§ Mr. Speaker
The House now comes to items Nos. 5, 6, 7, 8, 9 and 10 on the Order Paper. There is a procedural difficulty here which I should like to put to the House. It seems to me that there are two ways of dealing with the matter. Either there should be a general debate covering the specific points or it should be agreed that during the debate those points should not be referred to. I think the House would wish that there should not be two debates on every topic.
I am not selecting the amendment to item No. 5, but I am selecting all the other amendments unless they have fallen before we reach them.
I am prepared for the House to do what it wishes in this matter. I gather that it might be more convenient to have a general debate to begin with on matters not covered by the specific amendments and then to deal separately with the specific amendments. That view has been put to me, but it is matter for the House.
§ Mr. Arthur Latham (Paddington, North)
May I seek further guidance from you, Mr. Speaker, as to what you intend by that? My particular interest is in item No. 8, Delegated Legislation. You will appreciate that it might be difficult, in referring to the Report of the Joint Committee, to avoid referring to the way in which the Leader of the House has proposed that those recommendations should be implemented. May we at least understand that if, for the general convenience of the House, we discuss general 992 principles and subsequently deal with specific proposals, the Chair will not be too strict in ruling out necessary and material references to both the general policy discussion and the proposed form of implementation on the Order Paper?
§ Mr. Michael English (Nottingham, West)
If we are to proceed in the way that has been suggested to you, Mr. Speaker, may I suggest that we do not need a general debate. I recollect occasions when the take-note motion has merely been moved formally and hon. Member have argued about the individual motions. In other words, I think that your two alternatives are even more extreme than you stated.
§ Mr. Edward Short (Newcastle-upon-Tyne, Central)
I welcome your proposal, Mr. Speaker. I think it is a sensible way of dealing with the matter to have a general wide-ranging debate and then to deal with the amendments rather more quickly and specifically.
§ Mr. Speaker
If I may construe my suggestion, I should think that in the general debate we would not discuss the paragraphs mentioned in the amendments to the other motions, but it is for the House.
§ 7.3 p.m.
§ The Lord President of the Council and Leader of the House of Commons (Mr. James Prior)
I beg to move,That this House takes note of the Report of the Select Committee on Parliamentary Questions, of the Second Report of the Select Committee on Procedure relating to Consolidated Fund Bills and Ministerial Statements, of the Third Report of the Select Committee on Procedure relating to the attendance of Members at meetings of Select Committees and of the Report of the Select Committee appointed to join with a Select Committee appointed by the Lords on Delegated Legislation, in the last Session of Parliament.I am grateful to you, Mr. Speaker, for your ruling and I shall do my best to stick to it. I am afraid that I have prepared my speech in a way which deals with the amendments. However, I will leave out that part of my speech and try to reply at a later stage.
I should like to make some general remarks on the procedural matters which we are now to discuss in the take-note motions.
First, I propose to deal with the Report of the Select Committee on Parliamentary 993 Questions, to follow that with the Second Report last Session of the Select Committee on Procedure concerning the arrangements for debates on Consolidated Fund Bills and ministerial statements, to come on to the Committee's Third Report last Session about the rights of Members to attend meetings of Select Committees and, lastly, to deal with the Report of the Joint Committee on Delegated Legislation.
As hon. Members will be aware, the Government have already indicated to the House in Written Answers their general views on all these reports. This evening I propose briefly to amplify the statements and to explain the reasons behind them.
Turning, first, therefore, to the Report of the Select Committee on Parliamentary Questions, I know that there are many hon. Members—
§ Mr. Latham
Before the right hon. Gentleman proceeds with the speech which he has described, may I ask him to indicate his approach, as Leader of the House, to pressing any proposals to which there is substantial opposition by hon. Members? He will recall that on a number of occasions when dealing with matters of this kind his predecessors have indicated that they wished to proceed only with those matters which might have general agreement and that those on which there was a division of opinion might be open to further discussion. It would be helpful to many of us if we had an indication at the onset of the attitude of the Leader of the House in approaching these matters tonight.
§ Mr. Prior
I will try to give an indication of my approach. I should like to get as many of these motions as possible through this evening. If a motion meets enormous opposition from hon. Members on either side of the House—many of them are entirely House of Commons matters—I shall bow to the will of the House. Certainly on points concerned with Question Time and, if possible, on particular matters dealing with the Brooke Committee Report, I should very much like the House to be able to take decisions tonight. However, if we cannot take decisions tonight, I should want to listen to what is said and come back to the matter at an early stage.
994 I thought that it would be convenient for the House to have a debate as soon as it could be arranged on these procedural matters which have been outstanding for quite a long time. That is the way that I should like to conduct the debate. There is not much point in having a debate unless I listen to what is said. I am prepared to do that. Perhaps we could see how the opposition—I do not mean opposition on party lines—to anything I may say proceeds.
I know that many hon. Members take the view that Question Time is one of our most valuable parliamentary occasions and that it is of great importance to ensure that it is used in the best possible way. I therefore believe that the whole House will welcome the wide terms of reference given to the Select Committee which enabled it to look more deeply into the procedures and use made of Question Time than the immediate issue which gave rise to its appointment.
I do not think that hon. Members would wish the fact that the Committee had ministerial chairmen to preclude me from expressing, on behalf of the House, our gratitude to all the members of the Select Committee for a most valuable report.
Perhaps I might refer first to the proposal, which the Government recommend to the House, for the rationing of Oral Questions.
As hon. Members will have noted, the proposal is that in future not more than eight Questions may be tabled in a period of 10 sitting days ahead during which notice of Questions may be given, and that not more than two Questions for Oral Answer may be tabled for answer on any day, and only one Question may be tabled to any Minister on that day. I recommend this proposal to the House on the ground that I believe it will significantly improve the fair distribution of oral questioning opportunities between Members.
At the moment, as the Select Committee has pointed out, although 496 Members put down Questions in 1971, 46 Members asked nearly half the total Oral Questions which were tabled. Since only about one in three of Oral Questions tabled is reached, this means that other questioners must suffer.
995 I believe that this proposal will give those Members who do not ask Questions as frequently as that a better chance to have their Questions answered orally and that it will also end the kind of practice whereby some amongst us table a considerable number of Questions on the first appropriate day simply to get a better chance of one of their Questions being drawn out high on the list by the printer.
§ Mr. John Mendelson (Penistone)
Before the right hon. Gentleman assumes that there is general agreement on the underlying assumption, will he accept that there is a fallacy in the assumption itself'? It assumes that all hon. Members attach the same degree of importance to Questions, but the fact is that while some Members prefer to use other methods to tackle problems and table Questions only as a last resort, others regard Questions as the first step in anything that they undertake. The right hon. Gentleman's statement and the conclusion that he has drawn are therefore based upon a fallacy.
§ Mr. Prior
That may be so, but everyone knows that in the last few years the number of Members who have adopted the procedure of Questions as the first rather than the last resort has increased enormously. I think that the new method will enable more hon. Members to get a chance of an early Question.
Ten sitting days, rather than a week, have been taken as the basis for the ration, to provide more flexibility for those Members who wish to concentrate their questioning on Departments closely following one another on the rota. It must, of course, be a matter of judgment what precise ration we adopt, and this is the subject of an amendment with which I shall deal later.
Finally, I remind the House that this rationing proposal is put forward as a sessional experiment. We can thus see, suggest, how it works out in practice. If it is not successful we should not suggest that it should be repeated, but I think that we can try it.
Moreover, I suggest that any alleged restriction on the rights of Members to question Ministers will be more than compensated for by the proposed new right, which the Government also recommend to the House, that Members should in future be able to insist on getting their 996 replies to a Written Question on a specific date. I think that that change proposed by the Procedure Committee is long overdue, and I recommend to the House that it should be embodied straight away in our Standing Orders. I hope, however, that hon. Members will recognise that if they make an excessive number of their Written Questions "priority" Questions they may sometimes have to be given holding answers.
§ Sir Gilbert Longden (Hertfordshire, South-West)
Before leaving Oral Questions, I wonder whether my right hon. Friend would say something for the record about the method which decides the order in which Members' Questions appear on the Order Paper.
§ Sir Gilbert Longden
I am sorry to interrupt my right hon. Friend again. I was expressing curiosity, not dissatisfaction.
§ Mr. Prior
I am obliged to the hon. Gentleman. They are all put into a bag, and as the printer comes to set up the type, or whatever he does, he takes one out. It is a purely chance business, but I shall have that checked during the evening and let my hon. Friend and the House know.
The Government also think it desirable, as recommended by the Select Committee, that Mr. Speaker should be empowered to ask the Table Office to take 997 a fresh look at the subsidiary rules governing the acceptability of Questions, and that the opportunity should be taken to cut out any dead wood.
The Government recommend to the House the proposals made in paragraph 7 of the report for a more regular review of the classes of Questions which Ministers have indicated they are not prepared to answer, and also the recommendation that Mr. Speaker should no longer feel bound to follow individual previous rulings in deciding whether to allow a Question to be asked after Private Notice.
§ Mr. Tam Dalyell (West Lothian)
What does the right hon. Gentleman mean by "dead wood" in this context? To what is he referring?
§ Mr. Prior
If the hon. Gentleman reads those paragraphs of the report he will find that there are a number of words which are automatically added by the Table Office when putting down certain Questions because they have been, as it were, written into the record for many years. Quite a few of the sentences and words are no longer regarded as being necessary or proper, and that is the kind of dead wood that we could cut out. I know that the hon. Gentleman does not believe in asking long Questions, or long supplementary questions, and that may be of some help to him.
§ Mr. John Brewis (Galloway)
Under the heading of dead wood, will my right hon. Friend cut out such questions as "Will the Prime Minister visit Saudi Arabia?", which are tabled in order to get in a supplementary question on Aberdeen?
§ Mr. Tam Dalyell
May I say, without being unduly boastful or complacent, that if everyone's questions were like mine there would he no need for this debate or for rationing Questions.
§ Mr. Prior
Fortunately, or unfortunately, we are not all alike.
The Government also accept the conclusions of the Select Committee with regard to the preparation of Questions by civil servants and, in particular, the recommendation that it should not be the rôle of the Government machine to seek to redress the party balance on Questions on the Order Paper and that civil servants should not in future be asked to prepare 998 Questions which have this object. Instructions to Departments are being issued accordingly.
I emphasise to the House that this does not imply that the Government consider that the actions taken by the Ministers in the Department of the Environment over the incidents which gave rise to the setting up of this Select Committee were in any way contrary to existing rules. There are no such rules. But the Government accept that in the interests of Question Time generally there ought to be such a rule in future. They hope, therefore, it will be recognised that in doing so the Government are acknowledging their responsibility to the House in giving a lead towards giving more Members a better opportunity to get answers to genuine Questions.
The acceptance of this recommendation by the Government does not imply a view that the Civil Service should in some way be impartial as between Government and Opposition. The impartiality of the Civil Service lies in the fact that it is equally the servant of any Government of whichever party. It is, and remains, the rôle of the Civil Service to be freely at the disposal of Ministers, unless there are clear precedents or rules against a particular form of assistance.
§ Mr. J. T. Price (Westhoughton)
Before the right hon. Gentleman leaves the point about liberalising this section of the rules and procedures will he say whether his advice to the House covers the situation where a Minister who has been having a thin time scatters a few bits of bait around the House by getting Members to sponsor Questions which will produce answers which show him up in a favourable light? I am not making a party point, because this works on both sides. Is it not time that we did something about the sponsored Question?
§ Mr. Prior
I do not think that we could do anything about it, because it is entirely up to the Member. No Member has to accept a planted Question from a Minister if he does not wish to do so. What the report makes clear, and what the Government make clear, is that there should be no assistance from the Civil Service in, as it were, trying to aid a Minister to fill the Order Paper with Questions on a particular subject in order to balance other Questions, and so on.
999 As regards the other proposals made by the Select Committee, the Government do not believe that a Friday Question Time is generally necessary or welcome to hon. Members, but again this is the subject of an amendment which we can discuss later. The effectiveness of Question Time depends on the opportunity that it provides for all Members to participate, to probe and to harry with supplementaries. But I shall leave that to be dealt with later.
Prime Minister's Question Time is another feature of Questions to which the Select Committee has clearly given a good deal of attention. There is a widespread feeling that the House is not at present making the best use of these occasions, and the Select Committee particularly concerned itself with the growing use of "vague" and frequently trivial Questions addressed to the Prime Minister, related to visits and speeches, which are designed rather to conceal than to make apparent the real point the questioner has in mind.
