole, but in fact ballot Bills are somewhat different from ten-minute rule Bills and the value of a ten-minute rule Bill is slightly different for Members from the value of a ballot Bill. There is a role and a value to Private Member’s legislation in respect of public engagement with civic society and interest groups. The question is, therefore, if you think that is important and it provides an important mechanism, in terms of the current system, is it as efficacious as it could be, and does it reflect well in terms of the way Private Members’ Bills are conducted? Does it reflect well on the House and on individual Members or as well as it could? If it doesn’t, what issues in the system need to be addressed? Lord Norton of Louth: It is reflected, I think, in my paper and Professor Rush’s because we are looking at it from different perspectives, and I think one can encapsulate it. You need to ask, is the purpose of Private Members’ legislation to legislate or is it to initiate? Professor Rush’s paper was looking at it from the point of view to legislate; how do you make it easier to get Private Members’ Bills on to the statute book? Mine was from the perspective that Private Members’ legislation is about initiation; it is getting the issue raised and then taking it. They are not mutually exclusive necessarily, but the focus is very different in terms of how you see the purpose of using the time that is devoted to Private Members’ legislation.
Q9 Thomas Docherty: There is a good story about a very wise Member of Parliament who spent a number of years pursuing an issue of mental health legislation changes and then persuaded another Member of Parliament to take it forward, so can you not be both? To speed things up, I have another question. Should we be looking at other examples of parliamentary assemblies in the western world and the Commonwealth—we do not have a monopoly on wisdom, as we have demonstrated time and again—that have a system that we could take parts from? Lord Norton of Louth: Possibly, but not a lot you can learn from that differs a great deal from what we do. It would be at the margins, to some extent, in terms of how you timetable the procedure. The other element that some allow, of course, is that you can have not just Members but committees as the bodies that initiate Private Members’ legislation. I am not sure whether that is much of a route to go down because you have had on occasion a 5
Select Committee having one of its Members introduce a Private Members’ Bill to try to give effect to what a Select Committee is pursuing.
Q10 Thomas Docherty: You were about to give a couple of examples, Dr Fox? Dr Fox: The ones that are sometimes quoted as possible examples are Scotland and Canada and that is largely around a sort of committee element to the process. There are some questions about how effective they are—certainly in the Canadian examples now going back some years. It had become a very partisan committee for what was meant to be a relatively non-partisan process and had not perhaps been as helpful as had been intended at the outset.
Q11 Sir Roger Gale: I would like to put a question to you first and then explain why I am asking you, if that is all right. Are you saying that basically what this is about is we have to decide why we are here and what we are here to do? The reason I say that is because I think I am right in saying until about 1857—when I think the Whips were invented—all legislation was Private Members’ legislation with the exception of macro-taxation, defence and foreign policy, which was under the control of Government. But everything else had to be done by building a consensus of Members of Parliament, which is what, effectively, the Private Members’ Bill now still is. If we want to create legislation, then that is one issue, and that requires Dr Fox’s approach in terms of the mechanics of it and how you facilitate that and enable things to happen rather than preventing them from happening. If what we are saying is that we want to somehow encapsulate the public view, which is now much more easily expressed through social networks and all the rest of it, and the end result need not necessarily be legislation but something that Government might then pick up and run with at a later date—and I can think of a number of occasions where it has happened—then we need a completely different approach. What I would like you to do, if you could, is try to steer us down one or other of those routes in terms of what we are going to inquire into further, because I think until we have sorted that out we could be going up completely the wrong path. Chair: Who would like to respond first? Lord Norton. Lord Norton of Louth: On your last point, I do not think you need to decide which path you are going down, because my point was you may wish to investigate it and invite evidence on which path is most appropriate rather than reaching the conclusion first and then inviting evidence. My point would be: why not investigate whether it should be to legislate or to initiate? At least that would provide you with a framework or a focus for the inquiry. On your point about looking at it historically, Whips go an awful long way back before the late 19th century, so they were highly effective at the end of the 19th century. The Whips were issuing three and four-line Whips by the end of the 19th century. But just on your point about the nature of legislation, you are right that predominantly until the latter half of the 19th century when you had the expansion of franchise, mass-membership parties and, therefore, a growth in public business, most legislation was private legislation, not Private Members’ legislation. It was private legislation initiated by Members, so the scope of public business was not that great and it understandably was defence of the realm and maintaining the Queen’s peace. We have seen a significant change since and, of course, the domination by Government of public policy. There has never really been a large period where Private Members themselves have been to the fore and been shaping legislation. There was a narrow opportunity between 1832 and 1867, the two Reform Acts, but the situation we have had since has been a matter of public policy and representatives from responsible Government, so there has been limited opportunity for Private Members to bring anything forward. On the central point, though, I think it is worth exploring whether Private Members’ legislation should be seen as a means of bringing some measure on to the statute book or 6 used, as I would see them, as a far better mechanism for getting the ball rolling to build up a consensus, because the ultimate goal normally is to get Government to accept the case for change and bring forward its own legislation. As I think you were alluding to, there have been various examples when that has been achieved. Dr Fox: Let me take a slightly different approach and jump to the conclusion. Let us assume you think the role is to legislate and you were unhappy with the current system. It seems to me, then, that you have two options. One is you incrementally reform the current system to deal with the inherent problems that arise in relation to time. The key problem at the moment, it seems to me, in relation to ballot Bills particularly, is the combination of the Friday sitting time with the procedures that apply. You either reform on that basis or you take a completely blank-page approach and say, “We are going back to the first principles. We want an entirely new system”. It could be to abolish the ballot; it could be to have one uniform system instead of three different types of Private Members’ Bill. If you think time for topical debate is important in terms of taking forward issues, then you reform the ten-minute rule system and have that, and you have a slightly different system for the ballot Bills, without a ballot. Then you would need some kind of system for judging merit and value: who gets to bring forward their Bill so that there is not a flood; how do you test quality, and what is the process going forward? If that is the approach you want to take then do you want a blank slate and a completely different system, or do you want incremental change of the existing one? That goes back to the values of the system in terms of what it means for Members, how important it is for Members, how important it is in respect of engagement with the public and public perception of the system, wider engagement with civic society. We are talking about getting the Government to adopt issues that are brought up through topical debate. The inverse, of course, is also that the Government wants Members to take up issues that they otherwise would not bring forward as part of their normal legislative programme— the handout Bills. Where does that fit into the discussion, and what is the value of that? Would it be better, in principle, to say, “If the Government wants to make these changes, then it should be open about it, above board and bring it forward on its own time”, in which case you are expanding the Executive’s time and reducing Private Members’ time, possibly? Lord Norton of Louth: The other element to bear in mind as well if you start to move it fundamentally, particularly out of the existing time slot, is you then have to consider the opportunity cost.
