3Where the present process fails
12.There are two fundamental problems with the PMB process as it operates at present. Our chief concern is the lack of transparency: the process is impenetrable to the general public and too often brings Parliament into disrepute. Our second concern is that it is now extremely difficult for a genuine private Member’s bill of any kind to reach the statute book. Increasingly, this is not because the House as a whole has decided that a bill should not progress, but because a small number of Members opposed to a measure can effectively veto it.
13.We do not start from the assumption that it would be desirable for more legislation to be made. We recognise the Government’s overall concern for the integrity of statute, and we acknowledge its responsibility for the coherence of the statute book.9 For a small and unrepresentative minority of Members to be given a free pass to the enactment of poorly-considered and unworkable legislation would be damaging to Parliament’s standing. But a process which purports to allow backbench Members to introduce legislation, and yet does not provide the House with a reasonable opportunity to make a decision on whether such legislation should pass into law, misleads our constituents as to its purpose. By disempowering the legislature they have elected, it breeds cynicism and disengagement in both the representatives and those they represent.
14.Members of the public who have contributed to this inquiry have described the effect which certain practices have on their view of the House. One stated that the practice of speaking at length to obstruct a bill’s progress “makes me feel like giving up on Westminster”.10 Another referred to this practice as “a great disappointment to the general public”.11 Mr John Cresswell-Plant, a seasoned observer of the process, reminded us of the reputational impact on the House of these practices.12 Comments relayed to us by a campaigning organisation indicate substantial dissatisfaction with a process which can apparently be easily gamed to frustrate any substantive consideration of legislative proposals.13
15.Friday sittings can, on occasion, be the setting for debates which demonstrate the strengths of the legislative process. The first bill to be debated on a Friday in this session—the Assisted Dying (No. 2) Bill—concerned an issue of conscience on which no Government would venture to introduce legislation.14 85 members had expressed a desire to speak, and 57 were called, following advice from the Chair on the desirable maximum length of speeches.15 After over five hours of debate, 448 votes were cast, and the House denied a second reading to the Bill. Yet the prevailing experience of Fridays is of a moribund legislative process which evokes bafflement or indignation. A bill’s progress should be arrested not because a small number of Members have talked at length to delay its passage, but because all Members of the House have had the opportunity to decide on it.
A misleading and opaque process
16.The PMB process, as it currently stands, is confusing to the public. Whereas Government bills progress through the stages of Parliamentary scrutiny and amendment and into law with a high degree of predictability, the same cannot be said for private Members’ bills introduced in the Commons or brought from the Lords. The previous Committee’s initial report set out the four main reasons for a backbench Member to bring forward a bill: as a chance to raise an issue or to “fly a kite”; to start a campaign for a change in the law; to make small and uncontroversial changes to the law supported—or at least not actively opposed—by the Government; and as a genuine attempt at substantive legislative change. In all these cases, backbench members are often giving voice to a substantial public desire for change—and often for change which is not actively being instigated by any of the dominant political parties.
17.The evidence we have received suggests that the public often view the process primarily as a means to facilitate substantial legislative change brought forward from outside—and often in spite of—Government.16 Many see private Members’ Fridays as territory where party discipline is relaxed and where Members may more freely vote according to their consciences.
18.The experience within the House is rather more complicated. Members successful in the PMB ballot, and relatively highly placed, may decide to use the opportunity to present bills on issues which are political priorities for them or which have been suggested to them by third party campaigning organisations. Members, particularly on the Government side, are frequently approached by Departments looking for opportunities to progress minor and uncontroversial legislative changes which are necessary but would not generally merit slots in the Government’s legislative programme.
19.Second readings of ballot bills effectively have precedence on the first seven sitting Fridays of a session: on the eighth and subsequent Fridays precedence is given to bills roughly in the order in which they are closest to success. But if, after the seventh Friday, there are no bills which have received a second reading, and other ballot bills have been talked out, defeated or withdrawn, PMBs which have reached the Order Paper as presentation bills or bills introduced under the ten minute rule may be in a position to receive substantive consideration. Such bills which are set down for debate, whatever their merits, have only the faintest chance of receiving a second reading, let alone progressing to the Lords, unless they have the active support of the Government: it is disingenuous to suggest that any such bills which do not have some form of Government backing have the slightest chance of becoming law.
