Evidence
169. As the Clerk of the Parliaments pointed out,
"Although this concept is simple, the procedures by which
the Houses reach agreement (or not) can be extremely complex."[246]
The Clerk of the House of Commons noted that "Commons procedure
in respect of 'ping-pong' is based on custom and practice, but
practice has evolved in significant respects in the last decade
or so… Although the underlying options - whether to agree,
disagree, amend or propose amendments in lieu - appear straightforward,
in practice the exchanges between the Houses can soon become exceedingly
complex as the process of sending Amendments back and forth continues."[247]
170. The Clerk of the House of Commons suggested
that two modern practices have added to the complexity. The first
is that Lords Amendments are now routinely considered at the same
sitting at which they are received from the House of Lords. The
second "has been the consideration of Lords Amendments in
'packages',[248] rather
than individually, so that exchanges may contain subtle variations
in the packages of alternative suggestions (amendments in lieu)
sent back to the House of Lords."[249]
Packaging
171. For at least 40 years it has been the practice
in the Commons to group Amendments for the purposes of debate.
"Packaging, which only applies at a relatively advanced stage
of ping-pong, is simply a way of formalising that and wrapping
up as one motion a group of Lords amendments, a motion to disagree,
an amendment in lieu or whatever it is."[250]
172. Packaging was first used by the Commons in the
1990s and has since been adopted by the Lords. Following a procedural
difficulty which arose in the House of Lords in May 2004 in relation
to the Planning and Compulsory Purchase Bill the Clerks of both
Houses and parliamentary counsel were asked to look at the practice
of considering Amendments in the other House in groups or packages
and the procedural consequences which could follow. An agreed
statement of position was issued on 21 July 2004.[251]
It acknowledged that "Packaging and grouping are useful ways
of signalling perceived connections between amendments. But these
are techniques for organising debate within each House; neither
House can be expected either to discover, or to feel bound to
follow, arrangements made by the other for the consideration of
amendments."[252]
173. In the opinion of the Opposition packaging "enables
a government to avoid the need for compromise by insisting, while
offering an Amendment in lieu on an unrelated matter. We think
this can operate in a highly unsatisfactory way and is a breach
of the convention that respect is paid to the other House's amendments
by each House." [253]
174. The Liberal Democrats "welcome the packaging
of amendments on closely related issues, as a way to improve the
efficiency of exchanges between the two Houses." They consider,
however, "that packaging should be a matter for the House
on a case-by-case basis and endorse the recommendation of the
House of Lords Procedure Committee that 'Packages from the
Commons should be considered by the House only if they are confined
to single or closely related issues, not disparate issues joined
together simply for reasons of convenience.'"[254]
175. One of the main difficulties associated with
'ping-pong' is that it often occurs at the end of a Session. Lord
Cope of Berkeley, Opposition Chief Whip in the House of Lords,
explained that it therefore "has to occur very quickly if
it is going to occur at all; and that piles on the pressure but
it also means there is less thinking time."[255]
He thought that the double insistence rule was very subtle "because
it means that each House has got to think about compromises each
time it passes backwards and forwards if it is not going to lose
the bill, and that means the Houses do move nearer to one another
gradually."[256]
In Lord Strathclyde's opinion, however, the Commons "have
come up with a ploy to get round double insistence, which is by
packaging amendments, making a very minor change to a part of
the Bill which has no relevance to the bit we are disagreeing
about and, therefore, drawing out the process."[257]
Minimum notice
176. Another difficulty relates to the period of
minimum notice. As the Clerk of the House of Commons pointed out
the new modes of proceeding "have gone a long way to undermine
what would have been regarded, 15 years or so ago, as the conventions
governing exchanges between the Houses. For example, it is still
stated in Erskine May…that the procedure for considering
Lords Amendments without notice is 'generally reserved for amendments
which are not material'; but that convention is now honoured more
in the breach than the observance."[258]
He described the underlying problem as being that "we have
these procedures …which have developed over a very long
time, and are based, I suppose, on the rationale that the two
Houses are genuinely trying to reach a compromise. The fact is
that now the habit has grown up in recent years that we immediately
get into something which is not an attempt to find a genuine compromise
but it is political arm-wrestling, no more or less than that."[259]
177. The Clerk of the Parliaments agreed. The convention
that business should be considered only with due notice "is
not applied to ping-pong at the moment, and there lies some of
the root of the trouble that we have with ping-pong."[260]
He added that "If the business managers knew that they
had to leave longer for ping-pong, that would be an irritation
but I think it would actually be to everybody's benefit in the
long run."[261]
178. A recent example of several episodes of 'ping-pong'
occurred in relation to the Prevention of Terrorism Bill 2004
when there were five exchanges in the middle of the night with
the solution only being achieved when the Leader of the Conservative
Party saw the Home Secretary giving an interview on television.