The Government believe that the solution to this problem of the nature and importance of Prime Minister's Question Time lies primarily in the hands of Members themselves. They do, however, support the two suggestions made by the Select Committee that Members might, in tabling Questions to the Prime Minister about ministerial speeches, indicate the particular aspect of the speech with which they are concerned; and that in dealing with Questions to the Prime Minister, Mr. Speaker should in future exercise his discretion in limiting the number of supplementary questions arising from identical Questions to the Prime Minister, irrespective of when the Questions were originally tabled.
The Government do not, however, accept the recommendation made by the Select Committee, and supported in another amendment that we shall deal with later, that Prime Minister's Question Time on Tuesday should be extended by a quarter of an hour.
Finally, on this Report, perhaps I should mention the proposals made by the Select Committee in paragraph 30 about the Question rota. Whilst the Government do not consider that it would be appropriate to sub-divide by subject matter Questions addressed to the major 1000 Departments, the proposal that Questions to myself, the Attorney-General and the Minister for the Civil Service should in future come on at a particular time will be carefully considered through the usual channels when the rota is next reviewed.
It is the Government's hope that if the motions are acceptable to the House, and with the proviso I stated at the beginning of my speech, they will provide the basis for a real improvement in the usefulness of Question Time.
I turn to the Second Report of the Select Committee on Procedure last Session, dealing with the arrangements for debates on Consolidated Fund Bills and with ministerial statements.
The Government's general view on the arrangements for debates for Consolidated Fund Bills is essentially that these are matters which should be determined by the wishes of Private Members. The proposals made by the Procedure Committee for the time-tabling of such debates seem, however, in the Government's view, to be in the general interests of the House.
As Members will be well aware, the present arrangement for these annual debates is that they are open-ended, both with regard to the length of the debates as a whole and in respect of the debates on each particular topic. Because of this uncertainty over timing, and the resultant frequent late withdrawal of topics, it is often complained that Members have little or no idea when a particular topic will come on, and that they therefore waste a great deal of time waiting about.
The Procedure Committee's proposed remedy for this is that whilst balloting for topics should continue, there should in future be a definite overall "cut-off time" for these debates, and that Mr. Speaker should allocate time within this overall limit to each debate on a particular topic, depending on his judgment of the importance of the topic concerned, and the evidence he has of the number of Members wishing to speak.
The overall timetable proposed by the Select Committee for the normal three annual debates is accordingly that the winter and July debates would commence at the normal time and conclude at 5 a.m.; and that the March debate would end at 1 a.m. I can give no undertaking about the provision of Government time 1001 for these debates or about longer notice as to when they will take place. All these new arrangements for Consolidated Fund Bill debates would be initially on an experimental basis.
§ Mr. Nigel Spearing (Acton)
Is the right hon. Gentleman saying that he cannot offer the succeeding Friday, which was the Committee's recommendation?
§ Sir Robin Turton (Thirsk and Malton)
It is a little more than that. My right hon. Friend's predecessor gave the Committee an assurance that he would be ready to give one Government Friday, although he was doubtful whether he could give more than one. It must be borne in mind that the Committee recommended that a Government Friday should be given on only two occasions, and that on the spring Supplementary Estimates there would be no question of resuming the debate on a Friday.
§ Mr. Robert Mellish (Bermondsey)
I was one of those who gave evidence. I have always wondered why, in approaching the question of the Consolidated Fund Bill debates, we do not take account of the staff of the House, the Chair, the clerks, the police and the restaurant people, and do not conduct ourselves in a rather more dignified way. I am bewildered that we did not support the principle—and that the Committee did not accept it—of adjourning the debate at, say, one o'clock in the morning, then starting it again at a reasonable hour, say 8 o'clock in the morning, and going on for four hours. That would appear to me to make for a reasonably organised debate. The right 1002 hon. Gentleman is saying that the debate should be cut off at five o'clock. What an unreasonable hour to cut off!
§ Mr. Prior
We can reconsider the matter, but I seem to remember that the evidence showed that there was a good deal of opposition to cutting off and then resuming the debate the same morning. That possibility was not accepted by the Committee, but the suggestion of resuming on the Friday won a good deal of support. All this is set out in paragraph 18.
As regards the Procedure Committee's proposal in the same report for the introduction of a new category of ministerial written statements, the Government have already indicated, in my predecessor's written reply to my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton) on 3rd July, that on the whole they favoured this proposal. It is not, however, a proposal which the Government would wish to put forward to the House in the absence of all-party agreement. This has not proved possible.
Nor do the Government propose to recommend to the House the Committee's proposal that there should be special provision in Standing Orders to enable ministerial statements to be made exceptionally at 7 p.m. or at the conclusion of Public Business. Such provision would tend to undermine the certainty of Public Business. In cases of grave national emergency suitable ad hoc arrangements could be made, and I think I am right in saying always have been made when the need arose.
Perhaps I should also mention recommendation (10). The Government consider that the consequential risk of eroding the traditional certainty of the break of business at 10 p.m. outweighs the advantage of making provisions for "injury time" when ministerial statements run on before 4 p.m. on days when Private Members' motion half days are followed by opposed Private Business.
The Third Report from the Select Committee on Procedure last Session also dealt with another question which, like the arrangements for Consolidated Fund Bill debates, is more a House than a Government matter—namely, the rights of Members to attend meetings of Select Committees to which they have not been appointed.
1003 The Committee was invited to consider this question by my right hon. Friend the present Secretary of State for Northern Ireland, when Leader of the House, because it was felt by the Government that the existing rules of the House were undesirably uncertain in this field, and that there was no clear guidance either for Select Committees or Members.
The Procedure Committee's Report confirms the ambiguities in the present rules that my predecessor no doubt had in mind—in particular, the uncertain degree of obligation which a Member has to withdraw from a Select Committee, if requested to do so and whether the relevant passages in Erskine May apply both to meetings of Select Committees when evidence is being taken and meetings when a Select Committee is deliberating.
The Procedure Committee, therefore, recommends to the House two clear rules—that Members who are not appointed to a Select Committee should not be able to attend its deliberations and other informal meetings; and that, with regard to meetings of Select Committees when evidence is being taken, Select Committees and sub-committees should be empowered to exclude Members by resolution.
It would be inappropriate for the Government to express any view on these recommendations other than it would seem that a clarification of the existing position is desirable in the interests of the House.
The motion on the Order Paper, however, provides an opportunity for the House to express its view on the particular recommendations proposed by the Procedure Committee.
I turn finally to the Report of the Joint Committee on Delegated Legislation under the chairmanship of Lord Brooke. The House will be aware that this Committee was set up last Session to look into the whole question of delegated legislation and to consider ways in which the parliamentary scrutiny of delegated legislation might be improved.
An aspect with which the Government were particularly concerned was to see how more time might be found for the debating of Prayers against negative instruments in view of the many other pressures for time on the Floor of the 1004 House. As hon. Members will know, it is a regular feature of Business Questions for the Leader of the House to have to explain why it has not proved possible to find time for a particular Prayer, and under present procedures if Prayers are not debated on the Floor they cannot be debated at all.
In its Report the Joint Committee makes two principal proposals, each concerned with the setting up of a new parliamentary committee. It proposes, first, the establishment of a joint scrutiny committee of both Houses to check the technical propriety, including the vires, of statutory instruments; and secondly, that a Commons Standing Committee should be set up to consider the "merits" of stautory instruments referred to it by the House.
I would certainly accept the view that the Joint Scrutiny Committee must reflect the balance of parties existing in the House of Commons at any one time, otherwise I do not think it would be acceptable to this House that it should be a joint committee.
As I have already informed the House in a written reply to my right hon Friend the Member for Harrogate (Mr. Ramsden) the Government recommend both these main proposals.
I believe that the setting up of the proposed joint scrutiny committee would avoid the present undesirable duplication of functions between the present Statutory Instruments Committee of the House of Commons and the Special Orders Committee of the House of Lords, and the proposed Commons "merits" committee will, in the Government's view, provide a valuable and much-needed additional forum for the consideration of delegated legislation.
In case there are Members who fear that the establishment of a committee for debating Statutory Instruments on a "take note" motion would mean that major delegated legislation might no longer be debated on the Floor, I emphasise that affirmative orders would go to the "merits" committee only if there were agreement to this through the usual channels and provided that 20 Members or more did not object. Otherwise affirmative orders would, as at present, automatically have to be taken on the Floor.
1005 As regards negative instruments against which Prayers had been tabled, these could be referred to the committee only if 20 Members or more did not object. Since, in the case of negative instruments, the effect of such blocking might otherwise be that the Prayers were not debated at all, either on the Floor or in the new committee, the Government propose to accept the tentative additional suggestion put forward by the Joint Committee that the 11.30 p.m. rule might be modified so that a negative instrument could be debated on a "take note" motion at any hour, however late, subject to not more than one such debate being permitted on any one night, with a time limit of 1½ hours.
The Government do not, however, recommend to the House the other proposals made by the joint committee for securing additional time to debate negative instruments on the Floor of the House either by the setting aside of particular days or by the reserving of time between 10 p.m. and 11.30 p.m. on Supply Days for Prayers.
I think I ought also to draw the attention of the House to those particular detailed aspects of the joint committee's recommendations which the Government do not commend to the House. The first of these is the proposal that the Standing Orders of both Houses should provide that no motion for an affirmative order should be moved until it has been considered and reported on by the proposed joint scrutiny committee.
As regards this House, the Government will continue to do all they can to ensure that a joint scrutiny committee would have the opportunity to examine affirmative orders before they were taken on the Floor. But, in the Government's view, there must inevitably arise occasional circumstances, either of extreme urgency or, for example, at the beginning of a Session before committees are established, when an absolute requirement of this kind would be unacceptable.
The Government are, therefore, unable to accept this proposal so far as the House of Commons is concerned.
§ Mr. English
I am not familiar with the procedure of another place. However, is it not the case that the House of Lords already has this rule and, therefore, that the rule must already apply to the Gov- 1006 ernment? Therefore, although I understand exactly what the Leader of the House said, I do not see why it should be true if it is already imposed on the Government by another place.
§ Mr. Prior
It is not imposed on the Government in the House of Commons. In other words, we can table an affirmative resolution or a motion can go down for debate here straight away before it has been to the Statutory Instruments Committee. As I understand it, before that affirmation can be put on to the Order Paper in the House of Lords it has to go to its special orders committee. Therefore, the two practices are different.
§ Mr. Latham
Either the Leader of the House has not grasped the point that my hon. Friend the Member for Nottingham, West (Mr. English) was making or I have not grasped the answer given by the Leader of the House. The case that the Leader of the House was making against the joint committee's proposal was that the Government took the view that there would be circumstances of urgency in which this would be an obstruction to their carrying out their task. The point that my hon. Friend was making was that the Government are already subject to that obstruction in another place and if that has not proved an insuperable obstacle in the House of Lords why should it be so in the House of Commons.
§ Mr. Prior
I see what the hon. Gentleman is getting at. I presume that because it has not been the practice of another place, with one or two exceptions, in the last 50 years to vote down Statutory Instruments it is always considered of much greater importance that this House should get them on to the Order Paper more quickly than is perhaps the case in the other place. I will have another look at that in the course of the evening, but that is probably the explanation. Often we want to get it down on to the Order Paper at once or at the beginning of the Session. It is not of such great importance for their Lordships to do so and therefore there is time for it to go to their Lordships' scrutiny committee.
§ Mr. English
In Session 1967–68 the orders considered by the Lords' committee and drawn to the attention of the House of Lords were less than 20 per cent.—10 out of 56. If that is what the Leader of the House means by a very 1007 small number, it is not what normally would be said to be the case.
§ Mr. Prior
I did not mean that point. I meant their Lordships disagreeing with the House of Commons in a statutory instrument passed on the Floor of this House. I will have another look at this during the course of the debate and perhaps when I reply, with the leave of the House, I can say something else about it.
The second Government reservation concerns the proposal that all instruments open to consideration by the proposed joint scrutiny committee, and to which the committee had drawn the special attention of the House, should come automatically within the scope of the proposed "merits" committee and should receive precedence in their consideration by that committee.
In the Government's view, this would be inappropriate. The rôles of the two proposed new parliamentary committees would be quite separate, and there seems no reason why an instrument which has been drawn to the attention of the House on the basis of technical impropriety should also have to be considered by a committee which would be concerned with the "merits" of the instrument.
Subject to these two subsidiary points, however, the Government commend the establishment of the two new proposed committees to the House in the belief that they will represent a considerable improvement in the parliamentary machinery for the scrutiny of delegated legislation.
