The Commons committee stage of 'constitutional' bills
Research Paper 97/53
20 May 1997
The new Government has come to power pledged to enact a substantial package of 'constitutional reform'. Before and during the May general election there was speculation that a Labour Government would seek to enact its legislation by way of revised legislative processes in Parliament, and in particular would not always retain the committee stage of its 'constitutional bills' in Committee of the Whole House, but send some or all of them 'upstairs' to standing committee. This Paper examines the theory and practice of keeping 'constitutional bills' on the Floor of the House, and is a companion Paper to Research Paper 97/64, Aspects of Parliamentary reform, which examines the issues surrounding possible changes in Parliamentary procedure and practice, generally and at the outset of a new Parliament.
Barry K Winetrobe Home Affairs Section
House of Commons Library Library Research Papers are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public. Summary
The practice that the committee stage of certain bills of a 'constitutional' nature are not sent routinely to standing committee but are retained on the Floor, in Committee of the Whole House, is derived from the immediate post-war period when the Labour Government under Attlee came to power with a massive majority in the summer of 1945. It proposed that the practice of sending all public bills in the Commons 'upstairs' should become the norm, and that the pre-war exceptions for major bills be abandoned , except for some Bills, such as 'bills of first class constitutional importance'. This proposal was considered and accepted by a Procedure Committee and by the House.
This Paper examines the difficulties in defining 'constitutional bills', especially those of 'first class constitutional importance', in the Westminster context, and then considers the history and development of the Commons committee stage of bills, with particular reference to the trend since the late nineteenth century towards taking it 'upstairs' in standing committee rather than on the Floor.
The practice of splitting the Commons committee stage of bills in this context is also examined, although it appears extremely rare for a bill which may be defined by some as 'constitutional' to be treated in this way in modern times. Splitting is commonly used for Finance Bills (since the late 1960s) or to allow particular issues, especially those of a social/moral nature, within a public bill to be considered fully by the whole House.
Finally, the more recent debate on the so-called 'convention' of keeping 'constitutional bills' on the Floor (including exchanges in the new Parliament) is reviewed, citing academic and political analyses of Parliamentary practice and possible changes by an incoming Labour Government. CONTENTS
Page
I Introduction 5
II 'Constitutional bills': some problems of definition6
A. 'constitutional' bills6
B. Bills of 'first class constitutional importance'10
III Commons committee stage13
A. History and Development13
IV Splitting of the committee stage18
V The current debate22
Appendix 'Constitutional Bills': second readings29 Research Paper 97/53
"You cannot play about with the British Constitution in a Committee upstairs, to put it colloquially" -- Herbert Morrison, 19451
"The rules of the House contain no definition of what is, or what is not, a constitutional Bill, nor do they lay down any special procedures for the Chair to enforce in relation to such Bills" -- Mr Speaker, 19812
"The Maastricht Bill had to be debated in this Chamber, of course, because it was a constitutional issue" --- Madam Speaker, 7 May 19973
I Introduction
There was much discussion before and during the general election campaign about the possibility that a Labour Government, with a manifesto containing a significant package of 'constitutional reform', could seek to alter the rules and practices of the two Houses' legislative processes in order to enact it. Perhaps the main suggestion that has been debated is that all or part of the committee stage of such bills may not be taken entirely or at all on the Floor, in Committee of the Whole House ('CWH'), but 'upstairs' in standing committee. Bills are normally committed to a standing committee "unless the House otherwise order": S.O. no. 63(1).
Erskine May states that "it is the regular practice for Government bills of first class constitutional importance to be committed to a Committee of the Whole House."4 The basis for the practice that 'constitutional bills' are invariably taken in CWH appears to be the changes made at the outset of the Attlee Government immediately after Labour's huge victory in the 1945 election, proposed by the Government, considered by a Procedure Committee and approved by the House.5 In these changes, the norm became that all public bills were sent 'upstairs' to standing committee for their committee stage, subject to a number of exceptions, notably 'bills of first class constitutional importance'. However, as with any apparent Parliamentary procedural 'precedent' for a particular 'convention'6 or practice, the context in which it arose or was created needs to be examined for its relevance to contemporary circumstances.
This note examines these issues by considering the meaning of 'constitutional bill' (especially 'bill of first class constitutional importance'); the Commons committee stage of public bills, especially those said to be of a 'constitutional' nature, and the current debate over this issue.
1 As Leader of the House, in evidence to the Procedure Committee, 18.9.45, HC 9 of 1945-46, p.22, Q198 2 HC Deb vol 996 c.750, 12.1.81 3 HC Deb vol 294 c6, 7.5.97 4 21st ed., p.479 5 This is examined in more detail in section III of this Paper 6 On the meaning of 'convention' in its constitutional context, see Research Paper 96/82, The constitution: principles and development, 18.7.96, section IVA
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II 'Constitutional bills': some problems of definition
A. 'constitutional' bills
As the UK does not have a written constitution, there exists no legally definable class of 'constitutional' legislation, although the term is often used in the context of its Parliamentary legislative process. Strictly speaking, there is no such thing in our law as a hierarchy of primary legislation,7 and definitions of classes such as 'constitutional' will arise in their own particular contexts. Some issues, and their legislation, (local government is a common example) may be described as 'constitutional', for example, by critics of such legislation as a way of opposing its provisions. Some issues may be 'constitutional' in a narrow sense, without being regarded necessarily, in a political sense, as major or controversial . This may include matters such as Parliamentary pensions legislation or amendments to the various Ombudsman schemes. Many measures will be an examination of the indexes or lists of statutes in, say, the 'constitutional law' volume of a legal encyclopedia such as Halsbury's Laws, Halsbury's Statutes or the Stair Encyclopedia provides a flavour of the range of potential subjects that can be described as 'constitutional'.8
Generally speaking, constitutional issues include those relating to the powers and structure of the state (borders, form of government, head of state); the system of government of the country (Parliament, executive and judiciary), elections, civil rights and liberties, immigration/nationality, international and supranational relations (especially EU affairs) and so on. Not all of these (eg civil liberties, local government, 'routine' international treaties) would necessarily always be regarded as 'core' constitutional issues. Any proposed legislation relating to the basic existence of the United Kingdom as a political and geographical entity (eg Northern Ireland or devolution legislation); the structure, operation and powers of Parliament and the Crown (in its political, official and monarchical contexts; elections and the franchise; emergency powers; innovations such as referendums or bills of rights), and major issues of foreign affairs (eg EU treaties) would generally be regarded as prima facie constitutional matters.
Debate arose in 1945, in the particular context not only of post-war reconstruction but of the new Labour Government's substantial nationalisation programme, on the question of whether major economic measures could be regarded as 'constitutional'. Something of a similar argument was roused from the Opposition front bench during Business Questions on 15 May
7 On this, and possible Union and EU exceptions, see Research Paper 96/82 8 Even then, many other statutes will be listed separately in volumes dealing with, say, Parliament or, elections. In Appendix A of the Constitution Unit's 1996 report Delivering constitutional reform, there is a list of 'constitutional legislation' in this century.
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when Alastair Goodlad appeared to regard a Bill on the Bank of England as 'constitutional'.9 However the Leader of the House, Ann Taylor, did not accept all the 'Bills mentioned by Mr Goodlad were constitutional'.10
An interesting example of the definitional controversies that can arise, especially in the context of committee stage, is the British Nationality Bill 1980-81:11
Mr. Alexander W. Lyon (York): Will the Mr. St. John-Stevas: I do not think that the Leader of the House reconsider his judgment that Nationality Bill is a constitutional Bill in the the Committee stage of the Nationality Bill should normally accepted sense of the word, which is a not be taken on the Floor of the House? Contrary Bill concerned with the machinery of Government. to his view that this is not a constitutional Bill, It is the Government's intention that the Bill should does he not recognise that this will be the first time be sent upstairs. that anyone in this country or anyone in the House has had a citizenship of his own? Is he aware that we are unique in the world in that situation? If that is not a constitutional change, what on earth is?
The Speaker was asked about this matter:12
Mr. Speaker: I wish to give a brief ruling. On The rules of the House contain no definition of 18 December 1980 I undertook to answer a query what is, or what is not, a constitutional Bill, nor do raised by the hon. Member for Caithness and they lay down any special procedures for the Chair Sutherland (Mr. Maclennan) regarding the to enforce in relation to such Bills. appropriateness of the Bill relating to nationality being considered a constitutional Bill, and whether that was a matter that lay within definition by me. The brief but complete answer to the hon. Gentleman's second question is "No, it has nothing to do with me".
