4Recommendations for reform
A guaranteed vote on second reading
30.As we have already discussed, many bills fail to receive a second reading not because the House has decided that the bill should not progress, but because a Member—often a Minister—has talked up to the time at which, under the House’s standing orders, substantive proceedings must lapse—thus “talking the bill out”.
31.On days when Government business has precedence—that is, on any sitting day other than a Friday—the likelihood that the Government will use its majority to force a closure and to secure its legislative business implicitly governs proceedings on second reading debates on Government bills. The assumption that a Minister will speak last in a debate, and conclude it immediately before the time when such proceedings would otherwise lapse, is sufficient to enable the Chair to impose time limits on speeches under Standing Order No. 47 to allow all Members wishing to speak to make a contribution.
32.Although the House is now well accustomed to the imposition of time limits on backbench speeches, and seems generally to accept them, even when imposed on backbench business, the Speaker and his deputies have been reluctant to extend the practice, when not authorised by the House to do so, to backbench legislative business.29 As the Clerk of the House pointed out, “the Chair has to be confident that imposition of a time limit on speeches does not introduce an artificial end to a debate where no such end is provided for by the House’s rules or by long-standing convention, as in the case of debate on Second Readings of Government Bills.”.30
33.Our predecessors recommended that the House “should agree that there should be a convention that the question on second reading of a private Member’s bill should be put to the House at the end of a full day’s debate, in the same way that the House expects the question to be put on second reading of a Government bill.”31 That Committee argued that this convention should operate only in respect of the first bill on the Order Paper on a PMB Friday, and only on those first seven Fridays on which second readings have precedence.
34.We discussed this proposal with the Clerk of the House. He offered two ways that a guaranteed vote on second reading could be achieved for PMBs:
a)by convention (as the Committee previously recommended)—“the Speaker is fortified in then being able to ensure, by organisation of debate, together with the other managers in the House, that it does in fact come to an orderly end at around 2.28 pm and the Question can be put.”32
b)by introducing a standing order to provide that, at 2.30 pm on any given Friday, the Question is put to dispose of the first order of the day, provided that that order is for the second reading of a bill and that it has not otherwise been disposed of.33
35.The Clerk of the House indicated that, in his view, the prospect of a guaranteed vote at 2.30 pm at the latest would, if necessary, provide sufficient authority for the Speaker to impose maximum speaking times under Standing Order No. 47 without “being seen to force the pace […] or to bring something to what might otherwise be an unnatural conclusion”.34
36.We recommend that Standing Orders should be amended to provide that the Question on second reading of a bill which is the first order of the day on the first seven sitting Fridays in a session should be put from the Chair at the moment of interruption, if that business has not already been disposed of.
37.In our view this is a reasonable step to ensure that the House has the chance to decide on whether bills which are the first order of business on the first seven sitting Fridays should progress to examination in committee.
38.We have been urged to introduce further measures to prohibit or restrict certain behaviour in the Chamber. As we have argued above, measures to prevent ‘talking a bill out’ would be ineffective and doubtless subject to further gaming. Furthermore, such measures would not address a genuine difficulty—namely that attendance in the House on Fridays is habitually low, save for certain debates, because fewer and fewer of our colleagues are convinced that the process is effective or worthwhile. We make recommendations to address this issue below.
Prioritising certain bills on merit
39.One criticism of the ballot system is the way in which it encourages legislation to be considered for introduction only after a Member has secured a ballot slot for the introduction of a bill. This system tends to discourage the measured preparation of legislation for introduction: instead, it seems to precipitate a rush by Government and outside interests alike to lobby the successful Members to take up pre-prepared legislation or to consider incipient legislative notions which may not have been fully drafted.
40.Dignity in Dying observed that while “it is undeniably a strength of the system that an MP can consult on what bill to introduce before doing so”, there was no mechanism to ensure that well-supported and popular bills were debated: “what few opportunities are available are further limited if MPs choose to take Government ‘handout’ bills, undermining the idea that they are bills for the use of backbenchers”. They added:
The lack of certainty in the ballot also leads to bills being introduced at relatively short notice, allowing less time to consult on and scrutinise legislation before it is debated.35
41.We consider that the time has come for the ballot system to be supplemented with a scheme which encourages better preparation of legislation, on the basis of a sound case which can command widespread support across the House. Under our scheme, the Backbench Business Committee would have the responsibility to consider bids from backbenchers for bills to have their second readings debated in no more than the first four backbench legislative opportunities in each session.
42.The scheme would require the Backbench Business Committee, at the start of each session, to consider bids for these legislative slots on the basis of published criteria. We outline below some of the criteria the committee might consider adopting. Members would submit, at the very least, the short and long titles of one bill to the Committee, together with statements of support from Members and, where available, evidence of any previous scrutiny undertaken on the legislative proposal.
