2 Purposes and problems |
6. The comments of witnesses, together with our own
experience of the private Member's bill process, suggest that
there are broadly four main reasons why a private Member's bill
may be brought forward:
- As a chance simply to raise
an issue or to "fly a kite".
Many ten minute rule bills fall into this category. Often what
is desired may be a policy change rather than a legislative one,
but the ten-minute rule slot in the Chamber gives an opportunity
for such change to be discussed in "prime time". Recent
examples include the Relationship, Drug and Alcohol Education
(Curriculum) Bill, brought in by Diana Johnson on a ten minute
rule motion on 17 October 2012, and Peter Luff's Science, Technology
and Engineering (Careers Information in Schools) Bill, also brought
in as a ten minute rule bill on 13 February 2013.
- To start a campaign for a change in the law.
Sometimes the supporters of a change in the law recognise that
the matter is one which needs to be dealt with by Government,
and do not intend to attempt to take a bill all the way through
the private Member's bill procedure. But the PMB procedures give
them an opportunity to bring forward a proposal in legislative
form and to kick off a debate which they hope will help to persuade
the Government itself to take legislative action. Examples include
the Children (Performances) Regulations 1968 (Amendment) Bill,
brought in on a ten minute rule motion by Tim Loughton on 9 January
2013, the substance of which was later brought forward as an amendment
to the Children and Families Bill,
and Mike Weir's Winter Fuel Allowance Payments (Off Gas Grid Claimants)
Bill, a ballot bill in 2012-13 which was later brought forward
as an amendment to the Energy Bill.
- To make small and uncontroversial changes
to the law supported by the Government. As
last Session, a number of bills usually pass through the private
Member's bill procedures which have been drafted by the Government
but for which it has been unable to find space in its own legislative
programme. Such bills are generally known as "handout"
bills. The opportunities for effective opposition to private Members
bills are such that only non-partisan and relatively minor changes
tend to be brought forward in this way. Many Members choose to
take up such bills, instead of bringing forward an idea which
has not come directly from Government, because of the far greater
chance of being able to take the bill through all its stages and
see it become law.
- As a genuine attempt at legislative change
initiated by a backbench Member of Parliament. The
obstacles to successful passage into law of a bill which has not
originated in Government are formidable. Nevertheless each session
a small number of Members bring forward proposals which they genuinely
wish to see become law, and which they try to take through the
private Member's bill procedures.
7. All these purposes have a place in private Member's
bill procedures. It has been suggested that the first two in particular
have been effectively replaced by the opportunities which now
exist for backbench debates. The rule under which issues requiring
a legislative solution may not be raised on the adjournment (in
Westminster Hall or in the final half-hour adjournment debate
in the Chamber) has been relaxed, enabling such issues to be widely
aired in backbench-initiated debates with Ministers.
More recently, the creation of the Backbench Business Committee
has enabled backbenchers to bring substantive motions forward
for debate and decision. These are welcome developments, but they
are not in our view adequate replacements for the ability of backbenchers
to bring forward bills. We consider that the focus on an actual
legislative propositionwhether or not its promoter expects
it to reach the statute book in anything approximating to the
form in which it is brought forwardhas value.
The private Member's bill procedure should continue to enable
this "kite-flying" or campaigning to take place under
its auspices. We also accept that the Government may suggest to
Members that they might like to pilot through the private Member's
bill procedures a small and worthwhile legislative changea
handout billwhich it has not been able to bring forward
8. The picture emerging from the evidence we took,
however, is one of a significant imbalance amongst these various
purposes. Private Member's bill procedures serve well for the
first three objectives. The 60 or 70 "ten minute rule"
slots each year enable Members to raise awareness of issues of
importance, to make interesting or innovative suggestions for
legislative or policy change, or to initiate proposals which may
ultimately persuade Government to put through changes in the law.
And we accept that on occasions worthwhile changes have been made
to the law by "handout" bills. But what has been largely
missing from the private Member's bill procedures have been genuinely
backbench propositions, not initiated by Government, being brought
through all their stages and becoming law.