The issue was pursued at Business Questions on 22 January 1981:13
Mr. Foot: .... May I urge upon the right hon. will get into even greater difficulties if they try to Gentleman afresh that the British Nationality Bill deal with it elsewhere. We prefer-and it is by far should be taken on the Floor of the House? Is he the best way-that it should be dealt with on the aware that we cannot accept the doctrine that a Bill Floor of the House. An alternative is that it could that can affect the nationality of people who may go to some other investigatory process, but the have a claim to British citizenship should not be Floor of the House is the proper place. May I urge regarded as a constitutional Bill? The Government the right hon. Gentleman once again to take that
9 HC Deb vol 294 c.160, 15.5.97 10 c.161 11 HC Deb vol 996 c.556, 18.12.80 12 op cit, c.750 13 HC Deb vol 997 cc 423, 424, extracts, 22.1.81
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into account? ...... Acts, of which the Bill is certainly of the same type. have been taken in Standing Committee, Mr Pym: I took very seriously the including the 1971 Act, which created the status of representations of the right hon. Gentleman and the "patrial" and "non-patrial". Having gone into the Opposition on the handling of the British issue extremely carefully, I think it reasonable to Nationality Bill. It is an important matter for the say-this is the Government's view-that the Bill is House. You yourself, Mr. Speaker, in a statement not of the same category of importance and that it last week, said that there was no definition of such would be appropriate to take it in the normal way. a Bill. The issue has been decided on grounds of I thought that I owed it to the House and to the custom and practice. The exceptions to our normal right hon. Gentleman to say that I had gone into Standing Committee procedures are urgent Bills, the issue carefully. simple Bills, or Bills of first-class constitutional importance. The Government's view is that the Bill does not fall into any of those categories, especially the last one.
Mr. Foot: The right hon. Gentleman must be joking.
Mr. Pym: I ask the right hon. Gentleman to listen for a little longer. I have taken into account the representations and the relevant precedents, including the two most obvious ones that might argue in the right hon, Gentleman's favour. The British Nationality Act 1948 was described by the then Government as a natural sequel to the Statute of Westminster. They also described it as a measure of the utmost constitutional importance. The British Nationality Bill is much more limited in scope. Secondly, there is the Commonwealth Immigrants Act 1962. That was the first occasion upon which we legislated to introduce immigration controls. That measure was taken on the Floor of the House. However, all subsequent Immigration
and (cc 425-6):
Mr. Foot: I must press the right hon. right hon. Gentleman described it as a Bill that is Gentleman on the first matter, although we do not not of first-rate constitutional importance. That is regard his other answers as satisfactory. We shall a matter not for Mr. Speaker but for the judgment have to see how we deal with those matters next of the House. week. I am sure that the right hon. Gentleman has The Bill affects the rights of individual citizens given the handling of the British Nationality Bill and therefore should be fully debated. Every hon. great and careful study. That is shown by his Member should have the right to be able to raise replies. However, it is a controversial measure,. matters concerning his own constituency. If the The first Act to which the right hon. Gentleman Bill is sent to a Standing Committee hon. referred was not controversial, in the same sense, in Members will be deprived of the opportunity to the House. The Bill is a controversial measure, in participate in the debate on a Bill of major that it will have an effect on the nationality of constitutional importance. British citizens, or those who may claim to be British citizens. We do not understand why the
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Mr. Pym: I have taken careful note of what the right hon. Gentleman said. The fact is that before 1948 there was no such thing as British citizenship. The 1948 Act created citizenship of the United Kingdom and colonies. The Bill will divide citizenship into three categories. It is, in a sense. an amending measure of the previous Act. That is the position on constitutional importance. The 1948 Act was far-reaching in its constitutional implications, but in our judgment the Bill is not. I have described the precedents and the comparisons.
Mr. David Steel (Roxburgh, Selkirk and Peebles): I ask the Leader of the House to reconsider the matter, even though he has already considered it carefully. He has drawn a comparison with the 1962 Act. The Bill is of more far- reaching importance, I suggest, than that Act, which was taken on the Floor of the House. If the right hon. Gentleman is going to remain immovable he should at least undertake that the Committee considering the Bill will be larger than normal, as was the arrangement for the 1971 legislation.
Mr. Pym: I shall be quite happy to consider the right hon. Gentleman's last point. I am sensitive to what he says. In the past week I have spent some time going into the matter carefully. It is the Government's judgment that the Bill should go to a Standing Committee. That would be in accordance with what has happened to Bills of a similar sort. I am sorry that I cannot be more forthcoming to the right hon. Gentleman.
The shadow Home Secretary, Roy Hattersley, pursued the point during the second reading of the Bill on 28 January (op cit, c.945), but on a division, the Opposition motion that the Bill be committed to a Committee of the Whole House was defeated by 293-243 (c.1044). Burton & Drewry, in their survey of the legislative process in the 1980-81 session commented:14
There had also been a division at second reading on an Opposition motion to commit the bill to a committee of the whole House, on the grounds that it was "constitutional" in character (see below). Arguably, any bill which defines the boundaries of nationality must necessarily impinge upon the definitional boundaries of the state, in terms of who "belongs" to it and who is entitled to protection from it. Nationality would certainly be regarded as a proper subject for inclusion in a textbook on constitutional law. By parliamentary convention, however, constitutional bills (those requiring committal to the whole House and enjoying immunity from enforced timetabling) are narrowly defined to include only measures which impinge directly upon the
14 I Burton & G Drewry, "Public legislation: a survey of the session 1980-81", (1983) 36 Parliamentary Affairs, 436 at 442
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sovereignty of Parliament itself. From the standpoint of our own analysis, the bill's subject matter was not primarily a matter of constitutional reform, nor was it substantively innovatory; it adjusted the legal framework of an existing policy to bring it into line with incremental (though cumulatively substantial) policy changes in a related policy area-namely the law governing immigration. It thus belongs to that sub-category of administration bills that we have called administrative reform bills. and (p.447):
We have noted in previous surveys the elusiveness of the concept of a "constitutional" bill in a system which lacks a written constitution and which provides no facility for legislative entrenchment. Our broad conclusion has been that while it would be perverse to deny that some bills, dealing with the scope of Parliament's own sovereignty, are pre-eminently constitutional in character, there is a vast no-man's-land of institutional reform which has, incrementally, an impact upon constitutional development. The picture is blurred still further by rhetorical way in which the word is used in political debate (viz. pejorative phrases like "constitutional outrage" and "unconstitutional actions") and by the absence of a clearly defined area of public law. Thus, with a little imagination, many of the bills that we classify as "administrative reform" measures, could be claimed to have micro-constitutional significance; but such assertions are, at best, tautological, there being no external jurisprudential yardstick against which they can be verified or refuted.
B. Bills of 'first class constitutional importance'
Unless 'first class' has to be regarded as having no substantive meaning, the use of this term, by the Government and the Procedure Committee in 1945, must imply that there are at least two relevant classes of 'constitutional' bill: those which are of first class importance and those which are not.15 No formal guidance is provided in the standing orders of the Commons, and it may be that the term can, to some extent, have a flexible meaning, taking account of the political circumstances of the time, as well as the content of the bill itself.
It seems that the term 'bill of first class constitutional importance' arose during consideration of possible changes to post-war Parliamentary procedure by a cabinet committee of the Coalition Government in the mid 1940s.16 The Machinery of Government Committee, chaired by the Chancellor of the Exchequer, Sir John Anderson,17 decided to establish a sub- committee under the Solicitor General, Sir David Maxwell Fyfe (Con). The sub-committee reported on a number of aspects of Parliamentary procedure. In its interim report in April 1944 it set out what it regarded as the nature of the problem, the likely scale and content of the immediate post-war legislative programme, and noted: "We have assumed a return to the practice of sending Bills to Standing Committees of the House of Commons. This should afford some relief to the Parliamentary time-table, but a number of bills referred to above will
15 Morrison, for example, when asked by the Procedure Committee in 1945, said: "The kind of thing I mean is something that will make a material change in the working of the constitution." (HC 9-I, 1945-46, p22, Q196) 16 The following account is derived mainly from the relevant Cabinet papers in the PRO 17 It had received a paper from Sir Cecil Carr on "Changes in Parliamentary procedure since 1880" (MG (43) 6, CAB 87), which had apparently dispelled the Committee's doubts about whether the Government rather than Parliament should be taking the initiative on Parliamentary reform!
