English votes for English laws Standing Orders: interim report Contents


3 Effects on legislative procedure

The proposed new legislative procedures

55.We summarise below the proposed new procedures as they are intended to apply to the passage of primary and secondary legislation.

Primary legislation

56.All Bills liable for certification are examined by the Speaker after presentation and First Reading. Those certified take one of two routes, depending on their territorial application.

Committee stage

57.Bills certified as applying only to England receive a Second Reading in the whole House. They are then committed to a public bill committee or the Legislative Grand Committee (England). Any public bill committee nominated to consider such a bill shall comprise Members for English constituencies only, and the Committee of Selection will be directed to nominate Members to it with regard to the composition of the House in relation to English constituencies. The Legislative Grand Committee (England) will comprise Members for English constituencies only. We discuss the Legislative Grand Committees further below.

58.All other certified Bills, or Bills containing certified provisions, are committed to a public bill committee to which any Member may be nominated, or to a Committee of the Whole House. In Committee, these certified Bills or parts of Bills are given no special treatment.

Consideration on Report

59.Likewise, the stage where Bills emerging from Committee are considered by the whole House on Report remains unchanged for certified Bills or Bills containing certified provisions, irrespective of the route they have taken.

60.However, following Report stage, the Speaker examines all amendments made and new clauses and new schedules added to a Bill since Second Reading. If no part of the Bill when originally certified before Second Reading remains, or if nothing added since falls to be certified, the Bill proceeds directly to Third Reading.

61.If any of the original provisions of the Bill, or any changes made to the Bill since second reading, are certified by the Speaker as relating exclusively to England, or to England and Wales, and within devolved legislative competence, the Bill falls to be considered by a legislative grand committee.

Consent in Legislative Grand Committee

62.The proposed Standing Orders provide for three types of legislative grand committee: England, Wales and Northern Ireland; England and Wales; and England only. Membership of each Committee is confined to Members representing constituencies in the relevant part of the UK only. The meetings of such committees are proposed to take place in the Chamber: and the Leader of the House has indicated that Members who are not members of a legislative grand committee should still be entitled to speak in committee. We address participation in legislative grand committees further below.

63.The sole functions of a legislative grand committee at this stage are to grant consent to, or withhold consent from, legislation certified as relating to the relevant geographical area and within devolved legislative competence. Once a Minister signifies the intention to move a consent motion in committee, the House resolves itself into the relevant Legislative Grand Committee to consider the consent motion.

64.The form of the consent motion is prescribed in the proposed Standing Orders: the committee may be asked to consent to an entire bill, or to clauses, schedules or amendments certified as relating only to England, England and Wales or England, Wales and Northern Ireland. A Minister may also propose that the committee does not consent to certain clauses, schedules or amendments. All these propositions are combined in the form of a single portmanteau motion. Amendments to such motions may be proposed and, if selected by the Chair, moved, put and decided within the Grand Committee. Proceedings in Legislative Grand Committee are likely to be programmed.

65.In the case of a Bill containing provisions certified as relating to two or three territorial configurations, substantive debate on a consent motion takes place in the larger or largest of the grand committees, and votes are taken without debate in the smaller committees. So, for example, for a Bill containing provisions certified under all three territorial criteria, there would be a debate (for the period allowed in any programme motion) in the Legislative Grand Committee (England, Wales and Northern Ireland) (this is likely only to be the case for Finance Bills); at the end of the debate that Committee would come to a decision on the relevant motion proposed by the Minister; after that decision the Committee would automatically resolve itself into the Legislative Grand Committee (England and Wales) and come to a decision without further debate on another motion proposed by the Minister; immediately after that decision the Committee would reduce further in number to become the Legislative Grand Committee (England) and reach a decision, again without further debate, on yet another motion proposed by the Minister.62 If the Legislative Grand Committee consents to a bill, or all elements of a bill proposed for consent, then the bill proceeds to Third Reading.

Reconsideration, veto and consequential consideration

66.If the Legislative Grand Committee withholds consent from a bill, or any element of a bill—whether at the instigation of a Minister or by disagreeing to a motion for consent to all or part of a Bill—the order for Third Reading of the Bill is discharged and the bill is set down for reconsideration in the House. This reconsideration stage is solely to resolve matters in dispute as a result of the withholding of consent in a Legislative Grand Committee, and the Speaker shall therefore only select amendments which are tabled to this end.

