Guide to Making Legislation

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Guide to Making Legislation

2025

© Crown copyright, 2025 This publication is licensed under theOpen GovernmentLicence 3.0

CONTENTS

SECTION A:INTRODUCTION TO THE LEGISLATIVE PROCESSAND BIDDING FOR LEGISLATION

6

• 1. HOW TO USE THIS GUIDE AND THE ROLE OF THE PARLIAMENTARY BUSINESS AND LEGISLATION (PBL) SECRETARIAT 7
• 2. THE GOVERNMENT’S LEGISLATIVE PROGRAMME AND THE WORK OF THE PBL COMMITTEE 10
• 3. SUMMARY OF STAGES IN THE LEGISLATIVE PROCESS 12
• 4. KEY PLAYERS IN MAKING LEGISLATION 25
• 5. SECURING A SLOT IN THE LEGISLATIVE PROGRAMME 29
• 6. THE BILL AND BILL TEAM MANAGEMENT 34
• 7. COLLECTIVE AGREEMENT 47

SECTION B:PREPARING THE BILL FOR INTRODUCTION 49

• 8. DRAFTING THE BILL 50
• 9. DRAFTING THE BILL: STRUCTURE AND CONTENT OF INSTRUCTIONS TO OPC 63
• 10. EXPLANATORY NOTES 78
• 11. THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR) 106
• 12. OTHER LEGAL ISSUES 115
• 13. IMPACT ASSESSMENTS 125
• 14. DEVOLVED LEGISLATURES AND GOVERNMENTS 131
• 15. DELEGATED POWERS 143
• 16. CROWN DEPENDENCIES AND OVERSEAS TERRITORIES 154
• 17. KING’S AND PRINCE’S CONSENT 157
• 18. TAX AND PUBLIC EXPENDITURE 160
• 19. HANDLING STRATEGIES 163
• 20. PBL COMMITTEE APPROVAL FOR INCLUSION IN THE PROGRAMME AND INTRODUCTION TO PARLIAMENT 165
• 21. PUBLICATION IN DRAFT AND PRE-LEGISLATIVE SCRUTINY 170 SECTION C:ESSENTIAL GUIDANCE FOR BILL TEAMS 177
• 22. AMENDMENTS 178
• 23. BRIEFING MINISTERS FOR BILL WORK AND THE USE OF MINISTERIAL STATEMENTS IN CONSTRUING STATUTE 190

SECTION D:COMMONS STAGES 1893

• 24. THE COMMONS: OVERVIEW OF STAGES 194
• 25. MONEY RESOLUTION AND WAYS AND MEANS RESOLUTION 199
• 26. PROGRAMMING 203
• 27. COMMONS INTRODUCTION AND FIRST READING 209
• 28. COMMONS SECOND READING 216
• 29. COMMONS COMMITTEE STAGE 224
• 30. COMMONS REMAINING STAGES (REPORT AND THIRD READING) 239
• 31. CARRYING OVER LEGISLATION 244

SECTION E:LORDS STAGES 248

• 32. THE LORDS: OVERVIEW AND DIFFERENCES FROM COMMONS’ STAGES249
• 33. LORDS INTRODUCTION AND FIRST READING 254
• 34. LORDS SECOND READING 260
• 35. LORDS COMMITTEE STAGE 263
• 36. LORDS REPORT AND THIRD READING 269

SECTION F:FURTHER ACTION AFTER COMPLETING COMMONSAND LORDS STAGES AND AFTER ROYAL ASSENT

272

• 37. CONSIDERATION OF AMENDMENTS AND ‘PING-PONG’ 273
• 38. ROYAL ASSENT AND COMMENCEMENT 281
• 39. FURTHER ACTION AFTER ROYAL ASSENT 284
• 40. POST-LEGISLATIVE SCRUTINY 290

SECTION G:OTHER TYPES OF GOVERNMENT BILL 300

• 41. HYBRID BILLS 301
• 42. CONSOLIDATION BILLS, LAW COMMISSION BILLS, STATUTE LAW REPEAL AND REVISION BILLS 306 SECTION H:PRIVATE MEMBERS’ BILLS 310
• 43. PRIVATE MEMBERS’ BILLS: INTRODUCTION 311
• 44. PRIVATE MEMBERS’ BILLS: PARLIAMENTARY PROCEDURE 313
• 45. PRIVATE MEMBERS’ BILLS: RESPONDING TO NON-GOVERNMENT BILLS321
• 46. PRIVATE MEMBERS’ BILLS: GOVERNMENT 'HANDOUT' BILLS 332

APPENDIX A: GLOSSARY 338

APPENDIX B: CONTACT DETAILS 342

APPENDIX C: CODES OF PRACTICE AND LEGISLATION 345

APPENDIX D: SECURING LEGISLATIVE CONSENT MOTIONS IN THE DEVOLVED LEGISLATURES 354

APPENDIX E: DELEGATED LEGISLATION TOOLKIT 358

APPENDIX F: OTHER GUIDES 364

APPENDIX G: CHECKLISTS FOR EACH STAGE 366

SECTION A

INTRODUCTION TO THE LEGISLATIVE PROCESS AND BIDDING FOR LEGISLATION

1.HOW TO USE THIS GUIDE AND THE ROLE OF THE PBL SECRETARIAT

• 1.1 The Guide to Making Legislation was prepared by the Secretariat to the Parliamentary BusinessandLegislation(PBL)CabinetCommittee,apartoftheCabinetSecretariatatthe CabinetOffice.ItwasproducedwiththeadviceofParliamentaryCounselandtheOfficesof theCommonsChiefWhip,LordsChiefWhip,LeaderoftheHouseofCommons,Leaderof theHouseofLords,thePublicBillOfficesofbothHousesandofficialsinothergovernment departments.
• 1.2 Itcoverstheprocedurestobefollowedinpreparingprimarylegislationandtakingitthrough Parliament,settingoutwhatisrequiredofbillteamsateachstageoftheprocess.Itshould answerthemostcommonlyaskedquestionsbutshouldnotberegardedasanauthoritative statement of parliamentary practice. Parliamentary Counsel (who may in turn consultthe House authorities) or the Whips Offices should always be consulted on matters of procedure.
• 1.3 TheGuideiswrittenwiththeneedsofdepartmentalteamsinmind,tohelpthemmanage their work effectively throughout the processofpreparinglegislationandtakingitthrough Parliament.Itdescribesthemainfeaturesofthenormallegislativeprocessbutcannotcover every possible circumstance: every bill is different.
• 1.4 The different stages are dealt with in chronological order. Bill teams starting out on the processofpreparinglegislation,particularlythosenewtobillwork,wouldbewelladvisedto readthroughthemainsectionstofamiliarisethemselveswiththetasksaheadandhelpplan theirworkeffectively.However,itisalsodesignedforofficialstoconsultquicklyduringthe legislativeprocesstoidentifythekeypointsandactionsrequiredateachstage.Asummary of key points is provided at the start of each chapter and checklists for each stage are included in Appendix G.
• 1.5 ThemainpartoftheGuidedealswithconventionalgovernmentbillsandwillbethesections usedbymostbillteams.SectionGdealswithcertainothertypesofgovernmentbill:hybrid bills, LawCommissionbillsandconsolidationbills.SectionHdealswithprivatemembers’ billsandwillbeofusetodepartmentalparliamentaryclerksandtopolicyofficialsandprivate secretaries advising and supporting ministers responsible for respondingonbehalfofthe Government to private members’ bills, particularly where the Governmentissupportinga private member’s bill.
• 1.6 This Guide does not cover:
• ● finance bills;
• ● supply and appropriation bills;
• ● bills relating exclusively to Scotland, Wales or Northern Ireland, which are now increasingly rare;
• ● privatebills(billspromotedbyabodyoutsideofParliamentanddistinctfromprivate members’ bills, which are public bills) where the Government is normally represented by parliamentary agents. Guidance should be sought from departmentallegaladvisersinthefirstinstance,orfromthePrivateBillOfficesas far as parliamentary processes are concerned;
• ● secondary legislation. Departmental parliamentary branches or legal advisers shouldholdcopiesoftheStatutoryInstrumentPractice,whichprovidesguidanceon the parliamentary process of secondary legislation. Departmental officials should contacttheirdepartmentalSIlead,PBLSecretariatforinformationontheStatutory Instrument Capability Programme and internal guidance including on seeking collective agreement for secondary legislation; or
• ● legislativereformorders(LROs).SeetheLegislativeReformOrder-makingPowers guidance.
• 1.7 WhiletheSecretariatwillalwaysendeavourtoalertcurrentbillteamstorelevantchangesin procedure, please note that theelectronicversionisthemostup-to-dateversionandany queriesonparliamentaryprocedureshouldbeaddressedtoParliamentaryCounselorthe Whips Offices.

Role of the PBL Secretariat

• 1.8 The Parliamentary Business and Legislation (PBL) Secretariat is part of the Cabinet Secretariat.ItprovidesthesecretariattothePBLCabinetCommittee,advicetotheLeader oftheHouseofCommons(whochairsPBLCommittee)onclearanceoflegislativeproposals (includingamendmentstobills)andadvicetootherministersonthelegislativeprogramme. The full list of Cabinet committees can be found onGOV.UK.
• 1.9 Billteams,secondarylegislationteamsorotherofficialsworkingonlegislationcancontact theSecretariat(contactdetailsatAppendixB)withanyqueriesrelatingtotheirlegislationor the legislative programme. The Secretariat should be notified as early as possible of all requests for clearance and prior to clearance being sought.

2.THE GOVERNMENT’S LEGISLATIVE PROGRAMME AND THE WORK OF THE PARLIAMENTARY BUSINESS AND LEGISLATION (PBL) COMMITTEE

Key points

• ● Parliamentarytimeavailableforgovernmentlegislationisextremelylimited. Departmental bill and secondary legislation teams should rememberthatdelaystotheirlegislationmay cause delays across the rest of the programme.
• ● In devising a legislative programme to reflect the Government's priorities and seeking to resolvehandlingissues,thePBLCommitteeaimstoensurethattimeisusedasefficiently as possible.

The PBL Committee and the Government’s legislative programme

2.1The Government normally introduces a wide-ranging series of bills in each session of Parliament.Italsolayssecondarylegislationineachsession,themostcommonofwhichare statutory instruments (SIs). These are typically used to enable bills (later Acts) to be implemented and operate on a daily basis.

2.2Each bill and piece of secondary legislation is partofthewiderlegislativeprogrammeand cannotbeconsideredinisolation.ThePBLCommitteemanagestheGovernment'slegislative programmeonbehalfofCabinet.Itaimstoensurethatthelegislativeprogrammereflectsthe Government’soverallprioritiesandthatthepassageofeachofthosebillsthroughParliament is as smooth as possible.

2.3The Committee’s systems for scrutinisingbidsforlegislationandmanagingtheprogramme areintendedtobalancetheinterestsofdepartmentsandtheinterestsoftheGovernmentasa whole,withintheconstraintsofparliamentarycapacity.TheyinvolvesettingtheGovernment'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 draftedlegislationtoasatisfactorytimetable,includingremovinglegislationorpostponingitto a future session.

2.4ThePBLCommitteeusuallyreceivesaroundtwiceasmanybidsforlegislativeslotsasthere areslotsavailableineachsession.Manypotentialbillsarethereforenotawardedaplacein theprogrammeandministerialagreementforsecondarylegislationisonlygivenwherethere isaclearrequirementforit.Itiscrucialthatbillsarereadyforintroductionatthestartofthe sessionandsecondarylegislationislaidinParliamentonthedaterequestedbydepartments unlessthecommitteespecificallyagreesotherwise.BillsandSIsthatareawardedaslotbut arenotreadyontimewasteopportunitiesthatcouldotherwisehavebeenawardedtoother legislation.

2.5Bills that require amendments after introduction also place additional pressure on parliamentarytimeanddraftingresources.NomorethanonethirdoftimeintheChamberof theHouseofCommonstendstobeavailableforscrutinyofgovernmentlegislation.Oftenless is available. The PBL Secretariat supports the PBL Committee in the management of the programme to ensure that this limited time isusedaseffectivelyaspossible.Departments mustbewellpreparedforeachstageoftheirbill'spassagethroughParliamentandmanageit effectively,keepingthenumberofamendmentstoaminimum.Ifamendmentsmustbemadeit is important that the Secretariat and the Whips are alerted at the earliest opportunity.

2.6TimetablingofbillstagesacrossthetwoHousesisacomplexexerciseandtimelostonone billhasaknock-onimpactontheprogrammeasawhole.Poormanagementwillreflectbadly on the Governmentandonthedepartmentsandministersconcerned.Inthecaseofmajor delays, bills could be lost from the programme altogether.

2.7Producing 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 BusinessManagersingoodtime,arethe keystoasuccessfulbillteam.Frequentandfrankcommunicationbetweenbillteamsandtheir ministers,andbetweenbillteamsandPBLSecretariat,iscritical.Duringthedraftingphase, PBLSecretariatwillwanttomeetregularlywithbillteamstomonitorprogressinpreparingthe bill.BillteamsshouldalwaysalerttheSecretariattoanysignificantchangestothebilldelivery plan,suchasdelaysindeliveringinstructionstoParliamentaryCounsel,anypoliticalchanges that may impact on the bill, and any other emerging risks. This information will assist the committee in planning for the session ahead.

3.SUMMARY OF STAGES IN THE LEGISLATIVE PROCESS

Key points

• ● This chapterprovidesasummaryofthekeyactionsandissuestobeconsideredateach stageinthepreparationandpassageofprimarylegislationthroughParliament.Itprecedes more detailed guidance and checklists to support each stage throughout this guide.
• ● Thesewillusuallyhavebeenprecededbythenormalstagesinpolicydevelopment:agreen paperdiscussionorconsultationdocument,awhitepaper(majorpolicyproposalssetoutin more detail) and one or more rounds of public consultation.
• ● Thischapterisintendedtogiveanat-a-glanceoverviewofallstages,butitisnotdefinitive. Officialsinvolvedinworkonabillshouldreadindividualchaptersforguidanceonprocedure at each stage(andconsultParliamentaryCounselandtheWhipsOfficesforguidanceon parliamentary procedure).

Before introduction

3.1Securing 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 biddingroundwhentheLeaderoftheHouseofCommons,aschairofthePBLCommittee, invites Cabinet colleagues to submit bids for bills for the following session of Parliament.

3.2BidsmustbebylettertothechairofthePBLCommitteeandaccompaniedbyabidtemplate (which will beavailablefromtheSecretariat).ThePBLCommitteewillassessbidsontheir priority and state of readiness and advise Cabinet on thecontentsoftheprogramme.The programmewillbereviewedinpreparationfortheKing'sspeech,inthelightofanyemerging bidsandprogressinpreparingthosebillsalreadyprovisionallyintheprogramme.Latebids musthaveaverystrongcase,asotherbillsarelikelytohavetoberemovedtoaccommodate them.

3.3Publiccommitmenttolegislate:ministersshouldnotmakeapubliccommitmenttolegislate in the forthcoming session of Parliament unless or until PBL Committee has agreed the inclusionofabill.TheGovernment'sannouncementofitsintentiontolegislateonaparticular issuewillnormallybemadeaspartoftheKing’sspeech.Priortothis,ministersshouldusethe standardwordingthattheyintendtolegislate“whenparliamentarytimeallows”(andthenonly if the policy content has already been collectively agreed).

3.4Settingupthebillteam:Awell-resourcedbillteamiscritical.Adedicatedbillmanagerand team should be appointed as soon as the department secures a slot in the forthcoming legislativeprogramme,andappropriatelytrained.Thebillmanagerwillneedtoproduceand monitorprogressagainstadeliveryplan,coordinateallworkonthebillandprovideregular updates to ministers, officials involved in work on the bill, departmental lawyers, the departmentalparliamentarybranchandthePBLSecretariat.Aseniorprojectboardshouldbe establishedtomonitorprogressonthebill,inmostcasesreportingintoastrategiclegislation board overseeing the department’s wider legislative programme.

3.5Collectiveagreement:TherelevantpolicyCabinetcommitteemustagreethepolicycontent of the bill before drafting instructions can be sent toParliamentaryCounselandmustalso 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.

3.6Drafting instructions to Parliamentary Counsel: Parliamentary Counseldraftbillsonthe basis of instructions from departments. Drafting work can begin when the bill has been allocatedaslotintheprogrammeanditspolicycontenthascollectiveagreement.Billteam anddepartmentallawyersshouldmeetParliamentaryCounselatanearlystagetodiscussa 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-draftingwillcontinue until a final version of the bill is agreed.

3.7Publicationindraft:Abillmaybepublishedindraft.PBLCommitteeagreementisneededto theprincipleofpublicationindraft,usuallyaspartoftheannualbiddingroundforbills.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 arrangementswiththeHouseauthorities.Whenthebillisreadyforpublicationindraft,itmust becirculatedtothePBLCommitteeforclearance,alongwithacoveringmemorandumwhich should include parliamentary handling, explanatory notes, impact assessment, legal issues memorandum, and delegated powers memorandum. Draft bills should be presented to Parliamentandpublishedascommandpapers,withthedelegatedpowersmemorandumsent to the DPRRC. Your departmental parliamentaryclerkcanadviseonpublishingcommand papers.

3.8Explanatory notes: Explanatory notes must be published alongside every governmentbill andaredraftedbythebillteaminconsultationwithdepartmentallawyers.Theymustbeready bythetimethebillcomestothePBLCommitteeforapprovalforintroductionandshouldbe publishedatthesametimeasthebill.TheymustbeapprovedforpublicationbytheClerkof LegislationinbothHouses,andsothefinaldraftneedstobesenttothePublicBillOfficeno later than two to three working days before the text of abillishandedinbyCounsel(the ‘NoticeofPresentation’)toallowtimeforfeedbackfromthePublicBillOfficeandnecessary revisions.ThefinalexplanatorynotesneedtobesenttotheClerkofLegislation,theClerkof Publishing,andbothPublicBillOfficesbeforeintroduction.Explanatorynotesareupdatedby thedepartmentatvariouspointsduringthepassageofaBill,withafinalversionpublished alongside the Act after Royal Assent.

3.9EuropeanConventiononHumanRights:Departmentallegaladviserswillneedtopreparea legal issues memorandum for the PBL Committee beforethebillisintroduced,settingout, among other things,thebill'scompatibilitywiththeEuropeanConventiononHumanRights (ECHR).TheministerinchargeofthebillineachHousemustalsosignastatementastothe bill'scompatibilitywiththeECHR.Thisappearsonthefrontpageofabillasintroduced,and asreprintedforthesecondHouse.Aspartofthis,thedepartmentshouldprovideanalysisof why the Bill is considered ECHR compliant and whether the Bill’s provisions engage Conventionrightsandifso,whatthoseissuesare.Thisiseitherdonethroughtheexplanatory notes(ifnottoolengthyananalysis)oraseparatehumanrightsmemorandum(oftencalleda JCHRorECHRmemorandum).TheSecretariatcanprovidefurtheradviceonacasebycase basis.

• 3.10 Otherlegalissues:Thedepartmentmustalsoconsiderotherlegalissues,andproducean 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. New legislative proposals which relate totheprocessingof personal data should be compatible with data protection legislation. To ensure that the proposalsarereadasbeingsubjecttothedataprotectionlegislation,specificwordingshould be used to makethisclear1. TheDataProtectionPolicyTeaminDSITcanprovidefurther advice and support ifrequired.ParliamentaryCounselshouldbeabletoadviseonsuitable wording.TherearealsolegalrequirementstoconsulttheInformationCommissioner’sOffice on the development of such proposals, as set out in Article36(4)oftheUKGeneralData Protection Regulation (UK GDPR).
• 3.11 Environmental provision: Departments must consider whether the bill contains environmental law under section 20 of the Environment Act 2021. If a bill contains environmentallaw,theMinisterinchargeofthebillmuststatethatthisisso,andalsostate eitherthattheprovisionwillnotlowerthecurrentlevelofenvironmentalprotectionprovidedfor inexistingenvironmentallaworthattheyareunabletomakeastatementtosucheffect,but that the Government nevertheless wishes the HousetoproceedwiththeBill.Ministerswill need to sign a statement which appears on the front page of the bill.
• 3.12 Provisions affecting trade between NorthernIrelandandotherpartsoftheUK: In accordancewiththerequirementinsection13CoftheEuropeanUnion(Withdrawal)Act2018 (EUWA), if a bill contains provisions which the Minister in charge of the bill considers, if enacted,wouldaffecttradebetweenNorthernIrelandandotherpartsoftheUnitedKingdom, thenthatMinistermustmakeastatementastowhetherthatprovisionwouldhaveasignificant adverse effect on such trade. The statement appears on the front of the bill.
• 3.13 Impactassessments:ImpactassessmentsaregenerallyrequiredforallUKgovernment interventionsofaregulatorynaturethataffecttheprivatesector,civilsocietyorganisationsand

1Sometimes this is referred to as the 'statutory override'because it makes it clear that the provisions should be read as being subject to the data protection legislation. For example,see section 49(2) and (3) of the AgricultureAct 2020.

public services (full details available in the impact assessment guidance). Thefinalimpact assessment must be circulated to the PBL Committee alongside the bill and other papers when it isconsideredforapprovalforintroduction.Itispublishedalongsidethebillandthe finaldocumentshouldbesharedwiththePublicBillOfficetogetherwiththeexplanatorynotes and Delegated Powers Memorandum.

• 3.14 Impactonthedevolvedgovernments: Departmentsmustidentifyfromanearlystage whetherornottheirlegislationwillapplyindevolvedortransferredareasofcompetence,or will impact the executive or legislative powers of the devolved institutions; in these circumstances, legislative consent motions (LCMs) will be required from the devolved legislatures. Officials in the Union and Devolution Directorate, 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 implicationsforthedevolvedgovernments.Beforeabill’sintroduction,thePBLCommitteewill also expect the devolved governments 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 andasymmetrical,andso 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.
• 3.15 Delegatedpowers:Departmentsmustconsiderwhatdegreeofparliamentaryscrutinyis consideredappropriateforanydelegatedpowersinthebill,andproduceadelegatedpowers memorandumforthePBLCommittee,justifyingtheinclusionofpowersandaddressingany 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.ThememorandummustbepublishedonintroductioninthefirstHouseandshouldbe 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 RegulatoryReformCommittee(DPRRC)onthedayofintroductionintheHouseofLords.If theHouseofCommonsisthefirstHouseandamendmentsaremadeinthefirstHouse,the memorandumshouldbeupdatedonintroductiontotheHouseofLordsandformallysubmitted 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.
• 3.16 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 theDepartment for Science, Innovation & Technologyto ensure the measuresare in line with collectively-agreed digital regulation principles.
• 3.17 National Security: New policy, powers and legislation may impact the UK’s National Securitycapabilities,evenwherethereisnotanimmediatelyobviouslinktonationalsecurity. Departmentsshouldthereforeconsideranyreadacrosstonationalsecuritycarefullyand can contact colleagues in the National Security community todiscussanyproposedmeasures. ThekeystakeholdersinthisareaaretheUnitedKingdomIntelligenceCommunity(knownas UKICandconsistingofMI5,SIS(MI6)andGCHQ),theHomeOffice,Foreign,Commonwealth andDevelopmentOfficeandCabinetOffice.TheCabinetOfficecanprovidecontactdetailsif needed. You should adhere to departmental security advice when discussing sensitive matters.
• 3.18 Itisimportanttoconsiderwhatcanandcannotbediscussedinpublicandparliamentary handlingmayseemchallenging. However,therearemanyoptionsthatcanbeconsidered, suchasbriefingindividualsonPrivyCouncilterms. Departmentsshouldseekadvicefromthe National Security community on options and advice on what information can be disclosed.
• 3.19 The work of the intelligence Agencies and various otherpartsofGovernment'snational security machinery is overseen by the Intelligence and Security Committee (ISC) of Parliament,whichhasmembersfromtheHouseofCommonsandtheHouseofLords. The ISC has special arrangements and facilities to handle highly classified material. Proactive briefingisoftenhelpfulandsupportfromCommitteememberscanbeveryuseful.TheCabinet Office coordinates the relationship across the Agencies and departments within the ISC’s remit.
• 3.20 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;theCaymanIslands;Gibraltar;theFalklandIslands; 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); StHelena,AscensionIslandandTristandaCunha;theTurksandCaicosIslands; andtheVirginIslands(commonlyknownastheBritishVirginIslands)). Itisfordepartmentsto ensure they consult the Overseas Territories on proposals with implications for them.
• 3.21 Application tothe Crown:Departmentsshoulddecideearlyonwhethertheobligationsor restraints that the proposedlegislationwillimposeareto apply tothe Crown,toservantsor agentofthe Crown orinrelationtoCrownproperty. ThepolicyasregardsCrownapplication willbesomethingthatwillneedtobeconsideredcarefullywithdepartmentallawyersandthe decisions taken will need to be set out in the instructions to Parliamentary Counsel.
• 3.22 King's and Prince of Wales’ consent: Departments should identify at an early stage whether Kings 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 Houseauthoritieswillberequired.Thedepartmentmustthenseekthese consents, which are signified at Third Reading. If there is any doubt as to whether these consents are required, Parliamentary Counsel will consult the two Public Bill Offices.
• 3.23 Tax and publicexpenditureimplications:TheagreementoftherelevantHMTreasury ministermustbeobtainedtoanytaxproposal,ortotaximplicationsofnewactivitiesorbodies proposed.HMTreasuryagreementmustalsobeobtainedtothebill'spublicexpenditureand public service manpower implications. Bilateral agreement with HM Treasury should have been reached before collective agreement for the policy is sought.Departmentsmustalso ensure they observe the guidance on expenditure propriety intheManagingPublicMoney guidance.DepartmentscannotnormallyincurexpenditureinadvanceofbothRoyalAssentof the enabling legislation and any necessary parliamentary authority throughtheSupplyand Appropriation Act.
• 3.24 ApplicationinrelationtoParliament:Departmentsmustidentifytheimplications,ifany, oftheirlegislationforParliamentandtheParliamentaryestate.Theareasoflawwhereissues ofthiskindmightariseincludeemployment,healthandsafety,enforcementregimes,rightsof entry,licensing,advertising,contracting,planningandpublicorderaspectsofcriminallaw.If thereareimplications,DepartmentsareexpectedtogivetheHouseAuthoritiesanopportunity to comment on the proposals at an early stage.
• 3.25 Handlingstrategies:billteamswillneedtoprepareaparliamentaryhandlingstrategyand a wider stakeholder/media handling strategy in consultation with the Government Whips' OfficesintheCommonsandLordsandwiththedepartmentalpressofficerespectively(see Appendix B for contact details for the Commons/Lords Whips’ Offices).
• 3.26 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 memorandumandthesupportingdocumentsmentionedabove,including:explanatorynotes, 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

• 3.27 ThebillwillstartineithertheCommonsortheLords.TheHouseanddateofintroduction willbeagreedbythePBLCommitteeonadvicefromtheBusinessManagers.Billsstartingin theLordsmustcompletebroadlythesamestages.TherearefivekeystagesineachHouse (summarised below).

Summary of a bill's stages:

• 1. First Reading– formal presentation of the bill(no debate)
• 2. Second Reading– debate on general principles ofthe bill
• 3. Committee Stage– detailed clause-by-clause examinationof the bill, consideration of amendments, and in the Commons oral evidence heard and written evidence published (if necessary)
• 4. Report Stage– Further opportunity to consideramendments
• 5. Third Reading– Final consideration of the bill

Detail of each stage:

• 3.28 IntroductionandFirstReading:IntheCommons,theClerkattheTablewillreadoutthe shorttitleofthebill,andaministernods,afterwhichthebillisdeemedtohavebeenreadthe firsttime. Thereisnodebate. IntheLords,theministerinchargeofthebilliscalledbythe LordSpeakerorDeputyonthewoolsack,normallyatthebeginningofpublicbusinessafter oralquestionsandafteranyformalbusiness. Theministerthenintroducesthebillbysaying: “MyLords,Ibegtointroduceabillto[longtitleofbill].Ibegtomovethatthisbillbenowreada first time." The motion is then agreed without debate.
• 3.29 Introduction is supported by the provision and publication of various documents:
• ● ThefinaltextofthebillissuppliedbyParliamentaryCounseltothePublicBillOfficethe day before introduction and ahead of publication.
• ● Thedepartmentisresponsibleforsupplyingthefinaltextoftheexplanatorynotestothe PublicBillOfficethedaybeforeintroduction(havingclearedthedraftversionwiththem in advance) for publication overnight after introduction.
• ● Thedepartmentshouldalsoensurethattheministerwhowillbeinchargeofthebillhas signedtheECHRstatementandthatconfirmationthatthishasbeensignedhasbeen senttoParliamentaryCounsel.IfaseparateECHRmemorandumhasbeenprepared (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.
• ● Thedepartmentisalsoresponsibleforthepublicationofanimpactassessment,which shouldbepublishedonGOV.UKandalsosharedwiththeCommons'PublicBillOffice to be uploaded on the bill’s page on the Parliament website, and for ensuring the appropriate availability of relevant older papers and revised editions of Acts.
• ● Thedepartmentmustalsoformallysubmittheirdelegatedpowersmemorandumtothe Delegated Powers and Regulatory Reform Committee:

o For bills starting in the House of Commons: the memo should be senttothe CommonsPublicBillOfficeforpublicationonintroduction.Whenthebillmoves totheHouseofLords,thememoshouldbeupdatedtoreflectanyamendments madeintheCommonsandformallysubmittedtotheDPRRConthedayofLords introduction. The DPRRC will formally consider the memo when the Bill is in Lords, but nonetheless it should be published on Commons introduction to enable scrutiny in the first House.

o ForbillsstartingintheHouseofLords:thememoshouldbeformallysubmittedto the DPRRC on the day of introduction.

• ● SupportingpapersmustbedeliveredtotheVoteOffice(whowillbeabletoadviseon how many copies are required); it is not sufficient to refer members to a website.
• 3.30 CommonsSecondReading:Thereisaconventionthatthedebatewillnotusuallytake placeuntiltwoweekendshavepassedfollowingthepublicationofthebill.Speakingnotesand briefingneedtobepreparedforboththeministeropening(usuallytherelevantSecretaryof State) and the minister (usually the lead bill minister) winding up the debate. Programme motions are normally taken immediately after Second Reading withoutdebate,followedby moneyresolutions,waysandmeansresolutionsand,ifnecessary,carryovermotions.Their preparation is a matter for Parliamentary Counsel.
• 3.31 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 normallytakesplaceinapublicbillcommittee,whichinmostcaseswilltakeevidencefrom experts and interest groups, including from the minister and officials before beginning clause-by-clause scrutiny of the bill and considering amendments selected for debate according to the programme resolution.
• 3.32 Forbillsthathavebeensubjecttopre-legislativescrutiny,thecommitteemaydecidethat oralevidencesessionswillnotbeheld.Oralevidenceisnotheardforbillsthatstartedinthe Lords. TheCommitteeStagecanalsotakeplacein‘CommitteeofthewholeHouse’,whichis usuallyforbillsofafinancialorconstitutionalnatureorfor‘emergency’legislationthatisbeing taken forward under the fast-track procedure. The Government, the opposition parties or backbenchers can table amendments. Clearance to table government (or to accept non-government) amendments must be obtained from the PBL Committee and from the relevantpolicyCabinetcommitteeiftheamendmentsrepresentachangeinpolicy.Forbotha publicbillcommitteeandacommitteeofthewholeHouse,briefingandspeakingnotesmust beproducedforministersoneachclause(incaseofdebateon“clausestandpart")andon any amendments tabled.
• 3.33 Commons Report Stage: A further chance to consider amendments to the bill, this happensontheflooroftheHouseandcantakeplaceanytimefromaweekafterCommittee Stage (or sometimes evenearlier).Debateisconfinedtoamendmentsselectedfordebate, ratherthanaclause-by-clauseexaminationofthebill.Thisisusuallythefinalamendingstage in the Commons.
• 3.34 Commons Third Reading: NormallytakesplaceimmediatelyafterReportStage.Itisa furtherchancefortheHousetoconsiderwhetheritwishesthebillasawholetoproceed,in thelightofamendmentsatCommitteeandReportStages.Noamendments(otherthan'purely verbal' amendments, which are extremely rare) are permitted at Third Reading.
• 3.35 TransmissiontotheLordsandFirstReading(orintroductionintheLords,forthosebills startinglifeintheLords):WhenabillispassedbytheCommons,itistakentotheLordsbya Commons Clerk. The First Reading is moved immediately without debate and the bill is printed.IfthebillcomesfromtheCommons,theexplanatorynotesandimpactassessment should be revised to take into account changes in the first House and a further ECHR statementetcmustbesignedbytheministerwhoisinchargeofthebillinthesecondHouse. TheexplanatorynotesshouldbesenttotheLordsPublicBillOfficeforpublication(havingfirst cleared the draft with them). The minister must also formally submitthedelegatedpowers memorandum to the Lords' Delegated Powers and Regulatory Reform Committee, having updated it to reflect any changes made to the bill in the Commons.Whereabillstartsits passage in the Lords, the bill minister reads out the long title of the bill at First Reading.
• 3.36 Lords Second Reading: This can take place once two weekends have elapsed since introduction.TheprocedureissimilartotheCommons,withsomeminordifferencesincluding that the House of Lords does not vote on Second Reading2. There is alsonoprogramme motionorfinancialresolutionsintheLords,althoughanorderofconsiderationmotionmaybe moved to alter the order in which the bill will be considered in committee.
• 3.37 LordsCommitteeStage:EithertakesplaceontheflooroftheHouse(‘committeeofthe wholeHouse’),orinacommitteeroom(‘grandcommittee’)andcanbeginonce14calendar dayshaveelapsedsinceSecondReading.Therequirementforproducingspeakingnotesand backgroundforministersonclausesandamendmentsisthesameasintheCommons.Asin theCommons,PBLCommitteeclearancemustbesoughttotablegovernmentamendmentsto thebill,andpolicyclearanceisalsonecessaryiftheamendmentswouldeffectachangein government policy.
• 3.38 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. Supplementary

2Unless an amendment to the motion for Second Reading has been tabled.

memoranda,alongwiththetextoftherelevantamendments,mustbereceivedon(orbefore) the day an amendment is tabled. This also applies to government amendments tabled at Lords’ ReportStageandThirdReadingandforthoseconsideredatLords’considerationof Commons amendments.

• 3.39 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.
• 3.40 Lords Third Reading: The principal purposes of amendments onThirdReadingareto clarifyanyremaininguncertainties,toimprovethedraftingandtoenabletheGovernmentto fulfil undertakings given atearlierstagesofthebill.Amendmentsarerestrictedtotechnical points.Anissuewhichhasbeenfullydebatedandvotedonornegativedatapreviousstage of a bill may not be reopened by an amendment on Third Reading.
• 3.41 'Ping-pong':IfthebillhasbeenamendedinthesecondHouse,itgoesbacktotheHouse ofintroductionforconsiderationoftheamendmentsinquestion(‘Commonsconsiderationof Lords’amendments’or‘LordsconsiderationofCommons’amendments’).ThefirstHousecan accept, reject, amend or suggest an alternative to the amendments (amendment in lieu), whichthesecondHousewillthenconsider.Themattergoesbackandforwardbetweenthe two Houses (‘ping pong’) until agreement has been reached, or until there is ‘double insistence’3and the bill falls.
• 3.42 AfinalsetofexplanatorynotesisusuallyrequiredwhenabillreturnstothefirstHousewith amendments, which explains the amendments made by the second House.4 These explanatory notes are published by the first House and a draft is to be checked by that House’sPublicBillOfficeinadvanceofpublication(thesamewithotherexplanatorynotes).A supplementary delegated powers memorandum addressinganyamendmentswhichinclude 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.

4This may not be feasible if proceedings are movingvery quickly, for instance on a fast track bill or during wash-up. 3The 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 without any alternative proposal. If this point is reached the bill is lost.

