3 Ensuring the process is an opportunity
for private Members
Timing of debate
22. In our report on sitting hours and the Parliamentary
calendar,[32] we considered
the arguments for moving consideration of private Members' bills
away from Fridays to an earlier weekday evening. We said:
59. We have […] given careful consideration
to the proposition of moving consideration of private Members'
bills from their current Friday slot in the parliamentary week
to a Tuesday, Wednesday or Thursday evening. This option found
much support amongst Members who regard Fridays as an important
day on which to undertake constituency work, and who are reluctant
(or recognise the reluctance of colleagues) to forgo a day with
their constituents to secure the passage of a Bill which, because
of the nature of the rest of proceedings on private Members' bills,
is unlikely ever to become law.
60. There are two main arguments against this reform.
The first is that increased attendance of Members for votes on
private Members' bills would cut both ways. Whilst under current
procedures the difficulty of ensuring attendance enables a small
number of Members to block passage of a Bill, at the same time
it also shields bills—at least those for which debating
time is available—from too much attention from the whips.
Whilst it is true that no private Members' bill is likely to become
law without at least tacit support from Government, a determined
and well-supported Member can pilot a piece of legislation through
the House by the private Members' route under current procedures
where, if it were whipped business, it would be likely to be crushed
by a Government majority at an early stage. A move to an earlier
weekday evening would, we foresee, be likely to cause a substantial
change in the whole nature of private Members' business, taking
control largely out of the hands of private Members and into those
of the whips. We note that our predecessors on the Modernisation
Committee, considering this issue in 2005, reached a similar conclusion.
61. The second argument made against a change to
a weekday evening for private Members' bills is that it would
run counter to the whole thrust of recent sitting hours reforms,
which has been to reduce late-night sittings. Especially when
considered alongside the reason adduced above—that private
Members bills taken at a time when all Members could expect to
be present would thereby be likely to become whipped business—it
is apparent that the House would be creating a day of business
in the Chamber lasting some eleven hours, potentially finishing
at 10.30 pm or later. As both the House's trade unions and the
Clerk as Chief Executive of the House Service told us, such a
change would also have adverse consequences for the staffing of
the House (where many of those involved in the later sitting would
also be required early the next day, breaking legal working time
limits) and probably additional expenditure. In particular, a
move to a Tuesday or Wednesday evening would have knock-on effects
affecting earlier sittings on the following day. It is not apparent
to us that such reform would be conducive to the effective working
either of the House or of individual Members.
23. Noting that these arguments did not apply with
the same force to a move to Thursday evenings, we went on to say
that we did not wish to rule out a move away from Fridays, but
that further work would be needed on the procedural consequences
before a firm proposition could be brought to the House. We proposed
therefore to test the willingness of the House in principle to
make the move by putting forward a motion for debate. Our intention
was to bring such a motion forward in September 2012, subsequent
to the debate on sitting hours which took place in July; but it
was pre-empted by a motion tabled by Dame Joan Ruddock at the
time of the sitting hours debate which, despite the then Chair's
request that it not be moved so that a separate debate could be
held later,[33] was moved
and defeated.[34]
24. We have considered the question of the timing
of consideration of private Members' bills again in the light
of the decision of the House on Dame Joan's motion and of our
further consideration of private Member's bill procedures. Dame
Joan's motion referred only to Tuesday evenings, ignoring both
Wednesday evenings and the possibility which we canvassed in our
report of considering private Members' bills on a Thursday evening,
and was brought forward before we had had the opportunity to undertake
the detailed consideration of the procedural consequences which
was necessary for a fully informed decision to be made. Nevertheless
the vote on that motion failed to demonstrate a clear desire on
the part of the House to move away from Fridays for consideration
of private Members' bills. Furthermore, we consider that the arguments
which we set out against such a move in our report on sitting
hours continue to have force.[35]
As we set out below, we consider that there may be merit in holding
some whipped votes on private Members' bills at a time when the
whole House is likely to be present. We do not, however, believe
that the interests either of Members or of the private Member's
bill process itself would be well served by moving it in its entirety
to a Tuesday, Wednesday or even Thursday evening. Instead, we
set out below alternative means of solving the problems posed
by the difficulty of securing the attendance of Members on Fridays,
whilst leaving the detailed debate and scrutiny of private Members'
bills on those days. We recommend that thirteen Fridays a year
continue to be appointed for consideration of private Members'
bills.
