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Last updated: 08 July 2009
38.1 Before a Bill can become an Act, both Houses must agree its complete text. If a Bill has been amended in the second House, it must return to the first House for Commons Consideration of Lords Amendments or Lords Consideration of Commons Amendments, depending on the House of introduction.
38.2 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:
38.3 Pingpong 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.
38.4 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.
Consideration and ping pong strategy
38.5 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 well in advance of consideration and ping pong stages the Bill team should consider the options and advise Ministers on the best way forward. This should be done in consultation with the Government Whips’ Office in both Houses.
38.6 Bill teams must ensure that everybody involved in the Bill is absolutely clear about the procedure during pingpong – and understands that concessions may be necessary to avoid double insistence and losing the Bill.
38.7 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. Generally speaking, where the Government has been defeated in the Lords (which is where the vast majority of defeats occur), perhaps one-third of defeats are overturned by the Commons and not pursued further by the Lords; one-third of defeats result in some form of compromise; and one-third of defeats are conceded by Government.
38.8 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.
38.9 Just as at earlier stages, Ministers must seek collective agreement through Legislation Committee, and where appropriate a policy Committee of Cabinet, to any proposals to table Government amendments or accept non-Government amendments during consideration and ping pong.
38.10 Given the rate at which the Bill may ping pong between the two Houses, it will not normally be possible to allow the full 10 working days for the Committee 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.
38.11 For Bills going into pingpong during the autumn spillover period, time will be much tighter and the Bill Minister would be advised 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.
38.12 On return to the first House, departments must submit revised Explanatory Notes on any amendments made in the second House, but do not need to prepare a complete set of Explanatory Notes for the whole Bill all over again. Explanatory Notes do not need to be revised on return to the second House or at any further stage of ping pong, however – the next time they will need to be revised is on Royal Assent.
38.13 More details of the procedure for consideration and ping pong follow. The terminology can be complicated, but the key point is that Ministers will need to be prepared to offer concessions to avoid losing the Bill through double insistence, including on policies which they may have defended very strongly throughout previous Parliamentary stages.
Commons Consideration of Lords Amendments
38.14 Second House amendments are published in a distinct printed list by reference to the print of the Bill as it left the first House. For Commons starters, since the Lords reprint the Bill as amended in Committee and on Report, all the Lords amendments will in fact already have been incorporated in a published print of the Bill, unless any further amendments are made at Lords Third Reading (only minor and technical amendments are permitted at Lords Third Reading).
38.15 Lords amendments may be considered by the Commons immediately in case of urgency, or if they are so minor and technical that they can be considered very quickly and the Bill passed almost immediately, but usually 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.
38.16 The Commons have the following options in considering Lords amendments:
38.17 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.
38.18 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. Parliamentary Counsel will draft the motion.
38.19 In the Commons, amendments 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’.
38.20 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 – the analogy is with clause stand part debates in Committee, where the Government gives notice if it intends to leave out particular clauses, but not if it intends to leave them in the Bill.
38.21 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 immediately appointed to draw up “reasons for disagreement”. 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”.
38.22 The appointed Committee, together with Parliamentary Counsel, key members of the Bill Team and the Clerk, withdraw the ‘Reasons Room’ off the lobby at the back of the Speaker’s Chair.
38.23 When the Bill returns to the second House this is called “Lords Consideration of Commons Reasons” or vice versa.
38.24 The Lords have the following options in considering the Commons disagreement with Lords amendments:
38.25 Each time the Bill moves from one House to the other it is accompanied by a “message” indicating the response of the House which has just considered the Bill. If 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 Lord 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, although in recent years they have tended to indicate the grounds for disagreement in a succinct way.
38.26 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 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.
38.27 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
38.28 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:
38.29 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.
38.30 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, but the definition of Money Bills for these purposes is specific to this purpose.
38.31 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 session and Commons Third Reading in the second session. The Bill must be sent to the Lords in the second session in the same form as sent up in the first session, except that it may contain alterations necessary owing to the elapse of time and may represent 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.
38.32 The procedure has been used more frequently in the last decade than in the past, but it 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 of using the Parliament Act procedures.
38.33 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 procedures.
1 See written Ministerial Statements in both Houses on 21 July 2004.