Select Committee on Modernisation of the House of Commons Appendices to the Minutes of Evidence


Memorandum from the Clerk of the House



  1.  In its first Report of 1997-98[8] the Modernisation Committee recommended that in certain defined circumstances it should be possible to carry a public bill over a prorogation to complete its remaining stages in the session after the one in which it was introduced. The Committee's Report (which contained a range of proposals about the legislative process) was approved by the House, in general terms, on 13 November 1997.[9] In consequence, the Clerk of the Parliaments and my predecessor compiled a detailed memorandum for the Committee on the procedural methods which might be used to implement the recommendation about carry-over. That memorandum is published in the Committee's Third Report of 1997-98,[10] and is referred to in this paper as "the joint memorandum".

  2.  The Modernisation Committee accepted the main proposals put forward in the joint memorandum, and agreed that "initially at least, bills should be carried over by means of ad hoc motions; that in the interests of simplicity the procedure should be used in respect of bills which had not yet left the House in which they originated; and that the eligibility of bills for carry-over should be settled by agreement through the usual channels." In the event the only bill which has been carried over in this way was the Financial Services and Markets Bill of 1998-99.[11]

  3.  The Leader of the House's consultative memorandum for the Modernisation Committee, in its section on the "Longer Scrutiny of Legislation", re-opens the issue of carry-over, suggesting that regular use of the procedure would enable a more even flow in the introduction of bills and more time for considered scrutiny, allowing the House (for example) to make more frequent use of Special Standing Committees.[12] The purpose of this paper is to draw attention to some procedural issues that need to be addressed if carry-over is to become a regular feature of the House's proceedings rather than an experimental procedure operated, by agreement, on an occasional basis.

Method of carry-over

  4.  From the terms of the Leader of the House's memorandum, I assume that it is envisaged that the current pattern of annual sessions within the lifetime of a Parliament will continue (rather than being fundamentally modified or abandoned altogether, as is the case with the Scottish Parliament and several Commonwealth Parliaments originally based on the Westminster model). On that assumption, there needs to be a mechanism to override the current constitutional rule that all proceedings pending at the time of the annual prorogation are quashed.

  5.  In the case of the Financial Services and Markets Bill, the method used was a simplified variant of the type of suspension motion commonly used to carry a private or hybrid bill over from one session to another. The motion was tailored to the particular circumstances of that bill and, in principle, was debateable without limit of time. This method would be less appropriate to a situation where it was desired to carry over several bills, all of which were at different stages in their progress through the House, particularly if (as would probably be the case) the motions were being moved close to the end of the session, when there is often pressure on House time. The Committee may therefore wish to consider the desirability of commissioning a standing order (or a time-limited sessional order in the first instance) which would establish a framework for carry-over. This order would set out the detailed procedural consequences of the House agreeing to carry-over at various stages of a bill's progress through Parliament (for example, in the middle of committee stage, or between committee and report stages), and could provide that, where necessary, notices of amendments to a bill given in one session would remain valid for the ensuing session. Encapsulating this necessary detail in a standing order would make it possible for particular carry-over motions to be drafted in a comparatively brief and simple form.

  6.  The standing order might also provide for a time limit on debate on a carry-over motion (for example three hours, as is provided by SO No 83 in the case of motions for the allocation of time to bills); and it should also make clear whether more than one bill can be covered by a single carry-over motion. Carry-over by suspension motion, even if backed by a standing order would still entail the re-presentation of the bill in the new session and its pro forma passage through its previous stages; but in practice this should not cause significant difficulty or inconvenience.

  7.  As the joint memorandum pointed out, the procedures involved in carry-over are more complex when the bill in question has reached the second House. The co-operation of the House of Lords would be necessary to secure the carry-over of a bill originating in that House. And for a bill which originated in the Commons but is in the Lords as the end of the session approaches, carry-over would (on past practice, at least) have to be initiated in the Lords.[13] The Committee may therefore feel it necessary to enter into joint discussions with an equivalent committee of the House of Lords before finalising any recommendations on this subject.

