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May 10, 2013 · These Rules have in common with statutory guidance that they emanate from the executive, and are not legislation. They go further than statutory guidance in that they are “presented to Parliament” under the primary statute, rather than simply deriving their authority from it.
Mar 11, 2014 · Statutory guidance sets out what schools and local authorities must do to comply with the law. You should follow the guidance unless you have a very good reason not to.
- Section A: Introduction to the Legislative Process and Bidding for Legislation
- Section B: Preparing the Bill for Introduction
- Section C: Essential Guidance for Bill Teams
- Section D: Commons Stages the Commons: Overview of Stages
- Section E: Lords Stages
- Section F: Further Action After Completing Commons and Lords Stages and After Royal Assent
- Section G: Other Types of Government Bill
- Section H: Private Members’ Bills
- Appendix A: Glossary
How to Use This Guide and the Role of the PBL Secretariat
The Guide to Making Legislation was prepared by the Secretariat to the Parliamentary Business and Legislation (PBL) Cabinet Committee, a part of the Cabinet Secretariat at the Cabinet Office. It was produced together with the advice of Parliamentary Counsel and the Offices of the Commons Chief Whip, Lords Chief Whip, Leader of the House of Commons, Leader of the House of Lords, the Public Bill Offices of both Houses and officials in other government departments. It covers the procedures to be followed in preparing primary legislation and taking it through Parliament, setting out what is required of bill teams at each stage of the process. It should answer the most commonly asked questions but should not be regarded as an authoritative statement of parliamentary practice. Parliamentary Counsel (who may in turn consult the House authorities), the Whips Offices or the Public Bill Offices should always be consulted on matters of procedure. The Guide is written with the needs of departmental teams in mind, to help them manage their work effectively throughout the process of preparing legislation and taking it through Parliament. It describes the main features of the normal legislative process but cannot cover every possible circumstance: every bill is different. The different stages are dealt with in chronological order. Bill teams starting out on the process of preparing legislation, particularly those new to bill work, would be well advised to read through the main sections to familiarise themselves with the tasks ahead and help plan their work effectively. However, it is also designed for officials to consult quickly during the legislative process to identify the key points and actions required at each stage. A summary of key points is provided at the start of each chapter and checklists for each stage are included in Appendix D. The main part of the Guide deals with conventional government bills and will be the sections used by most bill teams. Section G deals with certain other types of government bill: hybrid bills and consolidation bills. Section H deals with private members’ bills and will be of use to departmental parliamentary clerks and to policy officials and private secretaries advising and supporting ministers responsible for responding on behalf of the Government to private members’ bills, particularly where the Government is supporting a private member’s bill. This Guide does not cover: finance bills; consolidated fund bills; appropriation bills; codes of practice; bills relating exclusively to Scotland, Wales or Northern Ireland, although these are now increasingly rare; private bills (bills promoted by a body outside of Parliament and distinct from private members’ bills, which are public bills) where the Government is normally represented by parliamentary agents. Guidance should be sought from departmental legal advisers in the first instance, or from the Private Bill Office clerks as far as parliamentary processes are concerned; secondary legislation. Departmental parliamentary branches or legal advisers should hold copies of the Statutory Instrument Practice , which provides guidance on the parliamentary process of secondary legislation. Departmental officials should contact their departmental SI lead, PBL Secretariat for information on the Statutory Instrument Capability Programme and internal guidance including on seeking collective agreement for secondary legislation; or legislative reform orders (LROs). See the Legislative Reform Order-making Powers guidance. 1.7 While the Secretariat will always endeavour to alert current bill teams to relevant changes in procedure, please note that the electronic version is the most up-to-date version and any queries on parliamentary procedure should be addressed to Parliamentary Counsel or the Whips Offices. Role of the PBL Secretariat 1.8 The Parliamentary Business and Legislation (PBL) Secretariat is part of the Cabinet Secretariat. It provides the secretariat to the PBL Cabinet Committee, advice to the Leader of the House of Commons on clearance of legislative proposals (including amendments to bills) and advice to other ministers on the legislative programme. The full list of Cabinet committees can be found on GOV.UK. 1.9 Bill teams, secondary legislation teams or other officials working on legislation can contact the Secretariat (contact details at Appendix B) with any queries relating to their legislation or the legislative programme. The Secretariat should be notified as early as possible of all requests for clearance and prior to clearance being sought.
The Government’s Legislative Programme and the Work of the Parliamentary Business and Legislation (PBL) Committee
Key points Parliamentary time available for government legislation is extremely limited. Departmental bill and secondary legislation teams should remember that delays to their legislation cause delays across the rest of the programme. In devising a legislative programme to reflect the Government’s priorities and seeking to resolve handling issues, the PBL Committee aims to ensure that time is used as efficiently as possible. The PBL Committee and the Government’s legislative programme The Government normally introduces a wide-ranging series of bills in each session of Parliament. It also lays secondary legislation in each session, the most common of which are statutory instruments (SIs). These are typically used to enable bills (later Acts) to be enforced and operate on a daily basis. Each bill and piece of secondary legislation is part of the wider legislative programme and cannot be considered in isolation. The PBL Committee manages the Government’s legislative programme on behalf of Cabinet. It aims to ensure that the legislative programme reflects the Government’s overall priorities and that the passage of each of those bills through Parliament is as smooth as possible. The Committee’s systems for scrutinising bids for legislation and managing the programme are intended to balance the interests of departments and the interests of the Government as a whole, within the constraints of parliamentary capacity. They involve setting the Government’s priorities for what the programme should deliver, rigorous scrutiny of preparedness and progress throughout the drafting process and sanctions for failure to translate policy into drafted legislation to a satisfactory timetable, including removing legislation or postponing it to a future session. The PBL Committee usually receives around twice as many bids for legislative slots as there are slots available in each session. Many potential bills are therefore not awarded a place in the programme and ministerial agreement for secondary legislation is only given where there is a clear requirement for it. It is crucial that bills are ready for introduction at the start of the session and secondary legislation is laid in Parliament on the date requested by departments unless the committee specifically agrees otherwise. Bills and SIs that are awarded a slot but are not ready on time waste opportunities that could otherwise have been awarded to other legislation. Bills that require amendments after introduction also place additional pressure on parliamentary time and drafting resources. No more than one third of time in the Commons tends to be available for scrutiny of government legislation. Often less is available. The PBL Secretariat supports the PBL Committee in the management of the programme to ensure that this limited time is used as effectively as possible. Departments must be well prepared for each stage of their bill’s passage through Parliament and manage it effectively, keeping the number of amendments to a minimum. If amendments must be made it is important that the Secretariat and the Whips are alerted at the earliest opportunity. Timetabling of bill stages across the two Houses is a complex exercise and time lost on one bill has a knock-on impact on the programme as a whole. Poor management will reflect badly on the Government and on the departments and ministers concerned. In the case of major delays, bills could be lost from the programme altogether. Producing papers for collective agreement, preparing briefing material for ministers, MPs, peers and stakeholders and speaking notes on amendments, adhering to procedure and, above all, sharing information with parliamentary Business Managers in good time, are the keys to a successful bill. Frequent and frank communication between bill teams and their ministers, and between bill teams and PBL Secretariat, is critical. During the drafting phase, PBL Secretariat will want to meet regularly with bill teams to monitor progress in preparing the bill. Bill teams should always alert the Secretariat to any significant changes to the bill delivery plan, such as delays in delivering instructions to Parliamentary Counsel, any political changes that may impact on the bill, and any other emerging risks. This information will assist the committee in planning for the session ahead.
Summary of Stages in the Legislative Process
Key points This chapter provides a summary of the key actions and issues to be considered at each stage in the preparation and passage of primary legislation through Parliament. It precedes more detailed guidance and checklists to support each stage throughout this guide. These will usually have been preceded by the normal stages in policy development: a green paper discussion or consultation document, a white paper (major policy proposals set out in more detail) and one or more rounds of public consultation. This chapter is intended to give an at-a-glance overview of all stages, but it is not definitive. Officials involved in work on a bill should read individual chapters for guidance on procedure at each stage (and consult Parliamentary Counsel and the Whips Offices for guidance on parliamentary procedure). Before introduction Securing a slot in the legislative programme: departments must bid for a slot in the legislative programme for any bills they wish to introduce. Normally this will be through a bidding round when the Leader of the House of Commons, as chair of the PBL Committee, invites Cabinet colleagues to submit bids for bills for the following session of Parliament. Bids must be by letter to the chair of the PBL Committee and accompanied by a bid template (which will be available from the Secretariat). The PBL Committee will assess bids on their priority and state of readiness and advise Cabinet on the contents of the programme. The programme will be reviewed in preparation for the King’s speech, in the light of any emerging bids and progress in preparing those bills already provisionally in the programme. Late bids must have a very strong case, as other bills are likely to have to be removed to accommodate them. Public commitment to legislate: ministers should not make a public commitment to legislate in the forthcoming session of Parliament unless or until PBL Committee has agreed the inclusion of a bill. The Government’s announcement of its intention to legislate on a particular issue will normally be made as part of the King’s speech. Prior to this, ministers should use the standard wording that they intend to legislate “when parliamentary time allows” (and then only if the policy content has already been collectively agreed). Setting up the bill team: A well-resourced bill team is critical. A dedicated bill manager and team should be appointed as soon as the department secures a slot in the forthcoming legislative programme, and appropriately trained. The bill manager will need to produce and monitor progress against a delivery plan, coordinate all work on the bill and provide regular updates to ministers, officials involved in work on the bill, departmental lawyers, the departmental parliamentary branch and the PBL Secretariat. A senior project board should be established to monitor progress on the bill, in most cases reporting in to a strategic legislation board overseeing the department’s wider legislative programme. Collective agreement: The relevant policy Cabinet committee must agree the policy content of the bill before drafting instructions can be sent to Parliamentary Counsel and must also agree any amendments to the bill that represent a significant change in policy. Collective agreement from the PBL Committee is required at the following stages: bidding for a slot in the programme; publishing a bill or clauses in draft; announcing the intention to legislate to a specific timetable, or in a specific bill; before introduction, to approve the final text of the bill; and for any amendments to the bill after introduction. Drafting instructions to Parliamentary Counsel: Parliamentary Counsel draft bills on the basis of instructions from departments. Drafting work can begin when the bill has been allocated a slot in the programme and its policy content has collective agreement. Bill team and departmental lawyers should meet Parliamentary Counsel at an early stage to discuss a timetable for sending instructions to them, and this should also be agreed with PBL Secretariat. Parliamentary Counsel will produce draft clauses on the basis of these instructions, which the department will consider and comment on. Re-drafting will continue until a final version of the bill is agreed. Publication in draft: PBL Committee agreement is needed to the principle of publication in draft, usually as part of the annual bidding round for bills. Once drafting reaches an advanced stage, Business Managers will seek agreement through the usual channels to a plan for pre-legislative scrutiny and then make the necessary arrangements with the House authorities. When the bill is ready for publication in draft, it must be circulated to the PBL Committee for clearance, along with a covering memorandum which should include parliamentary handling, explanatory notes, impact assessment, legal issues memorandum, and delegated powers memorandum. Draft bills should be presented to Parliament and published as command papers, with the delegated powers memorandum sent to the DPRRC. Your departmental parliamentary clerk can advise on publishing command papers. Explanatory notes: Explanatory notes must be published alongside every government bill and are drafted by the bill team in consultation with departmental lawyers. They must be ready by the time the bill comes to the PBL Committee for approval for introduction and should be published at the same time as the bill. They must be approved for publication by the Clerk of Legislation in both Houses, and so the final draft needs to be ready sent to the Public Bill Office no later than two days before the text of a bill is handed in by Counsel (the ‘Notice of Presentation’) to allow time for feedback from the Public Bill Office and necessary revisions. The final explanatory notes need to be sent to the Clerk of Legislation, the Clerk of Publishing, and the Public Bill Office before introduction. Explanatory notes are updated by the department at various points during the passage of a Bill, with a final version published alongside the Act after Royal Assent. European Convention on Human Rights: Departmental legal advisers will need to prepare a legal issues memorandum for the PBL Committee before the bill is introduced, setting out, among other things, the bill’s compatibility with the European Convention on Human Rights (ECHR). The minister in charge of the bill in each House must also sign a statement as to the bill’s compatibility with the ECHR. This appears on the front page of a bill as introduced, and as reprinted for the second House. As part of this, the department should provide analysis of why the Bill is considered ECHR compliant and whether the Bill’s provisions engage Convention rights and if so, what those issues are. This is either done through the explanatory notes (if not too lengthy an analysis) or a separate human rights memorandum (often called a JCHR or ECHR memorandum). The Secretariat can provide further advice on a case by case basis. Other legal issues: The department must also consider other legal issues, and produce an internal legal issues memorandum for consideration by the Law Officers. Specific consent must be obtained from the Law Officers to any retrospective provisions or early commencement of provisions. You should contact the Data Protection Policy Team in DCMS for more advice if needed. New legislative proposals which relate to the processing of personal data should be compatible with data protection legislation. To ensure that the proposals are read as being subject to the data protection legislation, specific wording should be used to make this clear[footnote 1]. The Data Protection Policy Team in DCMS can provide further advice and support if required. Parliamentary Counsel should be able to advise on suitable wording. There are also legal requirements for government departments to consult the Information Commissioner’s Office on the development of such proposals, as set out in Article 36(4) of the UK General Data Protection Regulation (UK GDPR). Environmental provision: Departments must consider whether the bill contains environmental law under section 20 of the Environment Act 2021. If a bill contains environmental law, the Minister in charge of the bill must state that this is so, and also state either that the provision will not lower the current level of environmental protection provided for in existing environmental law or that they are unable to make a statement to such effect, but that the Government nevertheless wishes the House to proceed with the Bill. Ministers will need to sign a statement which appears on the front page of the bill. Impact assessments: Impact assessments are generally required for all UK government interventions of a regulatory nature that affect the private sector, civil society organisations and public services (full details available in the impact assessment guidance ). The final impact assessment must be circulated to the PBL Committee alongside the bill and other papers when it is considered for approval for introduction. It is published alongside the bill and the final document should be shared with the Public Bill Office together with the explanatory notes and Delegated Powers Memorandum. Impact on the devolved administrations: Departments must identify from an early stage whether or not their legislation will legislate in devolved or transferred areas of competence, or will impact the executive or legislative powers of the devolved institutions; in these circumstances, legislative consent (LCM) will be required from the devolved legislatures. Officials in the Union and Constitution Group, along with officials in the Scotland, Wales and Northern Ireland Offices should be engaged from the outset if departments believe that their legislation will engage the LCM process and will have implications for the devolved administrations. Before a bill’s introduction, the PBL Committee will also expect the devolved administrations to have been consulted on the bill’s devolved provisions, with all devolution-related issues substantively resolved (unless there are exceptional circumstances). Departments should also remember that the devolution settlements in Scotland, Wales and Northern Ireland are unique and asymmetrical, and so departmental policy and legal officials will need to consider carefully the implications the provisions within their bill will have under each of the devolution settlements. Delegated powers: Departments must consider what degree of parliamentary scrutiny is considered appropriate for any delegated powers in the bill, and produce a delegated powers memorandum for the PBL Committee, justifying the inclusion of powers and addressing any concerns that might be raised. Particular attention should be given to ‘Henry VIII’ powers (powers to amend primary legislation through secondary legislation) that the bill seeks to confer. The memorandum must be published on introduction in the first House and should be shared with the Public Bill Office together with the explanatory notes and the Impact Assessment. It should also be formally submitted to the Lords Delegated Powers and Regulatory Reform Committee (DPRRC) on the day of introduction. If the House of Commons is the first House and amendments are made in the first House, the memorandum should be updated on introduction to the second House of Lords and formally re-submitted to the Lords DPRRC. Where a bill is published in draft before introduction, a completed delegated powers memorandum should be published alongside and a copy sent to the DPRRC. If the Bill will change the regulation of digital technologies, such as adding a new regulatory burden, departments should contact the Digital Regulation Team in the Department for Digital, Culture, Media & Sport to ensure the measures are in line with collectively-agreed digital regulation principles. National Security: New policy, powers and legislation may impact the UK’s National Security capabilities, even where there is not an immediately obvious link to national security. Departments should therefore consider any read across to national security carefully and can contact colleagues in the National Security community to discuss any proposed measures. The key stakeholders in this area are the United Kingdom Intelligence Community (known as UKIC and consisting of MI5, SIS (MI6) and GCHQ), the Home Office, Foreign, Commonwealth and Development Office and Cabinet Office. The Cabinet Office can provide contact details if needed. You should adhere to departmental security advice when discussing sensitive matters. It is important to consider what can and cannot be discussed in public and parliamentary handling may seem challenging. However, there are many options that can be considered, such as briefing individuals on Privy Council terms. Departments should seek advice from the National Security community on options and advice on what information can be disclosed. The work of the intelligence Agencies and various other parts of Government’s national security machinery is overseen by the Intelligence and Security Committee (ISC) of Parliament, which has members from the House of Commons and the House of Lords. The ISC has special arrangements and facilities to handle highly classified material. Proactive briefing is often helpful and support from Committee members can be very useful. The Cabinet Office coordinates the relationship across the Agencies and departments within the ISC’s remit. Impact on Overseas Territories: Departments must identify the implications, if any, of their legislation for the Overseas Territories (Anguilla; Bermuda; the British Indian Ocean Territory; the British Antarctic Territory; the Cayman Islands; Gibraltar; the Falkland Islands; Montserrat; Pitcairn, Henderson, Ducie and Oeno Islands; South Georgia and the South Sandwich Islands; the Sovereign Base Areas of Akrotiri and Dhekelia (on the island of Cyprus); St Helena, Ascension Island and Tristan da Cunha; the Turks and Caicos Islands; and the Virgin Islands (commonly known as the British Virgin Islands). It is for departments to ensure they consult the Overseas Territories on proposals with implications for them. Application to the Crown: Departments should decide early on whether the obligations or restraints that the proposed legislation will impose are to apply to the Crown, to servants or agent of the Crown or in relation to Crown property. The policy as regards Crown application will be something that will need to be considered carefully with departmental lawyers and the decisions taken will need to be set out in the instructions to Parliamentary Counsel. King’s and Prince of Wales’ consent: Departments should identify at an early stage whether King’s or Prince of Wales’ consent are required. Advice should be sought from Parliamentary Counsel as these may be required in some unexpected cases and the agreement of the House authorities will be required. The department must then seek these consents, which are signified at Third Reading. If there is any doubt as to whether these consents are required or when they should be signified, Parliamentary Counsel will consult the two Public Bill Offices. Tax and public expenditure implications: The agreement of the relevant HM Treasury minister must be obtained to any tax proposal, or to tax implications of new activities or bodies proposed. HM Treasury agreement must also be obtained to the bill’s public expenditure and public service manpower implications. Bilateral agreement with HM Treasury should have been reached before the policy comes for collective agreement. Departments must also ensure they observe the guidance on expenditure propriety in the Managing Public Money guidance. Departments cannot normally incur expenditure in advance of both Royal Assent of the enabling legislation and any necessary parliamentary authority through the Appropriation Act. Application in relation to Parliament: Departments must identify the implications, if any, of their legislation for Parliament and the Parliamentary estate. The areas of law where issues of this kind might arise include employment, health and safety, enforcement regimes, rights of entry, licensing, advertising, contracting, planning and public order aspects of criminal law. If there are implications, Departments are expected to give the House Authorities an opportunity to comment on the proposals at an early stage. Handling strategies: bill teams will need to prepare a parliamentary handling strategy and a wider stakeholder/media handling strategy in consultation with the Government Whips’ Offices in the Commons and Lords and with the departmental press office respectively (see Appendix B for contact details for the Commons/Lords Whips’ Offices). PBL Committee approval for introduction: When a bill is ready for publication or introduction it must be circulated to the PBL Committee, accompanied by a covering memorandum and the supporting documents mentioned above, including: explanatory notes, impact assessment, legal issues memorandum, parliamentary handling strategy and delegated powers memorandum. The Committee will usually meet to agree to a bill’s introduction. Summary of parliamentary stages The bill will start in either the Commons or the Lords. The House and date of introduction will be agreed by the PBL Committee on advice from the Business Managers. Bills starting in the Lords must complete the same stages. There are five key stages in each House (summarised below). Summary of a bill’s stages: First Reading – formal presentation of the bill (no debate) Second Reading – debate on general principles of the bill Committee Stage – detailed line-by-line examination of the bill, consideration of amendments, oral evidence heard and written evidence published (if necessary) Report Stage – Further opportunity to consider amendments made in Committee and to amend the bill Third Reading – Final consideration of the bill Detail of each stage: Introduction into the Commons and First Reading: the Clerk at the Table will read out the short title of the bill, a minister nods, after which the bill is deemed to have been read the first time. There is no debate. Introduction is supported by the provision and publication of various documents: The final text of the bill is supplied by Parliamentary Counsel to the Public Bill Office the day before introduction and ahead of publication. The department is responsible for supplying the final text of the explanatory notes to the Public Bill Office the day before introduction (having cleared the draft version with them in advance). The department should also ensure that the minister who will be in charge of the bill has signed the ECHR statement and that confirmation that this has been signed has been sent to Parliamentary Counsel. If a separate ECHR memorandum has been prepared (setting out the ECHR impacts separately to the explanatory notes) this should be published on GOV.UK but also shared with the Public Bill Office alongside the explanatory notes. The department is also responsible for the publication of an impact assessment, which should also be shared with the Commons’ Public Bill Office, and for ensuring the appropriate availability of relevant older papers and revised editions of Acts. The department must also formally submit their delegated powers memorandum to the Delegated Powers and Regulatory Reform Committee, and to the Public Bill Office to be published. Supporting papers must be delivered to the Vote Office (who will be able to advise on how many copies are required); it is not sufficient to refer members to a website. Commons Second Reading: There is a convention that the debate will not usually take place until two weekends have passed following the publication of the bill. Speaking notes and briefing need to be prepared for both the minister opening (usually the relevant Secretary of State) and the minister (usually the lead bill minister) winding up the debate. Programme motions are normally taken immediately after Second Reading without debate, followed by money resolutions, ways and means resolutions and, if necessary, carry-over motions. Their preparation is a matter for Parliamentary Counsel. Commons Committee Stage: This is the principal stage for detailed scrutiny and amendment of the bill and can usually begin the week after Second Reading. Scrutiny normally takes place in a public bill committee (formerly known as a ‘standing committee’), which in most cases will take evidence from experts and interest groups, including from the minister and officials before beginning clause-by-clause scrutiny of the bill according to the programme resolution. For bills that have been subject to pre-legislative scrutiny, the committee may decide that oral evidence sessions will not be held. Oral evidence is not heard for bills that started in the Lords. The Committee Stage can also take place in ‘Committee of the whole House’, which is usually for bills of a financial or constitutional nature or for ‘emergency’ legislation that is being taken forward under the fast-track procedure. The Government, the opposition or backbenchers can table amendments. Clearance to table government amendments must be obtained from the PBL Committee and from the relevant policy Cabinet committee if the amendments represent a change in policy. For both a public bill committee and a committee of the whole House, briefing and speaking notes must be produced for ministers on each clause (clause stand part) and on any amendments tabled. Commons Report Stage: A further chance to consider amendments to the bill, this happens on the floor of the House and can take place anytime from a week after Committee Stage (or sometimes even earlier). Debate is confined to amendments selected for debate, rather than a clause-by-clause examination of the bill. This is usually the final amending stage in the Commons. Commons Third Reading: Normally takes place immediately after Report Stage. It is a further chance for the House to consider whether it wishes the bill as a whole to proceed, in the light of amendments at Committee and Report Stages. No amendments (other than ‘purely verbal’ amendments, which are extremely rare) are permitted at Third Reading. Transmission to the Lords and First Reading (or introduction in the Lords, for those bills starting life in the Lords): When a bill is passed by the Commons, it is taken to the Lords by a Commons Clerk. The First Reading is moved immediately without debate and the bill is printed. If the bill comes from the Commons, the explanatory notes and impact assessment should be revised to take into account changes in the first House and a further ECHR statement must be signed by the minister who is in charge of the bill in the second House. The explanatory notes should be sent to the Lords Public Bill Office for publication (having first cleared the draft with them) and the impact assessment should be published on GOV.UK and also shared with the Commons Public Bill Office to be uploaded on the bill’s page on the Parliament website. The minister must also formally submit the delegated powers memorandum to the Lords’ Delegated Powers and Regulatory Reform Committee, having updated it to reflect any changes made to the bill in the Commons and this should be shared with the Public Bill Office for publication. Where a bill starts its passage in the Lords, the bill minister reads out the long title of the bill at First Reading. Lords Second Reading: This can take place once two weekends have elapsed since introduction. The procedure is similar to in the Commons, with some minor differences including that the House of Lords does not vote on Second Reading. There is also no programme motion in the Lords. Lords Committee Stage: Either takes place on the floor of the House (‘committee of the whole House’), or in a committee room (‘grand committee’) and can begin once 14 calendar days have elapsed since Second Reading. The requirement for producing speaking notes and background for ministers on clauses and amendments is the same as in the Commons. As in the Commons, PBL Committee clearance must be sought to table government amendments to the bill, and policy clearance is also necessary if the amendments would effect a change in government policy. Note: A supplementary delegated powers memorandum should be submitted to the Delegated Powers and Regulatory Reform Committee in relation to any government amendments which include provision relating to delegated powers. The amendments and the supplementary memorandum should be made available to the committee in sufficient time in advance of the day on which they are to be considered by the House to enable the committee to report on them. This also applies to government amendments tabled at Lords’ Report Stage and Third Reading and for those considered at Lords’ consideration of Commons amendments. Lords Report Stage: For all bills of considerable length and complexity, Lords Report Stage takes place at least 14 calendar days after Committee Stage. Debate is limited to amendments before the House, so there is no need to debate each clause. Lords Third Reading: At least three clear sitting days after Report Stage. The scope for amendments is limited at this stage, unlike in the House of Commons, amendments at Third Reading in the House of Lords can only be made if the issue has not been fully considered and voted on during either Committee or Report Stage. It is often used to ‘tidy up’ a bill such as clarifying specific parts of the bill. ‘Ping-pong’: If the bill has been amended in the second House, it goes back to the House of introduction for consideration of the amendments in question (‘Commons consideration of Lords’ amendments’ or ‘Lords consideration of Commons’ amendments’). The first House can accept, reject, amend or suggest an alternative to the amendments (amendment in lieu), which the second House will then consider. The matter goes back and forward between the two Houses (‘ping pong’) until agreement has been reached, or until there is ‘double insistence’[footnote 2] and the bill falls. A final set of explanatory notes are required when a bill returns to the first House with amendments from the which explains the amendments made by the second House. These explanatory notes are to be published by the first House and a draft is to be checked by that House’s Public Bill Office in advance of publication (the same with other explanatory notes). A supplementary delegated powers memorandum addressing any amendments which include provision relating to delegated powers made during Commons’ consideration of Lords’ amendments should be submitted to the Delegated Powers and Regulatory Reform Committee in advance of Lords’ consideration of Commons’ amendments. On completion of parliamentary stages Royal Assent: Takes place throughout the session by notification from the Speaker of each House or at prorogation. Requests for particular dates should be made through the Government Whips’ Office in the Lords before the bill is introduced. Bill teams must make known to PBL Committee any requirements for Royal Assent by a particular date and the reasons for this requirement. Commencement: Commencement dates should be specified in the Act where possible and appropriate. No substantive provision of an Act should be brought into operation earlier than two months after Royal Assent, although some sections of the Act can be brought into force on Royal Assent, typically sections setting out how the Act is to be cited and what the procedure is for making regulations or commencing the Act. In exceptional circumstances, approval for early commencement should be sought from the Law Officers and the chair of the PBL Committee. Retrospective provisions also need to be agreed by the Law Officers (contact details for the Attorney General’s Office and the Legal Secretariat to the Advocate General for Scotland can be found at Appendix B). Printing: Departments should let Parliamentary Counsel and the Legislation Services Team in the National Archives know if an Act is expected to come into operation immediately. This is so that arrangements can be made for early clearance of the approved text, expedited printing and immediate publication of the Act on the www.legislation.gov.uk website. Guidance and publicity: Where new legislation affects business or civil society, guidance should be published as early as possible before the act comes into effect and the changes in the law should be publicised. Departments should not leave preparation of guidance to the last minute. Departments should consider which other groups should be informed of the new legislation and how this can be achieved most effectively.