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have to be taken on the floor of the House."18
When the Machinery of Government Committee considered the various reports of the sub- committee on 5 July 1944, the Solicitor General estimated that approximately half of the major reconstruction bills would have to be taken on the floor of the House. At this point, Sir Stafford Cripps, the Minister for Aircraft Production (Lab), said that he doubted whether adoption of all the sub-committee's proposals would save sufficient parliamentary time, and suggested that "Parliamentary time could most effectively be saved by making it a normal rule that the Committee stage of a Bill should be taken upstairs and quite exceptional that it should be taken on the floor of the House." There was general agreement that, for an experimental period during reconstruction and if there were no insuperable practical objections, such as demands on the services of the Law Officers, "the Government's proposals should include, as their central feature, a recommendation that, save only in the case of the Finance Bill and possibly one or two other Bills of an exceptional character (eg a Bill such as the Parliament Bill) the Committee stage of all Bills should be taken upstairs."19
The Solicitor General then drew up a draft of a memorandum which the Government could submit to a Commons Procedure Committee. It is in this document, dated 25 July 1944, that the term 'bills of first class constitutional importance' appears apparently for the first time. It considered the pre-war practice that, notwithstanding the provisions of S.O. no. 46 of 1907, the 'great measures of the session' were retained on the floor of the House:20
"in the reconstruction period, the practice should be abandoned in all cases, with the exception only of any Bill of first class constitutional importance such as the Bill for the Parliament Act 1911 or the Statute of Westminster 1931. If any Bill of that order were introduced during the relevant period, it would clearly be necessary to take it on the floor of the House"
When the Machinery of Government Committee discussed the draft memorandum, it recognised that "the proposal [ie. to send virtually all Bills 'upstairs'] was not likely to be popular with the House", and agreed to reword the paragraph to make it clear that individual members would still be able to move that Bills be retained on the Floor. Paragraph 5 of the Committee's memorandum as circulated to the War Cabinet on 18 August included the following:21
"An exception would have to be made if any Bill of first class constitutional importance were introduced, of the order, for instance, of the Parliament Act 1911 or
18 para 2, MG (P) (44) 14 final, 13.4.44 19 14th meeting, MG (44) 14, 5.7.44 20 MG (44) 22, para 5 21 WP (44) 424, reproduced as an annex to Morrison's memorandum to the Cabinet on House of Commons Procedure, 10.8.45, CP (45) 103
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of the Statute of Westminster 1931; and the Government would not divest themselves of the right to move that any important Bill should be retained on the floor of the House if in the circumstances of the individual case they thought that course preferable. Equally the right of any Member to move that any Bill should be retained on the floor of the House would, of course remain unimpaired. But, with the exceptions indicated, the government would refrain from moving in that sense, and of opposing such a motion if moved from another quarter."
The War Cabinet never formally considered the Committee's proposals, feeling that it was not expedient to embark on a review of Parliamentary procedure during the present Parliament, but the Committee was unanimously of the view that it would be a pity if they were indefinitely shelved, especially as they had been framed with a reconstruction legislative programme in mind, and that there was advantage in such reforms being made by a coalition government.22
In his evidence before the Procedure Committee in 1945, Morrison was questioned on the definition of 'bills of first class constitutional importance:23
195. But what is in your mind in regard to 198. I do not mean fiddling, unimportant the suggestion of a matter of first-class things, but in the ordinary sense?-Yes, I am constitutional importance? I think it is in inclined to think so. that is the business of the paragraph 5?-They give two examples; one is the House. You cannot play about with the British Parliament Act and the other the Statute of Constitution in a Committee upstairs, to put it Westminster. I personally would say that certainly colloquially. the Emergency Powers Act of 1930 is another. I 199. But if the matter is, in the conversational should have thought-and I want to speak subject to sense, primarily economic, then it does not seem to all reservations and the right to reconsider it you to be of first-class constitutional importance?- afterwards if I want to-that the big Franchise Bill, Not of itself. if some Government brought in a Bill before the General Election of 1929, was another. for the complete socialisation of British industry I A big Redistribution Bill would be another. should think there would be a very good case for 196. What is the common quality of all these taking that down below; but if, on the other hand, things? That they are fundamental? --No, not it brings in a Bill for the nationalisation of an fundamental, because Nationalisation of the Mines individual industry, that is a different matter is fundamental. Nevertheless, it might be a proper entirely. Bill to go upstairs, or it might not. The kind of 200. Then it is not constitutional?-Then I thing I mean is something that will make a material think it may be open to argument. I am not change in the working of the Constitution. arguing whether it is constitutional or not, because 197. Do you think that would cover all such a change in the economic system is not a change in matters as are, in the ordinary conversational or the Constitution; it is merely a change in economic drawing-room sense, constitutional?-No, not organisation. necessarily all matters, in the drawing-room sense; 201. So that the economic system can be altered but if they are material. without the constitutional system being affected, according to your understanding of this?-Yes.
22 22nd meeting, 23.11.44, minute 2, MG (44) 22. Those ministers present were 3 Conservatives (Woolton, Stanley and Crookshank), 2 Labour (Morrison, Cripps), 1 Liberal National (Simon) and 1 National (Anderson) 23 1st report, HC 9-I, 1945-46, p22-3
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III Commons committee stage
It is at the committee stage in the House of Commons that much attention is concentrated on the appropriate legislative process for major and controversial government bills, especially those of a 'constitutional' nature. This stage is therefore examined in some detail here.
A. History and development
Until the early 1880s, the general practice was for the committee stage of public bills to be taken on the Floor of the House, although there had been ad hoc exceptions in the form of 'grand committees', sometimes on geographical lines or related to particular issues such as religion or trade. Erskine May had, in an anonymous 1854 article, suggested a formal system of 'grand committees', each with about 100 Members,24 and in 1878 he suggested the establishment of four permanent committees to deal with particular areas of policy, ie trade, local government, religion and law. His proposals were designed to speed up the legislative process, and bore fruit in the changes of 1882-83, although they were part of the package of changes of that era designed to overcome Irish obstructionism. In December 1882, two standing committees were established, by temporary resolutions, on 'law' and on 'trade; they were set up the following year, and dealt with a number of bills.
Such committees were allowed to lapse, but were revived at the end of the 1880s. The select committee on Parliamentary procedure in 1886, chaired by Lord Hartington, had recommended that all public bills, other than those originating in the committee of ways and means, or for the confirmation of any provisional order, should, unless the House otherwise ordered, be referred to one of four standing committees of the whole House.25 This was not taken up when, in 1888, the 1882 provisions for two committees were made permanent standing orders.26 Only about one in seven public bills were sent to standing committee during the 1888-1907 period, and they did not include the major or controversial government bills.
24 T E May (anonymously), "The machinery of Parliamentary legislation", (1854) XCIX Edinburgh Review 243- 282. See, generally, Redlich, The procedure of the House of Commons, vol 1, p.209, 1908, and report of select committee on the business of the House, HC 212, 1854 25 HC 186, 1886, paras 1,2 26 A Scottish Committee was added in 1894, though allowed to lapse between 1895 and 1906. See Research Paper 94/85
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Further major changes were made in 1907, doubling the number of standing committees to four, and creating what is now the Scottish Grand Committee. These proposals were based on procedure committee reports in 190627, and their acceptance by the House only came after protracted debate, and a closure, in the spring of 1907. These changes were significant as they, in effect, introduced the present presumption in favour of committal to standing committee,28 although even then the Liberal Government was anxious to assure the House that it had no intention of removing upstairs "the great measures of the session, which almost necessarily are controversial."29 In 1919 the number was increased to six, and the number of members on each gradually reduced from 60-80 members to around 20 by 1950. No standing committees operated between 1939 and 1944, but three, including a Scottish committee, sat during the 1944-45 session.
A further development came in the immediate post-war period, when the new Labour Government proposed a package of procedural changes in order to enable Parliament to enact its substantial legislative programme.30 While this made no formal, explicit change in existing procedures, it did, in effect, overturn the pre-war practice that major, controversial bills, other than those of 'first class constitutional importance', stayed on the Floor of the House.31 As Walkland comments, "It is in the size, complexity, and controversiality of the bills considered by post-war standing committees that the main difference with the pre-1939 situation lies, rather than in the actual number of bills sent upstairs."32
In a note to the new Labour Cabinet on 4 August 1945 on the forthcoming King's Speech, the Lord President, Herbert Morrison, reminded his colleagues of the size of the legislative programme and suggested, inter alia, that "we should take the earliest possible steps to rationalise and modernise parliamentary procedure, always providing that the essential supremacy of Parliament is preserved" by adopting the Machinery of Government Committee's proposals.33 He pursued this in a memorandum to the Cabinet on 10 August, setting out the informal soundings among Members taken on behalf of the Coalition Government on the appointment of a Procedure Committee to consider reform proposals. The War Cabinet was told on 22 January 1945 that 75-85% of Conservatives were against this suggestion at that juncture, as were the Liberal Nationals, whereas Labour Members were generally in favour of steps to speed up the Parliamentary process. Therefore the majority of the Commons was
27 In particular, the second report, HC 181, 1906 28 Walkland has described this as 'contracting out' in place of 'contracting in': The House of Commons in the twentieth century, 1979, p.258 29 The Prime Minister, Sir Henry Campbell-Bannerman, HC Deb vol 171 c.1577, 25.3.07 30 See the three Procedure Committee reports of 1945-46, HC 9, HC 58 and HC 189; Lord Morrison of Lambeth, Government and Parliament, 3rd ed., 1964, chaps X and XI, and B Donoghue & G Jones, Herbert Morrison: portrait of a politician, 1973, esp chaps 26 and 27. 31 See J Shearer, "Standing committees in the House of Commons 1945-50", (1949) 3 Parliamentary Affairs 558-568 32 op cit, p.270 33 CP (45) 94, para 4, 4.8.45
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against action before a general election.34 Morrison regarded the matter as one of "great importance and urgency", because without a substantial speeding up of Parliamentary procedures, especially in relation to standing committees on bills, there was little prospect of carrying through their legislative programme (para 3). He thought that the 1944 proposals were "remarkably satisfactory, having regard to the political circumstances obtaining when they were prepared." As such, ministers could refer to the fact that the plan was prepared by a committee of Coalition ministers, even though the War Cabinet itself had not committed itself to it: "This would put us in a strong position in the House" (para 4). He reminded his colleagues that Campbell-Bannerman's Liberal Government established a Procedure Committee immediately after its huge election victory in 1906, even though he admitted it had dealt with a number of less significant matters (para 5).