9. The fundamental problem with the private Member's
bill procedures as they currently operate is that it is too easy
for a small number of Memberswhether or not acting at the
Government's behestto prevent a bill from progressing without
giving the House as a whole the chance to come to a decision on
it. Few private Member's bills are defeated by a deliberate and
open decision of the House. The overwhelming majority that failand
the overwhelming majority do faildo so because of lack
of time. An opponent of a private Member's billwhether
representing the Government or operating independently of itseldom
has to assemble significant support for his or her point of view
in the way that the promoter of a bill has to do. All they have
to do is ensuretypically by tabling large numbers of amendments
at report stagethat
there are opportunities to keep talking until time runs out.
10. The difficulty of achieving legislative changeor
rather, the ease with which legislative change can be resistedhas
a number of consequences. The most obvious is the effect on the
opposed bills themselves. We do not consider that the mischief
is necessarily that the bills fail; they may be bills which for
a variety of reasons do not deserve to become law. Rather, it
is that the House never has the opportunity to come to a decision
on them. That is frustrating to the promoter of the bill, naturally,
but it is also the source of much dissatisfaction and even anger
on the part of those outside the House who cannot understand how
procedural tactics can be used to defeat what appears to be the
will of the House. The strength of feeling on this issue was amply
demonstrated not only by the evidence we took from the Chief Executive
of the Royal Society for the Prevention of Accidents concerning
the Daylight Saving Bill of 2010-12,
but by the many submissions we receivedunsolicitedfrom
members of the public about the fate of the same Bill.
11. The ease with which a bill can be defeated has
further consequences for the effectiveness of the private Member's
bill procedure as an opportunity for backbenchers to promote legislative
change. It undermines the effectiveness of both kite-flying and
campaigns for legislative changethe first two of the objects
we set out abovebecause the Government knows that it will
never have to engage seriously with the propositions which are
being put forward: they can simply be kicked into the long grass.
And more significantlyand more insidiouslyit tilts
the balance away from backbenchers and towards the Government
in the choice of bill brought forward in the first place. If the
choice offered to a Member successful in the ballot is between
on the one hand a bill of whose benefits he or she is persuaded,
but of which the Government is not yet persuaded and which it
will consequently kill off, and on the other a Government handout
bill which may mean little to the Member concerned but which they
know they can pilot through to the statute book, it is hardly
surprising if the Member opts for the bill which they will later
be able to point to as an Act of Parliament and say "I achieved
that." Add to that the pressure which the Government whips
are likely to place on those Members, especially on their own
side, to further its own legislative programme, and it is clear
why 90% of the private Members' bills successful in the last Session
were Government handout bills.
12. Furthermore, the ease with which a private Member's
bill can be defeated disenfranchises other Members who may wish
to support a bill. Members told us that although they or their
colleagues may want to support a private Member's bill, they would
not give up valuable constituency time on a Friday to do so because
of the slightness of the chances of a bill progressing.
It is not merely the fact that private Members' bills are considered
on a Friday which deters Members from being present to support
them. Where a bill is perceived to have a chance of passing, they
can and will do so. Rather, it is the fact that in the overwhelming
majority of cases, their time in supporting a bill attracting
even a minimum level of opposition is highly likely to be wasted.
At report stage, the lack of any means to timetable a bill means
that those Members who have made time to be present to support
a bill will often have to stand by mute, unable to counter the
arguments put forward by those opposing the bill, because to do
so would use up time and contribute to its loss.
13. The private Members' bill process is also misleading
to the public and to the interest groups who seek to use it to
advance legislative change. We have already noted the dissatisfaction,
even anger, which may result from the use of procedural tactics
to defeat a bill. More widespread are the unrealistic expectations
which the process fosters about the chances of success of a private
Member's bill. Members
will be very familiar with press and broadcast media stories which
refer to a bill "due to be debated on such-and-such a date"
when in practice there is almost no chance that it will be reached.
Indeed some Members may be complicit in the misleading of the
public which such statements represent, allowing as it does the
impression of action and progress where none in fact exists.
