The Open Lecture was hosted by the Department of Politics at the University of Hull. The video was recorded by the University of Hull.
David gave an insight into the passage of legislation, from his unique perspective as Director General and drawing on experiences throughout his career in the House of Commons.
The Passage of Legislation lecture transcript
David Natzler, Director General of Chamber and Committee Services in the House of Commons: Can I start by thanking the University of Hull for inviting me to give the latest in this Open Lecture series under the auspices of the Parliamentary Outreach Service. It is a particular pleasure to me to be here in Hull, for the first time since I bicycled here from London 25 years ago to raise funds for Anti Slavery International. It is also a special privilege as a great, great, great grandson of William Wilberforce to be in the Wilberforce Building, so I am genuinely thrilled.
Around 700 years ago, in the 1320s, one of my distant predecessors produced a little manual in Latin on how to hold a Parliament, entitled Modus Tenendi Parliamentum, or ‘The Way of Holding a (or possibly, ‘the’) Parliament’. Most of it is about who is to attend, how they get paid, where they sit and so on. Only one of its 36 paragraphs deals with what a Parliament is actually supposed to do.
After discussion of affairs of state comes "matters of common concern to the kingdom, so that laws shall be enacted against the defects of customary law..." …. So already, Parliament was there for political discussion of great matters of State, for the assent to or withholding of taxes from the monarch, for discussion and settling of grievances, but also increasingly, from the 14th century, it was expected to legislate.
Now its non-legislative functions are still crucial to Parliament's daily life in holding the Executive to account, through debate and scrutiny and question. In recent years these have taken centre stage, and understandably so. They are relatively accessible and highly visible. Select Committees, and in particular over the last 30 years the departmental select committees, are the jewel in our crown. Prime Minister's Question Time plays to an audience of millions. The regular urgent Questions that the current speaker has introduced keep the Commons abreast of breaking news. And debates on issues, as a form of political discourse, are a well understood form of political dialogue.
By contrast, Parliament’s legislative function is complex, sometimes inaccessible, text based, and to some eyes infuriatingly slow. A Bill may take all of 12 months or more to progress from introduction to Royal Assent, going through all its stages in both Houses and gathering around it a panoply of papers and documentation, all beautifully set out on the Bill pages of the Parliament website, www.parliament.uk if you want to follow them.
The procedures we use in Parliament to debate and decide on legislation are widely seen by academic and political observers as needing reform and refreshment. So in a limited time what I'm going to try to do is to convey some of the fascination and significance of Parliament's legislative role. I am conscious that it is a political subject. Bills are basically politics in action. Same-sex marriage: welfare reform: the European Union: banking …. Enough said. But it sure does make them interesting.
I am going to limit myself just to the Commons and, in order to be topical, just to the parliamentary session which just ended two weeks ago on 25 April - session 2012-13 - the second session of this Coalition Parliament. And I'm going to limit myself to primary legislation, that is to say Bills that become Acts of Parliament that have the force of law, rather than secondary legislation - which are statutory instruments made under powers granted by an Act to Ministers. I may drop in a few modest suggestions for reform.
I regret that there is no time to discuss pre- or post-legislative scrutiny or the role of the Joint Committee on Human Rights, the Lords Constitution Committee or the Lords Delegated Powers and Regulatory Reform Committee.
So what is legislation about, and what is it not about? Well for example it doesn't really cover public expenditure except for form's sake: spending plans are not subjected to the discipline of legislative procedure, nor are levels of Government borrowing or money supply. Foreign affairs and defence remain relatively unconstrained by legislation. There are now one or two EU Bills each session; this session year we had three, including Croatian accession, and there will be one in the current session. Every 5 years there is an Armed Forces Bill which sets out the legal basis under which the Forces operate.
By and large those subjects are not the subject of legislation. But in general terms just about everything else can be: in a sovereign parliament, everything can be legislated for except the weather - and of course the Climate Change Act even tried to do that. We are now legislating on subjects that the first Queen Elizabeth would have been appalled by - interfering with Succession and criticising the episcopate of the Church of England.