20.One of the most baffling aspects of current procedural arrangements is that dozens of such bills are listed on the later Fridays of a session, most, or sometimes all, of which have scant chance of being debated, still less decided upon, and even less of making further progress. We remain concerned about the number of bills on the Order Paper which have little or no chance of progressing. Many of these never have an existence beyond their “long title”—on the surface they appear to be bills but in reality they have not been drafted. Many never will be drafted. A long list of titles set down for debate on any given Friday, along with the fact that any bill which is not to be taken as first or second order of the day has very little chance of being debated, perpetuates the confusion of the public as to what will happen to any given bill. Mark D’Arcy told us that
You see people who flatly do not understand the process. I have had people complain to me when I have said that this Bill now has little chance of becoming law—a frequently used pay-off line in “Today in Parliament”. I get stiff letters saying, “We have been assured that this Bill is on the agenda in three weeks’ time.” Yes, it is but it is number 23, so it is not going to be reached, but they do not understand that.17
21.As many of us have found, Members are very frequently lobbied by constituents and others with requests to be present at Westminster on a sitting Friday to support bills which have little if any chance of being debated and even less of reaching the statute book. Isabel Hardman noted that
It is very tempting for MPs and lobbying organisations to exaggerate in press releases to constituents or supporters the amount of power that they have. Saying, “Support my Bill, which will enable this,” is much better than saying, “I’ve got a debate that actually won’t involve much debate of my proposal anyway”.18
We set out in the chapter below a number of proposals, largely endorsing the recommendations of our predecessors, which are intended to have the effect of winnowing out genuine legislative proposals from campaigning political statements which purport to be draft legislation.
Obstacles to a bill’s progress: ‘talking out’
22.In the absence of a defined end time for a debate, opponents of a measure may seek to frustrate the bill’s progress by the exercise of procedural devices, such as
- moving that the House sit in private;
- speaking at inordinate length on the bill to ensure that the debate cannot conclude before the ‘moment of interruption’ (‘talking the bill out’);
- opposing the closure, in the hope that the Bill’s supporters will not be able to muster the number required to secure it; and
- speaking at length on uncontroversial preceding business, to reduce the opportunity for the opposed measure to be debated.
23.While such tactics by opponents of a bill may be exercised without infringing procedural rules, they rely on gaming those rules rather than winning an argument on a vote. As we have indicated above, it is easy for a small number of Members to thwart a bill’s progress and deny the House an opportunity to come to a decision, often by speaking at great length on matters not closely related to the merits or otherwise of the bill under discussion.
24.The practice of ‘talking out’ ballot bills has caused controversy on several occasions in this Session:
- Following the debate on the Hospital Parking Charges (Exemption for Carers) Bill on 30 October 2015, which was talked out at 2.30 pm by a Minister following a lengthy contribution in opposition from Philip Davies MP, e-petition 111441 was registered on the House’s e-petition site calling for the House to ‘reform the rules on filibustering or ‘talking a bill to death’’: it has received over 50,000 signatures.19
- The Off-patent Drugs Bill was the second bill to be debated on Friday 6 November, the first bill being an uncontroversial ‘handout’ bill originating in a Government department on which Members nevertheless spoke at considerable length. When debate on the second bill started at 1.08 pm, 9 members spoke in favour, for a total of 55 minutes, and none spoke against. The Minister rose at 2.03 pm and in the course of his remarks announced that he intended to speak until 2.30 pm, thus “talking out” the bill. The Deputy Speaker declined to accept two attempts to claim the closure. The Minister was the only Member to speak against the bill: during the course of his remarks, he took several interventions from Members sharply critical of the tactics he was employing. Nick Thomas-Symonds MP, whose bill it was, recognised that the Government opposed the bill, but disagreed with the methods used to halt its progress: “However the Government wished to defeat the Bill, that was not a particularly elegant way to do it.”20
25.We do not seek to deny the use of legitimate means to prevent bills from progressing. In some respects, dogged opposition to a bill by a minority of Members does many colleagues a service: without such tactics it would be far more likely that Government and Opposition business managers would seek to whip Friday votes, with evident consequences for the attendance of many Members on a Friday.
