Statutory Law and Parliament

 

Legislative Procedure in the House of Commons 

One of the principal functional tasks of Parliament is the passage of legislation. This section of the pages explores that function.


Organisation of time

1. The Commons is usually in session (it meets) on about 170 days per year. It may be noted that this figure has barely changed over the years. The figure in 1906 was 160 days. Why has Parliamentary sittings not expanded with the growth in Government business? A short and compressed Parliamentary session suits both Government and Opposition. The Government limits the effort it has to make to keep Parliament and its own backbenchers occupied and satisfied, whilst the Opposition believes that the less time for business, the more chance it has to obstruct the wishes of the Government. About half of the time available (about 700 hours) is spent debating Bills. Out of this 700 hours, Government Bills take up about 650 hours, Private Members' (ie MPs who are not members of the Government, whether they belong to the same part as the Government or not) Bills about 50. Clearly there is priority to Government business and this is formally recognised by Standing Order (S.O.) 13(1) - that Government business shall have precedence at every sitting except for 10 Fridays per session when, under S.O. 13(4) Private Members' Bills have precedence. VOLUME OF LEGISLATION  

ACTS OF PARLIAMENT 
.  No. of Acts  No. of ss./scheds. 
1901  40  400 
1921  67  701 
1951  66  803 
1971  81  1963 
1991  69  1985 

 

STATUTORY INSTRUMENTS 
.  No. of SI's 
1901  156 
1921  727 
1951  2335 
1971  2167 
1991  2945 

 

2. The allocation of the 550 hours to the 40 to 50 Government Bills introduced each session is the responsibility of the Leader of the Commons (a Cabinet Minister) by the Chief Whip (another Cabinet Minister). They enter into discussions "behind the Speaker's Chair" with opposition spokesmen and try to agree a timetable. However this is often not possible in regard to highly contentious Bills, so the Government may have to resort to the time saving devices.

3 One of the reasons why the organisation of time is so crucial is that there is a drastic cut-off point. Unless most Bills pass through all their stages in the space of one session, they must start from the beginning again in the next. (There are exceptions for private Bills and Hybrid Bills which will not be explored). This rule has the advantage of impeding unpopular legislation which the Government tries to push through. If the Opposition can slow it down through constant debate and argument, then it can be "lost" for want of time. On the other hand, the rule limits the time given to the scrutiny of legislative details, which mainly reduces the chances to iron out drafting errors, omissions and ambiguities in Governmental legislation. It means especially that there is a lot of bunching of legislative business at the start and end of each session; this has been made worse by bringing forward the Finance Act from March to November. Another important adverse effect is on the chances of passage of non-Governmental Private Members' Bills. It is clear that the rule on balance benefits the Government, so it has been suggested by the Modernisation Select Committee (The Legislative Process (1997-98 HC 190) para.68,102) that it should be possible to carry Bills over two sessions (as in the U.S. Congress) - the effect will be to allow much more time for scrutiny.

  BILLS INTRODUCED IN SESSIONS 1983-87  

Government Bills  209 introduced 

(of which 88 introduced in Lords) 

    200 passed 
Private Members'  441 introduced 

(79 ballot bills 

195 10 minute rule 

107 without notice 

60 from Lords) 

    68 passed 

4. As for the time-saving devices mentioned earlier, the first such device is to amend or suspend the standing orders relating to the normal Commons' timetable. E.g. By having a late night sitting (normal closing time is 10.30pm) or by postponing the summer recess (= holidays!).

5. Time is also saved by delegating the discussion of a Bill at certain stages to a committee so that the Commons chamber itself can be used for other purposes.

6. Next, there may be a closure motion under S.O. 35, 36. Any Member of Parliament may request during a debate that "the question be now put".

After a question has been proposed, a Member rising in his place may claim to move, `That the question be now put,' and, unless it shall appear to the Chair that such motion is an abuse of the rules of the House, or an infringement of the rights of the minority, the question ... shall be put forthwith.