For whom do we legislate? The answer is: the United Kingdom or for its constituent parts. Virtually all Bills cover England; most also cover Wales and some still cover Scotland and Northern Ireland, in whole or in part. That is why on and off for the last 30 years people have been asking what's known as the 'West Lothian Question', named for the then constituency of Tam Dalyell: is it right that Westminster MPs from Scottish or indeed Northern Ireland constituencies can vote on legislation which has no effect on their constituents? And if not, is it possible to devise arrangements for English Members to have some sort of special voting rights on England Bills, without undermining the validity of a Government of the United Kingdom that relies on having a majority for its validity? Put crudely, why should Scottish MPs be able to vote on your university fees?
England and Wales Bills are in fact the exception and not the rule. Only two of the 15 major Government Bills last session - on Defamation and Marriage (Same Sex Couples) - were England and Wales only. And that can change during their passage through parliament: in committee on the Defamation Bill, the clause protecting peer-reviewed statements in academic journals from action for defamation was extended to Scotland during its passage through the commons.
There has been a Commission (The McKay Commission) that has recently reported on the West Lothian question, but I think it's fair to say that immediate results are not expected.
This session there was a Scottish Bill which I will mention because it had some unusual characteristics. It was called the Partnerships (Prosecution) (Scotland) Bill [Lords] - which originated in a report from the Scottish Law Commission. Its tragic origins lie in a fire in January 2004 at the Rosebank Care Home in Uddingston in South Lanarkshire in which 14 residents died and where the owners were found to have infringed health and safety rules. They were in a partnership, soon after dissolved, and in 2008 the High Court of Justiciary decided that a dissolved partnership could not be effectively prosecuted and fined. Because it didn't exist anymore - and therefore nor could the individual partners be fined. As you can imagine for the relatives of the 14 who died in the fire this was intolerable. So the Bill makes it now possible to fine a partnership even if it doesn't exist, although not of course retrospectively. I don't suppose most Members, even enthusiastic observers of legislation, will have noticed the passage of this particular Bill but it does meet in a small way that 1320s definition: that some Bills are there to improve the law. A lot of them of course are not.
Where do Bills come from? A number of the larger Government Bills come down the traditional route of policy formation, debate and development, party manifesto, sometimes media excitement, Whitehall digestion, Green Paper and consultation, White Paper and possibly pre-legislative scrutiny and then through the sieve of the Parliamentary Business and Legislation Committee of the Cabinet, to arrive on the floor of the House.
Some have been years in the preparation: last session's Defamation Bill began in 2010 with Lord Lester of Herne Hill's Private Members Bill on the subject. Others have their origins in events - things that happen. I have already mentioned the Partnerships (Prosecution)(Scotland) Bill. Another one last session was the Police (Complaints and Conduct) Bill which arose out of the Hillsborough Independent Panel report into the 1989 Hillsborough disaster, to enable the Independent Police Complaints Commission to reopen the case and oblige serving police officers to be interviewed as witnesses. So those were cases where 'stuff happened'.
Now if we could move to a less sombre example - are there any Czechs here? No? fine. The European Union (Approvals) Bill covered three separate issues requiring primary legislation. One was to establish that the electronic version of the European Union’s Official Journal could be taken as the authoritative one. It arose out of a case brought by the Czech customs authorities against a wine importer from Olomouc who had in 2004 wrongly categorised as a fortified desert wine an imported alcoholic drink known as Kagor - a Russian version of Cahors, used as communion wine in the Russian Orthodox Church. Analysis in Prague had found the presence of sugar beet alcohol and corn spirit as well as grape juice.
The importer got off prosecution for wrongly labelling it because he said that the new EU customs regulations are only now available electronically in Czech and therefore he could not be expected to have read them. As a result of which, years later this strange piece of legislation arrives in the Commons and we have to spend time on it. So we owe our thanks to Skoma Lux of Olomouc, once Olmutz, where a number of my Slovak ancestors used to do business, selling the fine wines of western Slovakia, which I assure you have no corn spirit in them.