26.Nevertheless, such tactics cause confusion and frustration to members of the public observing such debates and expecting reasoned discussion on matters important to them. They also have an unfortunate effect on the quality of debate. St John Ambulance noted that in the debate on the Compulsory Emergency First Aid Education (State-funded Secondary Schools) Bill on 20 November 2015 “those in favour of the Bill made short speeches that supported its principles: those against sought to eat up time by making objections which […] were not consistent”. St John Ambulance observed that members in support of the Bill did not generally seek to counter the arguments made against it, since they feared that the debate would run out of time.21 Similar points were made by Carers UK in respect of the debate on the Hospital Parking Charges (Exemption for Carers) Bill.22
27.We received conflicting evidence on the merits of obstructing bills by talking at a length which would not be tolerated by the House in any other kind of debate. Philip Davies MP, an acknowledged practitioner, mounted a robust defence of the practice.23 By contrast, the Shadow Leader of the House, Chris Bryant MP, regretted a previous indulgence.24 Jacob Rees-Mogg MP also acknowledged that the practice, while potentially a stimulating challenge for the Member concerned, could give an unfortunate impression of the House:
I think there is a problem, and I am certainly guilty of this—as are one or two distinguished members of the Committee—of talking at length on Bills, and I have done it at the request of the Whips. I rather enjoy doing it—I should not pretend otherwise—but it doesn’t make Parliament look great. I think that is a problem, which it is in everybody’s interest to solve.25
We agree.
28.Although we have received a number of representations urging the introduction of measures to curb ‘talking out’, we do not, in this report, offer any recommendations to address the practice.26 To introduce further means of curtailing debate which has been artificially prolonged could, in our view, merely lead to further ruses to obstruct the passage of bills. The more rules there are, the greater the opportunities to game them. The Speaker and his deputies already have power to bring to order Members who are indulging in irrelevance or tedious repetition in debate, and those powers have recently been used on a Friday.27 Similarly, the procedure for a Member who wants to bring a debate to an end by claiming the closure is well established and well understood, although the supermajority requirement of Standing Order No. 37—requiring 100 Members to vote for a closure of debate—is a formidable hurdle.
29.We repeat that we are not wedded to the idea that more legislation is an uncontested good. As Mark D’Arcy put it, “We are talking about making a set of rules that everyone has to obey here; it should not be an easy thing to do.”28 Our recommendations below seek to improve the accountability of Ministers and backbenchers for their positions on the merits of non-government bills, and to improve the quality of the legislative proposals which come before the House.
9 Procedure Committee, Fifth Report of Session 2013–14, Private Members’ bills: Government response and revised proposals, HC 1171, Appendix.
15 HC Deb, 11 September 2015, col 656 ff
17 Q4 [Mark D’Arcy]
18 Q5 [Isabel Hardman]
19 E-petition 111441 is expected to be closed on 5 May 2016.
20 Q45 [Nick Thomas-Symonds]
23 Q66 and subsequent exchanges
24 Q169
25 Q100 [Mr Jacob Rees-Mogg]
26 Mr John Cresswell-Plant [PMB 14] para 2, Julie Cooper MP [PMB 09], Robert Parker MNI [PMB 08], Will Freake [PMB 05], Caroline Lucas MP [PMB 18] and a very large proportion of the 18,851 respondents to a survey undertaken by 38 Degrees [PMB 19].
27 HC Deb, 28 November 2014, cols 1251, 1252 and 1253-54
28 Q5 [Mark D’Arcy]
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15 April 2016