67.Following reconsideration, the Speaker examines any amendments made to the Bill and certifies them. The bill then returns to Legislative Grand Committee, where a consent motion is again proposed. If the motion is agreed to, and all provisions are consented to, then the bill passes to Third Reading.

68.If the Legislative Grand Committee at this second consideration withholds consent from a whole bill, then the bill may not proceed to Third Reading and cannot pass. If the legislative grand committee withholds consent at this second stage from any provision of the bill, then the bill is amended to remove the provision not consented to and may pass to Third Reading.

69.If, as a result of the provisions removed from the Bill, “minor or technical changes” are required to enable the legislation to operate, then a Minister may move that the House consider the amended Bill again in an additional stage termed “consequential consideration”. The Speaker will be required to select the amendments to be moved at this stage, which would be in manuscript if the consequential consideration stage were to follow immediately after the second Legislative Grand Committee. Following completion of this stage the bill passes to Third Reading.

70.If a Bill were to pass through all the stages contemplated under the new procedure, the sequence (for Finance Bills), in addition to Second and Third Reading and Committee, would therefore be:

i)Consideration on Report

ii)Legislative Grand Committee (England, Wales and Northern Ireland)

iii)Legislative Grand Committee (England and Wales)

iv)Legislative Grand Committee (England)

v)Reconsideration

vi)Legislative Grand Committee (England, Wales and Northern Ireland)

vii)Legislative Grand Committee (England and Wales)

viii)Legislative Grand Committee (England)

ix)Consequential consideration

So the number of additional stages provided for under the Government’s proposals could be between one and eight.

71.Sir William McKay pointed out to us a major constitutional departure in the Government’s proposals relating to these new stages: a provision vetoed in Legislative Grand Committee can, under these proposals, be removed from a Bill which would then pass to Third Reading without any subsequent consideration by the whole House.63

Third Reading

72.Third Reading on all bills is undertaken by the whole House: if the Bill is given a Third Reading is granted then it, passes to the Lords for consideration.

Lords Amendments and Lords Messages

73.The Speaker is required to consider Lords Amendments and motions relating to Lords Amendments on eligible bills and to certify them if they would result in adding, or omitting, provisions of bills applying to England and/or England and Wales, or (perhaps most controversially) if they would result in a previously certified provision ceasing to be certifiable, or becoming eligible to be certified in relation to a different territorial extent.

74.Certified motions relating to Lords Amendments and Lords Messages shall only pass if they are supported by a double majority when voted on in the House: that is, a majority of all Members voting in a division, and a majority of Members representing constituencies in England and/or England and Wales.64

75.We note that there is considerable risk and difficulty here, both in the technical execution of complex and fast-moving legislative stages in relation to Lords Amendments and Messages, and in the management of the relationship between the two Houses. Should the Government’s proposals for changes to Commons procedure pass, it remains to be seen whether the Lords will seek to amend England-only provisions consented to by Members for English constituencies by, for instance, seeking to broaden their territorial application.65 It may be wise, in the experimental stage, to leave more to good sense and comity between the Houses and to avoid the risk of entangling the two Houses in unnecessary complexity and a desire to control more detail than is politically healthy. It is here, in the relations between the two Houses, where the argument for a legislative approach carries more force (as with the Parliament Acts). It is all very well for this House to regulate its own procedures: it must be very careful not to trespass on those of the other House, even indirectly, except through mutual agreement on the establishment of conventions or, in the last resort, the instrument of primary legislation.

Delegated legislation

76.Under the proposed new procedures, certain items of secondary legislation subject to parliamentary approval will require the consent of the majority of Members representing constituencies in England or England and Wales to proceed.

77.The Speaker is required to apply the certification tests to the following classes of delegated legislation:

a)Instruments subject to affirmative resolution, once an approval motion has been tabled by a Minister

b)Instruments subject to negative resolution which have been prayed against and either referred to a delegated legislation committee for debate or set down for debate in the Chamber, and

c)Draft orders subject to affirmative resolution under the Regulatory Reform Act 2001 or the Localism Act 2011 where the Regulatory Reform Committee has made a recommendation to the House on approval.

