Private Members' bills: Government response and revised proposals - Procedure Committee Contents


Private Members' bills: Government response and revised proposals

Introduction

1. Our report Private Members' bills was published on 2 September 2013.[1] It set out an ambitious set of proposals for reform of private Member's bill procedures which recognised and built on the clear desire across the House for change.

2. The central aspect of our proposals was the proposition that it should be possible to timetable, or "programme", private Members' bills. Implemented well, we said, timetabling enables appropriate debate and discussion of a bill whilst preventing the delay of a bill's passage by procedural tactics or filibustering. We recommended that the House be invited to decide whether it should be possible to programme private Members' bills, and offered two possible ways of achieving it.[2]

3. We also recommended a number of other reforms to the private Member's bill system designed to increase the transparency of the process so that interested parties—both inside and outside the House—understand what is happening; and to ensure that the process is a genuine opportunity for debate, scrutiny and, if it is the will of the House, passage of a backbench legislative proposition.

4. We received the Government's response to our report on 16 December 2013. It is published as an appendix to this report. The response accepted some of the Committee's recommendations, in particular those aimed at increasing transparency and understanding of the system by clearing off the Order Paper notices relating to bills which had no realistic chance of debate. It did not accept the central recommendation that it should be possible to programme a private Member's bill to ensure that it could be brought to a decision.

Our revised proposals

PROGRAMMING OF PRIVATE MEMBERS' BILLS

5. Following further discussions with the Leader of the House, we have decided not to proceed with our proposals for programming of private Members' bills by putting them to the House. This is an idea whose time has not yet come. We remain concerned, however—for all the reasons we set out in our original report[3]—about the ease with which it is possible to defeat a private Member's bill not through a division in the House, but by talking at length so that the time for debate runs out before a decision can be reached. The effect of this inability to bring a bill to a decision is particularly pernicious at second reading, where in the case of the first bill on the Order Paper on any particular Friday up to five hours' debate is possible, during which any Member may speak for a limitless period, with no vote at its conclusion.

6. In place of programming, therefore, we propose the following. We recommend that the House should agree that there should be a convention that the question on second reading of a private Member's bill should be put to the House at the end of a full day's debate, in the same way that the House expects the question to be put on second reading of a Government bill. The convention would operate in respect only of the first bill on the Order Paper on any given private Members' Friday. This arrangement would enable the Chair, where necessary, to use the provisions of Standing Order No. 47 to set limits on speeches, since the timing of the end-point of the debate would be known.[4]

LISTING OF BILLS ON THE ORDER PAPER AND PUBLICATION OF PRIVATE MEMBERS' BILLS FOR COMMENT BEFORE SECOND READING

7. In our original report, we recommended that a bill not appear on the Order Paper (including in "Future Business") until the Speaker was satisfied that the promoter of the bill had made available online an exposure draft of an actual bill. This proposal had two aims: both to encourage the dissemination of private Members' bills for comment and scrutiny; and to encourage Members to treat the process as a serious legislating procedure, not merely an advertising opportunity.[5] Earlier in the report, we had expressed our view that it would be desirable for the House to facilitate the publication of bills in draft for comment before they are printed and debated at second reading, and we recommended that there should be sufficient flexibility in the timing of the ballot and the presentation of the ballot bills to enable the House authorities to make those bills available in draft, and the promoter of each bill to collect any comments and take them into account before finalising the text of the bill and getting it published before second reading.[6]

8. In its response the Government "agree[d], in line with the Committee's recommendation and [the Government's] response on pre-legislative scrutiny, that only bills that have been published (whether in draft or in final form) should be listed on the Order Paper as real bills". However, it added,

    […] the Committee's proposal for a shadow list of unpublished bills to be maintained in private, with the prospect of bills that are then published in draft suddenly "queue-jumping" bills already on the Order Paper, risks uncertainty and reducing transparency. It would be more transparent if those bills that were not published were listed on the Order Paper in italics, with a suitable rubric of explanation.

9. We accept the Government's view of the dangers of maintaining a "shadow" list of unpublished bills in private. We recommend that bills which have not been published should be clearly identified in the Future Business section of the Order Paper. Consequently we do not intend to pursue our recommendation that a bill not appear on the Order Paper until an "exposure draft" has appeared online. Nor will we press our recommendation that Future Business should list private Members' bills only when they have been set down for a day on which private Member's bills have precedence.[7] The existing practice of indicating on Future Business that the House is not expected to be sitting on such days is already in line with approach we recommend here for bills which have not been published.

