Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.
The EU (Future Relationship) Bill is to be considered by both Houses in just one sitting day. How unusual is such an expedited timetable and how much time will parliamentarians really have to look at the Bill? How will MPs participate in proceedings given Covid-19 restrictions? And how will proceedings, particularly the amendment process, work on the day?
Director , Hansard Society
Dr Ruth Fox
Director , Hansard Society
Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.
In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.
In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.
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On 30 December 2020 both Houses of Parliament are being recalled from recess to consider a Bill that will give legal effect in the UK to the Trade and Cooperation Agreement reached with the EU on Christmas Eve. The intention is for the EU (Future Relationship) Bill to pass through all its scrutiny stages in both Houses in just one sitting day. This will be unusually quick scrutiny of a Bill even by the standards of expedited, fast-track legislation (also known as emergency legislation). The scrutiny process will also be more complicated than usual – particularly at the amending stages – as a result of virtual/hybrid proceedings in both Houses and the retention of proxy voting in the House of Commons.
It is not unusual for legislation to be fast-tracked through both Houses. However, we think the last time a Bill went through both Houses on the same day was in 2007 (during the 2006-07 parliamentary session). House of Commons Library data, supplemented by our own research and analysis, shows that since the start of the 1979-80 session:
117 Bills have passed through all their scrutiny stages – Second Reading, Committee, Report, and Third Reading – in the House of Commons in just one sitting day (excluding Finance, Consolidation, Supply and Appropriation Acts, which are subject to their own expedited process).
14 Bills have been presented and had their First Reading in the House of Commons on the same sitting day as Second Reading and all subsequent scrutiny stages.
Since the start of the 2006-07 session (when data is more readily accessible):
the House of Commons has considered all scrutiny stages of a Bill (Second Reading to Third Reading) in a single sitting day on 37 occasions.
the House of Lords has put just 22 of these Bills through all their scrutiny stages in just one sitting day (but seven of these Bills concerned Northern Ireland in the 2017-19 session, and 3 of these 7 Bills were considered on the same day in March 2018). In the other cases, the Upper House opted for two or three sitting days for scrutiny.
on only one occasion – 27 March 2007 – have both the Commons and Lords considered all stages of a Bill on the same sitting day. The Northern Ireland (St Andrews Agreement) (No.2) Act 2007 ran to just two clauses and was debated in the Commons for three hours.
The EU (Future Relationship) Bill will be one of the most constitutionally important pieces of legislation laid before Parliament in decades, putting into law the way in which the UK implements the country’s future relationship with the EU, particularly in relation to trade. In normal circumstances, the recommended minimum time intervals between stages of a Bill in each House are as follows:
Recommended minimum time intervals between stages of a Bill in each House
|Stages||House of Commons||House of Lords|
|First Reading (Presentation) to Second Reading||2 weeks||2 weekends (whether this is for a new Bill introduced in the Lords or one brought from the Commons)|
|Second Reading to Committee||7-10 calendar days||14 days|
|Committee stage to Report||7 days||14 days “on all bills of considerable length and complexity”|
|Report to Third Reading||Taken immediately after report stage||3 sitting days|
Yet both Houses of Parliament are being asked to pass the Bill to implement the treaty with the EU in a single day, just six days after it was officially confirmed that there would be a treaty, six days after Parliament was recalled from recess to consider the Bill, four days after the treaty was published, and less than 48 hours before the treaty will be applied.
The Bill was published shortly before 2pm on 29 December, leaving MPs with barely more than 18 hours to look at the legislative text (80 pages long) and the accompanying Explanatory Notes (which run to 76 pages). At the time of writing, shortly after publication of the Bill, the Delegated Powers Memorandum has not been published. This is an important document because, given the time constraints and the nature of the process, the legislation will be a framework – or skeleton – bill, in which broad delegated powers are conferred on Ministers in the absence of policy detail. In normal circumstances, the Delegated Powers Memorandum is scrutinised in detail by the House of Lords Delegated Powers and Regulatory Reform Committee. Given the time constraints this will not be possible on this occasion but MPs and Peers will need sight of it to fully understand the delegation of powers in the Bill. The House of Commons will sit from 9.30am and the House of Lords from 12 noon. Peers will consider three Coronavirus-related Statutory Instruments for up to 90 minutes, after which they will consider the Bill once it has completed its Commons stages. Once the Commons has completed consideration of the Bill, it will turn its attention to the pandemic, with an expected ministerial statement to update Members on the Covid-19 situation and then consideration of several Coronavirus-related Statutory Instruments, reportedly to be followed by a debate on extending the recess. Each House will suspend its proceedings as necessary to await consideration of amendments from the other House. A further short suspension at the very end of the process may also be required to allow the signifying of Royal Assent by HM the Queen to be reported to both Houses.
