UNREVISED PROOF COPY Ev 5

HOUSE OF LORDS

MINUTES OF EVIDENCE

TAKEN BEFORE

SELECT COMMITTEE ON THE CONSTITUTION

PARLIAMENT AND THE LEGISLATIVE PROCESS

WEDNESDAY 16 JUNE 2004

MR BARRY K. WINETROBE

MR MARK FISHER, MP, MR PAUL TYLER, MP and

RT HON DOUGLAS HOGG QC, MP

Evidence heard in Public Questions 244 - 315

USE OF THE TRANSCRIPT

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WEDNESDAY 16 JUNE 2004

______

Present

Acton, L Elton, L Fellowes, L MacGregor of Pulham Market, L Norton of Louth, L (Chairman) ______

Memorandum submitted by Mr Barry K. Winetrobe

Examination of Witness

Witness: Mr Barry K. Winetrobe, Lecturer in Public Law, University of Glasgow, examined.

Q244 Chairman: Welcome. The first item may be of some relief. The Clerk informs me that I am permitted to advise you that you may take your jacket off if you wish. Thank you very much for being with us this afternoon. Before we get down to substantive business may

I, for the record, invite you to introduce yourself including by way of background, some of which you include in your paper, and then invite you, if you wish, to make any preliminary statement before we put any questions to you.

Mr Winetrobe: Thank you very much. I am Barry Winetrobe. I am currently a lecturer in public law at Glasgow University. For almost twenty years I worked in the research service in the House of Commons and in the Scottish Parliament helping to set its research service.

For the last three years I have been what I have described as a parliamentary and constitutional consultant. I have always been interested in these sorts of areas and I have written quite extensively in the parliamentary and constitutional reform field. I have a very brief opening statement, if I may:-.

2 I am grateful for this opportunity to appear before this Committee when it is considering this important topic. In responding to your invitation to make an initial submission, I wished to allude to the experience of the devolved Scottish Parliament when acting as a legislature. In this area, as in so many others, the Scottish Parliament is a relevant and appropriate comparator for the Westminster Parliament, notwithstanding significant structural and legal differences. Your Committee has looked at Edinburgh, in its earlier Inquiry into inter- institutional relations under devolution, and I was privileged to be asked to submit a paper to that Inquiry on inter-parliamentary relations. In my written submission to this present

Inquiry, I concentrated on a few broad themes: the nature of the parliamentary legislative function; ‘ownership’ of the legislative process, and the scope for public engagement. In these respects, and in relation to two particular issues – the sessional legislative period, and the role of committees – I believe that the Scottish Parliament experience has much that can inform your Inquiry, and I hope that the Committee will examine it directly, in more detail.

Arrangement of Legislative Business:-. A particular instance of this is the way in which the

Scottish Parliament arranges its plenary and committee legislative and other business, through the Parliamentary Bureau. Your Committee, in its devolution Report, recommended that the idea of a ‘business committee’ be considered further at Westminster. One reason, directly relevant to this present inquiry, was that “It seems to us that the use of business committees has a great deal to commend it, injecting a greater degree of transparency than exists in the current arrangements at Westminster and transferring some degree of control from the executive to the legislature. Their use does not prevent a government from getting its business, but it does ensure greater openness and time for the proper scrutiny of government.”

The Public:-. In my submission, I also highlighted the stated centrality of the public in the legislative process, both in terms of informing them of what is going on, and in involving them in the process itself. One example of the former – which is also helpful to the Members

3 of the Scottish Parliament themselves – is the Parliament’s practice of publishing much of its formal procedural guidance, including Guidance on Public Bills. I have a copy with me here.

Such material has traditionally been regarded as internal, confidential information at

Westminster, but, whether through a development of a more ‘open’ culture or because of FoI requirements, I hope they would routinely become public, accessible documents here.

Sewel Convention:-. Finally, I wish to refer to a matter I did not, for reasons of space, cover in my initial submission, but which I believe is a relevant matter, and one which the

Committee has also examined in detail in its devolution Inquiry. That is the issue of UK Bills subject to Sewel Motions, as covering matters within the Scottish Parliament‘s devolved competence. The Committee recommended that this should become a matter for the two

Parliaments directly, not just the two Executives, and that mechanisms should be put in place in both parliaments to handle such legislation properly. These are, I believe, important recommendations, and, as the Scottish Parliament’s Procedures Committee may well be initiating its own proposed inquiry into this matter later this year, I would urge this

Committee to regard the issue as one which fits well into this present Inquiry. For example, the recent decision by the House of Commons to initiate forms of joint activity with the

National Assembly for Wales may suggest a greater willingness within that House for cooperative parliamentary working with its devolved counterparts than appeared to be the case in 1999.

Q245 Chairman: Fine. Thank you very much. That provides, as does your paper, clear headings, if you like, under which we can put a number of questions. Before we come to the main areas you have identified, could I just pick up on one, which you did not mention in your introduction but which is in your paper, which is of interest because I think you are the only person in a submission who has raised this, and that is the possibility of committees themselves initiating legislation. As you mentioned, that happens in Scotland. There have

4 been one or two committees here which have got an individual Member to put a Bill forward as a Private Member’s Bill. So there is some precedent or scope for doing it. Could you just outline what are the merits of that particular proposal? Some people might think in a way it muddies the waters if committees are given that particular power. What would you say were the compelling reasons for conferring that power on committees?

Mr Winetrobe: In the Scottish Parliament context, I think the idea was proposed as a concrete example of the basic principles of the Parliament that were set out by the

Consultative Steering Group and I believe David Miller, who was before you last week, will have mentioned these principles It was an idea of sharing the power, the idea that the power of legislative initiative should solely be that of the Executive, although it was recognised it would primarily be so as a matter of governmental practice. It was thought that giving that power also to ordinary backbenchers was one way towards it, as happens here, but also to give it to committees would enable a wider breadth of opinion and a wider scope for legislative initiative. That has tended to work fairly well. Inevitably, they have tended to be about either internal parliamentary issues - Members’ interests and the Parliamentary

Standards Commissioner - or matters which are non-partisan in a party political way – domestic violence and so on. I think that it is thought to have worked well. It has practical problems of taking up time and resources but I think it makes committees in Scotland feel that they have more power, that what they are doing can have a more positive outcome than simply a report which might, if they are lucky, be debated and then lie on the table and gather dust.

Q246 Chairman: So would it be fair to see it as a residual power, in other words you do your normal report but there is that in reserve if you feel the scope of legislation or the

Government response is inadequate?

5 Mr Winetrobe: I think that is certainly there as a tactical option as well. I would not think that that is how it has been used up to now in Scotland and certainly, as yet, because of the resource and time implications, there is no sense that all the committees feel that “we must be seen to have a Bill”, because any non-Executive legislation is a burden for the Parliament.

But, I think it is seen as an option. It is something that they can use, as in the examples I gave and which you alluded to, the Public Administration Committee in the Commons and the

Scottish Affairs Committee, where they can use a draft Bill as an extra weapon, as a way of trying to push the debate on, but to actually be able to go that extra step and go forward with the Bill. The way the Scottish Parliament’s procedures work, if they do propose a Bill and it is agreed to be introduced, the Executive is then empowered under Standing Orders to step in and say that they will legislate. At that point the Committee Bill proposal would fall. So again, it is designed almost to try and put pressure on the Executive. So there is that tactical approach to it as well as the more principled idea of sharing the power and the idea that legislative initiative should come from as many sources as is practically possible.

Chairman: Thank you very much. We have got one or two Members of the Committee who are wanting to put questions.

Q247 Lord Acton: I have two questions arising really from paragraph 9 of your 7 April paper. It is a short paragraph, as you know. “The Scottish Parliament operates a 4-year sessional arrangement, which avoids Westminster’s problems of annual cut-off and carryover, such as skewed timetabling, rushed and incomplete scrutiny, and what the public regard as the bizarre and ineffective phenomenon of ‘ping-pong’ between the two Houses.” From what you said in opening and from that paragraph, you do not sound wildly enthusiastic about the present system. Are you in favour of a session lasting the entire Parliament, and if so what steps would you take to try and encourage others to be of like mind, and is there a growing body of opinion in favour of a whole Parliament being one session?

6 Mr Winetrobe: The Scottish Parliament is of course different in two main relevant senses: it has a four year session, although in practice Parliaments here very often tend to be four years, and also it is a unicameral Parliament so the question of ping-pong does not arise. But I think, again when the procedures were being devised, there was seen to be very little to commend it,, the idea of an annual cycle, especially in the sense of a cut-off where Bills will fall, other than private Bills;1 that more time would be given for reflection, proper scrutiny, and so on, and that Bills could take more than a year if that was necessary. In practice, the external demands of politics and media pressures, and so on, for governments to be measured by the extent and quantity of their legislation, has forced in practice almost an annual legislative cycle. That is partly, I suspect, because the Scottish Executive, being the old Scottish Office, is used to that. The Bill teams, the drafting, the officials are all used to that sort of cycle, so much so that what has evolved is something where many Bills are introduced in the autumn, with the aim of having them completed by the summer recess, which I think is a great pity.

And I know quite a few people within the Parliament think that that is a great pity, given the pressures of time, especially at the committee stages. It is something that is a great problem in the Parliament and these pressures are being artificially put on in procedural terms. But the basic point still arises that if Bills take longer than a year then there is no question of them falling. Again, a lot of that goes back to the aspirational and unrealistic ideas of the

Parliament not being so adversarial as Westminster and the idea that people would sit back and reflect coolly and calmly, and it did not really matter how long it took to enact legislation.

Of course, the real world is not like that. But I think there is a definite feeling that not having a cut-off in July, or whenever, by which time a Bill has to be passed, is definitely an advantage, especially for a Parliament such as the Scottish Parliament.