Drafting the Bill
Key Points Government bills are drafted by the Office of the Parliamentary Counsel (OPC) on the basis of instructions provided by the department. It is essential to the overall success of a bill project that the department provides OPC with good quality instructions and that it does so in good time. OPC have produced this and the following chapter to help departmental officials with this task and with other aspects of the bill drafting process. This chapter includes: Information about the essential components of good law; background information about OPC; information about the role of the drafter of the bill in relation to policy making; advice about when the department should first involve OPC in the bill project; advice about when the department should send instructions to OPC; advice about how to go about preparing the instructions; information about what the drafter will do with the instructions; advice about commenting on draft provisions and responding to questions from the drafter; advice about how much time to allow for preparing the instructions and drafting the bill; and advice about involving the minister in the drafting process. The next chapter contains detailed advice about the form, structure and content of instructions to OPC. Good law Everyone working on a bill should keep in mind the essential components of good law. Good law is law which is necessary, clear, coherent, effective and accessible. Background information about OPC OPC is part of the Cabinet Office. It has around 50 legally qualified drafters who are responsible for drafting all government bills, including those that are to be published in draft for public consultation or pre-legislative scrutiny. In addition to drafting the Government’s bills, OPC is responsible for a range of other matters relating to the bill process that are mentioned elsewhere in this Guide. For example, the drafter of a bill will be responsible for providing the department concerned with advice about certain matters of Parliamentary procedure and will act as the channel of communication between the department and officials in Parliament. Drafters tend not to specialise in particular areas of law. So those from within the department who are instructing OPC (often, but not always, the departmental lawyers) are responsible for providing the drafter of the bill with advice about the operation of the existing law, in so far as it is relevant to the department’s proposals. The principal way in which this advice is provided will be in the instructions. Drafters in OPC are organised into four teams, each of which is allocated the responsibility of drafting bills for particular departments. Each team is headed by a Team Leader. The role of the drafter in relation to policy making Whilst working on a bill the department will sometimes have questions about the role the drafter of the bill will play in policy-making. It is of course the department, rather than the drafter, that is responsible for deciding the policy. This responsibility rests with the department because its officials have the evidence on which policy decisions can be based. Also, officials in the department will know their minister’s priorities and will be best placed to judge how alternative policy options will be viewed by MPs, peers, other government departments, the devolved administrations, interest groups and the public. The drafter will often be able to make a valuable contribution to policy-making whilst respecting the fact that final decisions must be made by the department. The principal contribution the drafter will make will be to test the department’s policy proposals, as set out in the instructions. The drafter’s experience in analysing legislative proposals means that they will sometimes be able to spot potential difficulties that may not have been obvious to the department. In exercising this challenge function the drafter may identify inconsistencies or flaws in what the department proposes. The drafter may spot factual permutations that the proposals do not cater for or may see avoidance possibilities that the department has not considered. From time to time the department may find itself struggling to devise a policy that will meet its objectives or it may be having difficulty deciding between a range of different policy options. In these circumstances the drafter will be happy to discuss the various issues with the department and may sometimes be able to suggest a way forward. When should the department first involve OPC in the bill project? The basic rule is that the department should not normally send instructions to OPC until the PBL Committee and the relevant policy committee of Cabinet have taken certain decisions. Nonetheless, the department should not wait for these decisions to be taken before getting in touch with OPC. Indeed, as soon as the department decides to pursue a bill it should start to engage with OPC and set up an initial resources meeting. If departments do not know who to contact in the first instance to set up this meeting, advice can be obtained by contacting John Healy at OPC (john.healy@cabinetoffice.gov.uk / 0207 276 6572). The resources meeting should be attended by the bill team manager, a departmental lawyer, the policy leads and a member of OPC (either the Team Leader or, if already allocated, the drafter). The meeting will be an opportunity for the following matters to be discussed: how best to use the legal resources available (both within the department and from OPC), avoiding duplication and increasing efficiency; OPC can discuss with the relevant policy officials and departmental lawyers who is best placed to provide instructions to Parliamentary Counsel. This will often be the departmental lawyer, but for some bills or some subject areas within bills (for example where Parliamentary Counsel has a wide knowledge of the subject area), it may be more efficient for instructions to come directly from policy officials; the drafter can discuss with the person instructing OPC the appropriate level of detail for the instructions; OPC can gauge the size and complexity of the proposed bill and the resources needed to draft it; OPC can provide initial advice about how long it may take to draft the bill. This will help the department prepare a project plan; and the department can discuss with OPC any concerns it has about its proposals, and the drafter or Team Leader will be able to say if they foresee any difficulties with the proposals and may be able to suggest alternatives. Of course, the use of legal resources should be kept under review for the duration of the bill project and there should be flexibility about the decisions taken at the initial resources meeting if it transpires that there is a more efficient way of doing things. It will often be appropriate for there to be further discussions about the allocation of legal resources (either informally or at a further resources meeting) as the project progresses. When should instructions be sent to OPC? The basic rule is that instructions should not normally be sent to OPC until: the PBL Committee has decided to allocate the bill a slot in the Government’s legislative programme or has decided to give authority for the bill to be drafted in advance of a slot being allocated; and the relevant policy committee of Cabinet has decided to give collective agreement to the policy. Of course, the department will usually need to start preparing its instructions well in advance of these decisions being taken - this is because these decisions will often not be taken until a few months before the bill has to be ready to be introduced to Parliament. For further information about securing a slot in the legislative programme and receiving collective agreement from the relevant policy committee, see Chapters 5 and 7 of this Guide. Once the PBL Committee has allocated the bill a slot in the legislative programme (or has given drafting authority), its secretariat will arrange a meeting with the bill team, the lead legal adviser, the drafter and the secretariat of the relevant policy committee. At this meeting the PBL Secretariat will expect to see that good progress has been made with the preparation of the instructions and will agree with the department and the drafter deadlines for sending the instructions to the drafter. The PBL Secretariat will arrange further meetings to monitor progress. How to go about preparing the instructions There are no hard and fast rules as to how the department should go about preparing its instructions to OPC. The first step will always be for the policy to be worked out in detail. If instructions are being provided by the departmental lawyer, policy officials will have to explain the policy to the lawyer. This might be done over the phone, in meetings, by email or in a set of formal policy instructions. The method chosen will depend on the complexity and scale of the proposals and the time that is available. If instructions are being provided to Parliamentary Counsel directly by policy officials, the same process of working out the policy in sufficient detail for Parliamentary Counsel to start drafting will be needed. The key thing is that policy officials explain in detail precisely what objective they wish to achieve and how they propose to achieve it. Policy officials who have worked on bills in the past have reported that when working on a bill it is necessary to develop the policy in much greater detail than when pursuing a policy by other means. It is essential that before instructing Parliamentary Counsel the person instructing has considered how to deal with any gaps, inconsistencies, flaws or ambiguities in the policy. The lawyer or policy official will then prepare the instructions to OPC. The main purpose of the instructions will be to explain the policy, set out the existing state of the law and explain what changes to the law are needed to give effect to the policy. The next chapter contains detailed advice about the form, structure and content of the instructions. Anyone instructing Parliamentary Counsel will need to familiarise themselves with this before starting work on a bill. But even where it has been decided that instructions will be drafted by the departmental lawyer, policy officials will also find the next chapter of use because it will help them to anticipate the sorts of information that their lawyer will need. The bill team will be responsible for co-ordinating the work being done by policy officials and lawyers to ensure that the instructions are ready to be sent to OPC on or before the deadline agreed with the PBL Secretariat. Involving other departments with an interest Often the department with overall responsibility for a bill will not be the only department with an interest in the policy. Where this is the case the lead department should give the other department(s) with an interest an opportunity to comment on the policy before the instructions are finalised. Remember that the Scotland Office, the Office of the Advocate General for Scotland, the Northern Ireland Office and the Wales Office will have an interest from the UK perspective in proposed changes to the law affecting Scotland, Northern Ireland and Wales respectively. So, where appropriate, it will be necessary to ensure that those Offices are content with the department’s policy before the instructions are finalised. Involving the devolved administrations If the department’s proposals will give rise to the need for a legislative consent motion it will be necessary for the department to ensure that the devolved administration(s) concerned are content with the department’s proposals. See Chapter 14 and Appendix F for for further information on working with the devolved administrations and legislatures. So far as possible, disagreements with the devolved administrations should be identified and resolved before the instructions are sent to the drafter. Who in OPC should drafting instructions be sent to? Initially the drafting instructions should be sent to the appropriate Team Leader within OPC. The department will be informed as soon as the Team Leader has allocated the bill to one or more drafters within the team. Thereafter all future instructions and correspondence can be addressed to those drafters. Sending drafting instructions to OPC in instalments Ideally, all the instructions for a bill should be sent to OPC at the same time. Bills tend to be required against deadlines that are shorter than ideal and, in those circumstances, it is unhelpful to hold back instructions in order to be able to send everything together. In deciding whether it is appropriate to send instructions in instalments the department may find it helpful to talk to the appropriate Team Leader or the drafter of the bill. Factors to bear in mind will include: whether each instalment can be properly understood by the drafter without the instructions that are still to come; whether there is a risk that provisions drafted in response to one instalment might need to be reworked in the light of subsequent instalments and, if so, whether that risk is outweighed by the need to give the drafter an opportunity to make progress; and whether the drafter’s other priorities would enable work to start on the instalment if it was sent in advance of the other instructions. Where instructions are sent in instalments it is helpful if the department can provide a brief overview of the number of instalments that are likely and what each instalment will be about. This will give the drafter an idea of how any particular instalment will fit into the bill as a whole. Sending drafting instructions to OPC prior to policy sign-off etc. The department should aim to ensure that the policy has been signed off by all those with an interest before the instructions or an instalment of the instructions are sent to OPC. Similarly, the department should aim to ensure that the policy has been comprehensively developed before the instructions are sent. But where deadlines are particularly tight the department may need to think about sending instructions to the drafter even though the policy has not been finally signed off or even though there are gaps in the policy. If in doubt about whether it is appropriate to send instructions before the policy has been finally signed off, or before the policy has been comprehensively developed, the department should seek advice from the appropriate Team Leader or the drafters allocated to the bill. Where instructions are sent before the policy has been finally signed off etc. the instructions should make it clear that this is the case. Changes to the policy after the instructions are sent If the department changes its policy after sending instructions to OPC it is essential that the drafter is informed as soon as possible to avoid wasted work. The department will also need to discuss with the drafter the most appropriate way of providing instructions on the revised policy. An initial meeting with the drafters 8.42 Before or shortly after the instructions, or the first instalment of them, have been sent to OPC it may be helpful for a meeting to be held between the drafters, the departmental legal advisers, the policy leads and the bill team manager. At this meeting it may be useful to discuss: whether the decisions taken at the initial resources meeting continue to be appropriate; what the drafter and the departmental team are expecting of each other; the political background to the bill; the timetable for sending the remaining instructions and drafting the bill (and how any risks to the timetable can be managed); proposed methods of working (for example, whether instructions should be sent in instalments, in what order the drafter will deal with the instructions, the level of detail required in the instructions, the use of meetings etc.); and which particular officials in the department will deal with the drafter in relation to particular matters. In many cases, departmental lawyers will be instructing Parliamentary Counsel, but in some, this will be done by policy officials. But even when departmental lawyers are instructing, it may be appropriate for policy officials or other members of the bill team to deal with the drafter on other matters. The drafter and the department should agree whatever will work best for them. What will the drafter do with the instructions? Usually two drafters will be assigned to look at each set of instructions sent by the department. One will draft and the other will check and comment. As the drafters study the instructions they may well have initial questions which need to be answered before progress with the drafting can be made. In order to avoid unnecessary delays, it is important that someone from within the department with a firm grasp on the policy is on hand to answer these questions. The drafter will then produce draft provisions in response to the instructions. The department should feel free to discuss with the drafter when it can expect this first draft. Except in the most straightforward of cases, the first draft will be accompanied by a letter which will do two things. Firstly, it will explain the drafting where the drafter thinks this may speed the department’s understanding of how the provisions have been constructed. Secondly, it will set out any questions the drafter has about the policy, the existing state of the law and related matters. Commenting on draft provisions and replying to the accompanying letter Often there will be a range of officials, both in the instructing department and in other departments, who need to be given an opportunity to comment on the draft provisions and provide answers to the drafter’s questions. The department needs to ensure that all the responses are co-ordinated. Although it is important that the drafter’s questions are answered, the department’s primary focus should be on the draft provisions. It is essential that the department studies the draft carefully to check it does precisely what they want. If the department has any doubts about whether the draft achieves the policy these doubts should be raised in the response to the drafter. In responding to the drafter the department need not confine itself to commenting on whether the draft provisions achieve its policy. The drafter will be very keen to hear any comments the department may have on the readability and clarity of the draft provisions. If the department thinks there is a way in which the draft provisions could be made clearer they should not feel any hesitation in saying so. If the department has any presentational concerns about the draft provisions the reasons for the concerns should be explained to the drafter. The department should avoid asking questions about the effect of a draft provision without also making clear what effect is actually sought. If the department merely asks about the effect of a draft provision the drafter will be uncertain about whether an alteration is needed. So, for example, instead of asking “does the clause make it a criminal offence to do XYZ” the department should say “we would like it to be a criminal offence to do XYZ; is that the effect of the clause as drafted?”. Once the department has provided a response to the first draft and the accompanying letter the drafter will start work on a further draft. A number of rounds may be needed before the draft is settled. Sharing draft clauses with drafters in Scotland and Northern Ireland Where a draft provision will extend to Scotland the drafter will wish to share the provision with the Parliamentary Counsel to the Office of the Advocate General for Scotland so that that team of drafters can advise as to whether the provision will operate properly in Scotland. Similarly, where a draft provision will extend to Northern Ireland the drafter will wish to share the provision with the Office of the Legislative Counsel in Northern Ireland. It is relevant here to note that drafters who are part of the Parliamentary Counsel to the Office of the Advocate General for Scotland are responsible in that capacity to the UK government rather than to the Scottish Government (although they also advice the Scottish Government when not acting in that capacity). By contrast, the Office of the Legislative Counsel works exclusively for the Northern Ireland Executive. Before the first occasion on which the drafter shares provisions with drafters in Scotland or Northern Ireland they will confirm with the department that it is content for this to happen. How much time should be set aside in the project plan for preparing instructions and drafting the bill? It is essential to the success of a bill project that the department does not underestimate the time needed for preparing instructions and drafting the bill. If insufficient time is allowed for this in the department’s project plan the following difficulties may arise: the bill may not be ready in time for introduction to Parliament meaning that it has to be abandoned by the Government; the bill may be introduced to Parliament with errors or omissions that need to be dealt with during the passage of the bill. This will reflect badly on ministers and on the department and will result in parliamentary time being spent unnecessarily on government amendments; or the bill may contain errors or omissions which are not spotted until after its enactment with the result that the Government’s policy is not delivered. In deciding how much time to set aside in the project plan for preparing instructions and drafting the bill the following things in particular should be remembered: First, experience shows that when working on a bill it is necessary for the policy to be developed in much greater detail than when pursuing a policy that does not require legislation. Even once the policy has been developed to the satisfaction of policy officials in the department it is likely that it will need to be revised (sometimes substantially) to reflect the advice of departmental lawyers and the views of other departments with an interest. All of this will take time. Secondly, it may not be possible for drafting to begin as soon as the department sends instructions to OPC. The Team Leader or the drafter concerned will be able to indicate whether this will be the case. Thirdly, the process of turning the department’s instructions into workable draft clauses is often a lengthy and complex one. It will usually take the drafter some time to become familiar with the instructions and the existing law before draft clauses can be produced and it will frequently be necessary for there to be numerous rounds of correspondence between the drafter and the department in order for the first draft to be refined into something everyone is happy with. Fourthly, in the course of drafting the drafter will often raise unforeseen policy and legal questions which require an answer before progress can be made. Sometimes answering these questions requires the department to consult their minister, other departments and stakeholders. Time needs to be factored in for this. As mentioned above, the time that should be set aside in the project plan for drafting the bill is something the department is encouraged to discuss at an early stage with the appropriate Team Leader in OPC. Monitoring drafting progress The bill team will need to monitor progress with the drafting. One way to do this is to keep a progress chart which records the stage reached in relation to each topic (e.g. instructions sent to OPC; first draft provided; reply to first draft sent etc). The drafter will find it helpful to be given a copy of the progress chart so that they can see where things stand. Ministerial involvement in the drafting process The bill team should ascertain early on exactly what involvement the minister wishes to take in the drafting process. For example, they should ascertain how often the minister wishes to be updated on the progress that is being made with drafting and how often the minister wishes to see the latest draft of the bill. The minister may, for presentational reasons, have strong views about the short title and the structure of the bill. If this is the case the minister’s views should be passed on to the drafter. The minister in charge of the bill is always welcome to ask the drafter to meet to discuss the bill. Equally, the drafter may occasionally request a meeting with the minister. Major issues which arise on the bill must be referred to the minister and the minister must be informed at once if the bill is not going to be ready in time for it to be introduced to Parliament on the date agreed.