On completion of parliamentary stages

• 3.43 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 theLordsbeforethebillisintroduced. Billteamsmustmake known to PBL Committee any requirements for Royal Assent by a particular dateandthe reasons for this requirement.
• 3.44 Commencement: Commencement dates should be specified in the Act wherepossible andappropriate.NosubstantiveprovisionofanActshouldbebroughtintooperationearlier thantwomonthsafterRoyalAssent,althoughsomesectionsoftheActcanbebroughtinto forceonRoyalAssent,typicallysectionssettingouthowtheActistobecitedandwhatthe procedure is for making regulations or commencing the Act. In exceptionalcircumstances, approvalforearlycommencementshouldbesoughtfromtheLawOfficersandthechairofthe PBLCommittee.RetrospectiveprovisionsalsoneedtobeagreedbytheLawOfficers(contact detailsfortheAttorneyGeneral’sOfficeandtheLegalSecretariattotheAdvocateGeneralfor Scotland can be found at Appendix B).
• 3.45 Printing: Departments should let Parliamentary Counsel and the Legislation Services TeamintheNationalArchivesknowifanActisexpectedtocomeintooperationimmediately. Thisissothatarrangementscanbemadeforearlyclearanceoftheapprovedtext,expedited printing and immediate publication of the Act on thewww.legislation.gov.ukwebsite.
• 3.46 Guidanceandpublicity:Wherenewlegislationaffectsbusinessorcivilsociety,guidance shouldbepublishedasearlyaspossiblebeforetheActcomesintoeffectandthechangesin thelawshouldbepublicised.Departmentsshouldnotleavepreparationofguidancetothelast minute. Departments should consider which other groups should be informed of the new legislation and how this can be achieved most effectively.

4.KEY PLAYERS IN MAKING LEGISLATION

4.1Preparation and passage of legislation requires strongcross-departmentalandgovernment working. This section provides an overview of thedifferentplayersacrossgovernmentand their role in the process.

4.2ThePBLSecretariatsupportsthePBLCabinetCommitteeintheoverallmanagementofthe Government'sprogrammeoflegislationandprovidesadvicetoministersonlegislativeissues. TheSecretariattotherelevantpolicysub-committeeofCabinetwillcoordinatethecollective agreement process for the policy in the bill or piece of secondary legislation.

4.3TheOffice of the Parliamentary Counselis responsiblefor drafting the bill.

4.4The Public and Private Bill Offices of the two Houses support the legislative process in Parliamentandadvisegovernmentandoppositionmembers,andthechairintheHouseand inCommitteeStage. TheClerkofLegislationintheCommonsandtheClerkofLegislationin theLordsclearbillsforintroductionasconformingwiththerulesofeachHouse.Theirteams publish bills, explanatory notes and amendments. The Lords PublicBillOfficesuppliesthe final text of Acts to The National Archives for publication.

4.5The Government Whips' Office in the Commons supports the governmentwhipsinliaising throughtheusualchannelsonprogrammemotionsandsupportingministersatallstagesof the bill. It can also provide advice on the programming and timing of legislation and on parliamentary procedures for bills.

4.6The Government Whips' Office in the Lords negotiatestosecuretimeforbillsintheLords (wherethereisnoprogramming)andnegotiatesthegroupingofamendments.Itoffersadvice andassistancewithallaspectsofparliamentaryprocedureandhandling,includingdelegated powers, and will support the Lords minister in the chamber.

4.7TheAttorneyGeneral'sOfficeandtheLegalSecretariattotheAdvocateGeneralforScotland advisetheLawOfficerswherebillsraiseissuesofparticularlegaldifficulty,disagreementor importance. They also advise on retrospectivity, early commencement, Crown immunity, devolution or ECHR compatibility and will work with departments and relevant centres of excellence when considering such legal issues. They adviseonlegalissuesmemorandum andwillconsiderdraftmemorandumsbeforeconsiderationbythePBLCommitteeaheadof introduction.

4.8Your departmental Better Regulation Unit advise on impact assessments, guidance for business and civil society,applicabilityoflegislationtosmallfirmsandanyotherregulatory issues,includingobligationsinfreetradeagreements.Theyshouldagreetheapproachtaken with the impact assessment and will want to be satisfied that the bill does not impose disproportionateburdensonbusinessorcivilsociety.Theyshouldalsobeabletoadviseon the process for submitting impact assessments to the Regulatory Policy Committee. The Digital Regulation Team in the Department for Science, Innovation & Technology can help advise on best practice when legislating to regulate digital technologies.

4.9If your bill proposes to establish, disestablish, re-classify, or merge an arm’s-length body (ALB),youmustseekCabinetOfficeandHMTreasuryministerialapprovalbeforetakingsteps to deliver the proposed change. Guidance is available in The Approvals Process for the Creationof NewArm’s-LengthBodies:GuidanceforDepartments. YourdepartmentalALB partnership team will be able to assist you in navigating this approval process in the first instance. They may then connect you with the Cabinet Office’s Public Bodies Team (publicbodiesreform@cabinetoffice.gov.uk) and HM Treasury.

• 4.10 IfyourbillimpactstheUnitedKingdomIntelligenceAgencies(MI5,SIS(MI6)andGCHQ), departments should contact colleagues to discuss the legislative proposals. The Foreign, Commonwealth&DevelopmentOfficeshouldbecontactedinrelationtoSISandGCHQ,and theHomeOfficeforMI5.Youshouldadheretodepartmentalsecurityadvicewhendiscussing sensitive matters.
• 4.11 For proposals that may affect competition (for example, by raising barriers to entry or privileging one business model over another), Departments should discuss with the Competition and Markets Authority (CMA) and consider CMA’s “competition assessment checklist” to assess the likelihood of impacts on competition and consider mitigations or alternative options, including those which could promote competition, supplementing the analysis in the Regulatory Impact Assessment.Guidanceonhowtocompletethechecklist can be found in the Competition impact assessment: guidelines for policymakers. Departments who are undertaking a competition assessment with complex issues should speaktotheCMAforfurtherguidance(advocacy@cma.gov.uk).TheCompetitionPolicyteam at the Department for Business and Trade can also provide advice (CompetitionPolicy@businessandtrade.gov.uk).
• 4.12 Your department’s equality and diversity lead can advise on how to ensure that you properlyconsidertheimpactofyourproposedpoliciesondifferentgroups–suchasinregard to race, gender, disability, etc. Note that it is a statutory requirement to do this when developing new policies. Detailed advice and guidance is available from the Equality and HumanRightsCommission.TheGovernmentEqualitiesOfficecanalsoassist,inthecaseof more complex enquiries.
• 4.13 The Scotland Office is the first port ofcallfordiscussinganyprovisionsthatmayaffect Scotland,includingidentifyingwherealegislativeconsentmotionmayberequiredifthebill touches on matters that are devolved to Scotland. It can also support departments inany negotiations with the Scottish Government.
• 4.14 The Office of the Advocate General for Scotland is part of the UK Government and provides legal advice on Scots lawand associateddevolution.
• 4.15 TheWalesOfficeisthefirstportofcallfordiscussinganyprovisionsthatmayaffectWales, includingidentifyingwherealegislativeconsentmotionmayberequiredifthebilltoucheson matters that are devolved to Wales or where Welsh ministers should be consulted on provisionsinthebillthatextendtoWales.Itcanalsosupportdepartmentsinanynegotiations with the Welsh Government.
• 4.16 TheNorthernIrelandOfficeisthefirstportofcallfordiscussinganyprovisionsthatmay affect Northern Ireland, including identifying where a legislative consent motion may be required if the bill touches on matters that are transferred to Northern Ireland. It can also support departments in any negotiations with the Northern Ireland Executive.
• 4.17 Theparliamentaryprivatesecretarytothebillministerorsecretaryofstatewillsitonthe publicbillcommitteeandadvisetheministeronhandling.Contactcanbemadethroughthe bill minister’s Private Office.
• 4.18 DepartmentsshouldconsultTheNationalArchivesandthelegalteamattheDepartment forCulture,Media&SportatanearlystageonanyproposalstoamendthePublicRecords Act 1958.

5.SECURING A SLOT IN THE LEGISLATIVE PROGRAMME

Key points

• ● Forprimarylegislation,thechairofthePBLCommitteewillrequestbidsforlegislationahead ofthenextsession.Bidsshouldbemadeusingthebiddingtemplateprovided,settingout the broad policy objectives, the requirement for legislation and provisional timelines or deadlines.
• ● The PBL Committee will assess bids on their political importance, urgency and state of preparation.ItwillthenmakerecommendationstoCabinetonthecontentofthelegislative programme,providingdraftingauthoritywhereappropriate.Latebidsforlegislationcanbe madebutwillneedtohaveastrongcaseforinclusionintheprogrammeasthismaybeat the expense of another bill.
• ● ThePBLCommitteewillreviewtheprogrammethroughouttheyearandthismayresultina billbeingdeferredtoalatersessionifhigherprioritiesemergeorifitisunlikelytobeready on time.
• ● Announcementsaboutanintentiontolegislateinaparticularsessioncanonlybemadewith the agreement of the PBL Committee or following an announcement in the King’s speech.
• ● Forsecondarylegislation,departmentsrequestaslotfortheirstatutoryinstruments(SIs)by proactively engaging with PBL Secretariat’s monthly SI triage process. The PBL Triage ministers,asubsetofthefullPBLCommittee,reviewtheSIsbeforeprovidingdepartments with PBLclearancetoproceedwiththeSIontherequesteddate.Officialsresponsiblefor deliveringtheirdepartment’ssecondarylegislationprogrammescanobtaininternalguidance on engaging formally with the SI triage process by contacting the PBL Secretariat on pblsecondarylegislation@cabinetoffice.gov.uk.

Is a legislative slot necessary?

5.1Before seeking a slot in the legislative programme, departments should consider whether legislationisnecessary.Parliamentarytimeislimitedanddepartmentsshouldalwaysconsider whethertheendstheywishtoachievecouldbereachedbypurelyadministrativemeans.Ifit is certain that legislation is required, departments should consider whether secondary legislation or a legislative reform order could be used.

5.2Whenconsideringlegislation,departmentsshouldbereadytochallengethecontentoftheir billsandSIsandensurethatbillsandSIsintroducedtoParliamentareasclear,coherentand effective as possible.

5.3Mistaken perceptions of what the law requires can encourage risk-aversion and inaction. Good law is: necessary, clear, coherent, effective and accessible (see the Office of the Parliamentary Counsel website). An understanding of ‘good law’ should underpin the preparationandpromotionoflegislation. Itshouldbethedefault,withgoodlawprinciples guiding all those involved at different stages and in various capacities in the making of legislation. Like open policy-making and the strategic use of digital technology, good law should be considered part of the user-centred approach across government.

Preparation of the legislative programme and submitting a bid for legislation

5.4InordertoensurethatthenecessaryCabinetcommitteeshavealltheinformationneededto assesstherelativepriorityofbidsforprimarylegislation,bidsshouldbesubmittedusingthe biddingtemplateprovidedbythePBLSecretariatwhichshouldincludeasummaryofthebill, the driver for the bill and any proposed or imposed timelines. Departments should also consider at this stage whether their bill might be suitable for publication in draft for pre-legislative scrutiny.

5.5Bidsshouldbesubmittedbythedeadlinerequested,sothatthePBLCommitteeandCabinet have a complete overview of all the likely requests for legislation on which to base their decisionsabouttheprogramme.Evenwheredetailsarestillsketchyitisfarbettertosubmita bidontimethantosubmitabidlaterinthesession,asaccommodatingabillatthatstagemay well be at the expense of another bill.

5.6Departmentsneedtohavesystemsinplacetoensurethatalllikelybidsarecapturedinthe annualbiddinground.Departmentsshouldhaveanominatedlegislationcoordinator,whowill actasthepointofcontactforthePBLSecretariat.DepartmentsshouldconsiderwhetherLaw CommissionrecommendationsacceptedbytheGovernmentcouldbeincludedintheirbidas a standalone measure or part of a larger bill.

5.7ThePBLSecretariatwillprovideclearcommunicationsontheoverallapproachtoabidding round ahead of a new session, including deadlines throughout the process, but as an example:

Example timetable for preparing and finalising the legislative programme

9-10 months before the start of the session

• ● Request bids for legislation
• ● The PBL Secretariat produces recommendations for thePBL Committee, in consultation with theBusiness Managers, No.10 and ParliamentaryCounsel, taking into account political priorities and the state of preparation of bills
• ● Cabinet considers the PBL Committee's recommendations and reaches a provisional view on the contents of the following session's legislative programme
• ● At this point PBL will provide provisional drafting authority to departments to ready approved bills.

5-6 months before the start of the session

• ● The PBL Committee considers progress on bills in the programme and looks at any emerging bids. It considers whether any changes need to be made to the programme (this can happen more than once)

One months before the start of the session

• ● Cabinet finalises the programme and agrees the content of the King's Speech
• ● Departments work on products to support the Speech

Criteria for assessing bids

5.8Therearealwaysmorebidsforlegislationthanthereareplacesintheprogramme.ThePBL Committeeassessestherelativepriorityofeachbidagainstcriteriasetoutbythechairofthe committee. These factors would normally include:

• ● Whether legislation is necessary: The PBL Committee will want to satisfy itselfthatthe proposal cannot be implementedusinganothermeans,suchassecondarylegislation,a legislative reform order or a non-legislative mechanism;
• ● Politicalcontentandurgencyoftheproposedbills:Somemayhaveapoliticalpriority(such as government priorities or manifesto commitments) and others may be essential (for example, to meet international obligations);
• ● How far advanced work is on the bill and how well prepared the bill is likely to be:

significant progress in agreeing the policy content of the bill would normally be expected;

• ● Whetherthebillhaspreviouslybeenpublishedindraftforconsultationandpre-legislative scrutiny. While publication in draft does not guarantee a place in the following year's programme, it is a factor that the PBL Committee will look on favourably;
• ● Anyhandlingissues,parliamentarypressuresandstakeholderopinion,includinghowthe bill could be managed; and
• ● The devolution position and handling.

5.9If it is politicallyimportant,abillmaybegivenaslotintheprogrammebeforemanyofthe detailshavebeenfullyworkedout.Ifthisisthecase,thebillministershouldsubmitabidwith a clear statement of what the bill is expected to contain and indicating the timetable for remainingstagesofpolicydevelopment.ThePBLCommitteecanthenconsiderwhetherthere isroomforthebillintheprogrammeandifitwouldbefeasibletoprepareabillinthetime available. The PBL Committee will award such bills a slot in the programme only if it is confidentthattheremainingdetailscouldbeworkedoutandthebillpreparedingoodtimefor introduction, including sufficient time for public consultation where appropriate.

• 5.10 Whenadepartmentbidsformorethanonebill,itshouldranktheminorderofpriorityand, aswellastheneedtolegislate,shouldconsidertheworkloadonministersandofficialsifthey are involved in more than one bill at once. The Government Whips' Offices,theminister's Private Office and the departmental parliamentary branch can help develop a reasonable assessment of the difficulties involved and the time required.
• 5.11 Wheretheproposalsareshortanduncontroversial,departmentsshouldconsiderwhether thebillswouldbesuitableforthe‘handout’routewhereabillisgiventoamemberwhohas beensuccessfulintheballotforprivatemembers’billsandisnotaminister,heldatthestartof each session.

Bidding outside of the annual bidding round

• 5.12 Whilsteveryeffortshouldbemadetosubmitbidsforlegislationduringtheannualbidding round,urgentrequirementsforlegislationcanemergeatanytime.Inthiscase,theminister shouldwritetothechairofthePBLCommitteetomakeabid,completingthetemplatesused by other departments in the annual bidding round and providing as much information as possible about the proposed legislation.
• 5.13 Anylatebidsshouldbemadeassoonastheneedforlegislationemerges,asotherbills alreadyawardedaslotmayhavetobedroppedtoaccommodatethenewpriority.IfthePBL Committee awardsthelatebidaslotforthefollowingsession,workonthebillwillneedto start immediately if it is to be ready for the start of the session.

Time of Royal Assent

• 5.14 Departments should ensure that anyabsolutedeadlinesforRoyalAssentareflaggedin bids.Suchrequestsshouldonlybemadewheretheyareabsolutelynecessary,forinstance, where the Governmentislegallyvulnerableifitdoesnotimplementlegislationbyacertain date,thereisanexistingpubliccommitmenttoimplementtheproposalsbyagivendate,or any delay beyond this date would result in significant costs.
• 5.15 ThemorebillsthatrequireearlyRoyalAssent,thelessflexibilitytheBusinessManagers have in timetabling the programme. Desire for an early Royal Assent date simply to demonstrate political commitment or achieve early implementation will not normally be accommodated.WhiletheBusinessManagerswillmaketheirbestendeavourstomeetany absolutedeadlinesforRoyalAssent,noguaranteescanbegivenasthiswilldependonthe progress of the bill through Parliament.

6.THE BILL AND BILL TEAM MANAGEMENT

Key points

• ● The bill team must be properly resourced, with a dedicated billmanager,separatetothe policy team, in place to oversee progress from an early stage.
• ● ThebillmanagershouldberesponsibletoanSCS-levelSeniorResponsibleOwner(SRO) who should convene a departmental project board for the delivery of the bill and its supportingdocumentationonintroductionandthroughoutpassage.Theprojectboardshould bemadeupoftheseniorofficials,andofficials,withaninterestinorresponsibilityforabill's delivery.
• ● The Permanent Secretary must take responsibility for all the department’s legislation. Departmentswillwanttoconsiderhavinganoveralllegislationboard,overseeingtheprimary and secondary legislative programme.
• ● Thebillteamwillneedstrongprojectmanagementskills.Allbillsneedadeliveryplananda risk register, to be agreed with the SRO and bill minister.
• ● Goodcommunicationswithinthebillteamandthemuchwidergroupofofficialsinvolvedin thebillarekeytosuccess.Policyleadsandbilllegaladviserswillbeheavilyinvolvedinwork onthebillandarelikelytoneedextraresourcesforthelifetimeofthebill.Extrapolicyand legalresourcesmayalsobeneededforimplementationandthisshouldbeincludedinbill resource planning.
• ● Bill teams will be working under great pressure for much of the time, inparticularduring parliamentary stages, and it is crucial they have adequate administrative support and excellent IT, printing and photocopying facilities. Bill teams should work with their departmental parliamentary branches to discuss parliamentary processes.
• ● TeamsshouldhaveregularmeetingswiththeirPrivateOfficeleads.Thebillwillneedregular political oversight from special advisers and ministers. The bill minister must maintain oversightofthedevelopment,inparticularonpreparationsforparliamentaryandstakeholder handling.

Importance of providing sufficient resource and oversight

6.1A properly resourced team, with clear lines of accountability and oversight, is vital to the successfulpreparationanddeliveryofalllegislation(howevershortoruncontroversial)andis oneofthefactorswhichwillbeconsideredbythePBLSecretariatinadvisingthecommittee onthecontentoftheprogrammeandinmonitoringbillprogress.Billmanagementmustnotbe seen by senior management as an overhead: providing sufficient staff resources and expertise,includingadministrativecapacity,isanintegralpartoftheprocessandshouldnot be ignored or left to chance.

6.2Manyothersbeyondthebillteamwillbeinvolved.Policyandlegalteamscloselyinvolvedin the bill may also need to be equipped with extra resources for the lifetime of the bill.

6.3Itisimportanttoappointabillmanagerearlyintheprocessanddepartmentsshouldnotwait until all policy is finalised before doing so. This may seem a diversion of resources while departments are still engaged inproducingawhitepaperandfinalisingthedetailofanew policy,butgoodplanningandpreparationatthisstageiscrucialforthesuccessofthebilllater on.Evenifpolicytobeincludedinthebillisstillatanearlystage,assoonasabillhasbeen allocated a slotintheprogramme,abillteammanagershouldbeappointedtoensurethat good progress is made.

6.4Althoughthebillmanagermusthaveagoodunderstandingofthecontentofthebill,theroleof the bill manager is to maintain an eye on the parliamentary timetable and an objective overviewoftheentirebill,ratherthangettingcaughtupinthedetailofthepolicies.Atitscore, theroleinvolvesensuringthebillisreadyforeverystage,ahandlingplanisinplaceandthat appropriateadviceisprovidedtotherightpeopleattherighttimeduringthepassageofthe bill.

6.5Thebillmanagerwillberesponsibleforday-to-daymanagementofallbillworkstreams.Good projectmanagementandcommunicationskillsarecriticalandthebillmanager(andbillteam) shouldberecruitedwiththeserequirementsinmind.Thebillmanagerwillworkcloselywith thebillminister,withthebill’sSROandwithseniorofficialsinthedepartmentandthecentreof governmentandwillneedtobeabletoprovidethemwithrobustadvice.Theyshouldbeof sufficient seniority to deal robustly with colleagues across the department and in other departments,forexamplewhenitisnecessarytorequestspeakingnotes,briefingandother material for the minister at very short notice.

6.6AseniorcivilservantmustalsobeappointedasSROforeachbill,withdirectoversightofthe billmanagerandbillteam.AswithanyprojectSRO,theirrolewillbetoensuretheproject remainsontrack,i.e.thatthelegislationisdevelopedontimeandthatanyissuesarehandled in a timely manner.

6.7ThebillmanagershouldberesponsibletotheSROandadepartmentalprojectboardforthe delivery of the bill and itssupportingdocumentation.Thebillmanagermustensurethatall thoseinvolvedinworkonthebillareclearaboutthetaskstheyhavebeenallocatedandthe deadlinesforcompletingthem.Theyshouldmaintainregularcontactwithallthekeyplayersto monitorprogressagainstdeadlinesandactivelymanageriskstotheproject,escalatingrisks to the project board where necessary.

6.8A senior civil servant should similarly be appointed as SRO for secondary legislation, responsiblefortheirdepartment’sgovernancearrangementsandultimatelyforthedeliveryof their secondary legislation programme. This may be a separate role and person to the individualSROforeachbillbutitisimportantthatthereissufficientcontinuityandeffective handover between the bill team and those responsible for its implementation after Royal Assent

The Bill Team

6.9InmostcasesthebillmanagerwillbeaGrade6or7andsupportedbyasmallteam,usually consisting of one or two EOs and two SEO/HEOs (often including a specific deputy bill manager). For major bills orthosecoveringcontroversialissuesthatarelikelytoengender significant debate in Parliament or attract numerous amendments, a larger or more senior team may be needed.

• 6.10 Thekeytoaneffectivebillteamisgoodcommunicationwithintheteam,andthelargerthe team, the harder this becomes.
• 6.11 Abillteamshouldbesmallenoughtofunctionasa‘hub’butlargeenoughtocopewiththe burdenofworkatthebusiestperiod(althoughtherewillbenoavoidingworkinglongerhours thannormalduringthosepeaksandbillteamsmustbepreparedforthis).Threetofivepeople shouldbesufficientforthevastmajorityofbills;theverylargestbillsmightnecessitatealarger team.
• 6.12 A strong supporting team is required to keep on top of large volumes of paperwork, coordinate large amounts of briefing and speaking notes from across the department and respond to requests from ministers at short notice.
• 6.13 Thebillmanagerwillwanttoconsiderallocatingspecificresponsibilitieswithinthebillteam, for example one person who (amongotherthings)isresponsibleforthedeliveryplan,one personwhoisresponsibleforstakeholdermanagement/communicationsstrategyandliaison withPressOfficeandonepersonwhoisresponsibleforliaisingwiththeBusinessManagers (the PBL Secretariat and officials in the Government Whips' Offices in the Commons and Lords).
• 6.14 Thebillmanagerwillalsowanttoconsiderwhetheronememberoftheteamwillactasfirst pointofcontactondevolutionissuesandondelegatedpowers.Someonewithinthebillteam should also have responsibility for ensuring that detailed records are kept throughout the process, and that copies of all briefing and speaking notes are filed.
• 6.15 For major amending stages, the bill team may want to consider colocation with other officials involved in the bill work - including the legal advisers and policy team.
• 6.16 For ‘joint’ bills where more than one department has a core interest in the bill one departmentshouldassumetheleadonthebill,withthebillteambasedinthatdepartmentbut working very closely with colleagues in the other key departments.

Managing multi-departmental bills

• 6.17 Dependingonthebill’spolicycontent,scopeand/orhandlingissuesthroughoutpassage, bill teams may need to work with other government departments. There are a couple of scenarios which would necessitate working with other government departments: one department’smeasuresmaybepackagedwithanother’s,eitherbythedepartment’srequest orbythePBLSecretariat,orbillpassagecouldleadtopressureonapolicyareawhichwould require another department’s specific input on amendments or concessions.
• 6.18 Althoughthetypeofjointworkingwilldependonthelevelofinterestanotherdepartment has in the bill, it is essential to have cohesive and clear working relationships between ministers, senior officials and officials in every circumstance. Where a bill is jointly owned betweentwodepartments,oranotherdepartmenthasasignificantchunkofmeasuresinthe Bill, having a shared expectations and a joint understanding of the bill team, project management and decision making structures is even more important.
• 6.19 Thereisnosetteamstructureforjointbills-somedepartmentsmayappointonemainbill manager and onebillSROforeachdepartment,whilstotherbillsmayhaveabillmanager situated in one department,withdeputiesfrombothdepartmentsreportingintothemanda projectboardwhichsitsabovebothdepartments.Regardlessofstructure,itisessentialthat the bill team operate as one, rather than parallel teams.
• 6.20 Where a bill team is working with another department on a few measures, it is recommended that the team work directly with policy teams, or a namedcontactwhocan provide a coordinating function for the whole department.
• 6.21 Effectiveworkingrequirespracticalstepstoo.WheredepartmentsoperateondifferentIT systems, teams shouldexplorewhetherexternalaccesscanbegiventoshareddrivesand workspaces to avoid version control issues and delays. Establishing virtual communication channels for day-to-day working and 'virtual boxes' is alsonecessary.Physicalco-location, particularlyonthedaysleadinguptobillstages,willfacilitatestrongerworkingrelationships andimproveunderstandingofbillprocesses.Ifabillmanagerissituatedinonedepartment, theyshouldmakesuretheyspendtimewith,andbevisibleto,bothdepartments.Invitingboth departmentstobillmeetingsortrainingisanotherwaytofosterrelationships.Waysofworking shouldbeagreedearlyon,withregularcheckpointstoreviewifthesearestillworking,asthe bill moves through passage.
• 6.22 Having agreed ministerialownershipanddecision-makingprocessesareessential.Early on,thebillteamshouldagreewhichdepartmentleadsonspecificclausesandpolicyissues. As a general rule, policy decisions should be made by the responsible policy minister, in conjunction,whereapplicable,withthebillminister.Iftherearedisagreementsorconflicting steers on a shared piece of policy, the billteamshouldtrytoresolvedisagreementsatan officiallevelbeforeescalatingtoSpecialAdvisersandministers.Regularreviewsthroughout passage to ensure these decision making processes continue to be appropriate is important.
• 6.23 The department which owns the majority of the measures will generally have overall responsibility for bill strategyandwillapprovehandlingadvice,thePBLCommitteepapers, andsupplementaryproducts.Forjointbills,strategydecisionsshouldbemadebyministersin both departments in parallel. Bill teams should ensure that both ministers have the same informationandproductsatthesametime,preferablysubmittedonthesameemailchainto record an audit and assist withversioncontrol.Thismaybealengthy,difficultprocess,so teams should build in plenty oftime.EncouragingeachPrivateOfficetobuildrelationships witheachothercanassist,ascanclearcommissioningemailsthatsetoutthespecificasksfor eachminister.Thisalsoenablesministerstotakedecisionscognisantoftheirimpactacross the bill.
• 6.24 Facilitatingrelationshipbuildingbetweenministersisalsocritical.Joint,inperson,briefings withofficialsfrombothdepartmentsareausefultoolandwillhelpsmoothdecisionmakingand engagement.
• 6.25 In addition, if a bill spans multiple topics or might have wider stakeholder interest, engagementwithvariousdepartmentspriortointroductiontoParliamentisuseful,evenwhere thereisnoformalroleforthosedepartments. Thiswillallowthedepartmenttounderstand otherareasofinterestandleadtocloserworkingrelationshipsintheeventamendmentsare tabled.
• 6.26 Duringpassageofabill,itmaybecomenecessaryfordepartmentstoworktogether,for example, as a result of amendments tabled by backbenchers. In such instances, a clear understanding of timescales and options are needed. It may also be necessarytoupskill departments on parliamentary procedure to support a shared understanding, particularly where amendments affect teams who have not worked on primary legislation recently.

Project management – delivery plan and risk register

• 6.27 Whilepreviousexperienceofworkingonabillisdesirable–anybillteamshouldideally include at least one person who hasworkedonabillbefore–strongprojectmanagement skills, and anabilitytoassimilateinformationrapidlyandtoadapttochange,areessential. Even the smallest of bills is a project, relying on a large number of different people for successfuldelivery,withfixedmilestonessuchasthedateofintroductionandafixedenddate (endoftheparliamentarysession)thatmeancompromisesonscopemayneedtobemade. As a project, a Billmusthave a clear delivery planand risk register.
• 6.28 Foreachpartofthebill,thedeliveryplanshouldsetoutwhoisresponsiblefordoingwhat and as an example include the timetable for:
• ● ministerial clearance within the department;
• ● collective agreement by the relevant Cabinet committee(s);
• ● development of a robust parliamentary handling strategy, covering the content of the bill and other issues that parliamentarians may raise;
• ● publication of relevant policy documents (e.g. green / white papers);
• ● public consultation;
• ● government response to the consultation;
• ● delivery of policy instructions to legal advisers;
• ● delivery of legal instructions to Parliamentary Counsel;
• ● draft clauses and clauses finalised;
• ● resolving other issues, for example, with other government departments or external stakeholders;
• ● production of explanatory notes, an impact assessment, legal issues memorandum, delegated powers memorandum and clause stand part notes;
• ● completion of other tasks required ahead of each new parliamentary stage and immediately after Royal Assent;
• ● completion of other tasks required before the act comes into force, for example, preparation of guidance or statutory instruments (regulations) - do not assume that implementation planning can be left until late in the passage of the bill – it needs to form part of the delivery plan from the outset; and
• ● contingency to resolve any issues that may emerge.
• 6.29 Thedeliveryplanshouldhelpthebillteamtoidentifyanyquieterperiodsthatcanbeused to prepare ahead for subsequent stages and for the various products that are required post-Royal Assent and to ensure filing is in order. The delivery plan should also cover resourcing (budget, administrative and most importantly staffing).
• 6.30 Onceabillisawardedaplaceintheprovisionalprogramme,thePBLSecretariatwillcalla meeting with the bill team and Parliamentary Counsel to discuss the delivery plan and timetable for sending instructions toParliamentaryCounsel.Thiswillbefollowedbyfurther meetings as needed and as work on the billprogresses.Ifdeadlinesaremissed,thebill's placeintheprogrammemaybeatriskthereforeprojectboardsshouldbecarefultoensure that they are not signing up to targets that are unrealistic or undeliverable.
• 6.31 Some departments have developed standard tools fortheirbillteams(billteamsshould check with their departmental parliamentary clerks or legislation lead) but there is no set format – bill teams should use whatever tools are most helpful to them in managing the work.
• 6.32 Riskspost-introductionwilllaterformthebasisoftheparliamentaryhandlingstrategythat mustbeproducedforthePBLCommitteewhenitconsidersthebillpriortointroduction.This will need to include any issue where there is likely to be significant push back on the Government'spositionandwhatstepsarebeingtakentowintheargumentwithstakeholders. ItshouldalsoincludewhatconcessiontheGovernmentwouldbepreparedtomakeinorderto avoidanoutrightdefeat,andwhether,ifdefeated,theGovernmentwouldseektoreversethe defeatoutrightortoofferaconcession.Duringparliamentarystages,thingscanmoverapidly, so contingency plans (a concession strategy) should be in place at an early stage.

Project board

• 6.33 Departments should take a reasoned judgement as to what form of project board is appropriategiventhesize,complexityandpoliticalpriorityofthebillinquestionbut,aswith any project, it is critical for success that senior management demonstrates absolute engagement with and commitment to the bill - and its resourcing - right from the start.
• 6.34 When a bill covers issues that are the responsibility of more than one department the project board should reflect interdepartmental interests. If a bill relates to the work of an executive agency or non-Departmental Public Body (NDPB) these bodies should also be represented.
• 6.35 Itshouldincludeoneboardmemberwithoutdirectresponsibilityfordeliveryofthebill,for example someone from the department's central strategy unit, to provide an external perspective on progressor‘projectassurance’andwhocanactasa‘criticalfriend’.Itmay alsobehelpfultoincludeacustomerrepresentativeontheboard,i.e.arepresentativeofa stakeholder group affected by the bill.
• 6.36 The project board's role is to ensure that the bill remains on course for delivery tothe timetable agreed between the bill minister and the PBL Committee. It will take an active interestinoverseeingprogressandaddressinganydelaysorproblemswiththequalityofthe work In particular, the board should:
• ● ensure that all bill team roles are filled and that the individuals concerned have the relevantskillsandknowtheareasforwhichtheyareresponsibleandtherelativepriority they should afford, particularly if work on the bill does not constitute their sole work;
• ● besatisfiedthatthenecessarystructuresandsystemsareinplacetodeliverthebilland provide regular progress reports;
• ● identifyandquicklyaddressanyproblemsthatemerge,suchasinsufficientpolicyorlegal resources or specific policy or handling issues;
• ● regularly consider key risks and proposed actions to manage these; and
• ● address any changes in ministerial priorities for a bill that may affect its resourcing.
• 6.37 Membersoftheboard,particularlythechair,mayalsoneedtobeinvolvedinbetween formal meetings to address urgent issues.

Policy leads

• 6.38 Theofficial(s)withleadresponsibilityatworkinglevelforthepolicyorpoliciesinabillmust befullyengagedandsufficientlyresourcedinordertobeabletomeettheexactingdeadlines of bill work, as well as carrying on routine work. Lead policy officials must deliver policy instructionstothebillteamanddepartmentallegaladvisersontimeandrespondquicklyto draft clauses and questions posed by Parliamentary Counsel. They will be responsible for producinganimpactassessmentforthepoliciesforwhichtheyareresponsible,andwillalso need to contribute to the explanatory notes and wider supporting documents for the bill.
• 6.39 Once thebillisintroduced,policyleadswillcontinuetoplayacentralroleindeveloping solutions to outstanding or arising policy issues, continuing engagementwithstakeholders, anddraftingnotesonamendmentsandotherbriefingmaterialforministers.Theywillneedto be available to attend briefing meetings,debatesandCommitteesessions.Becauseofthe burdensofbillwork,whichcanbeconsiderable,ontopofnormalresponsibilities,forthelifeof a bill policy teams are likely to require additional resources.