1 Note by the witness: Strictly speaking, Private Bills do fall at the end of a session like all other Bills. However, if an exactly similar Bill is introduced in the new session, it need not begin the scrutiny process anew, but can, in general terms, carry on from where it was at dissolution. As such, it can benefit from what may be regarded as a form of ‘carryover’. I am grateful to the Clerk of the Parliament’s Procedures Committee for clarifying this ambiguity in my oral evidence. 7 Q248 Lord Acton: But would you advocate that for Westminster?

Mr Winetrobe: Well, I tend to look at it the other way around. I have yet to hear a compelling argument in favour of it. It seems to have been something that has arisen almost as a matter of parliamentary custom, which has become ground into the law and as far as I can gather, it is so entrenched that the Clerks’, and the legal advice always has been that it would take statute to amend that because, it has become so much part of the law of Parliament. But I am not sure really what the arguments in favour of it are.

Q249 Lord Acton: I see that, but reading your paragraph and listening to what you say, you seem to me to be a caped closet crusader! Do you want it changed at Westminster, and if so how do you think it can be achieved – not in terms of statute but, I suppose, in terms of parliamentary opinion can it be achieved?

Mr Winetrobe: You mean how to get it achieved?

Q250 Lord Acton: Yes. Not that the present system is not a very good plan, but how does one get to a new system? How does one persuade them?

Mr Winetrobe: I think there is a widespread desire for it. There have been attempts over the last few years to have a limited form of carry-over, and so on, and I would hope that that would become the norm. Things which start off as exceptions to the rule in Parliament, procedural changes like that, very quickly become the norm, and I would hope that that would develop into the norm. I appreciate that in the particular type of Parliament that this is, both in terms of two Houses and a very adversarial system, it does in practice provide a very important weapon for opponents of legislation, and that is an argument which is used for other things like timetabling, and so on, I appreciate that, but I think that is probably not a good argument for something that I would see as not right in principle in the first place.

8 Q251 Lord Acton: Until we can achieve your principle, could I ask my second question, which is as regards the “bizarre and ineffective phenomenon of ‘ping-pong’ between the two

Houses,” until, as I say, that is achieved, have you any alternative way of dealing with stand- off between the two Houses? Would you have some form of reconciliation machinery, or what? You clearly do not like ping-pong much.

Mr Winetrobe: Well, I see it as an artificial thing, both in terms of time, procedurally, because of the sessional deadline, and also because time and the parliamentary calendar, as I mention elsewhere, are in the hands of the Government. So to some extent the Government artificially places these constraints and puts these time pressures up as a way of getting its way with its internal opponents, perhaps, within its own party, as well as with the other

House, depending on the particular battle which may be taking place. I think that from an official point of view there probably is merit in this arrangement, as I have mentioned, in terms of the Scottish situation. There is certainly familiarity with this situation of coming up to a deadline and focusing everybody’s mind on getting something through, and there may be a fear that, if it did not happen, things would drift and there would not be enough pressure to get things through. But to go back to your point of how you would deal with it in practice under the present system, I am not sure I am desperately in favour of joint conferences. I saw one in action in Congress once and it was a very artificial exercise. It seemed to consume huge amounts of paper and the valuable time of a huge number of people to relatively little effect. You may think I am ducking the question, but my answer is, I would not have it in the first place and therefore I do not feel that I need to provide a solution to the present situation.

I would rather the situation was not there –

Q252 Lord Acton: I do not want to accuse you of ducking the question because that would be extremely rude and not at all true, but you do think the public think it is bizarre and ineffective, which gives me the impression that possibly you think it is bizarre and ineffective,

9 which makes me think, what on earth are we supposed to do about it? Your argument is you would not have it?

Mr Winetrobe: Well, exactly.

Q253 Lord Acton: So you would abolish it?

Mr Winetrobe: Well, I go back to the point of saying that in so far as it is an issue of procedure and the sessional timetable, I think that aspect of it can be removed. That does not obviate the problem of disagreements between the two Houses, I fully accept that. But it is not something I have looked into in great detail, other than saying that, although the obvious solution, and the solution which is adopted worldwide, is this idea of the joint conference, or however you want to describe it, it may or may not be a suitable way of dealing with it here.

This place has lots of experience with Joint Committees and there may well be a ’Joint

Committee’ approach that can do that job. There is no reason why it cannot set itself deadlines if it wants deadlines, but the idea that legislation will fall if agreement is not reached by a set time is, I think, an artificial thing and puts another pressure on the process if the aim is to produce good legislation rather than simply to get one’s Bill.

Lord Acton: I think I conclude from what you say that if we had as much ping-pong as possible that would be the way of destroying the sessional system and we get one session for the whole Parliament, but that quantity of ping-pong would drive everybody crazy. Thank you very much.

Q254 Chairman: I am inclined to point out that Lord Elton and I are both members of the all-party table tennis group and I am not sure I approve of the use of the term “ping-pong” in this context.

Mr Winetrobe: I used the term that the media use.

10 Q255 Chairman: Indeed. Just as a quick supplementary to what Lord Acton has been questioning you about, to link a problem you identified there with something in the paper, you say that the Scottish Parliament to some extent has absorbed the Westminster culture in terms of Bills at the beginning of the session so you get them through by the summer. Is the use of a Business Committee one way of countering the culture and perhaps using its powers of timetabling, scheduling measures, to try to get away from that culture?

Mr Winetrobe: It should be in principle. In practice, because the Parliamentary Bureau, business committee, has a Government majority inbuilt under Standing Orders because the system, you may be aware, is that each party with five or more Members has a representative

(which is its business manager, for want of a better word), but they have a weighted vote in relation to the number of Members they have. So if an Executive has a majority, either as a single party or a coalition, then it gets its way there. Inevitably, the Business Committee is used as a way of achieving that very scheduling because the Executive wants to drive that agenda. It wants to be seen as getting lots of legislation through so that it can say it is doing things and that it is producing lots of legislation. There is a debate in Scotland about how to reform the Parliamentary Bureau, the business committee, so that it does not have a

Government majority, but that is something which is very much a sticking point for obvious reasons. So yes, in theory it could be used that way. In practice, it is used as the vehicle for this adoption of the Westminster practice.

Q256 Chairman: So what you are telling us is that a Business Committee in principle is a good idea. The way it actually works in practice in Scotland is not quite working in line with the principle that you would wish to have?

Mr Winetrobe: It is not working in the way I would wish it to work, but it probably works in the way those who operate within it wish it to work.

11 Q257 Chairman: In that sense you could argue there is a similarity with the House of

Commons?

Mr Winetrobe: Yes. It is often described by myself and others as in effect an institutionalisation of the usual channels rather than something entirely different from it.

Chairman: Yes, I see that. Thank you very much.

Q258 Lord Elton: If the Scottish Office (as it was) retains the legislative momentum, that is to say the institutional desire to legislate, and if the Business Committee wishes to be seen to be putting a lot of legislation through, it seems to me that the Scottish Parliament has willy- nilly accepted an assumption long-established at Westminster that legislation is per se a good thing. Do you agree that it is a good thing? In other words, is more always better?

Mr Winetrobe: I think this is part of the problem that the Parliament (and the Executive) has got itself into, partly because it is a very new and young institution and the media pressure has been for delivery, for seeing things happening, and therefore both the Parliament and certainly the Executive have seen legislation as an end in itself. There was some talk at the beginning that there would be a rush of legislation because there was this – I was going to say ‘mythical’ but that is probably not right - but there was this famed build-up, log-jam of Scottish legislation that could not have its outlet sufficiently at Westminster and therefore there would be a lot of law reform coming through for the first few years but somehow that would taper off. That certainly has not happened and the pressure, both political and media, has been for the equivalent of the Queen’s Speech, for the legislative programme, to look as full and substantial as possible. So the acceptance has been almost by default that you are measured by your legislation; legislation has become a far greater of the Parliament’s activities than perhaps some people hoped it would be. That is a particular issue for the committees in terms of time, resourcing and scheduling its activities, it being a unified committee system.

12 Q259 Lord Elton: I suspect the desirability of legislation per se is an illusion which I hope one of the devolved organisations will one day see through.

Mr Winetrobe: If I could just say one example of that, the Procedures Committee is just finishing, as I mentioned in my paper, an inquiry into non-Executive Bills, i.e Bills by backbench Members and by committees, because it is obviously a big issue in terms of resources and time, and so on. The implied view of the Executive is that they are in favour of all that but as long as it does not take away any of their time. So the way they see it is that they have a quantity of legislation they want to get through and if anybody else wants to promote legislation, that is on top. There is no acceptance of an idea that there is an abstract amount of legislation that needs to be enacted and it is a question of who does the introducing, whose bill it is. It is more an idea of, “We have an amount we want to get through. Anybody else’s must be extra.”

Q260 Lord Elton: We have a paper before us which shows that in the last fifty-two years we have moved from twenty Acts covering a thousand pages to sixty-five Acts covering two thousand, eight hundred and sixty-eight pages. I hope that is a warning. But we are not here to warn you, we are here to ask questions and take advice. My next question, if I may, is to ask you whether there is anything further you have to say on the question of giving a bit of the ownership of legislation to the electorate or to the public. We have heard a bit earlier about petitions. Is petitioning a means of precipitating or initiating legislation?

Mr Winetrobe: I have never viewed it as a way of directly feeding into the legislative process in the sense of it being a way of introducing a Bill. When I appeared before the Procedures

Committee in the Scottish Parliament, I did suggest looking at other ways of introducing

Bills, and that that could be developed as a way of showing an extent of public support. That would be getting rather close to the American idea of initiatives and so on. I think petitions are best used as a means of raising issues from which legislation may be seen as a response,

13 showing an issue for which the answer is legislation to cure the problem or rectify the issue, whatever it is, to redress the grievance (to use the parliamentary language). But that might not be the only option. I am not sure that I am really in favour or a petition being a trigger as such for legislation, if that is what you mean.

Q261 Lord Elton: Yes, indeed. For specific reasons, or just instinctively?