78.In order to be deemed approved by the House for the purposes of their parent Acts, (or, in the case of negative instruments prayed against, annulled in pursuance of the Statutory Instruments Act 1948), the relevant motion for a certified instrument will have to be passed by a double majority analogous to the double majority required for the passage of a certified Lords Amendment. In other words, only if a majority of Members for the relevant constituencies votes to approve a measure will a majority of all Members also be effective. Conversely, even if a majority of Members for the relevant constituencies are in favour, they cannot override the decision of the whole House to reject a measure.

79.Certain other instruments requiring approval are self-evidently applicable to England or England and Wales only: local government finance reports, revenue support grant reports, police grant reports, statutory motions to approve reports relating to council tax referendums in England and statutory motions relating to changes in the tuition fee ceiling stipulated in the Higher Education Act 2004.66 These will not require certification but will be subject to a double majority in order to be agreed.

Budget resolutions and Finance Bills

80.The proposed Standing Orders make special provision for certification of Finance Bills. Under these provisions, elements of Finance Bills may be certified if they relate only to England, Wales and Northern Ireland and are within the devolved legislative competence of the Scottish Parliament. The procedure foreshadows the passage of the Scotland Bill currently before Parliament, which is intended to amend the Scotland Acts to further extend the competence of the Scottish Parliament in matters of taxation. Provision is made for elements of Finance Bills to pass only if they have the consent of a legislative grand committee comprising Members for constituencies in England, Wales and Northern Ireland.

81.Similarly, secondary legislation arising from powers in a Finance Act can be certified as relating exclusively to England, Wales and Northern Ireland if it applies only to those parts of the UK and is within the devolved competence of the Scottish Parliament: the double majority procedures will apply to the passage of approval motions relating to such instruments.

82.Provision is made for certification of certain Budget resolutions. These are the motions for resolutions under the Provisional Collection of Taxes Act 1968 which have temporary statutory effect, and the motions authorising the provisions of a Finance Bill, which are published once the Chancellor of the Exchequer has delivered his Financial Statement and Budget Report and which are subsequently debated and voted upon either on the first or last day of the Budget debate. Such motions, if certified as relating to England, England and Wales or England, Wales and Northern Ireland and also passing the test of devolved legislative competence, may only be deemed approved if they are approved by a double majority.67

83.By custom, and for obvious operational reasons, the contents of Budget resolutions are not published until the moment they are tabled in the House. This presents additional challenges for the certification process. Although votes on Budget resolutions are frequently taken at the end of the Budget debate, which lasts for several days, the first motion for a resolution under the Provisional Collection of Taxes Act 1968 may be taken immediately after the Chancellor’s statement. It will therefore be helpful to the House to have notice of the Speaker’s decision on certification at least one sitting day in advance of the day on which the Budget debate is to conclude. This may well require the sharing of information with the Speaker and the House authorities about the likely subject matter of the Budget resolutions in advance of Budget Day.

84.We will examine the implications of the procedure to apply to Finance Bills, financial instruments and Budget resolutions in greater detail in a subsequent inquiry and in the light of the passage of the Scotland Bill.

Supply procedure

85.We have discussed the application or otherwise of the Government’s proposals to the House’s procedure on Supply and Appropriation Bills at some length above. To recap: although the Government has amended its proposals to make it clear that any Member may take part in all proceedings on Supply and Appropriation Bills, ways and means resolutions and money resolutions (except those relating to the Budget), the present operation of those procedures, and the constitutional conventions on financial initiative, make it largely impossible for Members concerned about the spending consequences of bills to exercise any effective control over the Government’s proposals for public expenditure which the House is invited to approve. We will consider the adequacy of the House’s procedures for examining and approving Government taxation and expenditure proposals in a subsequent report.

Comprehensibility

86.Underpinning the Government’s proposals are two particular requirements:

a)for a separate committee stage for consideration of, and consent to, legislation with a separate and distinct effect on England or England and Wales, and

b)for a majority of Members representing constituencies in the part of the UK so affected to be able to veto such legislation if they disagree with it.

87.These two requirements have resulted in procedures which are undeniably very complex in their expression and their operation. Sir William McKay has indicated where they differ from the proposals made by the Commission which he chaired.68 The McKay Commission offered a menu of procedural options to be deployed as necessary to achieve the objective of consent by Members representing constituencies in part of the UK to legislation with a separate and distinct effect on that part of the UK. Under the McKay proposals, a refusal to consent could be overridden by a majority in the House, but in order to achieve that override Ministers would have to incur a cost in parliamentary time and would have to explain their decision to override the withholding of consent.

