4 Increasing transparency |
60. The merits of pre-legislative scrutiny have been
widely acknowledged. Increasing numbers of Government bills are
being made available in draft for such scrutiny before being formally
introduced into one or other House. One 'handout' bill taken through
the private Members' route in the 2012-13 Session, the Antarctic
Bill (now Antarctic Act 2013), had earlier been published in draft
and the bill presented took account of some of the comments made
The benefits of pre-legislative scrutiny of private Members' bills
were stressed by a number of those who gave evidence to us.
61. We agree with those of our witnesses who, whilst
applauding the idea of pre-legislative scrutiny, argued that it
would not be appropriate to make private Members' bills subject
to any formal requirement for such scrutiny. That would be too
restrictive and potentially excessively demanding on a private
Member. Nevertheless we consider 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.
We recommend that there should be sufficient flexibility in
the timing of the ballot and the presentation of the ballot billsor
the votes on leave to bring in billsto enable the House
authorities to publish those bills 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 printed
before second reading. We consider that that period should be
at least four weeks. It would be for the promoter of the bill
to decide whether to subject the bill to such consultation.
Listing of bills on the Order
62. Current practice enables the titles of bills
to be left on the Order Paper throughout a session. When a bill
is presented, it is given a formal first reading with no debate
or decision, and a daynormally one of the days appointed
as those on which private Members' bills have precedence (private
Members' Fridays)is named for second reading. At this stage,
there will often be no actual bill, in the sense of a fully drafted
piece of potential legislation.
Rather, a "bill" will when it is presented and given
a "first reading" usually consists only of a "long
title", that is, a list of the intended purposes of the bill,
and its short title. A fully drafted bill does not have to be
produced until the day before it appears on the effective Order
Paper for debate.
63. The titles of all the bills set down for particular
days are listed under the date concerned in the "Future Business"
section of the Order Paper. The Order Paper for each private Members'
Friday lists all the bills set down for that day. In practice,
no more than five or six at the mostand more usually only
one or twowill be reached for debate. Consequently a Member
whose bill appears a long way down the list will often name a
later date for second reading instead. Naming a later day also
obviates the need to have the bill printedthat is to say,
replace the "long title" with a fully drafted bill.
If a bill remaining on the Order Paper for the day concerned is
not reached for debate, or if debate is not concluded on it, then
at the end of business the Member in charge of the bill may, if
it is objected to, name a further day for second reading.
64. In practice, the early slots on each private
Members' Fridaythat is, the slots which actually have a
chance of being reached for debateare filled very early
in a session by the twenty "ballot" bills and the bills
brought in by Members prepared to queue overnight in the Public
Bill Office for the first opportunity to present a bill thereafter.
As the session continues, the list is lengthened by "ten
minute rule" bills, further "presentation" bills
and any bills which pass all stages in the Lords. It is very unusual
for any of these bills to be reached for debate, and they only
make progress if they receive no opposition at all. Nevertheless
the practice of the Members in charge of such bills is to continue
to name dates for second reading through the session, meaning
that their bill stays on the Order Paper (under "Future Business")
throughout the rest of the session. The suggestions which we make
above for the programming of a small number of private Members'
bills each session would make no difference to this situation.
65. The result is that the Order Paper is being used
as an advertising opportunity instead of a genuine indication
of matters for debate and scrutiny. As a consequence expectations
may be raised of debate or even passage of a piece of legislation
when in fact it may not even exist except in the mind of its promoter.
Members will be familiar with media stories which state "On
Friday, MPs will debate such-and-such a bill" when the bill
concerned is so far down the list that there is virtually no chance
that it will be reached.
They will be even more familiar with the e-mails from constituents
urging them to be present in the House to support such bills,
even though there is next to no chance of debate and a single
voice of objection is enough to halt further progress.
66. We consider that what appears on the Order
Paper should be only actual bills which a private Member desires
that the House should debate. As Angela Eagle, the shadow
Leader of the House, said to us, "The more that our Order
Paper is understandable to someone who happens to pick one up,
not knowing what it is and being able to look down it and understand
what is going on, the better it is for this Parliament and the
procedures that we have."
The recommendations which follow are designed to achieve that
LISTING OF UNPRINTED BILLS
67. We recommend that the order for second reading
of a bill not appear on the Order Paper until the Speaker is satisfied
that the promoter of the bill has made available for online publication
an exposure draft of an actual Bill. Publication of a such
an online exposure draft would be a demonstration of a Member's
serious intent that the House be presented with an actual legislative
proposition. Current practice is that a bill may not be listed
on the effective Order Paper on a private Members' Friday unless
it has been printed. It will, however, be listed on "Future
Business" under the day which has been named for second reading.
