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Last updated: 25 March 2010
Circumstances in which Government amendments may be made
31.1 When a bill is put forward to L Committee for clearance to be introduced to Parliament, one of the key questions Committee members will ask the Bill 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 for a bill to be introduced. This can not only delay a bill but may result in its losing its slot altogether in that year’s legislative programme.
31.2 It is therefore essential that departments ensure that all the policy for the bill is settled several months before introduction so that they can instruct Parliamentary Counsel, preferably in tranches, between May and the beginning of September, at the very latest, before a bill is to be introduced. By this point, all new policy areas which may be proposed for a bill should be resisted as any request to L Committee for drafting authority will almost certainly be refused.
31.4 It is almost inevitable that departments will want to make some amendments to bills after introduction, to correct errors not previously spotted or to make a concession to address serious concerns raised during debate. In considering whether to give clearance to amendments, the Committee will consider each amendment in the light of the overriding concern – whether amendments would help or hinder both the passage of the bill and the legislative programme as a whole. The Committee will seek to strike an appropriate balance between getting the bill perfect and getting it to Royal Assent.
L Committee clearance
31.7 However, if L Secretariat disagree about their status then L Committee clearance may be necessary. For this reason, minor and technical amendments need to be sent to L Secretariat as far in advance of tabling as possible, and at least far enough for a subsequent clearance letter to be sent, with the usual 10 days’ notice (15 in recess) for collective agreement, if necessary. Legislation Committee clearance is still likely to be required if a significant number of minor and technical amendments are proposed, given the amount of Parliamentary time that will be required to consider them.
31.8 L Committee will not permit any amendments at all after Committee Stage in either House unless the Bill Minister can satisfy the Committee that they fall within the above definition of concessionary. All amendments which are given clearance for Committee Stage but which, for any reason, are not tabled at that Stage must be brought back to L Committee before they can be tabled at a later stage – when the same considerations will apply in terms of only concessionary amendments being permitted.
|
Stage |
Amendments permitted | ||
| Desirable | Essential | Concessionary | |
| After Introduction | No | Yes | Yes |
| After Committee Stage | No | No | Yes |
Seeking collective agreement – writing to Legislation Committee
31.12 Proposed Government amendments must be collectively agreed just as any other Government policy. Agreement is normally sought through correspondence, though a meeting may sometimes be called, particularly to consider handling of Bills during pingpong.
31.13 Once the Bill team has identified the possible need for an amendment, the Bill Minister will need to write to Legislation Committee seeking clearance to table the amendment. However, the Bill team should first discuss the proposed amendment with Parliamentary Counsel, to confirm that a suitable amendment could be drafted in time, and with Legislation Secretariat, to consider any wider handling issues.
31.14 If the Secretariat considers that Legislation 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.
31.15 Letters should include a brief description of the nature and purpose of the amendment. The accompanying amendments template must include a more detailed description and an assessment of the likely handling implications – what level of support/opposition it is likely to receive, both inside and outside Parliament. Legislation Committee can then assess the impact on the Bill in question (e.g. will it delay the Bill's passage or make this harder to achieve) and on the rest of the programme. Letters and templates should set out any implications in terms of the devolved administrations, any regulatory impact or cost/benefit to business, the third sector or the environment, human rights or other legal issues, and any delegated powers. Most importantly, letters and templates should explain clearly why the amendment is necessary.
31.16 If the amendment affects the agreed policy for the Bill, the agreement of the relevant policy committee (e.g. DA, ED) must also be obtained. This can be done through a single letter addressed to the Chair of both Committees and 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.
31.17 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 Legislation 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. All letters should be copied to the Prime Minister, members of Legislation Committee (and members of the relevant policy Committee, if seeking policy clearance), First Parliamentary Counsel and the Cabinet Secretary.
31.18 It is not normally necessary to attach the text of the proposed amendments to the letter seeking clearance, as the letter should describe the effect of the amendments. Vice versa, departments should not wait until Legislation 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.
31.21 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.
31.22 Similarly, amendments that would alter the costs/benefits of the Bill or create new regulatory burdens should be discussed with the Better Regulation Executive and amendments that might raise human rights or other legal issues should be discussed with the Attorney General's Office, and a letter should be written to the JCHR to seek their view.
31.23 If amendments involving further 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, and the Committee may report again. 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.
31.24 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.
31.25 Other, non-Government, amendments to the Bill will of course also be tabled during its passage through Parliament. 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/Peers.
31.26 In some cases it will be clear that non-Government amendments should be resisted (without the need to refer to Legislation Committee or a policy Committee of Cabinet) as being contrary to Government policy.
31.27 In other cases, however, the Minister responsible for the Bill may consider it right to accept a non-Government amendment, either because it represents an improvement on the policy set out in the Bill, or because s/he has concluded, after discussion with the Whips, that accepting it is necessary to the passage of the Bill.
In such cases:
31.28 An amendment might be accepted as it stands if the Member and Minister have been in touch and Parliamentary Counsel has been consulted to ensure the right form of words.
31.29 Where an amendment is passed against the Government's wishes, the Minister will need to consider, in consultation with the Whips, whether to accept that the new provision remain in the Bill, or to seek to reverse it (and if the latter at which subsequent stage), or to bring forward an amendment which would meet at least some of the concerns which have been expressed. The Minister will need to write seeking agreement to the necessary amendments in the normal way.
31.30 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 Legislation Committee would be needed to accept the defeat (i.e. no further amendment needs to be made). Bill teams should also consider whether the amendment affects the devolved legislatures and consult where appropriate.
31.31 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. But Legislation Committee clearance will still be needed as reversing defeats will involve tabling further amendments and may also involve significant handling issues.
31.32 If the intention is to offer a compromise/concession, Legislation Committee clearance must be sought, as should agreement from the relevant policy Committee if the compromise would entail a change of policy from what was originally in the Bill. In all cases, Bill teams should discuss the proposed course of action with Legislation Secretariat before advising their Ministers to write seeking collective agreement.
31.33 If the Government expects to be defeated on a non-Government amendment, it may wish to pre-empt a defeat by tabling a concessionary amendment, which would need to be cleared by Legislation Committee, as well as by the relevant policy Committee of Cabinet if the amendment would have the effect of a change in policy.
31.34 Alternatively, if the non-Government amendment is technically workable and does not represent a fundamental change in policy, the Government may wish simply to accept the amendment rather than let it go to a vote and lose. Again, this would need to be agreed by Legislation Committee. However, as 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 Minister asks the sponsoring Member to withdraw his/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 Legislation Committee clearance before making this commitment to the sponsoring Member.
Making commitments on the floor of the House
31.35 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.
31.36 Ministers may state that they will consider/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.
31.37 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.
31.38 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 s/he had clearance to do so, write to the Member suggesting an alternative form of words as drafted by Parliamentary Counsel.