I think we must leave the chairmanship of the joint committee for the committee to decide in due course.
Overall I believe that the recommendations covered in these various reports represent quite a substantial package of procedural reform. In particular, if acceptable to the House, the recommendations made by the Joint Committee on Delegated Legislation would mark a significant extension of the opportunities for the parliamentary scrutiny of delegated legislation.
Procedure, although a necessary and important feature of our parliamentary life, is not a subject which normally warms the blood although it has certainly excited one or two hon. Members tonight. It is important that our procedures should 1008 be as good as we can devise if we are to make the best possible use of the limited time available to us.
It is, therefore, all the more important that the House should recognise and pay tribute—as I do now on its behalf—to those Members of the Procedure Committee and of the other committees concerned who have devoted so much time and thought to the study of the issues which we are considering today.
§ 7.42 p.m.
§ Mr. Edward Short (Newcastle-upon-Tyne, Central)
May I first of all associate myself with what the right hon. Gentleman said in his closing words when he paid tribute to all the Members who have served on the Select Committee and the Joint Committee?
Secondly, I must register a protest about the short notice that we have had for these motions. These are complicated and some are rather obscure. They were put on the Order Paper only last Thursday, which gives inadequate time to scrutinise them properly, to try to collect the voices and to get some kind of agreement. I take the view that this is essentially a House of Commons matter and the views that I will be expressing will be largely my own, although I have taken the trouble to consult a number of my hon. Friends.
I do not agree with a ministerial chairman on the Procedure Committee. I believe that the chairman ought always to be a back bencher. This is not a party matter, but we are extremely grateful to the right hon. Gentleman for what he said about listening to the views which are put tonight and, where a proposal encounters opposition, promising to take it back. We are grateful to him for bringing these proposals forward. We feel that he could have gone very much further in one or two important respects which go to the heart of parliamentary democracy and individual freedom. Some of the proposed diminutions in the rights of Members are also extremely important.
I will follow the pattern which he adopted and comment on the proposals in the order of their appearance in the "take note" motion. First of all I will deal with the Select Committee on Parliamentary Questions. We all recollect the rather shameful circumstances in which this Committee was set up. There was 1009 a quite unprecedented use of civil servants in the Department of the Environment to prepare a mass of Parliamentary Questions which were then farmed out to Conservative Members. The right hon. Gentleman left this to the last of his comments on Parliamentary Questions.
There is a difference between the inspired Question which we all understand and which is a kind of low key ministerial statement, and a bank of Questions prepared by civil servants. The report says on this:It is not the rôle of the Government machine to seek to redress the Parliamentary balance of Questions on the Order Paper and civil servants should not in future be asked to prepare Questions which have this object.It is a great pity that this was not stated as a recommendation. It is simply in the report as an opinion. I believe it should be firmer than this and should be in the form of a recommendation.
To digress from my pattern for one moment, I want to mention two other expressions of opinion. The first deals with Members asking about ministerial speeches. As far as I can see, it has no effect at all. What it says is that Members may or may not include in their Questions a precise indication of the subject matter in a ministerial speech to which they wish to refer. If I understand the English language, the sum total effect of that is nil. Similarly, in paragraph 25 there is a suggestion that Mr. Speaker should be rather tougher on identical Questions placed on the Order Paper. I have always felt that it was an abuse when large numbers of hon. Members copied another hon. Member's Question simply to be called for a supplementary question. I welcome this, even though it is only in the form of a suggestion.
Paragraph 7 deals with the refusal of Ministers to answer a Question and proposes two quite sensible changes in the absolute rule concerning Questions which the Government refuse to answer. We should be clear that the power to refuse to answer Questions is an extremely powerful protection against legitimate inquiry by Members and therefore it is high time it was modified. I welcome these changes. I wish that they had gone a little further.
Paragraph 8 gives Mr. Speaker the right to modify subsidiary rules—not the 1010 principal rules—on Questions. There is a great multiplicity of them and there is no doubt that all these rules applied by the Table Office—and we have all encountered them many times—result in large numbers of Questions being excluded from the Order Paper during any Session. We welcome the placing of that new right in the hands of Mr. Speaker and the Table Office and we hope that they will use it.
Paragraph 10 follows a similar theme. It says that Mr. Speaker need not feel bound by previous decisions so long as Questions ask for information or action which are within the responsibility of the Government and are not in conflict with the proposed new rules. It is difficult to see why on 26th June the Chairman used his casting vote against a proposal by my hon. Friend the Member for Islington, South West (Mr. George Cunningham) which, had it been carried, would have swept away all the accumulated dross or dead wood in our rules about Questions. I am sorry that the proposal was not carried in place of all this.
Paragraph 28 deals with another longstanding grievance of Members, the difficulty of getting Written Answers when Members want them. I very much welcome the priority system for Written Answers. I support its immediate inclusion in the Standing Orders of the House. Paragraph 29 lays down that Mr. Speaker is no longer bound by previous decisions in allowing Private Notice Questions. Speaking personally, I am less sure about this. It is not a bad thing to have some certainty about what is and what is not allowed in such Questions. As a back bencher I often found—this is no criticism of the Chair—that the decisions of the Chair in this respect were incomprehensible. However, that is the proposal and I have some doubts about that.
There were proposals not accepted to which the right hon. Gentleman has referred. The first one was for Friday Questions. I realise that there are two points of view about this. Speaking as a provincial Member for the past 21 years, I always try to get back to my constituency on a Friday and I feel that a Friday Question time would be less than satisfactory. Also, of course, Ministers are in charge of large Departments, and 1011 Ministers have got to get round the country. When I was Secretary of State for Education I always used Fridays to visit schools and colleges all over the country. I think it is essential that Ministers should get out of their offices at least one day a week. Indeed, I would lock up every Minister's office one day a week, and make Ministers go round the country.
§ Mr. Marcus Lipton (Brixton)
On the subject of an hour for Questions on a Friday, the suggestion also is that only two Ministers would be liable to be questioned during that hour on a Friday, so that the idea of having a whole lot of Ministers pinned down in London on a Friday is not correct.
§ Mr. Short
Well, I said I thought there were certainly two points of view about this, and I imagine that we polarise geographically on this according to where our constituencies are.
The other proposal was about Prime Minister's Questions. On reflection, we get so little out of our present two periods of Prime Minister's Questions that I cannot really see that another quarter of an hour would make very much difference.
On paragraph 19, the rationing of Questions, this certainly simplifies the present rather complicated demoting system and it means a Sessional entitlement to about 130 Questions on the basis of eight in ten days. Again, there are two views about this. I think it is a good thing. I realise that some hon. Members will not agree with me and I hope that all hon. Members will express their views about it.
I turn briefly to the Consolidated Fund Bills. This, again, is a vitally important matter for Private Members. It is not a Government matter; it is not an Opposition matter; it is a Private Members' matter. So I hope that the right hon. Gentleman will listen to the views we have about this.
Second Reading debates on Consolidated Fund Bills are a contemporary example of the operation of the fundamental principle of the redress of grievances before Supply is granted to the Crown. Consolidated Fund Bills are founded upon Supply resolutions agreed by the House for the purposes set out in 1012 the Estimates, in Supplementary Estimates and Votes on Account which make good excess Votes, and there are three of them. One is the winter Consolidated Fund Bill, another is the March one, which is devoted to defence and Special Estimates, and the third is the July one. The winter and July Second Reading debates are very wide debates because the content of the Bills is wide.
Since the Procedure Committee of 1966, Second Reading debates on those Bills have been left entirely to Private Members. So we have had five years' experience, and we can look back and see how it has worked. Certainly some very long debates on wide subjects have detracted from the constitutional principle here—in my view the opportunity for a large number of Members to air their grievances. The report itself gives an example of five out of ten debates on wide Bills lasting over 16 hours. Many of the subjects chosen by ballot have not been reached, and, of course, there is great uncertainty about when a Member's subject will be reached as well as about whether it will be reached.
So there has been dissatisfaction, but the dissatisfaction has been almost entirely about the unpredictability of debate and not about its going through the night, as the report says. I think nobody complains about this because the Members concerned, the Members who have drawn places in the ballot, are the only Members who stay; and they stay and are willing to stay. So I do not really agree with the report when it says that there has been dissatisfaction about that.
§ Mr. English
I agree with my right hon. Friend. Would he also agree that this complaint has arisen primarily since the days of a previous Speaker who off his own bat decided to have a ballot and that there has not been any decision by this House to have a ballot until now when this motion is before us tonight?
§ Mr. Short
That may be relevant. However, after five years it seems to me quite reasonable to have a look at the matter and to see how it has been working.
The proposal is that there should be a cut-off time not only for the whole debate but for each subject. I welcome the cutoff time for different subjects. I think 1013 that that is reasonable, and I think that it is quite reasonable to leave it in the hands of the Speaker as to the time devoted to each subject according to his estimate of the importance of the subject. I think it is a quite unreasonable and a quite unnecessary and a quite unwarranted diminution of the rights of Members to terminate the debate at 5 a.m. Why in heaven's name do we need to do that? I am not very concerned about the March Bill. This is mainly on defence, and my view is that we have in this House far too many debates on defence, compared with the debates we have on education. I hope that this can be looked at, for I think we spend far too much of our time on that. That is quite unacceptable to me that there should be a cut-off of the whole debate, although I am in favour of apportioning the time for the subjects.
Among the proposals not accepted was one about written ministerial statements. If I understood the right hon. Gentleman aright, the Government agreed to it but did not put it down. I do not agree with it. I think even the inspired Question, which my hon. Friend the Member for Westhoughton (Mr. J. T. Price) dislikes, is better than that. I am sure that Ministers would take advantage of it to get publicity for some proposal or another, without any accountability to the House.
A second one was that extraordinary ministerial statements be made at 7 p.m. or at the end of public business. I do not see that there is any need for this because at moments of crisis the House always finds its procedure flexible enough to find a way for such statements, and we should be very careful about detracting from the certainty of public business, as this would. Therefore, I am glad that this has not been included.
Thirdly, I come to the right of Members to attend Select Committees when they are not appointed to them. Certainly there are ambiguities here which might lead to the embarrassment of Members concerned, but this proposal really does go much too far. It gives power to individual Committees to exclude the rest of Members of Parliament, a power which they should not have. I think it is quite unnecessary. Again, it detracts from the rights of Members. I hope that the right 1014 hon. Gentleman will feel that he need not press this one.
§ Mr. J. T. Price
I have spent a great deal of time performing in a modest capacity in Select Committees. May I ask my right hon. Friend to reflect on this, not being dogmatic at all about it myself? There are in Select Committee many occasions when many of us, as working Members of a Committee, feel that it would be desirable not only to admit Members but to make the Committee open to the Press as well. The difficulty is that there are many occasions when witnesses being examined or cross-examined are not willing to give evidence except in camera. This is the difficult thing. I would say that many people like myself who have done a lot of work on these Committees would much prefer them to be as open as possible, but within limits. If they are open, and we declare them open, they are open not only to the Press but to all of our fellow Members of the House, and this is a situation I would like to encourage.
§ Mr. Short
I certainly think that there is a problem, and that is why I said that there are sometimes ambiguities and embarrassments, but I do not think that the two rules proposed are the way out. Committees should not have a blanket power to exclude other Members of Parliament.
One of the most substantial and important parts of the proposals deals with delegated legislation. The scrutiny of and the right to challenge delegated legislation are fundamental to democracy. Minister-made law or, more often, Civil Service-made law is increasing at an alarming rate. Under this Government I am sorry to say that the House is gradually losing its power to scrutinise delegated legislation. During the last Session over and over again we either were not able to debate important Prayers or we debated them out of time. I do not agree with debating them out of time. The House must have the right to reverse a Statutory Instrument if it is so minded.
The Joint Committee under Lord Brooke proposed two committees—first, a joint committee to scrutinise Statutory Instruments and to check the technical propriety, including the vires, of the instruments. That may avoid duplication between the Statutory Instruments 1015 Committee in the House of Commons and the Special Orders Committee in the House of Lords, but I am extremely apprehensive about the proposal.
Page xxi shows how the Lords have dealt with Statutory Instruments, from which it will be seen that the House of Lords always draws more orders to the attention of the House when there is a Labour Government. That makes me apprehensive.
I am sorry that the right hon. Gentleman has accepted the recommendation that the chairman should, after the first appointment, be entirely in the hands of the committee. Before my right hon. and hon. Friends and I can accept this proposal we must be assured that the chairman will always be an Opposition Member from the House of Commons. Secondly, we must be assured that the strength of the House of Lords element on the committee will be pro rata to the strength of the parties in the House of Commons. Those are the minimum terms on which we could agree to the joint committee.
