The House of Commons Introduction
The House of Commons is the democratically elected chamber of Parliament, which also comprises the Crown and the House of Lords. The House of Commons is the principal forum for the introduction of legislative proposals – bills – which must be passed by the Commons and Lords and receive the Royal Assent before they become Acts of Parliament and hence law. The Prime Minister and the majority of government Ministers sit in the Commons and it is the House of Commons which has the principal role in scrutinizing government policy and administration.
At the beginning of each Parliamentary session, the Monarch opens Parliament with a speech from the throne, which outlines the Government’s main proposals for the session. The programme will have been carefully considered by the Cabinet that decides on a timetable for the introduction of legislation. The details of this task are entrusted to the Future Legislation Committee of the Cabinet which has to cope with a flood of requests from the various Departments of State who all wish to have their proposals included.
The preparation of legislation is often a lengthy process. The content and policy of the Bill must be approved by the appropriate, cabinet committee and then by the full Cabinet. Reform may some times be preceded by Green or White Papers allowing pre-legislative consultation in Parliament. Consultation will also take place with various interest groups. By the end of this pre-legislative stage the main content of the Bill is effectively settled although further negotiations between the various interested parties continue throughout the passage through Parliament.
Responsibility for drafting the Bill is with the Parliamentary draftsman officially known as Parliamentary Counsel to the Treasury their draft is scrutinised by the Legislation Committee of the Cabinet. The Lord Chancellor’s Office and the Law Officers are also likely to examine the Bill to consider such matters as the proper legal wording and the practicalities of implementation.
Composition of the House of Commons.
The House of Commons comprises 659 elected Members of Parliament, each representing one electoral area, or constituency. General elections, which determine the political composition of the Commons, must be held at least every five years. Following a general election, the leader of the political party that has won the majority of seats in Parliament automatically becomes the Prime Minister and is formally appointed by the Crown. The Prime Minister then appoints Ministers to represent government departments and to take responsibility for their work. As we explained in Chapter 8, approximately 22 Ministers will be appointed to the Cabinet – the inner core of government – and approximately 90 other Ministers who are outside the Cabinet will sit in the Commons. In addition, Ministers in the House of Lords represent the government.
Members of Parliament who are not appointed to senior positions within their political parties are known as ‘backbenchers’. They are required to support their political party and the disciplinary procedures within the House are designed to ensure that Members of Parliament are present to vote when required for party policy.
Two political parties – the Labour Party and Conservative Party – have dominated Parliament for many decades. At the time of writing the second largest opposition party is the Liberal Democrat Party, and other minor parties are also represented in the Commons. The constitutional role of the main opposition party – formally referred to as ‘Her Majesty’s Loyal Opposition’ – is to challenge the government of the day and ensure its accountability to the people through Parliament. The opposition party is structured in the same way as government – having its own inner core of members and other ‘shadow’ Ministers; it acts as a ‘government in waiting’. The government can only continue in office for as long as it commands the support of the Commons. If the government loses parliamentary support the opposition may force the government out of office, whereupon a new general election will take place to determine the next holders of governmental office. The opposition parties are allocated 20 days per parliamentary session on which they dictate the subject matter for debate.
The Speaker of the House of Commons
The Speaker of the House of Commons is an elected Member of Parliament who, once elected to the office of Speaker, relinquishes his or her party political allegiance and acts as the neutral ‘chair’ of proceedings in the House. It is the Speaker who controls debates and rules on procedures. The Speaker also has disciplinary powers.
Each political party has procedures for communicating between the leadership and its members, and for enforcing support from its members. The whips are Members of Parliament appointed for this purpose. The two main parties each appoint approximately a dozen whips. Members of Parliament are frequently required to vote in support or in opposition to government business. The parliamentary papers for the forthcoming week indicate when Members are required to attend the House by the underlining of differing matters on the agenda. A ‘three-line whip’ indicates that a Member of Parliament must be present, and failure to attend may result in disciplinary proceedings being taken. Note that the whips are agents of a political parties, and not of Parliament itself.
the parliamentary timetable
Each parliamentary year – or session – usually runs from November to the following October, with the annual session formally started by the attendance of the Queen in the House of Lords and the delivery of the Queen’s Speech, which outlines the government’s policies and legislative proposals for the forthcoming session. The majority of government bills will be presented to Parliament in the early months of the session with a view to their becoming law by the end of the session. (Parliament goes into recess at Christmas, Easter and during the summer.) The government controls the timetable.