Drafting the Bill: Structure and Content of Instructions to Opc
Key points This chapter has been produced by the Office of the Parliamentary Counsel (OPC) to help with the task of writing instructions for OPC to draft a bill. It needs to be read in conjunction with the preceding chapter, which gives an overview of the bill preparation process. This Chapter should also be read in conjunction with Common Legislative Solutions: a guide to tackling recurring policy issues in legislation . This guide identifies issues that may need to be addressed when working up and instructing on the proposed solution to certain commonly occurring policy issues. The task of writing instructions to OPC is not an easy one. The quality of the instructions will have a direct effect on the quality of the bill and the time it takes to prepare. Any person preparing instructions for OPC is therefore encouraged to look at this chapter on each occasion they are asked to work on a bill. Policy officials who are not directly instructing OPC may also find this chapter of use. It will help them anticipate the sorts of information the person instructing OPC will need to be able to complete their instructions to OPC. General observations and guidance Some general observations and guidance can be offered at the outset. First, it helps when it comes to writing instructions to OPC to stand back and try to imagine what it will be like for the drafter starting on the subject from scratch. A person who has been immersed in a subject for some time often needs to take pains to get it across to someone just coming to it. Secondly, the departmental lawyer should structure the instructions and decide their contents on the basis of what seems likely to be most useful to the drafter. The guidance in this chapter should help in deciding what will be most useful but the departmental lawyer should feel free to depart from the guidance if there appears to be a better way of dealing with things. The departmental lawyer should also feel free to discuss how best to structure the instructions with the appropriate Team Leader or drafter in OPC. Thirdly, the departmental lawyer should try to ensure that the policy is fully thought through and analysed before the instructions to OPC are finalised. Nonetheless, OPC do appreciate that the conditions for preparing instructions are seldom ideal and that it is not unusual for compromises to have to be made to cope with the pressures of the timetable or a delay in decision making. Where this is the case it will help to discuss these difficulties with the drafter and agree the best way to deal with them. Fourthly, when writing instructions it is important to think of the drafter as a part of the bill team. This means that the instructions should be candid about any known difficulties with what is being proposed. For example, it may be that there is a gap in the policy or a logical wrinkle in the department’s thinking that has not been ironed out. By airing these sorts of difficulties in the instructions you will save the drafter the trouble of discovering them. It may be that the drafter is able to offer a solution or a way forward that has not previously been considered by the department. Finally, when writing instructions it is important to keep in mind the general rule that a bill should only contain legislative propositions. These are propositions that change the law: they bring about a legal state of affairs that would not exist apart from the bill. It can sometimes be tempting to ask the drafter to prepare a provision that is not intended to change the law but is instead designed to serve some political purpose or to explain or emphasise an existing law. However, non-legislative provisions of this sort are likely to go wrong because the courts will be inclined to attribute legal effect to them on the grounds that Parliament does not legislate unnecessarily and the legal effect attributed may be one the Government could not have predicted. Instead of asking for non-legislative provisions to be included in the bill, consider whether the point the department wishes to make can be made in another way, such as in a ministerial statement to Parliament, in the explanatory notes to the bill or in guidance. Form of the instructions OPC is sometimes asked how to format the instructions. Here is some guidance about what most drafters find helpful: it is helpful if both the pages and paragraphs of the instructions are numbered or lettered as these are easier to refer to than unnumbered or bulleted paragraphs; if the instructions are lengthy, headings and a table of contents are helpful; instructions are easier to read if they are typed in 1.5 or double spacing, in a legible 12-point font and with margins wide enough to allow the noting of comments and questions; and if it is necessary to provide the drafter with supplementary documents, it is preferable for the documents to be attached to the email sending the instructions rather than for a link to the document on the Department’s server to be embedded in the instructions. Structure and content of the instructions As has already been said, instructions should be structured in whatever way the author thinks will be most useful to the drafter. Nevertheless, a good way to structure the instructions will often be to divide them into five parts, as follows: introduction; existing law; detailed proposals; supplemental and incidental matters; and parliamentary and other handling matters. 9.9 The remainder of this chapter describes what each of these parts should deal with. Part 1: Introduction The main purpose of this part of the instructions is to provide the drafter with a brief summary of the policy that the department wishes to pursue. The summary need not be detailed. The aim is simply to provide the drafter with an indication of where the instructions are headed. For example, the summary of the policy may say something like this: “The Government wishes to regulate the activities of people who sell fireworks. For this purpose, the Government wishes to prevent anyone selling fireworks without a licence issued by the Secretary of State. The bill will need to make provision about the making of applications for licences and the criteria that must be satisfied for an application to be successful. The Government want the Secretary of State to be able to impose conditions on licence-holders and to be able to inspect the activities of licence-holders. The Government want it to be possible for people to appeal to the First-tier tribunal against certain decisions made by the Secretary of State in connection with the licensing regime.” In addition, this part of the instructions should briefly set out the factual and political background to the proposal to legislate. So to continue the example above, the instructions might briefly mention the recent problems that have arisen in connection with the sale of fireworks. The instructions might mention the results of any consultation carried out into the establishment of the proposed licensing regime and any ministerial commitments to establish it. If the proposal to legislate is a response to recent case law this fact should be mentioned. If the instructions are likely to give rise to particularly difficult devolution or ECHR issues a warning about this should appear in the introductory part of the instructions (although a detailed explanation of these issues should be left until later on). This part of the instructions should mention if there is any particular reason to think the department’s proposals may change. For example, it should mention if any of the proposals have not yet been approved by the minister, do not yet have collective agreement or are the subject of an on-going consultation. This part of the instructions can be used to set out any other information that the author thinks it is helpful for the drafter to know from the outset. For instance, it may be helpful to mention any acronyms or abbreviations used in the instructions. It might be a good idea to provide a web link to any consultation documents or other relevant publications. Part 2: Existing law This part of the instructions should identify and explain the existing law which is relevant to the department’s proposals. Drafters in OPC tend not to specialise in particular areas of law. So the drafter may need to rely on this part of the instructions to get to grips with the legal landscape in which they are being asked to operate. Even if the drafter happens to have some experience of the area of law concerned, a statement of the law by someone who is familiar with it can be very valuable. The author of the instructions will, of course, need to exercise judgment in deciding which existing laws should be covered and how much detail to go into. What is appropriate in any given case will depend upon the nature of the department’s proposals and what it is that the drafter is going to be asked to do. For example, if the nature of the department’s proposals mean that the drafter is going to be asked to prepare a wide range of amendments to an existing statutory regime it will be necessary to provide a thorough explanation of the regime which focuses, in particular, on the aspects of it that will need amending. By contrast, if the nature of the department’s proposals will involve repealing an existing statutory regime altogether it may be that all the drafter needs to be given is an indication of where the existing regime can be found and a brief explanation of what the regime is concerned with. The author of the instructions should seek to explain the existing law rather than simply copy out or paraphrase every statutory provision that is thought to be relevant. What the drafter will find helpful is something that, in particular, does the following sorts of things: identifies the salient features of the existing law and facilitates a rapid understanding of its structure and effect; identifies subtleties or nuances in the existing law which might easily be missed; draws attention to any conflicting decisions or opinions affecting the interpretation of the existing law; and highlights features of the existing law which are of particular importance in the context of the department’s proposals. It is often helpful for the explanation of the existing law to say something about its practical operation. This is particularly important if, as is sometimes the case, the existing law is in practice operated by the department in a way that might come as a surprise to the drafter. The author of the instructions should consider if it would be helpful to provide some history of the existing law. For instance, if the existing legislation was the result of a consolidation exercise it may be helpful for the drafter to be told this and to be told where to find the original legislation from which the existing legislation was derived. It may be helpful to let the drafter know if the purpose of the existing legislation was to give effect to proposals contained in a Law Commission report. Sometimes the drafter may be assisted by an explanation of why a previous amendment to the existing legislation was made (e.g. to reverse the effect of an unwelcome court decision or to implement an international obligation). It is particularly important that the instructions mention any relevant changes to the existing law that are in the pipeline. For example, the drafter should be told if the existing law is going to be changed by another bill or by a statutory instrument that the department is working on. If the author of the instructions is aware of any relevant Law Officer’s advice about the effect of the existing law this should be brought to the drafter’s attention. While it is important that the drafter is given a good grounding in the area they are going to be operating in, it is not necessary to provide a treatise on the existing law. Care needs to be taken to avoid the trap of including material in this part of the instructions which is of no relevance to the department’s proposals just for the sake of being comprehensive. The initial resources meeting between OPC and the department will provide an opportunity for discussion of how much detail will be appropriate in any given set of instructions. Part 3: Detailed proposals Introduction: This part of the instructions should explain in detail (a) the policy objective that the department wishes to achieve and (b) the changes in law that the department wants to make in order to achieve that objective. Policy objective: It is sometimes tempting to skip the first element and go straight on to describing the changes in law that the department wants. But there are two reasons why it is important to include a detailed explanation of the policy objective. The first is that the explanation will enable the drafter to assess whether the requested changes in law will achieve the objective. The second reason is that the explanation may enable the drafter to suggest an alternative change in law in the event that the drafter identifies a difficulty with the change suggested in the instructions. Changes in law When it comes to describing the changes in law that the department wants, the key is to concentrate on the substance of the proposed changes. In other words, the key is to concentrate on what legal effect the department wants the bill to produce (e.g. “the bill should make it a criminal offence to do A, B or C” / “the bill should confer a power on the Secretary of State to do A, B, and C” / “the bill should abolish body A”). However, once the author of the instructions has set out the substance of the proposed changes there is no reason not to go on to mention any views they happen to have about the form that the changes should take. For example, if the author thinks the proposed changes should take the form of a freestanding provision rather than an amendment to an existing act then the author should feel free to say so. If the author thinks the proposed changes should take a similar form to an existing statutory provision then they should refer the drafter to the provision concerned. If the author has in mind a particular form of words which might capture the essence of a proposed test or rule they should not feel any hesitation in setting out the words in the instructions. The drafter will be more than happy to consider these sorts of drafting suggestions, if the author of the instructions chooses to make them. It is important to remember though that providing drafting suggestions of this sort is not a substitute for clearly explaining the substance of the proposed change that is wanted. The drafter will be unable to produce draft provisions, or assess the merits of any drafting suggestions made by the author of the instructions, unless the drafter has been given a clear explanation of what substantive change in the law the department is trying to achieve. In describing the substantive changes in law that the department wants it is necessary to spell out the details in full. If there are any gaps in the details provided the drafter may need to revert to the department for the gaps to be filled before being able to proceed with drafting. Alternatively, the drafter may continue drafting on the basis of their best guess as to what the department will want but there will then be a risk that their guess will be incorrect and the draft will need to be revised. When describing the proposed changes in law the author of the instructions will, of course, need to exercise judgment to determine how much detail is enough but a good starting point is for the author to think about what they would want to know if asked to draft provisions to give effect to the change. The next four paragraphs illustrate the level of detail that is needed, by reference to particular types of legal changes that are commonly sought by instructing departments. New criminal offence If the department wants to create a new criminal offence the instructions will need to spell out the acts or omissions that are to be forbidden, the mental element of the offence, the mode of trial for the offence (i.e. summary only, triable either way or indictable only), the proposed penalty for the offence and whether the consent of any person is needed for a prosecution to be brought. If defences are wanted, the circumstances in which the defences should be available will need to be set out. It will also be necessary to set out, in relation to both the offence and any defences, where the burden of proof should fall and the standard of proof that is to apply. The instructions should also say if special provisions are wanted to deal with vicarious liability or the liability of company directors. New power to make subordinate legislation If the department wants to create a new power to make subordinate legislation the instructions will need to spell out the intended scope of the power, how it is thought that the power will be used, the person on whom the power should be conferred and whether that person should be able to delegate the power to someone else, the parliamentary scrutiny to which the power is to be subject and whether the power is to be exercised by statutory instrument (so that the Statutory Instruments Act 1946 applies). If the power is to be subject to the affirmative resolution procedure and it is possible that the power may be used to make legislation that would (if included in a bill) make a bill hybrid, the instructions should indicate whether provision is wanted in the bill to disapply the special House of Lords procedure that applies to hybrid instruments. It will be important to ensure that all delegated powers can be appropriately justified to Parliament. New duties If the department wants to create a new duty of any kind the instructions will need to set out the circumstances in which the duty is to arise, the precise nature of the duty and the person on whom the duty is to be imposed. But it will also be necessary for the instructions to explain how the duty is to be enforced. The department may wish the duty to be enforced by a criminal penalty or a civil sanction. It may want to enforce the duty by making compliance with it a pre-condition to the accrual of some right or benefit. If the duty is a public law duty, the department may want to rely on judicial review for enforcement. If the duty is a duty to comply with a court order the department may wish to rely on the law governing contempt of court. Even where the means of enforcement chosen will not need to be expressed in the bill an explanation of the means of enforcement should still be set out in the instructions so that the drafter is clear about what is intended. New decision-making powers If the department wants the bill to confer a decision-making power on someone it will be necessary, among other things, for the instructions to set out the details of any procedural requirements that the bill should impose as a pre-condition to the exercise of the power. It will be necessary for the instructions to say if the decision-making power should be capable of being delegated. It will also be necessary for the instructions to set out the details of any appeal or review mechanism that needs to be provided for in the bill. Use of examples In describing the parameters of a proposed change in the law it is sometimes helpful to set out examples of the sort of case that the change in law is to affect and of the sort of case that should not be affected. When requesting the creation of a criminal offence it may be helpful to give examples of the sort of conduct that should and should not be criminalised. When this approach is taken the instructions should also contain analysis of what it is that distinguishes the two sorts of case. Alternatives Sometimes there will be several ways in which the law could be changed in order to meet the department’s policy objective. In this situation the author of the instructions should briefly explain why the chosen option has been preferred to the others. This is particularly useful if one of the alternative options might appear at first sight to be more attractive or straightforward than the chosen option. Part 4: Supplemental and incidental matters The author of the instructions should consider whether anything needs to be said about any of the supplemental and incidental matters listed below. If the bill is being instructed on in instalments it may be that some of the supplemental and incidental matters can be addressed in a general instalment that applies to the whole bill so that they do not need to be addressed separately in each of the remaining instalments. In relation to some of the supplemental and incidental matters, such as territorial extent and commencement, something will always need to be said in the instructions (unless those matters have already been covered in a general instalment). But some of the matters will only occasionally need to be addressed. The supplemental and incidental matters are as follows: ECHR compatibility; the territorial extent of the proposals (including whether the proposals should extend to the Channel Islands, the Isle of Man or the British Overseas Territories); the territorial application of the proposals (including application to the territorial sea); devolution issues; application to the Crown; application in relation to Parliament; consequential amendments and repeals; transitional, transitory and saving provisions; commencement; and retrospection (see Chapter 12 of this Guide). Many of the matters listed above speak for themselves or are the subject of detailed guidance elsewhere. But a number of the matters require some additional commentary. ECHR compatibility: The instructions should explain the department’s analysis as to whether its proposals engage any of the rights under the ECHR and, if so, whether its proposals are compatible with those rights. It is not part of the drafter’s role to confirm whether the department’s analysis is correct. However, a short explanation of the department’s analysis is needed so as to let the drafter know that the necessary issues have been considered. Application to the Crown: The instructions should state whether or not the obligations or restraints that the proposed legislation will impose should apply to the Crown, to servants or agents of the Crown or in relation to Crown property. The drafter will then be in a position to consider with the departmental lawyer what, if anything, needs to be said in the bill to ensure that the government’s policy as regards Crown application is achieved. In considering this question the drafter and departmental lawyer will take account of the general rule of statutory construction that legislation does not apply to the Crown or in relation to Crown property unless it does so expressly or by necessary implication. Application in relation to Parliament: If the department’s proposals are intended to apply to Parliament or the Parliamentary estate the department is expected to approach the House authorities to give them an opportunity to comment on the proposals. The instructions should confirm that this has been done or is in hand. Consequential amendments and repeals: The department’s proposals will often give rise to the need for consequential amendments or repeals of existing statutory provisions. Wherever possible the consequential amendments and repeals that are needed should be included in the bill itself. (If there is a concern that a need for additional consequential amendments or repeals may be identified after Royal Assent then it may also be appropriate for the bill to include a power to make additional consequential amendments and repeals by regulations.) The other option is for the bill to confer a power enabling all the necessary consequential amendments and repeals to be made by regulations. This option may seem attractive to the department where there is a limited amount of time for instructions to be prepared. However, it is important to remember that if the drafting of consequential amendments and repeals is left until after Royal Assent the department (rather than OPC) will be responsible for preparing the drafting. Also, it is sometimes the case that the process of drafting the consequential amendments and repeals reveals problems with or omissions from the main provisions of the bill – if the drafting of the consequential amendments and repeals is left until after Royal Assent it will be too late to sort these problems or omissions out. Finally, it should be remembered that if the drafting of consequential amendments and repeals is left until after Royal Assent this can cause a delay in implementation. It is important that delegated powers should not be wider than needed to deliver the policy. The full width of all delegated powers needs to be justified to the Delegated Powers and Regulatory Reform Committee. Whilst precedents can be helpful to provide background and context, they are not in themselves sufficient justification for a delegated power or the parliamentary procedure attached to it. The instructions should tell the drafter which option the department wishes to pursue. If the department wants the consequential amendments and repeals to be included in the bill it may be sufficient for the instructions to simply provide a list of all the existing provisions that need to be amended or repealed. (For example, if the department’s proposal is to abolish an existing statutory body and transfer its functions to a new body it may be sufficient for the instructions to simply provide a list of all the existing statutory provisions which refer to the old body on the basis that it will be obvious to the drafter that the listed provisions need to be amended to refer to the new body.) However, on some occasions it will not be immediately obvious how the listed provisions should be amended and so it will be necessary for the instructions to go on to explain precisely what effect the department wishes to achieve. Transitional, transitory and saving provisions: the instructions should say if the department’s proposals give rise to the need for transitional, transitory or saving provisions. A transitional provision is a provision that deals with how a case that begins under the existing law is to be treated when the new law in the bill is commenced. For example, suppose that the department wants the bill to replace an existing licensing regime with a new licensing regime, a transitional provision may be necessary to ensure that an application for a licence under the existing regime which has not been determined is treated as an application for a licence under the new regime. A transitory provision is a provision that states that a provision in the bill will have effect with modifications for a limited period (perhaps until the coming into force of some other enactment). An example of a transitory provision would be a provision that says that until the coming into force of a general increase in penalties effected by some other act, the reference in a provision of the bill to a maximum of 12 months’ imprisonment will have effect as a reference to 6 months. A saving provision is a provision that keeps an enactment which is repealed by the bill alive for certain limited purposes. An example of a saving provision is a provision which says that the repeal by the bill of an existing enactment does not affect any right (such as a right to a payment) which accrued under the enactment prior to the commencement of the repeal. As with consequential amendments and repeals, the transitional, transitory and saving provisions that are needed should be included in the bill itself wherever possible (perhaps with a regulation-making power if there is a concern that a need for additional transitional etc. provisions may be identified after Royal Assent). The other option is for the bill to confer a power enabling all the necessary transitional etc. provisions to be made later by regulations. Again, this option may seem attractive where there is a limited amount of time for instructions to be prepared. It is important to remember that if the drafting of transitional etc. provisions is left until after Royal Assent this can result in a delay in implementation. In addition, it is necessary to bear in mind that the transitional provisions needed are often very complex and if the drafting is put off until after Royal Assent the department (rather than OPC) will be expected to do the drafting. The instructions should tell the drafter which option the department wish to pursue. Commencement: The instructions should tell the drafter what is wanted as regards commencement of the requested provisions. There are a range of options here but usually departments ask that their provisions be commenced: on a day appointed by regulations made by the Secretary of State; on a calendar date specified in the bill; on Royal Assent of the bill; or at the end of a specified period beginning with Royal Assent. Where possible the day when the requested provisions come into force should be determined by the bill itself (rather than by regulations made under the bill). This provides greater certainty to those who are going to be affected by the provisions and also saves putting the reader to the trouble of looking up regulations. However, it is recognised that the department will frequently need the flexibility to be able to determine the date of commencement in regulations. The author of the instructions should remember the convention concerning the early commencement of provisions in bills/acts. The convention is that, subject to certain exceptions, provisions in bills/acts should not be commenced before the end of the period of 2 months following Royal Assent, unless the Law Officers consent. In the case of provisions in a consolidation bill the relevant period is 3 months following Royal Assent. Further information on this convention can be obtained from the Attorney General’s Office and the Legal Secretariat to the Advocate General for Scotland and the Law Officers’ pages on LION. If the department proposes that the provisions requested in the instructions be commenced (whether by the bill itself or by regulations made under it) before the end of the two-month period the instructions should say whether the author considers that one of the exceptions to the convention applies. If none of the exceptions apply the instructions should tell the drafter what stage the department has reached in seeking the Law Officers’ consent to early commencement. The author of the instructions should also remember that if the requested provisions will have a bearing on business it is likely that the provisions will have to be commenced on one of the “common commencement dates” (i.e. 6 April or 1 October). The Department for Business, Energy & Industrial Strategy has issued detailed guidance on common commencement dates which can be accessed from its website or from the LION intranet site. Part 4: Parliamentary and other handling matters This part of the instructions should set out anything the author thinks the drafter should know about the proposed handling of the bill. For example, it should set out the following sorts of things (in so far as they are known to the author): any plans for the bill to be published in draft for consultation or pre-legislative scrutiny and the timetable for this; the timetable for the PBL Committee and introduction to Parliament; any matters on which the department expects to have to make concessions in Parliament; and any pressing need for the bill to reach Royal Assent by a particular date. This part of the instructions may also be a good place to raise any questions the department has about Parliamentary procedure. The drafter will, in particular, be able to answer questions on the following sorts of things (after consultation with the House authorities): the likely scope of the bill; whether the bill will require King’s or Prince’s consent; whether there is a risk that the bill will be treated as a hybrid bill; and whether the bill will require a money resolution or a ways and means resolution. If the bill is being instructed on in instalments it may be that the matters mentioned in the preceding two paragraphs can be addressed in a general instalment that applies to the whole bill so that they do not need to be addressed separately in each of the remaining instalments.
Explanatory Notes
Key points Explanatory notes (commonly referred to as ENs or ExNotes) are required for all bills introduced in either House by a government minister with the exception of finance bills and consolidation bills, for which different explanatory material is provided. Explanatory notes (ENs) are also required for all government bills published in draft and should normally be provided for handout bills. ENs are not intended to be an exhaustive description of the bill or to be a substitute for it. Good explanatory notes put a bill into context, explaining what is not apparent from the provisions of the bill itself and giving examples of how the bill will operate in practice. They are neutral in tone and should be written in plain language. ENs are not legislation. They do not form part of the bill and are not amendable by Parliament nor endorsed by it. The department is responsible for drafting the ENs. ENs are updated by the department at various points during the passage of a Bill, with a final version published alongside the Act after Royal Assent. As a result, a point of contact in the bill team needs to be identified at an early stage to take responsibility for producing and ensuring the notes are updated. Part 1: Purpose and Process The purpose of ENs is to make the bill accessible to readers who may not be legally qualified or have specialised knowledge of the subject area. Good explanatory notes can: assist in communicating the department’s messages about the bill (whilst remaining neutral in tone and without seeking to promote the bill or the policy underlying it); result in more valuable feedback from the consultation or pre-legislative scrutiny process; assist in the passage of a bill through Parliament; and after enactment of a bill (when the notes will become explanatory notes to the resulting Act) help members of the public to understand the law as it applies to them. Good explanatory notes can achieve these outcomes by putting a bill into context, explaining what is not apparent from the provisions of the bill itself and giving examples of how the bill will operate in practice. They can answer the reader’s questions and prevent misconceptions. Explanatory notes which merely repeat, in slightly different words, what is said in the bill are not helpful. They should be written in plain language. Legal status of the notes ENs are not legislation. They do not form part of the bill and are not amendable by Parliament nor endorsed by it. They are not designed to resolve ambiguities in the text of the bill. The notes must not purport to give authoritative rulings on the interpretation of the proposed legislation as only the courts can give these. After Royal Assent, the final version of the notes will be published alongside the Act. Occasionally it may be that the notes are referred to in litigation (on a basis analogous to that which allows Hansard to be taken into account under the conditions contained in the rule in Pepper v Hart). Therefore, it is important that the notes do not mislead, are neutral in tone, do not seek to promote the bill or the underlying policy, and that they do not include material which seems to take the law further than the bill or act does. Who should write the notes? The department sponsoring the bill is responsible for preparing the notes to accompany it. ENs should be written by someone within the department who is experienced in the policy area in which the bill operates and who has a substantial involvement with the development of the bill. The appropriate person to write the ENs might be the bill team manager or the lead policy official. The bill team should identify that person at an early stage. If a bill covers a range of different policy areas, the notes will, of necessity, be written by a number of different people but that number should be kept to the minimum possible. Where there are multiple authors, someone must be identified to act as the editor of the notes. The role of editor is not an administrative one; someone else can take responsibility for collecting (and chasing) contributions and bringing them together in the same document. The editor needs to take overall responsibility for the content of the ENs, making sure that the style of the notes is consistent throughout and that the notes are clear, fluent and readable. Point of contact with the Public Bill Offices It is essential that one person, usually a member of the bill team, acts as a point of contact with the Public Bill Offices and ultimately has the responsibility for sending the final version of the notes to the relevant Public Bill Office. This could be the editor of the notes (see the preceding paragraph) or a different person. It is important that the Public Bill Office in the House of introduction receives the contact details of this person at an early stage. Although prepared by departments, ENs are a parliamentary document and copyright is assigned to Parliament whilst the bill is before it. The Public Bill Office in each House arranges publication as a separate document alongside the bill and makes the bill and its notes available on the Bills before Parliament section of the parliamentary website. Even if the bill is not amended, the notes must be updated at certain stages of parliamentary passage and the most recent version will always be published on the parliamentary website (along with previous versions). Departments should not publish the bill and the ENs on their own departmental website (for which copyright permission would need to be obtained by contacting the Policy Team in The National Archives). Instead departments should simply provide a link to the parliamentary website page about their bill. Templates ENs must be written using the latest version of the Word template. This is available from the PBL Secretariat. Technical assistance with the template is available and the PBL Secretariat will know who to contact for this purpose. When completing notes for submission to the House of Commons Public Bill Office a second version in Arial font size 20 is required in addition to the regular template. When to start writing the notes Writing ENs should not be left until the last minute even though they often cannot be finalised until then. Work on the part of the notes that explains the policy background and the legal background to the bill can begin alongside work on the instructions to Parliamentary Counsel. Work can also start at an early stage on the part of the notes that provides commentary on particular provisions of the bill. This can start as soon as the policy behind the provision, and the drafting approach to be taken to deliver the policy, is sufficiently settled. In some cases, it may even be possible to draft a note on a proposed provision without sight of a draft of the provision. The role of departmental lawyers, Parliamentary Counsel, the Territorial Offices and the Office of the Advocate General Departmental lawyers are the primary source of advice on the notes, and they should be involved in commenting on all aspects, ensuring in particular that the notes are accurate and neutral in tone. Departmental lawyers will in particular be the primary source of advice on technical aspects of the notes, such as territorial extent and application and compatibility with the European Convention on Human Rights. Departmental lawyers should engage early with Territorial Office lawyers - for Scotland the Office of the Advocate General, for Northern Ireland the Northern Ireland Office Legal Advisers, and for Wales the Wales Office and Information Law team - to discuss the extent and application of the bill. It is not necessary for the department to clear the notes with Parliamentary Counsel but the drafter responsible for the bill will normally expect to be given the chance to comment on the parts of the notes dealing with territorial extent and application and the related annex. The drafter will need either to draft or clear the wording for the section on Parliamentary approval for financial costs or for charges imposed. The department may of course contact Parliamentary Counsel about aspects of the notes other than those mentioned in the preceding paragraph but the extent to which Parliamentary Counsel is able to provide comments or advice on other aspects will depend on competing priorities and the time available. PBL Committee meetings before introduction The ENs must be provided alongside the bill before the PBL Committee will clear the bill for introduction. In the run-up to introduction, the PBL Secretariat may ask the department for updates on the state of the notes, as well as the bill. The bill team should find out whether the bill minister wishes to approve the text of the notes before they are submitted to the PBL Committee and ensure that there is sufficient time for ministerial clearance. Before the draft notes are ready to send to the PBL Committee, there are a number of checks that must be made: the notes must be proof-read to pick up spelling mistakes, grammatical mistakes and consistency points, and to check cross-references; the notes must be finally cleared by departmental lawyers; the notes should be clear on why the bill is considered ECHR compliant (and where analysis is lengthy, a separate memorandum with detailed arguments should be provided); and any outstanding devolution points must be settled with the Scotland, Wales and Northern Ireland offices (as relevant) and, as regards Scotland, with the Office of the Advocate General. Remember that it may take some time to ensure that the notes are formatted correctly using the template. It is strongly advised not to leave this until the last minute. The relevant Public Bill Office will wish to have an opportunity to comment on the draft notes (either before or after PBL Committee consideration of the bill, as time allows). You should send a draft version of the notes as early as possible, no later than two days before introduction. For the Public Bill Office in the House of Commons, send the notes to: pbohoc@parliament.uk. For the Public Bill Office in the House of Lords, send to: hlpublicbills@parliament.uk. You should also copy the particular clerk dealing with your bill (if known). When the bill is ready to be introduced, the final version of the notes should be sent to the Public Bill Office in the House of introduction by the person acting as the point of contact. The Public Bill Office deals with publication. When submitting notes to the House of Commons’ Public Bill Office a second version in Arial font size 20 is required in addition to the regular template notes. The Public Bill Office will not arrange for the notes to be published unless they are satisfied that the notes: are in the correct