If the Speaker considers that the matter has been adequately debated so that the closure motion is not an abuse of the rules or an infringement of minority rights, the closure motion is then voted on without further debate. If it is passed (with at least 100 MPs in favour), the Commons then votes immediately on the substantive issue it had been debating. When the rule is used in Committee Stage debates (see later), there must be at least 17 or a third of the Members in favour who are also a majority of those present - S.O. 89. Closure motion effectively curtails lengthy speeches once debate is under way. But more recently there was some abuse of the opportunity to make speeches in the course of proposing a motion or amendment. In these cases, by S.O. 28 passed in 1986, any member may propose that "the question now be proposed" and unless an abuse, that question shall be put, and the same special majority is needed.

7. A special form of closure is the guillotine under S.O. 81 when dealing with really contentious Government Bills.

If a motion be made by a Minister of the Crown providing for the allocation of time to any proceedings on a bill Mr. Speaker shall, not more than three hours after the commencement of the proceedings on such a motion, put any question necessary to dispose of proceedings.

This tactic provides an alternative to the frequent resort to closure motions. A Minister (and only a Minister) may propose that the Bill completes its proceedings by a specified date. This motion is debated for a maximum of 3 hours and, if agreed to, a committee of MPs under S.O. 45, called the Business Committee, allocates the time available to each part of the Bill. This means that each part can only be debated in the Commons for the allotted time - after that the guillotine falls and a vote must immediately be taken on that part. There has been a heavy increase in the use of guillotines since 1979.

The Government claims that this is not simply the result of an arrogant administration wishing to have everything its own way. Rather, there is evidence that the rationale of the guillotine may be changing. For very controversial Bills, the guillotine may be a way of pacing and thereby improving debate. It ensures measured discussion ab initio. A number of Procedure Select Committees have endorsed this idea. It was raised in 1984 and again by the Jopling Committee more recently (for all Government Bills after their Second Reading). But the proposal has not been accepted - not least by the Opposition, which fears the loss of the weapon of delay. Towards the end of the 1992-1997 Parliament, a practice of informal time-tabling developed. The Modernisation Select Committee sees much value in what it calls "programming" but recognises the political difficulties (The Legislative Process (1997-98 H.C. 190) paras.60-64, 89).  

Use of the Guillotine 
Period  Bills 
1888 - 1921  1921 - 1945  1945 - 1975  1974 - 1979  1979 - 1989  36  14  30  11  47 

See House of Commons Factsheet No.23 on Guillotine Motions

8. The next device is the Kangaroo. By SO31 the Speaker has the power to select which amendments to a Bill are to be debated.

In respect of any motion or any bill under consideration ... Mr. Speaker shall have power to select the amendments new clauses or new schedules to be proposed thereto.

This device is mainly used (under S.O. 89) at the Committee Stage of the Bill (which I shall discuss later). Unlike the other devices, this does not require a motion asking for its use but is utilised at the discretion of the Speaker or Chairman of a committee.

8. Finally, apart from these devices, it should of course be borne in mind that both Government and opposition operate a system of strict party discipline throuth their Whips Offices. Note also the impact of the Payroll Vote - Members of the Government, now numbering about 90 in the Commons (compare the figure of about 50 up to 1939).


The Passage of a Bill - Prior to Introduction

1. A number of things have to be done before a Bill is introduced into the Commons.

2. First, the Bill has to classified since there are different procedures in Parliament defining on the classification.

- Public Bills - are bills dealing with matters of public, general interest. These fall into two categories - Government Bills (those introduced by a Minister) and Private Ministers' Bills (those introduced by backbenchers of any party).

- Private and Local Bills are Bills which affect specified persons per categories or localities and are introduced by those individuals or local authority. See further House of Commons Factsheet No.33.

- A Hybrid Bill is usually a Government Bill which has special effects on particular individuals and so are treated in many ways like a private Bill. E.g. the Channel Tunnel Act 1987 was treated in this way since it had special impact on landowners in Kent. House of Commons Factsheet No.35.

3. The origins of the most prominent Government-sponsored (sponsored = proposed by them) Bills will be the political party election manifesto and later developed policies (often announced at party conferences) of the Government party. But a significant number of Bills will also be inspired by international treaties, suggestions within departments or by reform commissions (eg the Law Commission). About a quarter of Government Bills are routine - they are passed every year, whatever Government is in power - eg Consolidated Fund Bills.