In its proposals to the 1945-46 Procedure Committee, the new Labour Government proposed that all public bills be sent 'upstairs' to standing committee, with the following exceptions:35
Reference of Bills to Standing Committees. 5. In order to secure the committal of Bills to Standing Committees, no change in the Orders of the House is required beyond a return to Standing Order No. 46, under which all Bills (except Bills for imposing taxes, consolidated fund or appropriation Bills, and provisional order confirmation Bills) stand committed to a Standing Committee unless the House otherwise orders. Standing Order No. 46 has been in force since 1907, but it has been the practice to retain "the great measures of the Session" on the floor of the House, as well as short Bills which are unlikely to require a detailed Committee Stage, and Bills introduced in circumstances of such urgency that it is necessary to ask the House to pass them within a few days, or even in one day (for example, the Merchant Shipping (Carriage of Munitions to Spain) Bill of 1936). The practice of retaining Bills on the ground of importance has naturally varied from time to time according to the exigencies of the situation, and a Bill which would be regarded as one of the great measures of one Session would not necessarily be so regarded in the next. In the reconstruction period, the Government propose that the practice should be abandoned in virtually all cases other than-
(a) Bills already excepted under Standing Order No. 46; (b) Any Bill which it may be necessary to pass with great expedition; and (c) "One-Clause" Bills not requiring detailed examination in Committee.
An exception would have to be made if any Bill of first-class constitutional importance were introduced, of the order, for instance, of the Bill for the Parliament Act, 1911, or the Statute of Westminster, 1931; and the Government would not divest themselves of the right to move that any important Bill should be retained on the floor of the House if in the circumstances of the individual case they thought that course preferable. Equally the right of any Member to move that any Bill should be retained on the floor of the House would, of course, remain unimpaired. But, with the exceptions indicated, the Government would for their part make a practice of refraining from moving in that sense, and of opposing such a motion if moved from
34 "House of Commons procedure", 10.8.45, para 2, CP (45) 103 35 First report, HC 9 of 1945-46, appendix, government memorandum, para. 5
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another quarter.
The Clerk of the House, in his evidence, commented on this proposal:36
I Proposal that practically all bills should be sent to Standing Committees, paras. 4 and 5
4. The Government proposal is that practically all bills, except those excluded by S.O. No. 46, should in respect of the committee stage be removed from the floor of the House and taken "upstairs."
5. This involves no change of the Standing Order, but only a more intensive use of it. Hitherto bills of first class constitutional importance have not been sent upstairs. And it is stated in the scheme that an exception will continue to be made for such bills as the Parliament Act, 1911, and the Statute of Westminster, 1931. But there is another class of bills which have, in the past, also been excepted, bills which arouse acute political controversy, the reason being partly that Members as a whole do not wish to be deprived of an opportunity for criticism through failure to be included in a Standing Committee, and partly because the Government (so it is said) tend to lose control of their supporters through the comparative weakness of party discipline upstairs. There is no reason to suppose that these considerations will cease to operate in the future, and they will to some extent constitute a limiting factor.
In his oral evidence, the Clerk assumed that there would remain a category of "highly controversial Bills which no Government wishes to go upstairs .... There would be a tendency, I think, still to keep that type of Bill before the House."37 He was also asked about the merits, apart from the potential saving of parliamentary time, of the Government's proposal, and whether he thought it wrong (Q426):
I do not know about wrong. I think the general feeling of the House would be against it and that that there would be a great number of Members who would dislike being absolutely cut out from possibility of debate, owing to the fact that they were not Members of the Standing Committee concerned. That is the general reaction of the House, that a Bill which interests a great number of Members to be kept on the floor of the House in order that the largest possible number of Members shall have an opportunity of debating it.
The Procedure Committee's report emphasised the Government's assurance that its scheme was designed to be on an experimental basis. On the committal issue it stated:38
36 op cit, p.32, memorandum by Sir Gilbert Campion, paras 4-5 37 Q358. See also his exchange with Richard Crossman, QQ385-401 38 1st report, HC 9-I, piv
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First Proposal: That substantially all Bills should be referred to a Standing Committee (Paragraph 5).
6. Standing Order No. 46 prescribes that "when a Bill has been read a second time it shall stand committed to one of the Standing Committees, unless the House, on motion to be decided without amendment or debate, otherwise order". The Order excepts:-
(a) Bills for imposing taxes or Consolidated Fund or Appropriation Bills; and
(b) Bills for confirming Provisional Orders
To these two classes the Government proposals would in practice add three other classes:-
(c) Any Bill which it may be necessary to pass with great expedition;
(d) "One Clause" Bills not requiring detailed examination in Committee; and
(e) Bills "of first-class constitutional importance"
The Government would of course retain the right to move that the Committee stage of any important Bill should be taken on the floor of the House, if in the circumstances of the individual case that course seemed preferable.
7. Your Committee approve this proposal which, as explained, would represent a fuller use than hitherto of a procedure for which the Standing Order already provides. In view of the conflict of evidence they consider that it is not possible to estimate precisely how many days of the time of the House would be saved by this proposal. This question is more appropriate to the larger inquiry into the use of Parliamentary time which the Committee will make later. They are, however, satisfied, that in the circumstances likely to obtain in the next few years it would result in an acceleration of Public Business, despite the fact that some increase in time may be required on Second Reading and at the Report stage.
The committee's conclusion was repeated in its summary: "Your Committee approve the proposal to refer substantially all Bills to Standing Committee" (para 24(a)).
The House debated the report, and the related motions, on 15 November 1945.39 For the Opposition, Eden thought that the phrase 'measures of first class constitutional importance' was "a very difficult definition to apply." He continued (c.2354):
I am not sure but that a Bill which affects the whole economic life of the country is not just as important as a Bill which raises even a grave constitutional issue. I do not know, it may be so. What I suggest to the Government is that in interpreting this phrase "first-class constitutional issue" the interrelation of economics and politics that the right hon. Gentleman the Foreign Secretary reminded us of a little time ago should be borne in mind.
39 HC Deb vol 415 cc 2344-59, 2363-466, 15.11.45
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In reply, Morrison said (c.2395):
The right hon. Gentleman put an argument, The right hon. Gentleman, in making that with which I do not agree, on an aspect of the argument, was rather falling back into the earlier matter which was dealt with in evidence before the state of mind of the Conservative Party, in which Select Committee; namely, that it was proposed to they took the view that anything which in any way keep Finance Bills and Bills of first-class impaired the free working of the capitalist system constitutional importance on the Floor. I hope I do of production and distribution was in itself not misrepresent the right hon. Gentleman when I revolutionary and involved constitutional say that I think he was seeking to argue that in the revolutionary doctrine. An argument about how modern kind of legislation affecting economics, best a nation can get a living does not in any way Bills which provide for considerable economic involve revolution one way or another. It involves change-for example, the socialisation of industries- an issue of good sense for which there are are, in principle, Bills raising first-class arguments for and against, but I do not agree that constitutional issues. I think he was arguing that it involves issues of first-class constitutional point, and that therefore they ought to be dealt with importance, although the issue can be exciting from on the Floor. I do not agree that if Parliament, time to time. Let us hope the issues will be upon the advice of the Government, proceeds to exciting as the House gets on with its work. transfer the ownership, and to convert capitalist industries to socialised industries, it is a constitutional change. It is a considerable change and, I believe, a beneficial change. However, that is a matter of opinion. I do not accept the view that it is a constitutional change. It is deciding that in economic affairs the country will get its living in one way instead of in another, but I do not think that is of constitutional importance.
IV Splitting the committee stage
A bill can be committed in part to the Committee of the Whole House and in part to a standing committee. A motion to that effect can be made by the Member in charge (ie a minister, in the case of a government bill), which, if made immediately after second reading, can be moved without notice. If the motion is opposed, the mover and a Member opposing it can make brief explanatory statements, and the Speaker then immediately puts the question: S.O. no. 63(3). The most notable example of a category of public bill whose committee stage is nowadays regularly split between the Floor of the House and upstairs in standing committee is the annual Finance Bill. A neat summary of the development of this technique is contained in Griffith & Ryle's Parliament:40
Until 1967 the Finance Bill was always committed wholly to a committee of the whole House; in 1968 the whole bill was committed to a standing committee, but this was unacceptable to the Opposition, and a guillotine proved necessary to pass the bill (the only other case of a guillotined Finance Bill was in 1975); since 1969 the division of the bill, as described, has been the standard practice, except when it has been necessary, by agreement, to hurry a
40 1989, p.253
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Finance Bill through before or after a general election.