Mr Winetrobe: I think it muddies the waters of what a petition is and how it has worked best in Scotland, used as a way of raising grievances and having them aired. If, you are in effect saying that you are proposing your mode of solution within the process of raising the grievance, I think that might throw the baby out with the bath water to some extent. Also, I suppose I have a worry that if you had some crude system of threshold - a petition that gets X number of signatures is entitled to be introduced as a Bill - it leads to all sorts of problems of populist measures. There was that one by the BBC Radio 4 programme and they ended up with the Tony Martin Bill. Of course, that means that you will take a view of legislation you like and legislation you do not like, but I do not think that is the best way to use limited parliamentary time.

Q262 Lord Elton: So you have to engage the public in a way which does not enable them to initiate legislation but to point out its desirability and then to consult them on its nature. What is your experience and what is the Scottish experience of e-consultation?

Mr Winetrobe: I think they find it extremely useful. Given that both in legislative mode and in inquiry mode, committees do a lot of direct consultation with the public over and above evidence sessions, and so on, much as committees are developing at Westminster, one of the main issues in consultation in the Scottish context, is that there is a great sense of overlap between parliamentary consultations and the Executive’s consultations. I am sure that is a problem at UK level as well. A lot of bodies who are the ‘usual suspects’ in terms of

14 responding to consultations, have said frequently that they are in effect sending the same responses into a different body. I think people up there are trying to find out ways to avoid that overlap so that there can be a sense of maximising the input in a more seamless way. But it is difficult, because both institutions will want to feel that they can conduct the consultation that they want to conduct. So both Parliament and the Executive are encouraging e- consultations and responses through e-mail. The Parliament uses on-line discussion forums a lot. I am not sure it uses it necessarily directly for legislation. They tie it to Members’ debates, similar to House of Commons adjournment debates, backbench debates, and so on, but certainly they encourage it as a mode of delivery. I am not sure of the extent to which they have developed it as something which is different in kind, in terms of the substantive impact of the consultation, rather than as a more effective delivery mode.

Q263 Lord Elton: I am not clear from what you said whether you think there should be some restriction on the number of consultations so that you do not get duplication of different parts of the parliamentary process?

Mr Winetrobe: I do not know if the solution is to restrict it; it is probably better coordination between the Executive and the Parliament about what they are consulting about and when.

Q264 Lord Elton: Back to the Business Committee?

Mr Winetrobe: Partly the Business Committee, but as I say, it is more a matter for the

Parliament as an institution and the Executive as an institution, and there will be issues where the Executive will want to consult and then, if it introduces its Bill, a parliamentary committee will want to consult at that stage. I think they just both have to learn how to refine it so that they do not overlap, and minimise the scope for overlapping so that they are not asking outside bodies in effect to say the same thing twice.

Lord Elton: Thank you.

15 Q265 Lord Fellowes: Could I just ask a postscript because Lord Elton has covered a lot of the ground I was thinking about. On this question of public engagement, it seems to me that the public is supremely disengaged from the Westminster process, indeed they think it is so arcane as to be almost impossible to think about. You reckon, I think, judging from your paper of April 7, that you have made some progress in Scotland or that there has been progress made in Scotland with public engagement in the process. How much of that is due to the fact that it is a novelty, a new Parliament, a new process which is relatively simpler?

Do you think it is possible at Westminster without a radical reform of the process to really make progress in public engagement?

Mr Winetrobe: I think in Scotland the big step forward is that they recognise that as an intrinsic part of the culture and that, to use the horrible jargon, they have mainstreamed it into their activities. It is not an add-on, an annexe; it is core to their activities. How they give that substantive effect is obviously a difficult matter, as is the way the public responds to that.

They have had variable experiences. Sometimes a committee sits somewhere else and they get a very small audience, that sort of thing. I think the Parliament had commissioned some survey evidence which showed that those who actually dealt with the Parliament, whether as witnesses or visitors or students, or whatever, have a more positive view of the Parliament and the process than the general perception one gets from the media and so on. I would not go so far as to suggest that it is a popular Parliament and people engage with it enthusiastically and in droves, but I think those who do appreciate the experience and feel that they have participated in something worthwhile. One hopes that that gradually builds up over time. There is a strong effort towards young people, just as there is here, in the hope that over time that will entrench itself and that that culture will become the norm and not seen as something novel. Transplanting that down here, I think, is a huge exercise and I would suggest that the best way that could be done is to follow the Scottish practice of stated

16 principles. I was very sceptical of at the outset, being an old Westminster person perhaps, a bit airy-fairy management-speak, a bit aspirational and a bit empty, but actually working with them has proved a tremendous help. It provides the right context for Parliament, for the

Members, for the staff and for the public. It provides a context within which particular proposals can be devised and things can be put forward. The report of the Modernisation

Committee today exemplifies a lot of what you are saying. I have not had time to read it in great detail but without an over-arching set of principles underpinning where you want to go, you tend to have a lot of ad hoc and that does not lead to a successful change. I think culture is an important issue. It is much more difficult in an institution that is so long established and has its own ways of doing things. It is a bit like turning round a super tanker, but I think the effort has to be made. Public engagement is something that will help, not just in the legislative sphere but makes people feel that – it sounds awfully clichéd – it is their

Parliament. Too often, both from inside and from outside, Parliament and governance between Westminster and Whitehall, have seemed very much a private, bilateral exercise where, at most, the public get a look-in rather than seeing it as of right and, even more, involving themselves as of right. Putting that into practice is not, I accept, something that somebody can come along with a magic formula for. But I think the Parliament in Scotland has tried to address it in ways that have a better chance of working than other attempts of a more ad hoc nature.

Lord Fellowes: Thank you very much.

Q266 Lord MacGregor: You have already answered one or two of the points but I would like to probe them a little bit further. You refer in one or two places in your paper and your statement to the time and resource implications for the Parliament and I think that is going to come out in the questions I am going to ask you because it seems to me that is very often the real problem. If we take, for example, the Select Committees being given power to introduce

17 legislation, we have already, as Lord Elton has pointed out, got legislative overload, a huge legislative overload. Certainly my experience was that every department wanted to produce many more Bills into the session than they could ever get. So given that not so much resource but more time factor, how would you see squeezing in more from Select Committees as well as private Members?

Mr Winetrobe: One of the suggestions in Scotland is simply providing more time, and at

Westminster there is potentially more time to be used. I know that even now both Houses sit longer than many other Parliaments around the world – your Chairman knows more about that than I do –

Q267 Lord MacGregor: This House does. I am not sure about the other House.

Mr Winetrobe: What I was going to say was that potentially if one decides these things are important and need to be done, more time can be made, and committees should sit more often and deal with business more often. Both Houses, starting with this House, have come up with novel ideas that the Scots have not thought about, of parallel chambers, and so on, and I am sure that has helped in that sense. It brings with it other problems but there are ways of increasing capacity. Obviously there is a finite amount of time, but going back to the earlier question of sessional cut-offs, and so on, to some extent, these are artificial time constraints.

Q268 Lord MacGregor: But given that quite a lot of the Government legislation is not being scrutinised at all in the other place because of lack of time now, is that realistic?

Mr Winetrobe: Well, one could argue about the hours, the number of days that both Houses sit, how much of the year they sit. Things have moved on a lot and the parliamentary calendar in both Houses has changed dramatically, especially in the Commons in recent years.

It does seem strange to say, “We haven’t got time to do this,” and then go away at seven

18 o’clock or earlier, or whatever. I am not suggesting all night sittings, I remember them myself, but there is more time if that is thought to be important.

Q269 Lord MacGregor: Going on very quickly on other points, on the Select Committee process in Scotland, the Standing Committee which scrutinises the legislation, you have mentioned some of the advantages of that process. Bearing in mind the differences at

Westminster, are there any disadvantages of that process in Scotland?

Mr Winetrobe: The idea of having a uniform committee system that does both the Select

Committee work and the Standing Committee work?

Q270 Lord MacGregor: Yes.

Mr Winetrobe: Well, the main potential problem was the one I addressed, and which was the main worry, I imagine, there has always been at Westminster, that the more partisan nature of legislative scrutiny would ‘infect’ the more collegiate atmosphere within Committees in inquiry mode. That does not seem to have happened generally, but inevitably in some situations it will. Part of the problem has been that there has been a lot of committee turnover of memberships, so some of the advantages that many hoped for and many still talk about, of continuity and growth of expertise, has not happened as much as it could have because of the usual reasons for committee turnover - the desires of the Whips, people still seeing ministerial office as a promotion from chairing a committee, and so on, unfortunately. Things like that have meant that there has been a lot of turnover, especially after the General Election in

Scotland last year. Several committees had almost entirely new memberships, which was a great pity. So there was not as much gaining of expertise as was originally thought. The main problem is one of time and resources, that because committees are told by the Business

Committee, by the Bureau, to scrutinise particular Bills or a piece of delegated legislation and other business and to do it by set times that they are given, it crowds out the scope for them

19 doing their own work. So they are not able to do as much inquiry work as they would like and also they are not in charge of their own scheduling as much as they would wish, and there is a great deal of resentment about that. The other problem is that the legislative programme is not designed in a way to be shared out amongst committees on an even basis and therefore committees that deal with justice and home affairs issues tend to get the vast bulk. That proved a real problem at the outset in the Scottish Parliament, so much so that they had to create two Justice Committees because almost half the initial legislation was directed at that one committee. So there is a problem there.

Q271 Lord MacGregor: You have mentioned also in your report about the Westminster

Parliament, talking about timetabling: “It now often seems to operate as little more than

‘universal guillotining’, putting the legislative process even more formally and decisively in the Government’s hands.” Was that based on just your impressions or have you actually done some research on it?

Mr Winetrobe: I have not done any specific research. I did some research briefings, and so on, at the beginning of the modernisation process when I was still working in the Commons

Research Service and produced papers on programming, and so on, in its early days and what it was hoped to achieve. Even then, the idea of them all being consensual was starting to break down. My view of how it happens now is from reading Hansard, watching proceedings on television, on the BBC Parliament channel and just general academic reading. So no, it is not specific research that I could quote X number of programme motions are being pressed to a Division, or anything like that, but my general impression is certainly that it has become another form of guillotining and a more universal one.