10. We remain of the view that it would be desirable for the House to facilitate the dissemination of bills in draft for comment before they are published for debate at second reading. We recommend that the House establish a means for the Member in charge of a private Member's bill to post a draft bill online for scrutiny and comment before it is published in advance of second reading. It would not be mandatory for a Member to make a draft bill available in this way before proceeding with it through the private Members' bill process, but we believe that many will find it desirable to do so and that better-quality bills could result.

11. The Public Bill Office, which we consider should oversee this process, under the direction of the Speaker, has sent us a memorandum about the practicalities of its operation, which is published on our website.[8] In line with the Public Bill Office's proposals, we recommend:

·  that online pages for draft private Members' bills be provided on the Parliamentary website on a pilot basis in the 2014-15 session, to be reviewed by us towards the end of this Parliament;

·  that the pilot be restricted to bills being brought forward by Members successful in the ballot for private Members' bills;

·  that the pages serve only as a means of inviting comments on a draft of the bill, which would be passed on to the Member in charge of the bill, and not as an "online forum" which would require moderation;

·  that a draft bill made available on the pages stay open for comments for a standard period of three weeks.

12. It is our hope that the Government i) would ensure that any "handout" bill accepted by a Member to be piloted through the private Member's bill route was made available for such scrutiny (if it had not already been through pre-legislative scrutiny) and ii) would respond to the invitation for comments on any draft bill made available on the webpages. The Government would need to liaise with the House authorities before tabling a motion to set the dates of the private Members' bill Fridays to ensure that the date of the first such Friday was not set too soon for the bills debated on that day to be made available in draft for comment and scrutiny for the standard three-week period.

TEN MINUTE RULE BILLS

13. We recommended that the expectation be removed that a bill will be immediately brought in if leave is granted after a motion is passed under the ten minute rule.[9] At present, the bill is presented immediately after leave is given, and a day named for second reading. The bill may then stay on the Order Paper for the remainder of the session, even though it stands virtually no chance of further debate or progress. Under our recommendation, it would still be possible for a Member to present a bill if desired; but we anticipated that, having taken advantage of the opportunity to raise the issue in "prime time" in the Chamber, the majority of Members would leave it at that instead of going to the trouble of continuing to put forward on successive private Members' Fridays a bill which stands no chance of making further progress.

14. The Government "agree[d] with the Committee that the passing of a ten minute rule motion should not necessarily lead to the publication of a bill, or just the listing of a bill title on the Order Paper", but suggested that our proposal "may not provide complete transparency". Instead, the Government suggested

    It may be more helpful to make an even clearer distinction between serious legislative proposals and declaratory or preliminary motions. This could be done by giving Members the choice of seeking leave to introduce a ten minute rule bill, as now, or of moving an alternative motion which carried with it no implication of the imminent publication of a bill. This might be called a "pre-legislative motion", or similar. There would be no need to permit the ten minute speech to oppose such a motion, as no legislative action would follow in the session […]

15. We are not persuaded by the Government's suggestion that our recommendation "may not provide complete transparency" and are concerned that the introduction as an alternative to ten minute rule motions of "pre-legislative motions" would introduce unnecessary complexity to the procedure. Accordingly, we repeat our original recommendation that a bill need not be brought in immediately after leave is granted under the ten minute rule.

FLOODING THE ORDER PAPER WITH BILLS  

16. We recommended that the possibility of a monopoly of the limited opportunities for debate of private Members' bills by a single Member be reduced by providing that a private Member may present only a single bill on any one day. This recommendation was designed to prevent the situation where a very small number of Members—and potentially just a single Member—prepared to queue overnight in the Public Bill Office so that they are the first to present a bill, or bills, after the ballot bills have been presented can take up all the remaining slots and crowd out other Members completely.[10]

17. The Government agreed with this recommendation, but suggested that the House might want to consider going further:

    […] To avoid the possibility of Members using the private Members' bill procedure to promote what amount to an alternative manifesto, it would be possible to limit the number of bills each Member may introduce in any one session, or to place restrictions on the number of bills a Member may have on the Order Paper at any one time. Such limits would serve both to increase the value of legislative opportunities and be less misleading than the current Order Paper, which contains large numbers of bills which have no realistic chance of making progress.