As for the processing of Government Bill's, after the Cabinet and its Legislation Committee have approved the proposal for a Bill, the relevant Minister in charge of sponsoring it instructs the departmental civil servants who in turn contact the Parliamentary Counsel to the Treasury (the handful of Government lawyers who actually do the drafting). Many drafts may be produced, and in the early stages interested outside groups may be consulted. When the Bill is finally settled, it will be looked at by the Legislation Committee and possibly the whole Cabinet).

The Parliamentary Stages of a Government Bill is the subject of the House of Commons Factsheet No.1.

4. The origins of Private Minister's Bills (Bills sponsored by an MP other than a Government Minister, typically a backbench MP from any party) are more varied. Very often, the MP will adopt the proposals of a pressure group or an official body like the Law Commission. If nothing else comes to mind, a Government party MP may instead go to the Government Whip's Office which will give him a list of Bills the Government would like to see passed. This has the advantage that the MP will be given Government facilities for drafting and perhaps even Government time in Parliament to get the Bill through.

The Private Members' Bill Procedure is the subject of the House of Commons Factsheet No.2 and details of the success rates are given in House of Commons Factsheet No.67. From 1974-75 to 1987-88, 1320 Private Members' Bills were introduced, 178 were passed.

5. Despite these procedures, a lot of Bills are not aired in public in great detail before they are introduced into Parliament, so that there is usually little time for the Commons or the public (including experts and interested or affected groups) to comment on the specific provisions of proposed legislation. To remedy this problem, it was suggested by the House of Commons Select Committees on Procedure as long ago as 1971 that draft Bills could usefully be referred to pre-legislation committees of MPs (1970-71 H.C. 538). This is very rarely done at present - a rare example is the Obscene Publications Act 1959, a very controversial Bill which was considered first in draft by a select committee. More recently, Charter 88 has suggested a standard pre-legislative scrutiny for all Bills in a recent briefing paper on Modernisation of the House of Commons (June 1997). The Liaison Committee has also argued that draft bills should be referred to select committees for consideration (The Work of the Select Committee System (1996-97 H.C. 323, para.32). The Modernisation Select Committee (The Legislative Process (1997-98 H.C. 190)) has also expressed concern that by the time the Commons sees the content of Bills, "they are largely set in concrete" (para.7). It therefore calls for Bills to be produced in draft and for the drafts to be scrutinised by an apprpriate committee, such as departmental select committee or an ad hoc committee (para.91). The Government has agreed to produce seven Bills in draft in 1997-98 but may does face the potential problem that this added stage could be very time-consuming and it would certainly allow for more opposition to be expressed. So, it remains to be seen how it works in practice and in how many cases.


The Passage of a Bill - Introduction and Thereafter  
 

1. The first stage of the process, the First Reading, is very simple for a Government Bill. The title of the Bill is read out, the Bill is ordered to be printed and a date is fixed for the Second Reading. Thus, there is no debate and no vote on the Bill. Though short and simple, this is seen as a wasted opportunity by the Modernisation Select Committee - the earlier changes can be suggested, the more likely they are to be accepted (The Legislative Process (1997-98 H.C. 190) para.32). It therefore suggests that at least some Bills could be referred to a First Reading Committee and that in most cases Explanatory Materials should accompany the Bill (paras.32, 36, 92, 93).  

2. For Private Ministers' Bills there are three possibilities for obtaining a First Reading:

i) First such a Bill may be introduced at any time after due notice under SO58.

A Member may, after notice, present a bill without previously obtaining leave from the House to bring in the same.

The Bill is read a first time without a vote or debate and a date for the Second Reading is fixed.

ii) A more popular method, since it ensures more publicity for the Bill, is the "10 Minute Rule" under SO19. After giving the required notice, an MP may ask for leave to introduce a Bill after Question Time on Tuesday and Wednesday.

On Tuesdays and Wednesdays ... notices of motion for leave to bring in bills ... may be set down for consideration at the commencement of public business ...

The MP has about 10 minutes to explain it, and opponents have about 10 minutes to oppose it. There is then a vote, and if leave is given to introduce the Bill, that is its First Reading. There is a queue for the use of this time - more MPs want to introduce Bills than is possible in the time available.

iii) The method most likely to successful is for the backbencher to take part in the ballot held at the beginning of each session under SO13(5). Hundreds of MPs put their names in a hat, and 20 names are drawn out. The Bills sponsored by these 20 are then given their First Reading on the 5th Wednesday of the session - (SO13(10)) and in addition, the first 10 can claim some expenses for drafting their Bills.

