Stephen Laws (M 73)
PAPER ON CONSIDERATION OF LORDS AMENDMENTS
ETC
1. When the Modernisation Committee visited
the Parliamentary Counsel Office in February, I was invited to
submit a paper to the Committee on exchanges between the Houses
relating to Bills. This is that paper. It has been delayed to
take account of proceedings on the Identity Cards Bill and the
Terrorism Bill.
2. The paper deals with the technical aspects
of the process in the Commons. Inevitably a discussion of those
aspects of the process has implications for the basis of relations
between the two Houses. This paper is not intended to make any
recommendations about that; nor does it set out proposals on behalf
of the Government. It is written entirely from the technical perspective
of the practitioner.
3. Clearly, many possible changes affecting
Commons consideration of Lords amendments or other Lords messages
would be impracticable without corresponding changes to the procedure
in the Lords in respect of Commons amendments. Much of what follows
is equally relevant to Lords procedure, because the procedures
of the two Houses with respect to messages from the other are
very similar, although not in all cases exactly the same.
4. This paper deals with five different
aspects of exchanges between the Houses on Bills:
— the giving of reasons and reasons
committees;
— the documents used on consideration
of Lords messages;
— the double insistence rule;
— the packaging rule; and
— the rules about what "remains
in play" at each exchange.
5. The last four of these all interact with
each other and a decision to change any one would have implications
for the others. Indeed, decisions in relation to some of the last
four might also affect the case for dispensing with reasons.
6. In this paper, the paragraphs setting
out the questions the Committee may wish to consider in the light
of the discussion are set out in bold type.
Reasons and the Reasons Committees
7. Commons procedure requires reasons to
be attached to a message to the Lords if the message consists
in no more than a disagreement with a Lords amendment. In the
Lords, a reason is also given for a bare insistence on a previous
message; but recent practice in the Commons does not require a
reason for an insistence. In addition, a reason is not required
in either House if a disagreement or insistence is accompanied
by a proposed amendment in lieu or by a proposed amendment of
words restored to the Bill by a disagreement with an omission
proposed by the other House. Nor is a reason required in the case
(which is rare, but theoretically possible) where a disagreement
or insistence is accompanied by a new consequential amendment.
8. The requirement for a reason means that,
where the Commons have resolved to disagree with a Lords amendment
or message, a reasons committee is set up and decides on the reason
for disagreement. The agreed reason is then reported to the House
and attached to the message sent to the Lords. The procedure is
described on page 636 of Erskine May (23rd edition).
9. The reasons committee usually consists
of five or so members with a Government majority and, these days,
its proceedings are invariably a mere formality. Where a Bill
is programmed, as almost all Bills are, SO 83H allows a debate
of half an hour on the reasons; but, in practice, the proceedings
rarely last longer than it takes the Minister, as chairman of
the committee, to read out the Government's suggested reason and
to put the question on it.
10. Reasons, with one exception, are rarely
informative, consisting in most cases in a paraphrase of the proposition
that the Commons do not think what the Lords have proposed is
a good idea. An example from the proceedings on the Identity Cards
Bill demonstrates the point: the following was the reason given
for disagreeing with the Lords amendment making it only optional
for a person applying for a designated document (such as a passport)
to apply to be registered and for an ID card:
"Because the Commons consider it appropriate
that a person applying for a designated document be required at
the same time to apply to be entered in the Register and to have
an ID card issued to him."
11. Such reasons are rarely (if ever) referred
to during the consideration by the Lords of the Commons message.
If the reasons were useful in practice, it is difficult to see
why they would not also be useful in the cases where they are
not required (such as where an amendment is offered in lieu).
12. The only occasion on which a reason
conveys a message that may be useful is where the Commons are
disagreeing with a proposal from the Lords that the Speaker has
ruled to be an infringement of the Commons' financial privileges.
(There are different categories of such proposal, one of them
that is worth special mention is where SO 78(3) applies and disagreement
is effected by a "book entry" because the proposal is
not "franked" by a money resolution).