Choice of bills to be debated
in private Members' time
25. The current, and longstanding, means of determining
which private Members' bills have precedence is the ballot. The
ballot has much to commend it: it is fair, in that every Member
has an equal chance of success; it is not susceptible to manipulation
by the party whips; and it is well-established and well-understood.[36]
26. We heard an argument that the deficiency of the
ballot is that it cannot be sure to select the bills which are
most deserving of being given the chance of debate and decision.
It was suggested in evidence that, as an alternative to the ballot,
selection of the bills to be brought forward in private Members'
time might be by the collection of signatures in support of them.[37]
27. Under such a procedure, the private Member's
bill process would start with backbench Members attracting support
from fellow Members for the legislative proposition which they
wished to bring before the House. They would do so by collecting
signatories, or supporters, for a bill which they intended to
introduce. Supporters would be backbench Members. No Member would
be permitted to be a supporter of more than one bill. To minimise
the potential for manipulation by the party whips, and to avoid
the use of the procedure for overtly partisan measures, at least
ten of a bill's supporters would need to be drawn from each side
of the House.[38] Instead
of the ballot, precedence for the introduction of private Members'
bills would be accorded to the bills which had attracted the greatest
number of signatures.
28. The process of attracting supporters for a bill
would be likely to begin well before the start of a new session.
Indeed the bills for which Members would attempt to attract supporters
could be expected often to be ones which had already been widely
discussed inside and outside the House. A Member who had put in
the necessary work with outside interest groups, with the Government,
and with the public, and could show that their bill was necessary,
had been effectively drafted and took account of the views of
interested parties and the Government, would be in a much better
position to demonstrate to their colleagues that it was worthy
of their support and of being piloted through the private Members'
bill procedure.[39]
29. This procedure could not be expected to work
in the first session of a Parliament, following a general election,
when there would not have been the opportunity for Members to
gather support for their bill in advance of the new session. In
the first session of a new Parliament, the existing ballot system
for private Members' bills would operate.
30. The disadvantage of this alternative system is
that even the requirement for cross-party support for a bill does
not completely eliminate the risk that it will be captured by
the whips. The random nature of the ballot gives every Member
an equal chance of the opportunity to bring forward a bill and,
with the front benches not expected to enter, leaves the choice
of bill in the hands of those individual private Members who have
been successful.
31. We recommend that the House be invited to
decide between retention of the ballot for the selection of bills
to be brought forward for debate in private Members' time, and
the introduction of a procedure for the collection of supporters
to determine precedence for debate in that time.
Timetabling of private Members'
bills
32. Timetabling—or programming—is now
an established feature of the House's consideration of legislation.
Although its operation is far from perfect,[40]
the principle of programming is widely (if not universally) accepted
across the House. Implemented well—in particular, with appropriate
consultation across the House on the timetable for a bill—it
enables appropriate debate and discussion of a bill whilst preventing
the delay of a bill's passage by procedural tactics or filibustering.
33. It is this outcome which we wish to achieve in
the private Member's bill process. Particularly at report stage,
though to a lesser degree also at second reading, passage of a
bill can be frustrated not by the will of the House expressed
through a division, but by a small number of Members—sometimes
a single Member—simply talking for long enough that there
is no opportunity for the House to take a decision. There are
a number of adverse consequences. The ability of a small group
of Members to defeat a bill discourages Members from attending
on a Friday to secure the passage even of a well-supported bill.
Filibustering—that is, talking at length to ensure that
a bill runs out of time, which can be done without formally breaching
the rules of the House—skews debate and prevents proper
scrutiny and discussion by discouraging supporters of a bill from
contributing to debate.[41]
And the inability to bring a bill to a decision brings the House
and its procedures into disrepute in the eyes of the public.[42]
34. We have accordingly considered means of enabling
appropriate timetabling of private Members' bills. We have identified
two possible solutions, which we invite the House to decide between.
TIMETABLING—OPTION 1
35. Under the first option, Friday sittings would
be arranged so as to allow a guaranteed debate and vote on two
bills on each of the first seven ("second reading")
private Members' Fridays. Each bill would be timetabled for two
and three quarter hours, after which the question on second reading
(preceded by that on any reasoned amendment, if selected) would
be put.
36. Two and three quarter hours is likely to be entirely
adequate for the second reading debate of a private Member's bill.
By convention, second reading of a Government bill takes one day.
A full day's debate would be six to six and a half hours; but
once statements, urgent questions and any other preliminary business
have been disposed of, is usually significantly less than that.