Far too many items are allowed to stand on the Order Paper which
purport to be bills, but which have no chance even of being debated,
let alone of becoming law. Indeed many of those supposed bills
do not even exist as a bill and are nothing more than a long titlea
general description of the purposes of the billand an intention
in the mind of its promoter. This issue manifests itself in Members'
working lives not least as a deluge of e-mails from constituents
urging them to be present on a Friday to support a bill which
has no chance of progress.
14. Confusion and unrealistic expectations also result
from the lack of transparency in the private Members' bill process.
That was amply demonstrated in the evidence we took from the representatives
of two organisations which had tried to engage with the private
Members' bill process,
and was recognised also both by Members and by House officials.
The role of the Government in the process is particularly unclear.
It is entirely legitimate for the Government to oppose a private
Members' bill and to use its majority in the House to prevent
it from passing. But, as we have seen, instead other means are
too often found of delaying a bill and defeating it through lack
of time instead of through a vote in the House. Government Ministers
themselves may "talk out" a bill, preventing progress:
that is clear enough. But as backbencher Philip Davies told us,
it will often be playing a role behind the scenes as well:
] the only time I ever find popularity with
the Whips Office is on a Friday, when we find a common purpose.
If they want a Bill talked out and think that I might share that
particular view, they are happy for me to do that. I do not want
to speak for Chris [Chope, giving evidence alongside],
but I am sure that we have both had occasion when, in effect,
we have felteven if we have not been instructedthat
the Government were happy to let us talk the Bill out. We would
then get all the brickbats that go with that, but they were happy
that we were doing it because they did not want to get their hands
Chris Bryant, a former Deputy Leader of the House,
confirmed that such tactics were used in Government.
15. Other means are also available to the Government
of delaying or frustrating progress on a private Members' bill
without defeating it in a vote. Standing Order No. 84(5) prevents
more than one committee on a private Member's bill from sitting
at any one time unless sanctioned by the Government. And the requirement
for a money resolutionwhich may only be tabled by a Ministerbefore
any bill which involves the expenditure of any public money can
be proceeded with in committee affords the Government another
opportunity to hold up a bill andagainuse against
it the shadowy weapon of time instead of the clear method of defeat
in division in the House.
16. Dr Ruth Fox of the Hansard Society told us:
I think these [procedures] are opaque. If you are
an interested member of the general public who has expressed an
interest in a particular campaign issue or a particular campaign
group that is encouraging interest in a Bill, I think it is quite
difficult for that member of the public who is following it and
taking an interest to understand why it is that their Bill either
does not get debated at all if it is on the Order Paper, or, as
with something like the Live Music Bill earlier this year, you
have hours and hours of debate on the Daylight Saving Bill and
then the Live Music Bill goes through without objections, and
that has not been really debated at all in the Chamber at any
stage. I think it is just very difficult for them to understand.
] I would much rather a situation where whatever process
you have in place the Government has to be open in either its
support or its objections. If a Bill is defeated, it is defeated.
If it cannot command the majority support of the House, then so
17. As the comment above from Dr Fox suggests, one
of the results of the opacityeven dishonestyin the
private Member's bill procedure, and of the falsely raised expectations,
is a missed opportunity for engagement with the public and civil
society. Joan Walley told us:
Private members bills are an increasingly rare example
of widespread civic participation in our political process. My
experience is that many people contact their MP in support of
a private Member's bill but they often have their hopes dashed
when the bill is either filibustered or not debated at all. This
leads to a sense of disillusionment amongst the public, is damaging
to the political process and risks a growing disconnect between
politicians and the public.
Dr Rowena Daw of the Royal College of Psychiatrists
explained the opportunities which could arise from a process which
enables a bill to originate from somewhere other than the Executive:
I am coming at it from the angle of a large number
of stakeholder organisations outside Parliament, who get together
and who come up with the essence of a Bill. [
] Some issues
] are seen to be of a general good, and [
is a lot of work done and a lot of negotiating, which would include
with the civil service. [
] You have a genuine situation
where you have a much wider section of society drawing something
up and it seemed to be a good thing. It is bipartisan, perhaps.