Bill legal advisers and others instructing Parliamentary Counsel

• 6.40 At the initial resourcing meeting on the project, it will be decided who is the most appropriate person to instruct Parliamentary Counsel. In many cases, this will be the departmentallawyer(whowilldraftinstructionsbasedonpolicyinstructionsprovidedbypolicy leads), as they will be able to provide advice to Parliamentary Counsel on the current legislationandmattersrelatedtoitthatParliamentaryCounselwillneedtoknow,suchashow thelegislationoperatesinpractice,whatcase-lawisrelevantandhowthelegislationfitsinto wider departmental policy.
• 6.41 However,insomecases,suchaswhereParliamentaryCounselisalreadyfamiliarwiththe legislation and its background, it may be more efficient for all or some aspects of the instructions to be provided toParliamentaryCounseldirectlybyapolicyofficial,inorderto avoid duplicating legalresources(orperhapsforinstructionstobeprimarilydealtwithbya policyofficial,butwithinputfromadepartmentallawyerwherenecessary).Thereshouldbe flexibility within the bill team about who is bestplacedtodealwithParliamentaryCounsel, which may differ depending on the issue under consideration.
• 6.42 ButevenwhereinstructionstoParliamentaryCounselarenotprovidedbythedepartmental lawyer, departmental legal advisers will continue to have a key role in the bill process, providing legal advice to policy clients in connectionwiththepreparationofthebill(andin many cases also the instructions to Parliamentary Counsel), drafting the legal issues memorandumandadvisingonECHRissues(seeChapter11)andcontinuingtoadviseasthe BillgoesthroughParliamentandduringtheimplementationstage,afterthebillhasreceived Royal Assent.
• 6.43 On a bill where different sets of instructions to Parliamentary Counsel are drafted by differentpeople,itisusuallyhelpfulforoneofthosepeopletobeidentifiedasacontactpoint bothforParliamentaryCounselandforthebillmanagerandtoberesponsibleforcoordinating instructions to Counsel, keeping track of progress on the legal side and identifying any problemsastheyemerge,workinginpartnershipwiththebillmanagerandclearingspeaking notes before they are passed to ministers. The importance of this is due to the ruling of Pepper v Hart where parliamentary material may be used to assist in the interpretationof legislation in cases where such legislation is ambiguous or obscure.
• 6.44 TheroleofthoseproducinginstructionstoParliamentaryCounseldoesnotdiminishonce the bill is introduced. It is vital that they are sufficiently resourced to engage in policy discussions as issues arise, to draft instructions on amendments and to veryquicklyclear speaking material, briefing etc. They will also need to attend debates and Committee sessions.

Top logistical tips – ensuring the team is prepared

• 6.45 Billteamswillbeworkingundergreatpressureformuchofthetime,inparticularduring parliamentary stages. This section offers some practical tips to help make bill work easier.
• 6.46 Parliament will not postpone its scrutiny of the bill becausethephotocopierhasbroken down–theimportanceforabillteamofexcellentIT,printingandcopyingfacilitiescannotbe underestimated.Billteamswilloftenneedtoprint/copyalargeamountofmaterialatshort notice, for example several complete sets of notes on amendments and clausestandpart notes immediately before a ministerial briefing or Committee session, and nor should bill teamsunderestimatehowlongthistaskcantake.Thebillteamwillneedtohavededicated printingandcopyingfacilities(foritsownbenefitbutalsoforthebenefitofothersasthebill teammaywellneedtousetheprinterandcopierforseveralhoursatatime).Itshouldalso have ready access to back-up printers and copiers.
• 6.47 Bill teams should arrange with their department's IT Support Team for the team, policy leadsandlegaladviserstobeprioritycustomerssothatrequestsforassistancecanbedealt withurgently.Billteamsshouldalsorequestanincreasetotheiremailinboxlimit,asoncebill draftsinpdfformatandscanned-incopiesofamendmentsfromtheorderpaperstartcoming in these will fill up an inbox very quickly.
• 6.48 Therewillbeoccasionswhenneithertheteam,norpolicyleadswillbelocatedinthesame buildingastheminister(s).Onoccasions,especiallyduringtheCommitteestages,theteam willneedtobeclosetotheministerandParliamentandthereforespace,suchasameeting room, should be reserved.
• 6.49 Billteamsmayalsoneedtoensuresufficientdeskspaceintheoffice.Thoughtheflexibility ofhybridandremoteworkingcanbehelpful,substantialamountsofbillmanagementrequires physicalpresence,forexampletopaperbriefingpacks,meetministersandattendmeetings and debates on the parliamentary estate.
• 6.50 Theuseofspreadsheetswillbeusefulfortrackingprogressofdraftclausesandlateron speaking notes for amendments.
• 6.51 Therewillbetimeswhentheteam,andtheirpolicyandlegalcolleagues,willberequiredto work long hours, so bill managers should ensure that they understand their department's policy on overtime payment, travel and subsistence or make special arrangements if necessary, for example for booking taxis home after any late finishes in Parliament.
• 6.52 Keyplayersonthebill(keypolicyleadsandlegaladvisersaswellasmembersofthebill team)shouldapplyforastanding(pink)parliamentarypassingoodtime.Yourdepartmental parliamentary branch or security team can assist with applications.
• 6.53 Other officials who may need to attend Parliament from time to time can obtain visitor passesfromthemainvisitorentrance. ThisallowsaccesstoallthepublicareasofParliament, includingCommitteerooms.Itcantakesometimetopassthroughsecurity-over30minutes atbusytimes,soyoushouldbepreparedandallowplentyoftime. Officialsbriefingministers should be given priority so if the visitors’entranceisparticularlybusywithtourists,explain your business, show your departmental pass and ask to be fast-tracked.
• 6.54 Detailsforofficialswhorequireadditionalsupporttoaccesstheestateinordertoattend parliamentary proceedings can be found in theGuideto Parliamentary Work.
• 6.55 If you require access to ministerialofficesorotherplacesoutsideofthepublicareasof Parliamentyouwillneedadaypass. Thereisnoneedtorequestadaypassalongtimein advance:itisnormallyfineforofficialstoasktheparliamentarybranchthattheyneedapass forthefollowingday(orinextremisevenforthesameday).Daypassesmustbecollectedin personfromthePassOfficelocatedat1ParliamentStreet.Furtherinformationondaypasses can be found in the Guide to Parliamentary Work. Officials must have their departmental security pass with them for identification. They are valid for the whole day soifitismore convenient they can be picked up some time before they are needed that day.
• 6.56 WhenParliamentissittingthePassOfficeat1ParliamentStreetopensat8amandcloses at6pm(exceptonFridayswhenitclosesat4pm),soofficialswantingtoenterafter6pmmust remember to collect their pass earlierintheday.Duringrecesstherearereducedopening hours–checkwiththePassOffice.Officialsshouldallowanabsoluteminimumof15minutes to get from the Pass Office at 1 Parliament StreettotheHouseofCommonsorHouseof Lords.
• 6.57 BillteamsandofficialswhowillneedtositintheOfficialsGallery(i.e.'thebox')ineither chamber to support their ministerduringdebateshouldaskthedepartmentalparliamentary clerktoarrangeaccesstotheboxforthemonthosedays.Specialpermitsarerequiredfor those without day passes and you will also need to show your departmental pass. These arrangements are subject to change so always check with your parliamentary clerk.

Training

• 6.58 Agreatdealcanbelearntfromdepartmentalcolleagueswhohaveworkedonbillsinthe past.Parliamentaryclerksandlegislationstrategyteamsshouldhavetheircontactdetails,and may also have formal ‘lessons learnt’ documents from previous bill teams.
• 6.59 TheParliamentaryCapabilityTeamoffersspecifictrainingandlearningresourcesdesigned fornewbillteamsandprospectivebillteams.Teamscanjoinregularopencoursesorrequest aclosedcoursei.e.acourseexclusivelyforthosewhowillbeworkingonaparticularbill.Joint trainingforabillandpolicy/legalteamwhoarenewtoworkingtogethercanbeausefulwayof bringing the team together early on. You can contact parliamentarycapability@cabinetoffice.gov.ukfor moreinformation.
• 6.60 Billmanagersareencouragedtorunasessionthemselvesfortheirwiderteam,togivethe departmentalofficialsinvolvedinthebillabroadintroductiontobillwork.ThePBLSecretariat are happy to help run these sessions as appropriate.
• 6.61 ParliamentaryCounselanddepartmentallawyerscanalsoassistinprovidingtrainingtobill teams and policy colleagues working on a bill either on the bill process as a wholeoron specificaspectssuchashowtohandleamendmentsorthepingpongstage.Thisincludesthe optionof“justintimetraining”duringthepassageofthebill(e.g.trainingonPingPongasthe billreachestheendofitspassagethroughthesecondHouse).Therearealsousefulmaterials ongld.digital.Donothesitatetoaskifyouthinkyourbillteamorthewiderteaminvolvedin preparing for a bill would benefit from training.

7.COLLECTIVE AGREEMENT

Key points

• ● Collective agreement for legislation must beobtainedfromthePBLCommitteeandother relevantCabinetcommittees.Agreementisneededtoannouncetheintentiontolegislateto a certain timescale or in a specific vehicle, forthedetailedlegislativeproposalsandbills before introduction and for government tabled or supported amendments during parliamentary passage. The Government should not preempt the contents of the King's Speech - doing so is a breach of collective agreement.
• ● Relevant Cabinet committees will consider the content of the proposals, including any changes before or after introduction which amend the policy or introduce significantnew provisions, inlinewiththeirtermsofreferencewhilethePBLCommitteewillconsiderthe state of preparation and handling. If policy clearance has notbeenobtainedthroughthis processwhenaslotintheprogrammeisallocated,thisshouldbeapriorityalthoughnotat the expense of giving proper consideration to the policy and its implications. Other departmentsshouldbeconsultedatofficiallevelasearlyaspossible,beforeseekingformal policy agreement.
• ● Wherecollectiveagreementissoughtviacorrespondencethroughthewriteroundprocess, five working days after the letter has been issued should be allowed for ministers to commentonrequestsforformalpolicyagreement;nineworkingdaysduringparliamentary recess. The chair of the committee will also need four days to confirm clearance.
• ● The fulllistofCabinetcommitteesandtheirtermsofreferenceareavailableonGOV.UK. The Cabinet Secretariat can providemoreguidanceonseekingcollectiveagreementand which committees you should write to.

When collective agreement is required

7.1The Cabinet Secretariat should provide the final steer on whether collective agreement is neededonaspecificissue,usingtheCabinetManualandconsideringtheMinisterialCode. For legislation the PBL Committee's agreement is broadly needed to:

• ● Agreeaslotinthelegislativeprogrammeinaspecificsessionandtostartdrafting legislation;
• ● Announce the intention to legislate to specific timescales or in a specific vehicle;
• ● Agree in principle that a bill should be published in draft;
• ● Approvepublicationindraftforpre-legislativescrutinywhenthefinaltextofthedraft bill is available and, particularly if it is proposedthatajointcommitteeshouldbe establishedoradepartmentalselectcommitteebeinvitedtoconsiderthedraftbill, the form of pre-legislative scrutiny;
• ● Makesignificantchangestothecontentofthebillafteraslotintheprogrammehas beenallocatedandinparticularchangeswhichwouldsignificantlywidenthescope of the bill require clearance from PBLCommittee.Smalleradditionsoromissions arising from further policy development do not need to be cleared by the PBL Committee at this stage, only by the relevant policy committee (see below);
• ● Approve a bill's introduction into Parliament; and
• ● To table any government amendments or accept any opposition or backbench amendmentstoabill,exceptwherethePBLSecretariatandParliamentaryCounsel have bothagreedthattheamendments(whethergovernmentornon-government) canbeconsideredminorandtechnical(see22.1). Clearancemaystillberequiredif a large number of minor and technical amendmentsareproposedgiventhetime these may take to debate.

7.2Broadly speaking, the agreement of other relevant Cabinet committees is needed to:

• ● Approve the policy contained within a bill (whether introduced or published in draft);
• ● Announce the intention to legislate on a particular issue; and
• ● Agree any changes to a bill, either before or afterintroduction,whichamendthe policy or introduce significant new provisions.

7.3It is important that bill teams factor collective agreement into the overall project plan and developpolicyandconcessionsingoodtimetoenablecollectiveagreementprocesses.Often this will require contingent planning and processes.

SECTION B

PREPARING THE BILL FOR INTRODUCTION

8.DRAFTING THE BILL

Key Points

• ● GovernmentbillsaredraftedbytheOfficeoftheParliamentaryCounsel(OPC)onthebasis of instructions provided by the department.
• ● ItisessentialtotheoverallsuccessofabillprojectthatthedepartmentprovidesOPCwith goodqualityinstructionsandthatitdoessoingoodtime. OPChasproducedthisandthe followingchaptertohelpdepartmentalofficialswiththistaskandwithotheraspectsofthebill drafting process.
• ● This chapter includes:

o Information about the essential components of good law; o background information about OPC; o information about the role of the drafter of the bill in relation to policy making; o advice about when the department should first involve OPC in the bill project; o advice about when the department should send instructions to OPC; o advice about how to go about preparing the instructions; o information about what the drafter will do with the instructions; o advice about commenting on draft provisions and responding to questions from the drafter; o adviceabouthowmuchtimetoallow forpreparingtheinstructionsanddraftingthebill; and o 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

8.1Everyoneworkingonabillshouldkeepinmindtheessentialcomponentsofgoodlaw. Good law is law which is necessary, clear, coherent, effective and accessible.

Background information about OPC

8.2OPC is part of the Cabinet Office. It has around 50 legally qualified drafters who are responsiblefordraftingallgovernmentbills,includingthosethataretobepublishedindraftfor public consultation or pre-legislative scrutiny.

8.3InadditiontodraftingtheGovernment’sbills,OPCisresponsibleforarangeofothermatters relating to the bill process that are mentioned elsewhere in this Guide. For example, the drafterofabillwillberesponsibleforprovidingthedepartmentconcernedwithadviceabout certain matters of Parliamentary procedure and will act as the channel of communication between the department and officials in Parliament.

8.4Drafterstendnottospecialiseinparticularareasoflaw. Sothosefromwithinthedepartment whoareinstructingOPC(often,butnotalways,thedepartmentallawyers)areresponsiblefor providingthedrafterofthebillwithadviceabouttheoperationoftheexistinglaw,insofarasit isrelevanttothedepartment’sproposals. Theprincipalwayinwhichthisadviceisprovided will be in the instructions.

8.5DraftersinOPCisorganisedintofourteams,eachofwhichisallocatedtheresponsibilityof drafting bills for particular departments. Each team is headed by a Team Leader.

The role of the drafter in relation to policy making

8.6Whilst working on a bill the department will sometimes have questions about the role the drafter of the bill will play in policy-making.

8.7It is of course the department, rather than the drafter, that is responsible for deciding the policy.Thisresponsibilityrestswiththedepartmentbecauseitsofficialshavetheevidenceon 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, thedevolvedgovernments,interest groups and the public.

8.8The 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.

8.9The 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 willsometimesbeabletospotpotentialdifficultiesthatmaynot have been obvious to the department.

• 8.10 In exercising this challenge function the drafter may identify inconsistencies or flaws in whatthedepartmentproposes. Thedraftermayspotfactualpermutationsthattheproposals do not cater for or may see avoidance possibilities that the department has not considered.
• 8.11 Fromtimetotimethedepartmentmayfinditselfstrugglingtodeviseapolicythatwillmeet itsobjectivesoritmaybehavingdifficultydecidingbetweenarangeofdifferentpolicyoptions. 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?

• 8.12 AssoonasthedepartmentdecidestopursueabillitshouldstarttoengagewithOPCand set up an initial resources meeting. If departments do not know whotocontactinthefirst instance to set up this meeting, advice can be obtained by contacting opc@cabinetoffice.gov.ukor02072766541. Thebasicruleisthatthedepartmentshouldnot normallysendinstructionstoOPCuntilthePBLCommitteeandtherelevantpolicycommittee of Cabinet have taken certain decisions. Nonetheless, the department should notwaitfor these decisions to be taken before getting in touch with OPC.
• 8.13 The resources meeting should be attended by the bill team manager, a departmental lawyer,thepolicyleadsandamemberofOPC(eithertheTeamLeaderor,ifalreadyallocated, the drafter). The meeting will be an opportunity for the following matters to be discussed:
• ● thedepartmentandOPCcandiscussanyconcernsOPChasabouttheproposals and how best to use the legal resource available;
• ● OPCcandiscusswiththerelevantpolicyofficialsanddepartmentallawyerswhois bestplacedtoprovideinstructionstoParliamentaryCounsel.Thiswilloftenbethe departmental lawyer, but for some bills or some subject areas within bills (for examplewhereParliamentaryCounselhasawideknowledgeofthesubjectarea),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;
• ● OPCcanprovideinitialadviceabouthowlongitmaytaketodraftthebill.Thiswill help the department prepare a project plan; and
• ● thedepartmentcandiscusswithOPCanyconcernsithasaboutitsproposals,and thedrafterorTeamLeaderwillbeabletosayiftheyforeseeanydifficultieswiththe proposals and may be able to suggest alternatives.
• 8.14 Ofcourse,theuseoflegalresourcesshouldbekeptunderreviewforthedurationofthebill projectandthereshouldbeflexibilityaboutthedecisionstakenattheinitialresourcesmeeting ifittranspiresthatthereisamoreefficientwayofdoingthings.Itwilloftenbeappropriatefor theretobefurtherdiscussionsabouttheallocationoflegalresources(eitherinformallyorata further resources meeting) as the project progresses.

When should instructions be sent to OPC?

• 8.15 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 legislativeprogrammeorhasdecidedtogiveauthorityforthebilltobedraftedin advance of a slot being allocated; and
• ● therelevantpolicycommitteeofCabinethasdecidedtogivecollectiveagreementto the policy.
• 8.16 Thedepartmentwillusuallyneedtostartpreparingitsinstructionswellinadvanceofthese decisions being taken - this is because these decisions will often not be takenuntilafew months before the bill has to be ready to be introduced to Parliament. Departments may thereforefindithelpfultoengagewithOPCduringtheprocessofdraftinginstructions. For furtherinformationaboutsecuringaslotinthelegislativeprogrammeandreceivingcollective agreement from the relevant policy committee, see Chapters 5 and 7 of this Guide.
• 8.17 OncethePBLCommitteehasallocatedthebillaslotinthelegislativeprogramme(orhas givendraftingauthority),itssecretariatwillarrangeameetingwiththebillteam,theleadlegal adviser,thedrafterandthesecretariatoftherelevantpolicycommittee. Atthismeetingthe PBLSecretariatwillexpecttoseethatgoodprogresshasbeenmadewiththepreparationof theinstructionsandwillagreewiththedepartmentandthedrafterdeadlinesforsendingthe instructions to the drafter.
• 8.18 The PBL Secretariat will arrange further meetings to monitor progress.

How to go about preparing the instructions

• 8.19 Therearenohardandfastrulesastohowthedepartmentshouldgoaboutpreparingits instructions to OPC.
• 8.20 Thefirststepwillalwaysbeforthepolicytobeworkedoutindetail.Ifinstructionsarebeing provided by the departmental lawyer, policy officials will have to explain the policy to the lawyer.Thismightbedoneoverthephone,inmeetings,byemailorinasetofformalpolicy instructions.Themethodchosenwilldependonthecomplexityandscaleoftheproposalsand thetimethatisavailable.IfinstructionsarebeingprovidedtoParliamentaryCounseldirectly by policy officials, the same process of working out the policy in sufficient detail for Parliamentary Counsel to start drafting will beneeded.Thekeythingisthatpolicyofficials 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.
• 8.21 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.
• 8.22 ThelawyerorpolicyofficialwillthenpreparetheinstructionstoOPC. Themainpurposeof theinstructionswillbetoexplainthepolicy,setouttheexistingstateofthelawandexplain what changes to the law are needed to give effect to the policy.
• 8.23 The next chapter contains detailed advice about the form, structure and content of the instructions.AnyoneinstructingParliamentaryCounselwillneedtofamiliarisethemselveswith thisbeforestartingworkonabill.Butevenwhereithasbeendecidedthatinstructionswillbe 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.
• 8.24 Thebillteamwillberesponsibleforco-ordinatingtheworkbeingdonebypolicyofficials and lawyers to ensure that the instructions are ready to be sent to OPC onorbeforethe deadline agreed with the PBL Secretariat.

Involving other departments with an interest

• 8.25 Often the department with overallresponsibilityforabillwillnotbetheonlydepartment with an interest in the policy.
• 8.26 Where this is thecasetheleaddepartmentshouldgivetheotherdepartment(s)withan interest an opportunity to comment on the policy before the instructions are finalised.
• 8.27 RememberthattheScotlandOffice,theOfficeoftheAdvocateGeneralforScotland,the NorthernIrelandOfficeandtheWalesOfficewillhaveaninterestfromtheUKperspectivein proposedchangestothelawaffectingScotland,NorthernIrelandandWalesrespectively. 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 governments

• 8.28 Ifthedepartment’sproposalswillgiverisetotheneedforalegislativeconsentmotionitwill be necessary for thedepartmenttoensurethatthedevolvedgovernment(s)concernedare content with the department’s proposals. See Chapter 14 and Appendix D for further information on working with the devolved governments and legislatures.
• 8.29 Sofaraspossible,disagreementswiththedevolvedgovernmentsshouldbeidentifiedand resolved before the instructions are sent to the drafter.

Who in OPC should drafting instructions be sent to?

• 8.30 InitiallythedraftinginstructionsshouldbesenttotheappropriateTeamLeaderwithinOPC. ThedepartmentwillbeinformedassoonastheTeamLeaderhasallocatedthebilltooneor more drafterswithintheteam.Thereafterallfutureinstructionsandcorrespondencecanbe addressed to those drafters.

Sending drafting instructions to OPC in instalments

• 8.31 Ideally, all the instructions for a bill should be sent to OPC at the same time.
• 8.32 Bills tend to be required against deadlines that are shorter than ideal and, in those circumstances,itisunhelpfultoholdbackinstructionsinordertobeabletosendeverything together.
• 8.33 Indecidingwhetheritisappropriatetosendinstructionsininstalmentsthedepartmentmay findithelpfultotalktotheappropriateTeamLeaderorthedrafterofthebill. Factorstobearin mind will include:
• ● whether each instalment can be properly understood by the drafter without the instructions that are still to come;
• ● whetherthereisariskthatprovisionsdraftedinresponsetooneinstalmentmight needtobereworkedinthelightofsubsequentinstalmentsand,ifso,whetherthat riskisoutweighedbytheneedtogivethedrafteranopportunitytomakeprogress; and
• ● whetherthedrafter’sotherprioritieswouldenableworktostartontheinstalmentifit was sent in advance of the other instructions.
• 8.34 Whereinstructionsaresentininstalmentsitishelpfulifthedepartmentcanprovideabrief overviewofthenumberofinstalmentsthatarelikelyandwhateachinstalmentwillbeabout. 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.

• 8.35 Thedepartmentshouldaimtoensurethatthepolicyhasbeensignedoffbyallthosewith an interest before the instructions or an instalment of the instructions are sent to OPC.
• 8.36 Similarly,thedepartmentshouldaimtoensurethatthepolicyhasbeencomprehensively developed before the instructions are sent.
• 8.37 Butwheredeadlinesareparticularlytightthedepartmentmayneedtothinkaboutsending instructionstothedraftereventhoughthepolicyhasnotbeenfinallysignedofforeventhough there are gaps in the policy.
• 8.38 Ifindoubtaboutwhetheritisappropriatetosendinstructionsbeforethepolicyhasbeen finallysignedoff,orbeforethepolicyhasbeencomprehensivelydeveloped,thedepartment should seek advice from the appropriate Team Leader or the drafters allocated to the bill.
• 8.39 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

• 8.40 IfthedepartmentchangesitspolicyaftersendinginstructionstoOPCitisessentialthatthe drafter is informed as soon as possible to avoid wasted work.
• 8.41 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 Beforeorshortlyaftertheinstructions,orthefirstinstalmentofthem,havebeensentto OPCitmaybehelpfulforameetingtobeheldbetweenthedrafters,thedepartmentallegal advisers, the policy leads and the bill team manager. At this meeting it maybeusefulto 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 timetableforsendingtheremaininginstructionsanddraftingthebill(andhow any risks to the timetable can be managed);
• ● proposedmethodsofworking(forexample,whetherinstructionsshouldbesentin instalments,inwhatorderthedrafterwilldealwiththeinstructions,thelevelofdetail required in the instructions, the use of meetings etc.); and
• ● which particular officials in the department will deal with the drafterinrelationto particular matters. In many cases, departmental lawyers will be instructing ParliamentaryCounsel,butinsome,thiswillbedonebypolicyofficials.Buteven whendepartmentallawyersareinstructing,itmaybeappropriateforpolicyofficials or other members of the bill team to deal with the drafter onothermatters.The drafter and the department should agree whatever will work best for them.

What will the drafter do with the instructions?

• 8.43 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.
• 8.44 Asthedraftersstudytheinstructionstheymaywellhaveinitialquestionswhichneedtobe answered before progress with the drafting can be made. In order to avoid unnecessary delays,itisimportantthatsomeonefromwithinthedepartmentwithafirmgrasponthepolicy is on hand to answer these questions.
• 8.45 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.
• 8.46 Exceptinthemoststraightforwardofcases,thefirstdraftwillbeaccompaniedbyaletter whichwilldotwothings. Firstly,itwillexplainthedraftingwherethedrafterthinksthismay speed the department’s understanding of how the provisions have been constructed. Secondly,itwillsetoutanyquestionsthedrafterhasaboutthepolicy,theexistingstateofthe law and related matters.

Commenting on draft provisions and replying to the accompanying letter

• 8.47 Often there will be a range of officials, both in the instructing department and in other departments, who need to begivenanopportunitytocommentonthedraftprovisionsand provide answers to the drafter’s questions. The department needs to ensure that all the responses are co-ordinated.
• 8.48 Althoughitisimportantthatthedrafter’squestionsareanswered,thedepartment’sprimary focusshouldbeonthedraftprovisions. Itisessentialthatthedepartmentstudiesthedraft carefullytocheckitdoespreciselywhattheywant.Ifthedepartmenthasanydoubtsabout whether the draft achievesthepolicythesedoubtsshouldberaisedintheresponsetothe drafter.
• 8.49 In responding to the drafter the department need not confine itself to commenting on whetherthedraftprovisionsachieveitspolicyoronmattersmentionedinthedrafter'sletter. The drafter will be very keen to hear any comments the department may have on the readabilityandclarityofthedraftprovisions. Ifthedepartmentthinksthereisawayinwhich thedraftprovisionscouldbemadeclearertheyshouldnotfeelanyhesitationinsayingso. If thedepartmenthasanypresentationalconcernsaboutthedraftprovisionsthereasonsforthe concerns should be explained to the drafter.
• 8.50 Thedepartmentshouldavoidaskingquestionsabouttheeffectofadraftprovisionwithout also making clear what effect is actually sought. If thedepartmentmerelyasksaboutthe effectofadraftprovisionthedrafterwillbeuncertainaboutwhetheranalterationisneeded. So,forexample,insteadofasking“doestheclausemakeitacriminaloffencetodoXYZ”the departmentshouldsay“wewouldlikeittobeacriminaloffencetodoXYZ;isthattheeffectof the clause as drafted?”.
• 8.51 Oncethedepartmenthasprovidedaresponsetothefirstdraftandtheaccompanyingletter thedrafterwillstartworkonafurtherdraft. Anumberofroundsmaybeneededbeforethe draft is settled.

Sharing draft clauses with drafters in Scotland and Northern Ireland

• 8.52 WhereadraftprovisionwillextendtoScotlandthedrafterwillwishtosharetheprovision withtheParliamentaryCounseltotheOfficeoftheAdvocateGeneralforScotland sothatthat team of drafters can advise as to whether the provision will operate properly in Scotland. Similarly,whereadraftprovisionwillextendtoNorthernIrelandthedrafterwillwishtoshare the provision with the Office of the Legislative Counsel in Northern Ireland.
• 8.53 ItisrelevantheretonotethatdrafterswhoarepartoftheParliamentaryCounseltothe Office of the Advocate General for Scotland are responsible in that capacity to the UK government rather thantotheScottishGovernment(althoughtheyalsoadvicetheScottish Government when not acting in that capacity). By contrast, the Office of the Legislative Counsel works exclusively for the Northern Ireland Executive.
• 8.54 BeforethefirstoccasiononwhichthedraftersharesprovisionswithdraftersinScotlandor Northern Ireland they will confirm with the department that it is content for this to happen.

Welsh translation of elements of bills

• 8.55 A bill may need to include aWelshtranslationifithasmeasuresthatmodifylegislation madebytheSeneddCymruorbyWelshMinisters.ThisisbecauseSeneddlegislationand legislationmadebyWelshMinistersusuallyconsistsoftwodistincttextsinEnglishandWelsh, both of which have equal status inlaw,andwouldthereforebothrequiremodification.The OfficeoftheParliamentaryCounselwilldrafttheEnglishlanguageversionoftheBill.Itisfor the instructing department tomakearrangementsforobtainingtheWelshlanguageversion (thisshouldnothappenuntilthetextoftheclauseshasbeenfinalised),andtopayforthecost ofanytranslationwork.TheOfficeoftheLegislativeCounselinCardiffisnotabletosupply Welsh language versions of text for UK Government departments.
• 8.56 Departmentsshouldalsonotethattheymay,onoccasion,looktopublishaconsultation aheadofdraftingthebillorinrelationtothebillandmaywantthattobetranslatedintoWelsh. SomedepartmentswillhaveacontractedproviderthatcanbeusedforthisworkorthePBL Secretariatcanbecontactedforalistofotherproviders.Theseproviderswillnotnecessarily have the expertise to translate legislation. While the consultation document should be bilingual, the accompanying draft bill would not need to be (unless provisions do the above).

How much time should be set aside in the project plan for preparing instructions and drafting the bill?

• 8.57 Itisessentialtothesuccessofabillprojectthatthedepartmentdoesnotunderestimate thetimeneededforpreparinginstructionsanddraftingthebill.Ifinsufficienttimeisallowedfor this in the department’s project plan the following difficulties may arise:
• ● thebillmaynotbereadyintimeforintroductiontoParliamentmeaningthatithasto be abandoned by the Government;
• ● the bill may beintroducedtoParliamentwitherrorsoromissionsthatneedtobe dealtwithduringthepassageofthebill.Thiswillreflectbadlyonministersandon the departmentandwillresultinparliamentarytimebeingspentunnecessarilyon 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.
• 8.58 Indecidinghowmuchtimetosetasideintheprojectplanforpreparinginstructionsand drafting the bill the following things in particular should be remembered:
• ● First,experienceshowsthatwhenworkingonabillitisnecessaryforthepolicyto be developed in much greater detail than when pursuing a policy that does not requirelegislation. Evenoncethepolicyhasbeendevelopedtothesatisfactionof policyofficialsinthedepartmentitislikelythatitwillneedtoberevised(sometimes substantially) to reflect the advice ofdepartmentallawyersandtheviewsofother departments with an interest. All of this will take time.
• ● Secondly, it may not be possible for drafting tobeginassoonasthedepartment sendsinstructionstoOPC. TheTeamLeaderorthedrafterconcernedwillbeableto indicate whether this will be the case.
• ● Thirdly, the process of turning the department’s instructions into workable draft clausesisoftenalengthyandcomplexone. Itwillusuallytakethedraftersometime tobecomefamiliarwiththeinstructionsandtheexistinglawbeforedraftclausescan beproducedanditwillfrequentlybenecessaryfortheretobenumerousroundsof correspondencebetweenthedrafterandthedepartmentinorderforthefirstdraftto be refined into something everyone is happy with.
• ● Fourthly,inthecourseofdraftingthedrafterwilloftenraiseunforeseenpolicyand legalquestionswhichrequireananswerbeforeprogresscanbemade.Sometimes answering these questions requires thedepartmenttoconsulttheirminister,other departments and stakeholders. Time needs to be factored in for this.
• 8.59 Asmentionedabove,thetimethatshouldbesetasideintheprojectplanfordraftingthe bill is something the department is encouraged to discuss at an early stage with the appropriate Team Leader in OPC.

Monitoring drafting progress

• 8.60 Thebillteamwillneedtomonitorprogresswiththedrafting. Onewaytodothisistokeep aprogresschartwhichrecordsthestagereachedinrelationtoeachtopic(e.g.instructions sent to OPC; first draft provided; reply to first draft sent etc).
• 8.61 Thedrafterwillfindithelpfultobegivenacopyoftheprogresschartsothattheycansee where things stand.

Ministerial involvement in the drafting process

• 8.62 The bill team should ascertain early onexactlywhatinvolvementtheministerwishesto takeinthedraftingprocess. Forexample,theyshouldascertainhowoftentheministerwishes to be updated on the progressthatisbeingmadewithdraftingandhowoftentheminister wishes to see the latest draft of the bill.
• 8.63 Theministermay,forpresentationalreasons,havestrongviewsabouttheshorttitleand the structureofthebill. Ifthisisthecasetheminister’sviewsshouldbepassedontothe drafter.
• 8.64 Theministerinchargeofthebillisalwayswelcometoaskthedraftertomeettodiscuss the bill. Equally, the drafter may occasionally request a meeting with the minister.
• 8.65 Majorissueswhichariseonthebillmustbereferredtotheministerandtheministermust 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.

9.DRAFTING THE BILL: STRUCTURE AND CONTENT OF INSTRUCTIONS TO OPC

Key points

• ● ThischapterhasbeenproducedbytheOfficeoftheParliamentaryCounsel(OPC)tohelp withthetaskofwritinginstructionsforOPCtodraftabill.Itneedstobereadinconjunction with the preceding chapter, which gives an overview of the bill preparation process.
• ● ThischaptershouldalsobereadinconjunctionwithCommonLegislativeSolutions:aguide totacklingrecurringpolicyissuesinlegislation. Thisguideidentifiesissuesthatmayneedto beaddressedwhenworkingupandinstructingontheproposedsolutiontocertaincommonly occurring policy issues.
• ● ThetaskofwritinginstructionstoOPCisnotaneasyone.Thequalityoftheinstructionswill haveadirecteffectonthequalityofthebillandthetimeittakestoprepare. Anyperson preparing instructions for OPC is therefore encouraged to look at this chapter on each occasion they are asked to work on a bill.
• ● PolicyofficialswhoarenotdirectlyinstructingOPCmayalsofindthischapterofuse.Itwill helpthemanticipatethesortsofinformationthepersoninstructingOPCwillneedtobeable to complete their instructions to OPC.

General observations and guidance

9.1Somegeneralobservationsandguidancecanbeofferedattheoutset.First,ithelpswhenit comestowritinginstructionstoOPCtostandbackandtrytoimaginewhatitwillbelikeforthe drafterstartingonthesubjectfromscratch. Apersonwhohasbeenimmersedinasubjectfor some time often needs to take pains to get it across to someone just coming to it.

9.2Secondly,thedepartmentallawyershouldstructuretheinstructionsanddecidetheircontents onthebasisofwhatseemslikelytobemostusefultothedrafter. Theguidanceinthischapter shouldhelpindecidingwhatwillbemostusefulbutthedepartmentallawyershouldfeelfree to depart fromtheguidanceifthereappearstobeabetterwayofdealingwiththings.The departmentallawyershouldalsofeelfreetodiscusshowbesttostructuretheinstructionswith the appropriate Team Leader or drafter in OPC.

9.3Thirdly, thedepartmentallawyershouldtrytoensurethatthepolicyisfullythoughtthrough andanalysedbeforetheinstructionstoOPCarefinalised. Nonetheless,OPCdoappreciate that the conditions for preparing instructions areseldomidealandthatitisnotunusualfor compromises to havetobemadetocopewiththepressuresofthetimetableoradelayin decisionmaking.Wherethisisthecaseitwillhelptodiscussthesedifficultieswiththedrafter and agree the best way to deal with them.

9.4Fourthly, when writing instructions it is important to think ofthedrafterasapartofthebill team. This means that the instructions should becandidaboutanyknowndifficultieswith whatisbeingproposed.Forexample,itmaybethatthereisagapinthepolicyoralogical wrinkle in the department’s thinking that has not beenironedout. Byairingthesesortsof difficultiesintheinstructionsyouwillsavethedrafterthetroubleofdiscoveringthem. Itmay be that thedrafterisabletoofferasolutionorawayforwardthathasnotpreviouslybeen considered by the department.