Lord MacGregor: In view of the time, I will leave it there.

Chairman: Thank you very much, Mr Winetrobe. That has been extremely helpful. We are very grateful for the paper you have put in, as well as for being with us this afternoon and the

20 comparative element is extremely valuable to us in our research. Thank you very much indeed for being with us.

21 Memorandum submitted by Mr Paul Tyler, MP

Examination of Witnesses

Witnesses: Mr Mark Fisher, a Member of the House of Commons, Mr Paul Tyler, MP,

Shadow Leader of the House of Commons, and Rt Hon Douglas Hogg QC, a Member of the

House of Commons, Parliament First Group, examined.

Q272 Chairman: Gentlemen, welcome. We are very grateful to you for being with us this afternoon. Before we get underway with any questions, could I first of all invite you to introduce yourselves for the record and perhaps for Members it may be helpful to say a few words about Parliament itself, what the purpose is and what it seeks to achieve, and then to invite you to make any opening statement before we put questions to you.

Mr Fisher: I am Mark Fisher, a Labour Member of Parliament. On my left, I think you all know Douglas Hogg, and on my right Paul Tyler. We came together with a number of other parliamentarian Commons Members a couple of years ago to form this group, Parliament

First Group and the general thrust of it was in response to reports that you, the Hansard

Society and a Select Committee of our House who did a report entitled “Shifting the Balance” in the believe that the Executive was becoming unreasonably powerful and our House particularly, but Parliament as a whole not so, and there was a serious shift. We came together and produced a pamphlet, the general thrust of which was seeking to strengthen the position of parliamentary scrutiny and accountability to gain some control over our own agenda. which our House had increasingly lost over the previous hundred years, I think in a more marked degree than your House has done, and to come together on an all-party basis as we were worried about the stranglehold the party had over our House and to work together with other people both inside and outside and in your House to improve and make more rigorous parliamentary scrutiny and accountability of Government.

22 Q273 Chairman: Thank you very much. If we could just focus then on the proposals. The booklet itself you produced is to look at strengthening Parliament. Our inquiry is into the legislative process to see what could be changed that would strengthen Parliament in that process. What would be the primary reforms that you would wish to see in the context of the legislative process?

Mr Tyler: I think, Chairman, the weakest link is clearly our Standing Committees, which as we all know are not Standing Committees at all, they are ad hoc, and perhaps that is one of its weaknesses, partly because of the dominance of party, which my colleague has already referred to, but partly also, I think, because of the mechanical way in which they operate. Our outside view of what happens at this end of the building is that actually you do it in a rather more meticulous and more careful way. I cannot speak from a huge amount of experience of sitting on such committees. I have been lucky enough to be my Party’s Chief Whip, so I had to put other Members on the committees in the past, but MPs tend to take a very aggressive, confrontational attitude in committees. I am sure Lord MacGregor would concede that when he was a minister taking a Bill through a committee what he wanted to happen was for his own backbenchers to stay as quiet as possible, do their correspondence or Christmas cards, and he was prepared for the Opposition of the day to attack wherever, whenever and with whatever weapons came to hand. The combination of perhaps ill-informed assessment, badly managed timetabling and that confrontation seems to us, I think, across-party to provide the worst possible results in terms both of the satisfaction given to the Members involved in this exercise but also, of course, in terms of the quality of the product at the end.

Q274 Chairman: So what would be your solution? If we stick with the Bills coming before the House – because as you know we are also interested in pre-legislative scrutiny and also post-legislative scrutiny, which seems to us to be on of the most neglected aspects of the legislative process – but if we take Standing Committees as the central part of the problem, in

23 other words there is a structural fault with the legislative process, what does one do about it?

I think the most radical proposal so far that has been put before us is that you merge Select and Standing Committees. A less radical proposal is that you maintain that distinction but strengthen Standing Committees, for example through making greater uses of special

Standing Committees. A slightly expanded version of that, which was put before us by Robin

Cook, was why do you not simply take Standing Committees and give them powers to call evidence. Would that be one way forward?

Mr Hogg: First of all, may I just echo what both Mark and Paul have said. The real problem of the House of Commons is party. I think that the House of Commons will never become a satisfactory system for holding the Executive to account until we really weaken party government. Let me say, I find that impossible to conceive. The problem is that it is deeply entrenched. What you need is a host of members of the awkward squad and during the next two Parliaments that I hope to be here I hope to be a fully fledged up member of the awkward squad! I hope I am one already. Given that and the fact that it is extraordinarily difficult to move because of party, what I think you have to do is to shame the House of Commons. That is the strategy. How you do it, I think, is to put the various component parts of the House of

Commons into a position where they are embarrassed to deny the truth and that means receiving on as much legislation as you can as much external input as you can and also post- legislative input, so that in the end some Members of the House of Commons who are decent and honourable citizens are obliged to say that the Bill brought forward by their party is simply wrong and needs to be amended in the following respects because they have had a volume of sensible evidence, either before the statutory process or after the statutory process.

So you have got to shame us.

Q275 Chairman: That really is to make the case for allowing committees to take evidence.

24 Mr Hogg: I am sure of that, but you come back to another problem. Look at the composition of the committees. The composition of the committees is set by the Whips. I have occasionally volunteered to be on a committee or Standing Committee and, surprise, surprise, my generous offer has never been accepted because it is only on Hogg terms and Hogg terms are not acceptable to the Whips. I do not blame them for that, but that is the position. So we have got to actually look at committees, but given the committee form as now is, I think I would build on Select rather than Standing because Select tend to have greater external input than Standing. Standing, as Paul and Mark have rightly said, are very much the instruments of the party or the Executive and I think will always be so until we shame them.

Q276 Chairman: But is not the experience of special Standing Committees – they are rarely used but on the occasion they have been used, and Lord MacGregor has variously cited the case when he was on one, it comes back to your very point. If you have got external input, experts are saying, “It won’t work like that.” It is very difficult for a minister to turn around and say, “Yes, it will.”

Mr Hogg: I agree with that. Whether it should be the Standing Committee or the Select

Committee is, I think, a matter of debate, or whether you set up a committee to consider a Bill in the pre-scrutiny stage, different from both A and B, is for debate. But I do think that pre- legislative scrutiny by a committee with the power to call evidence and report is critical. I have talked enough. I am sorry, colleagues.

Mr Tyler: I just wanted to add to what Douglas has just said. We have jumped straight into the Standing Committee. I do think with the pre-legislative scrutiny operation – which does afford the opportunity to bring in expertise from outside but I think also has a huge value where it is a Joint Committee of both Houses – you diminish and dilute the very problems we are referring to. Then, of course, it has the other advantage that the minister is not already wedded to each line of his Bill and has the opportunity to be a bit more responsive to opinion

25 throughout, from his own side as well as other views, and once you then get to the next stage there is the huge advantage that you have already been through that process.

Mr Fisher: I think all three of us are hugely sympathetic and enthusiastic about the implications of your opening remark, that scrutiny of legislation in committee is a three-phase operation. At the moment, it is almost exclusively the central phase and it is a long sausage and what happens before you go into line by line consideration of a Bill and what happens afterwards is every bit as important and at all three stages the public and experts outside the

House ought to have the ability to look the committee in the eye and put on the record – be questioned by all means but be able to say, “Look, our interests, our expertise, our section of public life is going to be affected by this. This is how it would be for us, and you must understand that if you are going to pass this particular legislation.” But at the moment, (a) there is no contact, and (b) it is only on that very short, middle section and I suspect that we are at one on this. I hope we are.

Chairman: Thank you very much.

Q277 Lord MacGregor: Just following this up, and perhaps I could just express briefly my own view and get you to respond to it, I was involved, as the Chairman said, in a special

Standing Committee way back in the early-80s when I was the minister taking it through and it was a very technical Bill. Manganese nodules was what it was all about and most of us, including the minister, did not know very much about it, so it was a great benefit to have all the outside expertise and advice. That worked actually quite well, but the point was it was not a party politically contentious Bill; it was a technical Bill that we were all really learning from and improving, the minister as well, in that process. You can do that if there are other Bills of that nature, but when you get to Bills which may have political contention about them it seems to me, as Paul Tyler rightly said, to not have the minister or the Government totally committed to a Bill greatly helps the process of getting outside advice and evidence and

26 improving it. That does seem to me to lead to much more pre-legislative scrutiny of Bills and we are getting some evidence that not enough time is being given, that the Government is rushing the process, producing the Bills too late in the parliamentary session – I know there is a carry-over and so on, but even so – and telescoping the amount of time given to the evidence. I just wonder if you have any comment on both of those points?

Mr Hogg: Could I make this point. I took a lot of Bills through the House of Commons, about eight or nine, and I came to a very settled view that a minister could only actually manage a Bill of about thirty clauses, by which I mean that the minister must be able to know more on the Bill than his officials. I only did Home Office and Foreign Office Bills. I did not do Lord MacGregor’s technical Bills, but I did some quite technical Bills and I hoped that I had reached the stage when I knew as much as my officials on what I was carrying through and preferably more because it was my job to make the decisions. Now, on the big Bills it is extraordinarily difficult for ministers to face down officials and therefore the process of pre- legislative scrutiny is vital because actually the minister, very often a junior minister, a parliamentary under-secretary or whatever, is wholly dependent on his raft of officials and he is not in a position to argue with them. That is one of the great important consequences of external input because he is able to say, “Well, Lord, MacGregor, who knows a damn sight more about this than I am afraid you do, sonny, says it’s balls.”

Mr Fisher: I entirely take Lord MacGregor’s point that this is more likely to work on politically non-contentious technical Bills, but surely it is the politically contentious, the strong vested interest, that most needs this process because –

Q278 Lord MacGregor: That is the pre-legislative scrutiny.