18. We do not consider it appropriate to limit the number of bills which may be presented by a Member beyond what was proposed in our original recommendation. As the Clerk of the House pointed out to us in a memorandum to an earlier inquiry, the right of individual legislative initiative has been prized over many years;[11] and we would be reluctant to constrain it any more than is necessary to ensure the appropriate distribution of time on private Members' Fridays. Accordingly, we repeat our original recommendation that a private Member should be restricted to the presentation of no more than one bill on any one day. That will require a change to Standing Order No. 57 (Presentation and first reading), to add the following new paragraphs:

    "(1A) Such notice shall be given in the Public Bill Office by the Member in person or by another Member on his or her behalf, but on any one day not more than one notice shall be accepted from any one Member.

    (1B) Paragraph (1A) of this order shall not apply to notices given by a Minister of the Crown."

DEADLINE FOR PUBLISHING OF BILLS

19. We recommended that the deadline for printing a bill—that is, producing a fully drafted piece of legislation, in place of a "long title"—be brought forward to the Wednesday of the week prior to the day of second reading.[12] Currently, a fully drafted bill does not have to be produced until the day before it appears on the effective Order Paper for debate.[13]

20. This recommendation was made in the context of our earlier recommendation that the Government be required to make a written Ministerial statement on any private Member's bill which has been printed,[14] and was designed chiefly to ensure that the Government had sufficient notice of the text of a bill to enable it to prepare such a statement before second reading. As we note below, the Government has rejected that recommendation, and we have decided not to press it. Nevertheless, as we said in our original report, it would be to the benefit not only of Government, in establishing its position on a bill, but to the House as a whole—as well as interested parties outside the House—for bills to be published earlier. We do not believe that it is necessary to go further, as the Government suggested, and set the deadline fourteen days prior to the date of second reading. We recommend that the deadline for publishing a bill be brought forward to the Wednesday of the week prior to the day of second reading. That will require a change to paragraph (14) of Standing Order No. 14 (Arrangement of public business), so that it reads:

    (14) An order appointing a day for the second reading of a private Member's bill shall lapse at the rising of the House on the Wednesday of the week prior to the day so appointed if at that time the bill has not been published and delivered to the Vote Office, and the House shall make no further order appointing a day for the second reading of the bill until it has been published;

    Provided that if the House is not sitting on that Wednesday, the order appointing a day for second reading of the bill shall lapse as soon as the House meets again if the bill had not been published and delivered to the Vote Office on the preceding Friday.

NAME OF PRIVATE MEMBERS' BILLS

21. Our report said

    The name "private Members' bills" is the cause of some degree of confusion, since the term "private Member" is no longer well-known. "Backbencher" is now a more familiar and widely-used term. It is also easy for the uninitiated (and sometimes even the experienced) to confuse "private Members' bills" and "private bills". We recommend that, in the Standing Orders and elsewhere where reference is made to them, the term "private Members' bills" be replaced with "backbench bills".[15]

22. The Government's response acknowledges that this is matter for the House to decide. We recommend that the following changes be made to Standing Orders:

·  In the following places, leave out "private Member's" or, as the case may be, "private Members'" and insert "backbench":

    SO No. 12 (House not to sit on certain Fridays), lines 2-3

    SO No. 14 (Arrangement of public business), lines 73-4, 84, 87-8, 95, 113, 118 and 123

    SO No. 19 (New writs), line 4

    SO No. 59 (Law Commission bills), line 1

    SO No. 84A (Public bill committees), lines 26 and 27-8

    SO No. 90 (Second reading committees), lines 13, 14 and 22

    SO No. 97 (Scottish Grand Committee (bills in relation to their principle)), lines 41 and 53

    SO No. 113 (Northern Ireland Grand Committee (bills in relation to

    their principle)), lines 4 and 35;

·  In SO No. 84A (Public bill committees), line 31, leave out "private Member in charge of a" and insert "Member in charge of a backbench".

23. For the avoidance of doubt, it may be helpful to the House for us to confirm here that we do not intend by this change for there to be any variation in the eligibility of Members to bring forward bills under this procedure. Any Member who is not a Minister of the Crown should remain able to bring forward a "backbench bill", notwithstanding that some (for example parliamentary private secretaries or Opposition frontbenchers) may not in other contexts be considered "backbenchers".[16]

MOTION FOR THE HOUSE TO SIT IN PRIVATE

24. We recommended that a motion 'That the House sit in private' no longer be permitted to be moved on a private Member's Friday.[17] The Government responded as follows:

    The Government believes that it is in the interests of clarity that the rules of the House governing the powers of Members should, as far possible, apply equally to all sitting days. The Committee may wish to consider further whether it is necessary to keep this rule or to provide for a sitting in private by another means.

