House of Commons - Motions "That the House sit in private"

Motions "That the House sit in private" - Procedure Committee Contents

Motions "That the House sit in private"

Introduction

1. In our report on private Members' bills, we recommended that the motion "That the House sit in private" no longer be permitted to be moved on a private Members' Friday.[1] The Government responded to that recommendation to the effect that it believed that "it is in the interests of clarity that the rules of the House governing the powers of Members should, as far possible, apply equally to all sitting days", and suggested that we might wish to consider further whether it was necessary to keep this rule or to provide for a sitting in private by another means.[2]

2. This report is the result of our subsequent consideration of the matter. We are grateful to the then Leader of the House and to the Shadow Leader, both of whom responded to invitations from us to comment on our emerging thinking. We have also received assistance in our deliberations from the then Clerk Assistant, to whom we offer our thanks.

History

3. The main use of motions to sit in private has been to test the presence of a quorum of 40 Members. In earlier times, the House could be "counted" to see whether 40 Members were present; but the ability to force a "count" was gradually restricted over the years until it was eventually abolished altogether in 1971 (following a recommendation of the then Select Committee on Procedure, also made in the context of consideration of procedure on private Members' bills[3]). Whilst the ability to "count" the House was abolished, the provision remained that at least 40 Members had to vote in order for the result of a division to stand: if not, the business under consideration "stood over" to the next sitting and the next business was taken, a provision which remains in place today (Standing Order No. 41).

4. What remained (along with the requirement that a vote on the business under consideration needed to involve the participation of at least 40 Members) was the possibility of forcing a division on the motion "That strangers do withdraw". This motion may only be moved once during any sitting. In the event of an inquorate division on this motion, the business under discussion at the time it was moved is stopped, and "stands over" to the next sitting; and the next business is started. Moving the motion therefore acts effectively as a quorum call on the business then under consideration.

5. The Committee on the Modernisation of the House of Commons considered this procedure in its Fourth Report of 1997-98, Conduct in the Chamber.[4] It concluded that the practice of "spying strangers" had "long outlived any useful purpose it may once have had", and that a new procedure for testing the quorum was needed. The Committee's recommendation was that the motion "That strangers do withdraw" be replaced with a motion "That the House do proceed to the next business".[5] When the time came to debate the Committee's recommendations, however, the Government instead proposed the original motion's replacement with the motion "That the House sit in private", arguing that

The Modernisation Committee made a recommendation that would have had consequences that it had not foreseen: a motion could be passed in a well-attended House, and the business could be lost. Also, it was not a motion which could be used on all occasions. For example, if the House were debating a matter on the Adjournment, the procedure could not be used because there would be no next business.[6]

The Government's proposal was accepted by the House, leaving the procedure the same but with a revised form of motion.

Use of the procedure

QUORUM CALL

6. The use of the motion as a means of testing the quorum is chiefly applicable to private Members' Fridays. It does not tend to be used for that purpose on Government business days.[7] There are a number of reasons for this. The main reason is that the Government may be expected always to be able to summon 40 Members to participate in a division to protect its business. It is also the case that Government business would simply be brought back at the next convenient moment in the unlikely event of its being "stood over" following an inquorate division, whereas a private Member's bill "stood over" would lose its place in the "queue" for the limited debating time available for such bills and therefore probably be lost.

7. The use of the procedure to test the presence of a quorum was not envisaged in the Select Committee on Procedure's 1971 report, nor was it called in aid during the debate on the motion to abolish the count.[8] Its use as a quorum call seems to have arisen by accident, rather than as any deliberate decision of the House—which may have expected, when it passed the motion abolishing the count, to have abolished the quorum for debate altogether (as opposed to the quorum for divisions, which remained at 40). Although the Modernisation Committee recommended the retention of a quorum call, its main concern was to update the wording of the motion "That strangers do withdraw", which it considered "archaic"; that committee did not consider in detail whether a quorum call was actually needed.

8. We have therefore considered whether there is any need for the House to retain in its procedures any provision for a quorum call.