A very low proportion of proposed Private Ministers' Bills are actually passed through all their stages and become an Act. A cynic might say that such Bills are a waste of time and that there is too much legislation anyway. There is also not much prospect of improving matters. The Select Committee on Procedure (Private Ministers' Bills 1994-95 HC 38, para.32) recognised that it is unrealistic to expect significant changes to be made in Common's rules which would allow the easier passage of Private Members' Bills, since the results would inevitably lead to conflict and inconsistency with the policy objectives of Governments. In reply, it may be argued that such Private Members' Bills do serve some useful functions:

- a small number are passed and therefore perform a useful legislative function

- second, most Governments actually prefer moral issues to be dealt with in this way to avoid straining party discipline.

- third, even unsuccessful Bills command the attention of the public and Government and may prompt or pressure Government action.  

3. The Second Reading of a Government Bill accounts for about 15% of its Parliamentary life. The idea of this stage is to debate the Bill as a whole. No amendments to individual clauses are allowed, only a vote on the Bill as a whole in principle. Occasionally the Second Reading is dealt with by a Committee of MPs, but if a small number of MPs object, a Second Reading Committee cannot be used (SO 90). It was agreed in 1994 that Bills based on Law Commission reports could as a matter of practice be referred to a Second Reading Committee, unless the Government objected. Between 1965 and 1994, 139 Bills were so referred. The Modernisation Select Committee calls for greater use of these Committees but recognises they are only feasible in non-controversial cases (The Legislative Process (1997-98 H.C. 190) paras.38, 94). There are also special committees for regional Bills: the Scottish Grand Committee, S.O. 94; the Welsh Grand Committee, S.O. 98, and the Northern Ireland Grand Committee, S.O. 99). These regional procedures will no doubt be changed when devolution is instituted for Scotland and Walles. See further: House of Commons Factsheet No.65 on Scottish Business.

4. Most Private Ministers' Bills never surmount this stage.

i) Those MPs high up in the Ballot are lucky in that they are allotted 6 Fridays per session under SO13(4). Thus, the first six in the Ballot are sure of time to debate their Second Reading but even they face two problems in actually passing that stage.

- one is to ensure the quorum of 40 MPs

- second, a Bill may be "talked out" by its opponents - in other words, if the debate is not concluded by the close of the sitting on Friday, the matter is adjourned to another Friday, when it has no priority. A way round this would be for the sponsoring MP to bring a closure motion - but that requires 100 MPs in support, and that number of supporters is not easy to muster on a Friday afternoon. As a matter of practise and perhaps convention, the Government does not use the whips system to oppose backbenchers' legislation. But it has been known to use its Payroll Vote - i.e. making sure enough Ministers are present at the vote - and they number almost 100.

ii) For the remaining 14 Bills in the Ballot and for Bills under the 10 Minute Rule or under SO58, the backbenchers still have to try and pick a time when there is room for debate. One tactic is to opt for one of the Fridays available for ballot Bills. If the debate on one of the top six ballot Bills end early, priority is given to the next balloted Bill on the list. But there is usually time to debate only one Bill per sitting and this means that the other ballot Bills, and almost certainly the Bills introduced in the other ways, will only be raised at the end of the sitting without anytime for debate. The problem then is that if any single MP shouts "object", the Bill does not then get its Second Reading and the sponsor must try again on another Friday. A rare recent example of a successful 10 Minute Rule Bill - Transport Act 1962 (Amendment) Act 1981 (experimental reopening of railways lines).

5. There is one final, vital rule concerning the Second Reading. Any Bill which proposes the spending of public money must be accompanied by a resolution allowing that expenditure. This resolution is customarily voted immediately before or after the Second Reading - but note - under SO46, the resolution can only be moved (proposed) by a Minister. Thus, Private Minister's Bills usually have no chance if they require any public expenditure, which considerably reduces their scope.

Note:

(i) The finance resolution for Finance Bills is voted on at the First Reading.