What are the main characteristics of Bills? First, they are written in a language which is not simple and which has to stand up in court under hostile scrutiny and has to have precise meaning. That means legal language, however un-user-friendly that may be. Sometimes that means real intellectual complexity; sometimes it means length.
Few Bills are an island unto themselves, unrelated to other statute, so they have to refer back to and often amend the existing mass of statute law which has itself been amended.
I learned last week that every year around 10 to 15 thousand changes are made to existing statute law by new statutes - I'd imagined about 100-150, but there are thousands of little changes going through all the time. That makes it challenging to keep up with what the current law actually is, never mind how it's being changed. And it does suggest to me that Bills changing existing law should as a matter of routine be accompanied in one way or another, hard copy or electronically, with a text showing how the relevant bit of existing law would look if amended as proposed.
What are the main characteristics of legislative procedure? I am sure there are better academic definitions than I could give and that a number of you in the room are the ones best suited to doing it, but let me give you some:
- First it is gradual and staged, it's not sudden - it's not a resolution - it takes time. A single bite is not enough, the material is chewed over and it is time-consuming.
- Secondly, at Westminster, it is bicameral, which sometimes means that the same meal is made of it in both Houses in succession. And it's a nuisance to change law once you've passed it for those reasons: it takes as much time and trouble to change it as it did to agree it in the first place.
- And most importantly it is textual and substantive - it's not intended to be contextual or symbolic or illustrative: it's not a work of literature. It is not for the faint-hearted.
It is often stated on the basis of no evidence and against all probabilities that Bismarck - whose knowledge of legislative process must have been pretty distant, and who once said that a Bavarian was halfway between an Austrian and a human being - said: "Je weniger die Leute daruber wissen, wie Wurste und Gesetze gemacht werden, desto besser schlafen sie nachts".
Which basically means – "the less that people know about how sausages and laws are made, the better they will sleep at night."
So I hope you'll still be able to sleep at night at the end of this lecture.
So let's go to the Queens Speech in May 2012, which gave notice of 15 main Government Bills. All but one – on House of Lords Reform - have now become Acts or are likely to do so fairly soon. The Queens Speech gives a list but it's not an exclusive list; she says: 'Other measures will be laid before you' - and they are.
Some are too minor to be worth mentioning. Some may still have not got the agreement of others: notably from last session, the Succession to the Crown Bill which awaited the agreement of all the Commonwealth realms to the end of male primogeniture in succession to the Crown. Others were in effect emergency legislation: where events have produced the need for law.
The Police (Complaints and Conduct) Bill which I have mentioned, and the Mental Health (Approval Functions) Bill passed through in a day in October when it was discovered that in some regions the power to approve specified doctors to detain patients under the Mental Health Acts had been in technical terms improperly delegated. Of more political interest was the Jobseekers (Back to Work Schemes) Bill in March 2013 which dealt with the consequences of the so-called Poundland case, [Reilly and Wilson v the SoS for DWP].
Others reflect on-going policy development within Government. Government policies are not set in stone every May. Politicians have ideas throughout the year. The Infrastructure (Financial Assistance) and the Growth and Infrastructure Bills introduced in the autumn gave effect to Ministerial proposals which had only crystallised in the summer and autumn of 2012, as did the Welfare Benefits Up-rating Bill in the winter. And the Marriage (Same Sex Couples) Bill introduced in January of this year represented the outcome of a consultation begun in March 2012, but whose outcome was by no means certain by the time of the Queens Speech in May 2012.
Who can bring in legislation? The answer is: any Member, whether or not supported by another Member - you don't need a ‘seconder’ - can simply present a Bill: and once its presented it gets a First Reading automatically - it doesn't need to have been printed - you just need a short title and long title in order to present it and a day is then named for Second Reading.
Presentation is a mere formality. There are survivals of earlier procedures. I'll mention one that's of political significance and that's a Ten Minute Rule Bill, which is a motion where you seek the leave of the House to bring in a bill. Now, that is in fact the skeleton of a procedure which covered all Bills until relatively recently - 200 years ago.