The Procedure Committee, in a 1965 report, considered various means of expediting the Finance Bill, including splitting the Committee stage.41 The Committee believed that their proposals "for sending as much as possible of the Finance Bill upstairs and for the adoption of a time-table for the Bill, would result both in a saving of time on the floor of the House and a more appropriate consideration of the technical features of the Bill".42
On 6 December 1967, Richard Crossman, as Leader of the House, moved a motion to amend what was then SO no. 40 (Committal of Bills)43 to allow, in effect, Finance Bills to be sent to Standing Committee.44 He called this "the most important of the changes in our procedure which we are suggesting that this House should adopt this Session" (c.1445). He said that a consensus had been achieved in the Procedure Committee "with some difficulty" for an experiment for one session. There was a substantial debate on this proposal, which was eventually carried 204 - 136. On 24 April 1968 that year's Bill was committed in its entirety to a Standing Committee, following the defeat of an Opposition motion to commit the Bill to a Committee of the Whole House, by 223-291.45 However, this procedure continued to generate controversy.46 The following year the Bill was split47, again not without controversy. The Chief Secretary, John Diamond, defended this proposal as a "reasonable compromise or dividing line between having the whole of the Committee stage downstairs ..... and the alternative of sending it upstairs ..." (c.408). The proposal was agreed to, by 261-17.
Most bills which are split, other than Finance Bills, are split at their committee stage to allow a full debate on the Floor of the House on a particular issue, such as a conscience/moral issue, within the context of a general public bill, but not always central to the primary purposes of the bill. Classic examples of this are amendments and new clauses to criminal justice bills to allow the House to decide on matters such as capital punishment.
In his evidence to the 1945-46 Procedure Committee, the Speaker, Douglas Clifton Brown, asked: "Is it possible to divide Bills so that important controversial clauses should be taken on the floor thus avoiding a long debate upstairs and a long debate on the same point on Report?"48 When questioned on this suggestion, he said that "it is possible for the House to
41 This was on a similar basis to arguments frequently made that there should be two annual bills, one on major tax policy, including changes in rates and levels, and the other a 'Taxes Management Bill' dealing with the more administrative (but often bulky) provisions 42 3rd report, HC 276 of 1964-65, July 1965, para 7 43 now SO no. 63 44 HC Deb vol 755, cc 1445-1530, 6.12.67 45 HC Deb vol 763 cc407-12. Fred Peart had taken over from Crossman as Leader of the House on 6 April. 46 See, for example, the allocation of time proceedings on 23 May 1968, where Dame Irene Ward protested so strongly that she was required to withdraw from the Chamber: HC Deb vol 765 cc 893-5, 23.5.68 47 HC Deb vol 783 cc 405-16, 6.5.69 48 First report, HC 9 of 1945-46, p1, memorandum by Mr Speaker, para 2
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do anything it likes; it is perfectly possible, if they say so, to divide a Bill", and that it had been done before (QQ45-6) . The Clerk was also asked about the splitting of bills (Q 428):
427. Would that also apply to Bills of controversial character?-I should have thought so.
428. What would you say to dividing both Bills of a controversial character and Bills of constitutional importance into two parts and sending part upstairs and retaining part on the floor of the House?- I suppose that would be theoretically possible; the machinery part could go upstairs and questions of principle could remain on the floor of the House. There is provision for doing that under the existing Standing Orders. Under Standing Order 46 it is possible for a Member to move that part shall go upstairs and part remain on the floor of the House, and when that is moved it has to be decided under the 10 minutes Rule. It has not very often been used. It was used, I think, in 1921 on the National Insurance Bill.
A total of 20 Bills have been split from 1984-85 to 1996-7 of which 13 were Finance Bills. The remainder are as follows:49
Local Government Bill 1984/5 2R & MR: CH, 3, 4 December 1984 CWH, 12, 13 December 1984 (Clause 1 - abolition of the GLC and metropolitan county councils) SC G, 18 December 1984-7 March 1985 (35 sittings) (49 members)
Human Fertilisation & Embryology Bill [HL] 1989/90 2R MR* & GM: CH, 2 April 1990 CWH, 23, 24 April 1990 (Clause 11 - licences for treatment, storage and research, 23.4.90.; New Clauses 4 + 1-3, 5 on abortion, 24.4.90.) SC B, 1-15 May 1990 (five sittings) (19 members)
Criminal Justice Bill 1990/91 2R & MR: CH, 20 November 1990 SC A, 29 November 1990-7 February 1991 (24 sittings) (24 members) CWH, 17 December 1990 (New Clauses 1+ 2-7 on capital punishment)
Sunday Trading Bill 1993/94 2R: CH, 29 November 1993 CWH, 8 December 1993, 9 February 1994 (Clause 1 - alternative schemes for reform of the law relating to Sunday trading, 8.12.93.; Schedule 4 + New Clause 4 - rights of shop workers; New Clauses 2 - Sunday-only workers, 3 - non- abatement of statutory provisions, 9.2.94.) SC A, 13 - 25 January 1994 (6 sittings) (26 members)
Criminal Justice and Public Order Bill 1993/94
49 List prepared by Helen Holden and Janet Seaton, Reference & Reader Services Section
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2R & MR: CH, 11 January 1994 SC B, 18 January - 15 March 1994 (31 sittings) (32 members) CWH, 21 February 1994 (New Clauses 2 + 4 - capital punishment; New Clauses 3 + 5,6 - age of consent for sexual acts between men) Family Law Bill [HL] 1995/96 2R & MR*: CH, 25 March 1996 COM: CWH, 24 April 1996 (Clause 5 - marital breakdown; Clause 7 - period for reflection and consideration) COM: SC E, 25 April - 16 May 1996 (10 sittings) (25 members)
Firearms (Amendment) Bill 1996/97 2R & MR: CH, 12, 18 November 1996 COM: CWH, 18, 19 November 1996 (Clause 1 - small firearms, 18.11.96.; Clause 2 - slaughtering instruments; Clause 3 - firearms used for humane killing of animals; Clause 4 - races at athletic meetings; Clause 5 - trophies of war; New Clauses 3 - shot pistols, 5 - exemption for collectors, 6 - exemption for dealers, 19.11.96.) COM: SC E, 20, 21 November 1996 (3 sittings) (25 members)
* formal
Source: POLIS database
The first bill cited in this list, the Local Government Bill 1984-85, may have been regarded by some as potentially 'constitutional' in the sense discussed here. Following its second reading on 4 December 1984, The then Environment Secretary, Patrick Jenkin, moved that clause 1 of the bill be taken on the floor of the House and the remainder 'upstairs':50
That clause 1 be committed to a The Bill is clearly of great interest to a great Committee of the whole House: many right hon. and hon. Members on both sides of the House. Therefore, in accordance with That the remainder of the Bill be precedent, we suggest that the main provision, committed to a Standing Committee: which is part I of the Bill, should be taken on the Floor of the House. Clearly it is impracticable that That, when the provisions of the Bill the whole Bill should be taken on the Floor of the considered, respectively, by the Committee of House, and, I would suggest, quite inappropriate the whole House and by the Standing that such a Bill should be referred to a Select Committee have been reported to the House, Committee. the Bill be proceeded with as if the Bill had Dr. John Cunningham (Copeland): I been reported as a whole to the House from understand what the Secretary of State has said the Standing Committee. about its being inappropriate for the whole Bill to be taken on the Floor of the House. Clearly we I beg to move, agree that clause 1 should be taken on the Floor of the House. However, will not the right hon.
50 HC Deb vol 69 cc274-5, 4.12.84
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Gentleman accept that there are good arguments for Mr. Speaker: That is not a matter for me. If the clause 21, which refers to the future of the Inner House wishes to change the Standing Order, it may London education authority, clause 40, which refers do so. to the future of police and fire authorities which Question put, pursuant to Standing Order No. will be designated under the Rates Act 1984, clause 42 (Committal of Bills).- 64 and clause 80 also being considered by a The House divided: Ayes 351, Noes 196. Committee of the whole House?
Mr. Meadowcroft: .... I understand that according to Standing Order No. 42, which relates to the committal of Bills, the motions in the name of my right hon. and hon. Friends cannot be voted upon or even debated. If the Secretary of State's motion is carried, only clause 1 will be taken on the Floor of the House. If that motion is defeated, the entire Bill will go to a Standing Committee. It seems strange that the Standing Orders do not permit any addition to the motion to enable us to take more than clause 1 on the Floor of the House. Should there not be some way in which the House could vote on whether it wished to take the whole Bill on the Floor of the House?
