House of Commons - Private Members' bills

Private Members' bills - Procedure Committee Contents

4 Increasing transparency

Pre-legislative scrutiny

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 in consultation.[47] The benefits of pre-legislative scrutiny of private Members' bills were stressed by a number of those who gave evidence to us.[48]

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 bills—or the votes on leave to bring in bills—to 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 Paper

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 day—normally 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.[49] 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.[50]

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 most—and more usually only one or two—will 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 printed—that 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' Friday—that is, the slots which actually have a chance of being reached for debate—are 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.[51] 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."[52] The recommendations which follow are designed to achieve that end.

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,[53] 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 itself.

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.[54]

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.[55] 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 subsequently—which many do not—you 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.[56]

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.[57] 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 progress.

Flooding the Order Paper with bills

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.[58]

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.[59] Indeed it is possible for a single Member—the one at the front of the overnight queue—to 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.[60] 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.[61] 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.[62] 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.[63] A similar requirement—albeit at a slightly later stage in the process—is 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 the House.

DEADLINE FOR PRINTING OF BILLS

78. We recognise that it takes time to agree a position on a bill across Government.[64] 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 whole—as well as interested parties outside the House—for bills to be printed earlier. We recommend 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.

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.[65] 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.[66] In at least one recent instance, however—the Daylight Saving Bill of Session 2010-12—there 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.[67] 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 reading.

47 Antarctic Bill, Research Paper 12/63, House of Commons Library, October 2012. Back

48 Q 45-47, 334, 349, 351 Back

49 Q 227ff Back

50 Q 228 Back

51 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

52 Q 327 Back

53 Q 334 Back

54 Q 207 Back

55 Q 145. See also Q 356 Back

56 Q 356 Back

57 Q 288 Back

58 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