§ Mr. English
I think that the right hon. Gentleman did say that, but he did not say anything about the chairman.
§ Mr. Short
The right hon. Gentleman has met the point, but we must insist on the other before the proposal can be agreed.
It is proposed that there should be a House of Commons Committee to consider the merits of Statutory Instruments. The right hon. Gentleman said that it would provide a much needed additional forum for the consideration of delegated legislation. I am not sure that it is the right kind of forum. Affirmative orders are only to go to the committee if there is agreement through the usual channels and if 20 or more hon. Members do not object. Negative instruments—that is, Prayers—presumably would go to the committee without the usual channels provision unless 20 or more hon. Members object. These proposals make it more difficult for hon. Members to pray against delegated legislation. They simply erect 1016 more barriers to hon. Members carrying out a vital constitutional function. In the last Session the Government put all kinds of barriers in our way. It has been virtually impossible to debate Prayers. To have to rely on 20 hon. Members standing up would make this even more difficult.
§ Mr. Ronald Bell (Buckinghamshire, South)
Will the right hon. Gentleman deal with a point which commends itself to me? In 20 years I cannot remember any occasion on which the Government have been defeated on a Prayer in the House, whereas upstairs in Committee I can conceive of this happening more easily and so making our scrutiny much more effective.
§ Mr. Albert Booth (Barrow-in-Furness)
Will my right hon. Friend look at this in the context of page xlv, paragraph (d), where it is made clear that the only motion that could be passed or defeated on the consideration of merits in Standing Committee is the motion, That the Committee take note of the order? As I understand the recommendation, there could be no possibility of the Government being defeated in Committee upstairs on any Statutory Instrument. It would be helpful if this point could be clarified.
§ Mr. Short
That is my understanding. That is why I said it was not a good additional forum for debating Statutory Instruments.
The right hon. Gentleman went on to say something which alarmed me. He said that the effect of blocking might otherwise be that Prayers are not debated at all. Why ever not? Is he threatening the House? Is he saying that if hon. Members block a Prayer going to Committee the Prayer will not be debated either in Committee or in the House? Surely the House has a constitutional right to seek to annul these orders? The only danger of their not being debated arises from the chaotic state of the Government's business.
1017 Another major weakness of these two committees is the absence of mechanism to get the Statutory Instrument back from the Committee to the Floor of the House. If my hon. Friend the Member for Barrow-in-Furness (Mr. Booth) catches your eye, Mr. Deputy Speaker, I have no doubt that he will develop these points, because he is an expert on delegated legislation.
There is also a proposal that the 11.30 p.m. rule should be modified so that a negative instrument can be debated on a "take note" motion at any hour, however late, for a limited 1½ hours. Hon. Members who have been in the House for some years will know that this is putting back the clock in more senses than one. I regard this as a retrograde step. We used to sit debating Prayers until the early hours of the morning, almost every night. That is why the rule was changed. I hope very much that this proposal will not be pressed.
I profoundly regret that the Government have not accepted the Opposition proposal for setting aside a date for debating Prayers. We have a right to debate Prayers. It is a fundamental safeguard of democracy against bureaucracy, and bureaucracy today is much more dangerous than autocracy.
§ Mr. Latham
Will my right hon. Friend deal more closely with the "take note" concept? A Statutory Instrument which is referred to the committee with 20 Members not objecting can be debated only on a "take note" basis. My right hon. Friend has referred to this point in the context of the house debating an instrument on a "take note" motion. Will he deal with the point whether there can be any significance in a "take note" motion other than the exchange of views. Presumably, whether a "take note" motion is carried or defeated can make no material difference. It therefore appears that the existence of the "take note" procedure either in the House or in Committee offers no definitive safeguard against bureaucracy.
§ Mr. Short
That is the logical result of the view put by the hon. and learned Member for Buckinghamshire, South (Mr. Ronald Bell). He said that it was to allow Members to exchange views. I put it more crudely and say that it is simply to allow Members to get it off their chests 1018 and blow off steam, and it has no effect whatever. That is what I obect to. I object to the right being taken away from an hon. Member or from this House to annul an order. It may nominally be made by a Minister, but in effect it is made by a civil servant. It is a law that is binding on everybody and the House must have the right to annul it. That right must not be removed. We are not satisfied with a motion simply "to take note".
§ Mr. Ronald Bell
I agree with that view. I should like to see a Committee upstairs with the power to annul. I agree that a "take note" motion is useless, but I believe that it is more valuable to have the power to annul in a Committee upstairs than it is to have that power on the Floor of the House, because upstairs the party system does not operate in quite the same way.
§ Mr. Short
I am grateful to the hon. and learned Gentleman for saying that. This shows that if we were given an opportunity to discuss these matters among ourselves we could reach agreement on this kind of proposal.
I thank the Leader of the House for bringing these matters forward. Some are acceptable; others are quite unacceptable. I hope that the right hon. Gentleman will not press those which are unacceptable since they should all be by agreement. I hope that in future the Government will allow a minimum of at least two weeks after publication of motions to see what amendments arise and to try to reach agreement among all members of the House. This is not a Government or an Opposition matter, but it is a matter for every Member of the House of Commons.
§ 8.12 p.m.
§ Mr. Albert Booth (Barrow-in-Furness)
I should like to address my remarks only to delegated legislation. I hope that it will not be considered discourteous if I do not deal with other important matters with which the Select Committee on Procedure has dealt. I am restricting myself to the Report of the Joint Committee on Delegated Legislation because it is a subject with which I have been particularly concerned for some time.
To see the problem of delegated legislation in perspective we must first note 1019 the change which has taken place both in the volume and the nature of delegated legislation in recent years. The Joint Committee's report refers to the number of Statutory Instruments made in the Session 1970–71. In that Session there were 151 affirmative instruments, 765 negative instruments and 556 general instruments—a total of 1,472 Statutory Instruments in a single year. I have taken a year in which there was an enormous volume of such instruments, but we cannot envisage any year in which there will not be many hundreds of pieces of delegated legislation laid before this House.
We must first ask ourselves how we should deal with this legislative volume. The orginal procedure as laid down in Standing Orders to deal with delegated legislation was conceived at a time when such a volume of delegated legislation would have been unthinkable. We must also recognise that the very nature of delegated legislation has changed. Whereas originally delegated legislation was regarded as a means of dealing with detailed points of administration which had to have legal effect, it has now become a very much more wide-ranging and flexible instrument. It can be used, and in recent years has been used, to bring about major changes of policy. The Leader of the House remembering his previous rôle will recall that it was by the use of delegated legislation that the Government changed their policy from the payment of food subsidies to the system of import levies. That major change of policy was implemented solely by delegated legislation, and it was done quite legally. Powers were laid down in earlier Agriculture Acts which made it possible for the Government to take such action.
I make no complaint on the grounds of legality. At one time such a major change of policy—through delegated legislation rather than through the normal governmental processes of planning and policy decision in this Chamber—would have been unthinkable. At present such a situation not only is possible but is a practice that is likely to grow. Therefore, it is even more important that the House has complete control over delegated legislation. If we study the subject carefully we see that the House of Commons, instead of increasing its control over 1020 delegated legislation, has lost effective control as such legislation has grown in volume and importance.
Two significant changes in the Standing Orders in post-war years have resulted in a 1½ hour limitation on affirmative order debates and an 11.30 p.m. limit on negative instrument debates. It is quite clear that the most severe restriction, the 11.30 p.m. limit, has been in the area of legislation which has thrown up the greatest number of instruments—namely, negative instruments. There is no year in recent times in which there has not been a considerably greater number of negative orders than affirmative orders. Each time in Standing Committee on a Bill upstairs I suggest that certain matters should be subject to affirmative rather than negative procedures, the suggestion is strongly resisted by the Minister involved—with, I suspect, the enthusiastic support of his civil servants.
It is now possible to have a series of affirmative instruments put through the House in a day. Indeed the Government, if they are so minded, can put through a series of such instruments throughout the night. A Prayer must end at 11.30 p.m., and this means a maximum of only 1½ hours, but the Government, intentionally or otherwise, often arrange business so that it will eat into part, if not all, of that 1½ hours. Therefore, there is the greatest need for control of delegated legislation, particularly of the negative instrument.
Changes in Standing Orders over the years have cut down the amount of control in the hands of Members of the House of Commons. For this reason I am concerned about the Government's attitude to the recommendations of the Joint Committee on Delegated Legislation which would substantially increase the amount of time spent by the House on delegated legislation, particularly on negative instruments. If we pass the Government's motion on delegated legislation, two of the proposals will not become effective. Therefore, I trust that the Leader of the House will sense the mood of the House, as expressed in the speech of my right hon. Friend the Member for Newcastle-upon-Tyne, Central (Mr. Edward Short), that we do not wish to proceed any further without giving serious consideration to these matters.
§ Mr. Mellish
Is there not a further matter which should be put on record—a matter of which I have had experience in the last two years? This relates to the volume of negative resolutions and the fact that again and again Government business, quite properly, takes priority. By the time we have tabled a Prayer it is found to be out of time, and we then go to the Government to ask for a motion to be tabled to discuss the matter by affirmative order. But having tabled such a motion, it is then found to be irrelevant, and the order is usually in operation by the time one comes to pray against it. This makes a farce of democracy. Unless something is done to take hold of this situation and to bring these matters to the Floor of the House at the right time for proper discussion, any consideration of a negative order will become even more of a farce.
§ Mr. Booth
My right hon. Friend the Member for Bermondsey (Mr. Mellish) emphasises a crucial point on the question of control. It relates to the Government's attitude to the time made available in this House to deal with a prayer. As my right hon. Friend pointed out, all sorts of objections are raised when one attempts to discuss when a Prayer is to be debated. In reality what this amounts to is that the Government say that all sorts of other matters must take priority over a certain form of legislation. However, it is my view and that of the majority of working hon. Members that it is completely wrong, in a democracy, that this House's control of legislation should be set aside as being a matter which is not one of priority.
It does not matter to me whether it is called delegated legislation or primary legislation. The reality of the matter for the citizen and for our courts is that what appears in a Statutory Instrument is the law of the land just as much as what appears in an Act of Parliament. To say that there is no time in this House to deal with the law of the land is the very negation of the democratic process. But that is what has been happening increasingly in recent years. The Government have said that there is no time to deal with this legislation by the democratic process of a debate and vote in this House before it becomes law. Law which is not subject to the process is not democratic law and certainly is not 1022 in accordance with the traditions of government that we have established in a way in which we rightly take pride.
It is fundamental that time must be granted. It is ridiculous to continue taking a growing volume of delegated legislation without an appropriate increase in the amount of time that this Chamber devotes to it. If we cannot find a way of dealing with primary legislation on the Floor of the House and taking a vote on it, we should send it upstairs. The Second Reading Committee is an example of legislation which has gone upstairs with the possibility of returning to this Chamber for a vote. If we found a means to do that with delegated legislation it would be understood. What will not be understood by those who look to us to protect their democratic rights is sending this legislation to a committee which can merely take note and do nothing else about it. That can never be an alternative to our law-making process.
I turn now to the proposal for a joint scrutiny committee. I take the view that all the affirmative and negative orders which are considered by this House should first have been considered by a scrutiny committee of this House. This is probably the appropriate occasion to make the complaint that we have no scrutiny committee operating in this Session. The Government have not chosen to set up the Select Committee on Statutory Instruments to consider all the hundreds of instruments which have so far been laid in this Session. Since this matter was not referred to by the Leader of the House, I can only assume that the Government do not intend that the Statutory Instruments which have been laid up until now should be subject to technical scrutiny.
I do not accept that it is not practicable to have technical scrutiny in advance of consideration by this House. This is the matter about which the Select Committee on Statutory Instruments set up last Session corresponded with the then Leader of the House. The Committee expressed the view that it attached such importance to having proper technical scrutiny in advance that it would be willing to meet virtually at 24 hours' notice at the start of a Session to subject an instrument to technical scrutiny before 1023 it was considered on the Floor of the House.
The point has already been made that in the Lords instruments are subject to technical scrutiny anyway. That shows that it is a practicable proposition. Certainly it is practicable to have this scrutiny, and in any event it is a safeguard for the Government as well as for this House that an instrument should be subject to technical scrutiny before any decision is taken on its merits. In legislation of increasing complexity, and in view of the experiences that we have had in dealing with questions of vires and of what is a correct form of delegated legislation, this has become more and more important.