Twice a week on Tuesdays and Wednesdays after Oral Questions and Statements a Member has the chance to make a short speech seeking the leave of the House to bring in a Bill. Convention - since a Speaker’s ruling in 1931 - is that the "brief explanatory statement" permitted is to last for no more than ten minutes - hence a ‘Ten Minute Rule’ Bill. Then another Member can make a similarly lengthed speech in opposition and there can be a vote; there aren't many - there are about 45 Bills a year and we had 3 votes in the last year. So it's a chance for a speech, but it is a remainder of some old tradition that the House didn't just let people present Bills - they had to have leave first of all.
On a side note - the Abolition of the Slave Trade Bill – if you remember, the first great debate on it was on a motion for leave to bring in the Bill.
Getting a Bill presented is one thing: for a backbencher getting it debated, let alone decided upon or even passed into law is a very different matter. For backbenchers there is a ballot, drawing 20 numbers out of a hat more-or-less at the start of each session: next Thursday morning I will be drawing the numbers and the Deputy Speaker will read out the names. For the first time - and this is breaking news - this year for the first time we will be doing it in reverse order. So this time the first member drawn out will be number 20 and the excitement will grow unbearably to see who is then number one.
These Members then get priority on the 13 Fridays set aside for Private Members Bills each session. The overall system is such that only non-controversial Bills enjoying active Government support, no active opposition, and often drafted by Government lawyers, are most likely to reach the statute book. Of the ten that reached the statute book last year, 9 were exactly that: “hand-outs”, meaning Bills from Government departments for which there was no time in the Government’s legislative programme. Usually short and usually relatively non-controversial. The Procedure Committee is about to produce a report on this which will no doubt suggest quite radical changes in procedure.
A quite separate category of Bill is a Private Bill: in simple terms it’s a piece of local legislation. As I am here I must mention the Humber Bridge Bill, introduced in January and which has almost completed its Commons stages. The Bill, among many other amending provisions, sets new statutory maxima for tolls. I was glad to see that pedal cycles will continue to be free of toll as I recall they were 25 years ago. It will also deal with speeding on the Bridge. I just mention that in case any of you drive.
From now on though, I will be dealing with the most important category: Government Bills - Bills presented by Ministers. The principles of a Bill are discussed at a debate on the Question that a Bill be read a second time. The debate is usually scheduled to last for a day, meaning up to around 6 hours, and the question is a simple one: Yes or No. It is many, many years since a Government Bill was defeated on Second Reading. So you may say:
“Why bother debating it if you know it's going to get a second reading anyway?”
There are three groups of people who benefit:
- Ministers, as it gives the Ministers proposing the Bill a chance to set out - in public and televised - what the bill is for and explain what the provisions of the Bill will do, and to put the Bill in a political context
- the Opposition, who have a chance to explain their view on the bill, which may well include welcoming some aspects and opposing others, and which may not therefore be susceptible of a simple Aye or No
- and lastly backbenchers, who get an opportunity to make a speech setting out their views and to raise specific issues of concern, but most crucially to intervene on a Minister speaking and put a question to him or her and get an answer on one specific issue in the bill that maybe causes them concern. In such a large legislature, with a constricted timetable, individual backbench Members can otherwise be largely divorced from any detailed engagement with the process of legislation.
It’s not strictly true to say that it is merely a Yes/No Question. In the Commons you can table what's called a Second Reading Amendment, which must be framed so as to be fatal to the Bill if agreed by the House. Or you can express, in no more than 250 words the reasons why you dislike the Bill: that's a “reasoned amendment”. If passed it is of course fatal to the Bill.
If it is a straight party vote the Government will win, but the procedure offers the Opposition a chance to not vote against the straight Question on Second Reading which follows: and avoid being on the record as having voted against a provision in it that they support, it being not uncommon that a Government Bill combines proposals palatable as well as unpalatable to the Opposition.