9.5Finally, when writing instructions it is important to keep in mind the generalrulethatabill shouldonlycontainlegislativepropositions. Thesearepropositionsthatchangethelaw:they bringaboutalegalstateofaffairsthatwouldnotexistapartfromthebill. Itcansometimesbe temptingtoaskthedraftertoprepareaprovisionthatisnotintendedtochangethelawbutis insteaddesignedtoservesomepoliticalpurposeortoexplainoremphasiseanexistinglaw. However,non-legislativeprovisionsofthissortarelikelytogowrongbecausethecourtswill beinclinedtoattributelegaleffecttothemonthegroundsthatParliamentdoesnotlegislate unnecessarily and the legal effect attributed may be one the Government could not have predicted. Insteadofaskingfornon-legislativeprovisionstobeincludedinthebill,consider whetherthepointthedepartmentwishestomakecanbemadeinanotherway,suchasina ministerial statement to Parliament, in the explanatory notes to the bill or in guidance.

Form of the instructions

9.6OPCissometimesaskedhowtoformattheinstructions. Hereissomeguidanceaboutwhat most drafters find helpful:

• ● itishelpfulifboththepagesandparagraphsoftheinstructionsarenumberedorlettered 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
• ● ifitisnecessarytoprovidethedrafterwithsupplementarydocuments,itispreferablefor thedocumentstobeattachedtotheemailsendingtheinstructionsratherthanforalinkto the document on the Department’s server to be embedded in the instructions.

Structure and content of the instructions

9.7Ashasalreadybeensaid,instructionsshouldbestructuredinwhateverwaytheauthorthinks will be most useful to the drafter.

9.8Nevertheless, a good way to structure theinstructionswilloftenbetodividethemintofive parts, as follows:

• ● introduction;
• ● existing law;
• ● detailed proposals;
• ● supplemental and incidental matters; and
• ● parliamentary and other handling matters.

9.9The remainder of this chapter describes what each of these parts should deal with.

Part 1 - Introduction

• 9.10 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.Theaimissimplytoprovidethedrafterwithanindicationofwheretheinstructions 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,theGovernmentwishestopreventanyonesellingfireworkswithoutalicenceissued 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. TheGovernmentwanttheSecretaryofStatetobeabletoimposeconditionson licence-holdersandtobeabletoinspecttheactivitiesoflicence-holders. TheGovernment wantittobepossibleforpeopletoappealtotheFirst-tiertribunalagainstcertaindecisions made by the Secretary of State in connection with the licensing regime.”

• 9.11 In addition, this part of the instructions should briefly set out the factual and political backgroundtotheproposaltolegislate. Sotocontinuetheexampleabove,theinstructions might briefly mention the recent problems that have arisen in connection with the sale of fireworks. Theinstructionsmightmentiontheresultsofanyconsultationcarriedoutintothe establishmentoftheproposedlicensingregimeandanyministerialcommitmentstoestablish it. If the proposal to legislate is a response to recent case law this fact should be mentioned.
• 9.12 IftheinstructionsarelikelytogiverisetoparticularlydifficultdevolutionorECHRissuesa 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).
• 9.13 This part of the instructions should mentionifthereisanyparticularreasontothinkthe department’sproposalsmaychange. Forexample,itshouldmentionifanyoftheproposals havenotyetbeenapprovedbytheminister,donotyethavecollectiveagreementorarethe subject of an on-going consultation.
• 9.14 Thispartoftheinstructionscanbeusedtosetoutanyotherinformationthattheauthor thinksitishelpfulforthedraftertoknowfromtheoutset. Forinstance,itmaybehelpfulto mention any acronymsorabbreviationsusedintheinstructions.Itmightbeagoodideato provide a web link to any consultation documents or other relevant publications.

Part 2: Existing law

• 9.15 Thispartoftheinstructionsshouldidentifyandexplaintheexistinglawwhichisrelevantto the department’s proposals.
• 9.16 DraftersinOPCtendnottospecialiseinparticularareasoflaw. Sothedraftermayneed torelyonthispartoftheinstructionstogettogripswiththelegallandscapeinwhichtheyare beingaskedtooperate.Evenifthedrafterhappenstohavesomeexperienceoftheareaof law concerned, a statement of the law by someone who is familiar with it can be very valuable.
• 9.17 Theauthoroftheinstructionswill,ofcourse,needtoexercisejudgmentindecidingwhich existinglawsshouldbecoveredandhowmuchdetailtogointo. Whatisappropriateinany givencasewilldependuponthenatureofthedepartment’sproposalsandwhatitisthatthe drafter is going to be asked to do.
• 9.18 Forexample,ifthenatureofthedepartment’sproposalsmeanthatthedrafterisgoingto be asked to prepare a widerangeofamendmentstoanexistingstatutoryregimeitwillbe necessarytoprovideathoroughexplanationoftheregimewhichfocuses,inparticular,onthe aspectsofitthatwillneedamending. Bycontrast,ifthenatureofthedepartment’sproposals willinvolverepealinganexistingstatutoryregimealtogetheritmaybethatallthedrafterneeds tobegivenisanindicationofwheretheexistingregimecanbefoundandabriefexplanation of what the regime is concerned with.
• 9.19 The author of theinstructionsshouldseektoexplaintheexistinglawratherthansimply copy out or paraphrase every statutory provision that is thought to be relevant. Whatthe drafter will find helpful is something that, in particular, does the following sorts of things:
• ● identifiesthesalientfeaturesoftheexistinglawandfacilitatesarapidunderstandingofits structure and effect;
• ● identifies subtleties or nuances in the existing law which might easily be missed;
• ● draws attentiontoanyconflictingdecisionsoropinionsaffectingtheinterpretationofthe existing law; and
• ● highlightsfeaturesoftheexistinglawwhichareofparticularimportanceinthecontextof the department’s proposals.
• 9.20 Itisoftenhelpfulfortheexplanationoftheexistinglawtosaysomethingaboutitspractical operation. This is particularly important if,asissometimesthecase,theexistinglawisin practice operated by the department in a way that might come as a surprise to the drafter.
• 9.21 Theauthoroftheinstructionsshouldconsiderifitwouldbehelpfultoprovidesomehistory oftheexistinglaw. Forinstance,iftheexistinglegislationwastheresultofaconsolidation exerciseitmaybehelpfulforthedraftertobetoldthisandtobetoldwheretofindtheoriginal legislationfromwhichtheexistinglegislationwasderived. Itmaybehelpfultoletthedrafter knowifthepurposeoftheexistinglegislationwastogiveeffecttoproposalscontainedina LawCommissionreport. Sometimesthedraftermaybeassistedbyanexplanationofwhya previous amendment to the existing legislation was made (e.g. to reverse the effect ofan unwelcome court decision or to implement an international obligation).
• 9.22 Itisparticularlyimportantthattheinstructionsmentionanyrelevantchangestotheexisting lawthatareinthepipeline.Forexample,thedraftershouldbetoldiftheexistinglawisgoing to be changed by another bill or by a statutory instrument that the department is working on.
• 9.23 If the author of the instructions is aware of anyrelevantLawOfficer’sadviceaboutthe effect of the existing law this should be brought to the drafter’s attention.
• 9.24 Whileitisimportantthatthedrafterisgivenagoodgroundingintheareatheyaregoingto beoperatingin,itisnotnecessarytoprovideatreatiseontheexistinglaw.Careneedstobe 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.
• 9.25 TheinitialresourcesmeetingbetweenOPCandthedepartmentwillprovideanopportunity for discussion of how much detail will be appropriate in any given set of instructions.

Part 3 - Detailed proposals

• 9.26 Introduction:Thispartoftheinstructionsshouldexplainindetail(a)thepolicyobjective thatthedepartmentwishestoachieveand(b)thechangesinlawthatthedepartmentwantsto make in order to achieve that objective.
• 9.27 Policyobjective:Itissometimestemptingtoskipthefirstelementandgostraightonto describingthechangesinlawthatthedepartmentwants. Buttherearetworeasonswhyitis 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 achievetheobjective. Thesecondreasonisthattheexplanationmayenablethedrafterto suggestanalternativechangeinlawintheeventthatthedrafteridentifiesadifficultywiththe change suggested in the instructions.

Changes in law

• 9.28 Whenitcomestodescribingthechangesinlawthatthedepartmentwants,thekeyisto concentrate on the substance of the proposed changes. In other words, the key is to concentrateonwhatlegaleffectthedepartmentwantsthebilltoproduce(e.g.“thebillshould makeitacriminaloffencetodoA,BorC”/“thebillshouldconferapowerontheSecretaryof State to do A, B, and C” / “the bill should abolish body A”).
• 9.29 However, once the author oftheinstructionshassetoutthesubstanceoftheproposed changesthereisnoreasonnottogoontomentionanyviewstheyhappentohaveaboutthe formthatthechangesshouldtake. Forexample,iftheauthorthinkstheproposedchanges shouldtaketheformofafreestandingprovisionratherthananamendmenttoanexistingact thentheauthorshouldfeelfreetosayso. Iftheauthorthinkstheproposedchangesshould takeasimilarformtoanexistingstatutoryprovisionthentheyshouldreferthedraftertothe provisionconcerned. Iftheauthorhasinmindaparticularformofwordswhichmightcapture theessenceofaproposedtestorruletheyshouldnotfeelanyhesitationinsettingoutthe 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.
• 9.30 Itisimportanttorememberthoughthatprovidingdraftingsuggestionsofthissortisnota substitute for clearly explaining the substance of the proposedchangethatiswanted.The drafter will be unable to produce draft provisions, or assess the merits of any drafting suggestionsmadebytheauthoroftheinstructions,unlessthedrafterhasbeengivenaclear explanation of what substantive change in the law the department is trying to achieve.
• 9.31 Indescribingthesubstantivechangesinlawthatthedepartmentwantsitisnecessaryto spelloutthedetailsinfull. Ifthereareanygapsinthedetailsprovidedthedraftermayneedto reverttothedepartmentforthegapstobefilledbeforebeingabletoproceedwithdrafting. Alternatively,thedraftermaycontinuedraftingonthebasisoftheirbestguessastowhatthe departmentwillwantbuttherewillthenbeariskthattheirguesswillbeincorrectandthedraft will need to be revised.
• 9.32 Whendescribingtheproposedchangesinlawtheauthoroftheinstructionswill,ofcourse, needtoexercisejudgmenttodeterminehowmuchdetailisenoughbutagoodstartingpointis fortheauthortothinkaboutwhattheywouldwanttoknowifaskedtodraftprovisionstogive effecttothechange. Thenextfourparagraphsillustratethelevelofdetailthatisneeded,by reference to particular types of legal changes that are commonly sought by instructing departments.

New criminal offence

• 9.33 Ifthedepartmentwantstocreateanewcriminaloffencetheinstructionswillneedtospell outtheactsoromissionsthataretobeforbidden,thementalelementoftheoffence,themode oftrialfortheoffence(i.e.summaryonly,triableeitherwayorindictableonly),theproposed penaltyfortheoffenceandwhethertheconsentofanypersonisneededforaprosecutionto be brought. If defences are wanted, the circumstances in which the defences should be available will needtobesetout.Itwillalsobenecessarytosetout,inrelationtoboththe offenceandanydefences,wheretheburdenofproofshouldfallandthestandardofproofthat 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

• 9.34 If the department wants to create a new power to make subordinate legislation the instructionswillneedtospellouttheintendedscopeofthepower,howitisthoughtthatthe power will be used, the person on whom the powershouldbeconferredandwhetherthat personshouldbeabletodelegatethepowertosomeoneelse,theparliamentaryscrutinyto which the power is to be subject and whether the power is to be exercised by statutory instrument(sothattheStatutoryInstrumentsAct1946applies). Ifthepoweristobesubject totheaffirmativeresolutionprocedureanditispossiblethatthepowermaybeusedtomake legislationthatwould(ifincludedinabill)makeabillhybrid,theinstructionsshouldindicate whetherprovisioniswantedinthebilltodisapplythespecialHouseofLordsprocedurethat appliestohybridinstruments. Itwillbeimportanttoensurethatalldelegatedpowerscanbe appropriately justified to Parliament.

New duties

• 9.35 Ifthedepartmentwantstocreateanewdutyofanykindtheinstructionswillneedtosetout thecircumstancesinwhichthedutyistoarise,theprecisenatureofthedutyandtheperson onwhomthedutyistobeimposed. Butitwillalsobenecessaryfortheinstructionstoexplain how the duty is to be enforced. The department may wish the duty to be enforced by a criminalpenaltyoracivilsanction. Itmaywanttoenforcethedutybymakingcompliance withitapre-conditiontotheaccrualofsomerightorbenefit. Ifthedutyisapubliclawduty, thedepartmentmaywanttorelyonjudicialreviewforenforcement. Ifthedutyisadutyto complywithacourtorderthedepartmentmaywishtorelyonthelawgoverningcontemptof court. Evenwherethemeansofenforcementchosenwillnotneedtobeexpressedinthebill anexplanationofthemeansofenforcementshouldstillbesetoutintheinstructionssothat the drafter is clear about what is intended.

New decision-making powers

• 9.36 Ifthedepartmentwantsthebilltoconferadecision-makingpoweronsomeoneitwillbe necessary, among other things, for the instructions to setoutthedetailsofanyprocedural requirementsthatthebillshouldimposeasapre-conditiontotheexerciseofthepower. Itwill be necessary for the instructionstosayifthedecision-makingpowershouldbecapableof being delegated. It will also be necessary for the instructions to set out the detailsofany appeal or review mechanism that needs to be provided for in the bill.

Use of examples

• 9.37 Indescribingtheparametersofaproposedchangeinthelawitissometimeshelpfultoset outexamplesofthesortofcasethatthechangeinlawistoaffectandofthesortofcasethat shouldnotbeaffected.Whenrequestingthecreationofacriminaloffenceitmaybehelpfulto giveexamplesofthesortofconductthatshouldandshouldnotbecriminalised. Whenthis approachistakentheinstructionsshouldalsocontainanalysisofwhatitisthatdistinguishes the two sorts of case.

Alternatives

• 9.38 Sometimestherewillbeseveralwaysinwhichthelawcouldbechangedinordertomeet thedepartment’spolicyobjective. Inthissituationtheauthoroftheinstructionsshouldbriefly explainwhythechosenoptionhasbeenpreferredtotheothers.Thisisparticularlyusefulif oneofthealternativeoptionsmightappearatfirstsighttobemoreattractiveorstraightforward than the chosen option.

Part 4 – Supplemental and incidental matters

• 9.39 Theauthoroftheinstructionsshouldconsiderwhetheranythingneedstobesaidaboutany of the supplemental and incidental matters listed below.
• 9.40 Ifthebillisbeinginstructedonininstalmentsitmaybethatsomeofthesupplementaland incidentalmatterscanbeaddressedinageneralinstalmentthatappliestothewholebillso that they do not need to be addressed separately in each of the remaining instalments.
• 9.41 Inrelationtosomeofthesupplementalandincidentalmatters,suchasterritorialextentand commencement, something will always need to be said in the instructions (unless those mattershavealreadybeencoveredinageneralinstalment).Butsomeofthematterswillonly occasionally need to be addressed.
• 9.42 The supplemental and incidental matters are as follows:
• ● ECHR compatibility;
• ● theterritorialextentoftheproposals(includingwhethertheproposalsshouldextendtothe 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).
• 9.43 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.
• 9.44 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 proposalsarecompatiblewiththoserights.Itisnotpartofthedrafter’sroletoconfirmwhether 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.
• 9.45 ApplicationtotheCrown:Theinstructionsshouldstatewhetherornottheobligationsor restraintsthattheproposedlegislationwillimposeshouldapplytotheCrown,toservantsor agentsoftheCrownorinrelationtoCrownproperty. Thedrafterwillthenbeinapositionto considerwiththedepartmentallawyerwhat,ifanything,needstobesaidinthebilltoensure that the government's policy as regards Crownapplicationisachieved. Inconsideringthis questionthedrafteranddepartmentallawyerwilltakeaccountofthegeneralruleofstatutory construction that legislation does not apply to the Crown or in relation to Crown property unless it does so expressly or by necessary implication.
• 9.46 ApplicationinrelationtoParliament:Ifthedepartment’sproposalsareintendedtoapply toParliamentortheParliamentaryestatethedepartmentisexpectedtoapproachtheHouse authoritiestogivethemanopportunitytocommentontheproposals.Theinstructionsshould confirm that this has been done or is in hand.
• 9.47 Consequentialamendmentsandrepeals:Thedepartment’sproposalswilloftengiverise to the need for consequential amendments or repeals of existing statutory provisions.
• 9.48 Whereverpossibletheconsequentialamendmentsandrepealsthatareneededshouldbe included in the bill itself. (If there is a concern that a need for additional consequential amendmentsorrepealsmaybeidentifiedafterRoyalAssentthenitmayalsobeappropriate forthebilltoincludeapowertomakeadditionalconsequentialamendmentsandrepealsby regulations.)
• 9.49 Theotheroptionisforthebilltoconferapowerenablingallthenecessaryconsequential amendmentsandrepealstobemadebyregulations. Thisoptionmayseemattractivetothe departmentwherethereisalimitedamountoftimeforinstructionstobeprepared.However,it isimportanttorememberthatifthedraftingofconsequentialamendmentsandrepealsisleft untilafterRoyalAssentthedepartment(ratherthanOPC)willberesponsibleforpreparingthe drafting. Also, it is sometimes the case that the process of drafting the consequential amendmentsandrepealsrevealsproblemswithoromissionsfromthemainprovisionsofthe 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 consequentialamendmentsandrepealsisleftuntilafter RoyalAssentthiscancauseadelayinimplementation.Itisimportantthatdelegatedpowers shouldnotbewiderthanneededtodeliverthepolicy.Thefullwidthofalldelegatedpowers 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.
• 9.50 Theinstructionsshouldtellthedrafterwhichoptionthedepartmentwishestopursue.Ifthe departmentwantstheconsequentialamendmentsandrepealstobeincludedinthebillitmay besufficientfortheinstructionstosimplyprovidealistofalltheexistingprovisionsthatneed to be amended or repealed. (For example, if the department’s proposal is to abolish an existing statutory body and transfer its functions to anewbodyitmaybesufficientforthe instructionstosimplyprovidealistofalltheexistingstatutoryprovisionswhichrefertotheold body on the basis thatitwillbeobvioustothedrafterthatthelistedprovisionsneedtobe amendedtorefertothenewbody.) However,onsomeoccasionsitwillnotbeimmediately 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.
• 9.51 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.
• 9.52 A transitional provision is a provision that deals with how a casethatbeginsunderthe existing law is to be treated when the new law in the bill is commenced. For example, supposethatthedepartmentwantsthebilltoreplaceanexistinglicensingregimewithanew licensingregime,atransitionalprovisionmaybenecessarytoensurethatanapplicationfora licenceundertheexistingregimewhichhasnotbeendeterminedistreatedasanapplication for a licence under the new regime.
• 9.53 Atransitoryprovisionisaprovisionthatstatesthataprovisioninthebillwillhaveeffect with modifications for a limited period (perhaps until the coming into force of some other enactment). Anexampleofatransitoryprovisionwouldbeaprovisionthatsaysthatuntilthe comingintoforceofageneralincreaseinpenaltieseffectedbysomeotheract,thereference in a provision of the bill to a maximum of 12 months’ imprisonment will have effect as a reference to 6 months.
• 9.54 Asavingprovisionisaprovisionthatkeepsanenactmentwhichisrepealedbythebillalive forcertainlimitedpurposes.Anexampleofasavingprovisionisaprovisionwhichsaysthat therepealbythebillofanexistingenactmentdoesnotaffectanyright(suchasarighttoa payment) which accrued under the enactment prior to the commencement of the repeal.
• 9.55 As with consequential amendments and repeals, the transitional, transitory and saving provisionsthatareneededshouldbeincludedinthebillitselfwhereverpossible(perhapswith a regulation-making power if there is a concern that a need for additional transitional etc. provisions may be identified after Royal Assent).
• 9.56 Theotheroptionisforthebilltoconferapowerenablingallthenecessarytransitionaletc. provisionstobemadelaterbyregulations. Again,thisoptionmayseemattractivewherethere isalimitedamountoftimeforinstructionstobeprepared.Itisimportanttorememberthatif the drafting of transitional etc. provisions isleftuntilafterRoyalAssentthiscanresultina delay in implementation. In addition, it is necessary to bear in mind that the transitional provisionsneededareoftenverycomplexandifthedraftingisputoffuntilafterRoyalAssent the department (rather than OPC) will be expected to do the drafting.
• 9.57 The instructions should tell the drafter which option the department wish to pursue.
• 9.58 Commencement: The instructions should tell the drafter what is wanted as regards commencementoftherequestedprovisions. Therearearangeofoptionsherebutusually 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.
• 9.59 Where possible the day when the requested provisions come into force should be determined by the bill itself (rather than by regulations made underthebill).Thisprovides greater certainty to those who are going to be affected by the provisions and also saves puttingthereadertothetroubleoflookingupregulations.However,itisrecognisedthatthe department will frequently need the flexibility to be able to determine the date of commencement in regulations.
• 9.60 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,provisionsinbills/actsshouldnotbecommencedbeforetheendoftheperiodof2 monthsfollowingRoyalAssent,unlesstheLawOfficersconsent. Inthecaseofprovisionsina consolidationbilltherelevantperiodis3monthsfollowingRoyalAssent.Furtherinformation 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.
• 9.61 Ifthedepartmentproposesthattheprovisionsrequestedintheinstructionsbecommenced (whether by the bill itselforbyregulationsmadeunderit)beforetheendofthetwo-month periodtheinstructionsshouldsaywhethertheauthorconsidersthatoneoftheexceptionsto theconventionapplies. Ifnoneoftheexceptionsapplytheinstructionsshouldtellthedrafter what stage the department has reached in seeking the Law Officers’ consent to early commencement.
• 9.62 The author oftheinstructionsshouldalsorememberthatiftherequestedprovisionswill haveabearingonbusinessitislikelythattheprovisionswillhavetobecommencedononeof the“commoncommencementdates”(i.e.6Aprilor1October). TheDepartmentforBusiness, Energy&IndustrialStrategyhasissueddetailedguidanceoncommoncommencementdates which can be accessed from its website or from the LION intranet site.

Part 4 – Parliamentary and other handling matters

• 9.63 This part of the instructions should setoutanythingtheauthorthinksthedraftershould knowabouttheproposedhandlingofthebill. Forexample,itshouldsetoutthefollowingsorts of things (in so far as they are known to the author):
• ● anyplansforthebilltobepublishedindraftforconsultationorpre-legislativescrutinyand the timetable for this;
• ● the timetable for the PBL Committee and introduction to Parliament;
• ● anymattersonwhichthedepartmentexpectstohavetomakeconcessionsinParliament;

and

• ● any pressing need for the bill to reach Royal Assent by a particular date.
• 9.64 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.
• 9.65 Ifthebillisbeinginstructedonininstalmentsitmaybethatthemattersmentionedinthe precedingtwoparagraphscanbeaddressedinageneralinstalmentthatappliestothewhole bill so that they do not need to be addressed separately in each of the remaining instalments.

10. EXPLANATORY NOTES

Key points

• ● Explanatory notes (commonly referred to as ENs or ExNotes) are required for all bills introducedineitherHousebyagovernmentministerwiththeexceptionoffinancebillsand consolidation bills, for which different explanatory material is provided. Explanatorynotes (ENs) are also requiredforallgovernmentbillspublishedindraftandshouldnormallybe provided for handout bills.
• ● ENsarenotintendedtobeanexhaustivedescriptionofthebillortobeasubstituteforit. Good explanatory notes put a bill into context, explaining what is not apparent from the provisionsofthebillitselfandgivingexamplesofhowthebillwilloperateinpractice.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.
• ● ENsareupdatedbythedepartmentatvariouspointsduringthepassageofaBill,withafinal versionpublishedalongsidetheActafterRoyalAssent. Asaresult,apointofcontactinthe bill team needs to be identified at an early stage totakeresponsibilityforproducingand ensuring the notes are updated.

Part 1 – Purpose and Process

• 10.1 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:
• ● assistincommunicatingthedepartment’smessagesaboutthebill(whilstremainingneutral 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
• ● afterenactmentofabill(whenthenoteswillbecomeexplanatorynotestotheresultingAct) help members of the public to understand the law as it applies to them.
• 10.2 Good explanatory notes can achieve these outcomes by putting a bill into context, explainingwhatisnotapparentfromtheprovisionsofthebillitselfandgivingexamplesofhow 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, whatis said in the bill are not helpful. They should bewritten in plain language.

Legal status of the notes

• 10.3 ENs are not legislation. They do not form part of the bill and are not amendable by Parliamentnorendorsedbyit.Theyarenotdesignedtoresolveambiguitiesinthetextofthe bill. The notes must not purport to give authoritative rulings on the interpretation of the proposed legislation as only the courts can give these.
• 10.4 After Royal Assent, the final version of the notes will be published alongside the Act. Althoughtheydonotformpartofthelaw,explanatorynotesaresometimesreferredtobythe courts when interpreting an Act so it isimportanttomakesurethattheyareaccurate,are neutral in tone,and do not mislead.

Who should write the notes?

• 10.5 Thedepartmentsponsoringthebillisresponsibleforpreparingthenotestoaccompanyit. ENs should be written by someone withinthedepartmentwhoisexperiencedinthepolicy areainwhichthebilloperatesandwhohasasubstantialinvolvementwiththedevelopmentof the bill.
• 10.6 TheappropriatepersontowritetheENsmightbethebillteammanagerortheleadpolicy official. The bill team should identify that person at an early stage.
• 10.7 Ifabillcoversarangeofdifferentpolicyareas,thenoteswill,ofnecessity,bewrittenbya numberofdifferentpeoplebutthatnumbershouldbekepttotheminimumpossible.Where therearemultipleauthors,someonemustbeidentifiedtoactastheeditorofthenotes.The roleofeditorisnotanadministrativeone;someoneelsecantakeresponsibilityforcollecting (and chasing) contributions and bringing them together in the same document. The editor needstotakeoverallresponsibilityforthecontentoftheENs,makingsurethatthestyleofthe notes is consistent throughout and that the notes are clear, fluent and readable.

Point of contact with the Public Bill Offices

• 10.8 Itisessentialthatoneperson,usuallyamemberofthebillteam,actsasapointofcontact withthePublicBillOfficesandultimatelyhastheresponsibilityforsendingthefinalversionof 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 Officeinthe House of introduction receives the contact details of this person at an early stage.
• 10.9 Although prepared by departments, ENs are aparliamentarydocumentandcopyrightis assignedtoParliamentwhilstthebillisbeforeit.ThePublicBillOfficeineachHousearranges publication as a separate document alongside the bill and makes the bill and its notes availableontheBillsbeforeParliamentsectionoftheparliamentarywebsite.Evenifthebillis notamended,thenotesmustbeupdatedatcertainstagesofparliamentarypassageandthe most recent version will always be published on the parliamentary website (along with previous versions).
• 10.10 DepartmentsshouldnotpublishthebillandtheENsontheirowndepartmentalwebsite(for whichcopyrightpermissionwouldneedtobeobtainedbycontactingthePolicyTeaminThe National Archives). Instead departments should simply provide a link totheparliamentary website page about their bill.

Templates

• 10.11 ENsmustbewrittenusingthelatestversionoftheWordtemplate.Thisisavailablefrom the PBL Secretariat. Technical assistance with the template is available and the PBL Secretariatwillknowwhotocontactforthispurpose.Whencompletingnotesforsubmission totheHouseofCommonsPublicBillOfficeasecondversioninArialfontsize20isrequiredin addition to the regular template.

When to start writing the notes

• 10.12 Writing ENs should not be left until the last minute even though they often cannot be finaliseduntilthen.Workonthepartofthenotesthatexplainsthepolicybackgroundandthe legal background to the bill can begin alongside work on the instructions toParliamentary Counsel.
• 10.13 Workcanalsostartatanearlystageonthepartofthenotesthatprovidescommentaryon particularprovisionsofthebill.Thiscanstartassoonasthepolicybehindtheprovision,and thedraftingapproachtobetakentodeliverthepolicy,issufficientlysettled.Insomecases,it mayevenbepossibletodraftanoteonaproposedprovisionwithoutsightofadraftofthe provision.

The role of departmental lawyers, Parliamentary Counsel, the Territorial Offices andthe Office of the Advocate General

• 10.14 Departmentallawyersaretheprimarysourceofadviceonthenotes,andtheyshouldbe involvedincommentingonallaspects,ensuringinparticularthatthenotesareaccurateand neutral in tone.
• 10.15 Departmentallawyerswillinparticularbetheprimarysourceofadviceontechnicalaspects of the notes, such as territorial extent and application and compatibility withtheEuropean Convention on Human Rights.
• 10.16 DepartmentallawyersshouldengageearlywithTerritorialOfficelawyers-forScotlandthe Office of the Advocate General, for Northern Ireland the Northern Ireland Office Legal Advisers,andforWalestheWalesOfficeandInformationLawteam-todiscusstheextent and application of the bill.
• 10.17 ItisnotnecessaryforthedepartmenttoclearthenoteswithParliamentaryCounselbutthe drafterresponsibleforthebillwillnormallyexpecttobegiventhechancetocommentonthe parts of the notes dealing with territorialextentandapplicationandtherelatedannex.The drafterwillneedeithertodraftorclearthewordingforthesectiononParliamentaryapproval for financial costs or for charges imposed.
• 10.18 ThedepartmentmayofcoursecontactParliamentaryCounselaboutaspectsofthenotes otherthanthosementionedintheprecedingparagraphbuttheextenttowhichParliamentary Counsel isabletoprovidecommentsoradviceonotheraspectswilldependoncompeting priorities and the time available.

PBL Committee meetings before introduction

• 10.19 TheENsmustbeprovidedalongsidethebillbeforethePBLCommitteewillclearthebillfor introduction. In the run-up to introduction, the PBL Secretariat mayaskthedepartmentfor updates on the state of the notes, as well as the bill.
• 10.20 The bill team should find out whether thebillministerwishestoapprovethetextofthe notesbeforetheyaresubmittedtothePBLCommitteeandensurethatthereissufficienttime for ministerial clearance.
• 10.21 Before the draft notes are ready to send tothePBLCommittee,thereareanumberof 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 analysisislengthy,aseparatememorandumwithdetailedargumentsshouldbeprovided); and
• ● anyoutstandingdevolutionpointsmustbesettledwiththeScotland,WalesandNorthern Ireland offices (as relevant) and, as regards Scotland, with the Office of the Advocate General.
• 10.22 Remember that it may take some time to ensure that the notes areformattedcorrectly using the template. It is strongly advised not to leave this until the last minute.
• 10.23 The relevant Public Bill Office will wish to have anopportunitytocommentonthedraft notes (either before or after PBL Committee consideration of the bill, as timeallows).You shouldsendadraftversionofthenotesasearlyaspossible,nolaterthantwodaysbefore introduction.
• 10.24 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.Youshouldalsocopytheparticularclerkdealingwithyourbill(if known).
• 10.25 Whenthebillisreadytobeintroduced,thefinalversionofthenotesshouldbesenttothe PublicBillOfficeintheHouseofintroductionbythepersonactingasthepointofcontact.The Public Bill Office deals with publication. WhensubmittingnotestotheHouseofCommons’ PublicBillOfficeasecondversioninArialfontsize20isrequiredinadditiontotheregular template notes.
• 10.26 ThePublicBillOfficewillnotarrangeforthenotestobepublishedunlesstheyaresatisfied that the notes:
• ● are in the correct template and format;
• ● are neutral in tone;
• ● donotcontainmaterialdesignedtopersuadereadersofthemeritsofthepolicyofthebill (as opposed to explaining what that policy is); and
• ● do not misrepresent the effect or purpose of any provisions of the bill.
• 10.27 LatepublicationofENscanleadtoseriouscomplaintfromMPsandpeers,soeveryeffort should be made to avoid this. If, in exceptional circumstances, publication is likely to be delayed,thebillteamshouldcontactthePBLSecretariatassoonaspossiblewhowillensure that PBL Committee and the Business Managersareinformed.Youshouldalsoinformthe Public Bill Office in the House of introduction.

Updating the notes

• 10.28 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.
• 10.29 TheneedtoupdatethenoteswhenabillmovesfromthefirstHousetothesecondHouse shouldnotbeseenasanopportunitytoprovidenotestothefirstHouse“thatwilldo”onthe basis that they will be “sorted out” when the bill moves to the second House.
• 10.30 IntheCommons,ifabillisamendedsignificantlyduringoneofitsstagesinaHouse(for example,inCommittee)thedepartmentmaywishtoconsiderupdatingthenotesintimefor thenextstageofthatHouse'sconsiderationofthebill,thoughthisadditionalupdatingishighly unusual. However, in practical terms, it willbeeasiestforbillteamstorevisetheirworking versionoftheENsasthebillisamended,ratherthanwaitinguntiltheendofthefirstHouse. Updating the ENs between stages is not permitted in the House of Lords.
• 10.31 ThePublicBillOfficeinthesecondHousewillwishtohaveanopportunitytocommenton thedraftnotes.Youshouldsendadraftversionofthenotesasearlyaspossible,nolaterthan two days before the bill is to be sent from the first House to the second.
• 10.32 There is a separate document (ENs on amendments) that must beproducedifabillis amended in the second House.
• 10.33 A checklist of tasks for preparing and finalising ENs is provided in Appendix G.

Part 2 – Content of Notes

• 10.34 Itisessentialthatthenotesareneutralintone.ENsforbillsareaParliamentarydocument thereforeitisopentotheHouseauthoritiestorefusetopublishthenotesandtheyhavemade itclearthattheywilldosoifthenotesattemptto‘sell’thebill,thatis,gobeyondaneutral account of the bill and into promoting it. For example, it is permissible to say what the provisionsaredesignedtodo,butnottosaythatameasure“dealscomprehensivelywiththe problemby…”Thepracticalrisk,ofcourse,isthatthenoteswillbepublishedlateifrevisions have to be made in response to comments from the House authorities.
• 10.35 Experienceshowsthatthemostsuccessfulnotesareoneswritteninplainlanguage,with shortsentencesandparagraphs.Itisimportanttoavoidjargonandtoexplainthemeaningof anytechnicalorlegaltermsandanyacronymsorotherabbreviations.Thenotesaredesigned toassistreaderswhodonothavelegaltrainingandareunfamiliarwiththesubjectmatterof the bill.
• 10.36 Itmaybehelpfultoinclude,asthefirstannextothenotes,aglossaryoftermsincluding acronyms and abbreviations.
• 10.37 Thoughtshouldbegiventowhetherincludingdiagrams,flowchartsetc.inthenoteswill helpexplainprovisionsofthebill.Thismaybeinplaceoforinadditiontoablockoftext.For example,theENsfortheEnterpriseandRegulatoryReformAct2013useflowchartstohelp explain the effect of certain textual amendments made by Part 4 of the Act (competition reform)–seethecommentaryonsections32,35and38.SeealsotheENsfortheArmed Forces(ServiceComplaintsandFinancialAssistance)Bill(2014-15Session)whichincluded atAnnexBaflowchartillustratinganewcomplaintsprocess(theflowchartdoesnotappear in the Act version of these notes).
• 10.38 The use of hyperlinks is encouraged.
• 10.39 Eachprovisioninabillisassignedaj-referencenumberbyParliamentaryCounsel.This numberalwaysstaysthesame,whereastheclauseorSchedulenumberislikelytochange duringthedraftingprocess.Itisadvisabletousethej-referencenumberintheENsandthen, whenthenotesarebeingfinalised,replacethej-referencenumberwiththeappropriateclause orSchedulenumber.Itisalsoadvisabletominimisethenumberofplacesinthebodyofthe notes where clauses or Schedules are referred to by number.
• 10.40 Manybillsamendexistinglegislationanditcanbedifficultforthereadertoworkoutwhat the amended legislation will look like. Where it islikelytobehelpfultothereader,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 legislationasamended.IfthedepartmentfeelsthatthesewouldbehelpfultoMPs 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.
• 10.41 RememberthatwithinthreetofiveyearsofRoyalAssenttheGovernmentwillberequired to submit a memorandum to the relevantdepartmentalselectcommitteewithapreliminary 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(alongwiththeimpactassessment)must therefore provide sufficient information about the objectives of the Act to allow any post-legislativereviewingbodytomakeaneffectiveassessmentastohowanActisworking out in practice.