9. So far as private Member's bill Fridays are concerned, we have already reported as follows:

In recent times, it has become the practice routinely to move 'That the House sit in private' before the orders of the day have been entered upon (i.e. before any bill is being debated). In these circumstances, an inquorate division has no practical consequences. Since the motion cannot be moved more than once at any sitting, moving it at the very beginning of business in this way prevents it from being moved at any other time and therefore protects the whole business of the day from being subject to what is in essence a quorum call. […] The consequence of the routine moving of the motion 'That the House sit in private' before the orders of the day on Fridays have been entered upon has been to render it a dead letter.[9]

10. The motion has also been used to test the presence of a quorum during proceedings on a private bill (though only once since 2000, and unsuccessfully). The Member in charge of an opposed private bill is likely to need to ensure the attendance of at least 100 Members for a closure in order to secure the progress of the bill, so a quorum call is unlikely to succeed. Furthermore, a Member in charge of an opposed private bill who feared exposure of the lack of a quorum during proceedings on that bill could move the motion "That the House sit in private" earlier in the day—as is now the practice for private Members' bills—in order to prevent it being used to obstruct his or her bill later.

11. That leaves days when Government, Opposition or backbench business has precedence—that is, Mondays to Thursdays. As the Annex shows, the motion has seldom been used during Government time, and since 2000 not at all during either backbench or Opposition time. That is not to say that it never has an effect, because of course the fact that any Member could force a division on a motion that the House sit in private means that the Government (or, as the case may be, the Opposition) needs to keep 40 Members available in case of that eventuality. It is, though, hard to conceive of circumstances where either the Government or the Opposition would not be able to summon at least 40 Members in support of their business, regardless of whether it might be threatened by a quorum call.

12. Backbench business is theoretically more vulnerable to loss through an inquorate division on a motion to sit in private, since it tends not to be whipped. An attempt to prevent or delay a backbench debate, though, would be likely to expose the instigator to significant criticism; and a subject contentious enough to attract such opposition would in any case be likely to be well-enough attended not to be vulnerable to lack of a quorum.

13. In any case, if the Member in charge of any business—Government, backbench or Opposition—felt that their business might be vulnerable to a quorum call, it would be open to them to move that the House sit in private before their business was entered upon (as happened, for example, on 13 March 2001[10]). We conclude therefore that the "House sit in private" procedure is not effective as a quorum call.

SITTING IN PRIVATE

14. Ostensibly, of course, the motion "That the House sit in private" is intended to enable the galleries to be cleared so that the House holds a private sitting. The Modernisation Committee noted

If the question were carried, not only would the public gallery be cleared, but the press and Hansard would have to leave and the televising of proceedings would be stopped. This is unnecessary—the Speaker already has power to clear the public gallery without stopping the reporting or televising of the House.[11]

15. We reached a similar conclusion in respect of Fridays in our report on private Members' bills, saying "We note that Standing Order No. 163 provides that the Speaker or the chair may order the withdrawal of those other than Members or Officers from any part of the House whenever he thinks fit, so the provision is not necessary for the purpose of enabling the House to sit in private".[12]

16. Nevertheless, there may be occasions when the House may wish to come to a decision about whether to sit in private, in circumstances where the Speaker himself may not feel it appropriate to use his powers under SO No. 163 without endorsement by the House. In April and May 2004, for example, there were two occasions—during debates on the installation of a security screen in the Chamber and on visitor facilities—when the motion was moved in an attempt to have the House sit in private.[13] Under the current procedure, there is no opportunity for the House itself to debate the question, which must be put forthwith. On those two occasions, it was negatived on a vote.

OTHER USES OF THE PROCEDURE

17. Other uses of the procedure have included:

· to air a grievance;

· to delay the adjournment of the House in a situation where the adjournment was a deadline (for the tabling of amendments to a bill); and

· on a private Member's Friday, on the motion being moved as usual before the orders of the day were entered upon, to check the presence of 40 Members for votes expected to take place later on.

18. On airing a grievance, the Modernisation Committee concluded:

So far as grievances are concerned, there are already procedures in existence, notably the use of what is normally called a "dilatory motion", usually a motion to adjourn the debate or a variant thereof. The current Standing Orders governing such motions (SOs No. 34 and No. 35) allow the Chair either to put the question forthwith, decline to propose the question, or allow it to be debated. Whatever the decision, the Chair will normally allow the Member concerned a brief explanation of why this course of action is being suggested, and will then give a decision in accordance with the Standing Order.[14]

We concur with the Modernisation Committee that the ability to move that the House sit in private is not necessary to enable a Member to air a grievance.