The 1996 Constitution Unit report, Delivering constitutional reform, considered the partial referral of bills, on the Finance Bill model, which it considered could be "less controversial and more effective" than referral of the complete bill to a standing committee. It recognised that a bill intended to be subject to this procedure would have to be so drafted as to differentiate clearly 'core' clauses to be taken on the Floor from other clauses suitable for consideration upstairs. The standing committee might need to be larger than usual, reflecting the importance of the bill. The order of the debates between those on the Floor and those upstairs may be relevant, in terms of consideration of policy issues and the debating of particular amendments (paras 100-4).
V The current debate
As stated in the introduction to this Paper, Erskine May simply states that "it is the regular practice for Government bills of first class constitutional importance to be committed to a Committee of the whole House."51 A memorandum by the Clerks to the 1984-85 Procedure Committee report on public bill procedure uses similar terminology:52
51 21st ed., p.479 52 Public bill procedure, 2nd report, HC 49-II, 1984-85, p2
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(vi) In current practice only bills of exceptional importance,2 or exceptional insignifi- cance, or exceptional urgency, are committed to Committees of the whole House. Almost all bills go to standing Committees of between 16 and 50 Members.... 2 As, for example, bills of "first class constitutional importance"; see First Report from the Select Committee on Procedure, HC 9-1 of 1945-46, p xi, and CJ (1945-46) 81.
Miers & Page's Legislation has a brief reference to the matter:53
There are four alternatives to the consideration of a public Bill by a standing committee; a motion to have recourse to any of these alternatives must be decided upon without amendment or debate immediately after a Bill's second reading. First, the Bill may be considered in committee of the whole House. This alternative is restricted in practice to Bills requiring rapid passage and Bills of "constitutional importance." This term is one of "imprecise content," but it has covered, for example, the Parliament (No. 2) Bill 1969, the European Communities Act 1972, the Scotland and Wales Bill 1977, the Scotland Act 1978, and the Wales Act 1978. The justification for retaining these Bills on the floor of House is that all Members should have the opportunity to participate in the discussion of the details of measures of such consequence. In practice, however, this principle may prove difficult to reconcile with the subjection of a measure to an adequate degree of scrutiny.
Secondly, the Bill's consideration may be split between committee of the whole House and a standing committee. This alternative is used principally for the annual Finance Bill, the major clauses of which are taken on the floor of the House with the remainder being referred to a standing committee. The justification for the consideration of its major clauses on the floor of the House is again that all Members should have the opportunity to participate in their consideration.
The Labour Government in 1975 clearly regarded its Referendum Bill as a major bill. When Harold Wilson announced in a Commons statement on 23 January that there would be a referendum, he said, regarding the relevant legislation: "We shall, of course, propose that all stages should be taken on the Floor of the House."54 The white paper preceding the bill stated that "because of its importance, the committee stage of the bill will be taken on the Floor of the House of Commons."55
A recent EDM, signed initially by 155 Members (almost all Conservatives, but including, for example, the Ulster Unionist leader, David Trimble), and 160 Members by the end of the 1996-97 session, demanded that "the committee stage of any public bill of a constitutional nature should be taken on the Floor of the House, thereby reflecting established precedent as set out in the First Report from the Select Committee on Procedure of Session 1945-46 (HC 9-I) and has always been the practice."56
The 1996 Constitution Unit report, already cited, examined this matter in some detail. Committees of the Whole House, it considered, had dangers for government business managers by providing opposition opportunities for delay (partly because of the size of the committee compared to a 'normal' standing committee), for cross-party alliances opposing the
53 2nd ed., 1990, pp 80-81 54 HL Deb vol 884 c.1747, 23.1.75 55 Cmnd 5925, February 1975, para 42 56 EDM 621, 1996-97, 6.3.97.
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bill, especially the possibility of uniting those who, for different (perhaps opposite) reasons, oppose all or part of a bill (or the nature of its Parliamentary process) in crucial divisions, whether procedural or substantive.57 It concluded:58
86 The theoretical justification for taking a bill in a committee of the whole House is that it allows all Members to participate; thus it is a more appropriate forum in which to deal with particularly significant measures. It is debatable how far this reflects reality. In practice, attention is focused on broader political questions (effectively providing a continuation of the second reading debate by other means) and there is little opportunity to consider details or more practical questions. Debate tends to be dominated by a small minority of Members, although the debate on the floor of the House ensures that a greater number of Members become aware of the issues being debated. The proceedings have a high public profile, but the Government is unlikely to make concessions unless there is a real possibility of defeat. The Opposition is left with the weapon of delay; but this is only really effective if the Government is facing Opposition from its own backbenchers. Without such Opposition, the Government is likely to impose a guillotine, possibly leaving large sections of the bill undebated and further compounding the lack of scrutiny.
The report recognised that a government could "break with convention" by sending a bill to standing committee, which by S.O. no 63(1), happens automatically after second reading "unless the House otherwise order".59 However a motion that a bill be referred to a Committee of the Whole House (or, indeed, to a select committee, special standing committee or joint committee) can be made by any Member (without notice, if made immediately after second reading), thus making it likely, in contentious situations, that such an attempt would be made (S.O. no. 63(2)).60 The report noted that reference to a standing committee permits the government, to some extent, to influence the composition of the committee, and could save time overall, in that it can operate while the House itself is sitting.
The Constitution Unit also considered other forms of committal for particular 'constitutional' measures, such as the use of the Scottish and Welsh Grand Committees, or a Scottish Standing Committee (although there could be difficulties under present standing orders, such as their political composition, and the requirement that the Speaker certify that a bill to be referred to the Scottish Grand Committee or a Scottish Standing Committee be a one whose provisions relate exclusively to Scotland61), or to a special standing committee,62 select committee or joint committee (paras 105-115).
57 It cited the proceedings on the 'Maastricht Bill' in 1992-93 as a recent example of fluctuating oppositional alliances. See, generally, G Marshall, "The Maastricht proceedings" 1993 Public Law 402, and D Baker et al, "The Parliamentary siege of Maastricht" (1994) 47 Parliamentary Affairs 37 58 Delivering constitutional reform, p.34 59 Splitting the committee stage of a bill is considered in section IV of this Paper 60 Morgan's study of the 1960s attempts at Lords reform, with the Parliament (No 2) Bill 1968-69, noted that "one pessimist in the Whips' Office is reported to have suggested that on this occasion convention might be broken, and the Parliament Bill sent upstairs, but the suggestion was not taken seriously": J Morgan, The House of Lords and the Labour Government 1964-70, 1975, p.212 61 S.O. nos. 97(1) and 101, respectively 62 On which see Research Paper 96/14, 23.1.96, Special standing committees in both Houses, and S.O. no. 91.
