The Leader of the House of Commons (Chris Grayling)
The Government wrote to the Procedure Committee on Monday 19 October 2015, in response to the publication of its report on “Government proposals for English votes for English laws Standing Orders: interim report” (First report of Session 2015-16—HC410). The Government are grateful to the Chair of that Committee for agreeing that the Government response, reproduced below, could be unusually published by written ministerial statement. This allows speedy and transparent publication of this information to Members of Parliament, and others, ahead of the debate on the issue on Thursday 22 October 2015.
The Government are grateful to the Procedure Committee for publishing its interim report in advance of the debate and decision on the proposed Standing Order changes to implement English votes for English laws on 22 October 2015. The Government are also grateful that the Committee was willing to indicate its initial findings by way of a letter of 10 September to the Leader of the House of Commons, subsequently published on its website. This letter was important in allowing the Government to reflect the Committee’s views in the updated proposals published on 15 October 2015.
The Government’s proposals deliver their commitment to introduce English votes for English laws. The Government are determined to strengthen the Union and are devolving more powers across the United Kingdom, and now is the time to give the English more say. These plans provide a fair balance by giving England, and Wales, more control over decisions which they alone are affected by, while ensuring that Westminster continues to be a place where those from across the UK govern in the best interests of those living within the Union.
The Government’s responses to the recommendations of the Committee are indicated below.
Recommendation: In the experimental phase following the introduction of any new Standing Orders, we consider that the Speaker should not give the reasons for his decisions on certification to the House. We nevertheless consider it inappropriate that the role of the Speaker should be confined in this way through Standing Orders proposed by the Government, and we recommend that the matter should be left to the Speaker’s discretion, so that he may choose to enter into the spirit of this experiment by being himself free to experiment. (Paragraph 45)
The Government are content to give the Speaker the discretion on whether or not to give reasons for his decisions on certification to the House. The Government will reflect this when it tables updated Standing Orders by omitting the phrase
“without giving the reasons for the decision”
from Standing Orders 83J(9), 83L(6), 830(10), 83P(5) and 83U(7). We note the Committee’s view, following evidence, that the Speaker should not give the reasons for his decisions on certification during the experimental phase following the introduction of any new Standing Orders.
Recommendation: We recommend that provision should be made for the Speaker to consult two senior members of the Panel of Chairs, to be appointed by the Committee of Selection, if he chooses before determining his opinion on certification, but should not be obliged to do so. This provision would, we believe, help underpin the House’s confidence in the Speaker’s decisions. (Paragraph 47)
In response to earlier discussions, the Government considered this issue and the updated Standing Orders published on 15 October 2015 contain an additional sub-paragraph relating to the certification of Bills, clauses and schedules (SO 83J (8)(a)), and similar additional paragraphs at SO 83P(4), S0 83U(6), SO 83L(8) and SO 830(13).
These new additions enable the Speaker to consult two members of the Panel of Chairs to assist him in the process of certifying Bills, clauses and schedules as relating exclusively to England or England and Wales, should he wish to do so. The two members of the Panel of Chairs should be appointed on a Session-by-Session basis by resolution of the Committee of Selection. We agree that this will help underpin the House’s confidence in the Speaker’s decisions.
Recommendation: We recommend that, in considering the interaction of the proposed new procedures with the present procedure for programming stages of Bills, the Government should allocate set periods of time for the consideration of amendments or groups of amendments, for elements of consent stage and for Third Reading. Without such protected time, there is a high risk of bringing the procedures of the House in considering legislation into further disrepute and of failing to show the electorate that we take our task of making the law seriously and are prepared to give sufficient time to do the task properly. (Paragraph 92)
The Government accept the principle of the Committee’s recommendation, that adequate time should be given for the scrutiny of legislation. The Government will consider all legislation on a case-by-case basis and note that the Committee will undertake detailed monitoring of the time spent on the various elements of the new consent stage, as part of its review following the introduction of the revised Standing Orders.
Recommendation: We recommend that the Government amend their proposals for Standing Orders to provide that Bills and instruments be sent for the Speaker’s decision on certification only after the House has debated and agreed to a motion to this effect moved by a Minister of the Crown. (Paragraph 98)
The Government have given this matter careful consideration, and note the Committee’s desire to ensure that the House’s time and resources are allocated to items which are politically important. However, the Committee also recognises that there are implications for the development and drafting of legislation, which needs to be undertaken in the anticipation that these proposals will apply to it. The requirement for a separate decision having the effect of applying the procedure to Bills and instruments could add additional time and complexity to the system, and introduce uncertainty. The consequence of these proposals on the resources of the House, in the longer term, is a matter that the Procedure Committee may wish to consider.