Q12 John Hemming: To Lord Norton’s point earlier, which is that effectively in all the processes and to a very great extent, Parliament is a law-assenting rather than a law- making body and the need to consult more widely on legislative changes does create a complexity. I was talking to a Danish civil servant who expressed concern about America where the committees get involved in writing legislation, which he thought was a bad idea. I am not sure I agree with him. I think there is a role in challenging, effectively, the civil service to explain why something is wrong. Do you think, perhaps, we should be looking more widely at whether we could move Parliament more towards at least challenging the system and give it a greater role in writing legislation than in practice it has at the moment? Lord Norton of Louth: No, is the short answer. Comparatively, the United States is the exception, we are not. The British Parliament is more towards the norm if you categorise legislatures. The US Congress historically has always been an outlier in terms of its capacity to translate values into law. There are certain difficulties if we start saying, “We want to go down that route”. You can’t do it simply by transplanting elements of the American system into ours; it wouldn’t work. 7
The committees are powerful because Congress is powerful. Congress is powerful because of a very distinct political culture in the United States, so we cannot replicate that. We cannot, therefore, create a legislature comparable to Congress. In terms of comparable legislatures, Congress is not in that category. The comparable legislatures for our purposes are some of the Commonwealth legislatures and some of the West European legislatures, where we fall into the same family of types of legislature. That is where we should be looking. There are tremendous dangers if we try to go down the American route in practice. If we look at it purely in terms of principle, I would say we could achieve it. I would be against it for the reasons that were in my paper: who do you hold responsible, then, when you pass that legislation? This is a problem with the United States; there is very little relationship between what Americans want and what Congress produces. The system favours partisan and special interests rather than the electors. I would prefer our system where you do have accountability because you have that one body, the party—now parties—in Government that are responsible for public policy and, therefore, answerable for that policy. If you leave it to Members—so you get an aggregate of whoever is there on the day making up their mind— there is no body that the electors as such can then hold accountable for the outputs of public policy. That is why I think the role of Private Members’ legislation is to initiate so that ultimately you are persuading the Government to take responsibility for bringing something forward. The Government then has the responsibility for that measure and can be held accountable for it. Dr Fox: I broadly agree. I think there is some value in a Select Committee doing as I think the Public Administration Committee did in drafting a Bill in relation to the civil service; they wanted to make a policy point and take that argument forward. But I would not want a situation where it was an open season and any Member or committee could bring forward legislation. It would be terribly, terribly messy. In terms of Private Members’ Bills, in terms of that legislative element, there has to be some consideration of what kind of issues Members can realistically bring forward. Lord Norton is not right in a sense; if it is going to go on to the statute book, it is going to have to have the support of the Government. Lord Norton of Louth: I should just say, as you mentioned that civil service Bill drafted by the Public Administration Committee, I was part of the process, the seminar that drew it up, and the whole point was to present it to Government. That was the key point.
Q13 Nic Dakin: I want to go back to some comments Dr Fox made earlier about ten- minute rule Bills, ballot Bills and, of course, presentation Bills as well. Do we need all these different vehicles and, in particular, in terms of changes bringing the Backbench business opportunity into play since the last general election? I would be interested in your views on that. Dr Fox: I think there are two perspectives on this. One is: does the system work for Members in terms of achieving what you want out of the system? Is it effective? Then I think there is also a public element to this in terms of public perception: is the system readily understandable, is the language accessible and so on? What, frankly, does a Private Members’ Bill mean? What does a presentation Bill mean? I think there are better ways of expressing things. The ballot Bills are the area that most people take an interest in, in terms of bringing forward actual legislation. They are the ones most likely to succeed because of the procedure. The ten-minute rule Bills go to the opportunity to have a debate in primetime in the Chamber. I suppose the question then is, if you want to enhance the opportunity for debate, for bringing forward policy ideas, for advocating a particular campaign, do you need that within the Private Members’ Bill system, or can you use that at that time in some other form— possibly to be allocated by the Backbench Business Committee, whatever the mechanism may be—for 8 actual debate and take that out of the Bill system; simply create almost a uniform system of Private Members’ Bills that are essentially the ballot system, whether or not you keep the ballot and do it that way. I would preference greater clarity and uniformity of process and think about separating out the topicality from the initiation of bringing forward an actual Bill and drafting a Bill, and separate them out and have two different approaches.
Q14 Nic Dakin: The presentation Bills: you would still leave them in the mix? Dr Fox: There is some value, in a sense, but the degree to which they are taken a lot of notice of I am rather dubious about. Again, it is the opportunity cost; what is the value in terms of the time, the resource, the effort that is taken up? Is that sufficiently valuable to justify continuing with them, that Members find them useful to get things back on the record, to continue the discussion or not? I would like a little bit more simplicity. Lord Norton of Louth: I can see the point about the simplicity. I would caution against uniformity for the sake of uniformity because, in a way, they fulfil different purposes. If Members are using them, that suggests they have some utility, and it depends on what that is. We have been focusing on ballot Bills. I think the ten-minute rule Bill procedure is clearly extremely popular. It serves a purpose; you allow the House to express itself on an issue in primetime, and then you can decide whether to run with it in the light of that. I think that fulfils a purpose. As I mentioned in my paper as well, with the Backbench Business Committee, in a way, that now absorbs some of the interest of Members who want to get the issue raised, so it is much more productive than simply a presentation Bill because you do not get the chance to raise the issues. It may be, as a matter of course, that presentation Bills become somewhat less significant, but I do not think one should necessarily close them off, because they can serve some purpose. I am conscious that sometimes the purpose is simply to please some outside group and say, “Look, I have produced a Bill”, but so long as they serve more than that I am not for closing them off. My view is that the more opportunities there are for Members to pursue issues in the way they think is most appropriate I would retain those mechanisms. It is only if they cease to lose any purpose and Members are not using them, or they are so inefficient or costly that there would be a need to get rid of them—I would retain them.
Q15 Nic Dakin: Does supply not create its own demand to some extent—when these things are there we use them? Dr Fox: That would be my concern because, again, ten-minute rule Bills can become presentation Bills. When they not going any further, a Member can bring forward a presentation Bill. The question is: what is the value of it? I think you are right: Members will take the opportunity simply because it is there, because they can send out their constituents a letter and service campaign groups and so on. I am not sure that it adds sufficient to the process, and it would be better to have something that is more simple and straightforward. Lord Norton of Louth: I would caution that I would be wary of closing it off, because there are occasions when presentation Bills do serve a purpose. It is a bit like ten-minute rule Bills; they hardly ever get through, but some do.
