Private Members' bills: observations on the Government response Contents

2Observations on the Government response

9.We note with concern that in its response to our April 2016 report the previous administration failed to commit to a substantive debate on a motion to bring our proposals into effect. We note also that the report made by our predecessors in March 2014 received no response before the dissolution of Parliament in March 2015. It is hard to avoid the conclusion that the previous administration had been dodging the serious issues raised by an increasingly discredited legislative process and failing to meet its responsibilities to the House.

10.The behaviour above has been going on for far too long. Efforts to increase the transparency and reputation of the process must no longer be subject to continued procrastination: the House must have an opportunity to come to a decision on our proposals. We are concerned that the Government may fail yet again to engage with the main recommendations of our 2016 report and with our sensible and constructive proposals. If that is the case we may have no option but to advocate abandoning balloted private Members’ bills altogether and dispensing with the deception that this House offers backbenchers any serious legislative opportunities.

11.The Government suggested that “the Backbench Business Committee may wish to allocate time for a General Debate in the House” to consider our proposals. This is not satisfactory. Implementation of our proposals would require the House to agree upon changes to Standing Orders. Such changes should be put formally to the House for a decision on a motion moved by a Minister of the Crown. A general debate in backbench time does not provide the means to make the necessary changes. We also note that the House has already had the opportunity to discuss reforms to the private Members’ bill system in a general debate in Westminster Hall.5

Prioritising certain bills on merit

12.We noted in our report that the ballot system “tends to discourage the measured preparation of legislation for introduction” because it encourages legislation to be considered for introduction only once a Member has secured a ballot slot to introduce a bill.6 We recommended the introduction of a system where the Backbench Business Committee would consider bids from backbenchers for the introduction of bills. The Backbench Business Committee could choose up to four bills which would have their second readings debated in the first four backbench legislative opportunities in each session. Should the Committee consider that no bills merited such priority treatment, it would be under no obligation to recommend any.

13.The Government was “not convinced that the majority of Members would endorse a supplementary ballot system” and “remained concerned that the proposed change might be seen [as] limiting opportunities for backbench Members”.7 We find this argument against our proposals wholly unconvincing. We are confident that our proposed system is robust enough to at least be piloted. The most effective way to find out whether Members will endorse our proposals is to have them debated in the House and put to a vote. Our proposals were designed to encourage substantial and well-prepared legislative proposals to be brought forward for priority consideration. It is in the interest of all Members, and of the Government, for proposed legislation to be better prepared. This proposal of given effect should ensure that some high quality legislation originating from backbenchers reaches the floor of the House for debate.

14.Accordingly, we repeat our recommendation that Standing Orders be amended 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

15.In order for the system outlined above to work as smoothly as possible, we proposed that the Chair of the Backbench Business Committee elected for the 2016–17 Session should continue to serve as Chair of that Committee for the 2017–18 Committee. The Government did not believe that it would be “possible to implement such a change in a timely way given the proposal to debate these matters further”.8

16.We disagree—there is plenty of time to implement this proposal. We fully accept the unique position of the Backbench Business Committee and the necessity to hold both the Chair and the Members to account regularly, and sessional elections are an obvious way of achieving this. However the length of time between the Queen’s Speech at the start of a session and the election of the Chair and appointment of members of the Committee would make the mechanics of our proposal difficult to achieve.9 It is also, we would add, the cause of an unfortunate hiatus in the rest of the Committee’s work in performing the duties the House has set it.

17.We recommend that the Standing Orders should be amended to provide for the Chair and the Members of the Backbench Business Committee to continue in post after a prorogation until the date of election and appointment of the next Chair and Members in the new session. This proposal would not only facilitate the smooth running of our key recommendation but would also provide continuity in the work of the Backbench Business Committee, so that there is no hiatus in their standard work, while at the same time maintaining that Committee’s full accountability to the House.

Guaranteed vote on second reading

18.We recommended that the House should have 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. This would reduce the number of bills which fail to receive a Second Reading because a Member has “talked a bill out” (that is, spoken on a bill up to and beyond the time at which, under the House’s Standing Orders, substantive proceedings must lapse). We recommended that the guaranteed vote on second reading should be achieved by amendment of the Standing Orders (rather than by convention).

19.We agree with the Government that “it is an important principle for the House to have time to duly consider bills”10 and we acknowledge the option of claiming the closure to ensure that the Question is put. Our proposals would not have reduced the time available for the House’s consideration of a bill at Second Reading on any Friday in the 2015–16 Session. They may well have reduced the scope available to a Minister to dilate at the Despatch Box as the last speaker in a Second Reading debate, requiring instead that a Minister must argue persuasively against a Bill within the time available on the day rather than relying on remarks prepared just to extend the debate beyond 2.30 pm.