An example was on 19 December when the Opposition tabled a reasoned amendment on the Energy Bill which affirmed support for reforms to the electricity market but objected to the absence of a decarbonisation target. So they voted on their amendment but then did not vote against Second Reading of the Bill.
Once a Government Bill has been given a Second Reading, it's the subject of a Programme Order. The system of programming or timetabling legislation, as opposed to just allowing unlimited time for committee and later stages and then imposing an allocation of time or "guillotine" order if progress was too slow, started modestly in 1997, and in 2004 became the rule.
Now virtually every Government Bill is programmed. It sets a date by which the Bill has to come out of committee; it limits the time to be devoted to the Bill when it comes back to the floor of the House for Consideration and Third Reading. If made at the same sitting as that in which the Bill was read a second time, the question on the programme motion is put without debate and without the possibility of moving any amendment.
That is a bit ruthless and I think there is a good case for allowing for some sort of amendments, to be moved at least, to programme motions because those are the ones that constrain the amount of time that can be spent on talking about it.
At present, a Member who wishes to put forward an alternative has first to persuade the House to defeat the Programme Motion and then leave it to Ministers to bring forward an alternative on a future day.
It was not foreseen by my predecessors that a Government Bill would be given a Second Reading, but that the Government would then not move the motion for the Programme Order, leaving the Bill floating in the air. This is actually what happened in July 2012 with the House of Lords Reform Bill.
On 12 July, Ministers suspected that they would be defeated on the programme motion if they moved it, because although the Opposition had been willing to give the Bill a Second Reading they were going to vote against the programme motion because they didn't want any constraints on the length of time the bill was allowed to go through the House.
They were joined by a number of Conservative backbench rebels, some of whom will have voted against the Second Reading of the Bill and others who had showed their doubts about the bill by saying they didn't want to have any limitation on the debate. And with no limitation on a bill of that nature it would go on forever and ever.
Rather than lose, Ministers declined to move the Motion. So the Bill was not committed to a Committee of the whole House as proposed in the Motion. So where was it? We described it colloquially and apparently theologically incorrectly as being “in limbo”. The Bill should have been described as “awaiting committal” which I felt had slightly sinister undertones. It was in the event soon withdrawn altogether.
Usually though, Government Bills are committed either to a Public Bill Committee or to a ‘Committee of the whole House’ or, occasionally, divided between the two; or in exceptional cases to a select committee. The principal class of Bills committed to select committees are what are called 'Hybrid Bills': which are Bills presented by Ministers under normal public bill procedures, which in some way have unequal effects on some class of private interest.
They are rare, but not that rare; we have the prospect soon of the HS2 Railway Bill, which will be a hybrid Bill because it affects some of the country’s householders very differently to others! That means it will probably be committed to a select committee, which will proceed not as in a public bill committee by debate but by hearing witnesses and petitioners and at the end producing a report to the House together with an amended Bill. And the quinquennial Armed Forces Bill which I mentioned earlier is committed to a select committee.
Select committees already in existence can and indeed do look at Bills or parts of Bills and report on them, but they cannot amend them as the Bill has not been formally sent or committed to them. Consideration is being given to doing that more often - committing more bills to Select committees where the spirit of select committee investigation and inquiry rather than partisan debate can be imported.
It is a generally observed convention that Bills of 'first class constitutional importance' - I've never seen a bill described as of second or ‘tourist class’ constitutional importance! - are committed to a Committee of the whole House, which means that the whole of the 650 members become a committee so that all Members can table amendments and take part in debate and decision on the details of the Bill.
So are urgent Bills, since it is by its nature a swifter procedure than setting up a public bill committee: in this past session for example the Mental Health (Approval Functions) Bill. It is also used for short and relatively uncontroversial Bills such as the Infrastructure (Financial Assistance) Bill. And it is used for short but controversial Bills, such as the Welfare Benefits Uprating Bill. The advantage for the Govt is that if the Bill is not amended in committee there is no Report stage, and it can proceed straight to Third Reading.
There are drawbacks in scrutinising a Bill in Committee of the whole House:
- Members can find a rather empty Chamber a more daunting place to pursue probing amendments or to expose their possible uncertainties about a Bills effect than a committee room upstairs.