Q16 Martin Vickers: The point I was going to make has partly been responded to. If you are only going to use a Private Members’ Bill to highlight a cause, there are much more effective ways of doing it. You have already mentioned ten-minute rule Bills and constant questioning, and you could set up APPGs; it seems a very inefficient way of doing it. In effect, should we abandon it altogether? 9
Let us explore a little the point that Lord Norton makes in his paper about a mandate. You make the point that by the nature of things a Private Members’ Bill will not have a mandate. Could I suggest to you that all Governments bring forward things that they do not have a mandate for as well. What are your thoughts on that, although that might be slightly beyond the scope of the inquiry? If we bear in mind there is considerable polling evidence that shows the policies and, therefore, the mandate is pretty irrelevant in the way people come to the decision on how to vote, does it really matter? Lord Norton of Louth: Yes. Let me deal with your last point first. It may not be in the manifesto but, of course, the Government remains accountable for whatever it brings forward. Electors know it is responsible. If it wasn’t in the manifesto or indeed if it goes against the manifesto commitment, the electors know that; they know the body that is responsible for it. That, I think, is the key point. On the mechanisms themselves, they are not mutually exclusive. If you have a campaign, you choose the mechanisms that are most appropriate for that particular campaign. For some purposes, introducing a Private Members’ Bill will be the best way of doing it, and I think—and I touched upon it in the paper—the value of that is the extent to which it engages with the people outside. You don’t get people necessarily lobbying you greatly on a ten- minute rule Bill or on presentation Bills, but if you know you are successful in the ballot, you have publicity for the Bill you are bringing forward, and it relates to what people are interested in outside; they take an interest, and they know about it, so I think there is a value in that. But, again, the point I make in the paper is you do not necessarily rely simply on a Private Members’ Bill; there are other means of raising issues. Sometimes they may be more appropriate and you don’t go down that route, but you might want to use several routes, of which Private Members’ legislation is one. I would be wary of simply closing off any avenue that is available to Members to pursue an issue they think is important and people outside think is important and should be raised. I can’t see why you should close it off; particularly with Private Members’ time, it is not eating into other time that would be used for something else. As long as Members continue to use that, I would see these mechanisms not as competing with one another but complementing one another. Dr Fox: Two things on those comments. In terms of the mandates, I think at the end of the day the Bill, if it commands the support of the majority in the House in a reformed system and would go through, would amount to a mandate among Members. Clearly, no Member is going to bring forward wholesale reform of the welfare system through a Private Members’ Bill. These tend to be—and under a reformed system would continue to be—fairly modest, by and large; modest changes or technical improvements, or whatever. In terms of the issue about closing off avenues for Members to bring forward issues and so on, I do not think changing the system needs to mean closing off avenues. It simply means creating new or different avenues through my approach of bringing some greater simplicity to the system. If you were to say, “Ten-minute rule Bills will no longer be part of the Private Members’ Bill process; that was a separate process” Ten-minute rule Bills at that time can be used for something else by Back Benchers; you don’t need to close it off. You can just reform it, change it or adapt it. Lord Norton of Louth: Could I add a postscript on Mr Vickers’ point, which, again, takes us slightly away from Private Members’ Bills, but when you look at the Bills Government introduces that are not in the manifesto, they tend to be administration Bills rather than policy Bills. Historically, parties have a rather good track record of implementing manifesto commitments. That tends to get overlooked, because you get the odd one that is more high-profile than not. But, on the whole, Governments have been very good at delivering on what they said they would deliver. 10
Chair: We need to hear from Thomas, who is the king of presentation Bills, I understand.
Q17 Thomas Docherty: Before I do that, I should point out that the AV Bill was not in anybody’s manifesto, and as Mr Hemming has left the room I can make that point with some comfort. That was quite a significant piece of— Lord Norton of Louth: I thought Labour promised a referendum. Thomas Docherty: A referendum, but not to introduce the system of AV. It would appear that you are saying presentation Bills are not as valid as either a ten- minute rule Bill or a ballot Bill. I was looking over the Order Paper the other day and it occurs to me that if you are sitting as the 18th ballot Bill—and I think your submission says more than 400 Members applied—unless you have a complete Government handout your Bill will not have one word, apart from “Object”, uttered to it, whereas the ten-minute rule Bill by its very nature does give you 10 minutes to discuss the merits of your legislation, and the presentation Bill—if you are prepared with colleagues to camp out on these chairs overnight—at least gives you the potential, subject to the progress of other Bills, to make some argument. Can you elaborate on why you appeared to be quite scornful of presentation Bills? Lord Norton of Louth: I wasn’t meant to be, because I agree with every word you have just said; I think it is more Dr Fox’s point. No, my point was keep all the procedures if Members want to use them, for the reasons you have given. I would endorse what you have just said. I would not close off any of those avenues. I think it is for Members to choose what they see as the most appropriate route to pursue the particular issue that they wish to and the mechanisms for doing that will differ, according to the issue and also according to what opportunities you have. If it is not successful in the ballot one can use the other route.
Q18 Thomas Docherty: This question is to both of you again. We obsess about the Chamber debate, and if what you are trying to do is kick on a discussion about what legislation could look like—for example, I have a presentation Bill on wild animals in circuses, and everybody thinks banning wild animal in circuses is a good idea, even the Prime Minister, but the devil is in the detail. Should we focus on how we get more Bills discussed line by line—the measures that are contained—rather than the principle on Second Reading? Dr Fox: If you want to bring forward a Bill in which you have a draft for discussion and debate, in a more effective environment than perhaps you have now—within limits, in the sense that you do not have a flood that you cannot cope with, and there are issues about how you decide what that might be—you would need to think about what the support upstream would be to the Member to get to the draft and get a reasonable draft. Think about what the stages might be. Someone suggested something like a Private Members’ Bill Committee to consider the Bill. Do you want it to go through almost a system of pre-legislative scrutiny for more detailed analysis line by line that would permit more debate in a different way than you might get with some of the Bills being at the Chamber on a Friday? Then there is the process for taking it forward. Does it have to be in the Chamber? Do you use Westminster Hall time in parallel for some aspects of it to expand the time available for consideration? There are a range of different ways you could take that forward if you want to enable some Members to bring forward a small number of Bills during the course of each session. Would you have carry-over? If you asked about taking forward a debate and a discussion on a policy issue, building support for it, do you have almost the pre-legislative element in one Session, carry-over, and consideration of a completed, fuller drafted Bill in the next? There are a number of flexible options. 11
Lord Norton of Louth: I think it is difficult to avoid at some stage the Chamber if you are pursuing legislation, because I did think about alternatives. You have to go through the Chamber at some point. A Bill goes off to Committee, of course; Standing Orders now provide you can move for a second Committee for a Private Members’ Bill, but you are still going to be on the Chamber. I did give thought to whether you can use Westminster Hall for any purpose, but not for Private Members’ legislation, because you cannot have a Division. I do not think you could go down our route. We do use the Grand Committee where you cannot divide, for taking the Committee stage of non-contentious Bills; you then have to hold off any disagreement for a Division at Report stage. That is the only parallel. It is not like Italy where Committees can transpose little legislation—little laws as they are known— directly into law; they avoid the Chamber. I do not think we would want to go down that route. You have to go through the Chamber at some stage, but there may be ways, as Ruth was saying, where there might be some degree of refinement, but you are not going to be able to avoid the fact that ultimately, coming back to my point about the core purpose of the legislature, you are going to have to go to the Chamber for assent if that measure is to become law.