Furthermore, private Members' bills, which may not have as their
main purpose the authorisation of public expenditure, or the creation
of a new tax, a tax increase or similar kind of charge, by their
nature tend to be shorter and address less weighty and controversial
matters than Government bills.
37. This proposal would require a modest rearrangement
of Friday sittings. Currently, the House sits at 9.30 am on a
Friday, with the moment of interruption at 2.30 pm and a finish
at around 3.00 pm after the half-hour adjournment debate. If the
House were to sit at 9.00 am, and the final half-hour adjournment
debate were to be abolished on a Friday, it would be possible
to hold two debates of two-and-three-quarter-hours each, with
one or (less commonly) two votes after each, and finish at around
the same time as at present. If a Ministerial statement were made
at 11.00 am on a Friday—which is unusual[43]—then
the time taken for the statement would be added to the end of
the debate, and there would be a later finish time. If debate
on either of the first two bills were to be concluded in less
than two and three quarter hours, debate could take place on a
third (and possibly further) bills. These bills too would be subject
to a maximum of two and three quarter hours' debate, after which
the question on second reading would be put, but if debate on
such a bill were still continuing at 3.00 pm it would be interrupted
and resumed at a later sitting, if the bill were reached again.
38. A bill which passed its second reading would
then be committed, as usual.
39. On its return to the floor of the House for consideration
on one of the six "later stages" Fridays, the promoter
of the bill would be able to move, immediately before consideration
of the bill, a programme motion providing for debate to be concluded
after a set period of time. The motion could also provide for
internal "knives" bringing debate on particular parts
of the bill to a conclusion. The programme motion would be debateable
for up to 45 minutes, and amendable. Before it could be moved,
it would have to be signed by at least 20 Members from each side
of the House; and it would need to provide for a reasonable time
for debate which commanded the support of the House in a vote,
if necessary.
40. The ability to move a programme motion would
apply to any bill reaching the floor of the House for consideration,
and the programme motion could set any amount of time for debate
the promoter considered would command the support of the House.
Thus if debate on the first bill on any given Friday concluded,
a programme motion could be moved in respect of the next bill
on the Order Paper, and so on. If debate on any such programmed
bill could not be concluded before the moment of interruption
on any given Friday, the bill could be set down for debate on
a later Friday and, if reached, brought to a conclusion after
the remaining programmed time had elapsed.
TIMETABLING—OPTION 2
41. The second option would apply programming to
only a limited number of bills in each session. We have considered
two possible means of selecting the bills to which programming
would apply.
"First come, first served"
42. One means of selecting which bills would be subject
to programming would be to apply it only to the first bill set
down for debate on any particular Friday. At second reading, the
question on that bill would be put automatically, without the
need for closure, after a maximum of a full Friday's debate (debate
might, of course, conclude earlier than that). At report stage,
the promoter of the bill appearing first on the Order Paper on
a given Friday would have the option to table a programme motion
which could provide for a maximum of not less than a full day's
debate on the bill (disregarding, in this case, any time taken
by a Ministerial statement). The programme motion would be debateable
for up to 45 minutes, and amendable. Before it could be moved,
it would have to be signed by at least 20 Members from each side
of the House; and it would have to be approved by the whole House,
on a division if necessary.
Initial consideration and vote in 'ten minute
rule' slot
43. Alternatively, we have considered a procedure
whereby the whole House could consider and vote on whether a private
Member's bill should be programmed. Towards the end of the session
prior to that in which the bills were to be presented, a number
of proposed bills would be subject to a short debate and vote,
one at a time, on a motion for leave to bring it in, taken at
the time currently used for ten minute rule bills. The Member
promoting the bill would make a short speech, followed by the
opportunity for a single short speech opposing it. The proposed
bill and a programme motion which would apply to it, providing
for a timetabled second reading debate, a maximum number of sittings
in committee and a timetabled report stage, would then be subject
to a single vote in which all Members could participate.
44. Taking place in the ten minute rule slot, such
a vote (if necessary—the bill and programme motion could
pass without a vote) would enable the whole House to endorse (or
not) the proposed bill and the timetable for it.[44]
Making both the bill and the timetable for it subject to a single
vote would encourage the Member in charge to put forward not only
a bill which is likely to command support across the House, but
also a reasonable timetable for its debate and scrutiny. There
would be certain minimum requirements for the timetable. The minimum
time for second reading should be three hours' debate, and for
report stage one day. A supplementary programme motion moved on
the day of report stage could provide for internal knives taking
account of the selection and grouping of amendments. If necessary,
a further supplementary programme motion could be moved and taken
forthwith on consideration of Lords Amendments, providing for
a minimum of one hour's debate.