20.The Government points out that the closure is available to Members in order to ensure that a bill receives a vote at Second Reading. In this assertion the Government ignores several current realities of parliamentary life. Members are increasingly unwilling to give up time in their constituencies to be in the Chamber for a debate in which they often find themselves unable to make a speech, or, in order not to hamper the bill’s chances of progressing, able to make only a very short speech: those Members who do wish to speak in support are loath to do so at length if there is a likelihood that those in opposition will speak with the express purpose of talking out the bill. Claims for a closure motion are accepted at the strict discretion of the Chair, and there is no guarantee that a closure will be granted on a bill which is not the first order of business on any given Friday. To achieve a closure when it is granted and opposed there must be at least 102 supporters of a bill in the House: there is of course no possibility of 102 Members being called to speak in a debate on a Friday. So there is a decreasing likelihood that Members will turn up to vote on a closure motion, and then a Second Reading, on any bill when in reality the odds are stacked against its progress.

21.While we acknowledge that the House must have time for adequate consideration of bills, we also recognise that the rights of all Members who wish to participate in such consideration should be able to do so. We therefore consider that the Chair should be free to apply time limits on days where private Members’ bills have precedence. We recognise that while the Chair already has the power to do so (under Standing Order No. 47), its occupants have not been prepared to invoke this power on sitting Fridays since this would change the rules of engagement without the clear endorsement of the House.11

22.We anticipate that, with the endorsement of the House, the Chair would use the power in Standing Order No. 47 to enable all backbench speakers wishing to be called in a debate to participate, and to allow sufficient time for a Minister to make concluding remarks. Since the provisions of paragraph 3 of Standing Order No. 47, which allows the Speaker to announce time limits of 20 minutes for the Minister, the Opposition front bencher and the spokesperson for the second largest Opposition party, are rarely used by the Chair, the Opposition or Government frontbenchers could still attempt to talk out a bill: in these circumstances it would be for the bill’s sponsor to claim the closure. It would of course be open to the Chair to impose the 20-minute time limit in exceptional circumstances—for instance, if a Minister were to speak at great length to seek to avoid a vote on a bill where overwhelming support for the measure had previously been expressed in debate.

23.We recommend that the House should explicitly approve the use of Standing Order No. 47 by the Chair on days where private Members’ bills have precedence in line with current practice in other debates, including backbench debates.12

24.Should the House wish to consider the option of a guaranteed vote on Second Reading on the bill which is the first to be debated on each of the first seven Fridays, we propose a draft Standing Order change which would achieve this objective.13

Number of ballot bills

25.We are not persuaded by the Government’s argument that the number of bills selected for priority consideration (that is, ballot bills) should not be reduced because it “would reduce opportunities for Members to develop policy and engage with departments and Ministers”.14

26.Our recommendation was based on the rationale that, currently, of the twenty Members whose names are drawn in the ballot, the first seven have the best chance of their bill progressing. While the following seven have longer odds, they still have the chance to progress provided that their bills are not themselves controversial and they choose a Friday where the first bill is similarly uncontroversial. (They may also have the chance to progress even if they choose one of the later six Fridays when second readings do not take precedence.) This reckoning has underpinned tactical calculations on private Members’ bills for decades—indeed, when a previous Procedure Committee considered the matter three decades ago, it was assumed that only the bills set down first on the days when Second Readings had precedence would have any chance whatsoever of progress.15 As we noted in our recent report, the final six bills have very little chance of progressing to a Public Bill Committee without explicit Government support.16 If a bill did so progress, it would be unlikely to have enough time before the end of a session to go through Committee, Report stage and Third Reading, not to mention all stages in the House of Lords, unless its passage were cleared in advance.

27.The fact that six Members will be drawn from the ballot whose bills are almost guaranteed to make no progress without active Government assistance is a contributing factor to the lack of transparency and comprehensibility in the system. As we noted in our previous report, Members drawn at low positions in the ballot face an unappealing and potentially fruitless session seeking to make progress with their bills.17 Therefore reducing the number of bills drawn from the ballot (or otherwise given priority) would mean that the percentage, though not the total, of bills which had a chance of making progress would increase. We consider that this would result in greater transparency and a better understanding of the likely outcomes for ballot bills.

28.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”.18 We note that the Speaker has discretion to decide how many bills are given priority consideration in the ballot. Therefore, we invite the House to agree a resolution that the Speaker may exercise his discretion over the number of Members to be drawn in the ballot.19

Other proposals

29.We repeated in our report the recommendation of our predecessor Committee 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”.20 The Government did not agree with our proposal, stating that it “does not wish to restrict the opportunity for Backbenchers to present legislation”21. This argument misses the point of our proposal: we wish to ensure that all backbench Members have the opportunity to present legislation. We do not consider that this objective is best achieved by the present system. Presently, on the first day when notice of presentation bills may be given, a Member who is first in the queue at the Public Bill Office may give notice of multiple bills, and claim slots for the second reading of each bill which immediately follow the slots assigned to ballot bills on each sitting Friday, thereby monopolising any debating time on Fridays which may remain after proceedings on ballot bills are disposed of. This “winner takes all” practice can itself contribute to the gaming of procedures on sitting Fridays.