13. The Speaker's ruling on a matter of
privilege is made known to the Commons at the beginning of proceedings
on Lords amendments. Any amendment infringing the Commons' privileges
with which the Commons disagree is disagreed with by a reason
that states the subject matter of the amendment and concludes
with the words "trusting that the reason given may be deemed
sufficient". Those words are used as a coded assertion of
the Commons" privileges. Where the Lords receive such a message,
convention requires the Lords not to insist on their earlier message,
although they may offer alternative proposals, even, in practice,
alternatives that also infringe privilege.
14. As with other reasons, the Commons assert
their privileges in the form of a reason only where they are disagreeing
with a Lords amendment without more. No message is sent to the
Lords to warn them that a reversion to their original proposal
would be regarded as an infringement of the Commons' privileges
eg where the Commons are disagreeing with an amendment, but proposing
an amendment in lieu. This would include each of the following
situations:
— where the amendment in lieu incorporates
a Commons amendment relating to the privileged matter—and
so effectively waives the privilege; or
— where the amendment in lieu deals
with the subject matter of the Lords amendment in a way that would
not (if it had been proposed by the Lords) have infringed the
Commons' privileges.
15. If the Committee thought it appropriate
to recommend the abolition of reasons and the reasons committees,
it would be relatively easy to devise an alternative procedure
for notifying the Lords of the Speaker's ruling that a particular
amendment infringes the Commons' privileges. The ruling is made
in advance and could easily be inserted as a book entry (as in
the case where SO 78(3) applies), and it could, perhaps, be in
a less cryptic form. It is for consideration whether it would
be worth doing this in all cases of privilege, irrespective of
whether the message being returned is a disagreement or a disagreement
accompanied by some other message eg an amendment in lieu.
16. The questions the Committee may
wish to consider in relation to reasons are as follows.
— Do reasons and reasons committees
continue to serve a useful purpose, or should they be abolished?
— If they are abolished, what arrangements
should be made for indicating to the Lords that a Commons decision
is based on an assertion of the Commons' financial privileges?
— Should the Commons also send a
message about privilege to the Lords when they are making their
own proposals in lieu of a Lords amendment that infringes privilege?
Documents Used for Consideration of Lords Amendments
etc
17. When a Bill is returned to the Commons,
all the amendments made in the Lords are converted into amendments
of the Bill that was sent up to the Lords. The amendments are
then printed as a complete list of Lords amendments in a separate
document. This conversion can be a difficult and time-consuming
process, particularly if a large number of amendments has been
made both at Committee stage in the Lords and at subsequent stages.
The Bill as amended on third reading in the Lords is not printed
and the Commons considers all the amendments made by the Lords
as amendments of the Bill as it left the Commons.
18. After that, further proposals (amendments
in lieu, consequential amendments etc) are put down and printed
as amendments either of the Bill sent to the Lords or of the list
of Lords amendments or last message. After a number of exchanges
between the Houses, the final text of the Bill that would result
from the most recent proposal can only be worked out from putting
together several layers of documentation. The matter is further
complicated by the fact that, once an amendment has been agreed
by both Houses, it drops out of the documentation. No single document
is printed by either House at any stage showing what has been
agreed so far and what is outstanding.
19. In theory, the advantage of this system
is that it creates a degree of transparency about the outstanding
issues between the two Houses. Because the documents at each stage
are confined to outstanding issues, it is possible to see immediately
where there is scope for further proposals. The list of Lords
amendments or last message determines the scope for further proposals
to be made.
20. In practice, however, this advantage
is not a real one. The documents produced make it very difficult
indeed for members in each House, and for officials, to determine
after the first round what is being proposed as the eventual contents
of the Act. And, without that context, the outstanding issues
between the Houses are obscured.
21. What follows is part of the record of
proceedings on the Prevention of Terrorism Bill 2005, and it amply
demonstrates just how difficult the position can get:
"The Lords insist on their disagreement
to Commons Amendments lA and lB to Lords Amendment 1; insist on
their Amendments 37Q to 37T in lieu of Lords Amendment 8, to which
the Commons have disagreed; insist on their insistence on Lords
Amendments 12, 13, 15, 17, 22, 28 and 37 in respect of which the
Commons have insisted on their disagreement and insist on their
disagreement with the Commons in Amendments 37A to 37O in lieu
of those Lords Amendments; and disagree with the Commons in their
Amendments 17H to 17M to the words restored to the Bill by the
Commons insistence on their disagreement to Lords Amendment 17."