Mr Fisher: Or even at any stage. Contact with the public is the only thing that is likely to restrain politically motivated positions, and blindly so. It is a romantic and perhaps naïve position, but I think it is an essential one.

27 Mr Tyler: May I just add a point in response to Lord MacGregor’s reference to time and the legislative year. I think many of us feel that the present straitjacket is actually inimical to good scrutiny for a whole number of reasons. It is the London bus syndrome to start with, is it not? You get most Bills at a certain time at this end, we all get fifteen Bills all at top speed and then they all go into committee and then they come back to the other House, and so on.

One of the reasons I am very keen on pre-legislative scrutiny is because it does break that up a bit. It breaks it up, particularly at this end of the building where you very sensibly link that with the issue of carry-over. I wish we had done that at the Commons end because I think the acceptance by Government that they are not going to be able to carry-over unless they have taken it in a well-paced, well-agreed sequence – I think we are going to come back to the issue of Business Committee and the involvement of other parties in that process, but I think it is absolutely critical that we do address the issue of time. The whole of this building is a prisoner of the time factor and I do not think that is good for good legislation.

Q279 Lord MacGregor: Could I ask this and then perhaps come back on other things later.

Still on the question of what type of committee scrutinises the Bill, the Scottish method of doing it, as you know, is to have a Select Committee doing the scrutiny of the various Bills. I do not particularly want to get into that, but the result of that – and this is the point I want to come to – is that it seems that no votes are taken until a much later stage in the process because there is a sort of more consensual looking at the issues at that earlier stage of the committee and in a way this is the way in which this House works too. The votes are concentrated at the end. Is that ever practical in the House of Commons? Question one.

Question two is on the timetabling that Paul Tyler has just raised. Some of our evidence suggests that the timetabling now is leading to universal guillotining, which is working even more to the benefit of the Executive than the legislative and I would be grateful for your comments on that.

28 Mr Hogg: Could I just make two comments. I think the point that Lord MacGregor makes about the vote is an interesting and important point and it may be that the purpose of the pre- legislative committee should be, as it were, primarily to report the anxieties that have been identified rather than to come to a conclusion because if you went down that road of simply reporting what strikes the Members as being possible areas for concern you might not have to put it to a vote and that would take account of the party divide to some degree. The only point I am worried about Paul’s suggestion about carry-over is of course the fact that a Bill can fall within the session does give the Opposition some influence on the carriage of the business and that would be a loss if we had a carry-over procedure, unless you could deal with it in some other way.

Q280 Chairman: You could have carry-over. That does not necessarily mean you cannot have a cut-off point.

Mr Hogg: No, but of course if your cut-off point is at the end of any one session you have a bargaining chip there.

Q281 Chairman: But you still would if, as you said, a Bill must be passed in X number of months.

Mr Hogg: Yes, you might be able to. I am just identifying that there is a problem and you might be able to find your way through that problem.

Mr Tyler: Could I respond to the second point about what we now call “programming” in the

Commons. I should perhaps say that I am a member of the Modernisation Committee, which has spent an awful lot of time on this but actually, I am sorry to say, with rather little to show for it, and I am also my Party’s spokesman on this, so I am here in a personal capacity as part of this Group. I think all those bits fit together so far as my mind is concerned and I have submitted to the Committee, I hope, a reference in my paper to a little protocol we have rather

29 grandly called it, which simply suggested that programming should be left to those who are going to do the job, i.e. that the committee (particularly in the Commons) where it is taking a

Bill through should be given the responsibility of prioritising where they wanted to look, what issues they wanted to give particular emphasis to, and primarily that that should be the responsibility of the Opposition parties on that committee, because that is what they are there for. This has not been the pattern partly because, I have to say, I think the Opposition parties did not want to be responsible – I mean that in both senses – and partly because I think the

Government found it difficult to release any of the power they have over the timing. But it has happened on some committees and it has indeed happened on the Floor of the House to some extent. There has been negotiation about the fact that where a Bill was being taken on the Floor of the House, or at report stage, emphasis was given to those issues which were of most importance. It has largely fallen down for the very reasons that I think all three of us are very sensitive to, that these matters are all too often considered just in terms of party advantage rather than in terms of advantage for the product. I regret that very much. I do not know whether we can ever break out of that completely, but it very much echoes what

Douglas Hogg was saying at the outset, that this exercise is not always dominated by good sense and good relationships, let alone an appreciation of what a good product can result.

Q282 Lord MacGregor: Have you any comment on the Scottish system and concentrating votes at the end, or has it not really occurred to you, perhaps?

Mr Fisher: I had not appreciated that distinction but it sounds as though it would commend itself very well. We would, I think, need to consider that and it is something which I think we should go away and think about at future meetings, but I think it sounds an interesting idea.

Chairman: Thank you very much.

30 Q283 Lord Acton: There are two things I wanted to ask about. First, I think all of you spoke in favour of post-legislative scrutiny. Could you say a little more about it, how you envisage it working. Would it be all Bills, some Bills? Would it have huge implications for resources? I am pro it. I am not asking this in any sense in an antagonistic way, but just your thinking.

Mr Hogg: I have got two suggestions to make here and I think my colleagues have got others. One is parliamentary and one is official. The official is that the department with charge of the Bill, once it is enacted, should for a period of time establish a group, a working party within the department, with a special remit for taking complaints about the working of the Bill, and establish a report. You would obviously time limit that because you cannot have endless departments reviewing endless numbers of Bills, it would be absurd, but for a period of time you should be taking in suggestions and comments as to where the shoe was pinching.

Probably you would do the same with regard to a Select Committee which had a departmental relevance to the Bill Act in question. You would ask the Clerk to that Select Committee to take in comments about the relevant Act over a period of time with a view to putting that

Clerk-based report to the members of the Select Committee to determine whether or not they then wanted to undertake an inquiry into the working of the Act. Those are my two primary suggestions.

Mr Fisher: I certainly think we are at one on that.

Mr Tyler: I would endorse that, but I just put one other possible suggestion. Where it becomes apparent that legislation is so badly off the rails that it requires some special attention – the Child Support Act, I think, would be a classic – I think there would be great merit in a Joint Committee of the two Houses, particularly involving those who were involved in its previous passage, partly because it would give an opportunity to those who were sceptics to say, “I told you so,” but not exclusively so. If people have been absolutely

31 absorbed in an exercise of that sort, to lose that expertise completely and take it off somewhere else is, I think, a pity, but I endorse otherwise what Douglas Hogg says. I think, however, I am cynical. I do not believe that an internal departmental exercise will see the light of day unless one or other of the parliamentary processes are in place.

Q284 Lord Acton: Thank you. The other thing I wanted to ask about was quite separate, the annual sessions. Do you want to get rid of them? Do you want to keep them? Do you want to have one session for the whole Parliament, or do you want to go on in the merry way we have gone on all these years?

Mr Fisher: In a way Douglas has already touched on this, but I think we are moving away from them with carry-over. I think that is correct.

Q285 Lord Acton: I appreciate we are moving away from it. What I am asking is, would you like to formally abolish it?

Mr Hogg: I doubt that a government would be in a position at the start of a Parliament to formulate the parliamentary business for the entire term. Moreover, your concept of priorities do change in government, as those of your colleagues who have been in government will be, I think, the first to acknowledge. Therefore, whatever system you adopt you have clearly got to have periods of stocktaking and the moment at which you set your agenda for a given number of months ahead. I think you are going to have to do that whether or not you have kept the session. Once you come to that conclusion, subject to carry-over I am not sure I see the advantage of abolishing sessions. I do not think it matters hugely, but I do not think I see an immediate advantage in doing so.

Lord Acton: I see. Thank you.

32 Q286 Lord Elton: Our discussions seem very generally to come down to discussing the advantage which the Executive enjoys in Parliament, which has been increasing ever since the days of George I. You have by inference pointed out that it resides really in the power of the

Whips to control the vote and you are looking for means of reducing the power of the

Executive by some means which negates or minimises that influence. Robin Cook, on the other hand, was also exercised, not naturally by the power of the Executive since he is a member of it but by the inefficiency of the system and he was looking more for a move towards consensus wherever it could be achieved in a Parliament built in its present shape.

Do you see any meeting between these two analyses, or is it a question entirely of one or the other?

Mr Tyler: Under Robin Cook’s leadership of the Commons we moved a little way towards a more consensual approach to the annual programme and in a report to the House of Commons from the Modernisation Committee, which he chaired, which I think was approved in October

2002, we suggested that there should be immediately after the Queen’s Speech each year informal discussions, outwith the usual channels, to look at the whole way in which the programme was going to develop. The implication of that was not just which Bill would go to which House first, which would be given priority, which would be given pre-legislative scrutiny, but also which might even at that stage be prima facie a case for carry-over because it was going to get it. So all that was going to be discussed between the representatives of the different parties and sure enough under his chairmanship there was such a meeting. It was of limited scope and it did not tackle all those issues, but it was a precedent and we all know in this building how a precedent is so enormously powerful. It was never repeated because the

Whips, frankly, thought it was an appalling prospect that anybody else should be involved in this exercise, even the Leader of the House. Of course, as we all know, he did not then have a second Queen’s Speech or third Queen’s Speech with which to repeat that exercise. So there

33 is a sort of incipient approach to that, which I was involved in as Shadow Leader and I thought it was a very healthy approach. We do actually generally, I think, evolve better than we revolve, in the sense of evolution rather than revolution, in this place and I thought that was rather a good evolution. Sadly, it looks as if it has slipped back again, but that of course leads to the suggestion of re-ownership of the agenda and the Business Committee, about which Mark and Douglas may want to say a lot more.

Mr Fisher: Yes. Lord Elton’s point about the Executive power in Parliament – and I think it is important to distinguish between what we have touched on earlier, the power of party and the control of business, and of course he is right that both of those are enforced by the Whips.

But it is not the Whips that are the problem, it is the grip on business and the grip of party.