template and format; do not contain material designed to persuade readers of the merits of the policy of the bill (as opposed to explaining what that policy is); and do not misrepresent the effect or purpose of any provisions of the bill. Late publication of ENs can lead to serious complaint from MPs and peers, so every effort should be made to avoid this. If, in exceptional circumstances, publication is likely to be delayed, the bill team should contact the PBL Secretariat as soon as possible who will ensure that PBL Committee and the Business Managers are informed. You should also inform the Public Bill Office in the House of introduction. Updating the notes The ENs must be revised at least twice: to accompany the first print of the bill in the second House; and at the time of Royal Assent. The need to update the notes when a bill moves from the first House to the second House should not be seen as an opportunity to provide notes to the first House “that will do” on the basis that they will be “sorted out” when the bill moves to the second House. If a bill is amended significantly during one of its stages in a House (for example, in Committee) the department may wish to consider updating the notes in time for the next stage of that House’s consideration of the bill, though this additional updating is highly unusual. However, in practical terms, it will be easiest for bill teams to revise their working version of the ENs as the bill is amended, rather than waiting until the end of the first House. The Public Bill Office in the second House will wish to have an opportunity to comment on the draft notes. You should send a draft version of the notes as early as possible, no later than two days before introduction. There is a separate document (ENs on amendments) that must be produced if a bill is amended in the second House. A checklist of tasks for preparing and finalising ENs is provided in Appendix D. Part 2: Content of Notes It is essential that the notes are neutral in tone. ENs for bills are a Parliamentary document therefore it is open to the House authorities to refuse to publish the notes and they have made it clear that they will do so if the notes attempt to ‘sell’ the bill, that is, go beyond a neutral account of the bill and into promoting it. For example, it is permissible to say what the provisions are designed to do, but not to say that a measure “deals comprehensively with the problem by…” The practical risk, of course, is that the notes will be published late if revisions have to be made in response to comments from the House authorities. Experience shows that the most successful notes are ones written in plain language, with short sentences and paragraphs. It is important to avoid jargon and to explain the meaning of any technical or legal terms and any acronyms or other abbreviations. The notes are designed to assist readers who do not have legal training and are unfamiliar with the subject matter of the bill. It may be helpful to include, as the first annex to the notes, a glossary of terms including acronyms and abbreviations. Thought should be given to whether including diagrams, flow charts etc. in the notes will help explain provisions of the bill. This may be in place of or in addition to a block of text. For example, the ENs for the Enterprise and Regulatory Reform Act 2013 use flow charts to help explain the effect of certain textual amendments made by Part 4 of the Act (competition reform) – see the commentary on sections 32, 35 and 38. See also the ENs for the Armed Forces (Service Complaints and Financial Assistance) Bill (2014-15 Session) which included at Annex B a flow chart illustrating a new complaints process (the flow chart does not appear in the Act version of these notes). The use of hyperlinks is encouraged. Each provision in a bill is assigned a j-reference number by Parliamentary Counsel. This number always stays the same, whereas the clause or Schedule number is likely to change during the drafting process. It is advisable to use the j-reference number in the ENs and then, when the notes are being finalised, replace the j-reference number with the appropriate clause or Schedule number. It is also advisable to minimise the number of places in the body of the notes where clauses or Schedules are referred to by number. Many bills amend existing legislation and it can be difficult for the reader to work out what the amended legislation will look like. Where it is likely to be helpful to the reader, revised passages showing important amendments to key extracts of existing legislation may be annexed to the ENs. However, the notes should not include lengthy annexes setting out existing legislation as amended. If the department feels that these would be helpful to MPs and peers, they should be made available separately and published by the department concerned on GOV.UK. The occasional practice of including this material in bills (‘Keeling Schedules’) has largely been discontinued, because of the practical difficulties of keeping them up to date. Remember that within three to five years of Royal Assent the Government will be required to submit a memorandum to the relevant departmental select committee with a preliminary assessment of how the Act has worked out in practice to allow the committee to decide whether it wishes to conduct further post-legislative scrutiny (see Chapter 40 for further information on post-legislative scrutiny). The ENs (along with the impact assessment) must therefore provide sufficient information about the objectives of the Act to allow any post-legislative reviewing body to make an effective assessment as to how an Act is working out in practice. Structure of the notes The template is structured such that ENs must contain the following sections, each of which is covered in more detail below: What these notes do; Table of Contents; Overview of the bill; Policy background; Legal background; Territorial extent and application, including an Annex on territorial extent and application in the United Kingdom; Commentary on provisions of the bill; Commencement; Financial implications of the bill; Parliamentary approval for financial costs or for charges imposed; Compatibility with the European Convention on Human Rights; Whether the bill includes provisions that would be environmental law; and Related documents with hyperlinks when possible. For those bills whose parliamentary progress is to be expedited, the notes must contain an additional section entitled ‘Fast-track legislation’, which is inserted after the ‘Territorial extent and application’ section. PBL Committee clearance will only be granted for a bill that is to be fast-tracked if the notes include this section. Preliminary parts of the notes (What these notes do; table of contents; footer) The first page of the template includes an introduction which makes it clear that the notes have been prepared by the department and do not form part of the bill. The template contains macros which are to be filled with the relevant text (see squared brackets in the box below). These will populate the table of contents and the footer of the notes. Should you face technical issues with the template, contact the PBL Secretariat for support. What these notes do These Explanatory Notes relate to the [name of bill] as introduced in the House of [Lords/Commons] on [date] ([bill reference number)]. These Explanatory Notes have been prepared by [name of department] in order to assist the reader of the bill and to help inform debate on it. They do not form part of the bill and have not been endorsed by Parliament. These Explanatory Notes explain what each part of the bill will mean in practice; provide background information on the development of policy; and provide additional information on how the bill will affect existing legislation in this area. These Explanatory Notes might best be read alongside the bill. They are not, and are not intended to be, a comprehensive description of the bill. The table of contents will be generated automatically by the template. The template provides for the notes on introduction to have the following footer on each page: “These Explanatory Notes relate to the [name of] Bill as introduced in the House of [Lords/Commons] on [date] ([bill reference number])” The Public Bill Office will insert the bill reference number. Overview of the Bill section This section should provide a very brief summary of what the bill does. A sentence or two should suffice. Example 1 – from the explanatory notes for the Financial Guidance and Claims Bill (2017/19 Session) “The Bill’s focus is on ensuring members of the public are able to access free and impartial money guidance, pensions guidance and debt advice. It also ensures that they are able to access high‐ quality claims handling services by strengthening the regulation of claims management companies. To enable this the Bill provides in two areas: Creation of a Single Financial Guidance Body Transfer of claims management regulation from the Claims Management Regulation Unit of the Ministry of Justice to the Financial Conduct Authority.” Example 2 – from the explanatory notes for the Parliamentary Buildings (Restoration and Renewal) Bill (2017/19 Session) “The Bill establishes the statutory bodies that will be responsible for the works for the restoration and renewal of buildings within the Parliamentary estate (defined as the Parliamentary building works). It also establishes the governance structure within which those bodies will operate.” Policy background section This section of the notes should provide a high-level description of the present situation, how the bill would change it and the reasons for the change. When updating the notes to accompany an Act post Royal Assent, this section should reference previous or other legislation as opposed to existing legislation. If there is a relevant green or white paper or a ministerial statement, refer to it in this section and include a hyperlink. Titles of papers referred to should be in italics rather than between inverted commas. Put in the references (HC/HL/Cm numbers etc.). If a bill has been through parliamentary pre-legislative scrutiny, this section of the notes should provide brief details of the scrutiny process and of the Government’s response to it. Legal background section In this section of the notes it may be helpful to refer to the pieces of primary and secondary legislation that are relevant to the area of law in which the bill operates. See, for example, this section of the notes to the Armed Forces (Service Complaints and Financial Assistance) Bill (2014-15 Session) and what was called the “previous legislation” section of the notes to the Pension Schemes Bill (2014-15 session). In other cases, it may be that there is nothing to add to what has been said in the policy background section of the notes. If so, say something along the lines of “The relevant legal background is explained in the policy background section of these Notes.” Territorial extent and application section This section of the notes must deal with three issues: territorial extent and application of the bill; which provisions (if any) touch on matters that are devolved to Scotland or Wales or transferred to Northern Ireland; and whether any provision of the bill gives rise to the need for a legislative consent motion in any of the devolved legislatures. This section of the notes should first briefly summarise what the territorial extent and application of the bill is. The clause(s) of the bill dealing with extent and application should be identified. Deal with extent and application separately if necessary. Some suggested wording regarding extent and application is included below: “Clause [ ] sets out the territorial extent of the Bill, that is the jurisdictions which the Bill forms part of the law of. The extent of a Bill can be different from its application. Application is about where a Bill produces a practical effect. [Summarise extent and application of bill where possible.] The commentary on individual provisions (or groups of provisions) of the Bill includes a paragraph explaining their extent and application.” It is important to remember that there may be a mismatch between the extent and application of a bill’s provisions, because, for example: a provision is a free-standing provision that applies only, say, to schools in England but has to extend to England and Wales because England and Wales is a single legal jurisdiction; a provision is amending an Act that has UK extent (and so itself has UK extent) but is only changing the law for England (albeit that, for drafting reasons, it restates the existing law in Wales, Scotland or Northern Ireland); or a provision amends a devolution settlement and has UK extent but no practical application outside the area concerned. Where the territorial extent and application of the bill is different from one clause to the next, it will be difficult to provide a meaningful summary in this section of the notes. In that case it is appropriate to refer to the commentary on individual provisions of the bill which explains their extent and application. If the bill extends (or is capable of extension) outside the UK, this should be noted in the territorial extent and application section and, where relevant, in the commentary on individual provisions of the bill. The territorial extent and application section of the notes should also set out which provisions, if any, touch on matters that are devolved to Scotland or Wales or transferred to Northern Ireland. This section of the notes should also indicate whether a legislative consent motion is being sought from the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly. In all cases it is suggested that the notes might include the following wording: “There is a convention that Westminster will not normally legislate with regard to matters that are within the legislative competence of the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly without the consent of the legislature concerned/” If a legislative consent motion is being sought in relation to any provision of the bill, the notes should give details. If the bill as introduced does not give rise to any need for a legislative consent motion in any of the devolved legislatures, include the following wording: “The matters to which the provisions of the Bill relate are not within the legislative competence of the Scottish Parliament,Senedd Cymru or the Northern Ireland Assembly, and no legislative consent motion is being sought in relation to any provision of the Bill. If there are amendments relating to matters within the legislative competence of the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, the consent of the relevant devolved legislature(s) will be sought for the amendments.” In the exceptional circumstance that it is not possible to resolve the question of whether a legislative consent motion is needed before introduction of the bill, it would be appropriate to state the UK Government’s view together with a caveat to the effect that the position is stated at introduction and is subject to change. The last paragraph of the territorial extent and application section should introduce the related annex on territorial extent and application in the UK. Wording is already provided in the template, as follows: “See the table in Annex A for a summary of the position regarding territorial extent and application in the United Kingdom.” Annex A: territorial extent and application in the United Kingdom The annex should contain the table only and must be completed. Each clause and schedule of the bill must be considered separately for the purposes of analysing what ought to be entered in the table. The starting point is that each clause and schedule of the bill should occupy a separate row of the table. However if, for example, the entries would be the same for all clauses in one part of the bill, that part as a whole should be dealt with in one row of the table. It may be helpful to aggregate entries for smaller groups, for example a chapter or a part, or simply a number of consecutive clauses, where the entries are the same for all component provisions. There are various columns relating to extent and application (“extends to E & W and applies to England”; “extends to E & W and applies to Wales”; “extends and applies to Scotland”; “extends and applies to Northern Ireland”). The possible entries are “Yes”, “No” or “In part”. The entry “Yes” is appropriate only where the whole of the provision extends and applies as stated in the column heading. For example, if two subsections of a clause extend and apply to the UK and the other subsections extend to England and Wales and apply to England only, the entry in the column “extends to E & W and applies to England” should be “Yes”, and the entries in the other three columns should be “In part”. The question is about both extent and application. In many cases the two will coincide. But they may not. For example, where a provision extends to England and Wales but applies only in England, the entry in the column “extends to E & W and applies to Wales” should be “No”. And where for example a bill amending the Government of Wales Act 2006 has UK extent but no practical application outside Wales, the entries in the columns “extends to E & W and applies to England”, “extends and applies to Scotland” and “extends and applies to Northern Ireland” should be “No”. (Note that in this latter case the territorial extent and application section of the notes should make it clear that the bill extends to the UK; this may not be apparent from the Table, but that is answering a question about both extent and application and so there may in a minority of cases be some apparent inconsistency). In deciding whether a provision applies to England, Wales, Scotland or Northern Ireland, ignore minor or consequential effects of the provision. If a provision does not change the law in an area, it should not be considered to apply to that area. The “Legislative Consent Motion process engaged?” column of the Table must be completed in all cases, with either “Yes” or “No”, as appropriate. Fast-track legislation section This section must be included if Parliament is to be asked to expedite the parliamentary progress of the bill. It should begin with the following statement (including the footnotes). The reference to the report should be hyperlinked. “The Government intends to ask Parliament to expedite the parliamentary progress of this Bill. In their report on Fast-track Legislation: Constitutional Implications and Safeguards1, the House of Lords Select Committee on the Constitution recommended that the Government should provide more information as to why a piece of legislation should be fast-tracked2”. 1: House of Lords’ Constitution Committee, 15th report of session 2008/09, HL paper 116-I 2: House of Lords’ Constitution Committee, 15th report of session 2008/09, HL paper 116-I, para. 186 The statement should be followed by paragraphs answering each of the questions set out in paragraph 186 of the committee’s report, fully but concisely. Each question should be set out as a heading. The questions are: Why is fast tracking necessary? What is the justification for fast-tracking each element of the bill? What efforts have been made to ensure the amount of time made available for parliamentary scrutiny has been maximised? To what extent have interested parties and outside groups been given an opportunity to influence the policy proposal? Does the bill include a sunset clause (as well as any appropriate renewal procedure)? If not, why does the Government judge that their inclusion is not appropriate? Are mechanisms for effective post-legislative scrutiny and review in place? If not, why does the Government judge that their inclusion is not appropriate? Has an assessment been made as to whether existing legislation is sufficient to deal with any or all of the issues in question? Has the relevant parliamentary committee been given the opportunity to scrutinise the legislation? Commentary on provisions of bill section This section of the notes should provide commentary on the individual provisions of the bill. To assist with the presentation of information on legislation.gov.uk (the intention is that notes will be hyper-linked with their related provisions) a note should be included for each clause and schedule, or for groups of clauses or schedules if it is felt more appropriate to provide commentary on a group of provisions. If there is nothing useful to be added to what the bill itself says, the commentary need say no more than that “This provision / group of provisions is self-explanatory.” The commentary must never simply restate what the bill says. Where a provision is not self-explanatory, and so warrants something more by way of commentary, it is still not necessary to say much by way of summary of what the provision does. The writer of the commentary should stand back from the detail of the provision and try to summarise it in one or two sentences, using everyday language. It will rarely be appropriate for the commentary to go through a clause subsection by subsection or a Schedule paragraph by paragraph. The purpose of the commentary is to add value – what will it be helpful for the reader to know that is not apparent from reading the bill itself? Information that it might be helpful to include is: factual background; an explanation of how the provision interacts with other legislation (whether other provisions of the bill or of existing legislation); definitions of technical terms used in the bill; illustrative examples of how the bill will work in practice (these might perhaps be worked examples of a calculation or examples of how a new offence might be committed); and an explanation of how the department plans to use a regulation making power. In answering the questions that might occur to the reader, thought should be given as to whether any material that has been prepared for other purposes (for example, for inclusion in a briefing document) might usefully be incorporated into the explanatory notes. ENs have to be neutral in tone but this does not prevent the use of existing material that meets this test. In the case of the bill’s substantive provisions, the commentary on an individual provision or group of provisions should usually include a separate paragraph at the end explaining the extent and application of the provision(s). As regards extent, use the form of words “This [clause] [Part] [Schedule] forms part of the law of…”. It may be appropriate not to include this information for each individual provision or group of provisions if the bill is fairly short and all the provisions have the same extent and application. If the bill imposes fines which are expressed by reference to amounts determined under subordinate legislation (e.g. a fine at a level on the standard scale) the notes should state the current amount. Where a bill is silent as to the nature of any fees to be charged under the bill, the notes should explain the scope of the fee-charging provisions. Commencement section The proposed commencement date for the legislation (or dates, where different commencement dates are proposed for different provisions) should be set out in this section of the notes. Financial implications of the bill section If the bill has no financial implications, this section of the notes should say so. If it does have financial implications, this section of the notes should give an overview of what those financial implications will be both in terms of expenditure expected to be incurred and sums expected to be raised as a result of the bill. Estimates should be provided wherever possible. In terms of estimated expenditure, deal separately with expenditure expected to fall on: the Consolidated Fund, distinguishing between standing charges enacted once and for all and charges by means of annual votes; and the National Loans Fund: in estimating their own costs, departments should bear in mind the impact on repayment services and accommodation costs. Also, the notes should give an estimate of the financial consequences of the bill in terms of total public expenditure, where this differs from the direct cost to the Consolidated Fund or the National Loans Fund. Such costs should normally relate to the full year costs of implementing the new statute. Parliamentary approval for financial costs or for the charges-imposed section The department should make contact with Parliamentary Counsel about this section of the notes. Parliamentary Counsel will be happy to provide draft wording if asked. If the department draft the wording for this section, it should be cleared with Parliamentary Counsel. Where a bill is introduced in the House of Commons, or on transfer to the House of Commons as the second House, this section of the notes must state whether either (or both) of the following is required to authorise any provision of the bill: Money resolution (authorising new charges on the public revenue – broadly speaking, new public expenditure); Ways and means resolution (authorising new charges on the people – broadly speaking, new taxation or other similar charges). Where a resolution is required, this section should also indicate which provisions of the bill require a resolution, giving clause numbers and a brief description of the subject matter of the provisions concerned. It is not necessary to itemise every single provision of the bill which requires the cover of a resolution, but the main provisions which do so must be described. Note that itis not sufficient to indicate that a resolution is required without giving further details. Where a bill is introduced in the House of Lords, this section should contain wording to the effect that the section will be completed when the bill transfers to the House of Commons. Where the House of Lords is the second House, on transfer to the second House this section should be retained in the notes and the wording should be updated as required. The updated wording should either be drafted by or cleared by Parliamentary Counsel. It is helpful to specify the dates on which any financial resolutions were passed. Example from notes for the Environment Bill 2020 1784 - The House of Commons passed a money resolution for this Bill on 26 February 2020, to cover: expenditure by the Secretary of State, including in particular the cost of establishing and funding the Office for Environmental Protection (clause 21(1) and paragraph 12 of Schedule 1), and a power to make grants or loans to the operator of an electronic waste tracking system (clause 57(2), inserted section 34CA(11)); 1785 - Increased expenditure under other Acts, arising from the costs to public authorities of functions conferred or imposed on them by virtue of the Bill (for example, local authorities’ new duties in relation to separate waste collection under clause 56. 1786 - The House of Commons a ways and means resolution for this Bill on 26 February 2020, to cover: the provisions about producer responsibility for disposal costs, under which producers can be required to make payments in respect of the costs of disposing of products and materials (clause 50 and Schedule 5); a number of provisions allowing fees and charges to be imposed in connection with the exercise of functions (for example, clause 63 extends the Environment Agency’s charging powers under section 41 of the Environment Act 1995); and charges for biodiversity credits made by the Secretary of State under clause 94 of the Bill. Compatibility with the European Convention on Human Rights This section should record the fact that a statement has been made pursuant to section 19 of the Human Rights Act 1998 and what this statement was. It is not necessary to give the name of the person making the statement. If the name is included, remember that this must be updated when the bill moves from the first House to the second House and also potentially when a carry-over bill is re-introduced in its second session. Previous governments gave a commitment to give an assessment of the most significant human rights issues thought to arise from each bill. In addition to recording the fact that a section 19 statement has been made, the explanatory notes should elaborate on the ECHR analysis. This could involve any one of the following: stating that the department does not consider that the provisions of the bill engage Convention rights and explaining why; in a case where any ECHR issues are not significant and the department has not prepared any separate memorandum on human rights issues, dealing with the issues briefly (a paragraph or two should suffice); and where significant ECHR issues arise, stating that issues arising as to the compatibility of the bill with the Convention rights are dealt with in a separate memorandum and provide a web address at which the memorandum can be accessed. Environmental law This section should record one of the following: a) That the bill includes provisions which would be environmental law, and the level of environmental protection provided by existing environmental law is not reduced; b) That the bill includes provisions which would be environmental law, and the Minister is unable to make a statement that the level of environmental protection provided by existing environmental law is not reduced; or c) That the bill does not include provisions which would be environmental law. Further information on environmental law, including the form of words to be used in the statements, can be found in Chapter 12. In either of the first two cases above, it is not envisaged that the statements specify exactly which provision of the bill is environmental law. That is not what section 20(2)(a) of the Environment Act 2021 requires and to do so will add unnecessary complexity. However, the Explanatory Notes could contain that information. If the bill does not include provisions which could be considered environmental law, it must be indicated that the question has been considered. This should be recorded in the Bill’s Explanatory Notes, with a paragraph in the following terms: "[Name of Minister] is of the view that the Bill as introduced into the House of [Commons/Lords] does not contain provision which, if enacted, would be environmental law for the purposes of section 20 of the Environment Act 2021. Accordingly, no statement under that section has been made." Related documents section This section of the notes should list the documents that are relevant to the bill and provide a web address at which the documents can be accessed. Typically this might be: impact assessment and Regulatory Policy Committee opinion (if applicable); delegated powers memorandum; any draft regulations that have been published; and any relevant report by a parliamentary select committee. Part 3: After Introduction Revisions when the bill moves from the House of introduction to the other House The template provides for the footer and the first sentence of the “What these notes do” section to be revised to read: “These Explanatory Notes relate to the [name of] Bill as brought from the House of [Lords/Commons] on [date] [bill reference number].” The rest of the notes should be checked and amended to take account of: all amendments made to the bill in the first House (government and non-government amendments); any additions or revisions to the notes which may be needed, for example to improve accuracy or clarity, or to incorporate new points of fact or explanation which have emerged during the passage of the bill through the first House; and if relevant, where legislative consent motions from the devolved administrations have been obtained. The revised notes should be cleared with departmental lawyers and with the Public Bill Office in the second House. As at introduction, the final version of the notes should be sent by the person acting as the point of contact to the Public Bill Office in the second House. The Public Bill Office will arrange publication. The revised notes should be published as soon as the bill passes to the second House. However, if, for example, a bill starting in the Lords was amended at Third Reading there may need to be a short delay in publishing the explanatory notes to allow time for them to be updated to reflect the amendment. This is acceptable. Explanatory notes on amendments made in the second House If the bill is amended in the second House, it must return to the first House for those amendments to be considered. Departments must submit explanatory notes on the second House amendments (whether government or non-government). This is a separate document from the bill notes. Notes are required only on the first passage of amendments back to the first House and they are not required on subsequent stages of ping-pong. ENs on second House amendments may not be required in urgent cases (for example, where consideration of the amendments takes place on the same day as the last amending stage in the second House, or during any accelerated consideration of second House amendments during a ‘wash-up’ period before a dissolution of Parliament in advance of a general election). A decision not to produce such notes should only be taken after consultation with the Public Bill Office and with the Leader of the House of Commons through the PBL Secretariat. ENs on second House amendments must be cleared by departmental lawyers and the Public Bill Office in the first House. As with bill notes, the final version of the notes on second House amendments should be sent by the person acting as the point of contact to the Public Bill Office in the first House. The Public Bill Office will arrange publication. An example is set out on the next page. Second House amendments Below are some key points to note when preparing explanatory notes on second House amendments. The notes should indicate which amendments deal with non-government amendments. An asterisk should appear in the heading of each paragraph dealing with non-government amendments and this should be mentioned in the introduction. The word ‘amendment’ should begin with a capital letter where it is used with a number. The conditional mode (e.g. ‘Lords Amendment 1 would do such-and-such’, not ‘will’) should be used to describe the effect of all amendments, including government ones. It is normally acceptable for the notes to deal with a number of amendments together. A section on financial implications should be included if that section of the original explanatory notes has become incomplete or inaccurate as a result of the amendments. In particular, where a House of Lords amendment may be relevant to the issue of financial privilege, include an accurate summary of the financial implications of the Lords amendment. When dealing with more than one amendment, the format should be as follows: Lords Amendments 7 and 8 (where there are two amendments; Lords Amendments 23, 25 and 45 (when there is any number of non-consecutive amendments); Lords Amendments 1 to 7 (when dealing with consecutive amendments). Revisions when the bill becomes an Act As soon as the bill has completed its passage through Parliament, the department will need to finalise the revised version of the notes to accompany the Act (work on this version should start whilst the bill is in the second House). For this version please ensure that all of the changes listed in paragraphs 108-117 are made. After clearing them internally, including with departmental lawyers, the department should email the final explanatory notes to publishing.legislation@nationalarchives.gov.uk. The Legislation Services Team in The National Archives will check that the formatting and contents are correct, and then make the notes (together with the Act, impact assessments and Regulatory Policy Committee opinion (if applicable), available on the www.legislation.gov.uk website. Versions published on www.legislation.gov.uk are recognised by the Courts and any corrections that are subsequently required to the Act or explanatory notes will be incorporated into the texts published on www.legislation.gov.uk. Compared with the bill version, the following changes should be made: The template provides for the footer to be updated to read: “These Explanatory Notes refer to the [name of] Act [year] which received Royal Assent on [date] ([Act chapter number])”. The template also provides for the “What these notes do” section to be updated to read: What these notes do These Explanatory Notes relate to the [name of Act] which received Royal Assent on [date] ([Act chapter number]). These Explanatory Notes have been prepared by [name of department] in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. These Explanatory Notes explain what each part of the Act will mean in practice; provide background information on the development of policy; and provide additional information on how the Act will affect existing legislation in this area. These Explanatory Notes might best be read alongside the Act. They are not, and are not intended to be, a comprehensive description of the Act. The notes should be updated to reflect any changes made in the bill since the last version was prepared (whether during any of the amending stages in the second House or on ping-pong). References in the notes to the “bill” should be changed to references to the “Act”; and references to “clauses” should be changed to “sections”. The notes should be written in present tense, as opposed to future tense for bill notes. References should be made to what the Act does, not what it will do. References to previously existing legislation should be made in the background policy information. Delete the sections on the financial implications of the bill and compatibility with the European Convention on Human Rights. If the parliamentary progress of the bill was expedited, the section in the notes justifying fast-tracking of the bill should also be deleted. Delete the section on parliamentary approval for financial costs or for charges imposed. Where the Act contains a financial provisions section which was included in the bill for parliamentary purposes, to signal that a financial resolution was needed and to reduce the number of other provisions of the bill which needed to be italicised (as having financial implications) when the bill was introduced, it will be sufficient for the notes to use the following wording about the financial provisions section: Section [ ] recognises that as a matter of House of Commons procedure, a financial resolution needed to be agreed for the Bill from which the Act resulted.” Parliamentary Counsel can advise if there is any doubt as to whether a section of an Act is a financial provisions section as described here. The department must include as an annex to the notes a table giving details of the bill’s passage through Parliament (including hyperlinks to the various prints of the bill, the Hansard references and Hansard hyperlinks for each stage and, if appropriate, hyperlinks to any other key documents relating to the passage of the bill). The template includes an outline table. The template includes a second outline table as an annex showing the origin of each section as a numbered clause in each version of the bill. It will normally be helpful to include this table; but if the numbering of a bill has not changed since introduction, there is no need to include this. The following material relating to territorial extent and application should be omitted from the Act version of the notes: Delete all material about legislative consent motions in the territorial extent and application section. In the related Annex, delete the column of the table about legislative consent motions. In the case of a bill for which the remaining columns of the table about territorial extent and application reveal a simple picture which is accurately summarised in the narrative, there is no need to retain the Table. However, be careful not to omit general information about territorial extent and application of the bill (including outside the United Kingdom), and about matters devolved to Scotland or Wales or transferred to Northern Ireland; such information must remain in the Act version of the notes. Carry-over bill Where a bill is carried over from one session to the next, revised ENs are required for re-introduction in the next session (unless the text of the bill has not changed since introduction in the previous session, and the Public Bill Office agrees that revised notes are not required). As well as reflecting changes to the bill itself (for example, as a result of amendments in committee), the notes should mention that the bill has been carried over. When the revised notes are ready, the point of contact in the department should send them to the relevant Public Bill Office, which will arrange for publication of the notes. Part 4: Explanatory notes for private members’ ‘handout’ bills Departments should not provide ENs for private members’ bills that the Government does not support. If a department wishes to provide ENs for a private member’s bill that is being supported by the Government but is not a ‘handout’ bill, the Public Bill Office should be consulted in advance. Further information on private members’ bills can be found in Section H. The Government should prepare ENs for all handout bills. These are private members’ bills which the Government has decided to support and which have been drafted or redrafted by Parliamentary Counsel on instructions from the relevant department. With the exception of the points listed below, notes for handout bills should be prepared in the same way as for government bills. To make it clear that the Government is volunteering the notes, not responding automatically to requests from the MP or peer in charge of the bill, the first bullet point of the “What these notes do” section of the notes should begin as follows: “These Explanatory Notes have been provided by [name of department], with the consent of [name of MP/peer], the [member/peer] in charge of the Bill, in order to assist the reader of the Bill.” When the bill is brought to the second House, an MP / peer in that House will take charge of the bill and when the revised notes are published the sentence above should be amended accordingly. Information about territorial extent and application and matters devolved to Scotland or Wales or transferred to Northern Ireland, and information about legislative consent motions, should be included. The Public Bill Office in each House will not print the notes for handout bills without the consent of the MP or peer in charge of the bill. Departments should therefore ensure that the MP or peer in charge is content that the notes should be provided and has informed the Public Bill Office of this in writing. It is a matter for departments whether they wish to give the MP or peer in charge of the bill the opportunity to see and comment on the notes in draft. This will normally be possible when the bill is first introduced, but there may not be time for it when the bill is brought from one House to the other.