As we have already noted, many such bills remain on future business
throughout the remainder of a session, despite there being no
chance of debate or progress. The exclusion of bills which do
not actually exist even as online exposure drafts from that list
would be a small but significant step towards the improved transparency
and comprehensibility of the system,
as well as an encouragement to Members to treat the process as
a serious legislating procedure, not merely an advertising opportunity.
We do not wish to restrict the appearance in Future business only
to bills which have been printed, since once printed a bill is
fixed in form and may not be amended except during formal proceedings
in the House. We are aware that Members may negotiate with the
Government and others on the final form of their bill until the
eleventh hour, and the opportunity to do so may be important.
We do, however, consider that the promoter should be required
to demonstrate their serious legislative intent by producing more
than simply a "long title" before the bill can appear
in the list of business to be considered.
68. This recommendation would alter only what
appears on the Order Paper under "future business".
We do not recommend any alteration to the rules for determining
priority for debate on a private Member's Friday. The Public Bill
Office would continue to maintain a list of bills set down for
particular days, and a bill set down before another which was
published as an exposure draft before it would regain its place
ahead of that bill once it was published as an exposure draft
69. We recognise a danger that the result of this
recommendation would not be the removal from the Order Paper of
bills which are unlikely ever to be debated, but rather the publication
online of exposure drafts of more bills which will never make
progress. This would not be a good use of the resources of the
Public Bill Office, which would be likely to bear the brunt of
Members' requests to draft bills. If the evidence were to show
that this was happening, we would consider the matter further.
LISTING OF BILLS ON DAYS WHEN PRIVATE
MEMBERS' BILLS DO NOT HAVE PRECEDENCE
70. We further recommend that Future Business
list private Members' bills only when they have been set down
for a day on which private Member's bills have precedence. It
would remain possible for a Member to name a day on which Government
business had precedence, or on which the House would not be sitting,
and the Public Bill Office would maintain a list of bills named
for such days, but they would not appear in the House's printed
business papers. We anticipate that this would remove any incentive
for the Member in charge of a bill to name any day other than
one on which private Members' bills had precedence and avoid the
misleading impression created by the publication of lists suggesting
that such bills would be debated on those days.
Ten minute rule bills
71. Ten minute rule bills are debated first on a
motion "That leave be given to bring in a bill to
Following a speech of no more than ten minutes in favour of the
bill, and if anyone wishes to make one, a speech of similar length
in opposition to it, the House either grants or withholds leave
to bring the bill in. If granted, the Member bringing it in lists
the supporters of the bill, brings the bill forward to present
it formally at the Table, where its title is read by the Clerk,
and names a day for second reading. At this stage, the bill presented
is almost always nothing more than a "dummy bill", containing
the names of the bill's supporters and a "long title".
As described above, the bill will then tend to stay on the Order
Paper for the remainder of the session, even though it stands
virtually no chance of further debate or progress.
The Leader of the House suggested that the step of actually presenting
a bill could be missed out:
there may be better ways of illustrating that [...],
without changing the procedure, if somebody wants to bring in
a bill, the motion could still give them leave to introduce a
bill and so to that extent they would not lose anything by it.
But it might be possible, in the absence of them publishing the
bill subsequentlywhich many do notyou have created
a distinction that people can see between what is effectively
no more than a declaratory motion and what is an intention to
promote some kind of legislation.
72. We recommend 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. Instead,
if leave is granted, the Chair will ask the question "Who
will prepare the bill?", and the Member in charge will name
the supporters of the bill, but instead of then presenting the
bill will simply resume his or her seat. It will still be possible
for a Member subsequently to present a bill if desired, but that
step will not be required as it is now.
We anticipate 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
Flooding the Order Paper with
73. For the first seven private Members' Fridays
in a session, bills are listed on the Order Paper in chronological
order of the date on which that Friday was named for second reading,
earliest first. On the final six Fridays, the same is the case,
except that the later stages of any bills which have already been
given a second reading will take precedence over them, the bills
which have made most progress taking precedence.
74. The first private Members' bills presented in
a session are the ballot bills, so the Members in charge of those
bills will take the earliest slots. Members usually choose one
of the first seven Fridays, to avoid the possibility of being
"leapfrogged" by a bill which has already been read
a second time and reported from public bill committee. The next
opportunity to take a slot for second reading goes to the first
bills presented immediately after the ballot bills. That opportunity
is taken by Members 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.