Q19 Jacob Rees-Mogg: Can I follow briefly on from that, and then ask another question? Do either of you think it would be possible to have a vote on First Reading which would completely involve the Chamber? It would not be a Committee, but it would establish whether the Bill had any hope of going anywhere at all. Lord Norton of Louth: My answer would be yes, because formally you could have a vote on First Reading, and sometimes I think ten-minute rule Bills are, in a sense, analogous to a First Reading vote, so one could certainly contemplate going down that route for the very reason you have given, because if it is clear the House is against it you do not need to proceed any further. Dr Fox: I probably agree with that. You could take that approach if you wanted.
Q20 Jacob Rees-Mogg: The more general question I was going to ask, with a brief preface—Lord Norton, seeing that you gave evidence to the last report in 1995 is deeply satisfactory; these debates continue, and it may be possible that we can just reissue the report made by the Procedure Committee nearly 20 years ago. But the question I wanted to ask was whether it is about legislation or whether it is about making a statement; whether it can be reasonable to think that purely by doing well in a lottery what you have thought up that morning ought to have priority against, conceivably, a Government with a majority. The Government with a majority cannot ever be expected to accept just by virtue of a lottery a Private Members’ Bill and, therefore, a lot of the responsibility lies with the Members themselves, if they want to legislate to bring forward things that may have some sympathy from the Government. Without that, they are just mucking about. Lord Norton of Louth: I would agree with that. On your first point, I would certainly be in favour of reissuing my evidence to the Committee in 1995 but not the Committee’s report, which was deeply unsatisfactory, mainly because it did not take up anything I said. In my defence, I point out that it did not take up anything anybody said, because it did not actually say anything. I think parts of my evidence are still valid, and I have come back to some of them. Others have been overtaken because of the change in committee with Public Bill Committees. On your second point, I agree with the point you are making; it is a lottery, and I gave thought to whether there is another way around that. In a way, that is the value of, as I think you were indicating, presentation Bills, which still give you another outlet if you are 12 unsuccessful in the lottery. But I am very conscious of the point you are making. It puts tremendous emphasis on the individual who is successful to decide what they are going to bring forward—and it is up to them to decide, “Is this something I want to get on to the statute book? What would the Government’s reaction be?” or, “Is this an issue about which I feel deeply? I wish to get the ball rolling, give it an airing, build up support over time with a view later to legislation”. Dr Fox: I broadly agree with that. In terms of the ballot, in the absence of almost a self-denying ordinance on the part of Members in terms of what they bring forward or some kind of mechanism for judging merit and quality and so on, what do you have as an alternative? A colleague described the ballots to me a couple of days ago as the parliamentary equivalent of hoping for Willy Wonka’s golden ticket in terms of trying to come in the top 20. But it has at least the benefit of being random, even-handed, neutral, free of Whip control and so on. In the absence of an alternative it works to that extent, but is it ideal? I would say no. But you have to then have an alternative system to manage that. That might well be a committee, it might well be some element of pre-legislative scrutiny, but then you would need to think about what is the mechanism to ensure that you do not get a flood from Members. That could be capping the number of times you can bring forward a proposal or some kind of threshold of support in terms of support from all sections of the House; there are different ways in which you can do that. But in the absence of a mechanism then the ballot is— Lord Norton of Louth: Can I came back to Mr Rees-Mogg’s first point, because I think in a way when you are going to have a mechanism for testing merit you have it; it is the House, and I come back to your point about First Reading. That may be a way of testing the initial view of the merit of the measure.
Q21 Jacob Rees-Mogg: If I may ask one more thing, it seems to me that 400 Members of Parliament are not bursting with legislative ideas every Session when they put into the ballot. Do you think it might improve the system if you required Members when putting into the ballot to put forward the short title of the Bill they wanted to introduce? It might save them quite a lot of hassle from lobby groups if they are successful, might make handout Bills a little less likely, which seem broadly an abuse of the procedure, and might mean that the people who put in had something useful to put forward. Lord Norton of Louth: I would have some sympathy with that. It is a mechanism for getting people to think about it in advance, take it seriously rather than at the moment put your name in for the sake of putting your name in or being encouraged by the Whips to make sure your name is in there. That would be analogous to what we do in the Lords. We do not have any ballot or anything where you have not already put down the particular motion or you brought forward the actual Bill, so we know what is being brought forward. We do not have anything analogous to ballot Bills. We do not have any procedure where you do not know what the Member is bringing forward. I think that would certainly be worth pursuing. It is still a lottery, but, as you say, it would perhaps limit what is put forward and force Members to think about it beforehand and, as you say, indicate then to outside groups what they wish to pursue.
Q22 Chair: Dr Fox, do you want to respond to that? Dr Fox: Yes, within the constraints of the current system with the ballot that seems a sensible step forward. I would just ask the question: you get a number of suggestions going into the ballot, and what happens to those where all of a sudden Members look at something that has gone in and think that would be quite a good thing and what might the avenues be for that? That might well be the debate and the discussion points or whatever; they are like the 13 question of merit and people knowing more about what the legislative proposals were on the table, but they are not going to get an opportunity to discuss. Lord Norton of Louth: The only other thought that occurs to me, trying to think of any down side, is whether the Whips would then get involved and give the same topic to a large number of Members in the hope that then the Bill would be successful in the ballot. Jacob Rees-Mogg: That is always a risk.
Q23 Chair: The Whips always get involved. Mr Rees-Mogg, when we were discussing this, made quite an insightful observation: we do not want getting legislation into law to be easy. It should not be easy; it should be challenging, it should be a struggle, and you should have to work hard at it. However, the way the Private Members’ Bill system is currently structured does have the potential to bring the whole process into disrepute, and if the Government does want to kill off a Bill, it should be up-front about it, instead of coming from behind it should come from the front. How could we, without going into the detail, create a system where it is still possible that only five, six or seven pieces of legislation reach the statute book but the system is seen to be more robust, less opaque, more open and just honest and straightforward, to be perfectly honest? Dr Fox: I am not sure how one answers that without going into some of the detail. Chair: You can go into a little bit of detail. Lord Norton of Louth: I am not quite sure if it is that opaque. Chair: It is very opaque for most people out there looking in. Lord Norton of Louth: They do not need to know the procedure to know there is a Bill going through that they want to make their views known on. On that ground you would say the whole process is fairly opaque. The key point is more your point about the Government being honest about what it is doing, if it is trying to prevent a Bill going through, which it is perfectly entitled—
Q24 Chair: With the greatest respect, Lord Norton, having to listen to my dear friend Phil Davies speak on something for two hours 45 minutes is wonderful for a few of us in the Chamber, but if you are a member of the public looking in, it is opaque, and it is difficult to understand why that is going on. Lord Norton of Louth: You can see Members talking for a great length of time; what they are doing—
Q25 Chair: You cannot, because we have time limits in the Chamber, except in Private Members’ Bills. Lord Norton of Louth: Exactly. You could consider about time limits in Private Members’ Bills.