25. We intend to consider further the purpose and use of motions for the House to sit in private.

Other recommendations we are not taking forward

WRITTEN MINISTERIAL STATEMENTS RELATING TO PMBS

26. We made two recommendations designed to increase the transparency of Government involvement in the private Member's bill process. The first was that the Government be required to make a written Ministerial statement on any private Member's bill which had been printed, before the day on which the Bill was first set down on the effective Order Paper for second reading.[18] The second was that the Government be required to make a written Ministerial statement on the reasons for the delay if a money or ways and means resolution, where required, had not been put to the House within three weeks of a bill being given a second reading.

27. The Government rejected both these recommendations. In respect of the proposal for a WMS to be made before second reading, the Government argued that such a statement would "serve to pre-empt the debate" and "may have the effect of discouraging attendance on a Friday and serve to devalue both the debate and the day itself". It also pointed out that the Government is not expected to publish statements in respect of other business which does not succeed in finding time on the floor of the House, such as early day motions. Concerning money and ways and means motions, the Government noted that "it is the responsibility of the Member in charge of the bill to make a request to Government to table any money or ways and means motions that may be required", and confirmed that "it is the practice of the Government to accede to such requests". It concluded that "the Committee has not produced any clear evidence to suggest that current arrangements are not working or that a new rule is needed".

28. We are disappointed that the Government has not accepted these recommendations, which would, in our view, have represented a significant advance in the transparency of proceedings on private Members' bills. The Government's response nonetheless holds out the promise of some increase in transparency, in two respects. First, it states that "those Members making serious attempts to get bills through the House would have the opportunity of obtaining a view from the Government during the process of consultation or pre-legislative scrutiny". Secondly, with regard to money and ways and means motions, it notes that "there are opportunities to hold Ministers to account for any delays in tabling such motions, for example through parliamentary questions". We look forward to seeing the Government responding to invitations to comment on bills made available for comment on the Parliamentary website; and (where necessary) demonstrating its accountability for the timing of money and ways and means resolutions through answers to written Parliamentary questions.

PUBLIC BILL COMMITTEES ON PRIVATE MEMBERS' BILLS

29. We recommended that the requirement should be abolished for a motion to be tabled by the Government before a public bill committee in respect of a private Member's bill may be nominated while proceedings in another public bill committee on a private Member's bill are still active.[19] The Government rejected this recommendation, arguing that "the requirement provides a safeguard which could be useful in certain circumstances", and stating that we had "not presented any evidence to suggest that this requirement is a problem". In the debate which we hope will now take place on this report, we will be looking for the Government to give a clear commitment that it would normally expect to table such a motion whenever it was needed.


1   Procedure Committee, Second Report of Session 2013-14, Private Members' bills, HC 188. Back

2   Procedure Committee, Private Members' bills, paras 32-50. Back

3   Procedure Committee, Private Members' bills: see in particular paras 8-19. Back

4   See Procedure Committee, Private Members' bills, paras 57 and 58, for an explanation of why this is not possible under current arrangements. Back

5   Procedure Committee, Private Members' bills, para 67 Back

6   Procedure Committee, Private Members' bills, para 61 Back

7   Procedure Committee, Private Members' bills, para 70 Back

8   Publications (2013-14) > Written evidence > Private Members' bills: Government response and revised proposals > Written evidence from the Pubic Bill Office P79 (2013-14) Back

9   Procedure Committee, Private Members' bills, para 72 Back

10   Procedure Committee, Private Members' bills, paras 73-76  Back

11   Written evidence from the Clerk of the House of Commons and Chief Executive of the House Service to the inquiry into sitting hours and the Parliamentary calendar (additional (unprinted) written evidence) (P 252, 2010-12) Back

12   Procedure Committee, Private Members' bills, para 78  Back

13   Procedure Committee, Private Members' bills, para 62 Back

14   Para 77 Back

15   Procedure Committee, Private Members' bills, para 85 Back

16   See, for example, paragraph (5) of Standing Order No. 152J (Backbench Business Committee). Back

17   Procedure Committee, Private Members' bills, para 83 Back

18   Procedure Committee, Private Members' bills, para 77 Back

19   Procedure Committee, Private Members' bills, para 84 Back


 
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Prepared 31 March 2014