The grip of business, I think – and we are about to look at this – could well be at least released and relaxed somewhat by having a Business Committee and we are interested in looking at the Business Committee in the Scottish Parliament, which at least is a working model and confounds those in this place who say, “You can’t possibly have a Business Committee. Go back to Parnell and say it would be anarchic for the Government to release even the slightest control over the business.” So we are interested, I think, in looking at the Scottish model for a

Business Committee. On party – and this may commend itself to you rather less – we have had informal discussions but not come to any conclusion on the idea that because we see

Parliament as a whole and our two Houses as one in the sense that we are one Parliament and they should be complimentary to each other, but one part of that could well become much more of a party-free zone by the very simple expedient of removing the Executive from one of the Houses, and obviously it would be your House. You could invite Government ministers to speak for and present their legislation and their actions, but if you became an

Executive-free zone you would then truly be a House of scrutiny. You would not be totally free of party, but you would be much more free of party than you would be now because the

34 Whips would have no patronage and you would be able to look at things even more than you do at present on their merits. I suspect that may commend itself to any Members of your

House less than it appears, on paper anyway, to us to be an interesting thing to explore. But certainly if you removed the Executive from part of Parliament and gave it the exclusive responsibility of scrutiny, I think things would change very fast here. To return to Douglas’s original point, the power of shaming, then I think your House would shame the House in which the Executive resided to an even greater extent and more clearly, and the public could then judge very clearly how a relatively objective House whose first and really only task was scrutiny could reveal terrific weaknesses, partisan weaknesses, in a House in which the

Executive was located.

Q287 Lord Elton: But surely the power of the Executive is actually donated to it by the triumph of party in political terms and I do not suppose you imagine it would be possible to make any House of Parliament party-free as opposed to Executive-free. Therefore, you will still actually have the engine which is available for the control of business by the concerted will of the majority party in the Executiveless House. I just want to leave with you the thought that the power of the Whips deploying the advantages of the Executive provided by the electoral party advantage is what is freezing up everything you are trying to change and you need to bear that in mind when you consider the composition of this House.

Mr Hogg: I do not actually agree with you, Lord Elton. I think that although what you say is true to a point, the real vice is not control of the business; the real vice is the control that party has over the substance of the deliberations in the House of Commons. Business is a factor, but what really matters is the grip that party has over the actual output in terms of the decisions by votes. That is where the real vice lies. Now, I am deeply pessimistic. I think it is impossible really to change that in the House of Commons, but one can take incremental steps and anything that shames the House of Commons, makes us realise that we have

35 surrendered to the Executive that which they should not have and makes us realise that we are not the clones of party, we are members of the great council of the nation. I happen to be a

Conservative but I am not an echo of my Front Bench and if I disagree with them it is my positive duty to say so. It is a very small point but I would change the oath of the House of

Commons and turn it into something like the jury oath so you promise to vote in accordance with your conscience and your best judgment. Then you would say to the Whips, “I’m sorry, my friends, I’ve taken an oath against you lot!”

Q288 Lord Elton: Have you noticed that every Opposition comes into power recognising the importance of the Parliament and within months, if not weeks –

Mr Hogg: I have. We need lots more of the awkward squad, Lord Elton, and when I retire, which is not going to be for some time, I will have quite a lot to say to my association about the kind of person they should choose to succeed me and it is not going to be somebody in the likeness of the Conservative Party. I want to have a really cross-grained, bloody-minded, obstinate, preferably rich and independently employed Conservative-minded individual, but I do not want a party clone!

Q289 Lord Elton: From Bolsover, no doubt.

Mr Hogg: Well, somebody like that.

Mr Fisher: A clone of yourself, Douglas!

Q290 Lord Elton: But it was, was it not, in the dawning days of the 1979 Government that the Departmental Select Committee was actually invented? So there is a lacuna, there is a moment at coming in. If you can school an Opposition when it is an Opposition to realise what it is like being an Opposition and to make it safer to be an Opposition again, that is one thing. The other thing is that of course if we ever had an Election which was very nearly a

36 hung Election between two or three parties there might be a moment when everybody saw that they might be the Opposition.

Mr Hogg: You need to read Wyatt’s autobiography and indeed Tom Dryberg’s as well.

They have some words on what powers they exercised in the early Labour governments under

Wilson.

Mr Fisher: I think, Lord Norton, that I would differ from Lord Elton in his optimism about there even being a small window of idealism in a new government. We came into government in 1997 after years of scrutiny and thought about freedom of information and having been absolutely committed to it both by Neil Kinnock and then John Smith and Roy

Hattersley when he was Shadow Home Secretary and we had drafted legislation by 1992 and indeed it was that legislation when we lost that I took through our House as a Private

Member’s Bill, but it was the Bill that had a Labour government won in 1992 we were committed to introducing. When we came in in 1997, in this period after years and passionate speeches to the Freedom of Information campaign, annual awards by both Smith and Blair, instead of enacting that legislation we put it to a Cabinet Sub-Committee on which I sat and watched it be dismantled and destroyed in a year and at the end of that year both your colleague, Lord Clark, and myself ceased to be government ministers. Having fought for that legislation in that Cabinet Sub-Committee, our contribution was not very much appreciated and we both parted ways with the government. But I think it was a very short window and a very sad one on a subject which should not have been party political and to which we had schooled ourselves in thinking about and commitment to for ten years.

Q291 Chairman: But when you look at the changes in 1979, is it not the case that the window of opportunity was necessary but not sufficient, in other words you needed a reform agenda, which already existed in 1979 because of the report from the Procedure Committee in

1978? You need some form of leadership, as happened with the Leader of the House, but

37 fundamentally almost you need some degree of political will coming from the House itself.

You cannot simply rely on the Government itself to do the work because then the

Government itself has ownership of the process. So in a way the House has got to put pressure on and take ownership of what is happening, which is what happened with Select

Committees and why the House sustains the Committees.

Mr Hogg: Well, actually given the House of Commons as it is, the incoming Government has really got to be willing and have a set of programmes in its mind because it needs to move fairly rapidly and it must do something which Governments do not do, which is to dispossess themselves of power, and that has to be an attitude of mind set in Opposition and which one is willing to do when one comes into office. I do not think that the Conservative Party at the moment, or any other party for that matter, has actually got a detailed programme in that way.

Mr Tyler: Can I be slightly more optimistic? This is partly because I have never been a minister and partly because I am a Liberal Democrat; you have to be an optimist. Of course, in the run up to the 1997 Election there was quite a lot of work done between the Labour and

Liberal Democratic Parties. The so-called Cook-Maclennan agreement in the lead up to 1997 did produce some results, but that entirely endorses the point that I think Lord Elton is making about the window of opportunity after 1997, partly because of the huge majority and partly because of individuals, I think, frankly. Robin Cook went off to be Foreign Secretary and for the team in the House of Commons anyway certainly this was not a high priority. They set up the Modernisation Committee but the agenda very quickly slowed down and eventually it ran into the sands. But I think Lord Elton’s point about the opportunity immediately after a change of Government is well-made. Whether we are going to have that opportunity in the near future, I fear I rather doubt, but I think, if I may say so, the timeliness of your inquiry on this Committee in the run-up to a General Election, so one could see a situation where perhaps all parties had to try and establish some ownership of your agenda, is very helpful.

38 Q292 Lord Fellowes: Mr Tyler, in your paper you referred to the deficiencies in European scrutiny in very severe terms, so severe that one felt that it is something which perhaps needed urgent attention. I was not clear from your paragraph on it whether your concern is widespread across all parties. If it is and if the problem is not endemic, it should be addressable in pretty short order. I wondered if you had any suggestions about how it could be addressed?

Mr Tyler: My colleagues will, I think, say what they think the other parties and other people think about this. All I can say is that it is not just my party. Indeed, on the Modernisation

Committee at the moment, having just produced one report, this is our next big task and it is formidable because it touches on so much of what happens in this building. Simply trying to get sufficient expertise and attention out of Members of Parliament is proving to be a terribly difficult job, getting enough people to do the work, as I am sure all ministers have found and I know all Whips have found. We all, I am afraid, spend quite a lot of time in our constituencies, and no doubt at this end of the building in other ways too, saying how awful it is that this new regulation or that new regulation seems to have come from this Directive or that Directive. We do not actually follow very assiduously why it has come from that

Directive, and why other countries have managed to interpret it in quite a different way within the other Member States. We do not give nearly enough attention in this place to sifting through what is likely to have really quite considerable impact on parts of the community, different interest groups and which is perhaps is more peripheral and of less importance.

Perhaps the most important of all in terms of European legislation, and this is something the

Modernisation Committee is trying to address with the various scrutiny committees, is that we come in so late in the process it is often far too late to have any material effect. Ministers themselves, I think, may find it easier in future if they can get the feel of views in the legislative body here, both ends of the House, before they are already engulfed in the process

39 in Brussels. I am sure both Douglas Hogg and Lord MacGregor in their previous incarnations must have encountered that extraordinary frustrating experience of saying that the fox has already gone, or whatever is the right metaphor.

Mr Hogg: Could I respond to Lord Fellowes’s point. Before I was overcome by BSE, I had hoped that my legacy in the Ministry of Agriculture was to tackle the problem that Lord

Fellowes is actually referring to, because the problem is both in Parliament but it is even more in the ministries because what of course happens is that departments have to translate into statutory language through statutory instruments the Directives which come out of Europe.

Some are direct right across and some have to be interpreted and ministers are asked to approve it and you will appreciate that ministers really have not got a clue. So what I did, and it survived not one day beyond my departure, was to require a spreadsheet and on the spreadsheet on the left-hand column was the European Directive. On the right-hand, in the next column, was what the officials recommended we did about the Directive to show what our language was like. The next column was to be a statement by the officials as to whether we were going beyond or under-shooting the Directive language and the next column was to be an explanation as to our stance, one way or the other. The object of this was to enable ministers to actually understand what their officials were proposing. The official said it was not possible. I said, “Go away and do it,” and it was done with a lot of grumbling and it was done in a way which enabled junior ministers, who do sign these things, to understand in broad terms what was happening with the legislation. I would strongly recommend that you look at that to see whether it could be reactivated because it is one way in which ministers can get a grip on what is being proposed and you could say that that document should be furnished to the European Scrutiny Committees and they would have an idea as to what they were being asked to approve. But as I say, it was my positive suggestion, which did not survive BSE!