(ii) The wording of the financial resolution is very important, as the Commons can vote to reduce it but not expand it, so the more specific the resolution, the fewer the amendments which can be admissibly raised and considered.

(iii) If a Bill affects Royal interests or Prerogatives, the "Queen's Consent" is required - this is signified by a Privy Counsellor (a Minister) at the Second or Third Reading. It is alleged that the procedure allowed the Queen to persuade the Government to exempt her from employment controls in 1976.

6. The next point on the Bill's journey is the Committee Stage.

When a public bill ... has been read a second time, it shall stand committed to a standing committee unless the House otherwise order.

The idea of this is to give a thorough examination of the Bill - all clauses of the Bill can be debated and voted on individually, clause by clause (NB a Bill contains clauses not sections), and this takes up about 65% of the Bill's Parliamentary life. By SO61, public Bills are automatically referred to a Standing Committee unless the Commons positively decides that the whole House (ie all MPs sitting together in the Common's main chamber) should debate the Bill (SO 64). The modern practice is that the whole House only considers

- the main proposals in the annual Finance Bill

- Bills having to be passed quickly; see eg Prevention of Terrorism (Additional Powers) Act 1996

- very short Bills not requiring detailed examination

- and Bills of constitutional importance

(see: Select Committee on Procedure, 1946-47 HC 9).

Most Bills therefore go to a Standing Committee under SO684 consisting of 16-50 MPs and they are nominated under SO86 by a Committee of Selection nominated by the party whips, but with a chairman who is a senior MP appointed by the Speaker. SO86(2) requires this Selection Committee to have regard to two matters:

(i) the qualifications of those nominated - are they specialists in the field?

(ii) the composition of the House as a whole. For example, at the present time, the Conservatives will hold a majority on each committee, while, during the last minority Labour Government, it was agreed that Labour should have equal numbers with the opposition.

Having been constituted, the Standing Committee may meet over a period of weeks or even months to consider and debate amongst themselves changes to the Bill. Virtually all amendments supplied by the Minister at Committee stage (often of a minor drafting character) but only about 5% of the thousands of opposition amendments are accepted. So the process does ensure scrutiny and explanation but rarely secures any major hostile changes to the Bill.

Perhaps the main problem which prevent more rigorous scrutiny is that Opposition MPs lack the information and expertise at the disposal of Ministers through their civil servants. A possible way round this would be to refer the Bill to a select rather than standing committee. These have the advantage of being able to hear evidence from outsiders and experts as well as being able to look at the wording of the Bill as drafted. A joint Select Committee of the Commons and Lords is regularly used for statute law revision and consolidation Bills - but since these are non-controversial and have been already considered in depth by the Law Commission, these Bills are not typical. To try to secure better scrutiny at the Committee Stage the Government inaugurated in 1980 Special Standing Committees as an experiment. Bills could be committed to these on the motion of a Minster, and these committees could call for evidence and witnesses, including the Minister, though their work had to be completed within 28 days. This type of committee dealt with three Bills in 1981, all non party political, one in 1982 and one in 1984. Observers were generally impressed by the standard of debate, and they made some useful amendments. Under pressure from the Commons, a permanent system was laid down in 1986 allowing for Special Standing Committee not dependent on the motion of a Minister - SO91. But referral is still not automatic - there must be a specific vote which can be carried only with the consent of Government. And this procedure is certainly not favoured by the Government - Special Standing Committees slow the Parliamentary process and increase the workload of Ministers and officials. So, it has not been used in recent years. The Modernisation Select Committee has expressed concern about the lack of detailed, expert scrutiny at Committee Stage and the unsystematic, often overly partisan works which often takes place instead. Its recommendation is more referrals to specialist committees - whether special standing committees, ad hoc committees or departmental select committees (The Legislative Process (1997-98 H.C. 190) paras.8-10, 42-45, 95). It suggests that scrutiny might also be improved within ordinary Standing Committees by Explanatory Notes for MPs, wider rules as to the admissibility of evidence, and more flexibility in timetabling (paras.48, 97). 

See further House of Commons Factsheet No.43, Standing Committees.