As the Clerk of the House of Commons asked, "That may be
a success in some people's eyes, but is it a parliamentary success?"[262]
He thought that there were two ways at looking at the way things
have developed: they could be seen as "a procedure responding
very flexibly to political demands and pressures" or as "a
total distortion of the underlying rationale and conventions that
govern what is going on when the Houses exchange reasons and amendments
at that stage."[263]
179. The Government argue that "each House is
entitled to expect the other to give due consideration to the
amendments sent up to it. The Lords can therefore reasonably expect
the Commons to provide time for consideration of Lords Amendments
and subsequent proposals, and the Commons can expect the same.
But, in both cases, this must be in the context of the right of
each House to govern its own procedures."[264]
180. The Opposition recognised that 'ping-pong' often
occurs at the end of a Session and therefore has to occur very
quickly if it is to happen at all. But they agreed "that
sometimes more time taken would reach a more desirable conclusion".[265]
Lord Strathclyde added that "during the ping-pong period,
you need a certain amount of time to see whether or not a compromise
is achievable."[266]
181. David Heath, the Liberal Democrat Shadow Leader
in the House of Commons, thought that "the idea that an amendment
can come from the House of Lords and within an hour or so be considered
by the House of Commons, Opposition parties having no opportunity
whatsoever to amend whatever the Government chooses to put down
as an amendment in lieu at that stage, with almost no debate in
the Commons… . is not a process that would suggest respect
between the two Houses from their points of view."[267]
182. The Liberal Democrats also note that "Officers
of both Houses have most trouble facilitating the ping-pong process
when the Government introduces amendments at short notice."
They therefore recommend that "a minimum notice period
of 24 hours for any government amendments should be considered."[268]
Convention or practice?
183. The Government point out that the exchange of
Amendments between the two Houses is subject to rules and practices
which have developed over time. "The practices are broadly
symmetrical, with the two Houses operating in a similar way, and
the arrangements in place - subject to the rules relating to financial
privilege - give neither House any priority over the other. The
rules and practices are set down, and are from time to time the
subject of examination. They are not in this sense, subject to
conventions of the same kind as those discussed earlier…,
save that each House may be expected to have due respect for the
other."[269] The
Government later reiterate that "these are not strictly matters
of convention" and state that they "would not want the
flexibility of the present arrangements, which broadly works to
the advantage of all sides, to be lost."[270]
184. In oral evidence Lord Grocott said that "the
issue of exchanges between the two Houses in a situation where
there is no majority for any government in the Upper House, which
is the situation which we all accept and will all live with, will
inevitably become something which needs to be discussed. I am
not looking for any suggestion of a convention or a rule but it
is clearly an issue which needs to be addressed."[271]
In supplementary evidence the Government state that "So long
as there is real dialogue in place, the Government accepts that
this is a legitimate operation of ping-pong. But the Government
does not accept that it would be right for the Lords repeatedly
to reject a Commons amendment without seeking to promote a compromise."[272]
185. The Opposition take a similar view: "Given
that both Houses will almost invariably want to avoid loss of
a Bill, the double-insistence rule forced each side to offer compromises