45. Following the vote on a motion to bring the bill
in, further proceedings on these programmed bills would then take
place on private Members' Fridays and in public bill committees
as at present. Each bill would need to pass second reading, on
which there could be a vote (at the end of the time for debate
set by the programme motion), and would then go into committee.
Once reported from committee, the bill would have a report stage
on the floor of the House which would, again, be brought to a
conclusion in accordance with the programme motion.
46. These votes, taken at the rate of one per day
in the place of ten minute rule motions, would continue to take
place until either the desired number of bills to be programmed
had been agreed, or no further eligible bills were brought forward.
We suggest that a maximum of five programmed bills should be allowed
for. That would leave at least two full sitting Fridays for the
debate of other private Members' bills at second reading, and
at least one later-stages Friday for the consideration of any
Lords Amendments to programmed private Members' bills not disposed
of earlier.
47. The advantage of such a procedure would be that
the Government, using its majority in the House, would have the
chance to defeat a bill to which it is opposed in principle at
an early stage, preventing the House from wasting time debating
it. The endorsement of the whole House at this stage, on the other
hand, would provide a powerful legitimisation of the programming
of the bill, demonstrating that this was a bill which should be
brought to a decision and not killed off by procedural tactics
or filibustering by a small number of opponents.
48. There remains the question of how the bills to
be subject to these votes would themselves be selected. The procedure
would work particularly well in conjunction with our suggestion
of the advance collection of signatures in support of bills. Bills
would be put to the House one by one in order of the number of
signatures they had collected, continuing down the list until
either the desired number of programmed bills had been given leave
to be brought in, or no more eligible bills remained. Alternatively,
if the ballot were to be relied upon, Members successful in the
ballot who wished their bill to be subject to programming could,
again, put their bills, one by one, to the House for leave to
bring them in. An adverse vote at this stage would amount to refusal
of leave to bring the bill in, meaning that the bill could not
be taken any further; so Members not wishing to risk an adverse
vote could opt out and instead simply put their bill down for
debate without programming.
49. Under this option, other bills could be debated
on private Members' Fridays without being timetabled, if proceedings
on timetabled bills concluded before the moment of interruption.
Those bills—which would be those coming lower in the ballot,
or which had not been brought forward through the initial vote
at the time of ten minute rule motions—would continue to
be susceptible to being "talked out" if sufficient time
had not been available for debate.
50. We recommend that the House be invited to
decide whether it should be possible to programme private Members'
bills. If it decides in favour of the principle of programming
private Members' bills, we recommend that it be offered the choice
between the two means of programming bills which we set out here.
Third reading
51. As we have already discussed, one of the problems
with the private Members' bill procedure is that their position
in the Parliamentary week discourages Members from attending for
debates and votes. Theoretically, a private Member's bill could
pass on a vote of 18 Members in favour to 17 against. Whilst,
as we said at the start of this chapter, we do not consider that
it would be in the interests either of Members or of the private
Member's bill process itself for the process to be moved in its
entirety to a Tuesday, Wednesday or Thursday evening, there is
an argument for enabling the House to make a final decision on
a bill at a time when all Members are able to be present. That
could be done by providing for the debate and vote on third reading
of a private Member's bill to take place not on a Friday, but
earlier in the week.
52. We have, once again, two possible means of effecting
such a proposal. The first is to provide for the third reading
vote to take place on a Tuesday or Wednesday at the time which
would normally be devoted to a ten minute rule motion. In place
of the usual third reading debate, the promoter of the bill would
speak for a maximum of ten minutes, followed as necessary by a
short speech from any opponent of the bill and—again, as
necessary—a vote. The alternative would be to provide for
a longer debate—say, an hour, which is the maximum time
normally provided for third reading of a programmed Government
bill—which could take place following conclusion of the
main business on any convenient day.
53. We recommend that the House be invited to
decide whether third reading of a private Member's bill should
be taken on a day other than a Friday; and if so, which of the
two alternative means we propose of taking such a vote it favours.
Enabling the House to come to
a decision on our proposals
54. We have proposed that the House be invited to
come to a decision on:
- the means of choosing which
bills may be brought forward for debate in private Members' time;
- whether private Members' bills should be able
to be programmed, and if so by which of the means we have proposed;
- whether third reading of a private Member's bill
should be taken on a day other than a Friday; and if so, which
of the two alternative means we propose of taking such a vote
it favours.