22. The Commons replied to this with the
following:
"The Commons insist on their Amendments
lA and lB to Lords Amendment 1, insist on their disagreement to
Lords Amendments 12, 13, 15, 17, 22, 28 and 37 and insist on their
amendments 37A to 37C and 37E to 37O, do not insist on their Amendment
37D, insist on their disagreement to Lords Amendments 37Q to 37T,
proposed in lieu of Lords Amendment 8, insist on their Amendments
17H to 17M to the words restored to the Bill by their insistence
on their disagreement to Lords Amendment 17 and propose Amendment
37V in lieu."
23. What the Lords were, in fact, doing
in this case was a straight rejection of the proposals last submitted
by the Commons. What the Commons were doing was insisting on their
proposals with one change, namely, the substitution of a new amendment,
37V for 37D (which the Commons were dropping). In fact Amendment
37V was different from 37D in only very limited and insignificant
respects. The two amendments 37D and 37V (which each consisted
of a new clause of nearly two pages) differed only because a difference
was necessary to prevent the Lords from killing the Bill using
the "double insistence rule", which is discussed below.
The insignificant differences between the two could only be ascertained
by a careful comparison of the two clauses.
24. From the practitioner's point of view,
and also possibly from the point of view of Members, the system
would be much clearer if what was returned to the Commons was
the Bill as amended by the Lords—viz the Bill as amended
on third reading (assuming third reading is the last stage at
which amendments are made in the Lords). All subsequent stages
could then proceed by reference to proposals for amendments of
that Bill.
25. This in itself would not prevent the
rules of order from continuing to limit the scope for further
messages. If it were necessary for this purpose or otherwise helpful
(and that might depend on the view the Committee takes of other
issues discussed in this paper), a separate document could be
printed when the Bill is returned to the first House which could
be used just for the purpose of determining the scope for further
amendment of the Bill.
26. There are various forms that such a
document could take. On the first round, the list of Lords amendments
could be printed, as it is at present but just for information
purposes, to show how the Bill returned to the Commons differs
from the Bill sent up. Alternatively, the software used for printing
Bills would make it relatively easy, for information purposes
only, to print a version of the Bill showing the changes made
in the Lords. A utility already exists for this purpose, which
works well, except in tables. At subsequent stages, a different
sort of document might be required for this purpose and some possibilities
are mentioned in paragraph 28 below. These documents would enable
Members to decide what is in order at each stage (assuming the
rules of order continue to depend on what remains "in play").
In practice of course Members will continue to rely on advice
from the clerks, and ultimately on the Speaker's ruling, to ascertain
what is in order.
27. How could all this work in practice?
The Commons on receiving the Bill back could either agree it or
agree it subject to a list of further amendments. These would,
if necessary, reverse the effect of Lords amendments and restore
parts of the Bill to the state in which they were when the Bill
was first sent to the Lords. At the next stage, the Lords could
do one of three things:
— disagree with all the proposed Commons
amendments and insist on the Bill as originally sent back to the
Commons;
— agree with the Bill as amended by
all the Commons amendments;
— send back an alternative list of
amendments that the Lords are willing to accept, which would also
incorporate the Commons amendments to which the Lords are willing
to agree.
28. The Commons could then respond with
an insistence on their original list, agreement with everything
the Lords propose or a proposal for an alternative list incorporating
all the amendments (whether originally proposed in the Commons
or in the Lords) which the Commons are willing to agree. It would
be possible to use printing techniques (different fonts or weights
of font etc.) to indicate which amendments proposed at the preceding
stage had been accepted and which were new. It would also be possible
to produce a document, again for information purposes only, which
also showed which amendments proposed at the previous stage had
been rejected (eg a comparison between the last list proposed
by one House and the response to it from the other House).
29. The advantage of such a system would
be that, at each stage, it would be possible to work out the form
of the Bill as proposed by the Lords or Commons using only two
layers of text: the Bill as amended on third reading in the Lords
and the latest list of amendments proposed by the House in question.
I do not believe that the production of these documents together
with the information documents mentioned above would slow the
process of exchanges between the Houses, although I have to accept
that it would, at least in some cases, use more paper.