Structure of the notes

• 10.42 ThetemplateisstructuredsuchthatENsmustcontainthefollowingsections,eachofwhich is covered in more detail below:
• ● What these notes do;
• ● Table of Contents;
• ● Overview of the bill;
• ● Policy background;
• ● Legal background;
• ● Territorialextentandapplication,includinganAnnexonterritorialextentandapplicationin 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.
• 10.43 Forthosebillswhoseparliamentaryprogressistobeexpedited,thenotesmustcontainan additionalsectionentitled‘Fast-tracklegislation’,whichisinsertedafterthe‘Territorialextent andapplication’section.PBLCommitteeclearancewillonlybegrantedforabillthatistobe fast-tracked if the notes include this section.

Preliminary parts of the notes (What these notes do; table of contents; footer)

• 10.44 Thefirstpageofthetemplateincludesanintroductionwhichmakesitclearthatthenotes havebeenpreparedbythedepartmentanddonotformpartofthebill.Thetemplatecontains macroswhicharetobefilledwiththerelevanttext(seesquaredbracketsintheboxbelow). Thesewillpopulatethetableofcontentsandthefooterofthenotes.Shouldyoufacetechnical 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.
• 10.45 The table of contents will be generated automatically by the template.
• 10.46 The templateprovidesforthenotesonintroductiontohavethefollowingfooteroneach page:

“These Explanatory Notes relate to the [name of] Bill as introduced in the House of [Lords/Commons] on [date] ([bill reference number])”

• 10.47 The Public Bill Office will insert the bill reference number.

Overview of the Bill section

• 10.48 Thissectionshouldprovideaverybriefsummaryofwhatthebilldoes.Asentenceortwo 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

• 10.49 Thissectionofthenotesshouldprovideahigh-leveldescriptionofthepresentsituation, how the bill would change it and the reasons for the change.Whenupdatingthenotesto accompany an Act post Royal Assent, this section should reference previous or other legislation as opposed to existing legislation.
• 10.50 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 papersreferredtoshouldbeinitalicsratherthan between inverted commas. Put in the references (HC/HL/Cm numbers etc.).
• 10.51 If a bill has been through parliamentarypre-legislativescrutiny,thissectionofthenotes should provide brief details of the scrutiny process and of the Government’s response to it.

Legal background section

• 10.52 Inthissectionofthenotesitmaybehelpfultorefertoanypiecesofprimaryandsecondary legislation, or other legal obligations, that are relevant to the area of law in which the bill operates.See,forexample,thissectionofthenotestotheArmedForces(ServiceComplaints and Financial Assistance) Bill (2014-15 Session) and what was called the “previous legislation” section of the notes to thePension SchemesBill(2014-15 session).
• 10.53 Whererelevant,departmentsshouldalsosetoutinthissectionofthenotesanyobligations relating to Article 2 of the Windsor Framework (see Chapter 12 for further details).
• 10.54 Where,however,thereisnothingtoaddtowhathasbeensaidinthepolicybackground section of the notes, 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

• 10.55 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
• ● whetheranyprovisionofthebillgivesrisetotheneedforalegislativeconsentmotionin any of the devolved legislatures.
• 10.56 This section of the notes should first briefly summarise what the territorial extent and applicationofthebillis.Theclause(s)ofthebilldealingwithextentandapplicationshouldbe identified. Deal with extent and application separately if necessary.
• 10.57 Some suggested wording regarding extent and application is included below:

"Clause [ ]sets out the territorial extent of theBill, 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. [Summariseextent 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."

• 10.58 It is important to remember that there may be a mismatch between the extent and application of a bill’s provisions, because, for example:
• ● aprovisionisafree-standingprovisionthatappliesonly,say,toschoolsinEnglandbuthas to extend to England and Wales because England and Wales is a single legal jurisdiction;
• ● aprovisionisamendinganActthathasUKextent(andsoitselfhasUKextent)butisonly changingthelawforEngland(albeitthat,fordraftingreasons,itrestatestheexistinglawin Wales, Scotland or Northern Ireland); or
• ● aprovisionamendsadevolutionsettlementandhasUKextentbutnopracticalapplication outside the area concerned.
• 10.59 Where the territorial extent and application of thebillisdifferentfromoneclausetothe next, itwillbedifficulttoprovideameaningfulsummaryinthissectionofthenotes.Inthat case it is appropriate to refer to the commentary on individual provisions of the bill which explains their extent and application.
• 10.60 Ifthebillextends(oriscapableofextension)outsidetheUK,thisshouldbenotedinthe territorialextentandapplicationsectionand,whererelevant,inthecommentaryonindividual provisions of the bill.
• 10.61 The territorial extent and application section of the notes should also set out which provisions,ifany,touchonmattersthataredevolvedtoScotlandorWalesortransferredto Northern Ireland.
• 10.62 Thissectionofthenotesshouldalsoindicatewhetheralegislativeconsentmotionisbeing soughtfromtheScottishParliament,SeneddCymruortheNorthernIrelandAssembly.Inall cases it is suggested that the notes might include the following wording:

"There is a conventionthat Westminster will not normallylegislate 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/"

• 10.63 If a legislative consentmotionisbeingsoughtinrelationtoanyprovisionofthebill,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 whichthe provisions of the Bill relateare 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."

• 10.64 Intheexceptionalcircumstancethatitisnotpossibletoresolvethequestionofwhethera legislativeconsentmotionisneededbeforeintroductionofthebill,itwouldbeappropriateto statetheUKGovernment’sviewtogetherwithacaveattotheeffectthatthepositionisstated at introduction and is subject to change.
• 10.65 The last paragraph of the territorial extent and application section should introduce the relatedannexonterritorialextentandapplicationintheUK.Wordingisalreadyprovidedinthe 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

• 10.66 The annex should contain the table only and must be completed.
• 10.67 Each clause and scheduleofthebillmustbeconsideredseparatelyforthepurposesof analysing what ought to be entered in the table.
• 10.68 Thestartingpointisthateachclauseandscheduleofthebillshouldoccupyaseparaterow ofthetable.Howeverif,forexample,theentrieswouldbethesameforallclausesinonepart ofthebill,thatpartasawholeshouldbedealtwithinonerowofthetable.Itmaybehelpfulto aggregateentriesforsmallergroups,forexampleachapterorapart,orsimplyanumberof consecutive clauses, where the entries are the same for all component provisions.
• 10.69 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”).
• 10.70 The possible entries are “Yes”, “No” or “In part”.
• 10.71 Theentry“Yes”isappropriateonlywherethewholeoftheprovisionextendsandappliesas statedinthecolumnheading.Forexample,iftwosubsectionsofaclauseextendandapplyto theUKandtheothersubsectionsextendtoEnglandandWalesandapplytoEnglandonly,the entry in the column “extends to E & W and applies to England” should be “Yes”, andthe entries in the other three columns should be “In part”.
• 10.72 Thequestionisaboutbothextentandapplication.Inmanycasesthetwowillcoincide.But theymaynot.Forexample,whereaprovisionextendstoEnglandandWalesbutappliesonly inEngland,theentryinthecolumn“extendstoE&WandappliestoWales”shouldbe“No”. AndwhereforexampleabillamendingtheGovernmentofWalesAct2006hasUKextentbut no practical application outside Wales, the entries in the columns “extends to E & W and appliestoEngland”,“extendsandappliestoScotland”and“extendsandappliestoNorthern 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 notbe apparentfromtheTable,butthatisansweringaquestionaboutbothextentandapplication and so there may in a minority of cases be some apparent inconsistency).
• 10.73 IndecidingwhetheraprovisionappliestoEngland,Wales,ScotlandorNorthernIreland, ignore minor or consequential effects of the provision.
• 10.74 Ifaprovisiondoesnotchangethelawinanarea,itshouldnotbeconsideredtoapplyto that area.
• 10.75 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

• 10.76 This sectionmustbeincludedifParliamentistobeaskedtoexpeditetheparliamentary progressofthebill.Itshouldbeginwiththefollowingstatement(includingthefootnotes). 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".

¹House 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

• 10.77 Thestatementshouldbefollowedbyparagraphsansweringeachofthequestionssetout inparagraph186ofthecommittee'sreport,fullybutconcisely.Eachquestionshouldbeset 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 partiesandoutsidegroupsbeengivenanopportunityto influence the policy proposal?
• ● Doesthebillincludeasunsetclause(aswellasanyappropriaterenewalprocedure)?If not, why does the Government judge that their inclusion is not appropriate?
• ● Aremechanismsforeffectivepost-legislativescrutinyandreviewinplace?Ifnot,whydoes the Government judge that their inclusion is not appropriate?
• ● Hasanassessmentbeenmadeastowhetherexistinglegislationissufficienttodealwith 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

• 10.78 Thissectionofthenotesshouldprovidecommentaryontheindividualprovisionsofthebill. Toassistwiththepresentationofinformationonlegislation.gov.uk(theintentionisthatnotes will behyper-linkedwiththeirrelatedprovisions)anoteshouldbeincludedforeachclause and schedule, or forgroupsofclausesorschedulesifitisfeltmoreappropriatetoprovide commentary on a group of provisions.
• 10.79 Ifthereisnothingusefultobeaddedtowhatthebillitselfsays,thecommentaryneedsay nomorethanthat“Thisprovision/groupofprovisionsisself-explanatory.”Thecommentary must never simply restate what the bill says.
• 10.80 Where a provision is not self-explanatory, and so warrants something more by way of commentary, itisstillnotnecessarytosaymuchbywayofsummaryofwhattheprovision does.Thewriterofthecommentaryshouldstandbackfromthedetailoftheprovisionandtry tosummariseitinoneortwosentences,usingeverydaylanguage.Itwillrarelybeappropriate forthecommentarytogothroughaclausesubsectionbysubsectionoraScheduleparagraph by paragraph.
• 10.81 Thepurposeofthecommentaryistoaddvalue–whatwillitbehelpfulforthereaderto know that is not apparentfromreadingthebillitself?Informationthatitmightbehelpfulto 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;
• ● illustrativeexamplesofhowthebillwillworkinpractice(thesemightperhapsbeworked 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.
• 10.82 Inansweringthequestionsthatmightoccurtothereader,thoughtshouldbegivenasto whetheranymaterialthathasbeenpreparedforotherpurposes(forexample,forinclusionin abriefingdocument)mightusefullybeincorporatedintotheexplanatorynotes.ENshaveto be neutral in tone but this does not prevent the use of existing material that meets this test.
• 10.83 Inthecaseofthebill’ssubstantiveprovisions,thecommentaryonanindividualprovisionor group of provisions should usually include a separate paragraph at the endexplainingthe extent and application of the provision(s). As regards extent, use the form of words “This [clause][Part][Schedule]formspartofthelawof...”.Itmaybeappropriatenottoincludethis informationforeachindividualprovisionorgroupofprovisionsifthebillisfairlyshortandall the provisions have the same extent and application.
• 10.84 If thebillimposesfineswhichareexpressedbyreferencetoamountsdeterminedunder subordinatelegislation(e.g.afineatalevelonthestandardscale)thenotesshouldstatethe current amount.
• 10.85 Whereabillissilentastothenatureofanyfeestobechargedunderthebill,thenotes should explain the scope of the fee-charging provisions.

Commencement section

• 10.86 The proposed commencement date for the legislation (or dates, where different commencementdatesareproposedfordifferentprovisions)shouldbesetoutinthissectionof the notes.

Financial implications of the bill section

• 10.87 If thebillhasnofinancialimplications,thissectionofthenotesshouldsayso.Ifitdoes have financial implications, thissectionofthenotesshouldgiveanoverviewofwhatthose financialimplicationswillbebothintermsofexpenditureexpectedtobeincurredandsums expected to be raised as a result of the bill. Estimates should be provided wherever possible.
• 10.88 In terms of estimated expenditure, deal separately with expenditure expected to fall on:
• ● theConsolidatedFund,distinguishingbetweenstandingchargesenactedonceandforall and charges by means of annual votes; and
• ● theNationalLoansFund:inestimatingtheirowncosts,departmentsshouldbearinmind the impact on repayment services and accommodation costs.
• 10.89 Also,thenotesshouldgiveanestimateofthefinancialconsequencesofthebillintermsof totalpublicexpenditure,wherethisdiffersfromthedirectcosttotheConsolidatedFundorthe NationalLoansFund.Suchcostsshouldnormallyrelatetothefullyearcostsofimplementing the new statute.

Parliamentary approval for financial costs or for the charges-imposed section

• 10.90 ThedepartmentshouldmakecontactwithParliamentaryCounselaboutthissectionofthe 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.
• 10.91 Where a bill is introduced in the House of Commons, or on transfer to the House of CommonsasthesecondHouse,thissectionofthenotesmuststatewhethereither(orboth) of the following is required to authorise any provision of the bill:
• ● Moneyresolution(authorisingnewchargesonthepublicrevenue–broadlyspeaking,new public expenditure);
• ● Waysandmeansresolution(authorisingnewchargesonthepeople–broadlyspeaking, new taxation or other similar charges).
• 10.92 Wherearesolutionisrequired,thissectionshouldalsoindicatewhichprovisionsofthebill requirearesolution,givingclausenumbersandabriefdescriptionofthesubjectmatterofthe provisions concerned. It is not necessary to itemiseeverysingleprovisionofthebillwhich requires the cover of aresolution,butthemainprovisionswhichdosomustbedescribed. Note that it is not sufficient to indicate that a resolution is required without giving further details.
• 10.93 WhereabillisintroducedintheHouseofLords,thissectionshouldcontainwordingtothe effect that the section will be completed when the bill transfers to the House of Commons.
• 10.94 Where the House of Lords is the second House, on transfer to the second House this sectionshouldberetainedinthenotesandthewordingshouldbeupdatedasrequired. The updatedwordingshouldeitherbedraftedbyorclearedbyParliamentaryCounsel. Itishelpful 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

• 10.95 Thissectionshouldrecordthefactthatastatementhasbeenmadepursuanttosection19 oftheHumanRightsAct1998andwhatthisstatementwas.Itisnotnecessarytogivethe nameofthepersonmakingthestatement.Ifthenameisincluded,rememberthatthismustbe updatedwhenthebillmovesfromthefirstHousetothesecondHouseandalsopotentially when a carry over bill is re-introduced in its second session.
• 10.96 Previousgovernmentsgaveacommitmenttogiveanassessmentofthemostsignificant human rights issues thought to arise from eachbill.Inadditiontorecordingthefactthata section19statementhasbeenmade,theexplanatorynotesshouldelaborateontheECHR 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;
• ● inacasewhereanyECHRissuesarenotsignificantandthedepartmenthasnotprepared any separate memorandum on human rights issues, dealing with the issues briefly (a paragraph or two should suffice); and
• ● wheresignificantECHRissuesarise,statingthatissuesarisingastothecompatibilityof thebillwiththeConventionrightsaredealtwithinaseparatememorandumandprovidea web address at which the memorandum can be accessed.

Environmental law

• 10.97 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

unabletomakeastatementthatthelevelofenvironmentalprotectionprovidedbyexisting 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.

• 10.98 Ineitherofthefirsttwocasesabove,itisnotenvisagedthatthestatementsspecifyexactly which provision of the bill is environmental law. That is not what section 20(2)(a) of the EnvironmentAct2021requiresandtodosowilladdunnecessarycomplexity.However,the Explanatory Notes could contain that information.
• 10.99 Ifthebilldoesnotincludeprovisionswhichcouldbeconsideredenvironmentallaw,itmust 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:

"[NameofMinister]isoftheviewthattheBillasintroducedintotheHouseof[Commons/Lords] does not contain provision which, if enacted, would be environmental law for the purposes of section 20 oftheEnvironmentAct2021.Accordingly,nostatementunderthatsectionhasbeen made."

Bills affecting trade between Northern Ireland and other parts of the UK

• 10.100 This section should record one of the following:
• a) That the bill includes provisions which, if enacted, would affect tradebetweenNorthern IrelandandotherpartsoftheUK,butthattheministerinchargeofthebillcanstatethat this would not result in a significant adverse effect on that trade;
• b) That the bill includes provisions which, if enacted, would affect tradebetweenNorthern IrelandandotherpartsoftheUK,andthattheministerinchargeofthebillisunableto make a statement that this will not result in a significant adverse effect on that trade; or
• c) That the bill does not include provisions which, if enacted, would affect trade between Northern Ireland and other parts of the UK.
• 10.101 Ineitherofthefirsttwocasessetoutabove,awrittenstatementisrequired.If(c) applies,thenthismustberecordedintheBill’sexplanatorynotestoindicatethatthequestion has been considered. Further information on provisions impacting trade between Northern IrelandandotherpartsoftheUK,aswellastemplatetextforthestatements,canbefoundin Chapter 12.

Related documents section

• 10.102 Thissectionofthenotesshouldlistthedocumentsthatarerelevanttothebilland 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

• 10.103 Thetemplateprovidesforthefooterandthefirstsentenceofthe“Whatthesenotes 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]."

• 10.104 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 accuracyorclarity,ortoincorporatenewpointsoffactorexplanationwhichhaveemerged during the passage of the bill through the first House; and
• ● ifrelevant,wherelegislativeconsentmotionsfromthedevolvedgovernmentshavebeen obtained.
• 10.105 TherevisednotesshouldbeclearedwithdepartmentallawyersandwiththePublic Bill Office in the second House.
• 10.106 Asatintroduction,thefinalversionofthenotesshouldbesentbythepersonacting asthepointofcontacttothePublicBillOfficeinthesecondHouse.ThePublicBillOfficewill arrange publication.
• 10.107 The revised notes should be published as soon as thebillpassestothesecond House.However,ifabillstartingintheLordswasamendedatThirdReading,orduringReport Stage in the Commons, there may need to be a short delay in publishingtheexplanatory 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

• 10.108 IfthebillisamendedinthesecondHouse,itmustreturntothefirstHouseforthose amendments to be considered. Departments mustsubmitexplanatorynotesonthesecond Houseamendments(whethergovernmentornon-government).Thisisaseparatedocument fromthebillnotes.Notesarerequiredonlyonthefirstpassageofamendmentsbacktothe first House and they are not required on subsequent stages of ping-pong.
• 10.109 ENs on second House amendments may not be required in urgent cases (for example, whereconsiderationoftheamendmentstakesplaceonthesamedayasthelast amending stage in the second House, or during any accelerated consideration of second Houseamendmentsduringa‘wash-up’periodbeforeadissolutionofParliamentinadvanceof a general election). A decision not to produce such notes should only be taken after consultationwiththePublicBillOfficeandwiththeLeaderoftheHouseofCommonsthrough the PBL Secretariat.
• 10.110 ENsonsecondHouseamendmentsmustbeclearedbydepartmentallawyersand the Public Bill Office in the first House.Aswithbillnotes,thefinalversionofthenoteson secondHouseamendmentsshouldbesentbythepersonactingasthepointofcontacttothe Public Bill Office in the first House. The Public Bill Office will arrange publication.
• 10.111 An example is set out below.

Commons Amendment to Clause 5: Extent, commencement and short title

Commons Amendment 2

7 Subsection (9) is repealed to remove the privilege amendment inserted in the Lords. Parliamentary procedure requires a privilege amendment to be included when a Bill starts in the Lords and has financial implications. It is then removed in the Commons.

Commons Amendments to Schedule 1: Commons Amendments 41, 47, 40, 42 and 3: expansion of the role of the Approved Mental Capacity Professional

8 Amendments 41, 40, 42 and 3 (which are consequential on 41) provide for situations other than cases of objection in which the pre-authorisation review must be completed by an Approved Mental Capacity Professional. These are that the arrangements provide for the person to receive care or treatment mainly in an independent hospital, or that the case is referred by a responsible body (and the Approved Mental Capacity Professional accepts the referral).

9 Amendment 47 expands the duty to refer to an Approved Mental Capacity Professional on a review. This enables certain cases to be referred where a pre-authorisation review under paragraph 21 of the new Schedule AA1 has already been carried out by an Approved Mental Capacity Professional.

Commons Amendment 4

10 This amends the definition of "care home manager", in Wales, so it will be the person who is the registered service provider. This mirrors the approach taken for England.

Commons Amendments 5-10, 12-14, 16, 17, 19 and 21-23: Responsible body for independent hospitals

11 Amendment 12 amends paragraph 6(a) so that a hospital manager will only be the responsible body when the arrangements are being carried out mainly in an NHS hospital, and amendment 19 amends paragraph 7 to state this. Where arrangements are carried out mainly in an independent hospital, the responsible body for those arrangements will not be the hospital manager but instead the local authority in England, or the Local Health Board in Wales. Amendments 6 to 10 and 21 are consequential to these amendments.

12 Amendment 13 makes provision for who the responsible body will be for cases where arrangements are carried out mainly in an independent hospital in England or Wales: in England it will be the responsible local authority as determined by paragraph 8A (Amendment 22) and in Wales it will be the Local Health Board for the area in which the hospital is situated. Amendments 14, 16 and 17 are consequential on Amendment 13.

13 Amendment 22 makes provision as to who the responsible body will be in cases where arrangements are carried out mainly in an independent hospital in England. Amendments 5 and 23 are consequential on amendment 22.

Commons Amendment 15

14 This amendment makes provision for who the responsible body will be for cases where arrangements are carried out mainly in an independent hospital in England or Wales.

These Explanatory Notes relate to the Commons amendments to the Mental Capacity (Amendment) Bill [HL] as brought from the House of Commons on 13 February 2019 (HL Bill 161).

Second House amendments

10.112BelowaresomekeypointstonotewhenpreparingexplanatorynotesonsecondHouse amendments.

• ● Thenotesshouldindicatewhichamendmentsdealwithnon-governmentamendments.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.
• ● Theconditionalmode(e.g.‘LordsAmendment1woulddosuch-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 explanatorynoteshasbecomeincompleteorinaccurateasaresultoftheamendments.In particular, whereaHouseofLordsamendmentmayberelevanttotheissueoffinancial 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

10.113AssoonasthebillhascompleteditspassagethroughParliament,thedepartmentwillneed tofinalisetherevisedversionofthenotestoaccompanytheAct(workonthisversionshould start whilst the bill is in the second House). For this version please ensure that all of the changeslistedinparagraphs108-117aremade.Afterclearingtheminternally,includingwith departmental lawyers, the department should email the final explanatory notes to publishing.legislation@nationalarchives.gov.uk.TheLegislationServicesTeaminTheNational Archives will check that the formatting and contents are correct, and thenmakethenotes (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 onwww.legislation.gov.uk.

10.114Compared with the bill version, the following changes should be made:

• ● Thetemplateprovidesforthefootertobeupdatedtoread:“TheseExplanatoryNotesrefer 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.

10.115Thenotesshouldbeupdatedtoreflectanychangesmadeinthebillsincethelastversion was prepared (whether during any of the amending stages in the second House or on ping-pong).

• 10.116 References in the notes to the “bill”shouldbechangedtoreferencestothe“Act”;and references to “clauses” should be changed to “sections”.
• 10.117 The notesshouldbewritteninpresenttense,asopposedtofuturetenseforbillnotes. ReferencesshouldbemadetowhattheActdoes,notwhatitwilldo.Referencestopreviously existing legislation should be made in the background policy information.

10.118Deletethesectionsonthefinancialimplicationsofthebill,compatibilitywiththeEuropean Convention on Human Rights, obligations under Article 2 of the Windsor Framework, and environmentallaw.Iftheparliamentaryprogressofthebillwasexpedited,thesectioninthe notes justifying fast-tracking of the bill should also be deleted.

10.119Deletethesectiononparliamentaryapprovalforfinancialcostsorforchargesimposed. Where the Act contains a financial provisions section which was included in the bill for parliamentary purposes, to signal that a financialresolutionwasneededandtoreducethe number of other provisions of the bill which needed to be italicised (as having financial implications)whenthebillwasintroduced,itwillbesufficientforthenotestousethefollowing wording about the financial provisions section:

Section [ ] recognises that as a matter of House ofCommons procedure, a financial resolution needed to be agreed for the Bill from which the Act resulted."

• 10.120 ParliamentaryCounselcanadviseifthereisanydoubtastowhetherasectionofan Act is a financial provisions section as described here.
• 10.121 Thedepartmentmustincludeasanannextothenotesatablegivingdetailsofthe bill's passage through Parliament (including hyperlinks to the various prints of the bill, the HansardreferencesandHansardhyperlinksforeachstageand,ifappropriate,hyperlinksto anyotherkeydocumentsrelatingtothepassageofthebill).Thetemplateincludesanoutline table.
• 10.122 Thetemplateincludesasecondoutlinetableasanannexshowingtheoriginofeach sectionasanumberedclauseineachversionofthebill.Itwillnormallybehelpfultoinclude thistable;butifthenumberingofabillhasnotchangedsinceintroduction,thereisnoneedto include this.
• 10.123 Thefollowingmaterialrelatingtoterritorialextentandapplicationshouldbeomitted 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 whichtheremainingcolumnsofthetableaboutterritorial extentandapplicationrevealasimplepicturewhichisaccuratelysummarisedinthe 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 devolvedtoScotlandorWalesortransferredtoNorthernIreland;suchinformation must remain in the Act version of the notes.

Carry over bill

• 10.124 Whereabilliscarriedoverfromonesessiontothenext,revisedENsarerequired for re-introduction in the next session (unless the text of the bill has not changed since introductionintheprevioussession,andthePublicBillOfficeagreesthatrevisednotesare 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.
• 10.125 When the revised notes are ready, the point of contactinthedepartmentshould 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

• 10.126 DepartmentsshouldnotprovideENsforprivatemembers’billsthattheGovernment does not support. If adepartmentwishestoprovideENsforaprivatemember'sbillthatis beingsupportedbytheGovernmentbutisnota‘handout’bill,thePublicBillOfficeshouldbe consultedinadvance. Furtherinformationonprivatemembers'billscanbefoundinSection H.
• 10.127 The Government should prepare ENs for all handout bills. These are private members’billswhichtheGovernmenthasdecidedtosupportandwhichhavebeendraftedor redrafted by Parliamentary Counsel on instructions from the relevant department. Withthe exceptionofthepointslistedbelow,notesforhandoutbillsshouldbepreparedinthesame way as for government bills.
• 10.128 To make it clear that the Government is volunteering the notes, not responding automaticallytorequestsfromtheMPorpeerinchargeofthebill,thefirstbulletpointofthe “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."

• 10.129 WhenthebillisbroughttothesecondHouse,anMP/peerinthatHousewilltake charge of the billandwhentherevisednotesarepublishedthesentenceaboveshouldbe amended accordingly.
• 10.130 InformationaboutterritorialextentandapplicationandmattersdevolvedtoScotland orWalesortransferredtoNorthernIreland,andinformationaboutlegislativeconsentmotions, should be included.
• 10.131 ThePublicBillOfficeineachHousewillnotprintthenotesforhandoutbillswithout theconsentoftheMPorpeerinchargeofthebill.Departmentsshouldthereforeensurethat theMPorpeerinchargeiscontentthatthenotesshouldbeprovidedandhasinformedthe Public Bill Office of this in writing.
• 10.132 ItisamatterfordepartmentswhethertheywishtogivetheMPorpeerinchargeof thebilltheopportunitytoseeandcommentonthenotesindraft.Thiswillnormallybepossible whenthebillisfirstintroduced,buttheremaynotbetimeforitwhenthebillisbroughtfrom one House to the other.

11. THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)

Key points

• ● TheHumanRightsAct1998makesitunlawfulforpublicauthoritiestoactinamannerthatis incompatiblewithcertainrightsdrawnfromtheEuropeanConventiononHumanRights(the Conventionrights)andrequireslegislationtobeinterpretedcompatiblywiththeConvention rights so far as it is possible to do so. Consideration of the impact of legislation on Convention rights is an integral part of the policy-making process, not a last-minute compliance exercise.
• ● Legislative provisions should contain appropriate safeguards and limitations to ensure compliance with the Convention rights but these should not repeat the more general safeguards already guaranteed by the Human Rights Act and the Convention rights.
• ● Early discussion with departmental legal advisers is essential.
• ● Alegalissuesmemorandumsettingoutthelegalissuesthebillraisesmustbeproducedfor the PBL Committeebeforeit will approve a bill forintroduction or publication in draft.
• ● Section 19 of the Human Rights Act 1998 requires that, for every government bill, the SecretaryofStatefortherelevantdepartmentmustmakeastatementintheCommonsthat intheirviewthebill'sprovisionsarecompatiblewiththeConventionsrights.IntheLordsthis statementistobemadebytherelevantdepartmentalLordsminister.Alternatively,iftheyare not able to provide that personal assurance, they must state that the Government nevertheless wishes the House to proceed with the bill.
• ● Ifitappearslikelythatthereareanyprovisionsinthebillwhichtheministerwillnotbeable to declare compatible, the PBL Secretariat should be informed immediately.
• ● TheexplanatorynotesshouldcontainasectiononcompatibilitywiththeConventionrights setting out why the department has determined theposition.Thisshouldsetoutwhether Conventionrightsareengaged,anyrelevantcaselaw,aswellasanexplanationforhowany interferencecanbejustifiedandproportionate. Iftheanalysisistoolengthytobeincludedin the notes (for example, if it requires more than a few paragraphs) a separate ECHR memorandum should be prepared forpublicationalongsidethebillandsubmissiontothe Joint Committee on Human Rights when the Bill is introduced. If the topic may raise questionsasregardscompatibilitywiththeUNConventionontheRightsoftheChild,this analysis should also be contained in the ECHR memorandum.
• ● The Joint Committee on Human Rights is likely to examine closely the arguments put forward by the department justifying interference with a Convention right and if it has concerns, will report on the ECHR issues raised by a bill. It may ask for additional memoranda on particular points.
• ● Asection19statementisnotrequiredforprivatemembers’billsbutifadepartmentwishes tosupportaprivatemember’sbillitmustproducealegalissuesmemorandumforthePBL Committee. A legal issues memorandum may also be required where the Government wishestotakeaneutralpositiononaprivatemember’sbillbutthisshouldbedecidedona case-by-case basis with the Attorney General's Office and the Legal Secretariat to the Advocate General for Scotland.
• ● For further guidance contact the Ministry of Justice Human Rights Division, the Attorney General's Office and the Legal Secretariat to the Advocate General for Scotland.

Background on the Human Rights Act 1998 and interpretation in case law

• 11.1 The Human RightsAct1998givesfurthereffecttotheEuropeanConventiononHuman Rights(ECHR)towhichtheUKhasbeenpartysince1951.TheHumanRightsActmakesit unlawfulforpublicauthoritiestoactinamannerthatisincompatiblewithaConventionright andrequireslegislationtobeinterpretedcompatiblywiththeConventionrightssofarasitis possible to do so.
• 11.2 The main Convention rights are: life; freedom from torture and inhuman and degrading treatmentorpunishment;libertyandsecurity(i.e.freedomfromwrongfularrestanddetention); fair trial; respect for private and family life(whichmayincludetheprotectionofpersonaldata), homeandcorrespondence;religion,thoughtsandbelief;expressionandinformation;peaceful assemblyandassociation;marriage;property;education;andfreeelections.Veryfewofthe rights are ‘absolute’. Most are either ‘limited’ or ‘qualified’.
• 11.3 Absolute rights, such as the right not to be tortured (Article 3), cannot be infringed or derogatedfrominanycircumstances.Limitedrights,suchastherighttoliberty(Article5),are limited only in explicit and finite circumstances, set out in thearticleitself.Qualifiedrights, whichincludetherighttorespectforprivateandfamilylife(Article8)andpeacefulenjoyment of property (Protocol 1, Article 1), may be interfered with only if what is done:
• ● has a basis in law;
• ● is done to secure a legitimate aim set out in the relevant article, e.g.thepreventionof crime; and
• ● is necessary in a democratic society, which means it mustfulfilapressingsocialneed, pursue a legitimate aim and be proportionate to the aims being pursued.
• 11.4 Thelastofthese,knownastheproportionalitytest,isofcriticalimportance.Ifaparticular policyoractioninterfereswithaConventionright,pursuanttoalegitimateaim,itwillnotbe justifiable if the means used to achieve the aim are excessive in the circumstances.
• 11.5 ThereisaconsiderableandgrowingbodyofcaselawontheinterpretationofConvention issues in UK courts, in addition to that from the European Court of Human Rights in Strasbourg. The case law confirms that the Convention rights can also imply a positive obligation,notreadilyapparentonthefaceofthearticle.Forexample,therighttoliferequires notonlythatthestatenottakelife,butalsothatitisunderanobligationtotakepositivesteps toprotectlife.Therefore,inadditiontohavingalawthatprohibitsthetakingoflife,thestate, forexamplethroughtheagencyofthepolice,isunderadutytoprotectalifewherethereisa known risk to that life.
• 11.6 Itshouldbestandardpractice,whenpreparingapolicyinitiative,forofficialstoconsiderthe impact of the proposed policy on people's Convention rights. Officials therefore need awareness of the Convention rights, and of key concepts such as proportionality. Such considerationmustnotbelefttolegaladvisers(thoughtheyshouldbeinvolvedthroughout)or to a last-minute ‘compliance’ exercise.
• 11.7 LegaladviceonConventionmatterswillcomeprimarilyfromdepartmentallegaladvisers, whomaywishtoinstructcounsel,orseekaninformalviewonparticularlytrickyissuesfrom legal advisers in the Ministry of Justice who coordinate human rights legal issues across government.TheLawOfficersaretheultimatesourceoflegaladvicewithingovernment,on humanrightsquestionsasonothermatters,althoughthefactthatadvicehasbeensought, andthecontentofthatadvice,shouldnotbedisclosedoutsidegovernmentwithouttheLaw Officers’ consent. Where Law Officers advice is being sought on human rights matters departmentsshouldnormallydiscussthequestionwithlegaladvisersintheMinistryofJustice HumanRightsDivisionfirst. Theteamshouldalsobecontactedwheresignificant,novelor cross-cuttinghumanrightsissuesareraised,orwhereadepartmentisproposingtomakea legislative reference to the Human Rights Act but theMoJdoesnotneedsightofalllegal issues memoranda.