Recommendation: We recommend that Departments should as a matter of course instruct parliamentary counsel to draft legislation intended to apply to England or England and Wales only with the express intention of meeting the certification tests. (Paragraph 99)
The Government will be as helpful as possible to Members in identifying those provisions of a Bill which are likely to be certified. In practice, this information will be in supplementary material to a Bill such as the explanatory notes rather than in the Bill itself but parliamentary counsel will, so far as practicable, take account of the need to assist Members when drafting the Bill.
Recommendation: We recommend that the Government’s proposals be amended to provide that certified amendments, new clauses and new schedules, whether made in Committee or proposed on Report, only pass Report stage if they are unopposed or, if put to a vote, when an appropriate double majority in the House has voted in favour. (Paragraph 100)
The Committee’s proposal to introduce double majority voting as suggested aims to make the procedure simpler. However, the Government believe that the proposal would actually increase complexity and unbalance the proposals away from Members of the relevant constituencies having a specific body through which to have their voice heard.
As outlined in the report, the suggestion does not indicate how it would deal with clearing unamended certified provisions at Report. In the absence of a clause or schedule stand part debate, a Legislative Grand Committee would still be needed to clear these.
Where there has been amendment since Second Reading, a different sort of certification would be required depending upon whether the amendment had been made in Committee or on Report. If made in Committee, it is not clear what the subject of the vote would be at Report stage. It could not be on the clause/schedule as amended because there is no clause/schedule stand part debate. A separate procedure would need to be devised and separate votes at Report on clauses amended in Committee which would alter the nature of Report stage.
For amendments proposed on Report, there would be added complexity because these amendments would have to be certified before, and as they are tabled, during Report stage. A new process would have to be devised for certifying amendments because, except on Commons consideration of Lords amendments and for special cases (S083L(4)), it is Bills, and clauses and schedules that are already in Bills, that are certified and not amendments. The test for the amendments would have to be whether, if agreed, they would produce an England or England and Wales clause or schedule. This would not be easy for Members to follow during what is the most important stage of the Bill.
Finally, the proposal suggests, if there were a disagreement between the House and Members of the relevant constituencies, that there would be a full and nuanced debate on the substantive issues at the Legislative Grand Committee stage. However, this would introduce another stage to the process because, even after this, there would still have to be a process for resolving the disagreement.
Recommendation: We recommend that the Government’s proposals should be amended to make it clear that all Members can speak and intervene in Legislative Grand Committee proceedings in the Chamber at the discretion of the Chair. We note that in common with analogous proceedings in Delegated Legislation Committees, Members who are not members of a Legislative Grand Committee will not be able to move motions, propose amendments or vote. (Paragraph 103)
The Government were grateful for an indication of the Committee’s view on this issue in its letter of 10 September 2015 and was able to reflect this in the updated proposals published on 15 October 2015. New text has been proposed in paragraph SO 83W(8) in the Standing Order relating to Legislative Grand Committees. This paragraph makes clear that any MP may take part in debate at Legislative Grand Committee stage, though only members of the Legislative Grand Committee may vote, make any motion or move any amendment.
Recommendation: We recommend that the procedures be piloted on statutory instruments, and no more than three Bills, in the remainder of the 2015-16 Session. The House should be invited to agree to the Bills to be piloted under these procedures, using the process we have outlined in paragraph 98 above. (Paragraph 104)
The reality is that it seems likely that there will be a limited number of Bills to which the proposals will apply in the remainder of this Session of Parliament, and the Government and relevant Committees will be able to undertake the necessary review based on the experience of those Bills and instruments. While this is not a pilot in the exact terms of the Committee’s report, the outcome will be very similar.
Recommendation: We recommend that the new procedures should not be applied to any Bill in the 2016-17 Session until after we have reported on our evaluation. (Paragraph 105).
The Government are seeking to implement a manifesto commitment. Introducing a system in the knowledge that it will be concluded at the end of a Session and then reintroduced, possibly in amended form, halfway through the next Session of Parliament may cause confusion for Members of Parliament, Government Departments and members of the public, not least in the example of carry-over Bills, which might be part way through their amending stage at the end of the current Session.
The Government take the work of the Procedure Committee seriously, and will reflect fully on any evaluation of the proposals the Committee may choose to undertake in order to make the proposals work as effectively as possible.
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