At present, MPs can participate remotely only in ‘interrogatory’ proceedings of the House of Commons: that is, questions, urgent questions and statements. They cannot participate remotely in legislative proceedings. However, since Parliament last sat on 17 December, Westminster has moved into Tier 4 Coronavirus restrictions, the highest level, which brings with it guidance on staying at home and limiting travel, particularly on public transport and into and out of areas in other tiers. Before MPs debate the Future Relationship Bill on 30 December, the government is therefore expected to move a motion to temporarily amend Standing Orders (SOs) to extend remote participation to ‘substantive proceedings’ in the Chamber. This will enable MPs to participate in this legislative debate remotely. If the motion is agreed between the parties, it may go through quickly. Any debate on the motion to extend virtual proceedings – and any effort to amend the motion – may eat into the time available for MPs to debate the Bill. However, there are three intertwined issues that may potentially give rise to protracted discussion:
the expiry date the Leader of the House puts on the motion and therefore on continued remote participation in substantive proceedings;
any proposal to delay the return of the House after the Christmas recess from 5 January to 11 January rather than allow the House to meet in hybrid form (with a limited number of MPs in the Chamber and the rest participating remotely); and
the Leader of the House’s determination to persist with proxy voting rather than permit the restoration of the electronic voting system (as explained below, this will cause particular problems when voting on amendments during expedited scrutiny proceedings later in the day).
Before debate on the Bill begins, each House will need to decide how proceedings will be governed. Certain Standing Orders governing business on a normal sitting day will have to be dispensed with and provision made for how much time may be spent on each scrutiny stage. In the House of Commons, a Business of the House motion will likely confirm that all the proceedings will be completed at the day’s sitting, will specify that Members cannot at the start of the sitting seek leave of the House for an emergency debate (by setting aside Standing Order No.24), and that proceedings to which the Order applies shall not be interrupted under any Standing Orders relating to the sitting of the House. Standing Order No.63 (committal of bills) will also likely be set aside to enable the Bill to be committed to a Committee of the Whole House so it can be debated in the Chamber rather than in a Public Bill Committee. So too Standing Order No.82 (providing for a Business Committee to be established for a bill to allot a specified number of days or parts of days to consideration of the bill in committee or on report) will likely have to be set aside. Significant parts of Standing Order No.83 (programming of bills) may also not apply, particularly those concerning certification of bills, clauses and schedules. With just five hours’ scrutiny time available, the amount of time spent on each stage will necessarily be limited: for example, the motion might propose that proceedings on Second Reading shall be brought to a conclusion no later than three hours after commencement of proceedings on the motion, after which proceedings in Committee of the Whole House, consideration (Report stage) and Third Reading might be brought to a conclusion no later than 2:30pm. Thus, the bulk of time will be reserved for debate on the principles of the Bill at Second Reading with a couple of hours reserved for the remaining stages. Time will also be taken up by divisions; in addition to a vote at the conclusion of Second Reading, if there are amendments there may be further divisions at Committee and Report stage, and at Third Reading. The House of Lords is a self-regulating chamber in which, in contrast to the Commons, the government does not command a majority and does not control the agenda. The government therefore has to proceed on the basis of consensual agreement with the opposition parties and the crossbenchers, including on Business of the House motions. In the Lords, Standing Order No.46 will have to be suspended to facilitate expedited scrutiny of the Bill. The Standing Order states that no two stages of a Bill may be taken on the same day; no Committee of the Whole House shall proceed on the day of 2nd Reading; no report shall be received from any Committee of the Whole House the same day such Committee goes through the Bill, when any amendments are made to such Bill; and no Bill shall be read the Third time the same day that the Bill is reported from the Committee, or the order of commitment is discharged. Standing Order No.84 requires that notice of a motion to dispense with SO 46 must be given.