- There is none of the shared sense of purpose which can at their best characterise sittings of a public bill committee.
- Voting is time consuming in the Chamber - 15 minutes per vote compared to a minute or two upstairs.
- There is usually less time. And of course,
- a committee stage downstairs cannot begin with hearing oral evidence from witnesses, nor can written evidence be accepted.
The Electoral Administration and Registration Bill had three days consideration in committee of the whole House in June 2012, and I think many Members involved would have found it more easily dealt with in a public bill committee upstairs. More thought is being given to dividing Bills so that maybe vital bits could be dealt with downstairs but most other bits could go upstairs, allowing for oral and written evidence; and all Members might be allowed to take part in committees upstairs in such cases, although not to move amendments or vote.
Public bill committees, to which most Bills are committed after Second Reading for detailed debate on the basis of amendments and debates on each Clause, typically comprise 20 or so Members reflecting the party composition of the House, in effect nominated by the whips. The Wright Committee on Reform of the House of Commons concluded in 2009 that it was about time that the means of selecting these members should be looked at. The Hansard Society is about to bring out a report that will I think make some radical proposals so I will say no more now on that.
A year ago Louise Thompson of Hull University - who is here I think - published a paper in Parliamentary Affairs on the impact of public bill committees over the first decade of this century. Interestingly, it showed that these committees were spending much longer scrutinising Bills and discussing many more amendments than 30 or 40 years earlier, but that very few significant amendments were made.
An article on their operation a few years ago was headed "Rubber Stamp or Cockpit". Are they just a rubber-stamp or are they places where political battles are fiercely fought? A bit of both, I would say. The public bill committee on the Marriage (Same Sex Couples) Bill made not a single amendment; I read an article about this that said: “What a waste of time!”
I don't think it was - there were fantastic debates - I would encourage you to look at them if you have the time. There was one division that produced a tied vote - 7 votes each. But all the issues that people wanted to raise were raised, discussed and there is now a much clearer idea amongst those people who now, in about 2 weeks time when the report stage comes up in the House of Commons, will at least have crystallised what is a real worry and what isn't, depending from which of the many sides of the argument you come.
We might usefully ask: what we can reasonably expect from these committees? We should not expect forensic non-partisan scrutiny and learned debate. These are not postgraduate seminars in an Institute of Legislative Studies in the cloistered calm of a University campus; they are a political debating forum on a detailed series of policy propositions that have been put forward by Ministers.
The debates and probing by way of amendment have the effect of exploring the provisions of a Bill to see if it stands up to hostile but not wholly destructive analysis, much as cross-examination in a court is designed not so much to expose lies as to uncover the truth.
The output is not to be measured by actual or prospective changes, small or big; the amendments discussed are often merely a way of framing a question or crux on which to argue rather than a formed desire for a specific textual change... they are the foundation of a debate.
This requires Ministers to defend the proposals in the Bill and that in turn means that they must be satisfied with what the officials on the Bill team are telling them. So the terms of a Bill are tried and tested in the crucible of debate.
Secondly, the Opposition can determine what their detailed views actually are; by no means always obvious when the Bill is first debated at Second Reading.
Thirdly, and perhaps potentially most importantly, the world outside - civil society -should as a result have a clear idea of what the Bill is intended to achieve and how it will operate: that is an educative or expository function. The audience for the Ministers speeches may be small but it is important and not confined by any means to the Westminster and Whitehall village. Interest groups and individuals can follow proceedings on audio and video or read a transcript.
Procedures in public bill committees, and similarly for Bills in Committee of the whole House, are not all designed to achieve these ends. They are perhaps excessively attuned to a strictly dialectical process of textual amendment. It is also odd to me that it is not made easy for genuinely inquiring Members to ask straightforward questions and get straightforward answers. It's assumed you should put down amendments. I think there may be space for a more directly and explicitly interrogatory procedure through a process of oral and written question and answer rather than relying always on amendments.