AMENDMENTS
Key points Every amendment the Government makes to a bill delays its progress. Government amendments to bills after introduction must therefore be kept to a minimum and will only be agreed by the PBL Committee if they are considered essential to ensure that the bill works properly. To avoid a government defeat or otherwise significantly ease handling in Parliament. All government amendments must be agreed by the PBL Committee, as well as by the relevant policy Cabinet committee if the proposal involves a change to agreed policy. Clearance must also be sought to accept or overturn government defeats, to offer a compromise amendment or to accept other non-government amendments. An exception may be made for minor and technical amendments, but these must first be discussed with the PBL Secretariat. Bill teams should alert the PBL Secretariat to any proposed amendments at the earliest possible stage and before the minister writes to the PBL Committee seeking clearance. The Government should always aim to table amendments at least one sitting week before they are due to be debated, especially in the Lords. This convention is in place to ensure that members and peers have sufficient time to consider the amendments before they are debated. All government amendments require an explanatory statement, in plain English, setting what an amendment will do. Parliamentary Counsel will draft government amendments and will need to be instructed in good time. If the Government tables amendments involving delegated powers, a further (supplementary) memorandum must be prepared for the DPRRC, who may report again if they have already considered the bill. Where an amendment raises significant legal issues or early commencement or retrospection, bill teams should be liaising with the Attorney General’s Office and the Legal Secretariat to the Advocate General preferably two weeks before the PBL write round letter seeking consent to the tabling of the amendment. You should read the relevant sections on amendments in the chapters relating to the Commons and Lords for further information on managing amendments in both Houses: see paragraphs 29.39, 30.3, 35.5, 36.5 and 36.11, and Chapter 37 on ping-pong. Types of amendments Amendments can be classified into four main types: Minor and technical - typographical corrections, drafting improvements, clarifications, renumbering or reordering, to ensure consistency with existing legislation or to update references, for example, to bodies that have changed name since the bill was introduced. Minor and technical amendments do not impact at all on the substance of the bill and will therefore not take up any time at all in debate[footnote 12]; Concessionary - amendments which ease bill handling. They are brought forward directly to address a point raised by a member of either House in an earlier debate on the bill or offer an alternative to non-government amendments where the Government is likely to be defeated. Amendments in response to recommendations of the Lords’ Delegated Powers and Regulatory Reform Committee, the Joint Committee on Human Rights or any other select committee of either House will always be considered concessionary. An amendment may be considered concessionary if brought forward in response to a point raised about the bill from outside Parliament but only if there is likelihood that this point would be raised in Parliament at a later stage in the bill’s passage. In some cases, concessionary amendments may only be acceptable if they are necessary to avoid a defeat. This also includes amendments in response to a government defeat - accepting, overturning or offering a compromise amendment; Essential – where there are unforeseen circumstances which have arisen since the introduction of the bill which have led to the pressing need for the amendment, e.g. correcting some major error in the bill or dealing with a situation which could cause major problems if the bill went on to the statute book. This also includes drafting and technical changes essential to deliver the policy in the bill; Desirable – all new areas of policy, even if they do not widen the bill’s scope. Also any issues which are proposed to be added to a bill which are not essential but merely a new policy idea where the bill is being used as a vehicle and there is no pressing time consideration. Preparation of bills The PBL Committee grants drafting authority for specified policy areas. Clearance will need to be sought from the committee for any new policy areas to be added to a bill whilst it is being drafted; the committee is likely to refuse any requests for additional drafting authority unless operational necessity can be demonstrated. New areas should not be added by amendment if they were not given initial drafting authority. When a bill is put forward to the PBL Committee for clearance to be introduced, one of the key questions members will ask the minister and Parliamentary Counsel is whether the bill is fully ready to be introduced. This is not a formality. If the committee is not satisfied on this point and feels that there is still policy development or drafting needed which may result in government amendments after the bill’s introduction, the committee can, and does, refuse clearance. This can not only delay a bill but may result in its losing its slot altogether in that year’s legislative programme. It is therefore essential that departments ensure all the policy for the bill is settled several months before introduction so that they can instruct Parliamentary Counsel, in tranches if necessary, before a bill is to be introduced. After introduction – clearance of amendments Once a bill has been introduced, government amendments and acceptance of non-government amendments must first receive clearance from the PBL Committee and (where they are not within agreed policy clearance) the relevant policy committee. Agreement is normally sought through correspondence, though a meeting may sometimes be called, particularly to consider handling of bills during ping-pong. Clearance of amendments follows the same rules as all other types of Cabinet / Cabinet committee clearance; ministers must be given six clear working days to respond (nine where any part of the period falls during recess). In addition, departments should allow at least four days from the time that they submit a completed ring-round sheet to PBL Secretariat and when they wish to table the amendment(s). These timelines may only be shortened with the express permission of the Cabinet Secretariat (in discussion with the Cabinet Secretary’s office). In the event that insufficient time is allowed for ministers to consider amendments, the Secretariat will recommend that clearance is not granted. The letter should quite clearly set out the deadline by which ministers should respond and the date by which clearance is sought in order to table the amendments. Where an amendment raises significant legal issues or early commencement or retrospection, bill teams should be liaising with the Attorney General’s Office and the Legal Secretariat to the Advocate General preferably two weeks before the PBL write round letter seeking consent to the tabling of the amendment. Letters seeking clearance for amendments should set out whether amendments are essential, desirable or concessionary and should provide a justification as to why the amendments fall into one of these categories. The description in the template should also set out what the amendment would do, without recourse to legal jargon or references to clauses, aimed at a reader who is unfamiliar with the bill or the policy area. It should include an assessment of the likely handling implications, including what level of support or opposition it is likely to receive, both inside and outside Parliament. Further detail should be provided in the amendment table annex, provided by the PBL Secretariat. The PBL Committee then assesses the impact on the bill in question (for example, will it delay the bill’s passage or make this harder to achieve) and on the rest of the programme. Letters and amendments templates should set out any implications in terms of the analysis presented in the impact assessment prepared at an earlier stage (including, for example, the costs and benefits for businesses, civil society organisations and the public sector), of the devolved administrations and any delegated powers. The letter does not need to rehearse the benefits of the bill or provide any other background information beyond that directly relevant to the proposed amendment. The letter should not assume that members of the PBL Committee have a copy of the bill in front of them. Rather than saying, for example, that the amendment would insert “words” in clause 22(a), it should describe the practical effect of the proposed amendment. It is not essential to attach the text of the proposed amendments to the letter seeking clearance (unless they are already drafted); the letter should instead seek to describe the effect of the amendments in full. It is worth getting an indication from the secretariat whether clearance is likely to be a problem before instructing Parliamentary Counsel, however departments should not wait until the PBL Committee has given clearance for the amendments before instructing Parliamentary Counsel to draft them as, assuming they are agreed, they are otherwise unlikely to be ready to table in time. If the amendment affects the agreed policy for the bill, the agreement of the relevant policy committee must also be obtained. This can be done through a single letter addressed to the chairs of both committees, stating that clearance is being sought from both committees. The letter should set out the effect of the change in policy, including any costs and how these will be met, and the consequences of doing nothing. Minor and technical amendments do not need formal PBL Committee clearance. However, departments should never assume that an amendment is minor and technical; bill teams should share details of all possible amendments with the PBL Secretariat who will make the final judgment. Where amendments are minor and technical (usually with advice of Parliamentary Counsel), the secretariat will confirm that these amendments do not require formal clearance. Under no circumstances should amendments be tabled where they do not have formal clearance or written confirmation from the secretariat. All amendments which are given clearance for a particular stage, but which for any reason are not tabled at that stage, must be brought back to the PBL Committee before they can be tabled at a later stage. At Committee Stage, any non-concessionary amendments should be shown by the bill minister to be essential. Amendments that are purely desirable are not likely to be permitted. The below table summarizes the likelihood that will be considered acceptable: In considering whether to seek clearance for government amendments, departments and bill ministers should consider the above guidance carefully and should not waste the PBL Committee’s time by putting forward amendments which are purely desirable or even, after Committee Stage in the first House, amendments which are essential, unless there is a particularly compelling case. The role of PBL Secretariat in agreeing government amendments If the secretariat considers that the PBL Committee is unlikely to agree to the proposed amendment, it may advise against seeking clearance. If a large number of amendments are proposed, the secretariat may advise the department to reconsider and seek clearance only for a smaller number of amendments. Even if no other member of the PBL Committee objects to a particular amendment, the secretariat will scrutinise all requests for clearance and will advise the committee chair to refuse clearance for all or some amendments if they either do not comply with this guidance or if they do not sufficiently justify an amendment to enable a judgement to be made. As programmes are intended to provide reasonable time for discussion of legislation, the usual channels, including the bill whip and, through them, opposition parties, will need to be kept abreast of the likely scale of government amendments. It is important therefore that there is good communication about amendments between the bill team, parliamentary branch and the Government Whips’ Office, throughout the bill’s passage. If the Government brings forward significantly more amendments than were expected, the opposition will have cause for complaint. The Government should avoid having to repeatedly revise programmes because significant government amendments were not signalled at the relevant stages. Other things to consider Just as departments should stay in close touch with the Scotland, Wales and Northern Ireland offices and the devolved administrations during the development of policy and drafting of a bill, so any potential amendments that would affect the devolved administrations should be discussed with the territorial offices early on, to ensure timely agreement can be reached with the devolved administrations if necessary. An updated impact assessment should be provided for amendments that would significantly alter the costs or benefits of the bill or create new regulatory burden. Amendments that might raise human rights or other legal issues should be discussed with the Attorney General’s Office and the Legal Secretariat to the Advocate General for Scotland. A letter should be written to the Joint Committee on Human Rights to seek its view. If amendments involving new delegated powers or changing existing delegated powers are tabled during the passage of the bill, a supplemental delegated powers memorandum must be prepared and submitted to the Lords Delegated Powers and Regulatory Reform Committee. This should be submitted on the day the amendments are tabled at the latest. The Committee may report again in respect of amendments. The Government has also agreed that, where possible and where relevant, it will submit a memorandum to the Delegated Powers and Regulatory Reform Committee on any non-government amendment where the Government has indicated in advance that it would support both the policy and the drafting of that amendment. Bill teams should also seek advice from Parliamentary Counsel if it is thought that a further money resolution or ways and means resolution is required for a government amendment, though this is likely to be rare and will require time to debate on the Floor of the House of Commons. The deadlines for tabling amendments are: Non-government amendments Bill teams should keep up to date with what is being said by stakeholders (through direct contact with key stakeholders and by keeping an eye on key stakeholder websites to see stakeholder briefings) and the media (by ensuring that the bill team and policy leads are on the circulation list for departmental press cuttings), as this will influence the amendments tabled by non-government MPs and peers. In some cases it will be clear that non-government amendments should be resisted (without the need to refer to PBL Committee or a policy committee of Cabinet) as being contrary to government policy. In other cases, however, the minister responsible for the bill may wish to accept a non-government amendment, either because it represents an improvement on the policy set out in the bill, or because they have concluded, after discussion with the whips, that accepting it is necessary to ensure the passage of the bill. In such cases the minister must seek clearance from the relevant committees. Advice must be sought from Parliamentary Counsel on whether the wording is in an appropriate form. If it is not, the minister can accept the amendment in principle (which they can only do if clearance has been given) and offer to table improved wording to meet the intended aim at a later stage; or the minister can accept the amendment as it stands if Parliamentary Counsel has been consulted to ensure the amendment uses the right form of words. Government defeats Where an amendment is passed against the Government’s position, the minister will need to consider, in consultation with the whips in both Houses, whether to: accept that the new provision remain in the bill; seek to reverse it (and at which stage); or bring forward an amendment that would meet at least some of the concerns which have been expressed. Where the intention is to reverse a defeat, further policy committee clearance is not needed, as the effect of reversing is to restore the original policy intention of the bill. Before deciding to accept a defeat, the minister should consider whether other departments have a policy interest, and therefore whether the agreement of the relevant policy committee as well as that of the PBL Committee would be needed to accept the defeat. Bill teams should also consider whether the amendment affects the devolved legislatures and consult territorial offices where appropriate. The bill team needs to work with Parliamentary Counsel and departmental lawyers to consider whether the amendment as drafted is technically workable and achieves what is intended legally. Non-government amendments are not always technically workable (members do not have the resources of Parliamentary Counsel at their disposal), in practice accepting a non-government amendment will mean the bill binister asks the sponsoring member to withdraw his or her amendment so that the Government can bring forward a similar but better drafted amendment at a subsequent stage. The minister will need to be in receipt of PBL Committee clearance before making this commitment to the sponsoring member. If the intention is to offer a compromise or concession, PBL Committee and policy committee clearance must also be sought. In all cases, bill teams should discuss the proposed course of action with the PBL Secretariat before advising their ministers to write seeking collective agreement. Making commitments on the floor of the House Parliament will hold ministers to any commitments they make on the floor of the House, which are recorded in Hansard. Ministers must therefore take care during debates not to make any commitments for which they do not have collective agreement. Ministers may state that they will consider or give further consideration to a matter but they may not state that they will bring forward an amendment unless they have clearance to do so. Where the Government wishes to bring forward a concessionary amendment and has clearance to do so but has not been able to draft the amendment in time for that stage, the minister may wish to address concerns raised by the House by indicating their intention to bring the amendment forward at the next stage. Where a non-government amendment is put down which is acceptable in substance but defective in form, and it refers to a clause which will not be reached for some time, the minister could, if they have clearance to do so, write to the member suggesting an alternative form of words as drafted by Parliamentary Counsel. Explanatory statements Explanatory statements should be provided for all government amendments with the exception of cases where several amendments are tabled which are introductory to, consequential upon or closely related to another amendment. In this case, the explanatory statement should state that fact and will be printed only with the first amendment in the sequence, unless it is required to enable a later amendment to be understood. The statements will be drafted by Parliamentary Counsel and then run past the department for checking before the amendments are tabled. They should be submitted by the minister alongside the amendment, and are typically no more than around 50 words per statement with each amendment. The explanatory statement must describe the intended effect of the amendment but may not be phrased as an argument for its adoption or against the existing text of, or any other proposed amendment to, the bill. Explanatory statements are not required for bills committed to a select committee, for example, a hybrid bill. The Procedure Committee’s report was not intended to apply in such a case but only to bills in Committee of the whole House, in public bill committee and in Report Stage. Questions as to the application of these rules will ultimately be decided by the chair of the public bill committee concerned, the Chairman of Ways and Means in respect of Committee of the whole House and the Speaker in respect of Report Stage. Cross-references in the statements to other amendments are possible, these should use a system which will continue to be capable of identifying the amendment concerned even if its bold amendment number changes. Whatever system is adopted, cross-references should be put in square brackets so as to enable cross-references to be found easily by searching for square brackets. In the Lords it will not be possible to cross-refer to other amendments by number because amendments are only numbered at the point the marshalled list is produced. Finance bills are excluded from this process. HM Treasury publish the text of all Finance bill government amendments together with an Explanatory Note on the Treasury website. These notes are likely to be far more comprehensive than what is possible in the word-restricted explanatory statements. Treasury ministers also write to the chair of the public bill committee when government amendments are tabled explaining their effect.
Briefing Ministers for Bill Work and the Use of Ministerial Statements in Construing Statute
Key points In certain circumstances parliamentary material including ministerial speeches (from any stage of debate on the bill in either House, including debate in Committee) may be used by the courts in interpreting the statute. Particular care should therefore be taken in drafting any statements to be used by the minister about the effect or interpretation of clauses of the bill. Bill teams should check with the legal advisers for accuracy, who will consult Parliamentary Counsel where appropriate. The legal adviser should always attend relevant parliamentary proceedings of the bill as part of ministers’ official support. Where there is doubt about interpretation, rather than offering impromptu advice it may be better for ministers to offer to reflect on a point and reply on a future occasion. The bill team and legal adviser should always review the Hansard record of ministers’ contributions to a debate and consider whether there is any inaccuracy or other hostage to fortune. Where it is decided that the record needs to be corrected during the passage of the bill, this should be done at a time and in such a way that it would be clear to the courts in the future that Parliament was aware of the matter before passing the bill, and should be discussed with Parliamentary Counsel and the Government Whips’ Offices. The courts may also use explanatory notes in a similar way. Detailed considerations Following the decision of the House of Lords (in Pepper v Hart [1993] All ER 42) the courts may, in certain circumstances, look to parliamentary material as well as to the text of the statute itself when construing legislation. The implication of Pepper v Hart is that courts may do this if three conditions are satisfied: the legislation is ambiguous or leads to an absurdity; the material relied upon consists of a statement by a minister or other promoter of the bill, together with such other parliamentary material as was necessary to understand that statement; and the statements relied upon are themselves clear. Since clarity and the avoidance of ambiguity are key objects in the drafting of legislation, the procedure adopted in Pepper v Hart should remain very much the exception rather than the rule. Nonetheless departments should bear this possibility in mind and exercise great care in drafting material for use by ministers which may find its way into the record of debates in either House (including their committees) and, if necessary, find a satisfactory method for correcting any significant mistakes or ambiguities which appear in such records. Bill teams should follow the steps below. As far as possible, speeches and speaking notes should be reviewed by the bill team’s legal adviser for possible influence on interpretation (different arrangements for legal advice apply to finance bills). Parliamentary Counsel do not normally review speaking notes as a matter of course but are happy to be consulted on specific points if the bill team would find their input helpful. Officials should take care in providing impromptu advice on interpretation in order to assist a minister to answer a point raised during proceedings on a bill. Where possible, ministers might be invited to offer to reflect on a point and reply on a future occasion. Ambiguities or inaccuracies in the wording of legislation should always be put right by amendment where this is possible. References to the Pepper v Hart judgment in ministerial statements are best avoided as this could be taken to imply that the provision of the bill being debated is indeed ambiguous. If it is considered that the official record cannot be allowed to stand, ministers should be advised accordingly and asked urgently to consider what action should be taken. Ministers will need to make a judgement, in the light of the official and legal advice, on whether and how to clarify the record. Factors influencing this might include the possible effect on interpretation and implementation of the legislation, the desirability of precision in the particular circumstances of the case and the political and handling implications of re-opening issues which may be controversial. The Government Whips’ Offices and Parliamentary Counsel should always be consulted about a proposal to correct the official record during proceedings on the bill. If it is decided that the record needs to be corrected during the passage of the bill, this should be done at a time and in such a way that it would be clear to the courts in the future that Parliament was aware of the matter before passing the bill. The timing and manner of any ministerial correction required during proceedings on the bill should be discussed with the Whips Office. The approach adopted may vary depending on the importance of the matter, the stage which the bill has reached and the nature of the proceedings during which it is proposed that the correction should be made. Options for correcting the record include clarifying the matter in the minister’s speech, raising a point of order or laying issuing written ministerial statement. Although letters to individual members of Parliament will not be an effective way of correcting statements in Parliament about the meaning of bill provisions, they may still be appropriate as a way of giving or correcting factual information or of answering points raised in debate. Where a ministerial correction is made in this way it would be helpful if a cross-reference could be inserted at the Hansard record of the original statement. This may be possible if the correction is issued in time to be reflected in the bound volume of Hansard. This point should be discussed with the Hansard authorities. Where a ministerial correction is made after the bill has been passed by the House it is unlikely that the courts will take it into account. This makes accuracy particularly important during the later stages of bills.
Most flagship government measures, in particular those which have major spending implications, are introduced in the House of Commons, although some will be introduced in the House of Lords in order to spread the workload of each House over the session.
During parliamentary stages bill teams should inform their minister’s office as soon as they are advised of the timing of forthcoming stages to ensure the minister is on standby to attend Parliament when needed.
Overview of stages and minimum intervals between them
Introduction and First Reading: most bills are introduced by notice of presentation. The short title of the bill is then read out in the Chamber before the day’s main business, after questions and statements, on the appointed day and a minister nods. The bill is thereby read the first time. The bill will be published on the day of introduction (not notice of presentation). The minister (usually a whip) will then name the next sitting day (the whip will say “tomorrow”) as the day for Second Reading but this is usually entirely theoretical. The actual date will be announced by the Leader of the House in the weekly business statement. There are no proceedings in the Chamber for bills moving from the Lords to the Commons; First Reading is a formal entry into Votes and Proceedings only.
Second Reading: the minimal interval is normally two weekends following publication (in some circumstances it may be possible to adjust this) or after First Reading if coming from the Lords. The general principle of the bill is debated. If a bill fails to get a Second Reading, it can progress no further. The opposition may choose not to vote against Second Reading but retain major reservations about specific parts of the bill. The opposition may also table a reasoned amendment which seeks to decline to give the bill a Second Reading for reasons set out in the amendment. Immediately following Second Reading, the question on certain motions relating to proceedings on the bill can be put forthwith:
•Programme motion: usually includes provision for committal of a bill (normally to a public bill committee), determines the date by which the public bill committee must report and specifies the number of days set aside in the House for remaining stages.
The Lords Overview and Differences From Commons’ Stages
Parliamentary Copyright Key points The House of Lords is usually the more difficult House to take legislation through and is different from the Commons in many ways. The main differences are set out here, but bill teams should be in touch with the Whips’ Office before introduction to Parliament, even if the bill is introduced in the Commons, as there are things the team can do in the Commons to ease passage through the Lords. A good parliamentary handling strategy, agreed with the Government Whips’ Office, is particularly important for the House of Lords where the Government has no majority. Proceedings must be agreed through the usual channels (the whips of all parties). The Lords minister and Whip taking the bill through the House is less likely to be familiar with the subject matter of the bill and will require additional briefing. There is a substantial body of professional expertise among peers across a range of subjects. The Lords Delegated Powers and Regulatory Reform Committee will scrutinise every bill that contains delegated powers to consider the appropriateness and suitability of the delegated powers. The Lords Constitution Committee may also wish to scrutinise the bill. Bill teams should consult the Government Whips’ Office in the Lords if they think the Constitution Committee is likely to have an interest in the bill and ensure there is a plan for a timely response to any reports.