The passage of legislation
Acts of Parliament
An Act of Parliament – or statute – is the highest form of law. Once enacted by Parliament it cannot be declared invalid by the courts, and in general only another Act of Parliament can change the law. Once the government has adopted a policy a formal bill is drafted and then presented to Parliament. Four types of bills may be presented to the House, each of which has its own procedures. Our principal focus is on the passage of public bills, but attention should also be paid to Private Members’ bills (see Barnett, pp. 480482).
Bills are scrutinised by Parliament at second reading, which generally takes place in the Chamber of the Commons. At second reading the general principles of the bill are debated and approved or rejected. Once approved the bill will be sent to a Standing Committee for detailed scrutiny and amendment, and is then reported back to the Commons for final approval. Once approved, the bill is sent to the House of Lords for scrutiny and approval. You should pay close attention to the question of scrutiny of bills, noting that there are several drawbacks to the procedures. Two main factors contribute to inadequate scrutiny in the Commons:
The first relates to the dominance of the government: where the government has a strong majority in the Commons – this will be reflected in the membership of Standing Committees
The second relates to the shortage of parliamentary time, and procedures – most significantly the Allocation of Time Motion (or Guillotine) which cuts scrutiny short at a particular date, irrespective of the whether the bill has been fully debated.
a) The legislative process
i)A distinction must be drawn between Public and Private Bills:
• Public Bills seek to alter the general law and affect the whole community.
• Private Bills affect only a section of the community and relate to matters of individual, corporate or local interest.
• Hybrid Bills are Public Bills that are classified by the Speaker as having a particular effect on one section of the community.
ii) Public Bill procedure
Most Public Bills are government Bills, but some may be Private Members Bills introduced by backbench Members of Parliament. Bills may be introduced into either House, but legislation which is politically controversial, financial or electoral begins in the House of Commons.
iii) Private member’s Bill procedure
There are a number of procedures under which private members may initiate Bills.
• The Ballot: The Ballot establishes an order of priority enabling those members successful in it to use the limited private members’ time for debate of their Bills ‘ which, given the governments’ control of the parliamentary timetable, might otherwise not make progress.
• The Ten Minute Rule: Not, in general, serious attempts at legislation. The member may speak briefly in support of the Bill and an opponent may reply. The House may then decide on whether the Bill should be introduced.
• Standing Order No 39: Allows every member the right to introduce a Bill of his choosing after due notice.
iv) Private Bill procedure
Private Bills are initiated by petition from persons or bodies outside Parliament. Full notice must be given to those whose legal rights may be affected by the proposed legislation so that they may oppose it. In the House of Commons the Bill is introduced by being presented at the Table by the Clerk of the Private Bill Office. It is then deemed to have been read for the first time. At the Second Reading Debate, the House determines whether the Bill is unobjectionable from the point of view of national policy. If read a second time, the Bill is committed to a committee of four members in the Commons (or five members in the Lords). The committee stage has some of the features of a quasi judicial proceeding.
v) Hybrid Bill procedure
The Standing Orders for private business apply to a hybrid Bill so that if opposed after its second reading it goes before a select committee, where those whose legal rights are affected by the Bill may raise their objections and petition against it. After the petitioners have been heard by the select committee, the Bill then passes through its committee stage and later stages as if it were an ordinary Bill.
Procedure for the passing of a Public Bill introduced by the Government into the House of Commons
1.first Reading. A purely formal stage.
The title of the Bill is read out, an order is made for the Bill to be published and a date fixed for the second reading.
The principles of the Bill are discussed on the floor of the House. The Bill is voted on.
A detailed clause-by-clause analysis of the Bill by a standing Committee of between 16-50 MPs. Detailed amendments are considered
The Bill is reported back to the whole House as amended. Further amendments usually government sponsored, can be made at this stage
Once again the whole House considers the principles behind the legislation. Only verbal amendments can be made and any debate must be supported by at least six members.
Once a Bill has passed its Commons’ stage it goes up to the House of Lords where the same process is repeated, except that the Committee stage is taken on the floor of the House. If the Bill is amended in the House of Lords, these amendments must be considered by the Commons. Often these amendments are tabled by the Government and so there is no problem in ensuring that the Commons will approve them. If, however, the amendments are rejected by the Commons, the Lords must decide whether to continue with these. If no agreement is reached before the end of the Session, the Bill will fail. The Government must then decide whether to reintroduce the measure in the following session and invoke the provisions of the Parliament Acts 1911-49.