In recent years, public bill committees have started with several sessions of oral evidence - question and answer from a range of witnesses. That is intended to help committee members identify the detailed issues and to give civil society a chance to make representations. Again I would urge you to look at the Marriage (Same Sex Couples) Bill for a good example of really interesting and vigorous oral evidence from a range of people, including a particularly argumentative bishop.
Before we had evidence of course civil society still had contact with members, so that sitting in the room with the committee would be say the RSPB, say, or the Institute of Housing - who would have memoranda they would hand out to members perfectly properly, and they would talk to them in the corridor outside. It was always going on. The advantage now is that it is completely transparent - we can all know what interest groups are telling Members - and it is not unusual for committee members to latch onto and quote witnesses whose views they favour.
One disadvantage is that Bills starting in the Lords - about a third of major Government Bills start in the Lords rather than the Commons - do not normally have oral evidence sessions. They can take written evidence on Bills but not oral evidence. The Lords do not have committees on Bills, undertaking all their legislative work on the floor of the House or in a Grand Committee in which all Peers can participate. I suspect that this convention will soon be revisited.
I want to talk for a moment about the Public Reading Stage. The Coalition Agreement committed to introducing something called a 'public reading stage' so that members of the public could comment on Bills in detail. We've had three of these so far - the most recent one was on the Children and Families Bill. It is uncertain whether and when there will be more but I suspect in this session there will be another one.
It is in a sense merely an extension of what we're doing anyway - actually going out to the public with an electronic forum with the Bill on it where you can look and you can at, say, Clause 22, post a comment. And somebody will read it. I'm not going to say they'll change the bill as a result but somebody will read it.
After committee comes Report or, technically, Consideration: where the House as a whole has a chance to amend a Bill. Many Members find this stage frustrating. The 2009 Wright Committee identified this stage as the most unsatisfactory.
Ministers can use this stage to bring forward new material to add to the Bill, perhaps in response to the committee debates or perhaps because it was not quite ready to bring them forward before, and the Official Opposition has a chance to get votes of the whole House on the points it feels most strongly about, and - sometimes neglected or squeezed out - it is a chance for backbenchers to bring forward amendments.
Even with broad debates thanks to the Chair's ability to group many amendments on at least distantly related subjects, there is often simply not time - or perhaps it is ineffectively used or distributed - for all matters to be debated or voted upon.
There are a range of possible remedies being looked at for this as it is in a sense the most crucial weakness in our legislative procedure. A recent example was the Report stage on the Crime and Courts Bill [Lords] which was hijacked at the last minute by a debate which all sides wanted on new Clauses giving effect to the Leveson Report, thus knocking out debate on other important matters such as extradition.
Finally we have Third Reading, the last stage of a bill. These are generally rather lacklustre debates of an hour at most where there is a mood of self-congratulation and general relief from the main participants.
Third Reading does give the House, and Members, a chance to look at the Bill as a whole and decide if they approve it as amended in committee and on report: Bills can change substantially in their passage through the House, and at the very least a Member can vote for second Reading of a Bill where he or she may have doubts without giving up the right for another yes/no vote depending on how things turn out.
That this is not purely theoretical was shown on 7 March this year when the Justice and Security Bill [Lords] was given a Third Reading by 222 to 13. The Opposition abstained. The 13 opponents and 2 tellers comprised 6 Labour, 4 Liberal Democrats, 3 SNP, one Conservative and one Green. This offered this handful of Members concerned about Closed Material Procedures - secret evidence in civil cases - a chance to put their strong opposition on the record.
But it may be that the briefest of debates is enough.
So now it's a sigh-of-relief as the Bill leaves the Commons and goes up to the Lords – but is that the end? No, it isn't. If a Commons Bill comes back from the Lords with Amendments the Commons then have to look at those Lords amendments and that can go on until the text is agreed - the whole of the text is agreed - by both Houses. Now the back and forth for some reason people call 'ping pong'. We even now call it ‘ping pong’ on our website, I'm embarrassed to admit, because there's no other short phrase for it.