§ Mr. Latham
There are two observations that I wish to make to my hon. Friend the Member for Barrow-in-Furness (Mr. Booth). First, he will see that I am holding in my hand the multifarious copies of Statutory Instruments laid up to about the middle of last month. Any committee now appointed to examine them would have an almost impossible task to do a thorough job in the time. I regret as much as my hon. Friend and other hon. Members do the fact that no action has been taken by the Government until now. It looks as if all the opportunities both for scrutiny and for the House to attempt to exercise any surveillance over these instruments has gone by default. I hope that the Leader of the House will comment on that in the course of the debate.
The second point that I wish to put to my hon. Friend is that one can make a distinction between matters which are questions of vires and matters which are questions of merits. However, in view of my hon. Friend's experience as Chairman of the Select Committee on Statutory Instruments. I draw his attention to the difficulties which occur where merits appear to be confused with technical matters of propriety. Perhaps my hon. Friend will comment on the difficulty which has arisen over lorry drivers' hours. Previously there was a provision—
§ Mr. Deputy Speaker (Mr. E. L. Mallalieu)
Order. The hon. Member for Paddington, North (Mr. Latham) 1024 should not make a speech in an interjection.
§ Mr. Latham
I apologise, Mr. Deputy Speaker. May I be allowed two more sentences in order to make my point? Previously it was possible for the old Committee to say that an unexpected use was being made of powers. The Committee found such wide use being made of powers as to except the majority of vehicles from the provisions of the legislation.
§ Mr. Booth
I am grateful to my hon. Friend for highlighting this aspect of the problem of obtaining a proper relationship between correct technical scrutiny and the consideration of merits. The example that he has picked is one of the best that can be found. In the case of the lorry drivers' hours regulations, the original Act gave power to the Minister to lay regulations exempting certain activities in road haulage from the drivers hours' regulations.
It was the case—and I hope that it will continue to be the case—that the terms of reference of the joint scrutiny committee will be wide enough to draw attention to instances where an unusual use of power is made. In the case to which my hon. Friend the Member for Paddington, North (Mr. Latham) referred, a regulation was laid which exempted from the drivers' hours regulations all the carrying of materials to and from building and construction sites. It wiped out the safeguards of the drivers' hours regulations for many people involved in that industry.
That was a matter of unusual use of powers, and a matter which was reported by a Select Committee on Statutory Instruments. The fact that the Prayer or the consideration of merits did not subsequently take place was due to another failing which we will discuss tonight. The illustration to which my hon. Friend the Member for Paddington, North drew attention shows that if the merits of a particular instrument had been discussed, without having regard to the consideration of scrutiny, we would possibly have wasted a considerable amount of time. The issue of merit can lie very close to the issue of technical scrutiny in such cases.
I shall deal with the committee that would consider the merits of instruments 1025 if the proposal before the House were put into effect. I take it from the Government's motion that they are opposed to the committee's considering, as a matter of priority Statutory Instruments to which the joint scrutiny committee has drawn special attention. If the Standing Committee for considering merits cannot give consideration to the instruments to which the joint scrutiny committee has drawn special attention, what is to happen to the reports in which they draw to the special attention of the House what they consider to be unusual use of powers? If a negative instrument is ultra vires, would it be the wish of the Government that this instrument on which the joint scrutiny committee reported should come straight back to the House and be considered as if it were affirmative? If that were so, I would be most ready to accept the proposition that such instruments should not go to a committee which will be concerned with merits. But nothing has been said tonight by the Leader of the House to indicate that they would give such preference to negative instruments to which the special attention of the House has been drawn by a joint scrutiny committee. In fact, indications have been rather the other way.
Therefore, in the absence of any indication by the Government that they will give some rights to Prayers against instruments to which the joint scrutiny committee has drawn special attention, the very least that we must be guaranteed is that such instruments will have some priority of consideration by the Standing Committee which deals with merits. This underlines the point, to which attention was drawn by my hon. Friend, of the necessity of having technical scrutiny taking place in advance of consideration of merits.
The most serious defect in the section of the report which deals with the committee on merits is the one to which my right hon. Friend the Member for Newcastle-upon-Tyne, Central drew attention—namely, that no mechanism is proposed for returning the instrument to the Floor of the House. That must be seen in the context of the committee's having no power to vote on anything but a motion to take note.
If it were to be proposed by the Leader of the House that the committee 1026 should be able to vote whether to annul an instrument, there would be a different attitude towards the committee. The motion would be considered by a crowded House if that were to be the case. But it is proposed that the committee shall decide only whether to take note. In that case it is totally unsatisfactory to the House to accept these recommendations unless they are amended in such a way as to include a mechanism by which a Prayer can return to the Floor of the House.
An impossible position is being created for hon. Members. If an hon. Member is particularly concerned about a merit issue in a particular instrument, and he tables a Prayer upon it, he then has to decide whether he is to let that Prayer go to the committee or whether he is to alert 19 other hon. Members to oppose it. He has to weigh the matter carefully. By letting it go upstairs he is, in the last analysis, jeopardising his chances of the matter's being subject to a vote in the House of Commons. If he is serious in his Prayer and wishes, in the absence of a satisfactory reply, to press it to a Division, what is he to do? Is he to ask 19 other Members to join him in opposing the instrument's being sent upstairs? Or is it better to let it go upstairs, to attend the committee, as he would have the right to do, argue his case and say, "On the report of the committee upstairs I will have a better chance of this matter going back to the House and voted upon." But in the absence of any mechanism to return it to the House, he has an impossible dilemma.
The official channels will also have an impossible dilemma, because the Opposition may well be concerned to seek some amendment to an instrument. They know, of course, that in the normal processes of the House they cannot amend an instrument, but they can have reasonable hope, upstairs, of persuading the Minister to withdraw the instrument and make some adjustment to it. They will have an impossible choice. I suggest, therefore, in all seriousness, that this part of the Government's recommendations should be looked at again and that two things should be done.
§ Mr. Prior
Perhaps I can clear up one or two things as we go along, in case I miss certain points at the end of the debate. The hon. Gentleman is making 1027 two points. First, he feels that there should be a proper mechanism for a vote to be taken in the merits committee. Secondly, supposing we have a mechanism which enables the vote to be taken, and there is thereby a vote, presumably the committee's report would come back to the Floor of the House.
§ Mr. Prior
Not for debate, although I presume that through the usual channels one could be arranged, although it would not be automatic. Is the hon. Gentleman asking that there should be another vote without debate on the Floor of the House? Perhaps I can help him on his first point. Having heard his views so far, I believe that we should make proper arrangements for a vote to be taken in the merits committee. What I am not certain about is whether he is asking for a further vote to be taken on a report back to the House.
§ Mr. English
The Committee itself made the analogy on the 20 Members and other matters with the Second Reading Committee. This analogy seems to work in many ways, except that non-contentious Bills are referred to the Second Reading Committee. But if we take the analogy as far as we can in this context, we can bring the adverse report to the Floor of the House for a further vote. I would have thought that that would be desirable from both Government and Opposition points of view. The Government, for example, might have been defeated in a Select Committee, and might wish to restore the situation on the Floor of the House. On the other hand, the Opposition might wish to show that the whole of the Opposition had a certain view on a topic. I think that from either point of view—Government and Opposition—there would be merit in that. It would still save the time of the House, because at the most one would be taking about 10 minutes.
§ Mr. Booth
I am grateful to the Leader of the House for his intervention, because I see that I did not make my position clear. It is a complex issue. I believe that if the debate in the merits committee is to have importance, it need not be subject to a vote upstairs, provided 1028 there is a mechanism for a vote on the Floor of the House—a vote which would take account of the report of the Committee. To put it at its lowest, a half-hour debate on the Floor of the House on the report of the merits committee might suffice for a final vote on the issue, or perhaps an adaptation of the 10 Minute Rule Bill procedure, with one speech for and one against. But for the merits committee to have relevance its report must be subject to decision on the Floor of the House. The alternative, as the right hon. Gentleman has reasonably pointed out, is a vote upstairs.
If there is a vote in the Committee the Government would have to decide whether it wanted power subsequently to reverse the decision on the Floor of the House. There is some merit in that, because the Government might wish to look again at an instrument following an adverse vote in Committee, with a vote to annulment. Whichever way it is done, before the whole procedure starts there has to be some understanding by those who table Prayers of the procedure which will follow reference to a committee. Unless that is understood an impossible situation is created.
May I suggest a way which might avoid certain difficulties which we now face with the very large batch of regulations issued under certain Bills? During the last week the Leader of the House may have had a look at the large number of regulations which came out this year in connection with the Merchant Shipping Act 1970. The same will be true of a number of other Bills. The Family Income Supplements Act produced a large number of regulations during its first year.
It may be of advantage to Parliament if the Standing Committee on a Bill was not disbanded once the Bill became law but was kept in existence to examine the first set of regulations produced under the Act. That procedure would have two major advantages—one being that the Members who looked at the first set of regulations would know when they debated in committee what powers they meant to put into the hands of Ministers to make regulations. It would also make Members serving on Standing Committees a little more apprehensive of giving Ministers powers to make regulations if they knew they were going to be responsible 1029 for looking at the first batch of regulations. I put this to the House as a suggestion—not for the first time, because I put the same idea before the Committee on Procedure in 1970. I have not yet been convinced by any arguments that this suggestion would not serve a useful rôle.
I turn to the new job which will fall upon those dealing with delegated legislation as a result of the European Communities Act. I talk in no way about the merits or demerits of the Act. What that Act does in respect of delegated legislation is something which no other Act has ever done on such a scale. It enables Ministers to make delegated legislation of statutory instruments which will amend primary legislation substantially.
If we are to have before Parliament or its committee instruments which substantially amend primary legislation we will have the difficulty of there being no procedure for amending statutory instruments. For that reason there is very considerable thought to be given to the rôle of the committee on merits. We may or may not introduce an amending procedure on delegated legislation. We may have a little more flexibility from Ministers, with considerable advantage. Following a debate in Committee, they may show a willingness to take away an instrument, to amend it and relay it. To help the Minister do that we would have, in the nature of the time limits that operate, to be prepared to reduce the amount of time available for rescrutiny or reconsideration. At present, with the negative instrument procedure, there should be 40 days for praying; with the affirmative procedure we should have 28 days.
If a Minister, following a debate in Committee, withdraws an instrument on a specific point raised in Committee, or changes it to meet the point and lays it again, to ask him to go through a further 40 days of praying time, or a further month, would be unreasonable.
One of the things we could introduce into our procedures with advantage is some shortening of the period when an instrument was relaid, in the event of a Minister's meeting some of objections raised in Committee.
Statutory instruments and regulations increasingly concern Members of Parliament. They concern the courts of this 1030 land. Above all, they control the rights of the citizens whom we represent to a far greater extent than ever before in our history. For this last reason Members of Parliament must do their utmost to regain proper democratic control over that area of our legislation.
§ 8.45 p.m.
§ Mr. Ronald Bell (Buckinghamshire, South)
As the hon. Member for Barrow-in-Furness (Mr. Booth) says, this is a subject of great importance. He is not right, however, when he says that the European Communities Act is the first Act to give power to amend our substantive statute law by delegated legislation. Unfortunately, there are several other Acts, quite independent of the European Communities matter, which give this far-ranging, almost unlimited, power to Ministers to proceed by statutory instrument and to amend almost any Act of Parliament.
It has been the practice of Parliament for a long time now to pass Acts under which a great many things are done by orders or instruments. We have our debates in Standing Committee or Committee of the whole House. Members express anxiety. Sometimes, there is put in what is described as a parliamentary safeguard, and the instruments are made subject to prayer. Sometimes, we think that that is not enough and, at the end of a long struggle, the affirmative procedure instead of the negative is introduced, and the instrument is made subject to an affirmative motion to approve.
There must by now be hundreds, perhaps thousands, of powers to make statutory instruments. Those of us who have served on the Statutory Instruments Committee, for an endless period of years, it seems to me, have scrutinised statutory instrument after statutory instrument. I cannot think of how many thousands I have scrutinised, as it is put, and, at the end of it all, I ask myself what the value of the procedure has been. We have looked at the technical qualities of these instruments. We have found faults in the wording, we have found retrospection, we have found unexpected use of the powers in the statute—all the matters in our terms of reference—and I think one can fairly say that we and our predecessors have done a good job on the technical side. But as to the merits, what has Parliament done through all these 1031 years since the statutory instrument habit started?