43.The Committee would be entitled to nominate up to four such bills to be debated on second reading on up to the first four PMB Fridays. Following the Backbench Business Committee’s nomination, a ballot would be held as before for the remaining bill slots: sponsors of the ballot bills would choose the days for second reading of their bills in order of success in the ballot, as before.
44.We discuss below the need to reduce the overall number of priority opportunities for backbench bills to be debated: we consider that the overall number should be reduced from the current 20 to 14 (comprising up to four bills chosen by the Backbench Business Committee, with the remainder being brought forward by members successful in the ballot).
45.Criteria which the Backbench Business Committee might wish to adopt in determining the merits of a bill include the following:
- The substance of the proposal and the number of Members prepared in principle to support it in debate;
- The nature of cross-party support for a bill, as demonstrated by signed statements of support submitted to the Committee, or early day motions: bills where support from within both government and opposition parties, and, potentially, from both front benches, could be demonstrated would have a better chance of progressing;
- Any previous scrutiny history to the bill: for example, a proposal which had previously been published and had been amended in the light of scrutiny might be a better candidate to submit to the House;
- Popular demand for consideration of a legislative proposal, possibly as expressed through petitioning.
Members successful at the Backbench Business Committee would not then be eligible to enter the PMB ballot that session: Members who were not successful would subsequently be allowed to enter the ballot, and would if successful not be obliged to present the bill previously proposed to the Backbench Business Committee.
46.This step would, we believe, mark an important step towards revival of interest across the House in PMBs. We consider that a legislative proposition which has support on all sides of the House, backed by support from the public, will be more likely to result in engaged debates on sitting Fridays; and the criteria for the selection of such bills should be drafted to encourage Members to bring forward substantial and well thought-out measures for the House to decide upon. Realistically, the first opportunity for this system to be introduced is in the 2017–18 Session, but should the House approve the principle of the system early in the 2016–17 Session, then it would in practice allow parliamentarians, or groups of parliamentarians, to use the remainder of that session to lay the ground for well-founded legislative proposals to compete for the attention of the Backbench Business Committee at the beginning of the subsequent session.
47.We recommend that Standing Orders be amended, initially for the 2017–18 Session, to provide that the Backbench Business Committee shall determine up to four bills, to be set down as first order of business on the earliest sitting Fridays adopted by the House; and that a ballot then be held to determine Members to bring forward additional private Members’ bills, up to the total number of such bills to be allocated priority in each session.
Consequences for the Backbench Business Committee
48.The Chair of the Backbench Business Committee is presently elected by the House at the beginning of each Session.36 In order for the scheme outlined above to work as smoothly as possible with the existing ballot system, the time taken to elect the Committee Chair at the start of the session will have to be drastically reduced. Should the House adopt our proposal, the Backbench Business Committee in the next session of Parliament will be engaged in determining the criteria to be adopted for consideration of bills in the 2017–18 Session. We consider that, having drawn up the criteria, all members of that Committee should have the opportunity to operate the system which they have envisaged and devised.
49.We recommend that, in the event that the House adopts the proposal on the role of the Backbench Business Committee outlined above, the Chair of the Backbench Business Committee elected for the 2016–17 Session should continue to serve on that Committee for the 2017–18 Session, and that the relevant Standing Order be suspended accordingly.
The ballot
50.We have already expressed concern at the number of bills which appear on the Order Paper which have little or no chance of progressing. While some of these bills, brought in following a short statement under the ten minute rule, or presented under Standing Order No. 57, may progress, if genuinely uncontroversial, the purpose of many such bills is largely declaratory and political and few can expect to receive any debate, let alone progress to committee. The Leader of the House considered many of them to be “engendered as part of external campaigns rather than as serious bids for legislation”.37
51.While bills drawn in the ballot are generally seen to have the best chance of progressing, the limited number of days available for debating PMBs means that those which are drawn later in the ballot have little more chance of becoming law than those which are introduced by other means. At present, 20 Members, their names drawn in the ballot, are entitled to introduce bills and given priority in naming the days on which they wish to have them debated. The Clerk of the House told us that the limit of 20 names “has never been a Standing Order limit and is to some extent arbitrary […] there is no documented rationale for why this particular number was selected.”38
52.Of the 20 Members whose names are presently drawn in the ballot, the first seven have the best chance of their bill progressing. The following seven have longer odds—but, provided that they are not themselves controversial, still have a chance if they choose a Friday where the first bill is similarly uncontroversial. They may even progress on one of the six later Fridays, even though second readings do not take precedence on those days. The last six may choose to debate their proposal on one of those later Fridays, or they may choose to have their bill listed lower down on the Order Paper on one of the first seven PMB Fridays. In either case there is very little chance their bill would be given a second reading, except if it were remarkably uncontroversial in its scope and intent. Even if such a bill did receive a second reading on one of the last six Fridays, it is unlikely that, without tacit Government support, it would have enough time to go through a Public Bill Committee and then Report stage and third reading on the floor before the end of the session—not to mention completing its subsequent stages in the House of Lords.