40 Lord Fellowes: Thank you very much.

Q293 Chairman: Would it be possible to get a copy of that?

Mr Hogg: Well, the copy of that is that!

Q294 Lord MacGregor: That is only half the problem, of course..

Mr Hogg: Yes, of course it is.

Q295 Lord MacGregor: That is the gold plating of Directives that have already gone through. I think the other aspect of the problem, and certainly I did experience this but governments were not alone in this, is that the way in which the EU Commission develops its proposal is that there is a big consultation stage before it gets anywhere near ministers.

Officials are very often involved in that, but it does not get to the ministers at that stage and I have to say that in my time I think most outside organisations that were trying to get involved in this process were pretty slow in getting in at the right stage too, but I think that has improved a bit. I certainly agree there is a major issue there, but it also in a sense leads on to the one last question I wanted to ask you because one of the factors from Parliament is time, the amount of time available for individual Members of Parliament and even peers to handle everything they are supposed to handle. I really wanted to ask you in the context of the management of time and the amount of time available for the legislative scrutiny, back to where we started, has the change in hours in the House of Commons made a difference? Has it made it more difficult?

Mr Tyler: We have not actually reduced the hours of the sittings of the House. What I am afraid we have done, and it was an unforeseen consequence, is we have not given sufficient flexibility to committees, both Select and Standing Committees, in order to make sure that they are taking up the slack, if you will, and I think it would be fair to say – and I am on the

41 whole an enthusiast for the new hours – there are regular grumbles that Members are finding it extremely difficult to pack in all that is intended. Having said that – and again my colleagues have sat here much longer than me – I think it was ever thus, because in the discussions we have had on this particular issue Members who have been here for some time say it has always been difficult to fit things in. But I think the big difference, if I may say so, is nothing to do with the hours of the House, it is the simple quantum of legislation, which has grown in terms of the length of Bills, the complexity of Bills and the number of Bills. One of my colleagues, while idly sitting in the lobby waiting for a Division, in the Commons measured, when it was possible still to do so, the amount of statute from 1550 to 1950 and found it was equal in distance to 1950 to the present day. I would not want you to take those precise dates and that precise distance, but I think that is the issue.

Mr Fisher: Yes, I think to touch further on that, the quality of Bills relates to time in the sense that it relates to speed and because governments grow greedier and greedier for legislation they want it all faster and the drafting of Bills, I think it is generally accepted, becomes more and more deficient. There was that Bill, I cannot remember which one, in our

House in the last Parliament which I think took eight hundred Government’s own amendments to its own legislation. You probably recall it, Paul. It was a Transport Bill, was it? So that is, I think, an enormous problem, the greediness in relation to speed and therefore time. I would add one further thing. Paul, of course, is right that the number of hours that we are present and working has remained the same, but by changing what those hours are I do not think even Government understood what they were doing but it has increased the power of party and of Government enormously in an informal way because there is no longer the time sitting around where we talk to each other and that often improved the education, knowledge and understanding of colleagues of legislation. Now we are focused much more on our isolated work. We do not see each other nearly as much. It means there are fewer revolts and

42 rebellions and that is very convenient and of course it ratchets up the power of the Whips and of Government.

Mr Hogg: I was just going to add three points, if I might. One, I entirely agree with what

Mark says about the hours. Actually, the obligation to be here late at night was an occasion for ministers and backbenchers to go on meeting and talking and although I am not sure this comes within the scope of your inquiry, the loss of that opportunity has been very damaging to the House of Commons and to the understanding that ministers have of the defects in their legislation. The second point Mark made, and Paul did also, about the number of amendments reinforces the need for pre-scrutiny legislation because very often amendments are put down on report and are never ever discussed, and I bitterly regret the departure of the old hours, and I do not like guillotine either because whilst I am perfectly ready to agree that people like myself have misused it in the past, nonetheless the open-ended debating did give people an opportunity to focus on things right down the list, which they cannot now do. Just trying to draw the one point, the number of amendments coming back into the Commons in report never discussed is scandal.

Q296 Lord Elton: Both Mr Cook and Mr Hain were, I suppose the word is reproached, with the number of undiscussed amendments we were getting and both seemed to think that it was sufficient justification that most of the amendments were in fact uncontroversial. Of course, they may be uncontroversial or they may not, but they still may not work if they are not controversial. But the reason I put my hand up to my Lord Chairman was to ask any of you to tell me why it is that everybody who comes here seems to think that the increase in the volume and complexity of legislation is inescapable and nothing can be done about it?

Mr Hogg: Oh, I can tell you the answer to that. Because ministers and governments measure their own influence, importance and contribution in terms of legislative output.

43 Q297 Lord Elton: But nobody else does. The electorate does not.

Mr Fisher: Precisely.

Mr Hogg: Well, we commit ourselves in manifestos to this and that, we have very large numbers of officials who have got to do something to address problems which we are constantly asked to address and people measure their contribution to the state by the interference that they bring about into other people’s lives. Now, I happen to think that is very bad news and I say so to my constituents when they ask me to support this or that.

Mr Tyler: There is a permanent dilemma I think Douglas is putting his finger on. One man’s necessary new regulation to prevent X is his next door neighbour’s unnecessary nanny state interference. We have got to try and do something about it and we have a responsibility to use our own judgment rather than just following the herd.

Chairman: I have got Lord Acton and Lord MacGregor with further questions on that point.

What you are identifying is effectively a ratchet effect.

Q298 Lord Acton: Following on from Lord Elton’s last question and what you said in reply, do you think post-legislative scrutiny might have an effect on the culture of “The more pages of statute books I produce the better,” in that in some instances presumably the legislation will be seen to be an awful flop? You talked about shaming. Might it at times have some shaming effect, or is that pie in the sky?

Mr Fisher: I think it is more likely that pre-legislative scrutiny, if it was genuinely pre, might have something of that effect because it might well be that under the scrutiny of the people for whom the legislation was intended it might become quite clear that the need is not really there.

Mr Hogg: Yes, I am inclined to agree with Mark. You do not want to forget that both ministers and officials move on and therefore the fact that Minister X or official X has been shown up for interfering unnecessarily, it will not necessarily have an impact on the

44 department. What might not be a bad idea if you could get people to accept the concept, is that generally speaking Bills should not be more than a certain size and maybe you could focus the mind of government as to the desirability of actually limiting the size of a Bill for negotiation as to how big it should be and there would have to be provisos, but that actually might be quite a sensible way forward. So there would be a presumption that a Bill would never be more than – and then we could argue about how many clauses.

Lord Acton: Thank you.

Q299 Lord Elton: You would have to guard then against the Henry VIII clauses coming in as a consequence.

Mr Hogg: Yes, you would. That is a fair comment.

Mr Tyler: I would like to see more use of sunset clauses. I think if there had been a sunset clause on the Dangerous Dogs Act or the post-Dunblane Firearms Act, so that there was an automatic review after three or four years, I think that would have been healthier and I think that might have helped on Lord Acton’s point.

Mr Fisher: But the core of the weakness of those two pieces of legislation that Paul has mentioned is surely the thing that I suspect we are all in agreement on, that the most dangerous thing in politics is that something must be done and that is what led to the

Dangerous Dog and the gun legislation, and of course in relation to what Lord Acton said about governments, something must be done and from a government’s point of view something must be seen to be done and it is government’s desire to busy itself so that it can have a list of targets – this Government is particularly disastrously prone to this – so that it can demonstrate that it has met its targets, that it has done things for all these different areas, which is disastrous. A Parliament of quiet would be, I think, for the public good but I think it is wholly unrealistic to expect it to come about.

45 Lord Acton: So you would have a league table of ministers and the winner would be the one who had no legislation whatever!

Q300 Chairman: It bears out Lord Elton’s point as well because you can argue that things like Dangerous Dogs was not actually party contentious. Something must be done and you rush it through.

Mr Tyler: That is right, yes; nor was the Child Support Act.

Q301 Chairman: Exactly. That was the other example I was thinking of.

Mr Hogg: I think Paul’s point about sunset clauses is a very, very good one. Whether you could build it into all Bills is another matter, but there is an awful lot of Bills which really should have a sunset clause.

Chairman: Yes.

Q302 Lord MacGregor: Just on Mark’s point, though, I think it also means constraint on the part of many backbench MPs in not demanding, in response to media pressure and to get a favourable comment and immediate action from Government, which is sometimes what creates the pressure that Government faces on some of these issues. The point I wanted to follow up was Douglas Hogg’s point about the size of Bills and so on because just looking at the Pension Bill at the present time – and I am really talking to you in terms of your legal expertise – which has just come to this House, which is dealing with one or two important issues but they are not absolutely at the heart of pension policy or anything of that sort and which is intended to lead to some extent to pension simplification, it is so massive that it is now in two volumes. I could not believe the size of it when I saw it. Now, I suspect that the answer will be from officials that in order to avoid litigation afterwards or difficulties of that sort and complete clarification we have to have these endless clauses, and I think the same

46 with Finance Bills, that in order to avoid avoidance issues coming up from accountants you have to try to cover every eventuality. That seems to me to be one of the reasons why Bills which in the past used to be quite simple have got enormously complex. What can we do about it?

Mr Hogg: That is only partly right, Lord MacGregor. Where you are absolutely right is that when you tackle a subject you do now try to prescribe in statutory language all the answers to all the foreseeable questions. That is true. I think that that is probably inevitable. But the conclusion that you draw is not that you do not do that, because I think you have to do that, but that you only tackle a given number of subjects at any one time so that in the Pension Bill, for example, you do not actually try to cover in one Bill the entirety of the pension situation, you focus on one aspect of the pension problem with a view to returning to it, say in the next session.