I cannot remember an occasion when Parliament has successfully annulled a statutory instrument, save one in 1950–51 when Lord Wigg, then Mr. Wigg, challenged an order on behalf of the then Opposition, he being a Government back bencher, by shouting, "No". He put in tellers for us but forgot to put in tellers for the then Government, so, in default of tellers for the Government, the Opposition, to their utter astonishment, without voting managed to annul a statutory instrument. Next day, we duly had a message from the King saying that he would be graciously pleased to annul the instrument, which, I am sorry to say, was relaid virtually the next day.
That is pretty well the sum total, and it means that Ministers make these orders in their thousands, and they are not subject to any effective parliamentary challenge. The safeguard is useless, and the sooner that is understood the better. It is a useless safeguard for three reasons. First, one cannot amend an order, and often enough the objection is to a small part of it. Second, prayers are taken late at night. They used to be taken very late at night. Now, they are nearly always taken as late business ending at 11.30 p.m. Hon. Members are kept here late so often that, when they have the opportunity to pair on a prayer and go away, they take it. It is no good pretending that prayers are treated as first-class business. They are not. When the right hon. Member for Coventry, East (Mr. Crossman) was Leader of the House, he announced that, because of this defect, he would find time early in the day for more important prayers. But, like many other good intentions, it just never happened and prayers are late-night business.
The third reason is that, in effect, these are Government orders. The normal whipping procedure applies every time and we have created, as a rod for our own backs, the convention that the Government must not be defeated on the Floor of the House. This is often represented as an illustration of the sovereignty of Parliament. It is in effect the death knell of Parliament because if we cannot defeat the Government on the Floor of the House, far from having 1032 control over them, we have abandoned all control.
As we have allowed to grow up the lunatic convention that the Government must not be defeated on the Floor of the House, or if they are defeated it is a major affair, with questions asked as to the Government's intentions, when polling day will be, and all this kind of nonsense, the only place in which we can improve legislation by amendment or by defeating a proposal is upstairs in Committee where, for some reason, this extraordinary convention has not become established with the same rigidity.
Recently the business of scrutiny of instruments has broken down completely. Only a small crop of prayers had to be tabled for the procedure to collapse because there was not enough time and there was so much late business. Last Session the system collasped entirely. The situation would have been equally hopeless this Session, and the only effect of the European Communities Act is to make it manifest for all time that the existing procedure is in a state of total collapse.
The House must therefore ask itself what it will do. Is it to allow what is, not the main law-making activity but an activity which seriously rivals in volume the direct legislation of the House, to be a purely bureaucratic operation without any parliamentary scrutiny worth the name?
§ Mr. John Mendelson (Penistone)
Is there not a sharp distinction between delegated legislation introduced by a Government elected by a majority of the electorate of this country and legislation which comes from an outside body? I have always thought that the underlying political justification of the procedure which we have adopted is that basically we have a certain amount of confidence that the constitutionally elected Government of this country will not, in their orders, go completely outside the general policy which they have put to the electorate. That will cease completely when the Common Market orders come into force.
§ Mr. Bell
The hon. Gentleman need not worry. I agree with him on this 1033 matter and I congratulate him on using the opportunity of an intervention to put forward his view. However, I am not dealing with the interesting question of the merits of the European Communities, nor am I willing, though it is a very tempting proposition with Conservative Government, to agree with him that Governments in general never do anything contrary to what is expected of them—not even Governments of this country.
Our function is to look suspiciously on all Governments: to exercise very friendly scrutiny when they are made up of members of our own party and rather less friendly scrutiny when they are not.
The House must ask itself what it will do about this vast volume of delegated legislation. I have thought about this matter, as indeed have others, and have had the advantage of dealing with it for a very long time. Until we change our conventions I do not believe that any procedure on the Floor of the House will work. We must put it upstairs, but it is useless to put it upstairs before a committee which has no power to do anything except debate, take note or not take note. What is the good of not taking note? It must go beyond that. I gather from my right hon. Friend's intervention that his mind is moving slightly in this direction and he wants to give it some meaning.
I have no rigid concept of what the procedure should be. I do not mind what it is, provided that it supplies what we lack—a real check by Parliament on this mass of delegated legislation. When the members of the Scrutiny Committee disapprove of it they cannot give expression to their disapproval. We sometimes feel that something of which we approve in a broad way is being done in a wrong way, that we would like it recast, but there is nothing that we can do about it. This kind of view must be given proper expression.
I suggest, without wishing to be dogmatic, that the committee should have the power, by vote, to pass a resolution in some form which annuls an instrument unless its decision is reversed by a vote of the House. This throws the emphasis the right way. If the Select Committee, meeting in a rather less partisan atmosphere than that in the House, said, "This instrument ought to be taken back", that 1034 should prevail unless the Government feel so strongly about it that they put down a motion to reverse that decision. That is as much as we can ask for.
There has to be an element of compromise, because the volume of delegated legislation is so great that any procedure giving full expression to any order concerning the control of Parliament would inevitably break down. There must be a selective element about it and the committee would have to exercise discipline in its approach. At any rate, let us try a procedure like this, see how it works, whether it breaks down under the weight of the volume of work and, indeed, is misused to fight party battles. If it is, we can look at it again. But let us try something like that procedure. We shall then feel that we have given some meaning to the words which we put into Bills for parliamentary scrutiny which at the moment are as useful as a vote of thanks to the staff.
I say no more about it. I have made my point and do not want to labour it with a long speech. I ask my right hon. Friend to believe that this is a matter on which there is strong feeling on both sides, that something should be done about it, and that this is the opportunity.
§ 8.58 p.m.
§ Mr. Michael English (Nottingham, West)
I wholly support some of the remarks by my right hon. Friend the Member for Newcastle-upon-Tyne, Central (Mr. Edward Short).
I recognise that this is the first procedure debate of the present Leader of the House, and everyone will wish him well in this respect. I hope that he will revert to the practice of his predecessor—now the Secretary of State for Northern Ireland—who used to lay similar motions well in time. These motions were laid in the minimum time to avoid being starred on the Order Paper. They were laid on Thursday, and for the very reasons that the Government have not accepted Friday Questions, even the Government tonight are saying that a Friday is not quite the same as other days. I suggest that had they been laid a fortnight or so ago most of these motions would have gone through almost on the nod.
This may seem a strange thing to say, but for example, I think the right hon. 1035 Gentleman will realise that there is overwhelming support for the principle behind the motion dealing with delegated legislation. The hon. and learned Member for Buckinghamshire, South (Mr. Ronald Bell), my hon. Friend the Member for Barrow-in-Furness (Mr. Booth) and my right hon. Friend the Member for Newcastle-upon-Tyne, Central agree with it. Nobody has spoken against the principle of the proposal, and I do not intend to myself, but there are small points that arise on such details as what one should vote on in Committee and minor things of that character.
What has happened in most cases in this Parliament so far is that a draft has been laid, any Member who wished has had the opportunity to table an amendment, and then the Leader of the House, as I know personally, has discussed particular amendments with individuals and perhaps accepted some and refused others. When he knows all the issues involved a Leader of the House is able to be more flexible. Had he had a whole crop of amendments before him he could, when he nodded his head and said that he was going to accept something that my right hon. Friend said, had said instead that he was going to accept the relevant amendment, No. 13, or whatever it was.
There is another reason for going back to that practice. Several times during his speech the Leader of the House said, "This is as the Procedure Committee recommended it". I hope that the right hon. Gentleman makes a distinction between something that the Procedure Committee does very well, namely, take evidence, and its recommendations. I compliment the Procedure Committee on the way that it takes evidence. It asks everybody whom it thinks is interested and suggests to them—and this is very important—the specific points which it believes ought to be considered in the evidence. The result is that there is some measure of guidance and nobody inadvertently omits to give evidence on a particular point. I congratulate the right hon. Member for Thirsk and Malton (Sir Robin Turton) primarily, and also the Clerk to the Committee, because they are the two people responsible for this excellent system.
1036 I do not agree with the Committee—and I think we must recognise this—that it is representative of the House. The European Communities Act has been dragged into the debate. As an illustration of my point, I do not think that the right hon. Member for Thirsk and Malton, with all his knowledge of procedure, would claim to be totally representative of his party on the subject of the last report of the Committee. Equally, it so happens that every member of the Labour Party on the procedure committee belongs to its minority on the issue upon which it reported last time. It is not representative of the House in that way, nor is it intended to be.
The Committee is good at taking evidence. I do not think it is even true that all its members are necessarily particularly interested in the procedures of the House. As far as I can see only the Chairman and one other of its members are here today. None of the others is present, although some of them are academic writers on the subject. All the rest, including every Labour Member, are not here.
That shows that we are not to take every word of the Committee's recommendations as gospel truth. The then Chairman of the 1922 Committee gave evidence identical to that presented by the Parliamentary Affairs Group of the Labour Party. I understand that he is a back bencher elected by Conservative back benchers. We have no exact equivalent, because the Chairman of the Parliamentary Labour Party is a Front bencher elected by both Front and back benchers. But we have something that the Conservative Party does not have, a group of back benchers interested in the subject. When the Chairman of the 1922 Committee and my party's Parliamentary Affairs Group present identical evidence and the Committee turns it down, it is legitimate to wonder which of the various people concerned are right.
I acknowledge that some of the Parliamentary Affairs Group memoranda in the report are in my name, but they are in no way my sole work. Each is individually drafted and circulated among the 30-odd members, those already interested in the subject. All the amendments are then discussed and circulated to our Front Bench for information. Therefore, by the 1037 time they reach the committee they have been considered by a fair number of people. Much of what my right hon. Friend said tonight was already said in our memoranda of evidence to the committee, and, oddly enough, also said in many cases by the 1922 Committee.
The origin of the motion on the right of Members to attend Select Committees is not quite as the Leader of the House, through no fault of his own, thought it was. The practice of Members attending Select Committees goes back about 400 years. Like my right hon. Friend, I do not think that it can be reversed overnight. It used to be much more extensive. Members used to be able to attend Select Committees and speak but not vote. The odd thing is that the day we are abolishing attendance, in Motion No. 9, we are, in Motion No. 8 putting back something that was abolished before 1857, because the right of Members to attend and to speak at the Standing Committee is one of the recommendations of the Joint Committee on Delegated Legislation. Therefore, there is a certain inconsistency.
There used to be attached to committee orders of reference the statementand all Members shall have voices.",a rather nice phrase. That ceased to happen in the 1830s for most committees and about 10 years later for the Committee of Privileges. But, if the clerks follow precedent, as they so often do, the exact wording of that statement will presumably be the way in which they will word the order of reference to the Standing Committee on Delegated Legislation, because the Joint Committee Report says that all Members should be able to attend and speak. Just as something is being put back in one place which disappeared in the 1830s and the 1840s, it is being abolished for every other committee of the House of Commons.
The Select Committee on Procedure, which as I say is an excellent committee for collecting evidence, say this at page vi:Your Committee sought information from the select committees of the House as to the extent to which Members had exercised their rights of attendance at meetings of select committees; the comments of select committees were also invited on the methods proposed by the Second Clerk Assistant for altering the practice, should this be desired. Of the fourteen select committees consulted, the majority were content with the present practice.1038 That is the evidence which the Select Committee on Procedure got. I am not worried at present about the committee's recommendations. The committee then said that the Expenditure Committee, the Select Committee on Nationalised Industries and the Select Committee on Science and Technology—only three out of 14—had some views on, for example, classified information. I have consulted the Chairman of the Expenditure Committee and I understand that was solely in relation to one sub-committee, the Defence subcommittee.
Nobody has suggested that there should not be a way of dealing with classified information. The memorandum submitted by the Parliamentary Affairs Group of the Parliamentary Labour Party suggested that the committee should have power to exclude a Member when a witness is giving evidence that is not likely to be published. Fair enough, but that is not a blanket power to exclude on all occasions.
However, that is exactly what happened at the Select Committee on the Civil List. I and several members of both major parties wished to attend the Civil List Committee when it was hearing evidence. The Chancellor of the Exchequer who was the Committee's chairman produced—I think he was ill-advised—a statement to the effect that we had no right to attend on any occasion. We pointed out that there might be some witnesses whose evidence he wished to take in private. His attitude was that he wanted all the witnesses to give evidence in private. So the Members gently withdrew. However, we came back for the deliberations of the committee. We were then told, "Not only did we not want you to hear the evidence. We do not want you to hear us discuss it. You have no right to hear us discuss it". So it was to be total and general exclusion.