Once the Bill is passed by both Houses it receives the Royal Assent. This is purely formal. After the Royal Assent has been given the Bill becomes an Act.
Variations on this procedure
1. Bills may start life in either House. The Government must try to arrange its business to ensure that the Commons does not have all its work at the beginning of the session and the House of Lords has all its work at the end. Generally less controversial Bills, e.g. technical legal Bills are selected to start life in the Lords, high profile political Bills in the Commons. As the House of Commons has sole responsibility for financial matters, it has to carry the burden of the work on financial Bills.
2. Some Bills have their Second Reading Stage in Committee. This is on the motion of a minister but can be prevented 11 ’20 members object. This procedure was introduced in an attempt to save time on the floor of the House and is used for unopposed and non-controversial legislation. If the Second Reading is in Committee, the Report Stage will also be in Committee.
3. Some Bills have their committee stage on the floor of the House in the Commons. This procedure can be used for:
(a) Non-controversial Bills where the committee stage would be purely formal;
(b) Bills of major constitutional importance where all members wish to be involved at every stage;
(c) Bills passed in an emergency;
(d) Major clauses of Finance Bills. In these cases Committee and Report Stages will be combined
HOUSE OF COMMONS
q1 – Critically evaluate the current practices and procedures by which the House of Commons scrutinises and approves government Bills.
First reading- Bill published
Second reading (Debate-Role of minister- Party loyalties- HRA 1998)
Committee Stage (Party divisions -Lack of expertise- Limitation on time for consideration) Report stage
Consideration of reform proposals
1 This question requires an examination of the processes of the HC in scrutinising and approving government Bills. The procedure by which the HC scrutinises government Bills essentially comprises five stages: the first reading, the second reading, the committee stage, the report stage and the third reading.
2 The first reading is largely ceremonial. A ‘dummy’ copy of the Bill is placed ‘on the table’ in the HC on the day of presentation. When the moment of presentation is reached, after Questions, the Speaker calls the sponsoring minister and the Clerk reads the short title of the Bill and the minister, or a whip acting on his behalf, names a (notional) day for the Bills second reading. No debate takes place at this stage. Once the first reading procedure is complete the Bill is printed and published. To encourage more informed debate at an earlier stage most government are now published with accompanying guiding notes. These are designed to assist the lay person (which for these purposes may include a good many backbench MPs) in understanding the purposes and effect of the Bill.
3 Wherever possible the government aims to have two weekends between the printing and second reading of a Bill. The second reading is the stage at which significant parliamentary scrutiny of legislative proposals becomes possible. The House considers the principle and merits of the Bill and a vote is taken on whether to give the Bill a second reading. Although the opposition will seek to score parliamentary points in the course of debates, the outcome of the second reading will hardly ever be in doubt. It is rare however for a government Bill to be denied a second reading. The government after all by definition has the majority of seats in the HC. Its MPs will be subject to the party whip in order to get the legislation through. Defiance of the party whip can mean a long wait for any hope of political advancement. It may even result in a backbench MP being cast out into the political wilderness. Real scrutiny of the legislation at this stage is unlikely to occur. It should be noted, however, that under s.19 of the HRA 1998 the minister in charge of a Bill is under a duty to make a statement, prior to the second reading, to the effect that in his view the provisions of the Bill are compatible with the ECHR as protected by the HRA 1998. Alternatively, he must make a statement ‘explaining that, although he is unable to make a statement of compatibility, the government nevertheless wishes the House to proceed with the Bill. This at least draws the attention of the House to a specific matter of importance.
Following its second reading, a bill is normally referred to a standing committee consisting between 16 and 50 members nominated by a committee of selection and reflecting party strength in the House. Standing committees are consulted to deal with Bills as and when necessary. The committee stage involves detailed clause-by-clause consideration of the Bill and the committee may generally amend the- Bill as it thinks fit, provided that the amendments made are relevant to the subject matter of the Bill. Amendments and new clauses may be moved by the minister, the opposition spokesmen, or by any member of the committee. Provision also exists for non-party political Bills to be referred to special standing committees, where a more informed discussion can take place and evidence can be taken, but this procedure has only rarely been used, not least because of the delay that would ensue in the passage of the legislation.