Q26 Jacob Rees-Mogg: Maybe time limits for when a lot of people want to speak; there are never time limits on any business if there is only one person wanting to speak. Lord Norton of Louth: I was going to say you might want to consider going down the Lords route again on that because if it is a time-limited debate, time is divided among the speakers, they know how many minutes each have, but if it is not time-limited but is a set- piece debate you are limited to 15 minutes anyway, and that works tolerably well. One could go down that particular route. I think it is a more serious issue in terms of the Government taking a stance trying to prevent something. But when we look at the history of that, it is then up to Members to emphasise that is what the Government is doing and turn it against the Government, as happened with the Disability Discrimination Bill; you embarrass 14 the Government because of its stance to such an extent the Government then concedes the point. That is in the gift of Members. I do not think it is so much you can deal with that by any particular procedure. I think it is the Members themselves that need to take charge. Dr Fox: I tend to agree with you and disagree with Lord Norton. I think these are opaque. If you are an interested member of the general public who has expressed an interest in a particular campaign issue or a particular campaign group that is encouraging interest in a Bill, I think it is quite difficult for that member of the public who is following it and taking an interest to understand why it is that their Bill either does not get debated at all if it is on the Order Paper, or, as with something like the Live Music Bill earlier this year, you have hours and hours of debate on the Daylight Saving Bill and then the Live Music Bill goes through without objections, and that has not been really debated at all in the Chamber at any stage. I think it is just very difficult for them to understand. I would much rather a situation where whatever process you have in place the Government has to be open in either its support or its objections. If a Bill is defeated, it is defeated. If it cannot command the majority support of the House, then so be it. Lord Norton of Louth: My proposal on the first point I made in the paper was designed to address that to some extent, so the House can have its way, you can carry on in a way that might deflate the incentive to speak at length. I take the point about getting Government to be honest about what it is doing; I am not quite sure how you achieve that.
Q27 Chair: You could have programme motions, could you not? So there has to be a division and the people turn up— Lord Norton of Louth: Yes, but if you take the proposal I am putting forward anyway, you have the chance for the House to come to a resolution on the issue so there is a Division.
Q28 Jacob Rees-Mogg: Very briefly on programme motions, if you had programme motions on Fridays and the Government abstained, you would not have 35 people in the Division Lobbies and therefore they would kill it opaquely anyway. Even programme motions do not— Thomas Docherty: You could put in Members from supporting to get the 35. Jacob Rees-Mogg: You would have to make sure you were getting your supporters to turn up, but there are not normally 35 people— Chair: We do not mind it being difficult, do we, Jacob? If you cannot get 35, you deserve to crash and burn, possibly. Lord Norton of Louth: But the point about programme motions is it facilitates Bills getting on to the statute book.
Q29 Jacob Rees-Mogg: If it is only 35, is that enough to get a Bill through? Chair: Most Ministers work on a Friday. Jacob Rees-Mogg: But they will not vote if the Government does not like it. Thomas Docherty: But that is their problem. Mr Nuttall: They will have to pull them out, as they often do. Chair: Yes, the Government would get— Dr Fox: You are of course assuming they will stick with Fridays.
Q30 Mr Nuttall: I wonder if the witnesses would agree that essentially there are three types of Private Members’ Bills brought forward. The first group are, in essence, Government Bills in reality. They are Government handout Bills. The second are those that 15 are not Government Bills but the Member has managed to build a wide cross-party consensus and it is a fairly uncontroversial subject, maybe a technical tidying up of a law; something that does not attract any opposition at all. Then thirdly, there is the group that are people simply flying kites. They are raising an issue, fairly controversial, to the edges of politics, but they have raised it. They have achieved their job. They have lots of press coverage, lots of publicity. It seems to me that the first group tend to go through because the Government like them so they get their way. The third group, they never thought they would get through anyway, if truth be known. So that leaves us with the second group. Are there that many Bills that have wide cross-party support, which are totally uncontroversial, that are sat around that cannot get through the procedures of the House? I would venture to say that there are not very many of them. I would like the witnesses’ views on that. Can I just say, in conclusion, that I think if we were to introduce limits on speeches, which would effectively timetable and bring every Bill to a vote, all that would mean is that the Government would hold back sufficient numbers to ensure that they won the vote. Lord Norton of Louth: On the last point, I would distinguish between limits on the length of speeches and timetabling; they are very different.
Q31 Mr Nuttall: But the idea of limiting speeches would be to bring the debate to an end. Lord Norton of Louth: It would mean if you were opposed to the Bill, you would need more supporters to speak, so you are right in a sense— Mr Nuttall: In a similar way to— Lord Norton of Louth: Yes, it would marginally favour the Bill. Timetabling would more than favour the Bill; that distinction I would draw.
Q32 Mr Nuttall: There is a mark of distinction. Lord Norton of Louth: Yes. I agree with the distinction you are drawing, those are the types of Bills that are brought forward. If there is a great consensus for the Bill you are not going to get any great debate and some of those just simply go through— Mr Nuttall: By abusing them. Lord Norton of Louth: Some go through as presentation Bills, if they are so uncontentious. I agree with the point. My point was that I see the real value as in that third category, because that is what I see it is all about. It is Members wanting to get something. This may add to your point of ballot papers, because the dangerous people out there think there is a realistic chance of it going through but as long as they recognise this is a way of getting the ball rolling I think Private Members’ legislation fulfils a great role. You look over time at the issues that are brought on to the agenda; the example I give in talks, but it is a Private Members’ Bill in the Lords, was Lord Joffe’s Bill on assisted dying. It got it on to the agenda; it is now a contentious issue. But it is just a way of raising the issue, seeing what the opinion is, testing the House and getting a Government response. I think it is valuable given that for most of the time Government has priorities, bringing forward its legislation. Members need some opportunity independent of Government to raise the issues. At times they are issues that the Government want to adopt an arms’ length stance towards. You need some outlet for it. Private Members’ legislation may not only be the most appropriate but the only mechanism for making a case for a change in policy that does require primary legislation. I think that is the value of it. If you think about all the other mechanisms we have discussed, Westminster Hall debates where you can get through Backbench business by raising issues—but it is only Private Members’ legislation that is geared to a direct change in the law. That is why I think it is valuable and should be protected. 16
Q33 Chair: There is a vote in this House at 4.10pm; we will come back after that vote. Lord Norton of Louth: I now have a Division, but if you are intending— Chair: We will miss you. Lord Norton of Louth: I can be back in about five minutes. Chair: Then we will be off at 4.10pm, and we might have two votes. If you can be back here at 4.30pm, we will continue for another 20 minutes. Lord Norton of Louth: Certainly, yes. Chair: Shall we continue with Dr Fox? Are we more or less or done? Mr Gray: My impression is we have a feeling for what your views are both verbally and written, so my guess is we are almost done.