Then then Leader of the House, who was also a member of the Civil List Committee, said to the chairman of the committee and to those present that he was entirely prepared to put any motion before the House if the committee wished it, but the committee did not wish it. That was the essential point about it. We refused to withdraw from the committee because the committee did not want to return to the House. They wanted us to withdraw but they did not want to 1039 decide it, because that would have meant coming back to the Floor of the House for approval. Yet that is how the matter ought to be done. It ought to be a matter for decision by the House of Commons whether and to what extent a committee should have the power to exclude Members. We may say it in a general way about classified information or of a particular committee at the time it is set up if it is an ad hoc committee. However, it should be the function of the House of Commons, not the blanket motion which is on the Order Paper today.
The Civil List Committee did not want Members there, but it did not want anybody to know that it did not want Members there either. That was the Civil List Committee's peculiar difficulty. In the end the then Leader of the House out of his general kindness and quick wittedness solved the difficulty by saying, "If I refer the matter to the Select Committee on Procedure, will you be happy?" We said that we would be happy, because there is a rule of procedure which says that Members cannot discuss what happens in committee. The only way we can discuss what happens in a Select Committee, oddly enough, is not on the Floor of the House except when the matter is first raised in another Select Committee and put in evidence to that committee. That committee then reports on it and then we are able to discuss it here. This subject ought to have been on the Order Paper to enable us to discuss what happened in the Civil List Committee. I am sorry that the procedure Committee went to the extent of widening somewhat the suggestion put to it in evidence.
I will not go through all the other motions. My right hon. Friend the Member for Newcastle-upon-Tyne, Central has adequately and fairly defended the rights of back benchers on Consolidated Fund Bills. All the evidence submitted by back benchers expressed views different from the view put forward in this motion. I agree that this is exactly the same as the limitation suggested by the procedure Committee but it is substantially opposed to the present pattern. I am not at all convinced that back benchers want five hours chopped off the Consolidated Fund Bill debates. 1040 I have never heard this mentioned to me by any back bencher and I stress "back bencher". I have heard it said by the Chief Whip but never by any back bencher, for the simple reason that Members are able to assess approximately when their subject will come up.
I said in the evidence I gave to the Procedure Committee that examples of this could be given. In the previous Parliament my right hon. Friends' successor as Chief Whip called me into his office once and said, "Michael I am going to try an experiment. You take a piece of paper and I will take a piece of paper and let us see how long, in the light of the number of people in the Chamber now and the subjects to be discussed, this Consolidated Fund Bill debate will last". We both worked it out and we arrived at figures which were different by half an hour. The debate ended exactly on the quarter hour between those two estimates. I suggest that this can easily be done, is done and used to be done before the balloting system by Members who put themselves down for a Second Reading debate.
The Chairman of the 1922 Committee, and I imagine his executive committee, because I understood he consulted it, and the Parliamentary Affairs Group of my Party, together representing all back benchers interested in this subject, recommended to the Procedure Committee that we scrap the ballot. The ballot has never had any legal existence in so far as no one wished to challenge Mr. Speaker—and I do not mean you, Mr. Speaker, but a predecessor of yours. All of a sudden one day the then Mr. Speaker rose and said that in future, instead of everyone putting their names down for the Consolidated Fund Bill debate, so that it was first come first served, he would have a ballot. There was no consultation with anyone. If this motion is passed, and I hope that it will not be, this will be the first legalisation of the ballot to take place in the form of a resolution in this House.
The ballot has caused an awful lot of trouble. To begin with it increases the influence of the whips. When there is a ballot, because there are greater chances of coming up at any given place the greater the number of people who put their names in, so there is a situation where the whips go round and say, "Have 1041 you forgotten to put your name in the ballot? Remember to put your name in. Have you got a list of subjects you might think about?" They do this on both sides, as we all know.
The advantage of this as put to us by the Procedure Committee, and I almost put "advantage" in inverted commas, is that a ballot is fair because it does not mean that the first man to get there gets the subject, to which the former Chairman of the 1922 Committee and I replied that we did not particularly see why the keener and more active Members of the House should necessarily be considered as being disadvantageous if they came at the top of the list.
We pointed out that this procedure did not exist anywhere else in the House, that there were opportunities for obtaining things by ballot, that there were other opportunities selected by Mr. Speaker, and we suggested that a variety of possible procedures was a good thing in itself and that they should not all be replaced by ballots, by a selection of Mr. Speaker or in any other single way. This procedure is unique in that respect.
The third result of having a ballot is that although an hon. Member may be the first to put in his name, he may come eighteenth in the ballot and not bother to turn up for that subject, although the Minister may be waiting. One hopes that a back bencher would always have the courtesy to tell the Minister. That does not always follow, because he may think that the debate will be cut off before his subject is reached and then by some accident it may be reached. With a first-come, first-served system, people know before they put their names down exactly where they are in the list and whether their arrangements permit them to turn up.
The fourth difficulty is that the notice both for other hon. Members and for Ministers of the subject to be debated that night is shortened. The procedure Committee has mentioned that and made recommendations upon it.
All the groups representing back benchers made a suggestion to go back to the old practice. I did not hear much criticism at that time, except a slight scramble to get to the door. If we went back it would be interesting to see 1042 whether the criticisms which have been made since disappear.
I will not go over the other subjects, but I am glad that my right hon. Friend spoke as he did upon them. I am a little sorry that it is from this side of the House that the objection to written statements comes. I think I know the reason for that. If one had a little more time for discussion one might be able to persuade one's hon. and right hon. Friends that my hon. Friend's suggestion of written statements had merits and had not the disadvantage that some see in it. The essential thing is that we should always have time for discussion before the motions come to the Floor of the House.
When I say that I am opposed to them for that reason, I hope that the Leader of the House will realise, as I said at the beginning of my speech, that we have very much support for him and very much good will towards his resolutions except on points of detail. If we will not press them tonight but simply leave them on the Order Paper, amendments of the type suggested could be put down. The right hon. Gentleman could consider them at his leisure and come back to the House with a revised motion mopping up those that he finds acceptable.
§ 9.23 p.m.
§ Mr. Michael Hamilton (Salisbury)
I was very interested to hear what the hon. Member for Nottingham, West (Mr. English) had to say about being excluded from the Select Committee considering the Civil List. I am very pleased that tonight the House has an opportunity of considering this question and the rights of Members to attend such meetings. It enables me to explain in five minutes a situation in which I myself have been affected but which could equally affect any other Member of this House. It is a situation which can hardly be allowed to lie where it is—a situation in which the House may detect some small element of injustice.
What happened is this: I chanced one day to draw from the Vote Office a report of the Select Committee on the Parliamentary Commissioner. In that report I found that the Select Committee had devoted a very full sitting to a matter which lies wholly, solely and exclusively within the Salisbury division, which I represent. My initial reaction was one 1043 of delight—delight that colleagues, two Conservative, two Labour, and one Liberal, had appreciated the fact that this was a particularly unusual case, and that they had been good enough to devote time to it. I also saw that the committee had called in and examined the Permanent Secretary and an Assistant Secretary of the Department concerned with the matter. I was very interested to see that those high-ranking civil servants had to say about matters in Wiltshire.
That same day I wrote to the chairman of the committee, the right hon. Member for Fulham (Mr. Michael Stewart), and made clear to him that I hold views different from those expressed by those witnesses. I pointed out that it was quite fortuitous—though I welcomed the fact—that I had stumbled on this report, and I asked the right hon. Gentleman if I might be summoned as a witness and cross-examined equally. Needless to say, I wrote to the right hon. Gentleman last Friday telling him that I would be raising this matter tonight. The right hon. Gentleman replied to my first letter saying that the committee did not feel that it could ask me to meet it. Later I again wrote to him and asked, if I were to submit a paper to the committee, whether the committee would consider it and, secondly, whether it would consider publishing that paper in its report. I am sorry to say that I have not received an answer to those two questions, and that is precisely where the situation lies at this moment.
§ Mr. English
The hon. Gentleman is a member of the Procedure Committee and I apologise for not before mentioning his presence. Do I take it that he is now saying that this report needs to consider some of the small edges of this matter?
§ Mr. Hamilton
I think that the suggested change to the Standing Orders goes a small way towards helping me in principle, as I think the hon. Member will see as I come to the point towards the end of what I have to say.
I would not have chosen to raise this issue on the Floor of the House, but I see no alternative. I think it is justified because I feel that this situation could equally occur with any other hon. Member. With great deference, I suggest that 1044 it would accord with the traditions of the House if the committee, at its convenience, were to hear and to cross-examine the Member who raised the matter in the first instance and whose constituents are vitally affected. This report has been published by the Stationery Office. At the public expense a forum has been provided for the Permanent Secretary's views, spread over 18 columns of print, and the committee has not provided a similar forum for those whom I represent. Neither before nor afterwards was I notified that this matter was to be considered. One side has been heard, and one submission only stands on the record.
I have—and I think all of us here have—great personal respect for the right hon. Member for Fulham. He is a most courteous man. We are concerned tonight not with personalities but with procedure.
If I read his thinking and that of his committee correctly, I believe it is concerned, first, to protect the Parliamentary Commissioner. I sense that the committee is anxious that the Commissioner's finding should not subsequently be laid on the table and examined, but if the committee's case rests on this premise those civil servants should not have been summoned and cross-examined as they were. Since this has now happened, it cannot be right that the privilege accorded to them should be denied to a Member.
If the concern of the committee is to protect the Parliamentary Commissioner, I hardly think that this is the best way to set about it. In principle, if people have confidence in the handling of this or any matter, that confidence is hardly strengthened by excluding dissentient views. As for the Parliamentary Commissioner, I am certain that no man would seek to be defended less than he. He is fallible, just like the rest of us, and it would be a sad day if ever he came to be regarded as some Delphic oracle. However, his findings have been published and I am sure that he would wish them to be submitted to the fullest daylight and scrutiny. If they cannot be submitted to scrutiny they are not worth the paper on which they are written.
I stress that I would like to have been present at that meeting of the Select Committee. There surely is something profoundly wrong when Select Committees consider individual constituency problems 1045 without notifying the Member concerned. Secondly, there must be something equally wrong—I am delighted that the Leader of the House is present to hear me say this—if a group of Members, appointed by the House to act on its behalf, invites civil servants to its counsels while refusing similar facilities to a Member of this House.
I am pleased to have been able to raise this matter and to put it on record. It is not a minor personal protest; it is a matter of principle, which affects the rights of hon. Members and their ability to represent their constituents.
I ask my right hon. Friend the Leader of the House to suggest how best this matter can be remedied. Today it is Salisbury, but tomorrow it may equally be Lowestoft. This could happen to any one of us. It is not enough to say that Select Committees are masters in their own houses. Something has gone wrong, and only my right hon. Friend can put it right. I hope that he will consult the committee in question, and I greatly look forward to his reply tonight.
§ 9.34 p.m.
§ Mr. Michael Cocks (Bristol, South)
I wish to deal briefly with the question of the Consolidated Fund Bill because I am against any change in the existing practice. I put forward this view with due modesty because I have been a Member of this House for only 2½ years, but in my limited experience I have come to the conclusion that the proposed changes would not be in the interests of back bench Members.
The application of some sort of time limit of 45 minutes on debates would put an extremely onerous burden on you, Mr. Speaker, in trying to decide where discretion should be allowed. It is extremely difficult to judge, with the best will in the world, the substance of a debate from the title of the subject matter to be discussed.
If I may give an example, when we discussed the last Consolidated Fund Bill but one I put down as a subject for debate holiday road traffic congestion in South Bristol. On the face of it, it was a narrow constituency point. In fact, the debate was used by the Minister for a most important statement on the motorway bridge carrying the M5 across the River Avon. It was a topic of great 1046 interest not only to me but to other hon. Members representing Bristol and Somerset constituencies. A full debate took place, where it would have been very difficult to confine it to 45 minutes or so and do justice to those who wished to take part.
What is more, if an hon. Member's name appears very low in the list all is not lost. Shortly after I came to this House my name was drawn very low in the list. I spent the night trying to get a little rest in a series of uncomfortable positions, only to find that my topic was not reached. However, the Minister who was due to reply was gracious enough to tell me afterwards that if I cared to write to him setting out the points that I intended to make in the debate he would be pleased to consider them. He went on to suggest that he would be prepared to allow me to discuss the matter with him and his civil servants. He granted me an interview and took my points. At a later date he was kind enough to come to my constituency in order to examine the premises concerned with the subject that I had raised with him. As a result of not being drawn, and thanks to the Minister's generosity, I did a great deal better than if my name had appeared higher in the list and I had put my points to the Minister in the course of the debate.