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During the election campaign there were press reports that senior Conservative ministers in the Lords were suggesting that if an incoming Government did not abide by the 'convention' that major 'constitutional' bills were not taken on the floor of the House of Commons, the House of Lords may not feel obliged to abide by its 'self-denying ordinances', such as the so- called 'Salisbury Convention' concerning the Upper House's treatment of government bills which sought to implement manifesto pledges. The Scotsman of 22 April reported that, in an interview with the newspaper, the then Lord Chancellor, Lord Mackay of Clashfern said that, whereas the 'Salisbury Convention' arose in 1945 against a background of the sort of legislation which parliamentarians of that time were accustomed to, proposed devolution legislation was "a different type of legislation - fundamental, constitutional legislation." He was quoted as saying that a committee stage of such bills 'upstairs' would not enable Members to debate them fully and would affect the Lords' attitude: "If this question came before the House of Lords, they would have to take account of what happened to the bill in the House of Commons ... The normal constitutional convention is that a proposal to alter constitutional matters is taken in a committee of the whole house -- that was done last time [in 1978-79]. Now, I have certainly seen hints that the Labour Party, if they won the election, might not do that ... If it hadn't been examined on the floor of the House of Commons, it might well be a reason for the Lords to say that [the referendum bill] required more examination than otherwise it might have ... I do not think that the Lords would consciously delay anything. That is not part of their function .. The Lords' function is to examine it thoroughly and, of course, the more thoroughly, the more time it takes ... Every responsible member of the House of Lords, entitled to a vote there, would want to do his or her best to ensure that whatever the law was, it was as good as they could make it." He denied that his remarks amounted to a challenge to the Commons.63
In a letter to the Times on 26 April, Lord Mackay of Clashfern responded: "My view is that decisions upon any Bill that may be put before Parliament for a referendum in Scotland should be made in the light of all the circumstances then prevailing."64 Mr Major was quoted in The Scotsman of 23 April as follows:"We will obey conventions provided they obey conventions. I am making no threats about what we are going to do in the House of Lords. The House of Lords is subordinate in power to the House of Commons. The House of Commons is the supreme legislative body." The report continued: "Mr Major said he believed that conventional procedures should be followed despite his own deep hostility to home rule but he added that he thought the main question was whether Labour, the Liberal Democrats and SNP MPs would also obey the conventions and ensure a full Commons debate."65
63 "Lord Chancellor deals a body blow to devolution", Scotsman, 22.4.97. Lord Cranborne, then Leader of the Lords, was quoted in the Financial Times the following day in similar terms. Speaking in Scotland on 22 April, he said that the Commons legislative procedures for a bill were a matter for MPs, "but if they didn't deal with it on the floor of the House, it's something we would have to take into account if and when it came to us" ("Conservative peers threaten to block devolution proposal", Financial Times, 23.4.97) 64 "Lord Mackay's view", Times (letter), 26.4.97 65 "Major warns Labour to play by rules on referendum bill", Scotsman, 23.4.97
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Examples of early reaction to these reports came from Wales where Ron Davies, now Welsh Secretary, was quoted in the Western Mail: "No one has ever voted for Lord Mackay, and it's arrogant and presumptuous of him to lecture those of us who will be elected to the House of Commons on matters of democracy and procedure. It's astounding that someone with no democratic mandate should seek to interfere in matters of this nature. The Labour Party will have a very clear mandate, and it's offensive to any democrat to countenance the unelected House of Lords interfering in the democratic process .... The process by which the devolution legislation will be passed through the House of Commons will be a matter for the House of Commons ... The next House of Commons will decide its own procedures. The Labour Party has included in its manifesto very precise details of our intention of a referendum. If we have a Labour government elected on its manifesto, it will have a very clear and very precise mandate and, in compliance with the Salisbury convention, the next Labour government will brook no interference from people who speak for no one but themselves and their own vested interests." Plaid Cymru president Dafydd Wigley was also quoted in the same article as saying that "the people of Wales and Scotland would be aghast if the non-elected chamber would be used to deliberately disrupt having a referendum at an early date."66 Press reports after the election continued to speculate on the treatment of proposed devolution legislation, including that authorising referendums on the subject in Scotland and Wales.67
Donald Dewar, as Opposition Chief Whip (now Scottish Secretary), was asked a number of times before the election about a future Labour Government's approach. For example during a Radio 4 Analysis programme on 24 April, he said that "what we are going to have is adequate scrutiny and debate. We'll want to talk with other parties about the best way of achieving this," and when pressed on the point, continued:68
I mean, quite clearly we've got to make progress and I think the fallacy in the comparison with what happened in 1976 and through the remainder of that period of Labour government was that it was a government that was failing into minority. It couldn't get a procedural motion through the floor of the House. It couldn't control events. Now we have a number of options, which you'll want to discuss. But if you look at, for example, enormously important constitutional bills recently, the biggest single transfer of sovereignty to the European Union was the Single European Act. That was put through by this Conservative government and they did it with a timetable motion in double quick time. There are lots of ways, if you are in control of the House. Now I don't want to abuse the .. the House. I certainly don't want to abuse people's right to scrutiny and debate and we will make very sure that this is done adequately and this is done properly. But at the same time. if we have a bill that has been endorsed at a General Election and in this case, the double lock of being very very specifically endorsed in a referendum in both Scotland and in Wales, then clearly it would be very silly for a government to say that a minority which is honourably but in our view mistakenly opposed to it, should be allowed to hold it up interminably.
The issue arose during the first day of the Queen's Speech debate. The Leader of the
66 "Assembly plan 'could be held upon in Lords'", Western Mail, 23.4.97 67 See for example the front-page story in The Scotsman of 6 May, "Don't cross us on devolution" 68 transcript, p.12
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Opposition said:69
Can the Prime Minister now confirm to the House that constitutional Bills will be taken here on the Floor of the House in accordance with convention? Can he please do so this afternoon? The Minister without Portfolio wriggled unmercifully on the radio the other day without giving any coherent answer to that plain, straightforward question. So I repeat it: can the Prime Minister confirm that the Bills will be taken on the Floor of the House? Can he promise that they will not be smuggled upstairs to a Committee stacked full of enthusiasts who will not properly examine the measures?
The Prime Minister was questioned about this during his speech (cc 67-8):
Sir Patrick Cormack (South Staffordshire): Mr. Blair: As I have said before to the hon. Will the Prime Minister give a firm undertaking Gentleman, the referendum Bill will of course be that any constitutional measures will be taken in taken on the Floor of the House. Other measures Committee on the Floor of the House? will be discussed by a new Committee on procedures to be established by the Leader of the House. There will be ample time for debate, but I have to say to the hon. Gentleman and other Opposition Members that if the firmly established will of the Scottish and Welsh people is demonstrated in referendums, the people will not expect us to be game-playing here-they will expect us to legislate.
69 HC Deb vol 294 c.58, 14.5.97
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The Liberal Democrat leader may have been referring obliquely to the practice when he said at the end of his speech that "where convention stands in the way of [change], we shall be happy to see those conventions changed to improve the way we do things, both in the House and outside" Citing the Government's changes on Prime Minister's Question Time as an example, he continued: "If there are other ways in which we can sensibly change the way we do things, let us do so" (c.75).
During business questions on 15 May, the Leader of the House was pressed by Alistair Goodlad, from the Opposition front bench, on the application of the practice to the Government's current legislative programme:70
Will she also confirm that the Committee stage of that Bill will be taken on the Floor of the House, as will the proposed Bills on the establishment of a devolved Scottish Parliament and Welsh Assembly if approval is obtained in the referendums, the legislation to incorporate into UK law the main provisions of the European convention on human rights, the legislation to provide for a directly elected strategic authority and a directly, elected mayor of London, the Bill, if one is introduced, to amend the European Communities Act 1972. the Bill to change the responsibilities of the Bank of England and any other legislation with constitutional implications?
She replied:71
The other points that the right hon. Gentleman raised about the devolution Bills were answered yesterday by my right hon. Friend the Prime Minister. I do not accept that ah the Bills that the right hon. Gentleman declared as constitutional fall into that category. However, the way in which constitutional Bills are handled in future can fall within the remit of the Select Committee on modernisation of parliamentary procedures that we hope to establish soon.
During the debate on the consultation on 16 May 1997 William Hague, Shadow Secretary of State for Wales, warned that a large majority should not be used to override normal Parliamentary practice:72
70 HC Deb vol 294 c.160, 15.5.97 71 cc.161-2 72 HC Deb vol 294 c.284
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Legalistically and according to the rules, the Prime "As we work our way through this Bill in Committee, we shall Minister is entitled to do it, but Labour Members more and more adequately demonstrate that many claims made for devolution are false".-[Official Report, 18 January 1977; Vol. may learn to their cost that, although it is 924, c. 150.] technically permissible to exploit and to misuse a huge parliamentary majority, they would be well He would not have been able to demonstrate that if advised not to do it. They should bear that in the Bill had been dealt with in a Committee mind, too, before they break the long-accepted upstairs. Can the Secretary of State and his convention that Bills of the nature that they colleagues make it clear, in the light of reports in propose for constitutional change should be this morning's press, that Members of Parliament in considered on the Floor of the House. It is ever the Labour party who wish to campaign against clearer that the Government plan to break that devolution proposals will be free to do so? convention. It is clear from their waffle, although they have not yet had the courage to say it outright. On Wednesday, the Prime Minister said:
"There will be ample time for debate"-[Official Report, 14 May 1997; Vol. 294, c. 67.]
and that the new Committee on procedures would think about all this. Why did he not have the courage to say that the Government are paving the way for the most far-reaching constitutional changes proposed for years to be largely considered in a Committee upstairs, staffed with selected Government Back Benchers who would barely say a word? Where would we have been in the 1970s if Mr. Neil Kinnock, then a Member, had not been able to speak on devolution matters" He said in 1977:
Michael Ancram, for the Conservatives, also commented 'all the Bills proposing schemes of devolution must be taken on the Floor of the House.73 No commitment was given to this by Ron Davies for the Government in the winding up speech.74
73 c.345 74 c.346-351
29 Research Paper 97/53
Appendix75
'Constitutional Bills': second readings and committee stages since 1945
Northern Ireland (Entry to Negotiations) Bill 1995-96 2R, MR* 18 April 1996 275 c851 CWH (2) 22,23 April 1996 276 c23; 205 no SC
European Union (Accessions) Bill 1993-94 2R 11 July 1994 246 c685 CWH 13 July 1994 246 c1044 no SC
Boundary Commissions Bill 1992-93 2R, MR 15 June 1992 209, c668 CWH (2) 22,23 June 1992 210 c23; 144 no SC
European Communities (Amendment) Bill 1992-93 2R (2) 20,21 May 1992 208 c261; 509 'Paving debate' 4 November 1992 213 c283 CWH (23) 1 December 1992 - 2 April 1993 no SC
War Crimes Act 1991 [Took two sessions; passed by use of the Parliament Acts 1911 & 1949] War Crimes Bill 1989-90 2R, MR 19 March 1990 169 c887 SC A 29 March; 3 April 1990 (3 sittings) (19 members) no CWH War Crimes Bill 1990-91 Procedure motion 12 March 1991 187 c901 2R, MR 18 March 1991 188 c23 no CWH no SC