Q34 Thomas Docherty: Just two issues, Lord Norton, before you have to go away; should there be a limit on the number of Bills that any Member can hold at any one time, and, say, different types? For example, I am currently holding 10 presentation Bills; I could get a Ten-minute rule Bill or two, and it is possible I could have a Ballot Bill. Some would argue, including me, that that is not entirely satisfactory, so should there be limits on the number of individual Bills? Another issue we have not talked about is the “other place”. You have, for example, a very commendable Bill from Lord Steel that has passed their House and has absolutely no chance of going anywhere at our end, and what happens in the reverse when a Bill gets out of the Commons—he says laughingly—and then needs to get—and at that point I get further interrupted. Chair: I am happy to come back at 4.20. Do any colleagues want to come back at 4.20? We will reconvene.
The Committee suspended.
On resuming— Chair: If we could carry on, Lord Norton, as if there wasn’t an interruption. Lord Norton of Louth: All right; two questions. One was: should there be a limit on the number of Bills that you could bring forward? There might be a case for that, but only saying, “You can only have X number of Bills on the go at any one time”, if you felt that was desirable, but if you are talking about presentation Bills, the only issue is, I would have thought, one of resources, because you are not impinging on others.
Q35 Thomas Docherty: No, because if you got there first, you could take the six Fridays. What I did was go down, but there is nothing to stop someone going that way. You could completely hog that. Lord Norton of Louth: Yes. So there might be a case for just providing some sort of cap on that. More substantially, on your point about relationships between the two Chambers, the only point I would make is the position with the Lords is very different. Formally the Government does not enjoy any power over the timetable, but in practice most days are given over to Government legislation, but we do have flexibility on when Private Members’ Bills are taken during the week; it is not necessarily on Fridays. A Commons Bill comes along, any Members of the Lords could take it up, and then it is just a case of finding time for pursuing it, assuming there is time. So it is much easier at our end to run with a Bill that comes from the Commons.
17
Q36 Sir Roger Gale: Can I come in, because that was the point I wanted to raise? I can only recall doing it once: Douglas Houghton brought in a Bill, all the heavy lifting was done in the Lords, and I picked it up. It went through with virtually no opposition at all, and it seemed to me it was much easier to do it Lords to Commons than Commons to Lords. Why? Lord Norton of Louth: It is because our procedures are different; because we can do, as you put it, the heavy lifting, and because we can find the time to do it and give it proper scrutiny. Then it comes to this end, so the problem tends to be at this end, because normally it just joins the queue on a Friday, as with the Steel Bill, which is the Bill you are alluding to. I should declare an interest, because I drafted it, and I think it has considerable merit, although it is somewhat narrowed down from the original to get it through the Lords, but it is through. The problem is when it comes to this end, it just joins the queue. But in terms of our procedures, it does allow us to give time to Private Members’ Bills and to do the work on it, so hopefully when it comes to this end most of the work has been done.
Q37 Jacob Rees-Mogg: I just want to come in on a couple of things. First, a follow- up from David Nuttall’s view of there being three types of Bill, and the third type, the type to maximise noise and publicity, is in fact hugely helped by being filibustered, because that is the cake they very often use to persuade people that their Bill is interesting. Thomas Docherty: You are ever helpful. Jacob Rees-Mogg: I do my best to be helpful. If it were really interesting and good, it wouldn’t be filibustered, would it? But if you make the procedures too smooth, you defeat the object of the people who are trying to get publicity for their Bill, and so we have to bear that in mind with anything that we are doing. Lord Norton of Louth: I would agree completely. That is why the proposals in my paper were very limited in terms of the existing practice, and it is only exceptional circumstances that you want the House to be able to get its way, because I think it is very important that those who opposed had the opportunity to do that. You should not make it easy to get a Private Members’ Bill on to the statute book. As I say, I see the purpose of getting the debate going, hearing what both sides have to say; so, filibustering can be important in terms of developing an argument and taking it from there, so I very much support the gist of what you are saying.
Q38 Chair: How is filibustering helping to develop an argument if one person is taking up two-and-a-half hours and the other people don’t get a chance? Lord Norton of Louth: Yes, but don’t forget, in the Commons, you have to be relevant to what you are debating. You have to put some response to it. It is not like the Senate, where you can talk about anything in order to filibuster, and don’t forget there is a significant comparator perspective if you do— Chair: You have not heard many of John Hayes’ speeches, clearly, when he has been filibustering. Jacob Rees-Mogg: It is very difficult to filibuster after an hour. The first hour is relatively easy.
Q39 Chair: Lord Norton, you are a great fan of Winston Churchill, and I believe he said, “If a man can’t say what he needs to say in 20 minutes, he should go away and write a book about it”. Lord Norton of Louth: Well, indeed. As I say, in the Lords, we are limited normally to 15 minutes. You can do it. Nonetheless, you might want to have time limits, but, as I say, if you are developing an argument, it has to be relevant to the question, and you can’t engage in tedious repetition, so I think there is some merit in that. As I say, it is much better than 18 systems like the US Senate where there is no rule of relevance, you can just talk and it has nothing to do with the subject matter. So it is bespoke, because you are, to some extent, engaging, and I would be wary of trying to close that off too much simply for the ease of getting something through.
Q40 Chair: Close it off at all, or too much? I would suggest that you would be in favour of a limit if you said too much. Lord Norton of Louth: Yes. I come back to the point I made earlier. You could have some limit on the overall length of speeches. That would, as I was saying earlier, help those who support the Bill, because you need to bring more Members along to speak on it. That would be the downside, but you could limit speeches if you thought that was appropriate. For the reason we are discussing, there is an argument on the side of leaving things as they are. Chair: Jacob, have you finished?
Q41 Jacob Rees-Mogg: I was just going to add on that there is a little-used procedure that does allow the House to vote, as with the Lords, that the noble Lord be no longer heard. There is a similar procedure in the Commons that is infrequently used, but is available. I was just going to ask if you could develop the thought of the 150 being present at 2.30, and then, Dr Fox, I would be interested in your views on how that would work and how long you could go on. At Report stage, you might have amendments to all the clauses. Do you then allow two hours for every clause, or is it as long as people want to go on? Could you end up sitting from Friday at 2.30 pm until Monday at 2.30 pm and knock out the Government’s business on Monday? Lord Norton of Louth: I am not sure I would go that far. On your first point, we do indeed in the Lords have the motion, “That the noble Lord be no longer heard”. The only problem is that that motion is itself debatable.
Q42 Jacob Rees-Mogg: Can the noble Lord participate in the debate? Lord Norton of Louth: I am not sure they have tried. No, that was my point; it would allow debate to go on, the same as if you suspend the 10 o’clock rule, so you could go through the night. Whether you would reach the stage where you knock out Monday’s business—that really would be a marathon, so I don’t think that would be likely to happen. Certainly I can envisage it going on if it is at Report stage, unless you provided some procedure to close it off, or the House might decide to adjourn, but that would be the whole point; that you could go on in order to ensure that the House reaches a resolution on the measure.
