Secretariats website

Collective agreement

When collective agreement is required

7.1 The Ministerial Code states that “Questions which significantly engage the collective responsibility of the Government, because they raise major issues of policy or because they are of critical importance to the public” need to be agreed collectively by Cabinet or by its committees (Ministerial Code, paragraph 3).

7.2 During preparation of a Bill, collective agreement normally has to be sought from two Cabinet Committees: from the relevant policy committee, on the content of the Bill, and from Legislation Committee, on preparation and handling of the Bill. One of the factors Legislation Committee will consider in awarding legislative slots is the extent to which policy has been settled. Ideally, the department should have obtained collective agreement to the policy before bidding. If not, it should be in a position to do so shortly after a slot in the programme is allocated.  Please refer to paragraph 5.2 where proposals require Scots Law input.  Legislation Committee's agreement is needed to:

• obtain a slot in the legislative programme;
• agree in principle that a Bill should be published in draft;
• approve publication in draft for pre-legislative scrutiny when the final text of the draft Bill is available and, particularly if it is proposed that a Joint Committee should be established to consider the draft Bill, the form of pre-legislative scrutiny;
• make significant changes to the content of the Bill after a slot in the programme has been allocated: changes which would significantly widen the scope of the Bill require clearance from Legislation Committee; smaller additions/omissions arising from further policy development do not need to be cleared by Legislation Committee at this stage, only by the relevant policy committee (see below), as Legislation Committee will consider each Bill in its entirety before introduction;
• approve a Bill's introduction into Parliament; and
• table any Government amendments or accept any Opposition or backbench amendments to a Bill, except where Legislation Secretariat and Parliamentary Counsel have both agreed that the amendments (whether Government or non-Government) can be considered minor and technical – though clearance may still be required if a large number of minor and technical amendments are proposed given the time these may take to debate.

7.3 Further details of the Legislation Committee clearance processes are given at the appropriate point in this guide.

7.4 The agreement of the relevant policy committee of the Cabinet is needed to:

• approve the policy contained within a Bill;
• agree any changes to a Bill, either before or after introduction, which amend the policy or introduce significant new provisions.

7.5 All proposals that would impose a cost to business of over £20 million a year, or a significant/disproportionate cost on a particular sector, should be sent to Economic Development (Panel for Regulatory Accountability) (PRA) Committee as well as the normal policy Committee of Cabinet for policy clearance, but only after HM Treasury has agreed to the proposals.

7.6 Where collective agreement has not already been obtained when the Bill is given a slot in the programme, it should be an immediate priority as Parliamentary Counsel are normally unable to begin drafting until the policy in the Bill has been collectively agreed. This is to avoid time being wasted drafting provisions which subsequently have to be re-drafted to reflect changes in policy.

7.7 At the same time, it is important that the implications of the policy proposals are fully thought through. A proposal that is not well thought through will result in delays at a later stage in the Bill's preparation.

Obtaining collective agreement for the policy in the Bill

7.8 The lead department should normally seek the views of the other main departments with an interest as early as possible. It will normally be evident which departments should be consulted, but officials should consider carefully the impact of their policy on other departments. If a Bill is to make different provision for Wales, the lead department should inform the Wales Office at the earliest opportunity and the agreement of the Secretary of State for Wales should be obtained at this stage. The lead department can then seek formal collective policy agreement for the Welsh provisions alongside the other provisions of the Bill, or if they prefer the Wales Office can arrange for the Secretary of State for Wales to seek collective agreement to the Welsh provisions separately instead, normally through correspondence. If any issues are left which can only be resolved between Ministers, these remaining points should be highlighted when formal policy agreement is sought.

7.9 The Bill Minister should write to the chair of the appropriate policy Committee, copied to the members of that Committee, outlining the proposal.

7.10 A full list of Cabinet Committees is available at List of Cabinet Committees. Legislation Secretariat can advise on the most appropriate policy Committee where this is unclear.

7.11 The letter should give sufficient detail for Ministers to consider the impact on their own departments. It should include a copy of the Impact Assessment, and where relevant the Regulatory Impact Statement.

7.12 Ten working days should be given for comment, or longer where approval is being sought for policy which is substantial or likely to be controversial. Fifteen working days should be allowed during recess. If insufficient time is given to consider the policy, it may not be possible to obtain collective agreement to the deadline required. The letter should state clearly the deadline for Ministers to comment; if clearance is being sought with a view to making a public announcement on a certain date, then the deadline for comments should be at least a couple of days before the scheduled announcement, to allow time for clearance to be arranged.

7.13 To finalise clearance, the Bill Minister's private office should carry out a “ringround” of the private offices of all members of the Committee to confirm whether or not they intend to respond. All Committee members must either respond or give a nil return before clearance can be arranged (the Committee Secretaries in Cabinet Office will advise the Chair of the Committee whether to give clearance, based on any responses made and any other relevant factors). Committee members should only respond if they have a significant point to make; responses indicating Ministers are content with the proposal are unnecessary (in this case a nil return should be given). A ringround sheet listing all responses and nil returns, and copies of all responses, should be sent to the relevant Committee Secretary in the Cabinet Office.

7.14 Where there is significant difficulty in reaching an agreement, the department should consult the Committee Secretariat, who will be able to help broker agreement and arrange a Cabinet Committee or other Ministerial meeting if necessary. In this case, the department is likely to be required to prepare and circulate a paper in advance of the Committee meeting, in agreement with the Committee Secretary. Detailed guidance on the layout, content and length of Cabinet and Cabinet Committee memoranda and their reproduction and circulation is contained in the “Handbook for the Cabinet Documents Officer”. This document is available on CabCom and hard copies are held by all Ministerial Private Offices.

7.15 Contact details for Committee Secretaries are available from Legislation Secretariat, and further guidance on the procedures for obtaining policy clearance is at “Cabinet Committee Business: A Guide for Departments”.

7.16 The Cabinet Secretariat also holds a training session on Cabinet and Cabinet Committee procedures for Private Secretaries in September of each year.

¹ Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament

² 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.