75. Since there is no limit on the number of bills
which may be presented under Standing Order No. 57 ("presentation
bills"), a single Member may present a large number of bills
on the first available date following the presentation of ballot
bills, and put those bills down for debate on all the vacant private
Members' bill days. That is considered to be unfair by those Members
who bring in bills under the ten minute rule, present bills under
Standing Order No. 57, or take up private peers' bills passed
by the Lords, later in the session.
Indeed it is possible for a single Memberthe one at the
front of the overnight queueto take up all the available
slots and crowd out other Members completely. In the unusually
long 2010-12 Session, one Member anticipated that the Government
would be expected to name more than the usual 13 Fridays for debate
of private Members' bills, and set down one or more presentation
bills on all possible Fridays so as to secure the possibility
of debate on those days for himself.
76. We recommend 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.
Declaring the Government position
on a bill
77. Our predecessor Committee, considering private
Members' bills in 1995, urged the Government to declare its position
clearly on second reading of a private Member's bill.
We agree, but consider that this is not sufficient, not least
because so few bills obtain sufficient time on the floor of the
House for a Minister to be called to speak on them.
The Leader of the House told us that "considerable effort
and resources" are devoted inside Government to coming to
a view on private Members' bills, even those which appear some
way down the list on any given Friday.
We consider that it would be to the benefit of the House and in
the interests of the transparency of the process to the outside
world for the Government to declare publicly the position it has
reached on all private Members' bills (not merely those which
are fortunate enough to obtain a second reading debate). One particular
advantage of a requirement on the Government to do so would be
that it would help to make clear what are "handout"
bills and what are genuine backbench legislative propositions.
A similar requirementalbeit at a slightly later stage in
the processis already in place for private bills, effected
by means of a memorandum deposited in the Private Bill Office.
We recommend that the Government be required to make a written
Ministerial statement on any private Member's bill which has been
printed, before the day on which the Bill is first set down on
the effective Order Paper for second reading. The WMS would
be "tagged" on the Order Paper next to the entry for
each bill, enabling those interested to see easily what the Government's
position was on any legislative proposition being brought before
DEADLINE FOR PRINTING OF BILLS
78. We recognise that it takes time to agree a position
on a bill across Government.
Currently, a bill does not have to be printed until the day before
it is listed for second reading. It would be to the benefit not
only of Government, in establishing its position on a bill, but
to the House as a wholeas well as interested parties outside
the Housefor bills to be printed earlier. We recommend
that the deadline for printing a billthat 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.
Money and ways and means resolutions
79. Any bill whose consequences would include public
expenditure can only proceed if the House has agreed a money resolution.
In accordance with the Crown's exclusive right to initiate proposals
for expenditure, a money resolution, which is an explicit recognition
of a bill's financial implications, may only be tabled by a Government
Minister. Without such a resolution, a bill given a second reading
would be able to make little or no progress in committee.
Similarly, bills creating a new tax, tax increase or similar kind
of charge can only proceed if the House has agreed a ways and
means resolution, which again may only be tabled by a Minister.
80. Government policy is not to refuse a money or
ways and means resolution to a bill which has passed second reading.
In at least one recent instance, howeverthe Daylight Saving
Bill of Session 2010-12there has been confusion over the
reason for the delay in bringing such a resolution forward, with
suggestions that the Government had deliberately delayed to hamper
progress of the bill.
We recommend 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, has not been put
to the House within three weeks of a bill being given a second
47 Antarctic Bill, Research Paper 12/63, House
of Commons Library, October 2012. Back
Q 45-47, 334, 349, 351 Back
Q 227ff Back
Q 228 Back
See, for example, "PM considers making cigarette packets
display graphic images of disease", The Guardian,
Wednesday 27 February 2013 (accessed through Error! Bookmark not defined.
on 30 April 2013), which says "On Friday MPs will consider
a private Member's bill, sponsored by the Labour MP Alex Cunningham
and the Tory peer Lord Ribeiro, that would ban smoking in cars
when children are present." The Bill appeared 15th on the
Order Paper on that day. Back
Q 327 Back
Q 334 Back
Q 207 Back
Q 145. See also Q 356 Back
Q 356 Back
Q 288 Back
SO No. 14(10). The exception to the rule that the bill which has
made most progress takes precedence is that bills which have not
been considered at all at report stage take precedence over those
whose report stages has already started. Back
Q 35 Back
Fifth Report of Session 1994-95 (HC 38), para 34. Back
Q 80 (Philip Davies), Q 108 Back
Q 351 Back
Q 210 Back
Q 349 Back
Q 223 Back
Q 345 Back
Q 94, 110 (Charlie Elphicke) Back