Motions "That the House sit in private"|
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.
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. 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.
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).
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.
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".
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",
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.
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
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.
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.
Its use as a quorum call seems to have arisen by accident, rather
than as any deliberate decision of the Housewhich 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
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.
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 dayas is now the practice for private Members' billsin
order to prevent it being used to obstruct his or her bill later.
11. That leaves days when Government, Opposition
or backbench business has precedencethat 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 businessGovernment,
backbench or Oppositionfelt 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).
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
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 unnecessarythe Speaker already has power to clear the
public gallery without stopping the reporting or televising of
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".
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 occasionsduring
debates on the installation of a security screen in the Chamber
and on visitor facilitieswhen the motion was moved in an
attempt to have the House sit in private.
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:
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
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.
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
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. Modernand
indeed traditionalmethods of communication are such that
it is not difficult for whipsor any other Membersto
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."
23. There is therefore a strong case for reform of
the procedure to achieve two aims:
abuse of the procedure through its use for objects other than
holding a private sitting; and
appropriate, enabling debate before a decision to sit in private
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.
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".
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,
which carry much greater potential for controversy. Following
correspondence with the current Speaker on the matter,
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".
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.
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 expectationswhich include both constituency
pressures and other activity at Westminsterin our report
on sitting hours and the Parliamentary calendar in 2012.
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
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."
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
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.
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.
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.
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
(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
1 Procedure Committee, Second Report of 2013-14, Private Members' bills,
HC 188-I, para 83. Back
Procedure Committee, Fifth Report of 2013-14, Private Members' bills: Government response and revised proposals,
HC 1171, Appendix. Back
Select Committee on Procedure, Second Report of 1970-71, The
process of legislation, para 62. Back
Committee on the Modernisation of the House of Commons, Fourth
Report of 1997-98, Conduct in the Chamber, HC 600. Back
HC (1997-98) 600, paras 55-62. Back
HC Deb, 4 June 1998, cols 557-58. Back
See Annex for examples of recent use of the procedure other than
on private Members' Fridays. Back
HC Deb, 16 November 1971, cols 349-78. Back
HC (2013-14) 188, paras 82-83. Back
See Annex. Back
HC (1997-98) 600, para 57. Back
HC (2013-14) 188, para 83. Back
See Annex: 22 April 2004 and 11 May 2004. Back
HC (1997-98) 600, para 59. Back
See Annex: 14 March 2013. Back
Letter from the Leader of the House (P 18 (2014-15)) Back
Letter from the Leader of the House (P 18 (2014-15)) and letter
from the Shadow Leader (P 19 (2014-15)). Back
Letter from the Shadow Leader (P 19 (2014-15)). Back
Standing Order No. 36. Back
Letter from the Speaker (P 51 (2014-15)). Back
Letter from the Leader of the House (P 18 (2014-15)). Back
Paras 13 and 20. Back
Procedure Committee, First Report of Session 2012-13, Sitting hours and the Parliamentary calendar
HC 330, paras 1-7. Back
Letter from the Leader of the House (P 18 (2014-15)). Back
HC (2013-14) 188, para 88. Back
See Annex. Back
Memorandum from the Clerk of the House on Revision of Standing
Orders, document 02. Back