Legal issues memoranda for the PBL Committee

• 11.8 Amemorandumsettingoutthelegalissuesraisedbythebillisoneofthepapersrequired by the PBL Committee before the bill can be approved for introduction or publication in draft.
• 11.9 Thedepartmentshouldsendthememorandumalongwiththelatestcopyofthebilltothe AttorneyGeneral'sOfficeandtheLegalSecretariattotheAdvocateGeneralforScotlandfor considerationatleastthreeweeksbeforedocumentsaresenttoPBLSecretariatforthePBL Committee meeting at which the bill is to be considered. They will comment on the memorandumindrafttohelpdepartmentstogetitinthebestpossibleshape. Itshouldbe emphasised that three weeks is the minimum period to allow for any difficulties to be addressed before the bill comes to the PBL Committee. For larger bills, or bills contain challenging legal issues, the Law Officers should be given more time to consider the memorandum. Officials in the Attorney General's Office and the Legal Secretariat to the AdvocateGeneralforScotlandwillalsobehappytolookatadraftofthememorandumatan earlier stage or to discuss specific issues if this is helpful.
• 11.10 If the Governmentproposestotableoracceptasignificantamendmenttothebillwhich wouldinanywaychangethepositioninrelationtolegalissuesorraisenewlegalissues,a furtherlegalissuesmemorandummaybenecessaryeitherasasupplementtotheoriginalor asaseparatedocument,andcirculatedtothePBLCommitteewhenclearanceissoughtto table or accept the amendment. Liaison with the Attorney General’s Office and the Legal SecretariattotheAdvocateGeneralinadvanceofthewriteroundwouldbeadvisablehere. Private members’ bills which the Government proposes to support(includinghandoutbills) have the same requirements.
• 11.11 Memorandashouldcoverthelegalissuesraised,witha fulland frankassessmentbythe departmentof legalriskarisingfromtheissues.Thereforethememorandashouldsetoutnot onlythebill’s vulnerabilitytochallengeinlegalandpolicyterms butalsotheriskofanysuch challenge being successful and, if successful, what that would meanforthebill.Thelegal issuesmemorandumcannotbedisclosedandshouldaddresstheweaknessesaswellasthe strengthsinadepartment'sposition.Itcanassumeabasicknowledgeofthelawandshould besupportedbyanysignificantcasesthatmayaffecttheanalysis.Itshouldnot,however,be a compendious discussion of the case law. Over-lengthy memoranda are likely to be unwelcomeandattractcriticismatPBL.Whatisneededisaclearandsuccinctstatementof the legal considerations. Where advice has been sought from Counsel or from the Law Officersitwilloftenbehelpfultorefertotheadvicereceivedinthememorandumor,insome cases, annex the advice to the memorandum (see paragraph 2.12 of the Ministerial Code).
• 11.12 Departmentallegaladvisersshouldpreparethelegalissuesmemorandumwithinputfrom policyofficials.FurtherinformationisavailablefromtheAttorneyGeneral’sOffice,theLegal SecretariattotheAdvocateGeneralandfromtheLawOfficerspagesonLION(theintranetfor government legal advisers).
• 11.13 DepartmentsshouldbeawarethattheroleofthePBLCommitteeandoftheLawOfficers is to ensure that the memorandum is comprehensive and contains credible arguments. In doing this, PBL and the Law Officers are not endorsing the human rights analysis of the department or expressing any conclusion on whether a court would take the same view. Ultimately,itistheministerinchargeofthebillwhoisaccountabletoParliamentforstating that the bill is compatible with the Convention rights. If the minister wishestoseekformal advice from the Law Officers on any particular concerns before making the compatibility statement, the minister should do so in the usual way.

Statements of compatibility (‘section 19 statements’)

• 11.14 Section 19 of the Human Rights Act 1998 requires that, for every government bill, the Minister in charge of the Bill in each House make a statement that in their view the bill's provisions are compatible with the Convention's rights.
• 11.15 Alternatively,iftheyarenotabletoprovidethatpersonalassurance,theymuststatethat, nevertheless, the Government wishes the House to proceed with the bill; this does not however amount to a positive statement that the bill is incompatible.
• 11.16 IntheHouseofCommons,“theministerinchargeoftheBill”typicallymeanstheSecretary ofStateforthedepartmentthatissponsoringthebill(orwherethatdepartmentdoesnothave aSecretaryofState,theministerinchargeofthatdepartment);thisisthecaseevenwhere theintentionisfortheSecretaryofState(orotherministerinchargeofthedepartment)toplay only a minimal role in taking the bill through the Commons. IntheLords,“theministerin chargeoftheBill”willtypicallybearelevantdepartmentalLordsminister. Ifinanydoubtasto who should be signing the section 19 statement, consult Parliamentary Counsel.
• 11.17 Departmental legal advisers will take the leadinprovidingtheformaladvicerequiredto justify the section 19 statements, seeking assistance from legal advisers in the Ministryof Justice Human Rights Division and, ultimately, the Law Officers as necessary.
• 11.18 The statement must be made before Second Reading in each House. Thismeansthat whenthebillpassesfromoneHousetotheother,asecondstatementwillhavetobemade, taking into account any amendments(includingnon-governmentamendments)madeinthe firstHouse.AssoonasthebillcompletesitsThirdReadingintheHouseofintroduction,anew statement must be signed by the minister in charge of the bill in the second House and Parliamentary Counsel informed that it has been made.
• 11.19 The minister in charge of the bill must personally sign a statement in the following terms:

European Convention on Human Rights

Statement under section 19(1)(a) of the Human Rights Act 1998

In my view the provisions of the …. Bill are compatible with the Convention rights.

[signed] ……………………. Secretary of State / Minister for …………………….

or

European Convention on Human Rights

Statement under section 19(1)(b) of the Human Rights Act 1998

I am unable to make a statement that, in my view, the provisions of the …. Bill are compatible with the Convention rights but the Government nevertheless wishes to proceed with the …. Bill.

[signed] ……………………. Secretary of State / Minister for …………………….

• 11.20 Inthecaseofasection19(1)(b)statement,itispermissibletoindicatetheprovisioninthe bill giving risetothecompatibilityproblembyinsertingwordssuchas“butonlybecauseof clause 8” after “I am unable”.
• 11.21 Themostcommon(butnottheonly)situationinwhichasection19(1)(b)statementwillbe necessaryisonentrytothesecondHouse,whereafirstHouseamendmenthasbeenmade which theGovernmentdoesnotsupportandwhichitconsiderstobeincompatiblewiththe Convention rights. In this case, the reason for the certification as non-compatible can be explainedatSecondReadingandtheministercanindicatewhetherornottheHouseistobe invited to remove the amendment in question.
• 11.22 Thestatementwillbepublishedonthefaceofthebill.Forthesereasons,thestatement shouldbesignedbytheministerbeforethebillispublishedand,ideally,beforeitisconsidered for introduction by the PBL Committee.ParliamentaryCounselshouldbeinformedthatthe statement has been made.
• 11.23 If for any reason the statement will notbesignedbeforethebillisfirstprintedineither House, Parliamentary Counsel and the relevant Whips Office should be consulted immediately. Where a statement is not made on Bill introductionineitherHouse,awritten ministerial statement must be made before Second Reading.
• 11.24 Thereisnolegalobligationontheministertogiveaviewoncompatibilityotherthanas required by section 19, nor is there a specific requirement for the minister to reconsider compatibilityissuesatalaterstage.Nonetheless,wereaministertoreachtheconclusionthat the provisions of a bill, whether as originallyintroducedorasamended,nolongermetthe standards required for a section 19 statement to be given, it would be a breach of the ministerialCodetoproceedtowardsRoyalAssentwithouteitheramendingtheprovisionsor informing Parliament of the issue.
• 11.25 The section 19 statement should be printed on good-quality paper and signed by the minister, the relevant Secretary of State in the Commons, or relevant departmental Lords minister, in black ink before the bill is introduced to Parliament.
• 11.26 Ifitappearslikelythatthereareprovisionsinthebillwhichtheministerwillnotbeableto declarecompatible,thePBLSecretariatshouldbeinformedimmediatelyandadviceshouldbe sought from the Ministry of Justice Human Rights Division in the first instance.
• 11.27 No section 19 statement is needed for private members’ bills. However, where it is proposedthattheGovernmentsupportsthebill,itshouldbeinapositiontomakeastatement concerningthecompatibilityofthebill,andthedepartmentwillneedtoproducealegalissues memorandumwhichaddressesECHRissuesforthePBLCommitteebeforeitgivesclearance to support the bill.WheretheGovernmentdecidestotakeagenuinelyneutralstanceona private members’ bill (for example, by permitting a free vote), asopposedtotheneutrality demandedbyconventionwhenopposingaprivatemembers’billintheHouseofLords,itwill be appropriate for the Government to be in apositiontoindicatetotheHouseitsviewon Conventioncompatibility. TheleaddepartmentshouldthereforeinformthePBLCommitteeof its view when seeking agreement to the position of neutrality. Itmaynotbenecessaryto produce a separate legal issues memorandum for the purpose but the precise approach should be decided on a case-by-case basis with the Attorney General's Office and Legal Secretariat to the Advocate General for Scotland.

Explanatory notes

• 11.28 Chapter11containsguidanceonwhattoincludeinthesectionoftheexplanatorynotes headed “Compatibility with the European Convention on Human Rights”.
• 11.29 TheGovernmenthasmadeacommitmenttogivedueconsiderationtothearticlesofthe UNConventionontheRightsoftheChild(UNCRC)whenmakingnewpolicyandlegislation. Indoingso,theGovernmenthasstatedthatitwillalwaysconsidertheUNCommitteeonthe Rights of the Child's recommendations but recognise that, like other state signatories, the GovernmentandtheUNcommitteemayattimesdisagreeonwhatcompliancewithcertain articlesentails. ItwouldbehelpfultoParliamentandtheJointCommitteeonHumanRights (JCHR) if explanatory notes included a summaryoftheanticipatedeffectsoflegislationon children and on the compatibility of draft legislation with the UNCRC.

The Joint Committee on Human Rights

• 11.30 The JCHR is likely to examine closely the arguments put forward by the department justifyinginterferencewithaConventionrightandwherethereareconcerns,itwillreporton theECHRissuesraisedbyabill.Itwillalsolookatwhethertherearesufficientsafeguardsto ensureaproperguaranteeofhumanrightsinpractice,regardlessofwhethertheabsenceof safeguardsisstrictlyacompatibilityissue.TheJCHR'sapproachtolegislativescrutinyisset outindetailatparagraphs18-51ofthecommittee'sTwenty-thirdReportofSession2005-06at The Committee's Future Working Practices.
• 11.31 If the JCHR considers that the explanatory notes or separate ECHR memorandum provided to the committee do not adequately set out theConventionissues,itwillaskthe responsibleministerforamemorandumonparticularpoints,whichwillneedtobeproduced extremely quickly. It is clearly advantageous if the JCHR is satisfied about human rights compatibilityearlyinthebill'spassage,anddepartmentsshouldattempttoidentifyareaslikely to concern the committee and prepare briefing ahead of time, if possible.
• 11.32 Iftheanalysisofpotentialhumanrightsissuesistoodetailedorsubstantialtobecovered in a few paragraphs in the explanatory notes thendepartmentsshouldprepareaseparate ECHRmemorandum.ThisshouldbepublishedonGOV.UKbutalsoshareddirectlywiththe JCHRandsenttotherelevantPublicBillOfficeatintroductionofthebillsoitcanbeputonthe bill’s page on the Parliament website.
• 11.33 TheJCHRmayalsoaskaboutcompliancewithanyinternationalhumanrightsinstrument whichtheUKhasratified;itdoesnotregarditselfaslimitedtotheECHR.Inparticular,the JCHR will expect ECHR memorandums to highlight any issuesrelatingtocompliancewith internationalhumanrightsinstruments,andinparticulartheUNConventionontheRightsof the Child.
• 11.34 Bill teams should contact the Clerk to the JCHR to findoutifthecommitteeislikelyto report on the bill, and ask to be advised when the report is published (as departmental parliamentary branches are unlikely to be alerted to any reports until much later).
• 11.35 Itisnotalwaysnecessaryforthedepartmenttorespondtothecommittee'sreportinwriting whentheBill’spassagethroughParliamentisveryfast. Moreover,membersofthecommittee will often move amendments to give effect to the committee's conclusions and recommendations;theministerwillbeexpectedtogiveafullresponseatthattime. However, iftheresponsetoaconclusionorrecommendationisparticularlylegalortechnicalorrequires a more in depth response on the policy, it maybemoreappropriateforthedepartmentto respondinwriting;adviceonthispointcanbesoughtfromtheHumanRightsDivisionofthe MinistryofJustice.ResponsescanbeemailedtotheJCHR,thatwillnormallypublishthem, andbillteamsshouldalertthecommitteeClerkthataresponseiscoming(contactdetailsat AppendixB). IfaResponseissentshortlybeforethenextstageofabill,makingitunlikely thatthecommitteewillbeabletopublishitbeforethedebate,billteamsshouldalsoconsider laying a copy it in the library of the appropriate House.

Acts

• 11.36 AstatementaboutECHRcompatibilityisnotrequiredforacts.Norshouldtheexplanatory notes for acts make any reference to ECHR compatibility or the fact that a section 19 statement was made.

12. OTHER LEGAL ISSUES

Key points

• ● Departments should consider any implications for the UK’s internationallegalobligations, including in relation to WTO rules and any legal obligations arising as a result of UK withdrawal from the EU.
• ● Departments should consider any risk of legal challenge and the impact of a successful challenge. They should ensure that the way the bill isdraftedreducesthisriskasfaras possible.
• ● Anyproposalforaprovisiontohaveretrospectiveeffect,tobeformallyretrospectiveorto commence earlier than two months after Royal Assent must be agreed by the Law Officers.
• ● Departments should also considerwhethertheirbillscontainprovisionswhich,ifenacted, would affect trade between Northern Ireland and other parts of the UK.
• ● Departments should also consider whether their bills contain environmental law under section 20 of the Environment Act 2021.
• ● Any proposal for a provision which involves the processing of personal data must be consistent,andmadeexplicitlysubjectto,withthedataprotectionlegislation(includingthe UK General Data Protection Regulation (GDPR) and Data Protection Act 2018).

Legal challenge to actions carried out under legislation

• 12.1 Points to be aware of include:
• ● to reduce the risk of challenge, legislation should beexpressedintheclearestpossible language. Courts are reluctant to interfere withanactionwhichisclearlyinaccordance withtheexpresswishofParliament.Courtswillalsobeinfluencedbyprovisionssuchas those providing for avenues of appeal;
• ● legaladvisersandParliamentaryCounselshouldbealertedtoaspectsofpolicywhichare likelytoattractoppositionsothatParliamentaryCounselcanfocusonthelikelyareasof technical challenge. In case of difficulty, legal advisers should seek the Law Officers' advice, and should do so as early as possible in the drafting process;
• ● wherethereisahistoryoflegalchallengesbeingmountedinaparticulararea,theremay be advantage, after consulting Parliamentary Counsel, in instructing outside Counsel expert in the field; and,
• ● TheLegalIssuesMemoranda(LIM)accompanyingwhichaccompaniesbillssubmittedto thePBLCommitteeshoulddrawattentiontoanystepstakentoreducesuchlegalrisks. It is important to discuss the LIM with the Attorney General’sOffice(AGO)andtheLegal Secretariat to the Advocate General (LSAG) in early course and a draft should be submittedtotheAGOandLSAGatleastthreeweeksbeforethebillissenttothePBL Committee. ThecontentoftheLIMwillthenbediscussedandagreedwiththeAGOand LSAGbeforethebilldocumentsaresenttoPBL.MoreinformationonworkingwiththeLaw OfficerDepartments,includingfurtherdetailonwhatshouldbediscussedintheLIM,can befoundinWorkingwiththeLawOfficersonLegislation:AGuideforDepartments(please note this website is only available to Government lawyers with a currentdepartmentor agencyemailaccount). SignificantlegalissuesinthebillshouldberaisedwiththeAGO andLSAG,andotherdepartmentswithapolicyinterest(e.g.FCDOforinternationalissues, DITfortradeissues,MoJforHRissues)inadvanceofsendingtheAGOandLSAGthe draft LIM.

Retrospectivity and Early Commencement

• 12.2 Whereadepartmentproposestoincludeaprovisionthatwouldberetrospective(whether formally retrospective or with retrospective effect) or to include a provision which will commence earlier than two months after Royal Assent of thebill(“earlycommencement”), they must first seek the consent of the Law Officers and the PBL Committee will want assurancesthatthishasbeengrantedbeforeitapprovesabillforintroduction.Agreementof the Law Officers should be sought in advance of the bill being presented to the PBL Committee for clearance. You should refer to the “Working with the Law Officers on Legislation” Guide for further information.
• 12.3 Therearelimitedexceptionstotheconsentrequirements. Therefore,inthefirstinstance, departmentsshoulddiscusstheirproposalswithofficialsintheAGOandLSAG.Departments should do thisasearlyaspossible,incasetheLawOfficersarenotpreparedtogivetheir consent and the department will need to develop alternative proposals.
• 12.4 Anyamendmentstothebillafterintroductionthatrequireconsentwouldneedtobeagreed withtheLawOfficersinthesameway,althoughsuchamendmentsareunlikelytobeagreed to by the PBL Committee.

Article 2 of the Windsor Framework

• 12.5 UnderArticle2oftheWindsorFramework,theUKGovernmentiscommittedtoensuring thatthereisnodiminutionofcertainrights,safeguardsandequalityofopportunityprotections setoutinthechapterofthesamenameintheBelfast(GoodFriday)Agreement,inNorthern IrelandasaresultoftheUKleavingtheEU. TheGovernment’sobligationsunderArticle2 must be considered when departments promote any primary, or make any secondary legislationthatappliesinNorthernIreland,forexamplelegislationthatappliesUK-wide.Ifyou have any questions about how best to consider Article 2 when developing policy and legislation, you should contact the Rights Team in the Northern Ireland Office at crsg@nio.gov.uk.

Statement affecting trade between Northern Ireland and other parts of the UK

• 12.6 Section13CofEUWAincludesmeasuresdesignedtoplaceatransparencyobligationwith respecttolegislationwhichaffectstradebetweenNorthernIrelandandotherpartsoftheUK. The purpose of this requirement is to ensurethatwheneverParliamentisconsideringnew primarylegislation,thatitisinformedaboutanyimpactsontheUKinternalmarketandany measures necessary to protect Northern Ireland’s place in the UK internal market.
• 12.7 Section13CofEUWAappliesatwo-stagetesttobedischargedbytheMinisterincharge of the bill:
• 1. Would the bill affect trade between Northern Ireland and other parts of the UK? a. Ifnot,nostatementisrequiredandthisshouldberecordedintheexplanatory memorandum accompanying the bill. b. If so, limb (b) applies.
• 2. Would the bill in question have a significant adverse effect on trade between Northern Ireland and the rest of the UK. a. Ifnot, the minister in charge of the bill makes astatement to that effect.

b. Otherwise,theministerstatesthattheyareunabletomakethestatementin (b)(i), but that the Government nevertheless wishes the House to proceed with the bill.

• 12.8 ThequestionofwhetherabillwouldaffecttradebetweenNorthernIrelandandotherparts of the UK (and therefore whetherastatementisnecessaryatall)isprimarilyaneconomic consideration, relating to trade in either goods or services within the UK internal market.
• 12.9 Ifastatementisneeded,thentheMinisterinchargeofthebillmustdecidewhetherthey canmakeastatementtosaythatanyeffectontradeisnota‘significantadverseeffect’.In consideringthis,departmentofficialsmaywishtoconsidera‘significantadverseeffect’tobe one that makes trade between Northern Ireland and the rest of the UK significantly more difficultorsignificantlylesslikelytotakeplaceinfuture.Howeverdepartmentofficialsshould alsoconsidertheoverallneteffectofanybeneficialorpositiveeffectsontradealongsideany harmfulorunfavourableeffectsontrade.Forexample,adverseeffectsinsomeareasmaybe outweighed by positive effects elsewhere in the bill.
• 12.10 YourMinisterwillberequiredtomakeastatement. Ifthebilldoesnotcontainprovision which,ifenacted,wouldhaveasignificantadverseeffectontradebetweenNorthernIreland and the rest of the UK (section 13C(2)(a)) and your Minister is making a statement, the following words should be used:

NORTHERN IRELAND - GREAT BRITAIN TRADE STATEMENT

“[NameofMinister]makesthefollowingstatementundersection13C(2)(a)oftheEuropean Union (Withdrawal) Act 2018.

Inmyviewthe[nameoftheBill]doesnotcontainprovisionwhich,ifenacted,wouldhavea significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom.

[Signature]”

Or

• 12.11 If the Minister is unable to make such a statement but His Majesty’s Government nevertheless wishes the House to proceed with the bill (section 13C(2)(b)):

NORTHERN IRELAND - GREAT BRITAIN TRADE STATEMENT

“[Name of Minister] makes the following statement under section 13C(2)(b) of the European Union (Withdrawal) Act 2018.

I am unable to make a statement under section 13C(2)(a) of the European Union (Withdrawal)Act2018[optionalexplanation]buttheGovernmentneverthelesswishesthe House to proceed with the Bill.

[Signature]”

• 12.12 Afterthestatementhasbeenmade,thefactthatithasbeenmadewillberecordedonthe front of the bill when it is published. The Office of the Parliamentary Counsel will arrange this.
• 12.13 ItshouldbenotedthatthisdutyensuresParliamentisinformedoftheimpactofprimary legislation. However, it places no constraint on either officials or Ministers on what policy options are considered or pursued. Making a statement, either to confirm that a provision would not have a significant adverse effect or that the Minister is unable to make such a statement, does not prevent the Government or Parliament from proceeding with the bill.
• 12.14 If it is not readily apparentthatthebillwouldaffecttradebetweenNorthernIrelandand otherpartsoftheUnitedKingdom,itisunlikelythatastatementshouldbemade.Astatement shouldnotbemadeasaprecaution.However,ifyouarenotsurewhetheryourbilldoesor doesnotcontainaprovisionwhich,ifenacted,wouldaffecttradebetweenNorthernIreland and the rest of the UK, you should engage with the Windsor Framework Taskforce at wftf-sgim@cabinetoffice.gov.uk.

Environmental law

• 12.15 TheEnvironmentAct2021includesmeasuresdesignedtoprotectandimprovethenatural environmentintheUKwithanewdomesticframeworkforenvironmentalgovernancetohold publicauthoritiestoaccountonenvironmentallaw. Thedepartment’sconsiderationofsection 20oftheActwillneedtobeincludedinthelegalissuesmemorandum,submittedtothePBL Committee before the bill can be approved for introduction or publication in draft.
• 12.16 Section 20 applies where the Minister in charge of a bill in either House of Parliament considers that the bill contains environmental law. The purpose of section 20 is to help maintainenvironmentalprotectionsthroughhighlightingtobothHouseswhenabillmayhave the impact – intended or otherwise – of weakening or reducing the environmental levelof protection provided for in existing environmental law. It ensures that Ministers consider environmental protections when bringing forward legislation and enables Parliament and stakeholders to hold the Government to account on maintaining environmental protections.
• 12.17 TheMinisterinchargeofabillineitherHouseofParliamentmustdeterminewhetherthe billcontainsenvironmentallaw. Insuchacase,theMinistermuststatethatthisisso,and alsostateeitherthattheprovisionwillnotlowerthecurrentlevelofenvironmentalprotection providedforinexistingenvironmentallaworthattheyareunabletomakeastatementtosuch effect, but that the Government nevertheless wishes the House to proceed with the bill.
• 12.18 Section 20 is a two-stage process:
• ● Stage one is to decide whether a new bill includes provision(s)whichwouldbe environmentallaw. IftheMinisterisoftheviewthatthebilldoescontainsucha provision, they must then make a statement declaring so.
• ● Stage two is to decide whether the provision(s)havetheeffectofweakeningor reducing environmental protections provided for in existing environmentallawor not. Ineithercase,theMinistermustmakeastatement,eitherundersubsection (3)(thatthebilldoesnotreducesuchenvironmentalprotection)orsubsection(4) (that it does but the government wants to proceed anyway).
• 12.19 Noteverybillwillneedastatement. Toestablishifastatementisrequired,youneedto determinewhetheryourbillcontainsprovisionswhich,ifenacted,wouldbeenvironmentallaw. Key definitions are contained insections 44 to 46of the Environment Act 2021.
• 12.20 Firstly,section 45defines “environmental protection”as:
• - protection of the natural environment from the effects of human activity;
• - protection of people from the effects of human activity on the natural environment;
• - maintenance, restoration or enhancement of the natural environment;
• - monitoring, assessing,considering,advisingorreportingonanythinginrelationto the previous bullets.
• 12.21 Secondly, “existing environmental law” is defined in section 20(8) as environmental law existingatthetimethatthebilltowhichthestatementrelatesisintroducedintotheHouse, whether or not the environmental law is in force.
• 12.22 If your bill does not include provisions which could be considered environmental law, it mustbeindicatedthatthequestionhasbeenconsideredinthebill’sExplanatoryNotes.The suggested text for this paragraph is as follows:

"[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."

• 12.23 Ifyourbillincludesprovisionswhichcouldbeconsideredenvironmentallaw,astatement willneedtobemadeandyoumustconsideriftherelevantclausesinanywaylowerthelevel ofenvironmentalprotectionprovidedforbyanyexistingenvironmentallaw(atthetimeofthe bill’s introduction). It should be noted that the section 20 duty only applies when a billis introducedtoeachHouseanddoesnotneedtobereconsideredifthebillisamendedduring passage through that House. The Explanatory Notes should include a reference that the Ministerhasmadethestatement,inthesamemannerusedforstatementsundersection19of theHumanRightsAct1998. FurtherinformationonwhattoincludeintheExplanatoryNotes is in Chapter 10.
• 12.24 Your legal issues memorandum will needtoincludereferencetoenvironmentallawand yourMinisterwillberequiredtomakeastatement. Ifyourbillincludesenvironmentallawand the Minister is making a statement under section 20(2)(a) and (3) (level of environmental production is not reduced), the following form of words should be used:

ENVIRONMENTAL STATEMENTS

“[NameofMinister]makesthefollowingstatementsundersection20(2)(a)and(3)ofthe Environment Act 2021.

In my view-

• a) the[nameofthebill]containsprovisionwhich,ifenacted,wouldbeenvironmentallaw, and

b)thebillwillnothavetheeffectofreducingthelevelofenvironmentalprotectionprovided for by any existing environmental law.

[Signature]” Or

If your bill includes environmentallawandtheMinisterismakingastatementundersection 20(2)(a) and (4) (level of environmental protection is reduced), the following form of words should be used:

ENVIRONMENTAL STATEMENTS

“[NameofMinister]makesthefollowingstatementsundersection20(2)(a)and(4)ofthe Environment Act 2021.

In my view the [name of the bill] contains provision which, if enacted, would be environmental law.

I am unable to make a statement under section 20(3) of the Environment Act 2021 [optionalexplanation]buttheGovernmentneverthelesswishestheHousetoproceedwith the bill.

[Signature]”

• 12.25 Afterthestatementhasbeenmade,thefactthatithasbeenmadewillberecordedonthe front of the bill when it is published. Parliamentary Counsel will arrange this.
• 12.26 In order to keep the commitment proportionate, there is not a set requirement for any accompanyingdocumentstosupportthestatementinthebill. Selectcommitteesshouldbe allowedtorequestanyinformationtheyfeelwouldbenecessaryratherthanbillteamsassume theextraworkloadofpreparingafullsetofdocumentationinadvance.However,billteams may decide to publish memorandums or notes to accompanythebillinanticipationofany likely discussion.
• 12.27 Itshouldbenotedthatthereisnolegalobligationtotakespecificactionfollowingonfroma decisiontomakeastatement,regardlessofwhichofthetwostatementsisapplied.However, it can be expected that passage of the bill may be eased via the prior preparation of memorandums or notes in anticipation of possible scrutiny.
• 12.28 Ifyouarenotsureorcannotestablishwithfullcertaintythatyourbilldoesnotcontaina provisionwhichwouldbeenvironmentallaw,itisstronglyrecommendedthatyouseeklegal advice from your departmental lawyers. TheymayconsultParliamentaryCounseland/or lawyers at the Attorney General’s Office / Legal Secretariat to the Advocate General. If consultationwithdepartmentallawyersisunabletoprovidecertainty,orifyouhaveanyfurther questions on this section oftheActandhowitmayaffectyourbill,youshouldcontactthe DefraPrimaryLegislationteamatprimary.legislation@defra.gov.uk,whowillbeabletoputyou intouchwiththerelevantpolicyandlegalcontactswithinDefra.Inarareinstancewhereno consensus can be reached, it is recommended that a statement should be made.

Data protection legislation

• 12.29 Where a department proposes to include a provision that involves the processing of personaldata,theymustfirstconsulttheInformationCommissioner’sOffice(ICO).Thisisa specificrequirementoftheUKGDPR. TheDataProtectionPolicyTeamintheDepartmentfor Science, Innovation & Technology can offer advice on how to make sure that legislative proposals are consistent with data protection legislation and facilitate contact withtheICO where appropriate.

Amendments to sentencing law

• 12.30 If the department is proposing to make amendments to sentencing law it should consider the Sentencing Act 2020. The 2020 Act consolidates sentencing law so as to create a "Sentencing Code". New sentencing provisions that are within the ambit of the Sentencing Code should be added to the Code and not drafted as free-standing provisions. Guidance about the ambit of the Sentencing Code and making amendments to it is available on GOV.UK.

Codes of Practice

• 12.31 A‘codeofpractice’isanauthoritativestatementofpracticetobefollowedinsomefield.It typicallydiffersfromlegislationinthatitoffersguidanceratherthanimposingrequirements:its prescriptionsarenothardandfastrulesbutguidelineswhichmayallowconsiderablelatitude in their practical application and may be departed from in appropriate circumstances. The provisionsofacodearenotdirectlyenforceablebylegalproceedings,whichisnottosaythat theymaynothavesignificantlegaleffects.Acodeofpractice,unlikealegislativetext,may also contain explanatory material and argument.
• 12.32 DetailedguidanceoncodesofpracticeandlegislationcanbefoundatAppendixC. Where itisproposedtointroduceacodeofpracticeinawayorforapurposethatdepartsfromthat guidance,Ministersshouldbeawarethatthisislikelytobecontroversial,particularlyinthe House of Lords.

13. IMPACT ASSESSMENTS

Key points

• ● Impact assessments are generally required for all UK government interventions of a regulatory nature that affect the private sector and/or civil societyorganisationorpublic services. The Government has international obligations in free trade agreements to conduct impact assessments on regulation that has an impact on trade.
• ● Animpactassessmentcomprisesafullassessmentofeconomic,socialandenvironmental impacts. Departments should ensure that they have covered all relevant points. Your departmental Better Regulation Unit will be able to provide guidance and the relevant template.
• ● There is a legal requirement forpublicbodiestodemonstratetheyareconsideringtheir responsibilities under the Equality Act 2010 (i.e. in relation to age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation).
• ● A development, options or consultation stage impact assessment must be submitted alongside any bids for legislation, and a final proposal stage impact assessment, also known as a Regulatory Impact Assessment, must accompany requests for collective agreement to the policy in abillandmustbesubmittedtothePBLCommitteebeforeit approves a bill for publication in draft or for introduction to Parliament.
• ● Thefinalimpactassessmentmustbemadeavailablealongsidebillspublishedindraftfor pre-legislativescrutinyorintroducedtoParliament,with80copiessenttotheVoteOffice (30ofwhichshouldbemarkedfortheattentionofthePublicBillOffice),andwillneedtobe updated during parliamentary passage to reflect any changes made to the bill. Impact assessments should be emailed to pbohoc@parliament.uk. An enactment impact assessment must be published alongside an Act of Parliament.

What is an impact assessment?

• 13.1 An impact assessment is both:
• ● a continuous process to help think through the reasons for government intervention, to weighupvariousoptionsforachievinganobjectiveandtounderstandtheconsequencesof a proposed intervention; and
• ● atooltobeusedtohelpdeveloppolicybyassessingandpresentingthelikelycostsand benefitsandtheassociatedrisksofaproposalthatmighthaveanimpactonthepublic,a private or civil society organisation, the environment and wider society over the long term.
• 13.2 An impact assessment should cover the following seven steps:

Step 1: Identify the problem

Step 2: Specify desired objectives

Step 3: Identify viable options that achieve the objectives

Step 4: Identify the impacts (for example, economic, social and environmental)

Step 5: Value the costs and benefits of each option

Step 6: Consider enforcement and implementation issues

Step 7: Plan for evaluation and evaluate the chosen policy

• 13.3 The level of resources invested in the analysis in an impact assessment should be proportionatetothelikelyimpactoftheproposal.Forexample,ifitislikelytoaffectonlyafew firmsororganisations,ormanyfirmsororganisationsbutonlytoaverysmalldegree,and/or thecostsandbenefitsarelikelytobeverysmall,thentheimpactassessmentshouldbequite short. Where the impact will be substantial, more data and analysis will be required. Full guidance is available from departmental Better Regulation Units.

When is an impact assessment required?

Impactassessmentsaregenerallyrequiredforallgovernmentinterventionsofaregulatorynature thataffecttheprivatesectorand/orcivilsocietyorganisations.5 Ifyouanswer‘yes’toanyofthe following questions then an impact assessmentis likelyto be required.6

Will the regulatory proposal:

• ● Impose additional costs or reduce existing costs on businesses or civil society organisations (this includes national policy statements)?
• ● Have an impact on trade?
• ● Involve some kind of redistribution affecting public, private or civil society organisations? That is, where there is an exchange or 'transfer' of costs or benefits from one group to another, even where it does not yield an overall net change in costs and benefits, or a change in administrative costs?
• ● Introduce or amend enabling powers that, when used, could impose additional costs or reduce existing costs on business or civil society organisations, including where there is uncertainty regarding how the powers may be used?
• 13.4 For bills, this means:
• ● a development, options or consultation-stage impact assessment must be submitted alongside any bids for legislation;
• ● a final-stage impact assessment must be produced to accompany Cabinet or Cabinet committee correspondence when seeking collective agreement to the policy in the bill;
• ● afinalimpactassessmentmustbesubmittedtothePBLCommitteebeforeitapprovesa billforpublicationindraftorforintroductiontoParliament.Beforegivingitsapproval,the committee will want to be satisfied that sufficient work has been done on the impact assessment,7 and the bill minister shouldbeabletoconfirmatthispointthattheyhave seentheimpactassessmentand,onthebasisoftheavailableevidence,issatisfiedthat the benefits of the proposal outweigh the costs;

7Sufficient work includes completing any relevant requirements from the Better Regulation Framework, such as Regulatory Policy Committee (RPC) scrutiny, for regulatory proposals that impose or remove significant costs. Where regulatory proposals include enabling powers that have the potential to impose or remove significant costs when used, or there is significant uncertainty regarding how the powers will be used, these should be subject to RPC scrutiny prior to being submitted to PBLCommittee. 6The Better Regulation Framework guidance provides further information on when an impact assessment is required for regulatory provisions. Impact assessments may be required for other reasons, such as informing stakeholders and Parliament. 5Note in particular the definition of a ‘regulatory provision’ provided in the Better Regulation Framework guidance

• ● thefinalimpactassessmentmustbemadeavailablealongsidebillspublishedindraftfor pre-legislative scrutiny or introduced to Parliament; and
• ● whereabillcontainsseveraldifferentpolicies,animpactassessmentmustbecompleted for each policy in the bill.
• 13.5 An enactment impact assessment must be published alongside an Act of Parliament.
• 13.6 The Equality Duty requires public bodies to have due regard to the need to: eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the EqualitiesAct2010,advanceequalityofopportunitybetweenpeoplewhoshareaprotected characteristic andthosewhodonotshareitandfostergoodrelationsbetweenpeoplewho shareaprotectedcharacteristicandpeoplewhodonotshareit.Thisshouldbeconsidered during the analysis of impacts.
• 13.7 There is a dutyonMinistersoftheCrowninsection19oftheEnvironmentAct2021to have due regard to the environmental principles policy statement when making policy, includingproposalsthatleadtolegislation. Thepolicystatementexplainshowtointerpretand proportionately apply the principlesthatwillcontributetotheimprovementofenvironmental protection and sustainable development. The five principles are: integration, prevention, rectification at source, polluter pays, and the precautionary principle. You should contact environmental.principles@defra.gov.ukfor furtherinformation.