Q43 Nic Dakin: If you were to make one change in relation to Private Members’ Bills, what would it be? This is very discursive, and at the end I think it is like weighing on the one side and on the other side. It may be that there is no change at the end of this discursive business, so I am just interested— Dr Fox: But I think if you just did one, you would lead to unintended consequences that would not necessarily bring you to arrive at an even more satisfactory situation. If you continue with the current system and do not have a radical overhaul, the interaction of the Friday sitting with the procedures and the thresholds and so on is the problem, and you have to unpick that.
Q44 Nic Dakin: So how would you unlock that? Dr Fox: I would have much greater flexibility in terms—as we set out in the paper— of when you time them, so they do not all have to be on the same day, or you can expand the 19 time a little over the course of each week. I would have programming. We have talked about having some kind of committee system, if you are not going to have the ballot, and setting times for each stage. Lord Norton of Louth: It is a difficult one, because I take the point you are making; so, if you had one wish, it may be not to have any major change at all and keep with what you have, because you would have to think through what has just been touched upon in terms of unintended consequences and then of the changes on the whole. I am not sure there is a major problem to be addressed in terms of existing procedures. So I could be persuaded to enable it to carry on as is and Members use the opportunity as presently exists. If it was in my gift to make a change, I suspect I would think about the time aspect, and perhaps using Wednesday or Thursday evenings for the use of Private Members. Now, whether that was for Private Members’ legislation or for some other purpose that Private Members could utilise, I think there is a discussion to be had there, but I think there is time there where there is no opportunity costs in them not transacting any other business; why not utilise it for the benefit of Private Members?
Q45 Thomas Docherty: Moving away from some of the nitty-gritty of how Jacob gets thwarted when he does go on, back to how we get to a Bill in the first place, Dr Fox, what more could we look at in terms of pre-legislative scrutiny or giving greater legitimacy to Private Members’ Bills? One example I always use is in the Scottish Parliament; you may be aware that you are required to do 40 days’ consultation before you present the Bill and you must have a certain number of MSPs from across the spectrum. Are there reasonable steps that we could consider in the course of the inquiry that you would advise us to look at? Dr Fox: If you are talking about bringing forward a number of Bills that have that opportunity for debate and discussion—Private Members’ Bills are not used for legislation that needs to be enacted quickly, by and large, so there is that opportunity and time—some kind of pre-legislative process would be useful. You would need some kind of committee model to do that, and the question is what would that be: would that be a single Private Members’ Bill Committee that is set up for all consideration of Private Members’ Bills, or do you set it up just for that one Committee? I think there is value in some kind of threshold to reflect support across the House in terms of thinking about the merits of the Bill if you are not going to have the ballot. If you have the ballot, then those can go forward to pre-legislative. You need to think then about the timing process of that. Public consultation: what form is that? Is that similar to draft Government legislation? Do you need the same amount? There are resource implications and questions have to be carefully considered as part of that process, the merits of setting up a new committee and resourcing that, which you would need to think about. It is a question of is that sufficiently valuable and important enough for the types of Bills that are going through? Certain Bills that are quite modest—technical improvements—might not need it, but some Bills that are broader might really benefit from it, so the question is do all of them have to go through that process or does a committee make a judgment on—
Q46 Thomas Docherty: Let me give you an example that we talked about previously when I alluded to the mental health Bill that is currently, in the name of Gavin Barwell, making good progress. That was—at the risk of sucking up to my Chairman—the fruits of the labours of a number of colleagues, led by the Chairman, in the previous Parliament and in the previous Session, to get it to a robust stage. So is it a way of saying that you would certify a Bill that says, “While Mr Barwell has not had to do the consultation, he can point to a body of work that stands behind it”? Is that practical, do you think, as a solution? 20
Dr Fox: There is a broader point about, I suppose, legislative standards, and I think we are probably in agreement on this. We have proposed for Government legislation a legislative standards committee, which is about the technical quality of a Bill and its preparation. The Political and Constitutional Reform Committee is looking at that at the moment as part of its inquiry, and if you were to adopt a view that there are certain criteria that need to be addressed in respect of the technical standards and preparation of a Bill, if you like, the business case for it as well as the technical and drafting issues that the Committee would consider that before introduction or prior to Second Reading and take a view on it and report back to the House if they felt it was not appropriate. There is no reason why you could not apply the same model to Private Members’ legislation, because what we are saying is that Private Members’ Bills—because they are brought forward by Back Benchers, there should be no lesser focus on the standards and quality of the Bill and of the drafting.
Q47 Chair: On that point, just out of left field here, you have 20 slots in the ballot. Why don’t you give the 20 slots to the Backbench Business Committee and say, “Right, there you have 20 slots”, and people will come and make a business case to the Backbench Business Committee about their Private Members’ Bills? They would have to demonstrate wide support for those Bills. Is there any merit in that or are there lots of flaws in it? Lord Norton of Louth: I can see flaws in it, because if you come back to the categories of Private Members’ Bills that are identified, what we get through the Backbench Business Committee is one particular type of that Bill, I would have thought, and that would be the problem on that. On the point about pre-legislative scrutiny, pretty similar views: pre-legislative scrutiny, yes. Should it be confined to Private Members’ Bills? No. Pre-legislative scrutiny should be the norm, and I have argued this for some time; indeed back in 2004 that was the Government’s aim, to move towards it being the norm, and now they have rowed back on that. My view is that with any Bill coming forward, if it is a Government Bill, it is up to the Minister to provide a compelling reason why it should not be subject to pre-legislative scrutiny. You need a similar sort of mechanism for Private Members’ Bills, which could be perhaps a legislative standards committee, but if you start to introduce pre-legislative scrutiny as the norm, you then have to think through also the consequences in terms of timing, and that does raise the issue of carry-over of Bills to allow time for pre-legislative scrutiny and then the Bill to go through its normal legislative stages.
Q48 Martin Vickers: A moment ago, if I recall, Jacob said a Bill would not be filibustered if it was a good Bill, but of course if you are opposed to the actual principle of a Bill, you can still attempt to filibuster it. Jacob is a class act at doing that, of course. But coming to the points that are made in the paper about the external perceptions, not just of filibustering, but some of our other rather bizarre rituals, which I think particularly appertain to Private Members’ Bills, because they have often come forward as a result of involvement of some public group or charity or whatever, could you expand a little on your thoughts about how damaging or otherwise to the public’s perception of Parliament are filibustering or some of the other bizarre rituals? Dr Fox: I do not think we should over-egg it in terms of the number of people who are watching and who appreciate what is going on and so on. We are not talking about a wide array of the general interested public, but when you have members of the public, or indeed civic society groups, campaign groups who take an interest in an issue and what is going to happen in this place in terms of process and procedure, the airing of the issue in debate and the possibility of legislation, there is an issue about how Members manage expectations, in terms of their communication with people about the process. But when they take an interest in 21 the issue, for them to find on a Friday that the issue may not even get discussed and them not to really be able to understand why, to sit through or view or listen to the debates on a Friday, if they are taking sufficient interest—I have to say for the preparation of this paper, I did read quite a number of the Friday debates, and there is an awful lot of stuff going on. Lord Norton of Louth: All year. Dr Fox: Yes, exactly; there is an awful lot of discussion going on that is not on point about the Bill that is being discussed, and I think if you were a member of the public sitting through that, bemusement would be your view. It seems to me that the reputation of the House and how it looks externally is important and should be considered as part of this discussion and this debate. If you conclude that process that partly is designed—and the relationship with the public is important—is counterproductive, I have to question whether the processes and procedures are appropriate. Lord Norton of Louth: I think we would need to distinguish—because in a way the bizarre procedures covers an awful lot. If we distinguish between, say, archaic procedures and confusing procedures—so if they are archaic they serve no purpose, they can go, and the House has done quite a lot over the years to address that. Now, the extent to which people may be confused about the procedures, I accept that, but the problem is: are they resolvable? I am not sure. I can’t think of ways that you could come up with that are not then going to create a fresh confusion in terms of how people outside see it. Unless you become very highly mechanistic in the way you deal with the Bills, and I would be very wary of that, you might be able to do something procedurally. The other device, of course, is trying to explain to people what the process is and see it in a more educative light. I am a great one for enabling Parliament to go out and explain what it is doing in its practices and procedures, so people have a better understanding of it. That might be the way we have to go, otherwise the danger is, for simplicity’s sake, you might be limiting the opportunity of Private Members to achieve what they see as their particular role.