53.We consider that in the present climate the number of Members chosen by ballot to introduce PMBs is too high. Those drawn at low positions in the ballot face an unappealing and potentially fruitless session seeking to make progress with their bills, should they choose to spurn a Government handout. Reducing the number of bills drawn from the ballot or otherwise given priority would mean that the percentage, though not the quantum, of bills which had a chance of making progress would be greater, resulting, we believe, in greater transparency and understanding of the likely outcomes for ballot bills.
54.We therefore consider that the total number of bills selected for priority consideration should be reduced from 20 to 14. This would allow every Member successful in the ballot to have, at worst, one of the second slots on one of the first seven Fridays. However it would not stop a Member from choosing to gamble on one of the last six days if they wished: a Member would still have the option to put their bill down for one of the final six days if this appeared preferable to following a bill likely to be debated for a full day. Presentation Bills and ten minute rule Bills would still take their place further down the queue for legislative time.
55.We recommend that Standing Orders should be amended to provide for a maximum number of priority legislative opportunities allocated to Members on sitting Fridays. We further recommend that the total number of bills selected for priority consideration be reduced from 20 to 14. Of those 14 slots, up to four are to be filled by bills to be chosen on their merits by the Backbench Business Committee, and such bills shall have priority over ballot bills.
Demonstrating support for a bill
56.Currently the only way to demonstrate support for a private Member’s bill on the day of debate is to turn up in the Chamber to speak in support. There is a perverse incentive, however, in that Members supporting a bill which is opposed may decide not to make a speech, or make only very short speeches, in order not to hamper the bill’s chances of progressing.
57.Our view is that the breadth of support for a proposal should be considered an important test of that proposal’s merits; an alternative system should therefore be introduced which would encourage Members to seek a broad consensus when preparing their bills, and enable them to make clear the extent of cross-party support for their bill if they so wished. Under this proposal, in addition to the names of up to twelve sponsors appearing on the face of a bill, a Member should be able to submit the names of additional Members supporting the bill, and the names of these supporters should be published on the effective Orders on the day on which the Bill is set down as an order of the day.
58.We recommend the introduction of a system by which Members in charge of ballot bills and bills chosen by the Backbench Business Committee may, if they wish, demonstrate cross-party support for their bill by having the names of additional supporters published on the Order Paper on the day that the Bill’s second reading is set down as an order of the day. This would require no change in Standing Orders.
59.Such a system could allow Members to demonstrate the support that their bill had received. While this would have no procedural effect, it may make the political cost of ending the bill’s progress more apparent to those who oppose it, particularly if the Member in charge had sought support from former Ministers, senior backbenchers or colleagues who are acknowledged policy experts. This system, coupled with our recommendation for a guaranteed vote on second reading for the first bill on the Order Paper, may result in more Members being willing to spend a Friday in the House for a bill that they particularly support.
Clarifying the status of bills
60.Our predecessors made a number of proposals for administrative changes to the handling of bills on the Order Paper and for other subsidiary procedural changes, many of which received the general support of the Government but which were not put to the House for endorsement.39 The Clerk of the House confirmed to us that all these recommendations were still capable of implementation as envisaged.40
61.In particular, recommendations that bills which had not been published should be clearly identified in the Future Business section of the Order Paper, and that a bill should not be brought in immediately after leave is granted under the ten minute rule, would assist in making the PMB process more transparent. Bills which had been drafted in full would, under these proposals, be more readily distinguishable from bills which comprised nothing more than a long title.
62.We endorse the recommendations of our predecessors set out below:
a)We 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.41
b)We consider that what appears on the Order Paper should be only actual bills which a private Member desires that the House should debate.42
c)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.43
d)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 amending Standing Orders to permit that a private Member may present only a single bill on any one day.44
e)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.45
f)We recommend that the Government engage constructively and at the earliest opportunity in discussions on money resolutions with Members actively seeking to get bills through the House, and demonstrate accountability for its undertaking to table such resolutions by responding fully to Parliamentary questions on such matters.46
g)We recommend that the Government give a clear commitment that, where requested by a bill’s sponsor, it will normally expect to table a motion to allow a public bill committee on a private Member’s bill to be nominated while public bill committee proceedings on another private Member’s bill are still active.47
h)We recommend that, in the Standing Orders and elsewhere where reference is made to them, the term “private Members’ bills” be replaced with “backbench bills”.48
63.In addition, we recommend that the following changes to the practice of the House on giving notice of bills should be made:
a)Following the last sitting Friday of each session, Future Business should no longer carry notices concerning any private Member’s bill, and a list of bills not disposed of should be separately published on the Bills before Parliament website.
b)After the last sitting Friday of a session, any ten minute rule bill introduced should be ordered to lie upon the Table, and should not be printed.
c)All unprinted private Members’ bills should be clearly indicated as such on Future Business and on the Bills before Parliament website.