30.Therefore, we repeat our recommendation that the Standing Orders be amended to permit that a private Member may present only a single bill on any one day.22

31.In response to the evidence our predecessors received relating to the incomprehensibility to the general public of the process, we recommended that the term ‘Private Members’ Bills’ be replaced with “backbench bills”. We believe that the term ‘backbencher’ is more easily understood than ‘private Member’ and will therefore go some way in helping the public to understand the purpose of the process. This is not a matter for the Government, it is a matter for the House. Accordingly, we repeat our recommendation that, in the Standing Orders and elsewhere where reference is made to them, the term “Private Members’ Bills” be replaced with “backbench bills”.23

32.Apart from the proposals above—which appear to remain controversial in certain quarters—we made a number of recommendations in our previous report which the administration under Rt Hon David Cameron MP accepted. Some of our proposals require changes to the Standing Orders, some require the House to agree a resolution and others are simple administrative changes to increase transparency.

33.We recommended 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 its Second Reading. We maintain this recommendation. A draft Standing Order change is annexed to this report.

34.Our previous report also set out the following recommendations, which have been agreed to by the Government:

a)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;

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; and

c)that the Future Business paper should list private Members’ bills only when they have been set down for a day on which private Members’ bills have precedence.

We recommend that the House has an opportunity to agree to our proposals on the formal introduction of ten minute rule bills and the listing of bills set down for a future day by endorsing motions to enable them. Draft motions to achieve this are set out in Annex 1.

35.Other recommendations which were agreed to by the Government were:

a)following the last sitting Friday of each session, the Future Business paper 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; and

b)all unprinted private Members’ bills should be clearly indicated as such on the Future Business paper and on the Bills before Parliament website.

We have taken advice from the Clerks and consider that these changes are merely administrative and can be made by the House service without further debate. We have therefore written to the Clerk of the House and the Principal Clerk of the Table Office to ask them to make these changes. A copy of our correspondence is printed in Annex 2.

A decision by the House on the Committee’s proposals

36.We have made clear on several occasions that the private Members’ bill process cannot continue in its current form. We see no point in continuing with a system that is so enormously damaging to the reputation of the House and to the legislative process. In the teeth of the obduracy of successive Governments on this matter, we and our predecessors have come forward with a series of incremental, rational and modest proposals for reform. We invite the House to experiment with them, to be prepared to evaluate and re-evaluate their effectiveness, and to be prepared to look again if the consequences are not what was intended or if the experiments suggest further beneficial options for reform.

37.In the last twenty years or so the House has seen something of a revolution in its procedures, including the creation of sittings in Westminster Hall, programming of virtually all government legislation, the re-invention of backbench business, and most recently the introduction of the elaborate machinery of English votes for English laws. Meanwhile, procedures for backbench legislation have remained in their current state, resting on procedural practices and assumptions which would be familiar to Members of a century, if not two centuries, ago. There are arguments to be made for tradition, but they are unconvincing when adherence to past rituals makes the House look ridiculous, puny and ineffectual.

38.The House must have the opportunity to decide on our proposals, which will go some way to provide a solution to the deep concerns that many Members and the public have with the private Members’ bill process. We look forward to this administration providing time for a debate and decision on our proposals at the earliest opportunity. The outcome for which we aim is a system of backbench bills which encourages the bringing forward of seriously intended and achievable proposals for legislation; which makes sense to outside observers; and which gives a chance for rational and persuasive debate to triumph over shadowy gamesmanship.

39.Without meaningful change to the present process, we find it difficult to see how there can be any viable future for the consideration of private Members’ bills on Fridays: unless action is taken in short order, it is quite possible that support for the House sitting on any Friday may further diminish.

5 HC Deb, 13 April 2016, col. 85WH

6 Third Report of Session 2015–16, Private Members’ bills, HC 684, para 39

7 Appendix, p.22.

8 Appendix, p.22.

9 The Queen’s Speech at the start of the 2016–17 session was on 18 May 2016. The Chair was elected on 24 May. Committee Members were not appointed by the House until 13 June.

10 Appendix, p.21.

11 For example, the Deputy Speaker declined to impose time limits on speeches on Second Reading of the Assisted Dying (No. 2) Bill in Session 2015–16, despite the fact that the debate was clearly oversubscribed: HC Deb, 11 September 2015, col. 656.

12 A draft motion to this effect can be found in Annex 1.

13 A draft motion to this effect can be found in Annex 1.

14 Appendix, p.22.

15 Select Committee on Procedure, Second Report of Session 1986–87, The Use of Time on the Floor of the House, HC 350, para 66

16 Third Report of Session 2015–16, Private Members’ bills, HC 684, para 52

17 Third Report of Session 2015–16, Private Members’ bills, HC 684, para 53

18 Written evidence to the Committee’s inquiry from the Clerk of the House of Commons [PMB 15] para 8

19 A draft motion to achieve this recommendation can be found in Annex 1.

20 Third Report of Session 2015–16, Private Members’ bills, HC 684, para 62

21 Appendix, p.23.

22 A draft Standing Order change to achieve this recommendation can be found in Annex 1.

23 Draft Standing Order changes to achieve this recommendation can be found in Annex 1.

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14 October 2016