75 Prepared by Janet Seaton, Reference & Reader Services Section.
30 Research Paper 97/53
Ministerial and other Pensions and Salaries Bill 1990-91 2R, MR 31 January 1991 184 c1137 CWH 18 February 1991 185 c111 no SC
Parliamentary Constituencies Bill [HL] 1985-86 2R, rem. stages 24 October 1986 102 c1444 no SC
European Communities (Amendment) Bill 1985-86 2R 23 April 1986 96 c316 CWH (4) 16, 26 - 27 June, 10 July 1986 GM 1 July 1986 100 c927 no SC
European Communities (Spanish and Portuguese Accession) Bill [HL] 1984-85 2R 4 December 1985 88 c313 CWH, rem. stages 10 December 1985 88 c859 no SC
Representation of the People Bill 1984-85 2R, MR* 10 December 1984 69 c754 CWH (3) 29 January 1985 72 c181 13,14 February 1985 73 c353; 495,589 no SC
Local Government Bill 1984-85 2R (2) 3-4 December 1984 69 c27,119; 173 MR 4 December 1984 69 c281 CWH (2) 12-13 December 1984 69 c1076,1153; 1236 SC G 18 December 1984 - 7 March 1985 (35 sittings) (49 members)
Representation of the People Bill 1982-83 [Consolidation] 2R*, rem. stages 2 February 1982 36 c395 no SC
Representation of the People Bill 1980-81 2R 22 June 1981 7 c28 CWH 25 June 1981 7 c420 no SC
31 Research Paper 97/53
British Nationality Bill 1980-81 2R 28 January 1981 997 c931 SC F 10 February - 14 May 1981 (48 sittings) (26 members) GM 29 April, 2 June 1981 3 c792; 5 c794 no CWH
European Communities (Greek Accession) Bill 1979-80 2R 30 October 1979 972 c1041 CWH, rem. stages 14 November 1979 973 c1366 no SC
House of Commons (Administration) Bill 1977-78 2R Cttee 12 April 1978 947 c1553 2R* 17 April 1978 948 c215 SC A 27 April - 4 May 1978 (2 sittings) (17 members) no CWH
European Assembly Elections Bill 1977-78 [The name of the Act was later changed to the European Parliamentary Elections Act] 2R, MR 24 November 1977 939 c1764 CWH (6) 1 December - 8 February 1978 GM 26 January 1978 942 c1623 no SC
Wales Bill 1977-78 2R, MR 15 November 1977 939 c357 GM 16 November 1977 939 c655 CWH (9) 1 March - 25 April 1978 no SC
Scotland Bill 1977-78 2R, MR 14 November 1977 939 c51 GM 16 November 1977 939 c579 CWH (14) 22 November - 1 February 1977 no SC
Scotland and Wales Bill 1976-77 2R (4) 13 - 16 December 1976 922 c974; 1249; 1559; 1735 CWH (11) 13 January - 24 February 1977 GM 22 February 1977 926 c525 [negatived] no SC [Bill withdrawn]
32 Research Paper 97/53
Parliamentary and other Pensions and Salaries Bill 1975-76 2R, MR, WMR 29 April 1976 910 c652 SC H 25 May 1976 (1 sitting) (17 members) no CWH
Civil List Bill 1975-76 2R, MR 4 December 1975 901 c1980 CWH, rem. stages 11 December 1975 902 c729 no SC
Recess Elections Bill [HL] 1974-75 [Consolidation] Considered by Joint Cttee on Consolidation Bills, reported 9 July 1975 All stages 21 October 1975 898 c441
Ministerial and other Salaries Bill [HL] 1974-75 [Consolidation] All stages 21 April 1975 890 c1200 no SC
House of Commons (Disqualification)Bill [HL] 1974-75 [Consolidation] All stages 21 April 1975 890 c1196 no SC Ministers of the Crown Bill [HL] 1974-75 [Consolidation] All stages 21 April 1975 890 c1199 no SC
Referendum Bill 1974-75 2R, MR 10 April 1975 889 c1418 CWH (2) 22-23 April 1975 890 c1249; 1489 no SC
Prevention of Terrorism (Temporary Provisions) Bill 1974-75 All stages 28 November 1974 882 c634 no SC
Northern Ireland Constitution Bill 1972-73 2R, MR 24 May 1973 857 c680 CWH (3) 14, 20, 21 June 1973 857 c1716; 858 c695; 899 no SC Northern Ireland (Emergency Provisions) Bill 1972-73 2R 17 April 1973 855 c275 SC B 7 May - 25 June 1973 (10 sittings) (27 members) no CWH
33 Research Paper 97/53
Northern Ireland Assembly Bill 1972-73 All stages 16 April 1973 855 c31 no SC
Northern Ireland (Border Poll) Bill 1972-73 2R, MR 21 November 1972 846 c1089 CWH, rem. stages 23 November 1972 846 c1529 no SC
Northern Ireland (Temporary Provisions) Bill 1971-72 2R 28 March 1972 834 c238 CWH, rem. stages 29 March 1972 834 c445 no SC
European Communities Bill 1971-72 2R (3) 15,16,17 February 1972 831 c264; 443; 629 WMR, MR 22 February 1972 831 c1137 CWH (21) 29 February - 5 July 1972 GM 2 May 1972 836 c206 no SC
Civil List Bill 1971-72 2R 21 December 1971 828 c1323 CWH, rem. stages 19 January 1972 829 c495 no SC
Immigration Bill 1970-71 2R, MR 8 March 1971 813 c42 SC B 18 March - 27 May 1971 (23 sittings) (38 members) no CWH
Parliament (No. 2) Bill 1968-69 2R 3 February 1969 777 c43 CWH (11) 12 February - 14 April 1969 no SC [Bill dropped]
Representation of the People Bill 1968-69 2R, MR 18 November 1968 773 c913 CWH (4) 26 November - 11 December 1968 no SC
34 Research Paper 97/53
Commonwealth Immigrants Bill 1967-68 2R, MR 27 February 1968 759 c1241 CWH, rem. stages 28 February 1968 759 c1421 no SC
Royal Assent Bill [HL] 1966-67 2R 17 April 1967 745 c7 CWH, rem.stages 24 April 1967 745 c1067 no SC
Parliamentary Commissioner Bill 1966-67 2R, MR 18 October 1966 734 c42 SC B 27 October - 29 November 1966 (10 sittings) (21 members) no CWH
Peerage Bill 1962-63 2R 19 June 1963 679 c461 CWH, rem. stages 27 June 1963 679 c1663 no SC
Commonwealth Immigrants Bill 1961-62 2R 16 November 1961 649 c687 CWH (6) 5 December 1961 - 13 February 1962 GM 25 January 1962 652 c413 no SC
Life Peerages Bill [HL] 1957-58 2R (2) 12-13 February 1958 582 c402; 581 CWH 25 March 1958 585 c300 no SC
Regency Bill 1953-54 2R 11 November 1953 520 c949 CWH, rem. stages 12 November 1953 520 c1148 no SC
Royal Titles Bill 1952-53 All stages 3 March 1953 512 c193 no SC
35 Research Paper 97/53 36
Parliament Act 1949 [Took two sessions; passed by use of the Parliament Act 1911] Parliament Bill 1947-48 2R (2) 10 - 11 November 1947 444 c36, 203 CWH 4 December 1947 445 c584 no SC Parliament Bill 1948 2R 20 September 1948 456 c522 Procedure motion 21 September 1948 456 c707 CWH, rem. stages 21 September 1948 456 c730 no SC Parliament Bill 1948-49 2R 31 October 1949 469 c45 Procedure motion 14 November 1949 469 c1695 Rem. stages 14 November 1949 469 c1737 no SC
Ireland Bill 1948-49 2R 11 May 1949 464 c1854 CWH 16 May 1949 465 c33 no SC
British Nationality Bill [HL] 1947-48 2R 7 July 1948 453 c385 CWH 13 July 1948 453 c1019 no SC
Abbreviations: *=formal; 2R=Second Reading; CWH=Committee of the Whole House; MR=Money Resolution; Rem.=remaining; SC=Standing Committee; WMR=Ways & Means Resolution
Sources: Bill Indexes; Parliamentary Indexes; Hansard.
36 Recent Research Papers on related subjects include:
97/64 Aspects of Parliamentary Reform 20.05.97
97/61 Referendums (Scotland and Wales) Bill 20.05.97
97/52 Parliamentary Pay and Allowances: 14.05.97 the current rates
97/10 Referendum: Recent Proposals 24.01.97
96/82 The Constitution: Principles and Development 18.07.96
96/50 By-elections since the 1992 general election 15.04.96