Developing an impact assessment

• 13.8 Thedevelopmentstageshouldfocusonthedefinitionofthepolicyproblem,therationale for government intervention, the identification of policy objectives and the gathering of evidence, including international evidence. The impact assessment does not need to be published at this stage and will usually be a ‘live’ working document.
• 13.9 Theoptionsstageshouldfocusontheidentificationanddevelopmentofoptionsandthe testingoftheseoptionsthroughengagingwithinterestedpartiesaheadofformalconsultation. Thereshouldbeinitialestimatesofcostsandbenefits.Alternativestotraditionalregulation(for example,self-regulationorvoluntarycodes)needtobeproperlyconsideredfromtheoutset. ForregulationsinscopeoftherevisedBetterRegulationFramework,thisisnowakeystage where a specific ‘Options Assessment’ and corresponding independent scrutiny from the Regulatory Policy Committee may be required. The ‘Options Assessment’ scrutinymaybe after the consultation stage, depending on the circumstance. The Better Regulation Framework guidancehas more details.
• 13.10 Theconsultationstageshouldfocusonfirminguptheoptionsconsidered,ensuringthat thereisgreaterquantificationofcostsandbenefitsofeachoptionasfaraspossible,evenif thenumbersareindicative.Youshouldusetheconsultationtoseekstakeholders’viewson your proposals forareview,yourcostandbenefitestimates,andthekeyassumptionsand datathatcontributetotheanalysis.Whenapolicyproposalistakenouttopublicconsultation proportionate analysis must be published.
• 13.11 Thefinalimpactassessmentmustbepublishedfirstatthefinalproposalstage,whenthe Government announces its firmpositiononasinglepolicyoption(thiswilloftenbewhenit publishes its consultation response), and again when the proposal enters Parliament. An impactassessmentmustbepublishedwhenagovernmentbillorprivatemembers’billwith government support is introduced in either House. An impact assessment must also be publishedwhenadraftstatutoryinstrument(thatimposesorreducescostsonbusinessorcivil society organisations) is laid in Parliament.
• 13.12 The enactment stage requires revisions to the previous final proposal stage impact assessment to reflect the final contents of the act, statutory instrument or otherregulatory measure, if changes have been introduced during the parliamentary process. When the legislation is enacted, the revised impact assessment needs to be published. For non-legislative-basedmeasuresthecorrespondingpointforpublicationistheimplementation of the measure.
• 13.13 The review stage requires a post-implementation review impact assessment (where applicable) to capture the actual impact of the implemented policy, and assess any modifications to the policyobjectivesoritsimplementationrecommendedasaresultofthe review. There are statutory requirements for post-implementation reviews. The statutory guidanceshouldbefollowedandthereviewdatesmustbetrackedinordernottomissthe statutory deadlines. Once undertaken, and scrutinised by the RegulatoryPolicyCommittee (where appropriate), the review and RPC opinion must be published on legislation.gov.uk. Newpolicydevelopmentoraproposedpolicychangepromptedbythepost-implementation review should trigger a new impact assessment.

Practicalities on introduction

• 13.14 A requirement for copies of the impact assessment to be placedintheCommonsVote Office (as opposed to simplybeingdepositedintheHouseofCommonsLibrary)hasbeen specifically endorsed by the House. Eighty copies should besenttotheVoteOffice,30of whichshouldbemarkedfortheattentionofthePublicBillOffice(theseadditional30copies areonlyrequiredforbillsincommitteerooms,notforthosethathavetheirCommitteeStages ontheflooroftheHouse–seebelow)onintroductiontotheCommons.Impactassessments should be emailed topbohoc@parliament.uk.
• 13.15 Copieswillalsoberequiredforthe(Commons)PublicBillOfficetomakeavailableinthe publicbillcommitteeroomor,subjecttotheagreementofthechair,copiesmaybesenttoall members of the relevant public bill committee.
• 13.16 The impact assessment will needtobeupdatedduringparliamentarypassagetoreflect any amendments madetothebilland,whenarevisedversionispublishedonentrytothe secondHouse,50copiesshouldagainbesenttotheVoteOffice. Asabove,itshouldbesent topbohoc@parliament.uk.
• 13.17 In preparing an impact assessment, officials should 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 preliminaryassessmentofhowtheacthas worked outinpractice(seechapteronPost-LegislativeScrutiny),toallowthecommitteeto decidewhetheritwishestoconductfurtherpost-legislativescrutiny.Theimpactassessment (along with the explanatory notes) 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.
• 13.18 For further guidance contact the Regulation Directorate (formerly the Better Regulation Executive) at the Department for Business and Trade. Contact details are available in Appendix B.

14. DEVOLVED LEGISLATURES AND GOVERNMENTS

Key points

• ● The UK Parliament remains sovereign, but will ‘not normally’ pass primary legislation in areasofdevolvedortransferredcompetencewithoutlegislativeconsentandagreementfrom the devolved legislatures8. This is known as the ‘SewelConvention’.
• ● TheUKhasasymmetricaldevolution:thesettlementsofthethreedevolvedlegislaturesin Scotland, Wales and Northern Ireland hold different powers, responsibilities and competencies over public services.
• ● LegislativeconsentisobtainedintheformofaLegislativeConsentMotion(LCM),whichis usually tabled before the relevant devolved legislature by their corresponding devolved governments9.
• ● An LCM should be sought in the devolved legislature if any provisions or clauses in a Westminster bill relate to devolved matters in Wales and Scotland or if the bill makes provisions specifically for transferred purposes in Northern Ireland. Equally, legislative consent from the devolvedlegislatureswillalsoberequiredifaWestminsterbillseeksto alter or change the powers, responsibilities or competence of either the devolved governments and/or the devolved legislatures.
• ● Atanearlystageandbeforeparliamentaryintroduction,UKGovernment(UKG)departments will need to determineboththeterritorialextentandapplicationoftheirbillandprovidea devolutionanalysistotherelevantlegalteamsintheOfficeoftheAdvocateGeneral(OAG), WalesOfficeLegalAdvisers(WOLA)and/orNorthernIrelandOfficeLegalAdvisers(NIOLA) to determine whether each provision or clause in thebillengagesthelegislativeconsent process.

9Collectively the Scottish Government, Welsh Government and Northern Ireland Executive are referred to as the devolved governments. 8https://www.parliament.uk/site-information/glossary/sewel-convention/

• ● The Union and Devolution Directorate (UDD),togetherwiththeOfficeoftheSecretaryof StateforScotland(OSSS),theOfficeoftheSecretaryofStateforWales(OSSW)andthe Northern Ireland Office (NIO)10can assist bill teamsand departments in this process.
• ● FollowingdiscussionswiththeUDDandtheterritorialoffices,UKGdepartmentsshouldhold policydiscussionswithdevolvedgovernmentcounterpartstotestUKG’sdevolutionanalysis of bill’s considered to engage the LCM process.
• ● AdevolvedgovernmentcannotseektotableanLCMintheirlegislatureforaWestminster bill until the bill has been formally introduced to the UK Parliament.
• ● In the House of Lords, UKG is obliged to make a statement to the House before Third ReadingcommencestoinformtheHouseofthebill’spresentLCMstatuswhereconsenthas notyetbeenreceivedorhasnotbeengranted.Thisisrequiredwhetherthebillstartedinthe House of Commons or the House of Lords. This was agreed by the House of Lords11, followingarecommendationfromtheLordsProceduresandPrivilegesCommittee12andthe LordsConstitutionCommittee.Thepracticalimplicationofthisisthatthebill’sleadMinister in the Lords willneedtomakeastatementintheirspeechtothiseffectbeforeanyThird Reading amendments are considered. See 36.12.
• ● The recess dates in the UK Parliament are often different to the devolved legislatures. Recess dates for the devolved legislatures are usually available online, but theterritorial officeswillbeabletohelpifanyfurtherclarityisneeded.Billteamswillthereforeneedto carefully coordinate the LCM process within the early stages of the Westminster bill’s passage through the UK Parliament.

Background

• 14.1 The Memorandum of Understanding13 between the UK Government and the devolved governments states that:

13www.gov.uk/government/publications/devolution-memorandum-of-understanding-and-supplementary-agreement 12House of Lords Procedure and Privileges Committee,Fourth session of Session 2019-21, paragraph 43 11Debate in the Lords on the Lords Procedure and PrivilegesCommittee report, 22 October 2020 10Collectively the Office of the Secretary of State for Scotland (OSSS), the Office of the Secretary of State for Wales (OSSW) and the Northern Ireland Office (NIO) are known as the territorial offices.

“The United Kingdom Parliament retains authority to legislate on any issue, whether devolvedornot.ItisultimatelyforParliamenttodecidewhatusetomakeofthatpower. However,theUKGovernmentwillproceedinaccordancewiththeconventionthatthe UKParliamentwouldnotnormallylegislatewithregardtodevolvedmattersexceptwith the agreement of the devolved legislature. The devolved governments will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.”

• 14.2 Eachdevolutionsettlementhasdifferentcharacteristicsandgivesdifferentpowerstothe devolvedlegislaturesandgovernmentsinquestion.OneconsequenceisthatanLCMmaybe soughtinonedevolvedlegislaturebutnotinanother.Thedevolutionsettlementsarecomplex andthischapterprovidesonlyageneralintroduction.Billteamsarestronglyadvisedtoread the more detailed Devolution GuidanceNotes(DGNs)fortakingforwardprimarylegislation which seeks to legislate within devolved or transferred areas of competence in Scotland, Wales and Northern Ireland. These can be found on theGOV.UKwebsite.

General principles

• 14.3 OfficialsintheUDDandtheterritorialofficesshouldbethefirstportofcallforbillteamson anydevolutionissues.Itisadvisabletocontactthemearlyoninthedevelopmentofthebill, even if the bill does not appear to haveanyobviousdevolutionimplications.Inadditionto devolutionissues,theremaybedraftingissuestotakeintoaccount(forinstance,withregard to the appropriate drafting under the separate Scottish and Northern Irish legal systems).
• 14.4 WiththesupportoftheUDD,theterritorialofficesandtheirrespectivelegaladvisers(OAG, WOLAandNIOLA),billteamsshouldidentifyatanearlystagetheterritorialextentofthebill, whetherornotthebill’sprovisionsrelatetoreserved,devolvedortransferredmattersineach part of the UK, alongwithwhetherornottheprovisionsengagetheLCMprocessesinthe devolved legislatures. This should involve the bill teams and their departmental lawyers producing an initial analysis of the devolution implications of the bill. It islikelytoinvolve sharing policy intent and drafting instructions for bills with UDD, the territorial offices and relevant legal advisers to ensure that they havetheclearestpossibleunderstandingofthe proposedlegislationbeforetheycanhelpbillteamsfullyassessthedevolutionimplications. UKG departments should consult therelevantterritorialofficesbeforemakinginitialcontact with counterparts in the devolved governments to discuss the bill.
• 14.5 Ifprovisionsinthebillrelatetodevolvedortransferredmatters,UKGdepartmentsshould considerwhetherUKG’spreferredpositionwouldbetolegislateforEnglandonly(orEngland andotherpartsoftheUKwherethetopicisreservedandnotdevolved/transferred)ortoseek toextendtheprovisionstootherpartsoftheUK,bearinginmindthatthisislikelytoengage the LCM process in the relevant devolved legislatures.
• 14.6 Billteams(withassistancefromtheterritorialoffices,wherenecessary)shouldthenhold policydiscussionswithdevolvedgovernmentcounterpartstounderstandifDAMinisterswill becontentforthebilltoextendandapplytodevolvedand/ortransferredareasinScotland, Walesand/orNorthernIreland. Equally,DAMinistersmayrequestthatprovisionsthatrelate toEnglandonlyareextendedtoapplytotheirownrespectivenations.Billteamsshouldalso beclearwiththedevolvedgovernmentsovermattersforwhichUKGremainsresponsibleand mattersforwhichthedevolvedgovernmentsareresponsible.Ifdifferencesininterpretationsor boundariesarise,billteamsshouldworkwiththerelevantterritorialofficesandwithUDDto reach an agreed solution.
• 14.7 Evenifthebilldoesnotappeartohaveanyobviousdevolutionimplications,itiscrucialthat billteamsdiscusstheprovisionswithcolleaguesinboththeUDDandtheterritorialofficesto confirmthatthisisthecase.Inparticular,whileabillmightnotdealsubstantiallywithdevolved matters, it may touch on devolved or transferred matters which could result in the LCM processbeingengagedwithinadevolvedlegislature.TheUDDandtheterritorialofficescan advise on whether or not the LCM is likely to be engagedbeforeprovisionsinthebillare shared with the devolved governments.
• 14.8 Billteamsshouldseekagreementandclearancefromtherelevantterritorialofficesbefore sharing a bill’s provisions andclauses(relatingtodevolvedortransferredmatters)withthe devolved governments ahead of introduction. However, copies of the relevant provisions/clauses that are likely to engage the LCM process in the devolved legislatures should only be shared with the agreement of UKG Ministers.
• 14.9 If the provisions relate to reserved matters, UKG departments should be aware that a failuretoapplyabill’sreservedprovisions/clausesinthedevolvednationswillmeanthatthe devolved legislatures will have no way of passing equivalent legislation.
• 14.10 Itisnotonlyimportantthatengagementwiththedevolvedgovernmentstakesplaceatan early stage (following discussion with the territorial offices), but equally important that bill teams and sponsoring departments decide on a contingency position if they areunableto secureLCMsupportfromoneorallofthedevolvedgovernments.Thismightmeanhavinga viewonwhatabillcouldlooklikewithsuchprovisionsexcisedfromit.Insomeexceptional circumstances, it is possible to proceed without LCMs from the devolved legislatures. Bill teams should first discuss the appropriate next steps with the UDD, EDS, the relevant territorial offices and with Business Managers’ offices.
• 14.11 IfabillappliesandextendstoScotland,Walesand/orNorthernIreland,UKGdepartments should keep in mind the need to consult relevant interest groups in thosepartsoftheUK including,inparticular,thejudiciaryinScotlandandNorthernIreland,onthesamebasisas theirequivalentsinEnglandandWales.Furtherinformationonengagingwithrelevantinterest groups can be found in the DGNs.

The Legislative Consent process

• 14.12 AdevolvedgovernmentcannotseektotableortakeforwardanLCMuntilthebillhasbeen formally introduced totheUKParliament.Asaresult,therelevantUKGbillministershould firstsecureagreementinprinciplefromDAMinistersthattherelevantdevolvedgovernments will table and support an LCM in their devolved legislatures in respect of the bill.
• 14.13 FollowingtheintroductionofabillatWestminster,thedevolvedgovernmentsareexpected totablealegislativeconsentmemorandum(whichisaprecursortoanLCM)intheirdevolved legislatures. Bill teams should continue to take on board views, and work with devolved government counterparts on the bill according to the established practices.
• 14.14 AlthoughthetimingandpassageofLCMsisfirmlyamatterforthedevolvedlegislatures, billteamsshouldworkcloselywithdevolvedgovernmentcounterpartswiththeaimofsecuring passage as soon as possible. The final vote on the LCM musttakeplaceinthedevolved legislaturesbeforethefinalamendingstageinthesecondHouseinParliament14.Thisisto ensurethatUKGhasthecontingencyoptionoftablingamendmentstothebilltoremoveor amend the relevant provisions/clauses, in the event that a devolvedlegislaturechoosesto

14In the case of the House of Lords, the final amending stage should be considered as Report Stage (and not Third Reading).

withholdlegislativeconsent.However,UKG’saimandfirstpreferenceremainsfortheLCMsto be passed by the devolved legislatures while the bill is in the first House in Parliament.

• 14.15 BillteamswillneedtoremainincontactwiththeUDDandtheterritorialofficesthroughout thepassageofthebilltoensurethatanyamendmentstabledtothebillduringpassageare fully considered from a devolution perspective.
• 14.16 UKGdepartmentsshouldalsonotethatanylegislativeamendmentsmadetoabillwhileit progresses through Parliament may have implications on a bill’s devolution analysis and status. Bill teams should do their utmost to ensure that the devolved governments are consulted on all devolution-relatedamendmentstabledbyUKGandthat,wherenecessary, supplementary LCMs are obtained.

Devolution and PBL Committee

• 14.17 The PBL Committee, prior to considering a bill ready for introduction, will expect the devolved governments to have beenconsultedonabill’sdevolvedprovisionsandclauses. ThePBLCommitteewillalsoexpectalldevolution-relatedissuestohavebeensubstantively resolved,unlessthereareexceptionalcircumstances.ThiswillformpartofthePBLclearance process.
• 14.18 By the timethebillgoestoPBLCommitteeforapprovalforintroduction,thesponsoring UKGdepartmentmustbeinapositiontostatewhethertheprovisionsofthebillwillapplyand extendtoEnglandonly,toEnglandandWales,toEnglandandWalesand/orScotlandand/or NorthernIreland,ortothewholeoftheUK.Differentprovisionswithinthesamebillmayhave different territorial extent and application.
• 14.19 IfthebillextendstoScotland,Walesand/orNorthernIreland,thePBLCommitteewillalso wishtoknowwhetheritdealswithmatterswhicharereservedwhollytotheUKGovernment orwhetherithasimplicationsforthedevolvedlegislaturesand/orgovernments.Forexample, itmayextendtheirpowersordutiesortheprovisionsmayhaveaconsequentialimpacton devolved responsibilities i.e. such as local government in Scotland, Wales or Northern Ireland.
• 14.20 If provisions extending to one or more of the devolved governments relate directly to matters that aredevolvedortransferred,thePBLCommitteewillwishtoknowwhetherthe relevant devolved governments have expressed support or agreement in respect of the relevantprovisions/clauseswhichwillengagetheLCMprocess.Iftheprovisionsrelatetothe executivepowersofDAMinisters,theCommitteewillalsowishtoknowwhetherthishasbeen agreedbytherelevantdevolvedgovernments.OncetheWestminsterbillhasbeenintroduced, alegislativeconsentmemorandumshouldnormallybelaidbythedevolvedgovernmentsin theirdevolvedlegislaturesnolaterthantwoweeksafterintroduction.Thelegislativeconsent memorandum (which is the precursor to the LCM) willindicateifthedevolvedgovernment agreeswiththeUKG’sdevolutionanalysisofthebill,alongwithanindicationiftheyintendto recommend that consent be given to the bill’s devolved provisions/clauses.
• 14.21 Ifthebill(orpartofthebill)dealswithdevolvedortransferredmatters,PBLCommitteewill expect the devolved governments concerned to have been fullyconsulted;inpractice,this meansextensiveengagementatofficial-levelandappropriateengagementatministerial-level. The PBL Committee will also expect the responsible UKG bill ministertowritetotheirDA ministerialcounterpartsseeking‘agreementinprinciple’totakeforwardtheLCMprocessin the devolved legislatures. The relevant DA Minister will then consult with their ministerial colleaguesandofficialstoreachagreementontheproposal.Thisisthenusuallyconfirmedin writing in response to the relevant UKG bill minister.
• 14.22 The expectation of the PBL Committee is that devolution issues will have been substantively resolved by the time the Committee considers whether a bill is ready for parliamentary introduction.Ifanydevolutionissuesremainoutstanding,thePBLCommittee may decidetodelaytheintroductionofthebill.Thisistoensurethattheprogressofother legislative vehicles at Westminster is not delayed.
• 14.23 UKGdepartmentsshouldalsonotethatanylegislativeamendmentsmadetoabillwhileit progresses through Parliament may have implications on a bill’s devolution analysis and status. Bill teams should do their utmost to ensure that the devolved governments are consulted on all devolution-relatedamendmentstabledbyUKGandthat,wherenecessary, supplementary LCMs are obtained.
• 14.24 The territorial offices are part of the Westminster decision-making process and will be involvedinPBLwrite-roundsandclearanceprocesses.However,thedevolvedgovernments are not part of the Westminster decision-making process. As a result, Cabinet committee correspondenceorpapersshouldnotbecopiedtothem,althoughUKGMinistersmaywriteto DA ministerial counterparts in the devolved governments in similar terms when writing to Cabinetcommittees.Likewise,internalgovernmentlegaladviceshouldnotbeshareddirectly with the devolved governments without agreement from both the UDD and the relevant territorialoffice.DetailsonhandlingcorrespondencecanbefoundintheDGNsandUDDcan advise on other protocols in corresponding and managing relations with the devolved governments.
• 14.25 ThePBLSecretariatintheCabinetOfficeshouldalsobekeptinformedofanydevolution issues in bills.

Devolution implications of bills to be published in draft

• 14.26 Thesameprinciplesapplywhereabillisbeingpreparedforpublicationindraft.Thebill teamshoulddiscusstheproposedprovisionswiththeUDDandtheterritorialofficesasearly aspossible,sothatdiscussionswiththedevolvedgovernmentscanstartingoodtimewiththe aim of reaching an agreed position before publishing the bill in draft.
• 14.27 Itispreferabletoreachanagreedpositionbeforepublishingthebillindraft.However,ifthe devolutionissuesprovecomplexandrisksignificantlydelayingpublicationofthedraftbill,it maybepossibletopublishthebillindraftform,statingthatthedevolutionissuesremaintobe resolvedthroughdiscussionwiththedevolvedgovernments.Thiscanbeexplainedinthebill’s accompanying explanatory notes. Publication in draft may, in itself, help to resolve any outstanding issues.

Engaging with the Scottish Government and Parliament

• 14.28 UndertheDGNs,theUKParliamentdoes‘notnormally’legislatewithouttheconsentofthe Scottish Parliament on provisions which:
• ● are for a devolved purpose;
• ● modify/alter the executive competence of Scottish Ministers; or
• ● modify/alter the legislative powers of the Scottish Parliament.
• 14.29 TosecurelegislativeconsentinScotland,anLCMmustbetabledandvotedon(infavour) by the Scottish Parliament; the LCM is normally tabled and promoted by the Scottish Government.Intheory,itispossibleforanymemberoftheScottishParliament(whoisnota memberoftheScottishGovernment)totableanLCMbeforetheScottishParliament,though UKGdepartmentswillnormallyonlydealwiththeScottishGovernmentinordertoagreethe tablingofanLCM.AppendixDprovidesmoredetailontheprocessintheScottishParliament for considering LCMs.
• 14.30 Whereitisproposedtoincludeprovisions/clauseswhichfallwithinthecompetenceofthe ScottishParliamentwithin aWestminsterbill,theOfficeoftheSecretaryofStateforScotland (OSSS)shouldbeconsultedinthefirstinstance.TheOfficeoftheAdvocateGeneral(OAG), who advises UKG on Scots law, should also be consulted on drafting matters and on establishingwhethersuchprovisionswillengagetheLCMprocessintheScottishParliament. It is critically important that bill teams discuss the potential need for LCMs,alongwithDA engagement, with OSSS and OAG at anearlystage.Equally,OAGwillbeabletosupport departmentallawyersinconductingadevolutionanalysisoneachbill.AnyLCMsupportmust then be agreed by the relevant Scottish Minister. If the Scottish Government agrees to supportinganLCM,theywillthenlayanLCMbeforetheScottishParliament,togetherwitha detailedmemorandum,whichwillrecommendthattheScottishParliamentagreestoproviding legislative consent for the bill.
• 14.31 LCMsmustbepassedbytheScottishParliamentbeforethefinalamendingstageinthe secondHouseinParliament.ThisistoensurethatUKGhasthecontingencyoptionoftabling amendments to the bill to remove or amend the relevant provisions/clauses in relation to Scotland, in the event that the Scottish Parliament chooses to withhold legislative consent.
• 14.32 Legislative amendments made (both by UKG or by backbench/opposition MPs) during parliamentaryproceedingscanalterabill’sdevolutionstatusandengagetheLCMprocess. The same procedure, as described above for securing the agreement of the Scottish Government would then apply, but would need to be accelerated. As such, legislative amendments that are likely to impact upon the handling and passage of a bill should be discussed with PBL Secretariat, OSSS and the UCG in the first instance.

Engaging with the Welsh Government and Senedd Cymru/Welsh Parliament

• 14.33 UndertheDGNs,theUKParliamentdoes‘notnormally’legislatewithouttheconsentofthe Senedd Cymru/Welsh Parliament on provisions which:
• ● are for a devolved purpose;
• ● modify/alter the executive competence of Welsh Ministers; or
• ● modify/alter the legislative powers of the Senedd Cymru/Welsh Parliament.
• 14.34 TosecurelegislativeconsentinWales,anLCMmustbetabledandvotedon(infavour)by theSeneddCymru/WelshParliament;theLCMisnormallytabledandpromotedbytheWelsh Government. Appendix F provides more detail ontheprocessintheSeneddCymru/Welsh Parliament for considering LCMs.
• 14.35 Whereitisproposedtoincludesuchprovisions/clauseswhichfallwithinthecompetenceof theSeneddCymru/WelshParliamentwithinaWestminsterbill,theOfficeoftheSecretaryof StateforWales(OSSW)shouldbeconsultedinthefirstinstance.WalesOfficeLegalAdvisers (WOLA)shouldalsobeconsultedondraftingmattersandonestablishingwhetherornotthe LCMprocessisengagedintheSeneddCymru/WelshParliament.Itiscriticallyimportantthat billteamsdiscussthepotentialneedforLCMs,alongwithDAengagement,withOSSWand WOLA at an early stage. Equally, WOLA will be able to support departmental lawyers in conductingadevolutionanalysisoneachbill.AnyLCMsupportmustthenbeagreedbythe relevantWelshMinister.IftheWelshGovernmentagreestosupportinganLCM,theywillthen lay an LCM before the Senedd Cymru/Welsh Parliament, together with a detailed memorandum, which will recommend that the Senedd Cymru/Welsh Parliament agrees to providing legislative consent for the bill.
• 14.36 LCMsmustbepassedbytheSeneddCymru/WelshParliamentbeforethefinalamending stage in the second House in Parliament. This istoensurethatUKGhasthecontingency optionoftablingamendmentstothebilltoremoveoramendtherelevantprovisions/clausesin relationtoWales,intheeventthattheSeneddCymru/WelshParliamentchoosestowithhold legislative consent. Bill teams should consult with the Office of the Secretary of State for Wales (OSSW) on timings with regard to tabling anLCMbeforetheSeneddCymru/Welsh Parliament as there are different recess times in Wales and limited slots for the Senedd Cymru/WelshParliamenttoconsideranddebateLCMs.AppendixDprovidesmoredetailon the process in the Senedd Cymru/Welsh Parliament for considering LCMs.
• 14.37 Legislative amendments made (both by UKG or by backbench/opposition MPs) during parliamentaryproceedingscanalterabill’sdevolutionstatusandengagetheLCMprocess. The same procedure, as described above for securing the agreement of the Welsh Government would then apply, but would need to be accelerated. As such, legislative amendments that are likely to impact upon the handling and passage of a bill should be discussed with PBL Secretariat, OSSW and UDD in the first instance.

Engaging with the Northern Ireland Executive and Assembly

• 14.38 UndertheDGNs,theUKParliamentdoes‘notnormally’legislatewithouttheconsentofthe Northern Ireland Assembly on provisions which:
• ● are for a transferred (ie: devolved) purpose;
• ● modify/alter the executive functions of NorthernIrelandMinistersortheexecutive functions of the departments; or
• ● modify/alter the legislative powers of the Northern Ireland Assembly. This convention does not apply when legislation deals with transferred matters only incidentallyorconsequentiallyuponprovisionmadeinrelationtoareservedorexcepted matter.
• 14.39 TosecurelegislativeconsentinNorthernIreland,anLCMmustbetabledandvotedon(in favour)bytheNorthernIrelandAssembly;theLCMisnormallytabledandpromotedbythe NorthernIrelandExecutive.AppendixEprovidesmoredetailontheprocessintheNorthern Ireland Assembly for considering LCMs.
• 14.40 Where it is proposed to include suchprovisions/clauseswhichfallwithinthetransferred competence of the Northern Ireland Assembly within a Westminster bill, Northern Ireland Office (NIO) officialsshouldbeconsultedinthefirstinstance.NorthernIrelandOfficeLegal Advisers(NIOLA)shouldalsobeconsultedondraftingmattersandonestablishingwhetheror nottheLCMprocessisengagedintheNorthernIrelandAssembly.Itiscriticallyimportantthat bill teams discuss the potential need for LCMs, along with DA engagement, withNIOand NIOLA at an early stage. Equally, NIOLA will be able to support departmental lawyers in conducting a devolution analysis on each bill. Any LCM support must then be agreed collectivelybyNorthernIrelandExecutiveMinisters.IftheNorthernIrelandExecutiveagrees tosupportinganLCM,therelevantMinisterwillthenlayanLCMbeforetheNorthernIreland Assembly, together with a detailed memorandum, which will recommend that the Northern Ireland Assembly agrees to providing legislative consent for the bill.
• 14.41 LCMsmustbepassedbytheNorthernIrelandAssemblybeforethefinalamendingstagein the second House inParliament.ThisistoensurethatUKGhasthecontingencyoptionof tablingamendmentstothebilltoremoveoramendtherelevantprovisions/clausesinrelation to Northern Ireland, in the event that the Northern Ireland Assembly chooses to withhold legislativeconsent.AppendixDprovidesmoredetailontheprocessintheNorthernIreland Assembly for considering LCMs.
• 14.42 Legislative amendments made (both by UKG or by backbench/opposition MPs) during parliamentaryproceedingscanalterabill’sdevolutionstatusandengagetheLCMprocess. Thesameprocedure,asdescribedaboveforsecuringtheagreementoftheNorthernIreland Executive would then apply, but would need to be accelerated. As such, legislative amendments that are likely to impact upon the handling and passage of a bill should be discussed with PBL Secretariat, NIO and UDD in the first instance.

15. DELEGATED POWERS

Key points

● Delegated legislation is legislation made by a person (usually a government minister) exercising a power conferred on them by an Act of Parliament. Suchlegislationusually takes the form of a set of regulations or, less commonly these days, an order. The Act generally requires the power tobeexercisedby “statutoryinstrument”(an“SI”). SIsare regulatedbytheStatutoryInstrumentsAct1946which,amongstotherthings,requiresSIsto be numbered and published.

● Itmaybeappropriateforabilltodelegatelegislativepowerstoaministerorotherpersonso thattheycanmakefurtherlegislativeprovisionbyregulations,orderorsomeotherformof subordinate legislation after the bill becomes an Act.

● The scope of powers, the rationale for their use, and whether any safeguards are appropriate should be properly tested and justified in every case.

● Appendix E (‘Delegated Powers Toolkit’) provides guidance to help departments decide whether to include a delegated power in a bill.

● Any provisions in a bill that delegate legislative powers will be scrutinised closely by Parliamentand,inparticular,bytheDelegatedPowersandRegulatoryReformCommittee (DPRRC) in the House of Lords.

• ● WhenpreparinginstructionstoParliamentaryCounsel,careneedstobetakentoensurethat anyproposedpowerstomakedelegatedlegislationarefullyjustified. Thebillteamshould also make sure that the minister is content with what is proposed and alerted to any proposed powers which may prove controversial.

● Theinstructionswillalsoneedtodetailtheformofparliamentaryscrutinyproceduretowhich the exercise of any power to make delegated legislation is to be subject.

● Beforeabillisapprovedforintroduction,thePBLCommitteerequiresadelegatedpowers memorandumforthebill. Thismustsetoutalltheproposeddelegatedpowersinthebill,the rationale for their inclusion, the choice of parliamentary scrutiny procedure and the justification for that choice. The draft memorandum should be shared with the PBL Secretariat,theGovernmentWhips’OfficesandParliamentaryCounselforcomment,before it is submitted to the PBL Committee.

● When the bill isintroducedintheLordsortransfersfromtheCommonstotheLords,the memorandum should be submitted to the DPRRC. For Bills starting in the Commons it shouldbesenttotheCommonsPublicBillOfficewhowillarrangeforittobepublishedon the Parliament website.

● AsupplementarymemorandumshouldbesubmittedtotheDPRRC(andcopiedtothePublic BillOfficeforpublication)ifthebillissubsequentlyamendedtoaltertheexistingdelegated powers or to add further delegated powers.

● Adelegatedpowersmemorandumisnotrequiredifthebilldoesnotcontainanydelegated powers, but will need to be provided if any delegated powers are added to the bill by amendment.

● Whereabillispublishedindraftbeforeintroduction,theGovernmentshouldalsopublisha delegated powers memorandum and send a copy of that memorandum to the DPRRC.

● TheDPRRCwillaimtoreportonabillbynolaterthanthetimethebillreachesCommittee StageintheLords,andsometimesbeforeSecondReading.Veryoccasionally,forexample, whereabillisbeingfast-tracked,theDPRRCwillreportonabillwhenitisstillintheHouse of Commons.

● The minister must write to the DPRRC with the Government's response, but should not committomakinganyamendmentsinresponseunlessthesehavealreadybeenagreedby thePBLCommitteeandtherelevantpolicycommitteeinthenormalway.Thelettertothe DPRRC should provide a full justification where recommendations have not been accepted.

When is it appropriate for a bill to delegate legislative powers?

• 15.1 AnActofParliamentcangiveMinistersorothersthepower(sometimescalleda‘delegated power’) to make secondary legislation.
• 15.2 It is appropriate for delegated powers to be used, for example, to deal with secondary policy detail required to give effect totheAct,includingtechnicaloradministrativematters. These are various circumstances in which it might be appropriate for a bill to contain delegatedpowers.Forexample,whereamatter,thoughdetailed,goestotheheartofthebill such that Parliament ought to consider it as part of the policy story set out in the bill.

Delegated Powers Toolkit

The Delegated Powers Toolkit at Appendix E sets out guidance to help departments decide whether or not to include a delegated power in a bill. It deals with the following questions

• ● What is the right balance between primary and secondary legislation?
• ● What is the proper role for delegated powers?
• ● Where will delegated powers not generally be justifiable?
• ● In what circumstances may it be appropriate to take 'Henry VII' powers?
• ● What safeguards or alternatives should be considered when taking a power?
• 15.3 Asnotedabove,theinclusionofanydelegatedpowersinabillneedstobejustifiedbythe Government.TheDelegatedPowersandRegulatoryReformCommittee'stwelfthreportofthe 2021-22sessionentitled'DemocracyDenied?Theurgentneedtorebalancepowerbetween Parliament and the Executive' (HL 106) sets out the following statement of principles of parliamentarydemocracywhichtheGovernmentcanusewhenconsideringwhethertoinclude delegated powers in a bill:

“1.Parliamentarydemocracyisfoundedonprinciplesofparliamentarysovereignty, the rule of law and the accountability of the executive to Parliament.

• 2. Sometimes it is appropriate for Parliament to delegate legislative powers to a minister or other body sothatfurtherlegislativeprovisionbydelegatedlegislation can be made after Royal Assent.
• 3. Where any provision in a bill delegates legislative powers, departments must satisfythemselvesthatthedelegationisframedinawaythattakesintoaccountto the fullest extent possible the principles of parliamentary democracy.
• 4. Departments may be asked to explain to Parliament how the principles of parliamentarydemocracyhavebeentakenintoaccountwhenseekingadelegation of legislative power. In the case of exceptional or controversial powers, this explanationshouldbesetoutinthedelegatedpowersmemorandumaccompanying a bill.
• 5. Any explanation should be complete and not formulaic."

Guidance

• 15.4 ItisGovernmentpolicythatguidanceshouldnotbeusedtocircumventtheusualwayof regulatingamatter.Ifthepolicyistocreaterulesthatmustbefollowed,thisisnotappropriate content for guidance. Examples of appropriate uses of guidance include aiding policy implementation by supplementing legal rules or explaining the legal framework clearlyand simply.