Q49 Chair: What if you have the ballot and then it is almost weeks later that you launch your Bill, so there is little time for preparation? What about having a longer period between your name coming out of the ballot and when you need to start the legislative process, possibly even 12 months; for example, your ballot comes up in May 2012 and you would start your Bill in May 2013? That would give you the time, if you are a serious Member of Parliament, to talk to the Departments, to talk to the relevant people, to build support, and to have the time to dismiss the nonsense that gets thrown your way from a lot of pressure groups who are basically using you as a vehicle for their own ambition and desires for publicity. Is there any merit in that? Again, the Whips would have a longer time, but you are never going to get rid of the Whips. We do not live in a perfect world, so— Dr Fox: Essentially, that is the pre-legislative point. Lord Norton of Louth: That is exactly the point I was going to make. It is coming back to the point about pre-legislative scrutiny. You inject a period of delay while you reflect on the Bill, and you can formalise it in terms of pre-legislative scrutiny. My point was then if you do that, you have to think about the knock-on consequences, which would be carry-over of the Bill, for example. So I think that would certainly be doable. Dr Fox: I think then there is an issue about access to sufficient resources to help with the drafting and consultation process and so on. There is obviously a resource implication to that, but whether you provide more of that here so that there is less reliance perhaps on some of the campaign groups who are pushing support in your direction as part of the process and that, given the lack of resource, some Members will take up. Lord Norton of Louth: And whether you use the scrutiny unit to help with that process. 22
Q50 Sir Roger Gale: I am becoming more and more concerned about the nature of the effect that this process has upon public perception, because unless it is a Government handout or unless it is a one-clause, completely anodyne Bill that serves no useful purpose and therefore will not generate any public interest whatsoever, the public are being led completely up the garden path in believing that any of these Bills are ever going to hit the statute book for a whole raft of reasons. They might eventually, and I am coming to the view—and I think I am persuaded by Lord Norton particularly in this—that these should be regarded as little more than the legislative Early Day Motions, if you like, or the legislative equivalent. Some time ago, the BBC ran a ludicrous exercise and decided it was going to instigate legislation, which until then nobody had understood to be part of the BBC’s remit, but nevertheless, the Today programme took it upon itself to do it. It found itself lumbered by popular choice with a Bill that they were then horrified by. The Member of Parliament, who was tame and was supposed to be presenting this, did not want to do it. I did. I picked it up and ran with it, because I wanted to demonstrate what a nonsense it was, and that Bill was very well drafted by a former parliamentary draftsman. There was a huge excitement, because lots and lots and lots of Today listeners—or both of them—had written in and supported this, but there was no prospect ever of that legislation hitting the statute book. Ironically now, it is part of the Government agenda, which maybe proves the point that it is a good way of triggering something that might happen in five or 10 years’ time. But it is very worrying, because it can only serve to help to undermine the public’s trust in Parliament. Lord Norton of Louth: But if you think about what are the options that you have identified, what you then do with the Bill, you either educate people as to what is happening, it is not going anywhere, or you don’t do it at all, so no Bill is introduced, or you pass it, which then creates problems if you are just passing lots of Bills for the benefit of people who don’t otherwise understand the procedure. Given those choices, I would go for the educative route, because otherwise you are going to potentially close the system off. I am also not quite sure what the mischief is that is being addressed, because people might not understand it, but that is not at the root of popular dislike and popular distrust of Parliament. This would be very much at the margins, I think, in terms of how it affects perception of the institution. I would tend to stress the beneficial side of enabling people out there to engage with Members, to get their views over, to express a view and to feel they are engaged with the process. You are right that they then feel upset because it has not gone through, but if it is part of the process of explaining to them what is happening, “Look, the purpose of this—we are going to get it before Parliament, we are going to get the views heard, and we are going to get a response from Government. It is part of our campaign. We will carry on subsequent to that”, I would have thought that would be the route to go down, particularly given, as I say, what the alternatives are.
Q51 Jacob Rees-Mogg: Very briefly, what I was going to say is: don’t you both think that the British public fully understand the procedure; that if the Government doesn’t back a Bill, it is not going to get through, and that they know that it is the Government that makes the laws and that the details of what Parliament does are known by a minority, but that the people who understand the big picture are probably seeing it better than the people who are looking at a difficult procedure? Lord Norton of Louth: I think we are not quite there yet. I think we can be. I can make now a plug for citizenship education. I think if we go down the educative route, people would understand it more. The more we teach about Parliament, people have a better understanding of the process. It is getting schools to take it seriously and to have the 23 incentives to do that, so I think we can move in that direction. We are not quite there yet in terms of what you are proposing, but I have some sympathy with the point you are making, because it ties into the point I have just made in response to Mr Gale about the fact I am not sure there is a major mischief out there. There is some, but that should not be the primary concern of the House. I think in terms of its reputation, there are other things you should be addressing. Chair: Dr Fox, if you just sum up. Dr Fox: Our Audit of Political Engagement demonstrates that, by and large, most members of the public do not appreciate and understand the difference between Parliament and Government. The issue is, if you are annoying, frustrating and confusing those individuals who take an interest in Private Members’ Bills, which is a small proportion of the overall population given the levels of interest in what is happening here, that is a problem to be concerned about. That is not something to be just shrugged off. If you annoy the interested individuals, what hope do you have with the disinterested individuals? We are big supporters of citizenship education as well, but do not underestimate—I do think there is a mischief and a problem. Lord Norton of Louth: But I think it is up to Members themselves to explain what that mischief is. Chair: Thank you both for coming to see us, for a frank and open discussion, and it is always nice to see disagreement among panellists. We are used to it among the Committee, but that was very healthy, so thank you very much, and perhaps you will come back and see us again at some stage in the future.