7. On the rare occasions they get that far, Private Ministers Bills are also referred to a Standing Committee in the order they pass their second reading. The problem will once again be lack of time. So only those at the top of the ballot have any chance of a passing through, unless there is absolutely no opposition to the Bill and it can be passed without debate "on the nod".  

8. At the Report Stage, the Bill returns from the Standing Committee to the whole House, and Ministerial amendments in reaction to the Committee Stage together with further opposition amendments are discussed - SO73.

Upon the consideration of a bill on report no amendment which could not have been proposed in committee without an instruction from the House may be proposed unless it has been authorised by a resolution of the House.

It has been suggested that many of the very technical amendments which arise at this stage could easily be referred back to a Standing Committee (Modernisation Select Committee, The Legislative Process (1997-98 H.C. 190) para.51, 99). There is no Report Stage if the Bill was dealt with by a Committee of the whole House, (and Bills can be sent to a Standing Committee for this stage if fewer than 20 MPs object and the Second Reading was dealt with by Committee. This procedure under SO92 is very rare - the Water Resources Bill 1967-68 is the only Bill dealt with this way).  

9. The Third Reading debate will be brief and general, and only drafting amendments are allowed - SO75.

No amendments, not being merely verbal, shall be made to any bill on the third reading.

If substantial amendments are desired the Bill has to be sent back to the Standing Committee.  

10. After all this procedure in the Commons, or sometimes before it, the Bill must go through a similar process in the House of Lords. The House of Lords is not as such in the syllabus this year, but please familiarise yourself with the Parliament Acts 1911 and 1949 which may be invoked in the case of a clash between Commons and Lords. The last occasion of their use was the War Crimes Act 1991. Changes to a Bill in the Lords after it has completed all its stages in the Commons will necessitate an extra stage in the Commons (called Lords Amendements considered) to approve or disapprove of any amendments made by the made by the Lords.

11. These final stages in the case of Private Ministers' Bills are dealt with in the four Fridays set aside for the purpose - SO13(5). However, if a Bill does get this far, it must have substantial support, so either the Government may give it some of its time, or its opponents may simply let it pass through .

12. Note finally that the procedure for Bills concerned with Government expenditure, the annual Appropriation Bill and Consolidated Fund Bills, is special (SO 54). There is no debate on the subject matter of those Bills, just a series of formal votes on whether they should pass. The reason for this is to give more time for debate on Government policies behind these rather technical accounting matters See: House of Commons Factsheet No.18 on Supply Procedure and No.49 on the Rasing of Taxation Budgets and Financial Documents.


Assessment

Here are some thoughts on the main features emerging from this description.

1. The Government dominates the legislative process both in terms of input and success rate. Commons influence is limited.

2. But much legislation is uncontroversial anyway. Since 1970, 69% of Government legislation was not voted on at Second Reading. A lot of legislation is not politically inspired.

3. Since most legislation is presented to Parliament as an almost finished product, the function of Parliament is largely to "legitimate" legislation - i.e. it gives it the force of law and invests it with democratic credentials. It is not the business of the Commons now to legislate in sense of formulating law.

4. On average a Bill is discussed for 7 hours - but this allocation is not equally spread between or within Acts. So, much legislation passes without any scrutiny at all during the Commons processes.

5. There is no doubt that the scrutiny of the Commons could readily be made more searching and effective. For example, the Hansard Society (a pressure group) suggested the following reforms in its paper, The Legislative Process (1993)

- timetabling for Bills, so that there are advance plans to consider every section

- more consultation before introduction and pre-legislation inquiries

- Bills to carry over more that one session of Parliament

Another excellent idea was put forward by the House of Commons Select Committee on Procedure in 1971 which proposed that there should be a Post-Legislation Committee to look at what has happened to an Act a year or two after its passage in terms of its interpretation by the courts and its implementation in practice. This idea has been repeated a quarter of a century later by the Modernisation Select Committee, which argues the task can be undertaken by ad hoc or departmental select committees (The Legislative Process (1997-98 H.C. 190) paras.54, 101). But these changes assume that the effective scrutiny of legislation is the prime purpose of the Commons. In reality, all the evidence suggests that the real interest of both Government and Opposition is political not technical - that legislation is a means to political ends, not an end in itself.

For further information see House of Commons within the UK Constitution web pages.


Last Updated October 1998

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