30. A change along these lines would also
be consistent with the fact that, in practice, Government concessions
and other Government amendments made in the Lords usually need
to be approved only formally in the Commons. Approving the Bill
as amended by the Lords subject to exceptions would have the practical
effect that all non-controversial amendments made in the Lords
would be approved as a block. This, in many cases, is the practical
effect of the current programming Standing Orders 83F and 83G.
It would still of course be in order to trigger a debate and division
on a particular change made in the Lords by moving an amendment
of the motion to agree to the Bill subject to specified amendments
(eg to delete an amendment from the list of proposed Commons amendments,
or to add to the list).
31 . If a change of documentation along
these lines were agreed, some further work would need to be done
on the form or the motions to give effect to the various possibilities,
and on the way in which those motions and amendments should be
handled within the context of programming. If packaging is to
remain important otherwise than for the purpose of grouping matters
for debate (see below), some further work will also be needed
on how the document returned to the other House would indicate
the intended packages.
32. It would also be necessary to modify
the programming standing orders, perhaps to allow the Speaker
to select amendments to the main motion for separate division
when a knife falls.
33. Furthermore, even the existing procedures
are not without difficulty. There is uncertainty as to the effect
of the defeat of a packaged motion and that uncertainty is complicated
by the fact that motions and standing orders for programming do
not allow the matter to be treated as undecided at the time when
proceedings on the Bill must be concluded. It is assumed that,
in the event of a defeat, each element of the motion is treated
as decided in the opposite sense; but that can produce some surprising
results where a motion disagreeing a part of a package includes
a concession in the form of a non-insistence or an agreement in
relation to another part of the package. A change to the form
of motions to accommodate a change of the documents used might
provide an opportunity to resolve this difficulty.
34. The questions the Committee may
wish to consider in relation to documentation are as follows.
— Should the Bill used for exchanges
between the House continue to be the Bill sent to the second House
by the first House, or should it be the Bill as amended by the
second House?
— Should the document sent back
in an exchange provide a complete record of the amendments (whether
already agreed or not) which the House in question is proposing
to the Bill?
— Do additional documents need to
be produced to indicate what is in order at each stage?—The
Committee's views on the remaining questions in this paper may
affect this.
— If changes are made to the documents
used what consequential changes are needed to the form of the
motions used at each stage and to the way programming operates?
Double Insistence and the Packaging Rules
35. These two rules complement each other
and need to be considered together.
36. The double insistence rule is the rule
that says that a Bill is lost if one House has insisted on a proposal
and the other House has then insisted on disagreeing with it.
The purpose of the rule appears to be to identify the point at
which a deadlock between the two Houses is reached and to terminate
further consideration of the Bill at that stage. The application
of the rule is complex and artificial in practice and, if that
is its purpose, it is not clear that it serves it well.
37. The classic case of double insistence
is where the Lords propose an amendment (stage 1), the Commons
disagree with it (stage 2), the Lords then insist on their amendment
(stage 3—first insistence). If at that stage the Commons
then insist on their disagreement (stage 4—second insistence),
the Bill falls.
38. At any stage of this four stage process
either House can start the clock running again by making a new
proposal (eg by proposing an amendment in lieu). That then takes
the process back to stage 1: so, if, say, the Commons do not insist
on a disagreement (producing a double insistence at stage 4),
but instead propose an amendment in lieu, the Bill will not be
lost until the Lords have disagreed the amendment in lieu, the
Commons have insisted on their amendment in lieu and the Lords
have insisted on the disagreement (stage 4 again with a second
successive insistence). And that sequence itself can be broken
and started again at any stage by a new proposal. In recent times,
where the use of the Parliament Acts has not been inevitable and
the opportunity for a first insistence has arisen, the Commons
have often contrived to start the clock running again, so as not
to put the Lords in the position of being able to kill the Bill.
39. The related packaging rules serve two
functions. First, and independently of the double insistence rule,
they provide a mechanism for grouping Lords amendments for debate
and division in the Commons, and also in the Lords. This is useful
and needs no further discussion; it is however only incidental
to the main significance of the rules. Their main significance
is that they mitigate what would otherwise be the harshness of
the double insistence rule.