The basic idea is to leave well alone – not to reopen discussion on text that both Houses have agreed to, but to concentrate on the areas of disagreement. Those familiar with family life know how important it is to define as closely as possible the scope of any possible family arguments so that they don't spill over into ‘who takes out the bins’ or ‘who does the washing up’, for example.
The Commons can:
- agree with a Lords Amendment and does so in the vast majority of cases. Why? Is it because of the senatorial wisdom of the House of Lords? Perhaps, but it might have something to do with most of them having been sponsored in the Lords by Ministers in the first place
- amend a Lords Amendment, and then seek the agreement to that amendment - usually but not always in a fairly friendly way.
- disagree to a Lords Amendment. Where the Commons disagrees, it assigns a Reason, the text of which is agreed by a mini-committee of 5 members.
If it disagrees to a Lords Amendment, it can propose an Amendment in lieu - that is, an alternative, but related proposition.
Or if the original Amendment sought to leave out some words, they can amend the words restored to the Bill. For example, if the Lords amendment said: “Leave out Clause X – we don’t like it”, the Commons can say: “No, no. We disagree to that amendment - we want to maintain Clause X - but to go a little way to meet your concerns we will amend Clause x and we'll send back some amendments to the words restored.”
And also - which is a nightmare - they can propose consequential amendments as a result of any of the above.
So you see why it's fun – it’s a sort of wonderful intellectual game - except it’s not a game - and it is easily understood if you concentrate on the fact that it's about politics and policies. And that makes, for me, the last week in every session the most enjoyable and sleepless and exciting.
There is an issue with money and Lords Amendments.
Basically, the Lords are not supposed to take the initiative on spending money or imposing tax. That is the privilege of the elected House. So when Amendments come back from the Lords which seem to do either of those two things they are identified as infringing the Commons' Privileges and designated with the magic letter ‘P’ next to them. Most of these are agreed to anyway, as in common with the bulk of Lords Amendments they are Government-backed.
The ‘P’ is simply to say: "We have noticed this involves money" - but we're very happy to agree to it.
Where the Commons disagrees to a Lords Amendment which has been denoted as engaging Privilege it is a strong convention that the Reason given is that it engages privilege and the Commons hope that this is sufficient explanation. This Reason in turn triggers a convention in the Lords that if they wish to persist in some way on the issue they will not send the same amendment back, nor one which would again trigger the ‘Privilege Reason’.
For example, in the last session there were 16 amendments to the Public Service Pensions Bill that were denoted as engaging Privilege. 14 of these were simply agreed to by the Commons. But two were not - these sought to improve the pension terms of the Defence Fire and Rescue Service and MoD Police. The reason the Commons disagreed to it isn't really because of the money: it's a matter of the policy involved - the Government felt strongly that we shouldn't be extending the same early retirement provisions to the MoD Police as maybe enjoyed by the other police forces.
But we have to send back a Reason and we say we disagree because of money - which then annoys their Lordships who feel we're trying to hide behind money when actually we just straight disagree with them.
So why bother to have Reasons?
The fact is nobody knows. Reasons are a survival I believe from distant days when neither House knew what the other was saying - there was no transcript. So the Lords would suddenly receive a message from the Commons saying: “We disagree with your amendment 17” - and the Lords would say: “Well, why?” And nobody would know.
Now of course when every Hansard is on the web within 3 hours of it being said and certainly next day in a bound volume - it's very easy to find out what the real reason is for disagreeing to an amendment.
It also dates back to the days when the two Houses would meet together and appoint managers - the way that Congress still does - to try to work out a compromise. So when the delegations from the two Houses met they relied on Reasons to form the basis of a negotiated agreement.
You'll be delighted to hear - I have exhausted myself and you, and we have not got to the Lords let alone to Royal assent or the use of Norman French. I just hope that what you have heard has inspired you a little with an interest in the passage of legislation, a recognition of its importance and of its close connection with politics - which is why I've tried to give examples from Bills on matters that are of substantial political interest - and a willingness to engage with the legislative process.
Thank you very much.