The House may, of course, decide that it prefers
to make no change to the existing procedures, and vote against
all the proposals we have put forward.
55. A decision, or decisions, in favour of change
would necessitate a two-stage process. After initial debate on
our report, we invite the House to come to a decision in principle
on how it wishes to proceed in respect of each of the proposals
we have brought forward. We would then take the result of those
decisions and, as appropriate, prepare the standing order changes
necessary to put them into effect. Those changes would then need
to return to the House for final decision.
56. The motions to be put to the House in the first
instance, then, would be as follows:
PRIVATE MEMBERS' BILLS (MEANS OF CHOOSING)
That this House favours the retention of the ballot
as the means of choosing which bills are given precedence for
debate in private Members' time.
To which an amendment may be moved to leave out "the
retention of the ballot" and insert "a procedure for
the collection of supporters".
PRIVATE MEMBERS' BILLS (PROGRAMMING)
That this House considers that it should be possible
to programme private Members' bills.
PRIVATE MEMBERS' BILLS (PROGRAMMING) (NO. 2)
That this House considers that programming should
be available to any private Member's bill, in accordance with
the option set out in paragraphs 35 to 40 of the Procedure Committee's
report.
PRIVATE MEMBERS' BILLS (PROGRAMMING) (NO. 3)
That this House considers that programming should
be available to only a limited number of private Members' bills
in a Session, and favours the 'first come, first served' means
of programming private Members' bills set out in paragraph 42
of the Procedure Committee's report.
To which an amendment may be moved to leave out from
"favours" to the end of the question and insert "the
means of programming by initial consideration and vote in a ten
minute rule slot set out in paragraphs 43 to 49 of the Procedure
Committee's report."
Motions No. 2 and No. 3 would fall if the first
motion on programming were negatived, and No. 3 would fall if
No. 2 were agreed to.
PRIVATE MEMBERS' BILLS (THIRD READING)
That this House considers that the question on third
reading of a private Member's bill should be put after a single
short speech in favour, followed if necessary by one in opposition,
taken at the time of a ten minute rule slot on a Tuesday or Wednesday.
To which an amendment may be moved to leave out from
"after" to the end of the question and insert "an
hour's debate taking place following conclusion of the main business
on a day other than a Friday."
Members wishing to leave third reading on a Friday
would vote against both the amendment and the main motion.
Speech limits
57. We have considered the use of the Chair's power
to set limits on speeches (under Standing Order No. 47) as a means
of dealing with the problem of filibustering on private Members'
bills. The Chair does not currently use these powers in respect
of speeches on private Members' bills, because those debates are
open-ended and there is no fixed amount of time to divide between
those wishing to speak. The result, as we have seen, is a freedom
for Members to speak at excessive length in an attempt to talk
a bill out, and the perverse consequence that supporters of a
bill feel constrained from expressing their support in the House.
58. In so far as debate remains non-time-limited,
we do not consider that a change in the Chair's approach would
be appropriate. That is because a decision to impose time limits
in such circumstances would risk engaging the Chair not just in
ensuring compliance with the rules of the House, but in securing
the passage of legislation, which is not properly the Chair's
role.[45]
59. In this context, the introduction of programming
for a private Members' bills at second reading, report stage and
(as necessary) consideration of Lords Amendments would have two
particular advantages. First, it would of course make filibustering
tactics less effective, since where a programme motion was in
place the House would be required to reach a decision. Secondly,
programming would allot a fixed time for debate, and therefore
make it appropriate for the Chair to impose speech limits where
necessary to enable all those who had indicated a desire to speak
to do so.[46] Acceptance
of our proposals for the programming of private Members' bills
would enable the Chair to invoke the powers granted by Standing
Order No. 47 to impose speech limits during debate on such bills.
32 HC (2012-13) 330 Back
33
HC Deb, 11 July 2012, col 339. Back
34
Votes and Proceedings, 11 July 2012, p 239. Back
35
Q 319 Back
36
Q 20 (Dr Fox) Back
37
Q 78, 140, 144 Back
38
Q 352 Back
39
Q 20 Back
40
Procedure Committee, Sitting hours and the Parliamentary calendar,
paras 67-73. Back
41
Q 68, 70 Back
42
Q 186 Back
43
The most recent examples of Ministerial statements made on Fridays
are 12 June 2009, 18 March 2011, 22 March 2012, 2 November 2012
and 18 January 2013. Back
44
Q 19, 20, 55 (Rebecca Harris) Back
45
Q 263 Back
46
Q 82 (Rebecca Harris) Back
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