The amending stages of the Bill could prove to be a damp squib, with few Members seeking to pursue amendments given the lack of time to scrutinise the bill, draft any amendments and build support for them among other Members. But if a number of amendments are pursued proceedings could become quite confusing and frustrating for Members. At the time of writing it is not clear exactly how the amendment process in the context of hybrid proceedings – with some members based physically in each Chamber and some participating remotely – will be handled under such extraordinary time pressures. In the House of Commons, normally at least two days’ notice of amendments are given for a Bill. However, when two or more amendable stages take place on one sitting day, the minimum notice period cannot be observed. Notice of amendments, new clauses, and new schedules to be moved at Committee stage may therefore be accepted by the Clerks at the Table before the conclusion of Second Reading. These take the form of manuscript amendments and, due to the lack of time, may not be printed in the usual way. During normal fast-track scrutiny proceedings, the pressure of time means that some amendments may not make it onto a printed list; and it will not always be clear, even with a printed list, how many and which Members are supporting which amendments. What can often be a chaotic and confusing process at the best of times may prove even more so in the context of hybrid proceedings. The manner in which amendments can be submitted for this Bill will be complicated by the fact that only 50 MPs at a time can be in the Chamber, due to Covid-19-related social distancing arrangements, and many – if not most – MPs will be participating remotely, with speaker call lists agreed in advance. As tabling of/receipt of amendments may be permitted up to the end of Second Reading, there is also precious little time for the Deputy Speaker (the Chairman of Ways and Means), who will preside over the proceedings in Committee of the Whole House, to be advised by the Clerks on any procedural matters and then to select and group the amendments to be voted on during expedited proceedings. This amendment process will pose a difficulty in relation to the use of the proxy votes system. An MP who gives their vote to another MP to cast on their behalf has to give advance notice to the person bearing their proxy as to how they would like their vote to be cast in each division. The speed at which proceedings will move, and the lack of advance notice about which amendments, if any, are to be grouped and voted on during these proceedings, will make this difficult – if not impossible – to do, particularly as so many MPs have given their proxy vote to one of their party whips. It will simply not be possible, in the time available, for the handful of members who hold proxy votes on behalf of other MPs to confirm exactly how all those MPs would like their proxy vote to be cast in each division. The House of Lords will face similar challenges in managing the amendment process during hybrid proceedings. Public health guidance on social distancing means that the Lords Chamber can accommodate even fewer members than the Commons: just 30 Peers can be present, plus two on the Woolsack and a Deputy Speaker, at any one time. However, Peers will have a slight advantage over MPs in that they have been participating remotely in legislative proceedings for months, and are therefore likely to be more adept at it. On the other hand, self-regulation of the House is undoubtedly harder remotely than in the Chamber, not least because it is more difficult to stop a Member speaking at inappropriate length. Importantly, however, the Lords will have a distinct advantage over the Commons when it comes to divisions, for it deploys electronic rather than proxy voting. In contrast to the Commons, where the Speaker selects amendments to be debated and voted upon, in the House of Lords all amendments tabled may be called and debated. Normally, amendments to a Bill in the Lords may be tabled after Second Reading. However, when Second Reading and Committee stage are to be taken on the same day, amendments may be tabled prior to Second Reading. But under hybrid proceedings, to allow remote participation, the deadline for tabling amendments is three working days before the relevant stage, with participant lists, and amendment groupings agreed in the subsequent days before the stage. However, this timeframe is simply not possible for scrutiny of the Future Relationship Bill so an alternative approach will be needed. Speaker lists for participation in the debate on the Bill close at 4pm on 29 December, and Members must indicate whether they wish to take part physically or remotely. The numbers wishing to take part were so great that 24 hours before the deadline there was already an advisory speaking time-limit of three minutes.
Once both Houses have completed their stages on the Bill, each House in turn will consider the other House’s amendments, if there are any. These will need to be printed and distributed in the relevant House. How quickly this can be done will depend on exchanges between the Usual Channels, and the amount of time the government needs to make decisions on the amendments.
The very tight timeframe will have implications for the production of the necessary papers and the briefing of the key players. The tighter the timeframe, the greater the risk that Members in both Houses will struggle to keep up with the text of the Bill, and the greater the risk of error by Members and/or officials. These risks are exacerbated in the context of a hybrid House, with so many Members participating remotely and observing proceedings not from the Chamber but via parliamentlive.tv or BBC Parliament.
Fox, R (2020), Expediting of the European Union (Future Relationship) Bill through Parliament: five issues (Hansard Society: London)
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