In this connection, I am not entirely against a ballot. A list on a first-come-first-served basis takes my mind back to one of the earliest procedure debates that I attended on the subject of Ten Minute Rule Bills. I recall that the House was asked to sort out a problem which had arisen in the previous Session when one hon. Member had apparently arrived first on the scene and had pre-empted all the opportunities for Ten Minute Rule Bills throughout the year. This undesirable trait has now been eliminated by the present procedure. But it seems to me that just as can happen with planted Questions, so a Government in difficulty can arrange for a number of back benchers to pre-empt the early places in the Consolidated Fund Bill Second Reading debate, knowing that by this means they can remove themselves from critical scrutiny during the passage of the Bill.
I ask the Leader of the House to think again about these proposals, especially 1047 from the point of view of back benchers. To a large extent a great deal of what back benchers do in this House is dictated by the respective Front Benches and party Whips. We do not have a great deal of freedom, and some of us put in a great deal of time here. I should not like to see any change which reduced the freedom that we enjoy in the Second Reading debate on the Consolidated Fund Bill, where hon. Members who are prepared to attend and to wait for an opportunity to subject Ministers to the questioning and scrutiny may do so.
I hope that the Leader of the House will have second thoughts about the Consolidated Fund Bill, and not seriously change the established position. In saying that, I am mindful of the point made by the Opposition Chief Whip in his evidence, that the present practice is inconvenient to the staff. I appreciate that fully, but I often feel that that is the sort of excuse which is used in circumstances where a certain course of action may be very convenient to other people. I ask the right hon. Gentleman to think again.
§ 9.40 p.m.
§ Sir Robin Turton (Thirsk and Malton)
I will keep to the same order and deal first with the Report of the Committee on Questions. I have served on four committees dealing with Parliamentary Questions. But Question Time has become progressively worse. I do not know whether there is any connection, but when I was first here we used to get through from 60 to 100 Questions an hour. We now get through between 30 and 40. That means that today 500 hon. Members are putting down 15,000 Questions, fewer than 5,000 of which are being answered in a Session. If that is compared with what has happened over the years, back bench Members have lost the opportunity of asking something like 3,000 Questions a Session. I regard Question Time as the back benchers' great opportunity, and the loss of opportunity is unfortunate.
There are three ways of tackling the problem—first, by extending Question Time; secondly, by restricting the more inquisitive back benchers; and, thirdly, by devising new methods of getting more Questions answered in the limited time. Successive committees have recommended the extension of Question Time by 10 1048 minutes to a quarter-of-an-hour and making Questions begin punctually at half past two. Ministers regarded that recommendation as being a terrible invasion of the lunch hour, and it met with no support. I should have thought that a punctual start at half-past two would not embarrass those who indulge in the heaviest of lunches.
The Select Committee on Parliamentary Questions, of which I was a member, recommended two extensions, Question Time on a Friday and an extra quarter of an hour for the Prime Minister's Questions on Tuesday. These recommendations have been completely scorned by the Front Bench and rejected. Even the Deputy Leader of the Opposition thought that it would be highly inconvenient taking Questions on a Friday because he did not grace the House with his presence on Friday. It seemed to be a good reason for taking Questions on a Friday because it is the back benchers' opportunity and not an opportunity for Deputy Leaders of the Opposition.
One of the worst declines in the habits of the House has been at Question Time. It used to be the privilege of back benchers, but it is now continually being usurped by Shadow Ministers who are trying to show off their prowess not only individually but in great groups. That is an unfortunate development.
We have failed in trying to get any extension of Question Time so we must look next—
§ Mr. James Tinn (Cleveland)
Does the right hon. Gentleman recognise, as a provincial hon. Member, that the Deputy Leader of the Opposition was probably speaking on behalf of provincial hon. Members who usually have constituency engagements on a Friday?
§ Sir Robin Turton
I am as provincial an hon. Member as the hon. Member for Cleveland (Mr. Tinn). But if I had an important constituency matter in my constituency I might well sacrifice it so that I could put a Question on a Friday. Bearing in mind that it was recommended that only two Ministries should be taken each Friday, that it should be in addition to any rationing arrangement and that Ministers could put up their Parliamentary Secretaries to give the answers, it would enable more hon. Members to get 1049 the opportunity to put Questions. But any recommendation for an extension of Question Time is savagely treated by all Front Benchers.
§ Sir Robin Turton
I know that the hon. Gentleman wants to make a contribution. However, time is getting on and I must deal with my next point.
Professor Chester looked at the problem of rationing and concluded that with rationing one would probably have to allocate each Member 15 Questions a Session. The Committee proposes that each Member should have 130 Questions a Session and the Government have accepted this recommendation. I will be quite frank about it. I have sat on two procedure Committees which have looked into this matter, and I have always been opposed to rationing, for two reasons. First, constituency problems are not spread out evenly over the year. One may suddenly find a time where for one's constituency one wants to put down a large number of Questions in a short time. Rationing would work against that. Secondly, as those old enough to remember sweet rationing will agree, rationing always stimulates the appetite. If one is told that one can put down eight Questions in ten days, one is tempted to say, "I must be failing in my duty if I do not get my eight Questions down".
I warn my right hon. Friend, therefore, that if he accepts this recommendation he will not necessarily get fewer Questions, but more. In fact, he will see from the statistics that 466 Members ask fewer than 100 Questions each. They ask altogether 9,260 Questions in the Session. Thus, as we reach rather fewer than 5,000, the recommendation would not be a solution even if it did not cause more Questions than ever to be put on the Order Paper.
I have come to the conclusion that we have to be more radical in our approach to Question Time reform. I am certain that the failure of this House—and I say it as one who is a Conservative by political belief—is that it is far too conservative when dealing with its procedure. We have built up a number of fictitious traditions, such as that every Member has a right to a supplementary Question. The result is that if a number 1050 of hon. Members ask identical Questions which are answered together, you, Mr. Speaker, have to call them successively one by one to get their treasured right to a supplementary, thereby destroying the whole value of Question Time. I hope that the House will agree with the recommendation in paragraph 25 of the Select Committee Report and that you, Mr. Speaker, will take note.
With all deference to you, Mr. Speaker, I believe that the success of Question Time depends a great deal on the exercise of your discretion, and I know how conscious you are of the responsibility that lies in you. If I venture an opinion, it is that if 45 Questions were answered every day it would be a great gain to the majority of back benchers, but to do that it means a certain exercise of discretion and perhaps the Nelson touch in dealing sometimes with interventions by members of the Front Bench and by Privy Councillors. I believe that this would help Question Time a great deal.
Again, if we are to have—I hope that we shall, because it is a good recommendation—written Questions on named days, I suggest that if an hon. Member puts down for oral answer the kind of Question which should be answered in written form on a named day, he will not necessarily be allowed a supplementary. We know that hon. Members often ask Questions for oral Answers which can clearly be answered only with a table of figures. Hon. Members think they can have a supplementary question on that although they cannot have seen the table of figures to be circulated with the OFFICIAL REPORT.
Originally Questions were printed and then the Member read out the Question. To save time and to enliven the proceedings, the House of Commons in the early part of the twentieth century, changed the procedure. So that Questions were not read out. An experiment should be tried, as recommended by the Warden of Nuffield College, that answers as well as Questions should be printed on the Order Paper. It would mean that Ministers had to prepare their answers some 12 hours earlier. I know from my own ministerial experience that that is what normally happens. It is only on rare occasions that Ministers have to make alterations to their answers during 1051 the last 12 hours. That change of procedure would enliven Question Time.
Some of my colleagues serving on the Committee thought that procedure would take the surprise out of waiting for the ministerial answer. Hon. Members will not attach much importance to that. I have always found ministerial answers to be predictable. The fun begins when a Minister answers supplementary questions.
I am sorry that that experiment is not being tried now. I feel sure when we have had the ration and have seen how the number of Questions mounts up from 15,000 to 20,000, we shall again come back to another Select Committee which eventually, I think, will adopt Professor Chester's suggestion.
Turning to the criticisms made of the two reports of the Procedure Committee, and dealing first with that concerning the Consolidated Fund Bill, the hon. Member for Nottingham, West (Mr. English) is very worried because he and my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke) both said they did not like the ballot and we had paid no attention to them. The position of the hon. Member for Nottingham, West is not the same as that of my right hon. Friend the Member for the Isle of Ely. The hon. Member for Nottingham, West is the chairman of the Parliamentary Affairs Group of the Labour Party. Whereas my hon. and gallant Friend the Member for the Isle of Ely was the chairman of the 1922 Committee. His opposite number, the right hon. Member for Sowerby (Mr. Houghton), said he wanted Mr. Speaker to select the subject. He was not in favour of the ballot. The evidence we had, except that from the hon. Member for Nottingham, West and my hon. and gallant Friend the Member for the Isle of Ely, was in favour of the ballot and against the first-come, first-served principle. The hon. Member for Bristol, South (Mr. Michael Cocks) gave as his reason the fact that the ballot would discourage the "packing" abuse one saw.
§ Mr. English
If the right hon. Gentleman will read my speech he will see that I made the point that the chairman of the 1922 Committee is neither the equivalent of the chairman of the Parliamentary Affairs group, myself, nor the equivalent of the right hon. Member 1052 for Sowerby (Mr. Houghton), the point being that what the hon. and gallant Member for the Isle of Ely and I have in common is that we are the only two back benchers, whereas the chairman of the Parliamentary Labour Party is a Front Bencher elected by the whole party.
§ Sir Robin Turton
The hon. and gallant Member for the Isle of Ely gave his own opinion.
Generally most Members are in favour of the ballot. That is the general view of the Committee on Procedure.
The right hon. Member for Newcastle-upon-Tyne, Central (Mr. Edward Short) criticised our suggestion for the cut-off at five o'clock. As I understand it, he is in favour of Mr. Speaker allotting time for debate, but he is against the cut-off. The reason why we must have a cut-off is that Mr. Speaker cannot apportion the time unless he knows what time there is to apportion. We, therefore, recommended for the two debates, the winter and summer debates, the longest time that we had had previously. In other words, one would go until one o'clock at night, then adjourn, and go over to a Friday to make up the full time. We had an assurance from the then Leader of the House that that could happen on one of the two occasions, but there might at times be difficulty on the other. Therefore, we put in the alternative, which has now been embodied in the motion, that there would be the five o'clock cut-off.
The House must recognise that the habit of going through the night does not gain the admiration of the country, and it is inconvenient to the staff. I believe that this is a lesson which the House must learn. So long as I have any appointment on the Select Committee on Procedure, I shall try to reduce the amount of time which the House spends late at night, because I believe that it makes the House a laughing stock in the country and I cannot think that it is good for business or for those who work for us.
That is why we made our recommendation. Many Fridays are used by the Government for their business, and that business finishes early. This happens particularly often on Fridays in the summer. I believe that an adjustment could be made, as we suggested, by making a gap in Private Members' Fridays, the Government giving one Friday to the 1053 Consolidated Fund, and then the Private Members' Friday being taken one week later. I am sure that it could be done.
I am sorry that we are not to have written ministerial statements. I hope that the Opposition will reconsider this matter. The suggestion originated from one of their own Members, the hon. Member for Islington, South-West (Mr. George Cunningham), and I thought it very wise, for this reason. Recently, the number of Questions for Written Answer has increased to 20,000 a Session, a huge increase. It has gone up by 100 per cent. Small decisions by Ministers are increasing in number, and it is necessary for the House to be told about a decision before a Minister makes an announcement in the Press.
Whether an oral ministerial statement is made depends on the decision of the Leader of the House, who must have regard for opportunities for business and debate. There cannot be too many ministerial statements. At present, we find that policy decisions are being tucked away in a large number of Written Answers, which makes it hard for a Member to identify them.
As I say, I hope that the Opposition will think again about this. I understand that the Government would be perfectly ready to make the innovation. Written ministerial statements would be advertised in the Opposition Lobby, and would be available in the Vote Office at 3.30 p.m. I am sure that, if it were adopted, this procedure would be a great improvement for the House.
I am surprised that we are not to have "injury time" on Private Member's motion days. We thought this a reasonable recommendation. It was put forward by a back bencher who pointed out that there had been an occasion, on 13th December 1971, when a Private Member's motion had been delayed for 1½ hours by three ministerial statements, one Private Notice Question, and two applications under Standing Order No. 9.
We thought it reasonable that that amount of "injury" time should be given after seven o'clock. I think that it was the right hon. Member for Newcastle-upon-Tyne, Central—if it was not, I apologise—who said that—
§ It being Ten o'clock, the debate stood adjourned.