64.In the longer term, we consider that the House should reassess its tolerance for Members introducing bills in dummy form—that is, presenting bills with a short and long title and list of supporters only. With the exception of the Finance Bill—the drafting of which is dictated by the timetable for preparation of the Budget—the presentation of legislation in dummy is a practice long denied to the Government in respect of primary and secondary legislation.
A decision by the House on the Committee’s proposals
65.In cases where the outcomes recommended above may be achieved by administrative action alone, we recommend that the necessary measures be taken with effect from the start of the 2016–17 Session. In all other cases we recommend that the House be given an early opportunity to express its view on the proposed changes.
66.The House may, of course, decide that it prefers to make no change to the existing procedures, and vote against all the proposals we have put forward.
Time for consideration of private Members’ bills
67.We have, in this report, considered the process of backbench legislation separately from the place of such legislation in the parliamentary calendar, though it is undeniable that the two issues are linked: if backbench legislation were taken on days when more members were present at Westminster, the calculations of business managers about the whipping of such business would undoubtedly change, and attendance at debates—and the likelihood of clear decisions on bills—might increase.
68.The present largely moribund nature of many parliamentary Fridays is an inevitable consequence of the increased gaming of procedures. Poor attendance in support of bills—in numbers insufficient to secure the supermajority for a closure—hand the initiative to a bill’s opponents, be they on the Treasury Bench or the backbenches. The reforms which we recommend piloting have the merit of prioritising popular and engaging measures to be debated on Fridays, to be chosen by the Backbench Business Committee on their merits and the strength of cross-party support across the House. Although we envisage that the model should be tried first on Fridays, it is a model which is transferable to other days of the week. We do not, for example, rule out the possibility of further amendments to Standing Orders to enable the Backbench Business Committee to schedule debates on legislation on Thursdays.
69.We note that the options of scheduling such debates on Tuesday and Wednesday evenings, after Government business has been disposed of, commands some support among colleagues. Caroline Lucas MP recommended that sitting hours be changed and PMBs moved to “a midweek slot where more members can attend.”.49 Professor Sarah Childs, of the University of Bristol, who has been researching reforms to make the House a more inclusive institution, rejected any attempt to move PMBs to evening sittings. Instead, she recommended a reconfiguration of the Parliamentary calendar whereby more time on Thursdays—now largely a backbench day—might be made for consideration of PMBs, with Fridays given over entirely to constituency activity.50
70.We make no recommendation here about alternative times for PMBs to be taken. Instead, we plan to address the sitting hours of the House in a separate exercise, taking the views of Members on existing sitting patterns and, like our predecessor Committee in 2012, proposing a series of neutral motions which will allow the House to come to a decision on its sitting patterns for the remainder of the Parliament.
29 For example, the Deputy Speaker declined to impose time limits on speeches on Second Reading of the Assisted Dying (No. 2) Bill, despite the fact that the debate was clearly oversubscribed: HC Deb, 11 September 2015, col. 656.
31 Procedure Committee, Fifth Report of Session 2013–14, Private Members’ bills: Government response and revised proposals, HC 1171, para 6
32 Q125 [Clerk of the House]
34 Q125 [Clerk of the House]
36 Standing Order No. 152J(3)
37 Q186 [Leader of the House]
39 Procedure Committee, Second Report of Session 2013–14, Private Members’ bills, HC 188, recommendations 7 to 11 (Order Paper) and 12 to 19, and Fifth Report of Session 2013–14, Private Members’ bills: Government response and revised proposals, HC 1171.
41 HC (2013–14) 188, para 70 (recommendation 11)
42 HC (2013–14) 188, para 66 (recommendation 7)
43 HC (2013–14) 188, para 72 (recommendation 12)
44 HC (2013–14) 188, para 76 (recommendation 13). A draft Standing Order change to achieve this recommendation is available at HC (2013–14) 1171, para 18.
45 HC (2013–14) 188, para 78 (recommendation 15). A draft Standing Order change to achieve this recommendation is available at HC (2013–14) 1171, para 20.
46 HC (2013–14) 1171, para 28
47 HC (2013–14) 1171, para 29 (recommendation 18)
48 HC (2013–14) 188, para 85 (recommendation 19). Draft Standing Order changes to achieve this recommendation are available at HC (2013–14) 1171, para 22.
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15 April 2016