40. The way they mitigate the double insistence
rule is to prevent that rule from applying amendment by amendment.
So a proposal from the Lords may contain a single substantive
amendment and a tail of consequentials. The Commons may disagree
with the substantive amendment and offer an alternative that does
not require the consequentials: so they also disagree with all
the consequentials. There may be a number of exchanges with different
options for replacing the substantive amendment, but all of them
may require the same thing in relation to the consequentials.
It would not make sense if the Bill had to fall while the Houses
are still trying to reach agreement about the substantive amendment,
just because there had been a double insistence in relation to
one or more of the consequentials.
41. The packaging rules therefore allow
amendments to be packaged together as part of one story for the
purpose of deciding if the clock should be started again in relation
to all the amendments in the package. Amendments, which as a matter
of analysis, are really only in lieu of one amendment in a package
are treated by the packaging rules as in lieu of all the amendments
in the package.
42. The packaging rules were the subject
of an agreement in 2005 between the two Houses. The agreement
is set out in the report of the House of Lords Select Committee
on Procedure and the relevant part of the report is set out as
the Annex to this paper.
43. This report was debated in the House
of Lords (Hansard 24 March 2005 col 365 to 386).
44. The practice of the Lords since the
2005 agreement has been to accept packages on the basis of the
way the Lords amendments were treated in debate in the Lords.
So, on the Identity Cards Bill, the Government were told that
it would not be acceptable to treat as a single package:
— the removal by the Lords of the link
between the application for a designated document (eg a passport)
and a requirement to register on the National Identity Register;
and
— the power to provide by order subject
to a special affirmative procedure to provide for a general obligation
to register.
This was because the two issues had been debated
as separate issues in the Lords. And a relevant factor in this
sort of decision may be whether the amendments on two otherwise
related issues were moved by the spokesmen of different parties.
45. One particular feature of the combined
operation of the double insistence rule and the packaging rules
that is worth noting is that the rules treat a deadlock as having
occurred if there is a deadlock on only one package, even if other
packages are still subject to new proposals from one House to
the other.
46. Another is the apparently arbitrary
way the rules can operate in practice. This is demonstrated by
an example from the Terrorism Bill 2005-06. On one round the Commons
sent back a package of amendments with some consequential amendments
of subsection (9) of clause 3. The rest of the package was accepted
by the Lords but the consequential amendments were rejected because
the omission of subsection (9) was part of another package of
amendments that the Lords were insisting on. On the next round,
the Commons did not insist on the consequential amendments, accepted
the omission of subsection (9) and proposed a new subsection (9)
as amended by the consequential amendments in lieu of other proposals
being rejected by the Commons. Although the practical effect of
this, so far as subsection (9) was concerned, was identical with
the proposal on the previous round, the rules treated it as a
new proposal which started the double insistence clock running
again.
47. But perhaps the most important feature
of the combined operation of the rules is that they can always
be manipulated to ensure that there is no double insistence. This
is easy and common and the Committee may think that the fact that
it frequently happens, and is allowed to happen, demonstrates
that the rules are not in fact in tune with political reality
and the will of the two Houses.
48. The easy manipulation of the rules is
illustrated by the example given in paragraphs 21 to 23 above
in relation to the Prevention of Terrorism Bill 2005. The Commons
was able to keep the proceedings going and to deny the Lords the
opportunity to kill the Bill, because the Commons was able to
send the Bill back several times with what were, in substance,
the same amendments subject only to a series of trivial modifications.
49. The purpose of this was to require the
Lords to consider its position again on more occasions than the
double insistence rule would have allowed. In addition, the manipulation
secured that three separate packages were kept alive, because,
as a matter of political reality—but not according to the
rules—they were actually being treated as one package: in
the sense that it was assumed that movement by the Government
on one of the packages would be enough (as was the case in practice)
to persuade the Lords to withdraw their objection to the Commons
position on the other two.
50. In practice, it is always going to be
possible to produce this situation with sufficiently ingenious
drafting. Each House can use a trivial change to prevent the other
House from being put in the position of being able to kill the
Bill, although a consequence is likely to be that the best way
of drafting something may be abandoned in favour of a different
way of drafting it—just to keep the Bill alive (see paragraph
paragraphs 21 to 23 above).
