§ The Lord President of the Council (Baroness Amos)
On 11 May I moved a Motion, "That it is desirable to vary the normal practice of the House when considering Commons reasons and amendments, whereby no further consideration of a Bill can take place in the event that
to allow the House to consider the Commons reason and amendment to the [Planning and Compulsory Purchase] Bill".
- (i) the Lords insists on an amendment;
- (ii) the Commons insists on its disagreement to that amendment; and
- (iii) neither House has offered alternative proposals;
This Motion was necessary because, in the final stages of the Planning and Compulsory Purchase Bill, it appeared that, unintentionally, a "double insistence" had been reached on one Lords amendment. In moving this Motion, I stated that "I have invited the Clerks of both Houses and Parliamentary Counsel to consider jointly the lessons learnt from this episode and how best to avoid such a situation in the future. In particular, they will look at the practice of considering amendments in the other House in groups or packages and the procedural consequences which can follow". I undertook to report back to the House. This Statement fulfils that undertaking. Following consideration by a working group of Clerks and Parliamentary Counsel, the Clerks of both Houses have agreed the following statement of position:
Before a Bill can become an Act of Parliament, the two Houses have to agree on the text. The procedure for reaching agreement appears simple in concept, but can become extremely complicated in practice because of the political context. It may involve, for example, one House having to back away from an entrenched position.
Following Third Reading and passing of the Bill in the second House, a list of amendments made by that House is compiled and sent back to the first House for their consideration. 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. The second House then considers the reasons and amendments offered by the first House. The exchanges between the two Houses continue until
- (a) agreement is reached, or
- (b) the Session is brought to an end, without agreement having been reached, or
- (c) "double insistence" is reached, which normally results in the Bill being lost.
The term "double insistence" is used to describe a situation where one House insists on an amendment to which the other has disagreed, and the other House insists on its disagreement. If this point is reached, and neither House has offered alternatives, the Bill is lost. This doctrine is set out in Erskine May, 23rd edition, page 639, which, however, goes on to say "there is no binding rule of order which governs these proceedings in either House, and, if there is a desire to save the Bill, some variation in the proceedings maybe devised in order to effect this object".
In the case of the Planning and Compulsory Purchase Bill, two amendments (Lords Amendments Nos. 1 and 3) were still under discussion in the final exchanges between the two Houses. In the Commons, the two amendments were treated as forming a package, and a single amendment (1C) was considered by the Commons to be an amendment in lieu of both Lords amendments. But the reason given for disagreeing to Lords Amendment No. 3 made no mention of the link between Amendment No. 1 and Amendment No. 3. Accordingly, the Lords Clerks advised that double insistence had been reached on Amendment No. 3, and they advised the Government that it would be necessary to move a Motion to vary the normal practice of the House, and thus allow further consideration of the Bill. A Motion was agreed to on 11 May.
We have been asked to consider the lessons which can be learnt from these exchanges.
By way of background, we note that the speed and complexity of exchanges between the two Houses has increased markedly in recent years. This is due partly to political circumstances, and partly to technical advances in text handling, which have made possible extremely rapid turnaround of Bills. Increased speed inevitably carries the risk of misunderstanding or error, and reduces the time available for consideration of the possible consequences of each House's decisions.
Particularly in the Commons, the practice has developed of packaging and grouping amendments during these final stages1. Packaging and grouping are useful ways of signalling perceived connections between amendments. But these are techniques for organising debate within each House: neither House can be expected either to discover, or to feel bound to follow, arrangements made by the other for the consideration of amendments. Messages between the two Houses, and reasons for disagreement, are ways of communicating perceived connections between amendments, but these in turn depend upon the terms of the Motions in each House. We consider that the wording of Motions could be improved, in order to make clearer the links between the different elements of a "package" of amendments. We also think that the wording should be improved, in order to make the action of one House clearer to the other and, where necessary, to identify any package.
1 In this note, "grouping" refers to the practice (in both Houses) whereby related amendments are debated together, but the fate of individual amendments in the group is decided separately. "Packaging" refers to the practice (currently used only in the House of Commons), in the final stages of a Bill's passage, where a number of related amendments may be grouped together for the purposes of both debate and decision. So, for example, a motion on a "package" might invite the House to agree to amendments (a), (b) and (c) to a Bill, in lieu of Lords Amendments 42 to 44 and 61.21WS
As an example, in a case where one House insists on disagreement to more than one amendment and offers an alternative only to one, intending that single alternative to encourage the other House to reconsider all the relevant amendments, the most certain way of avoiding the need in future for a Motion disapplying the double insistence rule will be to ensure that a single Motion to disagree is laid before the House along the lines of "that this House insists on its disagreement to Amendments Nos. 1,2 and 3 but proposes the following amendment in lieu of Amendment No. 1". The other House will then be able to identify the group of amendments as a package.
We are in agreement that in such a case the resultant message to the other House would not amount to a double insistence, whether or not the House receiving it chose to "unpackage" the amendments for the purposes of debate.
From a practical point of view, we consider that the packaging of amendments has advantages, and that there could be benefits from bringing the practices of the two Houses more closely together in this respect. With this in mind, the Clerk of the Parliaments will invite the Lords Procedure Committee to consider changes to the practice of the House, to allow more flexibility in dealing with Commons amendments which have been packaged.
Although, in many cases, it is likely that the two Houses will be prepared to consider as a whole a package of amendments which has been received from the other House, there will be other cases when either House may wish to consider the elements of a package separately for political reasons. It is not the purpose of procedure to provide political solutions, but rather to facilitate the consideration of options. Each House remains the master of its own procedures, and where there is disagreement about packaging, it will be possible, as at present, for the other House to consider amendments separately to the extent desired".