88.The Government’s proposals for consent, reconciliation, veto and consequential consideration are procedurally complicated and will not necessarily be understood in the way that the present legislative process is generally accepted and understood. The Leader of the House indicated in his evidence to us that many of the stages could be taken pro forma in cases where there was general political agreement. That may be so: but rattling through complex procedures to satisfy the requirements of Standing Orders will not be readily understood by the public. To give another example, the rococo procedures which the proposals contemplate for a complex and controversial Finance Bill are unlikely to be clear and explicable. They do not sit well with the proposals our predecessors made in the last Session to revise the House’s Standing Orders relating to public business “to improve the ability of all Members […] to use the House’s procedures effectively.”69

Time

89.The proposed Consent Stage—between Report and Third Reading—is the area where we are most concerned about the effect of the proposals on the overall time available for detailed consideration of legislation by the House. Our predecessors made clear their concerns about the adequacy of time already available for consideration of Bills on report, and the effective use of that time by the House to consider amendments under existing programming arrangements.70 We are continuing to monitor the experiment in additional notice of amendments on report which our predecessors proposed and which the House agreed to extend to the present Session.

90.Dr Louise Thompson, of the University of Surrey, expressed particular concern about the potential effect of the new proposals on the opportunities available for legislative scrutiny at report stage.71

91.The Leader of the House gave us a commitment that additional time would be made available for the completion of the new legislative stages introduced by the Government’s proposals.72 We welcome this commitment. We will, in our technical evaluation of these proposals, undertake detailed monitoring of the time spent on the various elements of the new Consent Stage and the treatment of Consent Stage on arrangements for programming.

92.The “knives” included in a typical programme motion generally take one of three forms. They may set a specified hour of the clock at which proceedings on a particular stage or section of a Bill are to be brought to a conclusion without further debate; they may set a specified period of time from the commencement of proceedings on a Bill on a particular day; or they may set a specified and protected period of time for the consideration of each separate section or stage. Our predecessors recommended that programming of later stages of Bills should proceed on the principle of allocating set periods of time for the consideration of amendments, or groups of amendments, on report, and the allocation of a set period of time for Third Reading, a stage often compressed in time by the application of a ‘knife’ at a predetermined hour or after a pre-determined period from the commencement of consideration of some earlier stage or section. We recommend that, in considering the interaction of the proposed new procedures with the present procedures for programming stages of Bills, the Government should allocate set periods of time for the consideration of amendments or groups of amendments, for elements of Consent Stage and for Third Reading. Without such protected time, there is a high risk of bringing the procedures of the House in considering legislation into further disrepute and of failing to show the electorate that we take our task of making the law seriously and are prepared to give sufficient time to do the task properly.

Asymmetry

93.We note an anomaly in the process proposed for consent to legislation with a separate and distinct effect on part of the UK. The proposed procedures only apply to legislation relating to England or England and Wales only which is within devolved legislative competence. There is no analogous procedure for Members for parts of the UK outside England to consider Bills on matters where legislative competence is reserved to Westminster, not transferred to Stormont or Holyrood or not conferred on Cardiff Bay. Bills on such matters may still be referred to grand committees for consideration in relation to their principle, but the procedures presently proposed by the Government do not allow Members representing those parts of the UK to veto legislation in the way which is contemplated for Members representing England or England and Wales under these proposals.

62 Proposed Standing Order Nos. 83M(4) and 83S(5)

63 Q 32

64 Division clerks will record the names of those voting in such divisions on tablet computers, which will at the end of the division provide a figure for each of the majorities required.

65 A Bill certified in the Commons as relating to England and Wales might have a provision added in the Lords which related to a matter in Scotland. The Lords amendment relating to Scotland, having changed the territorial application of part of the Bill, would fall to be certified when it came to the Commons, and if it failed to achieve the support of a majority of Members for English and Welsh constituencies it could not be agreed to by the Commons.

66 Proposed Standing Order No. 83R

67 Proposed Standing Order Nos. 83U and 83V

68 EVL 04, paras 11–25

69 Procedure Committee, Sixth Report of Session 2014–15. Revision of Standing Orders, HC (2014–15) 654, para 5

70 Procedure Committee, Third Report of Session 2012–13, Programming, HC (2012–13) 757

71 EVL 01

72 Q 106: “[Legislative Grand Committee] is an extra section which, if there was a debate, would have to have extra time in the consideration of the Bill.”