19. Nor do we consider that the retention of the motion is necessary to enable a Member to delay the adjournment of the House. The occasion on which the procedure was used for that purpose was exceptional and the ultimate object it was intended to achieve (enabling an amendment to a bill to be tabled in time to be selected for debate) could have been realised by other means.[15]

20. That leaves checking the presence of 40 Members for votes expected to take place later. Again, this use of the procedure does not justify its continuance. Modern—and indeed traditional—methods of communication are such that it is not difficult for whips—or any other Members—to find out whether sufficient numbers of their colleagues are likely to be present at any point in the day. Furthermore, the result of a division at the very start of proceedings is in any case an unreliable predictor of whether that number of Members is likely to be present later in the day.

Potential reform of the procedure

21. We conclude, therefore, that the only reason why the motion "That the House sit in private" should need to be moved is to enable the House to sit in private. Although the powers given to the Speaker under SO No. 163 are in principle sufficient to enable a private sitting should that be necessary, as we have already observed, there may be occasions when the House wishes to come to a decision about whether to sit in private, in circumstances where the Speaker may not feel it appropriate to use his powers without endorsement by the House.

22. The current procedure does not allow for any debate on whether a private sitting is necessary. If the motion is moved, the question must be put forthwith. As the then Leader of the House observed, "this would be a significant decision for the House to take and to reach it without any debate would indeed be odd."[16]

23. There is therefore a strong case for reform of the procedure to achieve two aims:

· preventing abuse of the procedure through its use for objects other than holding a private sitting; and

· where appropriate, enabling debate before a decision to sit in private is made.

24. Both of these aims could be achieved through the use of the procedure which already applies to certain other motions which may be moved without notice, namely "dilatory" motions (for example, "That the debate be now adjourned"). Under Standing Order No. 35, the Speaker, or the chair, has discretion to allow debate on the motion, to put the question forthwith, or to decline to propose the question. If similar provision were made for a motion "That the House sit in private", the chair could allow debate, if appropriate, if the motion were intended as a means of enabling the House to decide whether to sit in private; but if moved as a means of trying to test the quorum, or to waste time, could decline to allow the question to be proposed.

25. We consulted the then Leader of the House and the Shadow Leader on this potential reform of the procedure. Their replies are published on our website.[17] Both acknowledged the desirability of reform of the procedure; but both also raised certain other questions and concerns, which we address here.

POSITION OF THE CHAIR

26. The Shadow Leader's response recognises the necessity of maintaining a means for the House to sit in private, but expresses concern that the proposal to allow the chair discretion to decide whether to allow debate on the motion, to put the question forthwith or to decline to propose the question "might place the Speaker and his Deputies in the invidious position of having to be drawn into an understandably controversial debate".[18]

27. We acknowledge the Shadow Leader's concern to protect the chair from potential controversy; but do not consider that the procedure which we propose would pose a significant risk to the impartiality of the chair. We note that the House has already entrusted the chair not only with similar decisions on dilatory motions, but also with decisions on whether to accept motions for the closure of debate,[19] which carry much greater potential for controversy. Following correspondence with the current Speaker on the matter,[20] we are quite satisfied that the chair would be able to make a decision on whether the question on a motion for the House to sit in private should be put forthwith, debated or not proposed at all without being drawn into unacceptable controversy.

QUORUM AND THE IMPACT OF THE ABOLITION OF THE COUNT

28. The (then) Leader's main concern was over the quorum. He advocated caution about abolishing a means of checking the presence of 40 Members for votes expected later, and suggested that we review the impact of the abolition of the count: "to better promote the integrity of the House's business and to encourage attendance, you might wish to consider whether there should be some form of mechanism to check the number of Members present".[21]

29. We have considered this matter very carefully in the light of the then Leader's suggestion, based on both the practicalities and the principle of what he has proposed. Our starting-point has been that, as we explain above, the current procedure is not effective either as a quorum call or as a means of checking the presence of 40 Members for votes expected later.[22] The ability to move the motion before the orders of the day have been entered upon, or between items of business, effectively renders it a dead letter; and the presence or otherwise of 40 Members for one of those inconsequential divisions has very little significance for the attendance of Members later on.

30. On the practicalities, we have been unable to conceive of an effective mechanism formally to check the number of Members present in the House during a debate which would not be open to abuse and the potential disruption of business. A count could only ever be a "snapshot" of the number of Members present in the House at a particular moment in time; to be effective in ensuring the continued attendance of a minimum number of Members, it would have to be possible to check the number of Members present at any time and on an unlimited number of occasions during a debate, which would pose an unacceptable risk to the orderly conduct of business. It was for this reason that the "count" was first restricted, and then abolished altogether.