Differences in practice and procedure in the Lords
There are differences in the conduct of debates and procedure during the bill’s passage. It is not the Lord Speaker but the House as a whole which decides questions of order. Peers address their remarks to the whole House (“My Lords”) whereas in the Commons they address the Speaker or the chair of the committee. Every amendment tabled in the Lords is called in turn in the order of the ‘marshalled list’ and can be spoken to. There is no selection of amendments. An amendment that has been tabled need not be moved, although if none of the peers named as supporters of the amendment moves it, another member may do so. Amendments are not grouped for discussion by the chair as in the Commons, but informal groupings are negotiated through the Government Whips’ Office in the Lords. It is the bill team’s responsibility to propose groupings of amendments for each day. As in the Commons the bill team’s proposals for grouping may be discussed in advance with Parliamentary Counsel. Groupings are informal and not binding. It is open to any peer to speak to an amendment in its place in the marshalled list but the Government Whips’ Office tries to get agreement from all members concerned about proposed groupings. Any member can ask the Government Whips’ Office to de-group their amendment from those the bill team has suggested it be grouped with. In this case the Government Whips’ Office will tell the bill team. However, it is open to any peer to de-group their amendment in Committee or at other stages (although this is now formally discouraged). A member may speak to a whole group of amendments when the first amendment in the group is called. Only the first amendment in the group is called (in the technical sense that there is a question specifically on it before the House) and the rest are at this stage merely spoken to. Proceedings on later amendments in the group are often formal but further debate may take place and an amendment previously debated may be moved at its place in the bill. Unlike in the Commons where, for example, Report and Third Reading are often taken together, in the Lords not more than one stage of a bill can be taken during one sitting. This is a standing order of the House and is dispensed with for bills that are money and/or supply bills. The standing order may also be dispensed with for a particular bill that is urgently required, but the agreement of the usual channels and then the House is required to do so. Notice must be given on the order paper of a motion to dispense with this standing order, and it is possible for the motion to be opposed. Minimum intervals between Lords stages The different stages and minimum intervals which are usually observed are set out below. This is the conventional minimum timetable that could be expected for a bill of reasonable length and complexity. Shortening these intervals can only be agreed through the usual channels. Between First and Second Reading: normally two weekends Between Second Reading and Committee Stage: 14 calendar days Between Committee Stage and Report Stage: 14 calendar days Between Report Stage and Third Reading: three clear sitting days. ‘Sitting days’ excludes weekends and non-sitting Fridays. The minimum intervals are just minimums and bill teams should not expect a bill to progress to that timetable as often the intervals between stages will be longer. The timetable for a bill to complete all of its stages in the Lords will be dependent on a number of factors, including the exact nature of the bill, its size and complexity, availability of opposition spokespersons and, perhaps most importantly, the other bills in the programme. Other bills may be accorded a higher priority if they are politically very important or have a fixed deadline for Royal Assent. The whips or the PBL Secretariat will be able to advise on the relative position of your bill and they need to be made aware at the earliest possible moment if there are any pressing political, financial, operational or other reasons for bills to receive Royal Assent by a particular time, although there are never any guarantees. Lords sitting times Sitting times in the Lords are: The parliamentary day: House of Lords Monday and Tuesday: 2:30pm - 10pm or later (grand committee: 3:45pm - 7:45pm or up to one hour later by agreement) Wednesday: 3pm - 10pm or later (grand committee: 4:15pm - 8:15pm or up to one hour later by agreement) Thursday: 11am - 7pm or later (grand committee: 1pm - 5pm or up to one hour later by agreement) Friday: 10am - 3pm (on sitting Fridays) Oral Questions are held for 40 minutes at the start of business on Monday to Thursday. Debates will start after Oral Questions. Statements can also be taken at any time after Questions, with usual channels agreement. Constitution Committee The Constitution Committee is appointed by the House of Lords “to examine the constitutional implications of public bills coming before the House and keep under review the operation of the constitution and constitutional aspects of devolution.’’ In exercising the first of these functions, the committee scrutinises government bills before the House and any private members’ bills which are likely to reach the statute book. While there is no requirement for departments to produce a memorandum for the Constitution Committee in the same way as for the Delegated Powers and Regulatory Reform Committee, officials should be aware of the Constitution Committee’s role and consult the Government Whips’ Office in the Lords if they think the committee will take an interest in the bill. If a bill appears to raise issues of principle affecting a principal part of the constitution, the committee may request information from the minister responsible, or seek advice more widely. This correspondence is usually published on the committee’s website. More infrequently, the committee will publish a substantive report on a single bill. For example, bills will attract the attention of the committee if they deal with the relationship between the Executive, Judiciary and Parliament, the electoral system and referendums, the relationship between central and local government or with devolution. In other cases, for example where a bill gives new powers to public authorities or amends existing powers, or grants new powers to collect or share personal data, the committee will form a view on whether the bill makes a significant change to the system of government or the relations between the state and the individual. The Constitution Committee will consider whether procedures provided for in relation to appeals, review and redress of grievances is satisfactory and whether the bill makes a clear division between matters for which ministers have authority and matters for which authority is devolved to autonomous office-holders. If a bill proposes a new tribunal, the committee will expect the tribunal to be placed under the supervision of the Council on Tribunals. Where a bill stems from the UK’s international obligations, the committee will look at the manner in which Parliament is being asked to implement them. When the committee reports on a bill it will aim to do so before Lords Committee Stage.
Lords Introduction and First Reading
Key points Unlike the Commons a bill introduced in the Lords will not usually be published on the day of introduction but on the day after introduction. Press conferences on the bill should not be held until publication. For bills starting in the Lords, the same accompanying documentation as for the Commons (explanatory notes, impact assessment and delegated powers memorandum) must be published. If a bill comes from the Commons the explanatory notes, impact assessment and delegated powers memorandum should be revised to take into account any changes made in the Commons. Whichever House the bill starts in, on arrival in the Lords the delegated powers memorandum should be formally submitted to the Lords Delegated Powers and Regulatory Reform Committee. The Lords minister will also need to sign a new statement on compatibility with the European Convention on Human Rights on arrival in the Lords. Procedure for bills starting in the Commons After Third Reading in the Commons the House copy of the latest print of the bill, incorporating all amendments made in the Commons and signed by the Clerk of the House, is delivered to the House of Lords (without interrupting proceedings) with a message stating that the Commons have passed it and desire the agreement of the House of Lords. The message is read at a convenient moment during the sitting and a government whip moves the First Reading immediately afterwards. This is taken without debate. The bill is then printed and arrangements must be made for a Second Reading date as soon as possible. The parliamentary clerk will inform the bill team of the timetable. Bills can be received by the Lords Public Bill Office when the House is not sitting and, if it is helpful for the House, printed immediately. However bills must not be published until the day after introduction. The bill team must ensure that the Lords minister signs the relevant European Convention on Human Rights (ECHR) statement and inform Parliamentary Counsel. Procedure for bills starting in the Lords A bill starting in the Lords carries only the name of the minister or whip who has signed the ECHR statement. There is no provision for other backers to be listed. No formal notice of presentation is required but Parliamentary Counsel should alert the Lords Public Bill Office as far in advance as possible. On the day fixed for First Reading, the minister or whip introduces the bill (for which leave is not required) by reading the long title (which Parliamentary Counsel will have supplied to the Lords Public Bill Office) and moving “that the bill be now read a first time”. The bill is then ordered to be printed and a day is arranged for Second Reading. First Readings are not opposed. It is usual practice for a bill introduced in the Lords to be published on the following morning. No bills may be introduced before the text has been handed to the Lords Public Bill Office. Press conferences should not be held until the day after introduction, which is the earliest the bill can be published. Accompanying documentation The same accompanying documentation is required for Lords starters as for Commons starters: the explanatory notes should be published alongside the bill, and the impact assessment also needs to be published, as does the delegated powers memorandum if the bill contains such powers (which should be formally submitted to the Lords Delegated Powers and Regulatory Reform Committee). The delegated powers memorandum and the ECHR memorandum (if prepared separately to the explanatory notes) should also be copied to the Lords Public Bill Office and the impact assessment copied to the Commons Public Bill Office so they can publish the updated versions on the parliament website. If the bill has come from the Commons, the explanatory notes will need to be revised and republished to reflect any substantive amendments to the bill in the Commons. Even if there were no substantive changes, the format of the explanatory notes will require some minor changes in all cases. Any substantial revisions to the explanatory notes should be approved by the bill minister. The department is responsible for updating the notes and sending them to the Lords Public Bill Office. If an amendment has been made in the first House which the Government has said it will seek to overturn in the second House, the revised explanatory notes should give a neutral description of the amendment and its effect and say the Government seeks to overturn the amendment but should not argue its pros and cons. If a minister has said in the House that the Government intends to seek to overturn the amendment, the explanatory notes may give the Hansard reference for that statement but if no announcement has been made to that effect, the notes are not the place for it. As with introduction to the Commons, the explanatory notes will have to be cleared by the Lords Public Bill Office, and time should be allowed for this to happen (the revised notes should be shared at least two days before the bill is introduced / transfers to the Lords). The impact assessment, delegated powers memorandum and ECHR memorandum (if prepared separately to the explanatory notes) must also be revised to take account of any changes in the first House. The delegated powers memorandum should be formally submitted to the Lords Delegated Powers and Regulatory Reform Committee. The delegated powers memorandum and the ECHR memorandum should also be copied to the Lords Public Bill Office and the updated impact assessment copied to the Commons Public Bill Office so they can publish the updated versions on the parliament website. Please enquire of the PBL Secretariat for the relevant contact details. A list of relevant older papers similar to that required in the Commons should be provided where appropriate to the Lords Printed Paper Office when the bill arrives or starts in the Lords. Revised editions of Acts: Clear, readable and up to date copies of any heavily amended legislation which is affected by bills starting in the Lords and is not readily available elsewhere should be sent to the Librarian in each House and to the Clerk of Legislation in the Commons and the Clerk of Public Bills in the Lords before, or soon after, the bill receives a Second Reading. For Commons starters, these papers should already have been circulated to all of the above. Press briefing Not before the day after introduction, which is the earliest the bill may be published.
Consideration of Amendments and ‘ping Pong’
Key points Before a bill can become an act both Houses must reach agreement on a single text. Any amendments made by the second House need to be agreed by the House where the bill started. If there is no agreement, the bill enters what is known as ‘ping-pong’ with further exchanges between the Houses until agreement is reached. If no agreement is reached before the end of the session or there is a ‘double insistence’ (where one House disagrees twice and no alternatives are offered) the bill will fall. Double insistence can be avoided by offering further concessions. Bill teams must take great care that double insistence does not happen by accident because a suitable concession is not offered. Government amendments during ping-pong must be collectively agreed, as with amendments at earlier stages of the bill. Given the speed of ping-pong, bill teams and the minister should draw up and agree a ping-pong strategy well in advance. On return to the first House, departments must submit explanatory notes on any amendments made in the second House. The explanatory notes should also include detail of the financial effects (if any) of the amendments made in the second House. Explanatory notes are not required for any further exchanges of ping-pong after the bill has been returned to the first House. Overview Ping-pong only occurs where a bill has been amended in the second House. Ping-pong is more formally known as: Commons Consideration of Lords Amendments (CCLA) or Lords Consideration of Commons Amendments (LCCA), according to the House in which the amendments are being considered. Technically, CCLA is the first stage of ping-pong in the Commons, with subsequent stages formally called Commons Consideration of Lords Message. However, it is common practice for all Commons stages to be referred to as CCLA. During ping-pong only amendments that have been made in the second House are able to be debated. Clauses of the bill that have been agreed by both Houses are no longer under consideration. As ping-pong progresses, and as disagreements between the two Houses are resolved, the number of amendments being debated therefore reduces. If the first House agrees to all of the amendments made in the second House, the bill is ready for Royal Assent. If it does not, it returns the bill to the second House with reasons for disagreeing to the amendments and / or with further amendments. This can be followed by further exchanges of ping-pong between the Houses until: agreement is reached; the session is brought to an end without agreement having been reached; or ‘double insistence’ is reached and the bill is normally lost. Ping-pong can involve repeated consideration by both Houses and can become very complicated, given the complex procedural requirements, the time pressure at the end of the session and the political context. Only the most politically contentious of bills are likely to go into protracted ping-pong. If there is no agreement by the end of the session, the bill falls. If there is a ‘double insistence’, where one House insists on the exact wording of an amendment to which the other House has already disagreed and the other House refuses to alter its position (‘insists on its disagreement’) the bill falls. Ping-pong strategy If there have been any amendments in the Lords which need to be overturned in the Commons or any Commons amendments which are likely to be contentious in the Lords, then the bill team should consider the options and advise ministers on the best way forward well in advance of consideration and ping-pong stages. This should be done in consultation with the Government Whips’ Office in both Houses. Bill teams must ensure that everybody involved in the bill is absolutely clear about the procedure during ping-pong and understands that concessions may be necessary to avoid double insistence and losing the bill. Departments must not assume that, if Lords defeats are overturned in the Commons, the Lords will be prepared to accept this with no further attempt to amend the bill. Departments must therefore consider where they would be willing to make concessions in the event of deadlock at this late stage if absolutely pressed and to avoid double insistence. Just as at earlier stages, ministers must seek collective agreement through the PBL Committee and, where appropriate, a policy committee of Cabinet, for any proposals to table government amendments or accept non-government amendments during consideration and ping-pong. Given the rate at which the bill may ping-pong between the two Houses, it will not normally be possible to allow the full six working days for the PBL Committee (and the policy committee where necessary) to comment on the proposals but as much time as possible should be allowed, particularly if the bill has already reached this stage before the summer recess. Shortened write rounds must be agreed with the Secretariat before being launched. Bill teams should also discuss timing of clearance for ping-pong with the PBL Secretariat and the Whips’ Office. There are no fixed tabling deadlines for ping-pong, given the speed at which it can progress, but bill teams should table as close to government deadlines wherever possible. Generally, it is advisable to write in advance seeking collective agreement to make those concessions which they are almost certain they will need to make, and contingent clearance to make further concessions only if absolutely pressed during consideration or ping-pong. This way ministers can consider and agree with their colleagues what they are prepared to concede and under what circumstances, at a slightly more leisurely pace than is possible during ping-pong when decisions will need to be taken extremely quickly. On return to the first House, departments must submit revised explanatory notes on any amendments made in the second House; it is not necessary to prepare a complete set of explanatory notes for the whole bill. Explanatory notes do not need to be revised on return to the second House or at any further stage of ping-pong. The next time they will need to be revised is on Royal Assent. The details of the ping-pong procedure are set out below; the key message for bill teams to note is that ministers will need to be prepared to offer concessions to avoid losing the bill through double insistence. This may include policies that they have defended very strongly throughout previous parliamentary stages. Commons Consideration of Lords Amendments Second House amendments are published in a distinct list by reference to the print of the bill as it left the first House. On this list, the amendments will be marshalled and numbered according to the order that they appear in the Bill; the numbering they had on amendment papers at earlier stages in the second House is not continued with. At each stage of ping-pong, the list will be updated to reflect the response of the House that has just considered the bill; any amendments that are agreed to or otherwise resolved will be removed. Lords amendments may be considered by the Commons immediately if there is an urgent need for Royal Assent or if the amendments are so minor and technical that they can be considered very quickly. The bill could then pass almost immediately. Usually, however, a later day is fixed for consideration. Bill teams must prepare notes on the Lords amendments for their minister and a more detailed brief for any amendments which may give rise to debate in the Commons. Where amendments involve financial matters that are not covered by a previous money or ways and means resolution for the bill, the amendments will automatically be treated as disagreed to on grounds of privilege unless a further resolution covering the amendments is agreed before the amendments are considered. Financial privilege is determined by the Commons Speaker and the government does not have any input into this process. The Government may accept an amendment that invokes financial privilege, however, where an amendment is disagreed to which engages privilege no other alternative ‘reason’ can be given when sent back to the House of Lords. The Commons have the following options in considering Lords amendments: agree; disagree (with a reason given for each disagreement); amend a Lords amendment; disagree to a Lords amendment and propose an amendment or amendments in lieu, or amendments to the words so restored to the bill (if the Lords amendment left words out); or agree and propose a new amendment or amendments consequential on a Lords amendment. It is for the Commons member in charge (i.e. the bill minister, or in the case of private members’ bills, the member) to propose a grouping for Lords amendments. This needs to be agreed with the Whips’ Office as grouping of amendments will relate to the programme motion required to manage Commons consideration of Lords amendments. Parliamentary Counsel will forward the grouping to the Public Bill Office, which advises the Speaker on: the selection of propositions; amendments to the Lords amendments; amendments in lieu of those Lords amendments; and consequential amendments to the bill. Debate is usually initiated by a minister moving a motion to agree or disagree with the lead Lords amendment in a particular group. Exceptionally, if the first Lords amendment in a group has an amendment tabled to it, the first thing to be moved is that amendment. Parliamentary Counsel will draft the motion. Amendments in the Commons can also be ‘packaged’. This is where a number of related amendments are grouped together for the purposes of both debate and decision. Grouped amendments are debated together, but their fate is decided separately. Parliamentary Counsel will ensure that the motion for debate makes clear to the other House when amendments are ‘packaged’ and what the links are between different elements of a ‘package’. This normally happens only in the later stages of ping- pong. No notice is required of a motion to agree with the Lords but notice is required for amendments to the Lords amendments, amendments in lieu of those Lords amendments and consequential amendments to the bill and notice is expected of a motion to disagree with the Lords. This is analogous with clause stand part debates in Committee, when the Government gives notice if it intends to leave out particular clauses but not if it intends to leave them in the bill. If the Commons disagree with a Lords amendment and do not offer an alternative, a committee (with a government majority and including the bill minister) is appointed to draw up ‘reasons for disagreement’, immediately after all the Lords amendments have been considered. The Whips arrange that the names of the committee be notified in advance to the Public Bill Office, which arranges for the appropriate motion to be available to be moved by a whip. Parliamentary Counsel will draft statements of ‘reasons for disagreement’. The appointed committee, together with Parliamentary Counsel and the clerk, withdraw immediately to the ‘Reasons Room’ off the lobby at the back of the Speaker’s chair. When the bill returns to the second House this is called ‘Lords Consideration of Commons Reasons (or Message)’ or vice versa. The Lords have the following options in considering the Commons disagreement with Lords amendments: not insist on their amendment; not insist on their amendment but propose a different amendment in lieu; insist on their amendment; or make further amendments in regard to any of the amendments agreed by the Commons. The bill formally moves between the two Houses via a ‘message’ that indicates the response of the House that has just considered the bill. Motions on Lords/Commons amendments cannot be tabled until the message arrives in the receiving House. If the content of the message is unexpected, bill teams must very quickly advise their minister on the options open to them, bearing in mind the need to avoid double insistence. Once a course of action is agreed, bill teams must prepare any notes or briefing the minister or peer in charge will need for the next stage. If it is known in advance that a ‘reason for disagreement’ will be required, Parliamentary Counsel will prepare a draft for the minister to approve. These ‘reasons’ are as brief as possible and do not seek to argue the case in detail; in recent years they have tended to indicate the grounds for disagreement in a succinct way. 37.28 The process continues until such time as agreement is reached or it becomes clear no agreement is possible, or there is ‘double insistence’. ‘Insist’ in this context is a technical term with a precise meaning. If one House insists on an amendment to which the other has already disagreed, and the other House then insists on its previous disagreement (i.e. disagrees a second time), the first House has no further alternatives to consider and can proceed no further, so the bill is lost. 37.29 To avoid this, where the Lords insist on disagreement the Government will usually offer an alternative, in other words an amendment to the text in dispute. Even the smallest amendment in this situation will prevent double insistence as it will give the Lords something further to debate and to send back to the Commons one more time if it is still not acceptable. A last resort at a later stage of ping-pong is for the minister to table a motion seeking to bring together different matters of contention for consideration as a ‘package’, for example, a motion along the lines of “that this House insists on its disagreement to amendments 1, 2 and 3 but proposes the following amendment in lieu of amendment 1”. This may be a means to prevent a double insistence but only if the House accepts the motion. Lords Consideration of Commons Amendments Lords Consideration of Commons Amendments works in much the same way. All of the above could be read substituting “Commons” for “Lords” and vice versa, with the following differences: It is open to the Lords to ‘unpackage’ amendments for the purposes of debate. In the Lords, where there are large numbers of Commons amendments it is often sensible to move them en bloc but this can only be done if the amendments are consecutive and with the leave of the House (i.e. in the absence of objection when leave is asked for). The Lords no longer appoint reasons committees. When the Lords disagree with a Commons proposition without proposing an alternative, a standard reason (‘because the Lords wish the Commons to consider the matter again’) is given. Parliament Acts 1911 and 1949 Where no agreement is reached between the two Houses, it is possible for a bill that started in the Commons to be enacted later under the Parliament Acts of 1911 and 1949, which make provision for presenting a bill for Royal Assent without the concurrence of the House of Lords. The Parliament Act can only be used for bills first introduced in the Commons. In the case of money bills within the terms of section 1 of the 1911 Act, the bill may be presented for Royal Assent a month after it has been sent to the Lords, disregarding either the failure of the Lords to pass such a bill or any amendments they propose. For this reason, such bills are not usually amended or subject to extended proceedings in the Lords. The definition of a ‘money bill’ for these purposes is narrow and is set out in section 1(2) of the 1911 Act. Parliamentary Counsel will be able to advise on its application in specific cases. No bill has ever been passed under section 1 of the 1911 Act. In the case of bills other than money bills, this involves reintroducing the bill in the Commons in the next session and allowing a year to pass between Commons Second Reading in the first of the two sessions and Commons Third Reading in the second of the two sessions. The bill must be sent to the Lords in the second of the two sessions in the same form as sent up in the first of the two sessions, except that it may contain alterations necessary owing to the elapse of time and may include any amendments made in the Lords in the first session. The Commons may ‘suggest’ further amendments for the Lords’ consideration. If the bill is again rejected by the Lords (or passed with amendments unacceptable to the Commons) it is automatically presented for Royal Assent notwithstanding the Lords’ disagreement, unless the Commons directs to the contrary. The provision only applies if, in each session, the bill was sent to the Lords at least a month before the end of the session. The procedure remains a rarity and a last resort. The procedures which apply, particularly in the case of suggested amendments, are somewhat uncertain, and advice should be sought from Parliamentary Counsel. Departments should also consider the wider handling implications. The Parliament Act procedures can be used only in the session immediately following that in which the bill fell; a bill reintroduced in a subsequent session must follow the normal process.
Royal Assent and Commencement
Key points Royal Assent is announced throughout the session by notification from the Speaker of each House or at prorogation by commissioners. The proof prints of the Act will need to be checked carefully by Parliamentary Counsel and the bill team. Where the text of an Act needs to be made available urgently, the bill team should notify Parliamentary Counsel and Legislation Services, who will ensure that the Lords Public Bill Office gives priority to provision of the final approved text of the act and that this is made available on www.legislation.gov.uk as soon as it is ready. The bill team should send the final explanatory notes (updated to reflect any substantive changes to the bill through amendment at Consideration or ping-pong) to Legislation Services for formatting and publishing alongside the text of the act or as soon as possible thereafter. Unless the Act states otherwise it commences (comes into operation) on the date of Royal Assent. Royal Assent When a bill has been passed by both Houses and any amendments have been agreed to, it is ready to receive Royal Assent. For bills which complete their parliamentary passage right at the end of the session, Royal Assent will be communicated at prorogation (the end of the session) by the commissioners who are commissioned to prorogue Parliament and declare Royal Assent for those bills on behalf of The King. For bills which complete their parliamentary passage earlier on in the session, Royal Assent is notified to each House by its Speaker. The two Houses are normally notified on the same day but not necessarily at the same time. Royal Assent is effective when the second of the two Houses is notified. Royal Assent by notification is given at intervals throughout the session but The King should not be asked to give Royal Assent too frequently so a bill that has completed its passage may have to wait until a suitable date (for example, when other bills have also completed passage) before receiving Royal Assent. It is possible to make a request through the Government Whips’ åOffice in the Lords for Royal Assent to be notified on a particular date if the occasion is important enough and the timing is reasonable but no guarantees can be given that this will be possible. This is different from requests for Royal Assent before a particular deadline. These latter requests must be made when bidding for a slot in the legislative programme, and must be agreed to by the PBL Committee. Such requests should only be made where absolutely necessary, and should be made as early as possible to allow Business Managers to plan business accordingly if the request is sufficiently pressing. When a bill receives Royal Assent, it becomes an Act. Proof prints of Acts The Lords Public Bill Office is responsible for the correctness of prints of Acts and will send the proof prints of the Act to Parliamentary Counsel. Proofs should be carefully checked by Parliamentary Counsel and the bill team. The Public Bill Office should be informed through Parliamentary Counsel at an early stage if a large number of proofs are required. Corrections to these proofs should be channelled through Parliamentary Counsel. Once any corrections have been made, the Act is printed and published, with the date of Royal Assent included after the long title. The act will be published on the www.legislation.gov.uk website in PDF format immediately after the approved text has been received from the Lords Public Bill Office and in HTML format at the same time as the printed copy is made available. If any provisions of the bill are to take practical effect immediately or soon after Royal Assent or if there are other reasons why it should be given priority over other bills for early printing / publication on enactment, the department should let Parliamentary Counsel and Legislation Services know as early as possible. Where appropriate the Public Bill Office will prioritise the proof prints and Legislation Services will arrange to expedite printing on receipt of the approved text. Where an act cannot be published before it takes practical effect, the department should seek to disseminate the final text of the relevant sections to those most interested, or their representatives. Finalising the explanatory notes On completion of parliamentary passage, the explanatory notes (including any transposition notes) must be updated to reflect any substantive changes to the bill at Consideration or ping-pong. Irrespective of any amendments, certain other changes must be made as well see Chapter 10 for more information. It is the bill team’s responsibility to finalise the explanatory notes and then send them to The National Archives (contact details at Appendix B) for formatting and publishing alongside the text of the act, or as soon as possible thereafter. Rather than publishing the final act and explanatory notes on their own website, departments should provide a link to the documents on the www.legislation.gov.uk website as these are the official documents that will be updated with any necessary changes in future. Commencement of Acts Unless the Act states otherwise, it commences (comes into operation) on the date of Royal Assent. Details on commencement provisions and consent for early commencement can be found earlier in this guide. Where the provisions have an impact on business and civil society organisations, they should be commenced on one of the two annual ‘common commencement dates’ (6 April and 1 October). For more information speak to your departmental Better Regulation Unit. Officials responsible for the implementation of different parts of an Act will need to work together to ensure that, where provisions are to be brought into operation by commencement order, the number of orders made and commencement dates specified should be kept to a minimum. For example, if specific sections of an Act are to be commenced by Welsh Government ministers, then the responsible department should work closely with Welsh Government counterparts to coordinate commencement in Wales with commencement in England.