to avoid it and to perpetuate conversation."[273]
They argue that both Houses should offer more than 'cosmetic changes'
and allow more time for consideration of each other's proposals
to enable a search for compromise.[274]
186. The Liberal Democrats too regard 'ping-pong'
as "more an integral part of the legislative process than
it is a convention governing that process."[275]
They describe three distinct situations in which 'ping-pong' procedures
come into play: "(a) where controversial decisions are taken
in the middle of a Session; (b) where amendments shuttle between
the two Houses at the end of a Session and disagreement could
mean the Bill is lost unless carry-over is invoked or where the
provisions of the Parliament Acts apply; and (c) where amendments
shuttle between the two Houses at the end of a Parliament and
where a Bill will be lost in the 'wash-up' if agreement is not
reached except where the provisions of the Parliament Act apply."[276]
They consider that codification is "entirely unnecessary,
and would risk setting in stone procedures and protocols which
should be, as they are now, flexible in order that exchanges between
the Houses can take account of the prevailing political circumstances."[277]
187. In written evidence the Clerk of the House of
Commons noted that "it is difficult to see how it would
at the moment be practical to codify any conventions relating
to 'ping-pong'. Current practice is not based on any codifiable
principles; and any codification that was so based would be bound
to remove some of the speed and flexibility which have characterised
the proceedings of the House of Commons on Lords Amendments in
recent years and which the House and Government of the day evidently
value."[278]
Conclusion
188. We agree that the exchange of Amendments
between the Houses is an integral part of the legislative process
that is carried on within the context of the primacy of the House
of Commons and the complementary revising role of the House of
Lords. It is not a convention, but a framework for political negotiation.
189. We also acknowledge the value of the convention,
with which all parties agreed, that neither House will in general
be asked to consider Amendments without notice. We believe
that it would facilitate the exchange of Amendments between the
two Houses if that convention was more rigorously observed, i.e.
if reasonable notice was given of consideration of Amendments
from the other House. We recognise that this convention may
have to be breached at the end of a Session when pressure of time
makes rapid exchanges of messages between the Houses inevitable;
but this should be the exception, not the rule.
244 Companion to the Standing Orders and Guide to the
Proceedings of the House of Lords,
para 6.160. Back
245
Erskine May, 23rd edition, 2004, p 639. Back
246
Ev 89, para 54. Back
247
Ev 101, para 12. Back
248
Packaging refers to the practice in the final stages of a Bill's
passage, where a number of related amendments may be grouped together
for the purpose of both debate and decision. Back
249
Ev 101, para 13, Back
250
Q 240. Back
251
HC Hansard, 21 July 2004,Vol 424, cols 36-38WS;HL Hansard, 21
July 2004, Vol 664, cols WS 19-21. See also Appendix 5. Back
252
Ibid. Back
253
Ev 37, para 4.6. Back
254
Ev 65. 1st Report of the House of Lords Procedure Committee, Session
2004-05, HL 48, p 4. Back
255
Q 107. Back
256
Ibid. Back
257
Q 104. Back
258
Ev 101, para 14. Back
259
Q 247. Back
260
Q237. Back
261
Q 239. Back
262
Q 247. Back
263
Q 248. Back
264
Ev 9, para 63. Back
265
Q 107. Back
266
Q 108. Back
267
Q 191. Back
268
Ev 64, Introduction. Back
269
Ev 9, para 62. Back
270
Ev 9, para 65. Back
271
Q 26. Back
272
Ev 30, para 16. Back
273
Ev 37, para 4.6. Back
274
Ev 3, para 4.6. Back
275
Ev 64. Back
276
Ev 64. Back
277
Ev 65, para 19.1. Back
278
Ev 101, para 16. Back