51. In practice, the rules do not prevent
one House from asking as many times as it likes for the other
House to think again about a proposal it has already rejected.
52. In these circumstances there are
three questions the Committee may wish to consider:
— Is any useful purpose served by
a double insistence rule which produces the death of the Bill
through deadlock only where the majority in one House wants that
and the majority in the other House has put it in a position where
it is able to decide that?
— Is the intended purpose of the
double insistence rule as well served by the existing ability
of either House (subject to programming in the Commons) to adjourn
consideration of the other House's message indefinitely (perhaps
after a warning in an earlier message) if it thinks that a real
deadlock has been reached?
— If the Committee considers the
double insistence rule still serves a useful purpose in identifying
the point of deadlock, does it nevertheless make sense to assume
that there is a deadlock when only one package is deadlocked and
there are others that are still being negotiated (viz should any
double insistence rule be applied to everything left in play,
rather than package by package)?
The Rules about what "Remains in Play"
at each Exchange
53. The rules of order about what can be
considered by way of response to a message from the other House
are designed, in theory, to ensure that the issues between the
Houses are gradually narrowed. So:
— When the Bill is returned from the
Lords to the Commons, proposals that are not relevant to one or
more of the amendments made by the Lords are out of order.
— When the Bill is returned to the
Lords, proposals that are not relevant to a disagreement (or to
some new proposal) in the Commons response are out of order.
— When the Lords send back their response
to the Commons, proposals that are not relevant to the matters
that the Lords are insisting on (or to something new in the Lords
response) are out of order.
54. This means that as soon as one House
has made a proposal and the other House has agreed with it, that
topic is "out of play" and cannot be revived. The effect
of this is that the rules allow one House to "cherry pick"
from a proposal for a compromise.
55. This applies irrespective of any packaging.
An example is given above in paragraph 44 from proceedings on
the Identity Cards Bill about how two issues (the link to passports
and the introduction of compulsion by order) were treated as separate
packages. However, even if they had been treated as one package,
it would have been possible for the Lords (as they did in practice
with separate packages) to accept the Government concession on
the power to introduce compulsion by order but to continue to
reject the link to passports.
56. The way the packaging rules operate
in practice means packages are not "take it or leave it"
packages; one House can accept the concessions contained in a
package (taking them out of play) and then reject the part of
the package that requires a concession from that House.
57. Like the double insistence rule, this
rule too is capable of some manipulation where the political reality
requires it, but not always as easily.
58. An example could have arisen in relation
to the Identity Cards Bill. Clause 4 of that Bill set out the
documents that were capable of designation and the procedure for
designation. Clause 5 imposed a requirement to apply for registration
in the National Identity Register when applying for a designated
document. Both clauses were amended in the Lords but the amendments
of clause 4 (which were Government concessions in the Lords) were
accepted in the Commons on the first round. The amendments of
clause 5—making it only voluntary to apply for registration
when applying for a designated document—were Government
defeats in the Lords and were the subject of subsequent exchanges
between the Houses.
59. In the search for a compromise on clause
5, consideration was given to proposing further amendments of
clause 4 (eg to the documents capable of designation or to the
procedure for designation); however, had this been a satisfactory
route to an eventual compromise (which, in fact, it was not),
it would not have been allowed in a straightforward way because
the acceptance by the Commons of the clause 4 amendments had put
those issues out of play. Nevertheless (and this illustrates how
manipulable and artificial the existing rules are), it would have
been possible to produce similar effects in a more obscure way
by eg amending clause 5 to say that it had effect with certain
modifications where particular documents were designated under
clause 4 or where a particular procedure had been followed under
clause 4.
60. What this demonstrates is that there
may be circumstances in which the political reality requires an
issue settled at any earlier stage to be reopened to facilitate
a compromise at a later stage.
61. The questions the Committee may
wish to consider in the light of this discussion are as follows:
— Do the rules that narrow the scope
for further proposals with each exchange continue to serve a useful
purpose?
— Should the rules of order relating
to exchanges continue to allow one House to accept concessions
from the other House and take them out of play while at the same
time rejecting the concession asked for in return?