It has brought together a lot of sections of society. What is
wrong with that then being the basis of a set of principles that
are then drawn up for Parliament?
As Tom Mullarkey of RoSPA suggested, "If you
can reform this situation, so that it becomes transparent and
it actually works and it empowers Parliament and more of us people
to engage in politics, then it will have been a great success."
18. Members themselves bear a great deal of responsibility
for this situation. Too few understand how to get a bill through
the private Members' route and the amount of work which is necessary
to be effectivenot only inside the formal legislative procedures
in the House, but, crucially, outside the House, working with
experts and interest groups to negotiate with the Government and
produce a bill which is acceptable to the Government.
Too many have been willing to take the option of furthering the
Government's legislative programme with a handout bill instead
of using the procedures for debate and scrutiny of backbench legislative
propositions. And although it is hard to be critical of Members
for wishing to devote themselves to constituency work on a Friday,
it is the collective unwillingness of the House as a whole to
attend on Friday and supportor opposeprivate Members'
bills which enables a small group of "Friday enthusiasts",
together with the Government whips, to exercise the degree of
control over the private Members' bill process which has become
19. But this is a vicious circle. The likelihood
of a bill being killed off by a very small number of opponents,
with the Government's connivance, means that Members who support
a private Member's bill are reluctant to put the necessary time
and energy into promoting it, including by attending the House
on a Friday when they are often expected to be working in their
constituencies. Furthermore, it means that Members successful
in the ballot are easily persuaded to take through a small and
uncontroversial piece of Government legislationa "handout"
billinstead of using the private Members' bill process
for what it is intended fordebate of legislative propositions
from private Members. The result is that the so-called "private
Members'" procedure has become primarily a means of passing
Government bills which the Government has not managed to find
time for in its own programme, combined with an opportunity for
debate on matters of their own choosing for a small number of
Members who understand how to play the system. True, one or two
Membersgenerally from the Oppositionwho are more
resistant to the blandishments of the Government Whips and who
are fortunate enough to come high up in the ballot may get a day's
debate on their bill. And success may be achieved with a bill
of their own choosing by those Members who are prepared to put
in the preparatory groundwork, secure agreement across the House
and work with the Government to overcome its default opposition
to any idea "not invented here"if they
manage to be successful in the ballot (or persuade a Member who
is successful in the ballot to take up their bill instead of one
being pressed on them by the Government Whips). But for the most
part, the private Member's bill process fails to live up to its
potential as the mark of an independent legislature. Instead,
as Chris Bryant put it,
] it is a transvestite travesty on a Friday:
it is pretending to be something that it is not. It is pretending
to be a legislative process, and it is not; it is a grandstanding
Objects of reform
20. It should not be easy to pass a bill through
the private Members' route and see it become law.
There must be appropriate time for debate and scrutiny of the
bill, and opportunity for those opposed to it to have that opposition
heard and, as necessary, expressed in a vote or votes in the House.
It is not our intention to facilitate the passage of bills into
law through the private Members' route.
21. Rather, we consider that reform should have two
- to increase the transparency
of the process so that interested partiesboth inside and
outside the Houseunderstand 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.
The proposals which we put forward below are intended
to achieve those two aims.
9 Q 53, 97ff, 138, 191, 197, 328 Back
New Clause 3 proposed on report stage of the Children and Families
Bill of Session 2013-14. Back
New Clause 6 proposed on report stage of the Energy Bill of Session
Erskine May, 24th edition (London, 2011), p 340. Back
Q 16, 17, 32, 101, 105, 202, 217f. Back
Q 61 Back
Q 186 Back
Q 68, 159 Back
Q 68 Back
Q 160 Back
Q 15 (Dr Fox), Q 160 (Mr Hamilton) Back
Q 148 (Sir Alan Haselhurst), 156 (Mr Hamilton) Back
Q 160, 177, 195 Back
Q 127,138, 206f Back
Q 55 Back
Q 153 Back
Q 26 Back
P 73, 2012-13 Back
Q 203 Back
Q 170-172, Q 349 Back
Q 136 (Chris Bryant) Back
Q 8, Q 328 Back