Further Action After Royal Assent
Key points Royal Assent is not the end of a bill team’s work. There is much to do post-Royal Assent, so it is important to retain sufficient resource on the bill team, and to make preparations for post-Royal Assent tasks at an earlier stage. Secondary legislation may need to be prepared and laid before Parliament. The bill team should work with their parliamentary teams to input into the central secondary legislation triage process. Where new legislation has a significant impact on business or civil society, the Government has committed to publishing guidance 12 weeks before regulations come into effect, and, where appropriate and reasonable, publishing this guidance in draft during the bill’s passage. The bill team will need to review and update the impact assessment, reflecting any amendments that were made during the passage of the bill. Other forms of guidance and publicity may also be needed. The bill team will need to make provisions for the filing of bill papers after Royal Assent by keeping papers in order during the bill’s passage. Overview Resource pressures within departments often lead to bill teams being disbanded rapidly after Royal Assent. This is unfortunate, as much work remains to be done and is often better done by bill team members who are familiar with the bill than by policy colleagues who have not been so closely involved with the bill (and for whom this work may be of lesser priority). Secondary legislation Any statutory instruments will be drafted by the legal adviser on instructions given by the policy team and will be subject to such parliamentary procedures as have been provided for in the Act. Frequently, draft statutory instruments will have been published during the bill’s passage through Parliament. Guidance on preparing secondary legislation can be found in the Statutory Instrument Practice guidance , copies of which should be held by departmental parliamentary branches or legal advisers. It is one of the tasks of the Office of the Parliamentary Counsel to vet any subordinate legislation which amends primary legislation. It may also be possible to make arrangements with the Office of the Parliamentary Counsel concerning other subordinate legislation to be made under an act, for instance where there are particularly complicated transitional provisions. Initial contact on such issues should be made with the team leader within the Office of the Parliamentary Counsel responsible for the department. Guidance Where new legislation has a significant impact on business or the third sector, the Government has committed to publishing guidance 12 weeks before regulations come into effect. Departments should strive to meet this commitment wherever possible, as absence of timely and good quality guidance may result in extra costs for business and civil society, for example, seeking professional advice about what to do in order to comply with the new law. Production of guidance should be factored into the bill team’s delivery plan. Guidance should not simply repeat the material already available in the explanatory notes although some material from the explanatory notes may be relevant. The aim of guidance is to give external organisations a clear idea of how the new law will affect them and what they need to do in order to comply with it. Unlike the explanatory notes, it does not need to cover the entire Act, but only those parts which are likely to have an impact on external organisations. For further advice on preparing guidance, contact your departmental Better Regulation Unit. Where the new legislation is likely to have a particularly significant impact on external organisations, it is good practice, where appropriate and reasonable, to publish guidance in draft during the bill’s passage. Draft guidance will help business, the voluntary, community and social enterprise sector and MPs and peers to better understand the impact on business and civil society, thus assisting proper parliamentary scrutiny. It will also give business and civil society more time to make any adjustments necessary for when the Act comes into force. However, before publishing any draft guidance, departments should carefully consider the degree to which the draft guidance is subject to change as a result of parliamentary scrutiny or any other means. To avoid issuing conflicting or confusing messages about what is required to comply with the new legislation, draft guidance should not be published until there is a reasonable degree of certainty about the final form of the bill. Publication of draft or final implementation guidance will not normally require clearance by the PBL Committee, but may require clearance through the relevant policy Cabinet committee. The PBL Secretariat can advise whether collective agreement is needed. Even if formal clearance is not required, bill teams should ensure that they consult with other government departments as appropriate. Where guidance has been published in draft it should normally be reissued after Royal Assent with any revisions necessary to reflect amendments made to the bill during its passage. However, where the bill has not been significantly amended it may be sufficient to remind interested parties of the existence of the material provided earlier. Guidance may include notes for practicing solicitors, accountants and others who advise the public. All guidance should be available in a range of formats that are accessible, as appropriate and reasonable, e.g. departmental websites (as well as local authority websites if appropriate), leaflets etc. To ensure high levels of market penetration, guidance should also be published on or linked to the HMRC website and any wider publicity (see below) should draw attention to the guidance. Guidance or instructions may also need to be issued within government itself, for example to ensure that other interested departments receive up-to-date copies of any transposition notes. Publicity Press or information officers will normally look after publicity about the passing of the bill but they will need the advice of the bill team about press notices. Some Acts may result in a flood of enquiries to the press office in which case they will need to have good working arrangements with the bill team. If the minister is holding a press conference on the new Act, a brief will be needed or perhaps notes on the main questions likely to be asked, and someone from the bill team should attend. Press advertisements as well as a press notice may be required. Leaflets It may be appropriate to publish a leaflet to explain the Act to members of the public whose rights or duties may be extended or diminished. All leaflets should be checked by the legal adviser for accuracy, but the design and language of the leaflet is often best undertaken by specialist editorial / design staff. Circulars Statutory and other bodies may be directly affected by the Act and circulars may be needed explaining it and drawing their attention to any action they should take or prepare to take as a result. The aim should be to send out such circulars by the time the Act becomes effective and particularly by an appointed day. Forms Forms may have to be designed for completion either on behalf of statutory or other bodies or by members of the public. The difficulty of designing them so that they cover all necessary points without becoming unintelligible or impossibly cumbersome is notorious and it will be advisable to involve design specialists at an early stage. Guidance should be sought from experts within departments or from Government Communications in the Cabinet Office. All government forms should be pre-tested with a representative sample of users before being issued and all forms to be sent to businesses should be cleared with the ‘departmental forms gatekeeper’. Registration and custody of bill papers Every department will have its own system for filing bill papers. Their importance will be obvious in preparing later legislation on the same subject, in the administration of the Act and during post-legislative scrutiny: for all Acts gaining Royal Assent since 2005, the department responsible for implementing the legislation must, three to five years after Royal Assent, submit a memorandum to the relevant select committee setting out how the Act has worked out in practice and whether its objectives have been achieved. This will allow the select committee to decide whether to carry out fuller post-legislative scrutiny. The objectives will be as set out in the explanatory notes, impact assessment and any ministerial statements made to Parliament during passage of the bill. Further information on post-legislative scrutiny is set out in Chapter 40. The difficulty of keeping papers in order during the critical phases of the legislative process is obvious, and sometimes impossible, but busy periods are usually followed by relatively easier ones when a member of the bill team should be responsible for gathering together and filing the last batch of important papers. A useful working rule is that all incoming original documents should be directed to one focal point in the bill team. They should, in particular, not remain with the legal adviser. Bill papers start at the moment when legislative proposals are endorsed by the minister and finish with the record of Royal Assent. Conducting a lessons learnt exercise Because bills are finite projects, the officials and lawyers working on a bill often move onto new projects but it is important that the department capitalises on the experience of officials, lawyers and ministers so future bill teams can learn lessons and avoid previous mistakes. After taking forward a bill, departments should conduct a lessons learnt exercise to evaluate how the department handled the legislation, in particular: to identify what worked well, where processes could have worked better, and examples of best practice. This evaluation should be produced for dissemination within the department so that future bill teams can build upon the experiences of legislation previously taken forward by the department. Ideally the evaluation should be carried out as soon as possible after Royal Assent, before members of the bill team move onto new posts. The PBL Secretariat and the Office of Parliamentary Counsel conduct a regular lessons learnt exercise looking at themes across the legislative programme. Departments may wish to follow the model used for this exercise, where feedback is sought from the bill ministers, the bill team, officials from the Business Managers’ offices, departmental lawyers and Parliamentary Counsel. This is then compiled into a short report identifying key lessons for each stage of the process; from instructions to Royal Assent. The PBL Secretariat can provide advice on how to conduct a lessons learnt exercise.
Hybrid Bills
Key points A hybrid bill is a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies in the same category or class. The changes to the law proposed by a hybrid bill affect the general public but also have a significant impact on the private interests of specific individuals or bodies. Hybrid bills therefore have to go through some of the stages of a private bill, including select committee hearing of petitions against the bill after Second Reading. Generally the procedure is longer and more expensive (parliamentary agents have to be engaged by the department), so hybrid bills are best avoided wherever possible. Departments should indicate the possible hybridity of a bill when making a bid for a slot in the programme. What is a hybrid bill? A public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies in the same category or class is called a hybrid bill and is subject to a special procedure which includes some of the steps applicable to private bills. This means that it generally takes far longer to complete its parliamentary process than an ordinary public bill, and the procedure is more complex. Such bills are best avoided, if at all possible. Recent examples of Acts resulting from hybrid bills are the Channel Tunnel Rail Link Act 1996 (first introduced in November 1994 and received Royal Assent in December 1996), the Crossrail Act 2008 (first introduced in February 2005 and received Royal Assent in January 2008), the High Speed Rail (London - West Midlands) Act 2017 (first introduced in November 2013 and received Royal Assent in February 2017) and the High Speed Rail (West Midlands - Crewe) Act 2021 (first introduced in July 2017 and received Royal Assent in February 2021). “Private interest” is wide enough to cover not only the interests of a purely private person or body (such as an individual or company) but also, for example, the interest a local authority has in the administration of its area. A bill may also be regarded as hybrid if it affects a named geographical area outside London (London is often viewed as a special case) and also affects private interests. A bill that singles out a particular person or body for favourable treatment is not normally regarded as hybrid so long as others in the same category or class are not thereby prejudiced. These are, however, only rough guides to hybridity. If there is a possibility of a bill being regarded as hybrid, it is essential for the matter to be checked with Parliamentary Counsel, who will consult the authorities of both Houses. The ultimate decision on whether a bill is hybrid lies with the House authorities. The fact that a provision of a bill makes, or may make, the bill hybrid should be indicated when the bill is put forward for a place in the legislative programme. The degree and nature of the opposition which such a bill might be expected to arouse from the interests affected would be an important consideration in most cases. On both points it will be for the bill team to advise the minister on this as accurately as possible. Consultation should assist in this and, in some cases, help avoid or reduce opposition. It is obviously desirable to determine whether a bill will be hybrid as early as possible, though the House authorities may not be able to form a clear view until the provisions in question have been drafted. If it becomes clear during drafting that a particular provision that is not critical to the bill would make it hybrid, and cannot be redrafted so as to avoid hybridity, the presumption should be to remove the provision from the bill. Given the procedural complications and the extra time a hybrid bill will require, it is absolutely essential that any hybrid bill is introduced right at the start of the session. However a hybrid bill may be carried over from one session to the next, like a private bill, and even from one Parliament to the next (as with the Crossrail Bill and the High Speed Rail (West Midlands - Crewe) Bill). Decision on hybridity Parliament’s formal decisions on hybrid bills are taken in several stages. These are set out below. The Public Bill Office of the House in which the bill is introduced may consider that, prima facie, some of the standing orders relating to private business may be applicable; if so the House will refer the bill to the Examiners of Petitions for Private Bills (officers of the two Houses). It is the Examiners who decide whether these standing orders do apply (in other words, to decide whether the bill is in fact hybrid). The Examiners may decide that: the standing orders relating to private business do not apply to the bill, in which case the bill proceeds as an ordinary public bill; or the standing orders do apply to the bill, in which case the bill proceeds as a hybrid bill. 41.10 The next step depends on whether the Examiners decide that the standing orders relating to private business have been complied with. The Examiners may decide that: the standing orders have not been complied with, in which case the bill is referred to the Standing Orders Committee for a decision whether the standing orders not complied with should be dispensed with; or the standing orders have been complied with, in which case the bill proceeds to Second Reading and, after that, the bill is committed to a select committee as a hybrid bill. Where a bill is referred to a Standing Orders Committee the Committee may decide that: the standing orders should be dispensed with, in which case the bill proceeds to Second Reading and, after that, the bill is committed to a select committee as a hybrid bill; or the standing orders should not be dispensed with, in which case no further proceedings on the bill can take place. The steps to be taken in order to comply with the standing orders will vary from bill to bill but usually there will be a need for advertisements in the press, serving of notices on affected persons and depositing of plans and of copies of the bill. All this can take weeks to complete. These steps, and proceedings before the Examiners and in select committee, are dealt with on behalf of the department by a parliamentary agent (a member of a firm of specialist private solicitors). The legal adviser will consult the parliamentary agent at an early stage about the steps to be taken and they will draw up a timetable for taking them. The department is usually represented before the select committee by an independent counsel, who is instructed by the parliamentary agent. This will inevitably increase the costs associated with the bill. After Second Reading Where the standing orders relating to private business apply and have been complied with (or dispensed with) a hybrid bill is referred after Second Reading to a select committee (or, rarely, a joint committee) appointed for this purpose. In the House of Commons, Parliamentary Counsel will draft a committal motion, to be taken after Second Reading, which will among other things set the period within which petitions must be presented. In the House of Lords the petitioning period (usually ten days) is set by a formal entry in the minutes made by the authorities of the House. The select committee hears petitioners against the bill if they are directly or personally involved and if the petitions have been duly lodged. The department promoting the bill has a right to be heard against the petitioners. It is not necessary to prove the expediency of the bill as a whole in select committee, since this has been decided on Second Reading. If no petitions are presented against the bill (or if all submitted are withdrawn) the select committee will be discharged and the bill recommitted. After hearing the petitioners in a judicial manner, the select committee will go through the bill clause by clause and may make amendments. Copies of the minutes of evidence may be obtained. Parliamentary Counsel may not be directly involved throughout this stage unless amendments need to be drafted but they should be made aware of anything likely to affect the bill at a later stage. Remaining stages and second House On report by the select committee, the bill is formally recommitted to a committee of the whole House, although in the Commons it is usual for the whips then to table a motion for the bill to be considered by a public bill committee instead. Thereafter the bill proceeds as an ordinary public bill. The procedure on hybrid bills is basically the same in both Houses, so that, unless a joint committee has been appointed to hear the petitioners, there may be a select Committee Stage in both Houses. It is not, however, generally necessary to do anything further to comply with the standing orders in the second House. The government parliamentary agent will simply indicate to the examiners after the bill arrives in the second House that nothing further needs to be done. Amendments to hybrid bills If a hybrid bill is amended in either House the amendments may have the effect of requiring further compliance with the standing orders or a bill may become prima facie hybrid as a result of the amendment. Amendments which have this effect are said to hybridise or re-hybridise the bill and the Public Bill Office may refer the bill to the Examiners.. Parliamentary Counsel should be consulted well in advance if it is proposed to amend a hybrid bill. They will, if necessary, discuss with the authorities of both Houses whether making them would re-hybridise the bill and, if it would, what implications this has for the further progress of the bill. The need for further compliance with (or dispensation from) the standing orders inevitably costs time. It is therefore extremely important that all the matters to be contained in a hybrid bill are, so far as possible, included before introduction. Carry over of hybrid bills The Commons standing order providing for carry over of bills does not apply to a hybrid bill. To carry over a hybrid bill would require the agreement of both Houses. Hybrid statutory instruments In the House of Lords (but not in the House of Commons) there is a standing order applying special rules to any subordinate instrument which is subject to affirmative procedure and contains provision that would, if contained in a bill, have made the bill hybrid. Bills giving power to make affirmative instruments have sometimes exempted them from the standing order but any provision of that nature could be contentious.
Consolidation Bills, Law Commission Bills, Statute Law Repeal and Revision Bills
Key points In areas of law where there have been a significant number of acts over a period of time, the Law Commission may recommend a consolidation bill, to bring all of the relevant provisions into a single act. These bills may either be purely to consolidate existing legislation or they may also make some minor amendments such as tidying up past errors and ambiguities, though without making any changes of substance. Similarly, the Law Commission may propose statute law revision bills and statute law repeal bills. These bills must be approved by the PBL Committee before introduction but are then subject to special procedures in Parliament, involving scrutiny by a joint committee of both Houses and other stages being taken formally. The Law Commission may also draft bills which go further than clarification or consolidation which, if agreed to by the Government, are introduced following either a successful bid for a legislative slot by the relevant department and approval by the PBL Committee or alternatively through a special accelerated procedure. What is a consolidation bill? In many fields of legislation a series of acts will build up over time, each amending, adding to, or subtracting from the previous ones. The point is reached when it is very much in the public interest that this series should be consolidated into a single act (of course this in no way prevents the consolidated act from itself being amended by further acts). Recommendations for consolidation are the responsibility of the Law Commission and the Scottish Law Commission. The minister in charge is the Secretary of State for Justice. Consolidation bills are always introduced in the House of Lords; the Parliamentary Under-Secretary of State in the Ministry of Justice usually takes them through the Commons. Included in the category of ‘consolidation bills’ are: pure consolidation (this kind of bill does not amend the law); consolidation with Law Commission amendments (i.e. to consolidate and make amendments giving effect to recommendations of the Law Commission or the Scottish Law Commission or joint recommendations from them both); consolidation with corrections and improvements under the Consolidation of Enactments (Procedure) Act 1949 (largely superseded by the Law Commission amendment procedure but does still have its uses, especially if necessary to make amendments that extend to Northern Ireland); Statute law revision bills; and Statute law repeal bills. Bills that include some consolidation or simplification as part of a larger amending bill (i.e. where the amendments stem from government and represent a significant change in policy, rather than amendments recommended by the Law Commission which are likely to be smaller in nature and probably fairly technical) are not considered to be consolidation bills and must follow the normal procedures. The purpose of Law Commission recommendations is to produce a satisfactory consolidation of the law in question. This may include tidying up errors of the past, removing ambiguities and generally introducing common sense on points where the form of drafting in the past appeared to lead to a result which departed from common sense. It is not to introduce a substantial change in the law or one that might be controversial, indeed nothing that Parliament as a whole would wish to reserve for its own consideration. The Law Commission will work in co-operation with the relevant department. The minister and policy divisions are not likely to have to devote much time to this work; legal advisers may have to devote a good deal more. It may however be necessary for a policy division to express a view on matters connected with a consolidation. If, for example, an amending bill dealing with the same subject matter is planned, a decision will be needed on whether the consolidation should await the passage of the amending bill or proceed before the bill is introduced. The attraction of consolidating first is that there will then only be one act on which the amending bill needs to operate, so that the amending bill can be a good deal simpler. Procedural differences applying to consolidation bills The responsible department (usually the Ministry of Justice) does not need to bid for a legislative slot for a consolidation bill as with other government bills, but must make the bill available to all departments before introduction. In other words, it must ensure that other departments are given an opportunity to suggest amendments to the bill. A consolidation bill must be approved by the PBL Committee before introduction, normally through correspondence. The Ministry of Justice will play an oversight role in relation to the programme of consolidation bills introduced each session, and together with the Government Whips’ Office in the Lords, will advise departments on the appropriate timetable. Explanatory notes are not normally provided for consolidation bills. The documents to be presented to the joint committee are the drafter’s notes explaining issues arising from the consolidation process, the table of origins (the source of each of the provisions in the consolidation) and the table of destinations (setting out where the existing statutory material appears in the consolidation). Together the two tables show that the contents of the consolidation bill represent only the contents of the acts being consolidated. On Royal Assent the tables of origins and destinations should be sent to Legislation Services for publishing alongside the act, as would otherwise be the case with finalising the explanatory notes. The following special procedures apply to consolidation bills: they are referred to and examined by a joint committee of both Houses, the members being nominated for the life of each Parliament. Timetabling will need to take into account the committee’s workload and timetable of meetings; in the Lords Second Reading is debated and amendments can be tabled on recommitment, report and Third Reading. If it is necessary for a Government amendment in order for the Bill to account for other legislation passed whilst the Bill is making process, the Government should consult the Chairman of the Joint Committee on Consolidation Bills (JCCB). There is no formal minimum interval between the JCCB and Committee Stage on recommitment, but the committee needs time to publish its report. Other intervals should be respected. in the Commons, Second Reading is taken forthwith, the Committee Stage may be dispensed with altogether on a government motion and Third Reading is taken forthwith. When a consolidation bill is passed, bodies especially concerned in that field of law, and the public so far as they may be affected, need to be informed that the law is now contained in a new statute and that it has not (as they might assume) been substantially changed. See further action after Royal Assent for more detail about the type of explanatory material which may be needed, though this will probably be on a reduced scale from what is described there for amending Acts. Law Commission bills that would represent a more significant change in policy The Law Commission may also, as part of its rolling programme of work, recommend changes to the law which go beyond clarification or consolidation, and prepare a draft bill. If the Government wishes to accept these recommendations and take forward legislation, the responsible department must bid for a legislative slot, collectively agree the policy proposals and clear the bill through the PBL Committee before introduction in the normal way. However, if the proposals are non-controversial, once introduced to Parliament such a bill may be able to follow a special, accelerated procedure. The accelerated procedure for substantial Law Commission bills of this kind is available only for bills that are concerned solely with implementing Law Commission recommendations, not for bills which include Law Commission recommendations among other things. The Government would need to agree with the usual channels that the bill was a suitable candidate for the accelerated procedure. If the proposals are at all controversial, normal parliamentary procedures must be followed. Bills using the accelerated procedure must be introduced in the Lords. The stages envisaged for the Lords are as follows: First Reading; Second Reading Committee (functioning like a grand committee, with no provision for divisions) followed by motion for Second Reading being taken formally; special public bill committee; remaining stages in the usual way. Commons Standing Order No. 59 provides that any public bill, the main purpose of which is to give effect to a Law Commission report is automatically referred to a Second Reading Committee unless the House orders otherwise. For further advice, contact the PBL Secretariat, the Cabinet Office Parliamentary Adviser or the Senior Parliamentary Counsel at the Law Commission.
Private Members’ Bills: Introduction
Key points A private member’s bill is a bill promoted by a member of either House of any party who is not a minister. It is not a private bill which is a bill promoted by a body outside Parliament. The member may have chosen to introduce a bill on a subject that interests them or may have been given ideas from a non-governmental organisation or pressure group. The bill may also be a handout bill taking forward a proposal for the Government. Whatever its source, if not a handout bill, the lead minister will need to write proposing the Government’s position in good time for Second Reading. The ministers most directly concerned with the subject will also usually need to take part in the debates on the bill’s various stages (including Committee Stage) to explain the Government’s position. When a department is deciding whether to support a private member’s bill, the full policy and legislative implications must be considered, including the impact on the devolved administrations, compatibility with the European Convention of Human Rights, regulatory and other impacts and spending implications. Government response There are three positions that can be taken: Support: this will need collective agreement from PBL and the appropriate policy sub-committee of Cabinet. Although supporting a bill will not usually justify the creation of a full bill team, the lead policy division will need to provide ministers with the same type of support as for a government bill. Remain neutral: this will also need collective agreement from the PBL Committee and the appropriate policy committee. The Government remains neutral only in very exceptional circumstances, for example if the bill concerns an issue of conscience such as abortion or euthanasia, or matters more properly for Parliament, rather than the Government, to decide. Oppose: there is no collective agreement needed to take this position, although the PBL Committee should be informed by way of a ‘for information’ letter before Second Reading.