— If not, would a change best be
secured by having a packaging rule that allowed for "take
it or leave it" packages that could not be accepted in part
or by allowing all issues sent back from the second House to remain
in play until a compromise is reached on all of them?
— If "take it or leave it"
packages are to be allowed, are the current arrangements for determining
what counts as a package for the purposes of the double insistence
rule a satisfactory way of determining what counts as a package
for the purposes of a "take it or leave it" rule?
May 2006
Annex
PUBLIC BILLS: EXCHANGES BETWEEN THE HOUSES
4. The Committee considered the implications
of the practice of the House of Commons to package Lords' amendments
to bills. Packaging is currently used only in the House of Commons,
where a number of related amendments may be grouped together for
the purposes of both debate and decision. (It differs from grouping
in the Lords, where related amendments may be debated together,
but the fate of individual amendments in the group is decided
separately.)
5. The Commons' practice of packaging gave
rise to difficulties in the Lords on the Planning and Compulsory
Purchase Bill in May 2004, when the two Houses took differing
views on the application of the double insistence rule [1]. It
appeared to the Lords' authorities that double insistence had
been reached on an amendment and that the bill was therefore lost,
whereas the Commons' intention was that the bill could be further
considered since that amendment had been decided in the Commons
as part of a "package" with another amendment to which
an amendment in lieu had been offered. In the event this difference
was resolved by means of an exceptional motion, moved by the Leader
of the House of Lords, to provide for further consideration of
the bill in spite of the apparent double insistence.
6. Following these events, the Clerks of
the two Houses agreed a joint statement (HL Deb. 21 July 2004
WS 19-21) on the subject of double insistence. The Clerks agreed
that, if a Commons' message clearly identified amendments as a
package, "the resultant message to the other House would
not amount to a double insistence, whether or not the House receiving
it chose to "unpackage" the amendments for the purposes
of debate". Thus the Lords would have the opportunity to
consider the amendments in spite of a double insistence within
the package. The Clerk of the Parliaments invited us to consider
changes to the practice of the House to deal with Commons amendments
which have been packaged. Before we could consider the statement,
there was a further instance of packaging of amendments on the
Hunting Bill, which raised this issue once again.
7. In considering this subject, we had in
mind that the House of Commons have been considering Lords' amendments
in packages since at least 1997, and are unlikely to change their
practice, whatever the decision of this House. There may also
be potential advantages to the Lords in considering Commons' amendments
in packages, in ensuring coherent and orderly debate by means
of fewer, simpler motions. If properly used, packaging can be
an aid to Parliamentary scrutiny.
8. However, there is a danger that the packaging
of Lords' amendments in the House of Commons would reduce the
Lords' legitimate power to ask the Commons to think again, if
unrelated amendments were packaged together by the Commons in
order to be able to reject them without offering any substantive
alternative.
9. We therefore recommend that packages
from the Commons should be considered by the House only if they
are confined to single or closely related issues, not disparate
issues joined together simply for reasons of convenience. We further
recommend that, where packages from the Commons are confined to
single or closely related issues, the House should in future be
willing to consider amendments in packages and, where this is
done, the double insistence rule should apply to the whole package
and not to individual amendments within it.
10. In practice, this means that, if a bill
is returned from the Commons with a clearly identified package
of amendments, then in accordance with the joint statement the
bill will be placed on the Lords' Order Paper for possible consideration,
even if there is a double insistence on part of that package.
(By contrast, a double insistence which is not packaged with other
amendments will kill the bill, and there can be no further consideration.)
If the package concerns a single or closely related issue, the
Lords should consider it and ping-pong will continue. If the package
is not confined to a single or closely related issue, the Lords
should refuse to consider it. The bill will then be lost because
it will not be returned to the Commons.
11. When packages are constructed for debate
in one House, due regard should be had to how those packages will
be dealt with in the other House. However, each House remains
master of its own procedures.
12. First Parliamentary Counsel has agreed that
Counsel will (wherever possible) liaise with the authorities of
both Houses during the preparation of packages, in order to avoid
misunderstandings about the effect which a package in one House
could have in the other House.
13. We propose that these arrangements should
be reviewed in the light of experience.
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