Time limit for passage of bills

  8.  The Leader of the House's memorandum states that "the quid pro quo for greater flexibility on the carry-over between Sessions should be a requirement that all Bills must complete all stages within a fixed period of months.[14] How is this requirement to be imposed? The fixed period would cover all proceedings in both Houses, from the introduction of the bill in the first House until Royal Assent; and so it would be essential that the requirement applied to and was recognised equally by both Houses. This might be achieved by each House agreeing to a standing order, in identical terms, providing that a bill which has not received the Royal Assent by the expiry of [the fixed period] from the date of its first reading in the House into which it was introduced shall be laid aside and not further proceeded with.

  9.  Such standing orders, if agreed and reciprocally communicated between the Houses, should provide an adequate basis for mutual confidence that the carry-over procedure will not be abused in a way that allows legislative business to accumulate unreasonably during the lifetime of a Parliament. But standing orders can be (and often are) disapplied in particular circumstances; and so for complete assurance in the long term the time limit would have to be imposed by legislation.

Consequence for the operation of the Parliament Act

  10.  Paragraphs 13 and 14 of the joint memorandum drew attention to the potential implications of carry-over for the operation of the provisions of the Parliament Acts 1911 and 1949, which enable the legislative will of the Commons to prevail over the House of Lords in cases of fundamental disagreement. In the context of a limited experiment, conducted on a consensual basis, these implications were largely of academic significance. They would need to be considered much more seriously if carry-over were to be used as a matter of routine and was applied in the case of controversial bills.

  11.  The fundamental problem is that the Parliament Act is drafted by reference to sessions. The primary requirement for the operation of section 2 of the Act, for example, is that a bill has been passed by the House of Commons "in two successive sessions". "Passed" in this context means given a third reading. It follows that if a bill were to be introduced in the Commons in (say) May 2002, was carried over (in the Commons) to session 2002-03 and passed and sent to the Lords early in that session, in December 2002, and was then rejected by the Lords or laid aside at the conclusion of the fixed period of months, the bill could not be passed through the Commons and sent again to the Lords with a view to enactment under the Parliament Act until session 2003-04. If the Lords, instead of rejecting the bill outright, spun out proceedings on it, the bill could not be presented for Royal Assent under the Parliament Act until the very end of that session. Assuming the conventional sessional timetable, this would be in October or November 2004, some two and a half years after the bill's first introduction in the Commons. This would represent a significant diminution in the power of the House of Commons to secure the enactment of legislation in the face of opposition from the Lords.

  12.  There are also circumstances in which carry-over could compromise the rights of the Lords. If current practice in relation to the carry-over of private bills were followed, the carry-over of a Commons bill which had reached the House of Lords would entail the pro forma passage of the bill through the Commons in the new session. Normally this would happen less than a year after second reading of the bill in the Commons in the first session, and so section 2 of the Parliament Act could not apply. Otherwise, however, there is a possibility, under the Parliament Act as currently drafted, that a bill reintroduced for the purpose of carry-over might be passed into law under the Act, irrespective of any proceedings in the Lords. This is perhaps no more than a theoretical scenario. Nonetheless it is likely to be a cause of concern to the House of Lords.

  13.  For these reasons it seems to me inescapable that, if the scheme for carry-over set out in paragraphs 20 to 22 of the Leader of the House's consultative memorandum is adopted as part of Parliament's regular procedure, the Parliament Act will at some stage have to be amended to replace references to sessions by references to fixed periods of time.

William McKay

Clerk of the House

25 April 2002

8   HC190 (1997-98), paras. 67-70. Back

9   CJ (1997-98) 219, Item 8. Back

10   HC 543 (1997-98), pp. v-viii. Back

11   25th October 1999. Back

12   HC 440 (2001-2), paras. 20 to 22. Similar proposals were put forward in the report of the Conservative Party's Commission to Strengthen Parliament, chaired by Professor the Lord Norton of Louth (Strengthening Parliament, July 2000, page 42). Back

13   See para. 12 of the joint memorandum. Back

14   14 months was the period suggested by the Conservative Party's Commission to Strengthen Parliament. Back

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