Private Members’ Bills: Parliamentary Procedure
Key points In a typical session lasting a year, there are 13 Fridays reserved for debates on private members’ bills in the Commons. Second Readings take precedence on the first seven and remaining stages on the final six. In the Commons the right to introduce the first twenty bills is decided by a ballot of members at the start of the session. Once these bills have been presented, other members can introduce bills after giving notice or following a ten-minute-rule motion. Normally only the first two to three bills on any private members’ bill day have a realistic chance of being debated. However, any bill on the order paper can proceed ‘on the nod’ without a debate at the end of business, provided no member objects. Once past Second Reading private members’ bills usually go to a public bill committee but must wait in a queue behind other private members’ bills still in Committee unless the Government tables a motion permitting more than one at once. The private members’ bill procedure in the Lords differs in that there are no fixed private members’ bill days although time is normally found for debates on one Friday per calendar month when the House is sitting. Where the Government cannot support a private member’s bill in the Lords, it explains its reservations during the bill’s passage through the Lords but will not attempt to block the bill until it reaches the Commons. A ballot is held shortly after State Opening to determine the order in which private members’ bills are introduced at the start of each session in the Lords. Irrespective of whether the bill is first on the list for debate or last in a long line of private members’ bills, the Government will want to reach an agreed position on every bill on the order paper that day. If a minister is designated to respond to a private member’s bill, they will need to be within easy reach of the House to speak if called. The standing orders of each of the devolved legislatures make special provision about the timing of legislative consent motions relating to private members’ bills[footnote 14]. In each case the result is that the legislative consent motion cannot be tabled in the devolved legislature until the private members’ bill in question has completed its committee stage in the first House at Westminster. This does not effect the need for early discussions with the devolved administration/s. Methods of introduction: Commons In the House of Commons members may introduce a bill once they have given notice of presentation. The right to introduce the first 20 bills each session is given to 20 members successful in a ballot held on the second Thursday (on which the House is sitting) of each session. Once the 20 ‘ballot’ bills have been introduced on the fifth Wednesday (on which the House is sitting) of the session, any other member may introduce further bills after giving due notice of presentation under Standing Order No. 57 (ordinary ‘presentation’ or ‘back-of-the-chair’ bills) or following a successful ‘ten-minute-rule’ motion. Introduction of ordinary presentation or ‘back-of-the-chair’ bills does not require the agreement of the House and there is no opportunity to speak on the issue. The member sponsoring the bill has to give the long and short title of the bill to the Public Bill Office before close of business on the sitting day before it is to be introduced. Under Standing Order No.23, ‘ten-minute-rule’ motions seeking leave to introduce bills may be put down in the Commons, but not until after the ballot bills are introduced on the fifth Wednesday in the session. Normally 15 sitting days’ notice is given of the subject of a motion, though it may be as little as five sitting days (it is open to members to change the short title of their bills before they seek leave to bring them in, and initially to use a ‘holding’ motion such as ‘That leave be given to bring in a Bill under SO No.23 [details to be provided]’.). Only one ten-minute-rule motion may be considered at the beginning of public business on each subsequent Tuesday and Wednesday (unless that day turns out to be a Budget Day in which case it is taken on the following Monday). On the day of the ten-minute-rule motion, the proposer speaks for up to ten minutes and another member, not a minister, may speak against it for a similar time. If the motion has been opposed the House usually divides and, if the proposer secures a majority, the bill can then be formally introduced and listed for Second Reading on one of the private members’ Fridays. Often, ten-minute-rule bills are introduced more with the aim of airing the subject than with any expectation of carrying them through, but if the bill is formally introduced and listed for Second Reading then the Government will need to agree its position before the Second Reading debate. A member could choose a Second Reading date very soon after introduction (but the bill will not appear on the order paper if it has not been published). Methods of introduction: Lords In the House of Lords, a ballot is held shortly after State Opening to determine the order in which the first 25 private members’ bills are introduced at the start of each session. To enter the ballot, peers must submit the long and short titles of their bill to the Legislation Office. Subsequently, a peer may introduce a bill on any sitting day without prior notice of presentation. The peer usually agrees the date with the Public Bill Office, who will notify the Government Whips’ Office on the morning of the day the bill is introduced. There is no equivalent of the Commons’ ten-minute-rule procedure. There is a standard minimum interval of two weekends between introduction and Second Reading by which point an agreed government handling position is required. Order of precedence for private members’ bills debate in the Commons In a year-long session, 13 Fridays (9:30am-2:30pm) are reserved for debates on private members’ bills. The dates are agreed by motion at the beginning of each session. On the first seven Fridays bills take precedence in the order in which they were set down, regardless of the stage they have reached which usually means that they are devoted to Second Readings. On and after the eighth Friday bills are arranged according to the stage they have reached, with bills returning from the Lords with Lords amendments taken first and Second Readings last (except that Report Stages which have not already been entered upon take precedence over Report Stages which have been adjourned at a previous sitting). The 20 members who are successful in the ballot present their bills on the fifth Wednesday of the session in the order in which they drew places in the ballot. For this purpose they hand in the long and short title of their bill, but not normally the full text, to the Public Bill Office by the previous day at the latest. On presentation a bill is given a formal First Reading and the member lists it for Second Reading on one of the reserved Fridays. Normally the first seven members successful in the ballot will choose the first seven Fridays in turn and the remainder, together with members who introduce bills subsequently after giving notice or following a successful ten-minute-rule motion, will select whichever day they think gives them the best chance of securing a Second Reading debate. Only those bills which are high in the order for Second Reading on the first seven Fridays stand a good chance of going on to complete all their parliamentary stages, if they are at all controversial. Exceptionally, a bill which is straightforward, uncontroversial and has cross-party support can complete all stages without a debate, ‘on the nod’. A private member’s bill originating in the House of Lords which has completed its progress through the Lords can only proceed through the Commons if it is taken up by a member of the Commons. The bill will then take its turn for debate on the Friday selected by that member.Procedurally, such Bills are given no special status in the Commons, and are typically far down the list on a sitting Friday. Commons Second Reading Normally only the first two or three bills listed for a particular Friday have much prospect of debate. However, parliamentary branches with an interest in listed bills should always check in advance with the Government Whips’ Office what is expected to happen on a particular Friday as the speed with which bills further down the list are reached cannot always be accurately predicted. Irrespective of whether the bill is first on the list for debate or last in a long line of private members’ bills, the Government needs to reach an agreed position on every private members’ bill on the order paper that day. If a minister is designated to respond to a private member’s bill, they will need to be within easy reach of the House to speak, should they be called upon, until dismissed by the private members’ bill whip. If a bill which has been tabled for a particular Friday has not, in fact, been printed and published (a process which the member concerned must arrange with the Commons Public Bill Office), then it will be removed from the list of bills for that Friday, although it may be put down again for a subsequent Friday. If debate starts on a bill but is not finished by 14:30 it is said to be ‘talked out’. A member may seek to prevent this by moving the closure of the debate, but the Speaker will not necessarily accept such a motion if the debate has begun late in the day and insufficient debate has taken place. A contested closure motion is only carried if it is agreed by division and at least a hundred members vote in support of it. If the closure motion is carried, the question for Second Reading is then put forthwith. Members may also seek to delay proceedings by moving that the House should sit in private at the beginning of a discussion on a bill. If fewer than 40 members (including the occupant of the chair and the tellers) take part in the ensuing division, the business under consideration stands over until the next sitting of the House and the next business is taken. To avoid this happening, a motion to sit in private is often moved, and negatived, at the beginning of a Friday sitting before the first bill has been reached. Such a motion may only be moved once per sitting and this prevents debate on any of the day’s bills being interrupted in this way. When the time for opposed business ends at 2:30pm, the titles of all remaining bills are read. As long as a bill is not opposed, it can pass at this stage. Indeed, the member in charge may move that it be considered in Committee of the whole House, take Committee immediately, take Report and Third Reading immediately after Committee, and have the bill passed, in two or three minutes – as long as no one objects. A single objection, however, prevents a bill from proceeding further that day after 2:30pm. In recent sessions, it has been usual for bills on which there has been no debate to be objected to. Commons Committee and remaining stages Private members’ bills that secure a Second Reading are committed, as with government bills, to a public bill committee. Only one public bill committee of a private member’s bill may be active at any one time, unless, under Standing Order No 84A(5), the Government tables a motion allowing an additional public bill committee on such a bill to operate in parallel, or unless the member in charge allows a later bill to leapfrog his or her bill. Names for public bill committee members can be put forward by the sponsoring MP for a meeting of the Committee of Selection on a Wednesday after the bill obtained Second Reading. The committee usually convenes the following Wednesday after members have been selected. Assuming there is no wait for another private member’s bill to complete its committee stage, a bill can therefore start its committee stage less than two weeks after its Second Reading. The committee traditionally meets on Wednesday morning, although meetings in the afternoon or on other days are not unknown. If a private member’s bill is straightforward, committee may last only one sitting. No public bill committees for private members’ bills have taken written or oral evidence so far and it would be exceptional for them to do so as either the bill would have to be programmed or the House would have to authorise the committee to take evidence. It is possible immediately after Second Reading to move that the bill’s Committee Stage be taken on the floor of the House. If this motion is carried, the Committee Stage is named for the same or one of the later private members’ bill days. A completely uncontroversial bill might have its Committee Stage taken ‘on the nod’ on the floor of the House, possibly on the same day as it secures Second Reading; but an opposed bill might be deferred at that stage through lack of time. The Government does not provide government time on the floor of the House for debate (i.e. on Monday to Thursday) for private members’ bills except in the most exceptional circumstances. A minister of the lead department is expected to take part in all debates on the floor of the House, but will not open or close the debate (unless a government amendment leads a group at Report Stage). Normally they will also be a member of the committee and departmental officials will need to provide briefing on amendments, as for a government bill. Report and Third Reading may be taken on the same day in the Commons. As noted above, remaining stages take precedence over Second Readings on the final six private members’ bills Fridays of the session. Procedure in the Lords The main differences in Lords procedures for private members’ bills are: Second Reading debates take place on sitting Fridays and are normally taken in the same order in which bills were introduced. All stages are taken on the floor and minimum intervals between stages apply. If, as often happens, no amendments are tabled for Committee, then Committee is discharged and there is no Report stage and Third Reading is normally unopposed. Substantive amending stages take place on a sitting Friday. Where no amendments are tabled for Committee, Report or Third Reading, these stages can take place, by agreement, on a sitting day other than a Friday; and Where a private member’s bill is unacceptable to the Government, the government minister or whip responding in debate expresses reservations during its passage in the Lords, rather than attempting to stop its passage. The Government can then attempt to block the bill in the Commons, if it progresses that far. If a private member’s bill enters the Lords from the Commons, the sponsor will need to find a peer to take the bill forward. If the Government has supported the bill the minister may, in consultation with the Government Whips’ Office, wish to suggest a suitable peer and instruct the department to assist, much as with the Government’s own legislation (the Commons member will need to be kept in touch throughout). The Lords will always give a Second Reading to any bill which has passed the Commons but subsequently may alter it substantially, sometimes on the Government’s initiative, or even reject it. A Commons bill may not formally be withdrawn in the House of Lords by the peer who has taken it up, although it is open to them not to proceed further with it. Beyond the last Commons sitting Friday of the session, any Lords amendment is fatal to a Commons private member’s bill because the Commons will have no opportunity to consider it. In addition, due to the limited Parliamentary time for the consideration of private members’ bills, departments will need to have a good understanding of whether they are likely to secure a legislative consent motion before Report Stage in the first House. This is so that any amendments that are needed to secure a legislative consent motion, or to deal with the absence of such a motion, can be made at Report Stage in the first House. Waiting until the second House to make the necessary amendments may mean that there is insufficient time for the amendments to also be considered by the first House with the result that the bill does not reach Royal Assent. Further information on legislative consent motions and working with the Union and Constitution Group and the devolved administrations can be found in Chapter 14. Post-legislative scrutiny The requirements on post-legislative scrutiny (that the responsible department will, within the period three to five years after an act has received Royal Assent, submit to the relevant Commons departmental select committee a memorandum reporting on certain key elements of the act’s implementation and operation) applies to acts which began life as a private member’s bill just as for any other act. This is because they form part of the body of primary legislation for which departments are responsible. The ‘responsible department’ is the one responsible for the act at the time a memorandum is to be submitted, irrespective of whether it was the responsible department at the time the Act was passed. See Chapter 40 for further information on post-legislative scrutiny.
Private Members’ Bills: Responding to Non- Government Bills
Key points The Government needs to agree its handling position on non-government proposals in time for Second Reading. The responsible minister will need to write to the PBL Committee and the relevant Cabinet policy committee recommending what position the Government should take: support, oppose or (in very rare and exceptional cases) remain neutral. To satisfy the committees that the consequences of supporting a private member’s bill have been carefully considered, the minister will need to attach to the letter seeking clearance, a PBL Committee memorandum setting out any handling issues and explaining the implications of the bill (for example for the devolved administrations), the bill print, explanatory notes (where possible), delegated powers memorandum, handling strategy, a legal issues memorandum, and an impact assessment (if necessary). Where a private member’s bill proceeds beyond Second Reading, further action may be required from departments even if the Government is not supporting the bill. Policy leads should keep in touch with the PBL Secretariat and their parliamentary branches who will alert them to any action that needs to be taken. Allocating private members’ bills to departments, preparing handling letters and agreeing a government position The PBL Secretariat regularly circulates a list of all forthcoming private members’ bills to parliamentary clerks, allocating each one to the relevant lead department. If this allocation is incorrect, the parliamentary branch should inform the secretariat immediately, so the bill can be allocated to the correct department. Private members’ bills down for debate on a given day in the Commons can also be found in the ‘future business’ sections of the Parliament website. Progress of a particular private member’s bill can be found in the ‘bills before Parliament’ section of the website. As soon as a private member’s bill has been allocated to the department, the parliamentary clerk should alert the relevant policy official, who will then need to find out what the bill would do. Even if the bill has not yet been published, the long title, which is a summary of its purpose, will be available on the Parliament website. The policy official will need to consider the factors for and against supporting the bill, in discussion with legal advisers from their own department and possibly with other departments with an interest (in particular with HM Treasury if the bill would impose a financial cost on the Government). The policy official should then advise the relevant minister on whether the proposal should be supported or opposed. Key questions which need to be considered are: Are the measures in accordance with existing departmental policy? Would ministers want them to become law? Are there any outstanding devolution, ECHR or regulatory issues that need to be considered? Officials should give careful consideration to whether the Government could sensibly support the bill, subject to any necessary amendments. If the summary on the Parliament website does not provide sufficient detail for the Government to be able to take a view, officials should speak to their parliamentary clerk or Private Office, as the minister, his or her parliamentary private secretary or a special adviser will need to speak to the MP or peer to find out what is likely to be in the bill. Most MPs, peers or their assistants will be happy to give a good indication of the bill’s aims. Ministers should then write to the PBL Committee on the basis of their expectation of what the bill will do. It is important that handling recommendations are based on as clear an understanding as possible, so early engagement with the sponsoring MP or peer is helpful. The minister will then need to write to the PBL Committee recommending what position the Government should take: support, oppose (or, for a bill in the Lords, express reservations) or (in very rare cases) remain neutral. If a department is minded to support or remain neutral on a bill, policy officials should discuss the arguments for such an approach with the PBL Secretariat before the minister sends the letter. The PBL Secretariat is able to provide a handling letter template on request and will happily look at draft letters before they are sent out. Whatever the proposed stance, the handling letter should: be no more than two sides long; set out the bill’s title and the name of the sponsor MP or peer, when the bill was introduced and the date for Second Reading debate; set a deadline for responses if clearance is required, which should be at least two weeks before the Second Reading date, and give members of the committee at least six working days for consideration (nine during recess); explain what the bill aims to achieve. Summarise the content of the bill, and not just its title, unless this is all that is known. Avoid jargon and technical terms unless these are explained; state clearly whether the PBL Committee and the relevant policy committee clearance is being sought to support the bill or remain neutral (the handling letter should be addressed to the chairs of both committees) or whether the letter is simply informing the PBL Committee of the intention to oppose the bill (the handling letter should be addressed to the chair of the committee and copied to members of the policy committee for information); explain the reasoning behind the recommended position: support, oppose (express reservations in the Lords) or remain neutral. State clearly whether the Government’s support would be conditional on amendments being made to the bill in Committee and if so what these amendments would be; and state whether the proposed handling position is based on the published bill, on discussions with the sponsor MP or peer, or on assumptions about what an unpublished bill would do. Even if the bill has not yet been published, a handling letter will still need to be provided to the deadlines given above. In the Lords, private members’ bills must be introduced and published at least two weekends in advance of Second Reading. In the Commons a private member’s bill only falls off the order paper if it has still not been printed the day before Second Reading is due. Where a private member’s bill is down for a Second Reading debate shortly after introduction and it is not possible to adhere to the deadlines above, the minister should write to the PBL Committee as soon as possible, allowing a reasonable period for comment and a position to be agreed before Second Reading. Opposing a private member’s bill If the recommended position is to oppose the private member’s bill, a letter needs to be circulated to members of the PBL Committee, copied to the relevant policy committee, explaining why the Government should oppose the bill. It will be important for the handling letter to set out a strong case for opposing the bill. If a strong case is not provided, the PBL Committee is likely to press the minister again as to why the bill cannot be supported. It is not acceptable to recommend that a bill be opposed simply because its drafting is defective: If there are no other reasons why the bill should not be supported, the Government would normally agree to support the bill subject to drafting amendments being made in Committee to ensure the bill is technically workable. There may be a number of reasons why the responsible minister will wish to recommend that the Government oppose a private member’s bill, for example if it is contrary to the Government’s policy, duplicates work already in progress, is incompatible with international law or would have significant cost implications. However, even where there appears to be a good reason why the Government should not support the bill, it will be important for the department to consider whether this could be addressed to allow the Government to support an amended version of the bill and, where appropriate, for the minister to discuss this with the sponsoring member. If the private member’s bill has not yet been published, the sponsoring member may be persuaded to drop those elements of the bill which the Government is unable to support, to enable the Government to give support to the bill from the outset. The Government will normally seek to defeat a bill that it opposes at Second Reading in the Commons. Where the bill being opposed is introduced in the Lords, the Government will express its reservations at Second Reading but will not seek to block the bill until it reaches the Commons. On no account shall a minister initiate a vote on a Second Reading motion in the House of Lords. Where the Government opposes a private member’s bill, Parliamentary Counsel will not normally be involved, as the fate of such bills is often decided at Second Reading. Occasionally, however, amendments need to be prepared to provide clarification (and possibly compromise) from the sponsor. Where the minister asks for such amendments to be prepared they will usually be tabled in his or her name; where they are tabled by backbenchers the House will expect it to be made clear whether such government drafting assistance has been given. Supporting, or supporting subject to amendment Where it is proposed that the Government supports a private member’s bill or supports it subject to amendment, this must be cleared through the relevant policy committee of Cabinet as well as the PBL Committee. Prior to seeking clearance, officials will want to consider the policy implications for other departments, implications for the devolved administrations, legal issues, the regulatory and other impacts and compatibility with the ECHR. The department must also consider the extent to which the published version of the bill will need to be amended to ensure it is technically workable, as well as compatible with government policy. Where departments are sympathetic to the overall aims of the bill but could not accept a particular part of the bill, they are encouraged to discuss with the member the possibility of amending the bill to enable government to offer its full support. Recent Leaders of the House of Commons have indicated that they would like to be able to offer government support to more private members’ bills and have encouraged departmental ministers to actively consider ways in which they could work with members to ensure a bill that would be acceptable to the member and to government. It is important that departmental ministers engage the member early enough so that if a compromise is agreed, there is still enough time for the department to prepare the necessary documentation (a PBL Committee memorandum, bill print and explanatory notes (where possible), legal issues memorandum. delegated powers memorandum, and impact assessment (if needed)) to satisfy the relevant policy committee of Cabinet and the PBL Committee that supporting the bill is the right thing to do, and for this position to be formally agreed. Members will frequently contact ministers with a view to reaching agreement on the contents of their proposed bill and obtaining government support. The minister will often consent to officials in their department discussing the proposal with the member or their staff. Such co-operation can be helpful to both sides and can improve the chances of reaching an agreement to support the bill. Where government support is likely, the member should be encouraged to publish their bill in sufficient time before Second Reading, to allow the Government to reach an agreed position. The Government Whips’ Office in the House of introduction and the PBL Secretariat should also be informed. A joint letter to the chairs of the PBL Committee and the relevant policy committee of Cabinet seeking clearance to support the bill should be sent at least one month before the date scheduled for Second Reading. Officials are advised to contact the PBL Secretariat for advice before drafting this letter. The PBL Secretariat can also advise which policy committee of Cabinet it would be appropriate to write to in each case. The handling letter should be circulated with a PBL Committee memorandum (a template can be provided by the secretariat) covering issues such as compatibility with the ECHR and any devolution implications, regulatory and other impacts or delegated powers. An impact assessment and legal issues memorandum must also be circulated. The department may also wish to prepare explanatory notes, but this is not a requirement. Policy officials in departments should therefore engage early with officials in: the Better Regulation Executive in the Department for Business, Energy & Industrial Strategy; the Scotland, Wales and Northern Ireland Offices, on any devolution issues; and the Attorney General’s Office and the Legal Secretariat to the Advocate General for Scotland on any ECHR matters. The legal issues memorandum should be sent to the Attorney General’s Office and the Legal Secretariat to the Advocate General for Scotland for comments before it is circulated to the PBL Committee and the relevant policy committee of Cabinet. The letter should also state whether any amendments would be needed to enable the Government to support the bill, and legal advisers should discuss with Parliamentary Counsel whether any drafting work is required. Remaining neutral 45.23 Very exceptionally, the Government may wish to take a neutral position on a private member’s bill, if for example it concerns an issue of conscience such as abortion or euthanasia or matters more properly for Parliament, rather than the Government, to decide. If the bill does not fall into one of the two narrow categories above, the Government will be expected to take a view and must agree collectively whether to support or oppose the bill. As private members’ bills can and do reach the statute book, a neutral position should only be recommended if the Government is genuinely prepared to accept the legislation, should that be the will of Parliament. By not opposing a bill the Government is indicating that it is prepared to accept it reaching the statute book with all of the consequences. A neutral stance must therefore be collectively agreed by ministers in the same way as supporting a private member’s bill, with a handling letter and accompanying documentation: a PBL Committee memorandum, bill print and explanatory notes (where possible), impact assessment, legal issues memorandum and delegated powers memorandum. These must be sent to the PBL Committee and the relevant policy committee of Cabinet at least one month before Second Reading. Policy officials in the department should discuss the proposed stance with the PBL Secretariat as early as possible. If a private member’s bill on which the Government has remained neutral receives a Second Reading, the Government will often have to make drafting changes to ensure the bill is technically correct. This is because the Government has a duty of care to the statute book. Clearance If there are no outstanding issues, the chair of the PBL Committee (and the chair of the relevant policy committee of Cabinet, as necessary) will write to give clearance for the agreed position shortly before Second Reading. If the bill is published after the handling letter has been sent, departments should contact the PBL Secretariat to confirm whether the proposed position still holds. If, for any other reason, the department wishes to change its position after sending a handling letter to the PBL Committee, or should a change in circumstances mean it may be appropriate for the Government to change the position it has already agreed, the PBL Secretariat should be informed immediately. Further action required by departments where the Government is supporting a private member’s bill Clearance to support a private member’s bill will often include PBL and policy committee clearance to work with the member to draft mutually-satisfactory first House amendments to ensure that: the bill does what it is intended to do (members do not have the resources of Parliamentary Counsel at their disposal, so some technical amendments may be needed to tighten up the bill and make it technically correct); and, the Government can fully support the bill, for example where it has agreed to support the bill on the condition that certain provisions are removed, amended or added. As far as possible, amendments should be made at Committee Stage in the first House. If amendments are made in the second House, the bill will have to return to the first House for consideration. Given the limited amount of parliamentary time available for private members’ bills, this is likely to kill the bill. Time for private members’ bills is even more limited in the Lords, so departments should contact the Government Whips’ Office in the Lords to discuss Lords handling in good time before the bill reaches the Lords, and discuss any proposed amendments with the Government Whips’ Office in both Houses. Government time is given to private members’ bills in the Commons only in the most exceptional circumstances. If clearance was given to support the bill subject to certain amendments being made in Committee, no further clearance is required before tabling those amendments. Any other amendments which the Government wishes to table to a private member’s bill or hand to the sponsoring member to table must be agreed by the PBL Committee, and by the relevant policy committee of Cabinet if the amendments would have the effect of a change in policy. The responsible minister will need to write to the chairs of the committee(s) seeking clearance and allowing colleagues six working days to respond (nine during recess) plus four days for clearance to issue. Amendments should be discussed with the sponsoring MP or peer whose support is crucial. In view of the pressure on Parliamentary Counsel, drafting assistance should be offered as sparingly as possible and, if the bill is not expected to progress as far as Committee, it will clearly not be worthwhile. When a department anticipates that it could need drafting assistance it should prepare instructions in advance on a contingency basis. Amendments drafted by Parliamentary Counsel will sometimes be government amendments and will sometimes be put down in the name of a private member. If the amendments are to be put down in the name of a private member, the department will usually invite the member to put the amendment down him or herself. It is often more convenient if they are handed in by Parliamentary Counsel on behalf of the member; in which case the member in charge must either sign the amendments or give written authority to the Public Bill Office to accept the amendments from Parliamentary Counsel. Where amendments are tabled by the minister, the department should ensure that both the private member sponsoring the bill and, where the amendment is being tabled in the second House, the private member sponsoring the bill in the first House are kept informed. Delegated powers: The Lords Delegated Powers and Regulatory Reform Committee and the Business, Energy and Industrial Strategy Committee (formerly considered by the Regulatory Reform Committee) may report on any public bill containing delegated powers. If a government-supported private member’s bill looks likely to complete its Commons stages and reach the Lords (even if the Government has only agreed to support the bill part-way through its passage), the department responsible should submit a delegated powers memorandum to the Lords Delegated Powers Committee and the Business, Energy and Industrial Strategy Committee, by the time the bill reaches the Lords at the very latest. For a government-supported Lords private member’s bill, a memorandum should be submitted as soon as possible after introduction. ECHR: it is not necessary for ministers to sign a statement under section 19 Human Rights Act 1998 in respect of compatibility with the ECHR if the bill is a private member’s bill. However, if the Government is supporting a private member’s bill then it must still provide analysis of human rights issues to the JCHR. If the Government is preparing the Explanatory Notes for the bill then this should include the analysis of human rights issues as for Government bills (see Chapter 10 for information on Explanatory Notes and Chapter 11 for information on ECHR). If the Government is not preparing the Explanatory Notes then bill teams should discuss the situation with the PBL Secretariat. In these cases the departments will likely need to contact the JCHR directly to provide information. Further action required by departments for any private member’s bill that looks likely to pass, irrespective of whether government is supporting or opposing the bill King’s consent: The possible need for King’s consent should always be considered. King’s consent can only be signified by a privy counsellor, normally a minister, so, if it is needed, steps should be taken to ensure a privy counsellor is available in the relevant Chamber. King’s consent would not normally be withheld from a bill, even if the Government intended to block or oppose it during its later stages. The Palace should be given at least two weeks to consider requests for King’s consent. Money resolutions: In theory, a private member’s bill entailing public expenditure could be halted by the Government declining to table a money resolution. Motions for money resolutions are not usually taken until after Second Reading and then in government time. Only the Government can move a motion for a money resolution, and neither italicised words nor clauses governed by them can be considered by the committee unless a money resolution authorising them has been agreed by the House. If the exclusion of these clauses would make the bill unworkable, the Speaker would probably not allow the remaining stages to be taken. The Government usually moves a motion for a money resolution in respect of a private member’s bill which has been given a Second Reading, regardless of whether it supports the bill, although it is not under any obligation to do so. Moving such a motion does not necessarily indicate government support for a bill. Drafting assistance: The Government does, of course, accept a responsibility to put private members’ bills which are likely to pass into good order. A ‘neutral’ or ‘opposing’ position must always be read as subject to this. Where a private member’s bill proceeds beyond Second Reading, further action may be required from departments even if the Government is not supporting the bill. Policy leads should keep in touch with the PBL Secretariat and their parliamentary branches who will alert them to any action that needs to be taken and advise if or when any further clearance is required.
Affirmative instrument – delegated legislation that the parent act requires Parliament to explicitly approve before it is able to come into effect (through ‘the affirmative procedure’).
Amendment – a proposal to alter the text of a bill, motion or draft select committee report.
Bill – draft primary legislation.
CCLA – Commons consideration of Lords’ amendments.
Clause – the basic unit of a bill, divided into subsections, then paragraphs, then sub-paragraphs. When the bill becomes an act, ‘clauses’ become ‘sections’ but the names of the other subdivisions stay the same.
Command paper – a document presented to Parliament by Command of Her Majesty but in practice by a Government Minister. Command papers are produced to a particular standard and are part of numbered series managed by The National Archives.
- Using the Care Act guidance. This publication is currently under review. The Health and Care Act 2022 revoked Schedule 3 and amended Section 74 of the Care Act 2014 on 1 July 2022.
- General responsibilities and universal services. This section includes chapters on: 1. Promoting wellbeing 2. Preventing, reducing or delaying needs 3. Information and advice 4.
- First contact and identifying needs. This section includes the following chapters: 6. Assessment and eligibility 7. Independent advocacy Assessment and eligibility.
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Dec 31, 2020 · 'Primary legislation' is the term used to describe the main laws passed by the legislative bodies of the UK e.g. Acts of the UK Parliament, Scottish Parliament, Welsh Parliament...
Oct 18, 2023 · The Provider Selection Regime: statutory guidance. This is the statutory guidance for the new Provider Selection Regime (PSR). The Health Care Services (Provider Selection Regime) Regulations 2023 have come into force on 1 January 2024.
The Equality Act (EqA) statutory Guidance and Codes of Practice, linked off my Statutory guidance and Codes of Practice page, cover the meaning of ‘disability’, and discrimination as regards employment and services.