5. Bills of first-class constitutional importance, those requiring a very rapid passage, and certain financial measures, including at least part of each year’s Finance Bill, are often referred to a committee of the whole House enabling all MPs to engage in more detailed scrutiny. When a Bill has completed its committee stage it is reported as amended to the whole House. Further amendments, alteration of amendments made by the committee, and new clauses, may be made at this stage.All members may speak and vote at this stage, unlike in a standing committee. The final HC stage of the Bill is the third reading. The bill is debated once more in general terms with only verbal amendments allowed. Except for Bills of major political or constitutional importance the third reading is usually brief and formal.
6. One of the major problems with the whole process of scrutiny is the control exerted by the executive over the HC. As indicated above the government will enforce the party line through the whips’ office to ensure legislation is carried, regardless of what contributions are made in the course of the debate. The bigger the government’s majority the more this is the case. Whereas select committees are powerful because they involve MPs from all parties working together to scrutinise the performance of government departments standing committees are weakened because membership divides along party lines. A further problem is that of expertise and resources. The second reading looks at the ‘big picture – scrutiny at that stage is not going to persuade the government to abandon a piece of legislation. The committee stage is designed for examination of close detail. The government might take on board amendments at this stage- but this assumes MPs have the requisite experience and knowledge to move amendments on very technical points. Given the preponderance of academics and lawyers in the HC this is highly questionable.
7.The government can also use its voting power in the HC to introduce measures that limit the time for debate and consideration of amendments. The term ‘guillotine motion is a colloquial expression for an allocation of time motion. The purpose of such a motion is to provide that one of more stages of a bill be disposed of either by a fixed date or by a Fixed number of sittings of the House, or a committee, or both. Each guillotine motion is specific and devised by the government for the particular bill or bills to which it applies. If a bill before a standing committee is the subject of an ‘allocation of time order’, a detailed timetable is recommended to the standing committee. The effect of the order is that at the end of each allotted period the part of the Bill in question is voted upon forthwith, although substantial parts of the bill may not yet have been discussed at all.
8. On the whole, these devices are unpopular with parliamentarians because they can restrict valuable criticisms and amendment of legislation. If used extensively- and they are being used increasingly- it can be argued that they deny the legislative role of Parliament. The problem lies in striking the balance between ensuring adequate opportunity for debate and ensuring the opposition does not use the debate simply to try and ‘talk out’ bill.
9.The House of Commons Modernisation Committee, in its report published in July 1997, confirmed that the proceedings of standing committees were often devoted to political partisan debate rather than constructive and systematic scrutiny. It observed that the role of government backbenchers on standing committees was to remain silent and to vote as directed. the result of these tactics is that important sections of Public Bills sometimes receive little or no scrutiny at the committee stage because of the imposition of time allocation orders (i e ‘the guillotine) which bring deliberations to an end at a specified point in time.
10.The report suggested a number of reforms, including proposals that all members of should be provided with notes on clauses produced at the time of presentation of bill; that clauses should be considered as a whole, before amendments, so as to isolate points of agreement and criticisms and that more time should be made available for deliberation by permitting standing committees to meet during the parliamentary recess.
11 The committee further suggested that scrutiny of government bills in the HC could be improved if there was more systematic consideration of draft bills prior to the first reading, rather than government ministers presenting draft legislation to the HC as a fait accompli,resisting any proposals for significant change for fear that this might be taken as evidence of political weakness.
12. The report concluded in favour of pre-legislative scrutiny by a committee of the HC but was not specific as to what form the committee should take.
Overall the quality of the scrutiny of government bills by the HC is inevitably limited by a number of factors, including the control exerted by the executive and the time available for debate. The paradox is that the greater the government’s majority, the greater the need for scrutiny Governments with large majorities are perhaps more tempted to push through radical measures. A government with a small majority is likely to tailor the contents its Bills before they are even published so as to take account of likely oppositions and improve the chances of enactment.
Not all the detailed rules regulating a particular matter will be contained in Acts of Parliament. Instead, Parliament delegates the task of drafting detailed rules to government Ministers, local authorities and other public bodies. Central government delegated legislation includes Orders in Council made by the Queen in Privy Council and Regulations made by Ministers. Local authority delegated legislation takes the form of bye-laws. These laws are known as delegated or secondary legislation. Their authority comes from the enabling, or parent, Act. Delegated legislation is only valid if its subject matter falls within the power conferred by the parent Act. Parliament scrutinises delegated legislation, but the scrutiny is less in-depth than for bills. If delegated legislation falls outside the power granted by Parliament, a challenge might be made by individuals who are affected by the legislation and the courts will rule on whether the delegated legislation is intra vires (within the power granted and valid) or ultra vires (outside the power granted and invalid).
