Private Members' bills - Procedure Committee Contents

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:[9]

  • 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,[10] 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.[11]
  • 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.[12] 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 proposition—whether or not its promoter expects it to reach the statute book in anything approximating to the form in which it is brought forward—has value.[13] 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 change—a handout bill—which it has not been able to bring forward itself.

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 Members—whether or not acting at the Government's behest—to 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 fail—and the overwhelming majority do fail—do so because of lack of time. An opponent of a private Member's bill—whether representing the Government or operating independently of it—seldom 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 ensure—typically by tabling large numbers of amendments at report stage[14]—that there are opportunities to keep talking until time runs out.

10. The difficulty of achieving legislative change—or rather, the ease with which legislative change can be resisted—has 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,[15] but by the many submissions we received—unsolicited—from 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 change—the first two of the objects we set out above—because 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 significantly—and more insidiously—it 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.[16] 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.[17] 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.[18] 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.[19] 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 title—a general description of the purposes of the bill—and 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.[20]

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,[21] and was recognised also both by Members and by House officials.[22] 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 felt—even if we have not been instructed—that 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 dirty.[23]

Chris Bryant, a former Deputy Leader of the House, confirmed that such tactics were used in Government.[24]

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 resolution—which may only be tabled by a Minister—before 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 and—again—use 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 be it.[25]

17. As the comment above from Dr Fox suggests, one of the results of the opacity—even dishonesty—in 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.[26]

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 […] there 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?[27]

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."[28]

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 effective—not 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.[29] 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 support—or oppose—private 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 the norm.

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 legislation—a "handout" bill—instead of using the private Members' bill process for what it is intended for—debate 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 Members—generally from the Opposition—who 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 occasion.[30]

Objects of reform

20. It should not be easy to pass a bill through the private Members' route and see it become law.[31] 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 objects:

  • 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.

The proposals which we put forward below are intended to achieve those two aims.

9   Q 53, 97ff, 138, 191, 197, 328 Back

10   New Clause 3 proposed on report stage of the Children and Families Bill of Session 2013-14. Back

11   New Clause 6 proposed on report stage of the Energy Bill of Session 2013-14. Back

12   Erskine May, 24th edition (London, 2011), p 340. Back

13   Q 16, 17, 32, 101, 105, 202, 217f. Back

14   Q 61 Back

15   Q 186 Back

16   Q 68, 159 Back

17   Q 68 Back

18   Q 160 Back

19   Q 15 (Dr Fox), Q 160 (Mr Hamilton) Back

20   Q 148 (Sir Alan Haselhurst), 156 (Mr Hamilton) Back

21   Q 160, 177, 195 Back

22   Q 127,138, 206f Back

23   Q 55 Back

24   Q 153 Back

25   Q 26 Back

26   P 73, 2012-13 Back

27   Q192 Back

28   Q 203 Back

29   Q 170-172, Q 349 Back

30   Q 136 (Chris Bryant) Back

31   Q 8, Q 328 Back

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© Parliamentary copyright 2013
Prepared 2 September 2013