Q303 Lord MacGregor: But that is almost what it is doing. It is looking at the protection of pensioners and the appeal process and the regulator in order to achieve that, and it is huge.

Mr Hogg: Then in that case I am wrong and you are right. My desire would be to try and reduce the scope of the Bill so that you did not cover too many subjects within the Bill.

Q304 Lord MacGregor: One of our issues is contact with citizens and we have had some evidence saying, “Can you please express what you are doing in simple language and the process as it is going through the House in simple language,” but it is very difficult for MPs themselves because of this process and I am not quite sure what the solution is.

Mr Hogg: You are absolutely right.

Mr Fisher: Unlike Douglas, I am not a lawyer so I may be wholly wrong here, but is not what is behind this desire to put everything into statute a growing reluctance by governments

– and I think this Government is particularly prone to it – not to trust the courts and that

47 historically governments have passed legislation and have been, not relaxed necessarily but have accepted the fact that there will be an element of some parts of that being interpreted by the courts. This Government and some senior members of it and neurotically opposed and hostile to the idea of anybody interpreting their legislation and feel it, as it were, insulting to

Government and you get bombastic remarks like, “We’re the elected people. Judges have no right to interpret.” Is it not that which lies behind this desire to dot every comma of legislation and that if governments realised that legislation and the enactment, the post- legislative phase, needs the common law element, as it were, of interpretation, then the need for such fine tuning of legislation would not be so apparent.

Q305 Chairman: One would argue presumably that you could look at Bills and say that the expansion pre-dated that attitude of government but what you have identified exacerbates it and that therefore there is no single explanation for the growth, and that makes it even more difficult to address because it is actually multi-causal.

Mr Tyler: I have a hunch that this goes even further. It is only a hunch, I have no expertise, but I think it applies also to agencies and local government, that we do not trust them to interpret, so we get a great deal more complexity in both the primary and the secondary legislation. Statutory instruments are incredibly complex because Ministers do not want people to use their own common sense and judgment at a local level. That is particularly true, of course, with the European legislation that we were referring to earlier. The average health inspector at a local level is walking around – I saw one at my agricultural show last week and he was carrying a huge suitcase around the various stalls so that he could see whether he was all right. He is not allowed to use his common sense and discretion. I cannot believe that happens in other Member States, and perhaps this may be another exercise for your

Committee in due course, Chairman, and you would get the opportunity to do some foreign

48 travel, to look at whether the secondary legislation in other Member States is anything like as prescriptive as we have here.

Q306 Chairman: I only hope for the Trading Standards officer that volume of material was not too heavy because I suspect that might fall foul of Health and Safety Regulations! Before we finish, could I just put one or two other questions to you more or less for the sake of comprehension because it would be useful to get your views on the record, just filling in some of the gaps in what we have covered. Now, it is quite clear from what you have said that you favour very strongly pre-legislative scrutiny, but I suppose the question is, what is the most desirable form? We have had some witnesses who have said, “Well, it really ought to be departmental Select Committees. They are already in place. They can hit the ground running.” Others have said that Joint Committees of both Houses have tremendous value because of the expertise they bring together. Others have said it is horses for courses, that perhaps they should stand referred to departmental Select Committees but there will be certain Bills which might lend themselves particularly to scrutiny by a Joint Committee of the two Houses. Do you have a view on what is the most appropriate?

Mr Hogg: Yes. I would go for Joint Committees where I reasonably could, though I might make a Joint Committee working in concert with the Select Committee on the principle of shaming because as I do treat the House of Lords, you will be pleased to know, as an altogether more respectable body than the House of Commons and as I think that on the whole you are a damn sight more independent and less party-based you are likely to bring a more independent view to bear on the evidence that you receive and there is a chance, therefore, that once the Members of the House of Commons are exposed to a bit of common sense from your House they might be shamed into making a more sensible report to their party.

49 Mr Fisher: That may well be the case, but a stronger reason for Joint Committees is that it would encourage both Houses to see that their role of scrutiny and monitoring is common and that we are one Parliament.

Mr Tyler: I agree absolutely.

Q307 Lord Acton: Do you think your view that you have just expressed is fairly general amongst MPs about the Joint Committees?

Mr Fisher: I would have to impose a terrific proviso. I suspect that our views as we have expressed them are absolutely not general to our House at all. You will have seen if you looked at our membership a common characteristic that we are all parliamentarians coming to the end of our days and therefore we have no favours to gain from our Party Whips. It is not huge courage on our part, it is the fact that our House of Commons careers are on the whole behind us and so it is much easier for us to talk in the bold way we are doing. So I do not think you should take what we are saying as representative of either the House of Commons as a whole or the party. We are a quite self-selecting and peculiar group. We hope to increase our influence considerably through common sense.

Q308 Lord Acton: How many are there in your group?

Mr Fisher: We have not attempted to get numbers. There are about thirty. We have been looking for people with particular expertise like Ken Clarke or Gwyneth Dunwoody and you can see the range of people. The smallness of our group does not indicate the scale of support, but even if we recruited everybody we could of like mind it would be still a very small proportion of our House, which I suspect comes as no surprise to you at all.

Mr Tyler: I am a bit more confident that we are representative on two grounds. First, that any Member of Parliament who has been involved in pre-legislative scrutiny in a Joint

Committee, that I have encountered, has come away thinking that was a very useful exercise.

50 and that is good news. The other is that the Select Committees have not shown a great deal of enthusiasm for this particular exercise, so in a negative sense one is people wanting to do it.

Select Committees feel that they have got all sorts of other things they would rather do, I have to say some of them involving a lot of foreign travel, which this does not!

Q309 Chairman: I will come back to that point about representativeness in a moment. Just one other question looking at the process. You have dealt fairly comprehensively with Bills going through. Just on post-legislative scrutiny, you have already indicated support for post- legislative scrutiny with perhaps some scrutiny done within Government and then by

Parliament, but again we come back to form. Can one, though, do this for every measure, provide that after a certain period there should be some form of review? Should it be departmental Select Committees? Would they have the incentive or wish to do that? One of the points that has been put before us is that it can be done through the committees but what you do is you get the committees, to commission research in terms of the effect of the legislation, whether it is fulfilling its task. So in effect the committees do not do the work, they commission the work and then have a report before them. Would that be one way?

Mr Hogg: That is a bright idea actually. You would have to extend the budgets of Select

Committees.

Q310 Chairman: Oh, absolutely, yes.

Mr Hogg: But it is perfectly true that your problem with Select Committees is that they feel, as Paul rightly said, that they have other and better things to do. But if they were to commission some agency or external body to receive comments on the Bill and report to the

Select Committee so that the Select Committee could then consider whether they waned to carry it forward, that might be something they would be willing to do and might be effective.

You could put that forward as a suggestion for piloting. It is actually quite a bright one.

51 Q311 Chairman: That would be generally acceptable. To come to a final question, which really touches upon the point you were just developing about whether you are representative of Members as a whole, because it comes back to something I touched upon earlier. One can come forward with wonderful reform proposals. It is then how do you implement them? So it comes back to the point about a window of opportunity, but it also comes to the political will. So how do we achieve change if we believe change to be desirable? Is it the case that essentially what we have got before us are the anoraks, so that we are all talking to one another, we all think reform is a good idea and we can come up with the proposals but how do we deliver them?

Mr Hogg: I am deeply, deeply, deeply pessimistic. I think that if any change is incremental it can only come through shame. There is no great political will on the floor of the House to change and I think that the parties will keep their nasty little grip on the Members of

Parliament for as far ahead as I can see. One of the reasons, forgive my saying so, why I have always advocated a wholly elected House of Lords is because I think that that would shame the Commons. But I know I do not carry your Lordships with me on that point!

Lord Acton: Some of us.

Q312 Lord Elton: Why would it not duplicate the Commons?

Mr Fisher: It would not duplicate the Commons. If it was adopted by a proposal of keeping the Executive out of your House then the party grip would be considerably weakened. I can see scepticism in your faces!

Q313 Lord Elton: If you were to make the tenure for, say, twenty years with an absolute bar on any employment thereafter in anything funded by Government you would reduce the power.

52 Mr Hogg: There are things you can do, yes, but that may be too wide for this debate. But I am deeply pessimistic and I would go for incremental change, trying to shame the House of

Commons by getting expert opinion from outside on particular matters.

Q314 Chairman: I suspect that would be the general view in terms of the evolutionary approach?

Mr Tyler: Absolutely. I am a tiny shade more optimistic because we have achieved some improvements. I mean, pre-legislative scrutiny was a phrase which was unknown a few years ago and Joint Committees, I think, have been developing quite cheerfully. So yes, it is incremental, yes, it is evolutionary, but at least it seems to be heading in the right direction as far as that is concerned, though I think our central anxiety – and this I think is reflected across the backbenches of all parties – is that the power of the Executive to set the terms of everything we do at that end of the building has increased, is increasing and ought to be diminished.

Q315 Chairman: Thank you very much. Just on that point, trying to look at it optimistically, your point about Joint Committees developing, it may be incremental but what is interesting is the speed with which Joint Committees are now being used when you look at it. It is very recent and yet look at the number of Bills which have been sent to Joint

Committees. Certainly the evidence we have received bears out what you were saying earlier.

The response from all those involved in the process has been that it has been a very positive experience, valuable, it has improved the quality of the Bills which then come before

Parliament if you look at the differences made to a number of the Bills, I suppose Civil

Contingencies being a particularly good example of substantial changes as a result. So if one builds on that then one can see there may be some way forward. Gentlemen, I am conscious

53 of time and I am conscious that you have been very generous in being with us this afternoon.

It has been a very stimulating session.

Mr Hogg: We like talking, Lord Norton, so do not let it worry you.

Chairman: I hope it also shows the value of cooperation between the two Houses. It has been most helpful. Thank you very much indeed.

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