Not all legislation is made directly by Parliament. Government ministers, local authorities and other public bodies have been given the power by statute to make subordinate legislation. This may be in the form of statutory instruments and orders, byelaws, regulations and orders in council. The most important type of delegated legislation made by a minister is a statutory instrument. This is defined and regulated by The Statutory Instruments Act 1946. Delegated legislation made by a minister acting under statutory authority which does not fall within this definition, is known as a statutory order. There is no more precise definition, as it is simply a residual category. Statutory orders are not regulated by the 1946 Act.
Uses of delegated legislation
Delegated legislation is used mainly to add detail to primary legislation that may lay down the general principles although matters of considerable importance are sometimes dealt with in this way. The use of delegated legislation saves Parliamentary time:
(a) Parliament can concentrate on the principles and ignore the details, which can be worked out elsewhere.
(b) If the law requires updating this can be done: without taking up time on the floor of the House.
It can also be said that the use of delegated legislation is desirable:
(a) It allows certain flexibility in the law. It enables the minister, for example, to bring sections of an act into effect as and when required. It allows for regional variations. It even allows for a degree of experimentation in that the delegated legislation can be used to alter provisions in the parent act.
(b) It facilitates full consultation with experts. Consideration of detailed, technical, legislation in the contentious atmosphere of the floor of the House cannot be desirable.
But it does have its dangers, particularly when used to effect changes of substance. Then it can be argued that too much power is being concentrated in the hands of the minister. The procedure is much less public than that for the passage of Acts of Parliament. Clearly it is essential that, to prevent abuse, there is adequate control.
Control over delegated legislation
The enabling Act.
The law-making power which Parliament intends to delegate should be expressed in clear and unambiguous language. The grant of wide discretionary powers makes it much more difficult to control the exercise of these powers by means of the doctrine of ultra vires. The enabling Act also determines the form in which the power is to be exercised. Greater control will be achieved by providing that the power is to be exercised by way of statutory instrument. It will then be regulated by the Statutory Instruments Act 1946 and will, if laid before Parliament, be subject to the scrutiny of the joint Committee on Delegated Legislation.
In the British Parliament today, are a government’s backbenchers its most effective opposition?
What can the backbencher do? He is under the control of the party whips, to the extent that they will try to ensure that MPs will turn up and vote when needed and will perform such parliamentary duties as are required. Most of the time, most MPs obey the whips. Ambitions of joining the front benches will soon be frustrated if an MP takes too independent a line, but, that apart, most of the time MPs willingly follow the party line.
The whips also convey to the party leaders the feeling amongst the backbenchers. These feelings are more directly conveyed by backbench groups. For example, the Conservative 1922 Committee is quite capable of taking ministers, even the Prime Minister, to task over their policies. During the last Conservative administration the Chairman of the 1922 Sir Marcus Fox, a former whip, was effectively the spokesman for the Conservative backbenchers and any Conservative Prime Minister faced with contentious legislation must first ensure he has the 1922 on his side. Faced as he will be with unanimous opposition from the other parties, he needs to rely on his own members and these unofficial channels will tell him whether this support will be provided.
There are, of course, plenty of opportunities within House of Commons’ proceedings, short of voting against the government, by which a backbencher can make his voice heard. Parliamentary questions – both oral and written – are one such opportunity. Another would be through participation in parliamentary committees. To some extent, the selection process will ensure that maverick MPs are kept away. However, the select committees have shown themselves quite capable of confronting government policies and criticism may well come from the government’s backbench members as, for example, in the Select Committee on Defense during the ‘ Westland Affair’ (1986). In other words, their loyalty to the government does not prevent them from taking a critical stance. The government is not directly threatened by that stance and yet its source probably makes the criticism more effective.
A further opportunity for the backbencher will be during debates. During Mrs Thatcher’s premiership the most significant backbench speeches came from those she had just removed from the front bench. Sir Geoffrey Howe’s speech shortly after his departure, is a good example. If such a speech voices opposition and if others share that view then it is obviously of greater significance than the inevitable opposition from the other side of the House.
In conclusion it should be said that most politicians are ambitious; none would want to see their own government defeated. These two factors limit the extent of backbench opposition. Further, MPs are answerable to their constituents who might take a dim view of opposition. A government may not wish to call the backbencher’s bluff, but the backbencher certainly does not hold all the cards.