31. A more fundamental objection to the reintroduction of the count, however, is one of principle. The then Leader referred in his letter to "the […] attendance of a minimal number of Members". Who is to say what such a minimal number might be? The final half-hour adjournment debate regularly takes place in the House with the attendance of only a very small number of Members: it would clearly be absurd to require the attendance of 40 Members at such a debate. By the same token, where matters of the very greatest moment are being debated, a quorum of 40 might seem wholly inadequate. And while we share the then Leader's desire to encourage attendance in the Chamber, which should be at the centre of the nation's political life, we recognise that the demands upon and expectations of Members have changed significantly since the count was abolished in 1971. We discussed some of those demands and expectations—which include both constituency pressures and other activity at Westminster—in our report on sitting hours and the Parliamentary calendar in 2012.[23] To force Members away from those other activities and into the Chamber by the reintroduction of some form of count would be to misinterpret the appropriate role of a Member in the service of their constituents in today's Parliament.

32. We do not consider that the House has suffered, since the count was abolished in 1971, from the lack of an effective quorum call; and we see no case for the introduction of such a procedure.

PRIVATE MEMBERS' BILLS

33. In conclusion to this section, we respond to one further point made by the then Leader in his response to us. He told us, "I would be concerned if the House were to change its procedures to make it easier for a small minority of Members to take advantage of the generally low attendance on a Friday to give second readings to bills which would not enjoy the support of the whole House."[24] We share that concern; and the change we propose in this report would not have that effect. The only effect on Fridays would be to remove what in our report on private Members' bills we described as "the nonsense of starting each private Members' Friday with an inconsequential division on whether the House should sit in private".[25]

Coming out of a private sitting

34. We have also considered whether it would be beneficial to add to the existing procedure provision for coming out of a private sitting. The existing standing order contains no such provision, meaning that the only way for a private sitting to end is to adjourn the House. It is easy to envisage circumstances where the House may wish to return to sitting in public following a private sitting, either because the business which required a private sitting has been concluded and there is further business to take, or because the original decision was made in error, as appears to have been the case on 4 December 2001.[26]

35. The addition of a paragraph to the existing Standing Order No. 163 to enable the House to come out of a private sitting without adjourning is proposed in the memorandum from the then Clerk of the House which we have recently published proposing various revisions of standing orders.[27] To ensure orderly proceeding, that paragraph would ensure the passage of at least half an hour before a motion 'That the House no longer sit in private' could be moved, and would require the consent of the Chair before the motion could be moved. We have included the paragraph in the revised form of the standing order which we propose below.

Conclusion

36. We recommend that Standing Order No. 163 be repealed and replaced by the following revised standing order:

163.—(1) A motion 'That the House sit in private' shall not require notice.

(2) On such a motion being moved, the Speaker, or the chair, may propose the question, or may forthwith put the question thereon from the chair; but if he or she is of the opinion that such a motion is an abuse of the rules of the House, he or she may decline to propose the question thereon to the House or the committee.

(3) The question on such a motion may be decided, though opposed, after the expiration of the time for opposed business.

(4) The Speaker or the chair may, whenever he or she thinks fit, order the withdrawal of those other than Members or officials of the House from any part of the House.

(5) An order under paragraph (1) of this order shall not apply to members of the House of Lords.

(6) When the House, or committee of the whole House, is sitting in private, at any time more than half an hour after a motion to sit in private has been agreed to, whether or not the House or committee has been suspended during that time, a Member, with the consent of the Speaker or the chair, may move 'That the House no longer sit in private' and the Speaker or the chair shall forthwith put that question, and the question, though opposed, may be decided after the expiration of the time for opposed business.

1 Procedure Committee, Second Report of 2013-14, Private Members' bills, HC 188-I, para 83. Back

2 Procedure Committee, Fifth Report of 2013-14, Private Members' bills: Government response and revised proposals, HC 1171, Appendix. Back

3 Select Committee on Procedure, Second Report of 1970-71, The process of legislation, para 62. Back

4 Committee on the Modernisation of the House of Commons, Fourth Report of 1997-98, Conduct in the Chamber, HC 600. Back

5 HC (1997-98) 600, paras 55-62. Back

6 HC Deb, 4 June 1998, cols 557-58. Back

7 See Annex for examples of recent use of the procedure other than on private Members' Fridays. Back

8 HC Deb, 16 November 1971, cols 349-78. Back

9 HC (2013-14) 188, paras 82-83. Back

10 See Annex. Back

11 HC (1997-98) 600, para 57. Back

12 HC (2013-14) 188, para 83. Back