Forms of parliamentary scrutiny

• 15.5 There are two main forms of parliamentary scrutiny fordelegatedlegislation:affirmative and negative.
• 15.6 The most common form is annulment in pursuance of a resolution of either House of Parliament i.e. the ‘negative’ procedure. SIs under this procedure are laid (presented to Parliament)alreadymade(signedbyaminister)andthuslaw.Thisiscommonlyreferredtoas 'made when they are laid'. However, unless there is an extreme case of urgency, the expectationisthataminimumof21daysshouldbeleftbetweenlayingandthelawcoming into force. This is in line with Parliamentary convention and facilitates appropriate timefor scrutiny. Any breach of this requires clear explanation in the accompanying explanatory memorandum.Intotal,MembersofParliamentandPeershave40sittingdaysfromtheSIs beinglaidtoprayagainstit. Ifa‘prayer’motionismoved,adebateandvotetoannultheSI may occur. A'prayer'istabledintheformofanEarlyDaymotion. Thereisnoautomatic debate if a 'prayer' is tabled and departments should discuss any'prayers'withtheWhips Offices.
• 15.7 There is alsotherarelyuseddraftnegativeresolutionprocedurewhereaninstrumentis laidindraftandcanonlybemadeifnonegativeresolutionispassedwithin40sittingdays.In this case the negative resolution is in termsthatthedraftinstrumentisnottobemade,in whichcasetheStatutoryInstrumentsAct1946providesthatnofurtherproceedingsshallbe taken on the instrument.
• 15.8 The other principal form of scrutiny is the ‘affirmative’ procedure (draft-affirmative procedure). The instrument is laid in draft and cannot be made until both Houses have debated and approved it.
• 15.9 There is another variant (made-affirmative procedure), where the order is made before being laid and comes into force immediately (usually because the minister regards it as necessary to act as a matter of urgency). However, this requires each House to pass a resolutionaffirmingtheinstrumentbeforeaperiodspecifiedintheAct(forexample,28days) expires. Should the period specified in the ActexpirebeforetheSIhasbeendebatedand approved in each House, then it will cease to have effect.
• 15.10 In the case of some financial instruments, these procedures apply to the Commons only.
• 15.11 SomeinstrumentsarenotsubjecttoParliamentaryprocedure.Thisiscommonlythecase with commencement orders or regulations.
• 15.12 The Joint Committee on Statutory Instruments(JCSI)scrutinisesthelegalandtechnical aspectsofallSIslaidbeforeParliament.TheLordsSecondaryLegislationScrutinyCommittee (SLSC)considersthepolicycontentofallSIssubjecttoparliamentaryprocedurelaidbefore Parliament. Both issue weekly reports.
• 15.13 Insomeotherexceptionalcasestheremaybeprovisionforadditionalparliamentarycontrol (‘enhancedprocedures’).Departmentsshouldavoidroutinelyincludingsuchprovisioninbills (orconcedingamendmentstothateffect),sincethisaddstothecomplexityofparliamentary handling and has a considerable impact on future business management.

Content of the delegated powers memorandum to the DPRRC

• 15.14 The role of the DPRRC is “to report whether the provisions of any bill inappropriately delegate legislative power or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny”. Departments should carefully consider DPRRC's guidance (revised in September 2025) when preparing a delegated powers memorandum. FurtherguidancecanbeobtainedfromtheGovernmentWhips'Officeinthe Lords or the Clerk to the DPRRC.
• 15.15 The delegated powers memorandum should give a concise account of the bill, and:
• ● identify every provision for delegated legislation within the bill;
• ● give a brief description or statement of their purpose;
• ● describe briefly the justification for taking the power, whyitisappropriateforthe matter to be dealt with to in delegated legislation, and how the powerhasbeen narrowed; and
• ● identifythechoiceofparliamentaryscrutinyprocedureselectedfortheexerciseof eachpower(affirmative,negativeornoneatall)andexplainwhythatprocedureis considered appropriate.
• 15.16 Powers togivedirectionsorissuecodesofpracticemaybeconsideredtobedelegated legislative powers and must be covered in the memorandum. If a department is unsure whether a power is legislative it is better to include an explanation than to leave it out.
• 15.17 While the memorandum should cover all proposals for delegated powersinthebill,the DPRRCtakesaparticularinterestinso-called‘HenryVIII’powerstoamendprimarylegislation through statutory instruments. The DPRRC hasrecommendedthatinrespectofHenryVIII powerstomakeincidental,consequentialandsimilarprovision,thereshouldbeapresumption infavouroftheaffirmativeprocedureforSIsmadeunderthepower;andiftheGovernment proposesuchpowersbesubjecttoanythingotherthantheaffirmativeprocedure,thereasons should be set out in the explanatory notes to the bill as well as in the delegated powers memorandum(formoreonscrutinyofHenryVIIIpowersseesectionDofAppendixE).Ithas also recommended that in each case the explanatory notes and delegated powers memorandumshouldofferanexplanationofthereasonswhyaparticularformofwordinghas been adopted.
• 15.18 Abillorprovisionthatconsistsprimarilyofpowersandleavesthesubstanceofthepolicy, or significant aspects of it, to delegated legislation is sometimes called a framework (or ‘skeleton’)billorprovision.LegislationinthisformwillneedtobefullyjustifiedtotheDPRRC. Inthesecasesitishelpfultoexplainthestepstakentoincludepolicydetail,limitationsonthe power and appropriate safeguards on the face of the bill. It may be helpful to draw the DPRRC’s attention to relevant precedents in existing legislation.
• 15.19 TheDPRRCmay,onoccasion,invitefurtherevidence,writtenororal,fromthedepartment, or possibly from others, but neither is common.
• 15.20 The draft DPRRC memorandum should be shared with the PBL Secretariat, the GovernmentWhips’OfficesintheLordsandParliamentaryCounselforcommentbeforeitis submitted to the PBL Committee.

Practicalities on introduction

• 15.21 For billsstartingintheHouseofLords,onthedayofintroductionthedelegatedpowers memorandum should be submitted to the DPRRC via email (hldelegatedpowers@parliament.uk)totheclerktothecommitteewith50copiesplacedinthe CommonsVoteOffice,andfurthercopiesinthelibrariesofbothHouses.Then,onpassageto the Commons,thememorandumshouldbeupdated(ifnecessary)andsenttotheDPRRC with50copiesplacedintheCommonsVoteOfficeandfurthercopiesinthelibrariesofboth Houses.
• 15.22 On introduction for billsstartingintheHouseofCommons,thememorandumshouldbe senttotheCommonsPublicBillOfficeforpublicationontheParliamentwebsite.Itdoesnot needtobesubmittedtotheDPRRCatthatstagewith50copiesplacedintheCommonsVote OfficeandfurthercopiesinthelibrariesofbothHouses.Then,onpassagetotheLords,the memorandum should be updated and sent to the DPRRC with 50 copies placed in the Commons Vote Office, and further copies in the libraries of both Houses.
• 15.23 When the memorandum is submitted to the DPRRC it should also be copied to the Commons Public Bill Office. They will arrange topublishitontheParliamentwebsite.The relevant contact details can be found in Appendix B.
• 15.24 Whichever the House of introduction, when the bill passes to the second House the memorandum needs to be updated to reflect any amendments made in the first House.
• 15.25 Asageneralrule,billteamsshouldkeeptheDPRRCinformedofanyissuesaroundthebill which they are likely to be interested in. Any correspondence to the chair of the DPRRC should be copied to the committee Clerk who is also willing to advise departments on delegated powers matters.

Responding to the DPRRC's report

• 15.26 TheDPRRCwillaimtocompleteitsscrutinyofthebillandprovideareporttotheHouseof Lords before the bill goes into Committee stage or earlier if this is feasible.
• 15.27 TheDPRRCworksbyinformingandmakingrecommendationstotheHouse.Itsreportmay simplydrawtheattentionoftheHousetotheprovisionsconcerned,oritmayproposethata different form of subordinate, or indeed primary, legislation would be appropriate or that a delegated power should be subject to a different level of parliamentary scrutiny.
• 15.28 The Government can expect to be challenged on its response to any of the DPRRC's recommendations which falls short of full implementation.
• 15.29 The bill team must consider the report carefully and advise ministers which of the recommendations can be accepted. The minister should write to the chair of the DPRRC before Committee stage to inform them of the Government's response to the recommendations (which is usually published) but should not commit to making any amendments unless these have already been cleared by thePBLCommitteeandrelevant policy committee in the normal way. Departments therefore need to make sure that they considertheirresponsetotheDPRRCpromptly,toallowtimetoseekclearanceifnecessary. IfthetimebetweenpublicationofthereportandCommitteestageisshortanditisnotpossible toprovideaformalresponse,departmentsshouldwritetotheDPRRCwithanindicationof when a response will be sent.
• 15.30 DPRRC’srecommendationsmustbeconsideredseriouslytoseewhetheritispossibleto accept them. However, any changes to the bill as a result must nonetheless be cleared throughthePBLCommitteeinthenormalway,andmayalsorequireclearancethroughthe relevantpolicycommittee.Thereis,therefore,benefitindepartmentsanticipatingtheviewsof theDPRRCwhendraftingthebilltoavoidtheneedforamendments.TheDPRRC'sadvisers are willing to be consulted informally before introduction.
• 15.31 Careful handling will be required if the Government chooses not to accept the recommendations of the DPRRC. The bill minister must provide a full justification for not accepting recommendations in their written response totheDPRRC. Thebillteamshould engagetheDPRRCandtheiradvisors,thePBLSecretariatandtheLordsWhipsOffice,prior to responding to the report.

Delegated powers in private members’ bills

• 15.32 The DPRRC may report on any bill containing delegated powers. If a government-supportedprivatemember'sbilllookslikelytocompleteitsCommonsstagesand reachtheLords(eveniftheGovernmenthasonlyagreedtosupportthebillpart-waythrough itspassage),thedepartmentresponsibleshouldsubmitamemorandumtotheDPRRCasset out above, by the time the bill reaches the Lords at the very latest. For a government-supported Lords private member'sbill,amemorandumshouldbesubmittedas soon as possible after introduction and the Government should provide aresponsetoany DPRRC report as they would with a government Bill.
• 15.33 Moredetailondelegatedpowersandissuestobeconsideredwhendraftingthebillarein Chapters 8 and 9 (Drafting the Bill).

Providing Parliament with draft regulations etc.

• 15.34 MPsandpeerswhoareconsideringabillwillfindithelpfultobegivensightofdraftsofthe regulations,guidanceetcthatthedepartmentintendstomakeunderthepowersconferredby thebill.ThisisusuallydonebythedraftsbeingplacedintheVoteOffice(Commons)orthe Printed Paper Office (Lords) and the libraries of both Houses and made available during CommitteewithanannouncementmadeattherelevantpointinCommittee,orletterswritten to interested members or peers.
• 15.35 Incaseswherethedetaileddraftregulationsthemselvesarenotavailableortheymaynot aiddebate(e.g.iftheyareparticularlydetailedandtechnical),departmentsshouldconsider setting out clear policy statements or case studies about the content of the proposed regulations.ApolicystatementcansetouttheGovernment’sbasicapproachtotheexercise ofapower,evenwhereitisimpossibletodraftregulations(e.g.powersinrespectoffuture technologies,whereitisimpossibletopredictthedetail,buttheGovernmenthasapolicyasto its approach).

Practical considerations for delivering delegated powers

• 15.36 There is now a central coordination, clearance and monitoring function for delivering secondary legislation across Government (the triage process), whichshouldbeconsidered when formulating plans for secondary legislation. In practice this means that departments mustplantheirSIsaswellasanyotherprojectandbeabletoprovidecomprehensivedetail, adequatejustificationandcarefullythought-throughparliamentaryhandlingconsiderationsfor any secondary legislation they wish to make before it will be cleared to be laid before Parliament.Thisworkshouldnotbedisregardedwhendecidinghowbroaddelegatedpowers in a bill will be.

Triage

• 15.37 The PBL Secretariat operate a triage process for all secondary legislation, producing a monthly submission of secondary legislation planned over the next three months for a sub-groupofPBLCommitteetoconsider.Basedontheinformationprovidedtothemandthe overallflowofinstrumentstoParliament,thePBLtriageministerswillclearSIstobelaid,ask for more information or reject SIs for laying.
• 15.38 The PBL triage ministers are:
• ● Leader of the House of Commons
• ● Leader of the House of Lords
• ● Chief Whip of the House of Commons
• ● Chief Whip of the House of Lords
• ● Chief Secretary to the Treasury
• ● a Cabinet Office minister
• 15.39 SIs submitted to triage need to contain information on a number of fields such as purpose/justification, possiblelevelofcontroversyandtechnicaldetailssuchasitsenabling powers. Fields must be completed succinctly and to ministerial-submission quality.

Parliamentary Handling Plans

• 15.40 Many SIs submitted to triage will also require an accompanying parliamentary handling plan,providingdetailonhowitisexpectedtoprogressthroughbothHouses.PBLSecretariat can provide more guidance on the precise templates.

Debating delegated legislation

• 15.41 IntheHouseofCommons,affirmativeornegativeSIscanbedebatedforupto90minutes each. This is set out in Standing Order No. 16. Most SIs are scheduled for debate in Committee, with only high-profile or time-critical SIs normally scheduled for debate on the Floor of the House.
• 15.42 In the House of Lords debates on SIs are not time-limited. Most are debatedinGrand CommitteebuttheycanbetakenontheflooroftheHouse.Votesonlytendtotakeplaceifa motion has been tabled against an SI.
• 15.43 SIsthatrelatetoeachothercanbegroupedfordebate,providingtheWhips'Officescan obtain agreement in usual channels. If allmembersarecontent,thenthereisonedebate encompassingallSIswithvotesattheend. However,intheCommonsifanymemberobjects tothegrouping,theSIsmustbetakeninturnwitheachdebatelastingupto90minutes. In thisinstance,voteswouldhappenattheendofeachdebate,notattheconclusionofallthe debates.
• 15.44 DepartmentsshoulddiscusstimingsandpossiblegroupingswiththeGovernmentWhip's Offices.

16. CROWN DEPENDENCIES AND OVERSEAS TERRITORIES

Crown Dependencies

• 16.1 Departments must consider whether the bill has any implications for the Crown Dependencies:theBailiwickofJersey,theBailiwickofGuernsey(whichincludestheseparate jurisdictionsofAlderneyandSark)andtheIsleofMan.Thiswillincludeanyproposalsforall or part of the bill to extend, or be capable of extension at a future date, to the Crown Dependencies and proposals to include in the bill amendments of existing UK Acts of Parliament that extend, or are capable of extension, to the Crown Dependencies.
• 16.2 TheCrownDependenciesarenotpartoftheUKandhavenorepresentationinParliament. They are parliamentary democracies with their own legislative assemblies, administrative, fiscalandlegalsystemsandtheirowncourtsoflaw.Constitutionally,theUKGovernmentis responsible for their defence,theirinternationalrelationsand,onbehalfoftheCrown,their good government. Detailed information is contained in the “Fact sheet on the UK’s Relationship with the Crown Dependencies” on GOV.UK.
• 16.3 The Crown Dependencies have autonomy in their domestic affairs and the UK Government,bylong-standingconstitutionalconvention,doesnotordinarilylegislateforthem insuchmatters. Onlyinrarecases,withtheagreementoftheCrownDependencies,willan Act of Parliament be expressed to apply directly. It may apply by necessary implication, although this too will now be rare.
• 16.4 Almost invariably nowadays, UK legislation intended to take effect in the Crown DependencieswilldosobyOrderinCouncilmadewiththeagreementofeachoftheCrown Dependenciesconcernedunderanenablingprovision,knownasapermissiveextentclause, contained in the Act of Parliament.
• 16.5 If a departmentwishesitsbilltoextendtotheCrownDependenciesitwillneedtoseek theirconsent. Furthermore,apermissiveextentclauseshouldnotbeincludedinabillwithout their prior agreement save inexceptionalcircumstances(suchaswhereabillengagesthe UK’s constitutional responsibilities for the defence and international relations of the Crown Dependencies)andthenonlyafterconsultationwiththeCrownDependenciesandtheMinistry of Justice Crown Dependencies Team. This applies equally to any bill which proposes to amendorreplaceanActofParliamentthatextendstotheCrownDependenciesonitsfaceor includes a permissive extent clause. UK Government departments shouldnotassumethat pre-existing direct extent or a pre-existing permissive extent clause can be replicated. Similarly, any Orders in Council that the Crown Dependencies subsequently agree should include only those provisions drafted in consultation with them.
• 16.6 ItisthereforeimportantthatadepartmentconsultstheCrownDependenciesatanearly stageifthecontentofaproposedbillappearsrelevanttothem,andbeforeanymentionof themismadeinapublishedbill. ContactdetailsforeachoftheCrownDependenciesandthe Ministry of Justice Crown Dependencies Team can be found in Appendix B.
• 16.7 Departments must satisfy the PBL Committee that any necessary consultation with the Crown Dependencies has been carried out before it gives approval to introducethebillto Parliament.
• 16.8 AllUKGovernmentdepartmentsareresponsiblefortheirrespectivepolicyareastowards the Crown Dependencies and should engagedirectlywiththem.TheCrownDependencies TeamintheMinistryofJustice(crown.dependencies@justice.gov.uk)shouldbenotifiedofany contactdepartmentsmakewiththeCrownDependenciesandcanprovideadviceonhowto communicatewiththem. FurtherinformationcanbefoundintheMinistryofJustice“HowTo Note: Extension of UK Legislation to the Crown Dependencies”guide on GOV.UK.

Overseas Territories

• 16.9 Departmentsshouldconsideratanearlystagewhetherabillhasanyimplicationsforthe UK’s14OverseasTerritories:Anguilla;Bermuda;theBritishIndianOceanTerritory;theBritish Antarctic Territory;theCaymanIslands;Gibraltar;theFalklandIslands;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, AscensionIslandandTristandaCunha;theTurksandCaicosIslands;andtheVirginIslands (commonly known as the British Virgin Islands).
• 16.10 The Overseas Territories are constitutionally separate from the UK,buttheUKremains responsiblefortheiroverallgoodgovernance,andtheirdefenceandexternalaffairs.Unlike fortheCrownDependencies,eachOverseasTerritoryhasawrittenconstitutioncontainedin anOrderinCouncil.Thissetsoutthepowersofthelocallegislatureandexecutive,andalso prescribesaparticularroleforaGovernororequivalent,whoissubjecttoinstructionbythe SecretaryofState.OverseasTerritories’lawsareamixtureoflegislationpassedbythelocal legislature, Orders in Council and UK Acts of Parliament.
• 16.11 There is no limit to the power of Parliament to enact primary legislation for any of the Overseas Territories. However, Acts of Parliament do not normallyextendtotheOverseas Territories. If they do, they may do so either by virtue of the Act itself (this maybeeither expressedonthefaceoftheActorbynecessaryimplication),or,morecommonly,byOrderin Council under an enabling provision contained in the Act (known as a “permissive extent clause”).WhilethereisnoruleoflawthatrequirestheconsentofanOverseasTerritory,or evenpriorconsultationwithit,beforeParliamentlegislatesforit,theUKGovernmentdoesnot normallylegislatefortheOverseasTerritoriesexceptwiththeagreementofthelocally-elected governments. In addition, there is now a legal requirement set outintheCaymanIslands’ ConstitutionontheSecretaryofStatetonormallybringsuchanActorOrderinCounciltothe attentionofthePremieroftheCaymanIslandssothattheCaymanIslandsCabinetcansignify its view on it. Departments will need to satisfy PBL Committee that any necessary consultation with Overseas Territories Governments has been carried out before it gives approval to introduce the bill to Parliament.
• 16.12 All UK Government departments have recognised their responsibility to support the OverseasTerritoriesintheirareaofcompetenceandexpertise.Departmentsshouldtherefore takeOverseasTerritoryinterestsintoaccountwhenconsideringnewpoliciesorparliamentary bills.
• 16.13 If intended legislation has potential implications for the Overseas Territories, or a departmentwishesitsbilltoextendautomaticallytotheOverseasTerritoriesortocontaina permissive extent clause, it should consult Overseas Territories Directorate and Europe Directorate(forGibraltarandtheSovereignBaseAreas)intheForeign,Commonwealthand Development Office (FCDO). Departments should consult Overseas Territories Directorate (DLOTDStrategyTeamSensitive@fcdo.gov.uk)attheFCDOfortherelevantcontactdetailsfor territory. Inthefirstinstance,Governorsshouldbemadeawarebyemailorletterviaemail. TheGovernor/swillthennormallyconsulttheterritorygovernments. Aseparateemailshould subsequently be sent to the relevant Overseas Territory Representative/s to London for awareness. Thisshouldtakeplaceasearlyaspossibleandinanycase,beforeanymention of the Overseas Territories is made in a published bill.

17. KING'S AND PRINCE'S CONSENT

Background

• 17.1 It is a longstanding Parliamentary requirement that the King’s and the Prince's consent should be given for certain bills.

King's consentis required if the Bill affects theprerogative of the Crown or the interests (hereditary revenues, personal property or other personal interests) of the Crown, the Duchy of Lancaster or the Duchy of Cornwall.

Prince's consentis required if the bill expresslyrefers to the Duchy of Cornwall or otherwise has a special application to it. Very occasionally, it may be required in other cases.

• 17.2 A bill may require both King's and Prince's consent.

When King's and Prince's consent is required

• 17.3 ItisnotalwayseasyforbillteamstospotwhereKing'sand/orPrince’sconsentmaybe needed.ThebillteamshouldconsultParliamentaryCounselatanearlystageonwhetheritis likelythatitwillbeneededfortheirbill.ParliamentaryCounselmay,inturn,consulttheHouse authorities and advise accordingly. It is important to allow at least a week for the House authorities to take a view (this may take longer when the House is in recess).
• 17.4 ThereisnorequirementtoseekKing'sorPrince’sconsentpriortopublicationofadraftbill, thoughoutofcourtesythedepartmentmightwishtoalerttheRoyalHouseholdtoanydraftbill which significantly affects the Crown's interests.
• 17.5 Ifaprivatemember’sbillrequiresKing’sand/orPrince’sconsent,theMemberwritestothe relevant minister to ask the Government to arrange for consent to be obtained. The Governmentwillusuallyseeksuchconsentevenifitopposesthebillalthoughitwillgenerally not seek consent where it is clear from the parliamentary timetable that there is no real prospect of the bill making progress or thebillhasbeensubmittedwithoutenoughtimeto seekconsent.Nevertheless,theDepartmentmaywishtoindicateinthecoveringlettertothe Private Secretary requesting King’s or Prince’s consent that the Government intends to oppose the bill during its later stages.
• 17.6 TherequesttotheGovernmentisnormallymadeoncethebillhasbeenprintedbutmight needtobemadeimmediatelyafterFirstReadingiftimeisshort,providedtheintendedcontent of the bill is known.

How to seek King's and Prince of Wales's consent

• 17.7 Where King’s consent is required a letter should be sent fromthebillminister'sPrivate SecretarytotheKing’sPrivateSecretaryexplainingthepurposeofthebillandhowitwillaffect theprerogativeorinterestsoftheCrown,andaskingforconsent.LettersaffectingtheCrown EstateshouldbecopiedtotheSecretarytotheCrownEstateCommissioners(contactdetails are available in Appendix B).
• 17.8 WherePrince’sconsentisrequiredasimilarlettershouldbesentfromthebillminister's PrivateSecretarytothePrinceofWales’sPrincipalPrivateSecretarysettingouthowthebill would affect the interests of the Duchy. All letters sent to the Prince of Wales’s Principal Private Secretary should be copied to the Secretary to the Duchy of Cornwall.
• 17.9 IncaseswherebothKing’sandPrince’sconsentisrequired,separatelettersratherthan copies should be sent to each Private Secretary.
• 17.10 Twocopiesofthedraftbillshouldbeenclosed.Ifthedraftisnotyetfinal,thelatestversion shouldbesentintheinterimandthefinaldraftassoonasavailable.TheRoyalHouseholdwill need to have received a final copy of the bill for consent to begrantedwithanychanges between the draft copies identified.
• 17.11 The language of the letters should be formal in nature. All letters should be copied to:

Mr. Julian Smith Messrs Farrer and Co 66 Lincoln’s Inn Fields London WC2A 3LH

• 17.12 FarrerandCowill,asappropriate,advisetheRoyalHousehold,theClerktotheCouncilof the Duchy of Lancaster and the Secretary to the Duchy of Cornwall on the nature of the legislation and its potential impact.
• 17.13 The relevant contact details for the Royal Household can be found in Appendix B.
• 17.14 Templates for the letters to seek consent can be obtained from the PBL Secretariat.

Timing

• 17.15 Consentshouldnormallybesoughtbeforethebillisintroduced.Whenconsideringwhether toapproveabillforintroduction,thePBLCommitteewillexpecttohearthatconsenthasbeen soughtandobtained,orthattheprocesshasbegunandnosignificantissuesareexpectedin obtaining consent.
• 17.16 TheRoyalHouseholdmustbegivenasmuchtimeaspossible,andneverfewerthan14 days,inwhichtoprocessrequestsforconsent. Itistheresponsibilityofbillteamstoensure thatconsentissoughtandobtainedontime.Ministersmustensurethataresponsehasbeen received in writing before they signify consent in Parliament.
• 17.17 If,veryexceptionally,consenttoagovernmentbillcanonlybesoughtafterabillhasbeen introduced,itshouldbesoughtassoonaspossible;howeveraminimumof14daysmustbe leftforittobeconsidered.Amendmentstoabillafterintroductionmightrequireconsenttobe soughtiftheyarenotcoveredbytheoriginalconsentorifthebilldidnotrequireconsentwhen introduced. Inthatcaseconsentmustbeobtainedbeforetheamendmentsaretabled.Ifan amendmentwhichrequiresconsentismadebythesecondHouse,consentmustbesignified intheHouseinwhichthebillwasintroducedbeforetheamendmentcanbeconsideredbythat Houseon‘ping-pong’.ThisdoesnotapplyifconsentwassignifiedinthefirstHouseanditcan be assumed that the matters covered by the consent include the matter covered by the amendment in the second House

Signifying consent

• 17.18 In the Commons, consent is signified by a minister who is a Privy Counsellor in the Chamber on Third Reading. The Privy Counsellor merely nods to signify consent.
• 17.19 IntheHouseofLordsconsentissignifiedorallybyaministerwhoisaPrivyCounsellorin the Chamber on Third Reading.
• 17.20 IntheCommons,itisuptothedepartment(throughtheirParliamentaryBranch)toensure thataministerwhoisaPrivyCounsellorisavailabletosignifyKing’sorPrince’sconsent. In the Lords, the Whips Office will arrange for the Privy Counsellor to signify consent.

18. TAX AND PUBLIC EXPENDITURE

Key points

• ● TheagreementoftherelevantHMTreasuryministermustbeobtainedtoanytaxproposals or to the tax implications of new activities or bodies proposed.
• ● ContactwithHMTreasuryofficialsshouldbeginatanearlystageinpolicydevelopmentand agreementofHMTreasuryministersobtainedbeforethebillissenttothePBLCommittee for final approval before introduction into Parliament.
• ● HM Treasury agreement must also be obtained to the bill's public expenditure or public sectormanpowerimplications.Anyproposalswhichcreateachargeuponpublicfundsmust beauthorisedbyamoneyresolutioninParliament,forwhichtheapprovaloftheFinancial Secretary to the Treasury is required.
• ● Departments must have proper regard to the parliamentary timetable for approving legislation.DepartmentscannotnormallyincurexpenditureinadvanceofbothRoyalAssent of the enabling legislation and any necessary parliamentary authority through the supply estimates.
• ● See Managing Public Money for more information, or contact HM Treasury for further guidance.

Tax implications

• 18.1 Treasuryministersshouldbeconsultedonalltaxandexcisedutyproposalsattheearliest possiblestage,includinganythingthatmaybeconsideredanenvironmentaltax.Thiswillhelp to ensure that all tax matters are resolved before a bill is ready for introduction and will minimise delays.
• 18.2 Carefulthoughtshouldbegiventopotentialtaximplicationsofthecreationofnewactivities orbodieswhichmayrequireeitherexemptionorbringingintothetaxnet,andofchangesto legislationwhichisitselfreferredtointaxlaw.Thecontrolofbettingandgamingduties,road fueldutiesandenvironmentaltaxes,amongotherthings,aretheresponsibilityofHMRevenue and Customs (HMRC). Departments should consider whether social, transport or environmental legislation could affect any of these areas.
• 18.3 Wheredepartmentsconsiderthatthebillmayimpactonanyoftheseareasitisessentialto obtaintheagreementoftherelevantHMTreasuryministertothetaxordutyproposals.This process isquiteseparatefromapprovalofthebillbylegislationandpolicycommitteesand consent should be obtained before the bill is submitted for collective agreement.
• 18.4 DepartmentsshouldnotifyHMRCatthestartofthebillprocess.Officialswillthenassistthe billteamtodeterminethetaxordutyprovisionswhichmayberequiredandprovideadviceto the relevant HM Treasury minister in line with the Government's tax and environmental policies.Arrangementsforconsultingwiththedevolvedgovernmentsontaxprovisionsinbills should also be agreed with HMRC.

Public expenditure

• 18.5 HM Treasury agreement must also be obtained to any proposals in thebillwhichhave implications for public expenditure or public sector manpower.
• 18.6 Anyproposalsinabillwhichcreateachargeuponpublicfundsmustbeauthorisedbya moneyresolution,andthosewhichimposechargesofcertainkindsuponthepeopleormake certainprovisionsaboutborrowingortheuseofreceiptsmustbeauthorisedbyawaysand meansresolution.ThemotionfortheresolutionmustbeinitialledbyanHMTreasuryminister. ItisimportantthatofficialleveldiscussionswithHMTreasurybeginatanearlystagesothat ministerial agreement to the proposal can be obtained in time for the bill's introduction to Parliament.TheChiefSecretarytotheTreasuryisamemberofthePBLCommitteeandmust also give his or her approval before the bill can be introduced into Parliament.

Powers to incur expenditure (the 'Second Reading convention')

• 18.7 Departmentsshouldnotnormallyconsumeresourcesorincurexpenditureonnewservices untiltherelevantlegislationhasRoyalAssentandthedepartmenthasobtainedparliamentary authority through the supply estimates process. However, where expenditure has to be incurredurgently,itmaybepossibleoncethelegislationhaspassedSecondReadinginthe Commons.Departmentswishingtomakeappointmentstonewpublicsectorbodiesbeingset up under specific legislation should wait until the legislation has received Royal Assent, although ‘shadow’ bodies may be established to prepare the ground. In exceptional circumstances, and with the approval of HM Treasury, appointments may be made after Second Reading in the Commons.
• 18.8 Ifthepassageofthebillisdelayed,orthebillisintroducedintheLordsanddoesnotreach the Commons until later than it wouldotherwisehavedone,departmentsmustensurethat they continue to observe the guidance in Managing Public Money on powers to incur expenditure on new or substantially amended services. Delay in implementation may sometimesmeanthattheexpenditureprofilehastoberevisedinorderforthatexpenditureto remain consistent with the general regularity and propriety principles of public expenditure.

19. HANDLING STRATEGIES

Key points

• ● Billteamsshouldprepareaparliamentaryhandlingstrategyandawiderstakeholder/media handlingstrategyinconsultationwiththeGovernmentWhips'OfficesintheCommonsand Lords and with the departmental press office respectively.
• ● Theparliamentaryhandlingstrategyinparticularshouldbealivingdocument,helpingthebill teamtocrystalliseitsapproachandprioritiseresources.Furtherguidanceisavailablefrom the Government Whips' Office in the Commons and in the Lords.
• ● A handling strategy for a Statutory Instrument, if itisrequired,shouldbeprovidedtothe Whips before the SI is laid andmade.AhandlingplanwillbecommissionedbythePBL Secretariat as part of the triage process and if you are in doubt about whether one is required, you should liaise with them directly.

Handling strategies – the basics

• 19.1 Aparliamentaryhandlingstrategy(coveringbothHouses)mustbesubmittedalongsidethe billwhenthePBLCommitteeconsidersitbeforeintroduction.Thebillteamwillalsoneedto prepareawiderstakeholder/mediahandlingstrategy.Thenatureofthestrategieswilldepend onthelengthofthebillandthelevelofcontroversybutasageneralguidetheparliamentary handling strategy should:
• ● Setoutwhichareasarelikelytobecontentious,basedonanawarenessofthemoodofthe House, the particular interests of individual MPs / peers and wider public narrative;
• ● Identify those MPs / peers likelytotakeaparticularinterestandwhatengagementwith them is planned;
• ● Includedetailsofanybriefingsforallmembersbyministers,discussionswithMPsheldby officials, media work by ministers etc; and
• ● Include a plan for responding to amendments that could come up on the bill (and are considered likely to be in scope).
• 19.2 ParliamentaryhandlingstrategiesshouldbedraftedinconsultationwiththeWhips’Offices andclearedbydepartmentalwhipsandministers.Examplesoftheseareavailablefromthe PBL Secretariat on request.
• 19.3 The wider stakeholder / media handlingstrategyshouldbepreparedinconjunctionwith press offices and communications experts in departments and should:
• ● identifytheconcernsofstakeholders,andrecognisethatkeystakeholderswillexpecttobe engaged early and throughout the bill's progress;
• ● list the key stakeholders, their position, and how the relationship will be managed;
• ● listthemainissueswhichhaveorarelikelytoarise,thegroupslikelytoraisethemand why, setting out the Government's position on the issueandwhatactionhasorcanbe taken to resolve the issue;
• ● set out planned actions, including details of any press launches and other media work;
• ● consider setting up an advisory panel representing key stakeholders; and
• ● include a core media script and press notices.
• 19.4 The bill team should work closely with press office, especially on the media handling strategy, if possible via a dedicated point of contact.
• 19.5 Preparinghandlingstrategieswillhelpthebillteamtocrystallisetheapproachandprioritise resourcestowardsthoseareaswherepoorhandlingwouldbemostlikelytohavethegreatest impact on the bill. It will also provide an assurance to the PBL Secretariat and the PBL Committee that the bill team has thought through the issues carefully andanindicationof where the greatest pressures are likely to arise.
• 19.6 The parliamentary handling strategy in particular should be a living document, updated throughoutthepassageofthebillandcruciallyalwayslookingandplanningaheadtothenext parliamentary stage and beyond. The strategy will be particularly crucial should the Government suffer defeats or should the bill go into ping-pong. Possible concessions and fall-back positions, and the handling these will require, should be set out in the strategy.

20. PBL APPROVAL FOR INCLUSION IN THE PROGRAMME AND INTRODUCTION TO PARLIAMENT

Key points

• ● The PBL Committee's approval must be obtained before the bill can be introduced into Parliament or published in draft.
• ● ThebillministermustattendameetingofthePBLCommitteebeforethebillisintroduced.In advance, they must circulate the latest draft of the bill, explanatory notes, a bill memorandum,impactassessment(ifneeded),alegalissuesmemorandum,aparliamentary handling strategy, and a delegated powers memorandum (if needed).
• ● Atthemeetingthebillministerwillbeaskedtosummarisethemainprovisionsofthebill, confirmthatitisreadyforintroductionandsetoutanyparticularhandlingissues.Ifthereare nooutstandingissues,itislikelythatthecommitteewillthenapprovethebillforintroduction on the agreed date “subject to any minor or drafting amendments”.

King's Speech

• 20.1 TheCabinetSecretariat,workingwithNumber10,willdrafttheKing’sSpeechandprovide coordinationforthesupportingdocuments.Asthespeechisshort,itisnotnormallypossible to include references to all of the bills that the Government plans to introduce. Instead, referencetootherbillsmaybemadeinthesupportingdocuments(includingthelobbypack published alongside the programme, the Prime Minister's statement following theGracious SpeechandthewrittenministerialstatementissuedbytheLeaderoftheHouseofCommons the day after the speech).
• 20.2 Billteamswillalsobeaskedtoprovidebackgroundbriefingonthebillforthesubsequent parliamentary debates on the King’s Speech.
• 20.3 Billteamsshouldensurethatdepartmentalpressofficesarereadytohandleanyinquiries asaresultofthebillbeingannouncedintheKing’sSpeech,particularlywherethebillishigh profile.Toassistwithplanning,thePBLSecretariatwillaimtoinformbillteamsoftheirtarget weekforintroductionwellinadvanceoftheKing’sSpeech.Businessmanagerswillwantto ensure that a good number of high-profile bills are introduced in thefirstweekofthenew session.

PBL Committee papers for clearance for introduction to Parliament

• 20.4 ThePBLCommittee’sagreementisneededbeforeabillcanbeintroducedintoParliament orpublishedindraft.ThePBLSecretariatwillarrangeameetingofthecommitteetoconsider the bill's readiness and handling. This will normally be in theweekleadinguptoorofthe scheduled introduction date.
• 20.5 Theministerinchargewillbeinvitedtoprepareamemorandumonthebillandtoattend themeeting.ThememorandumshouldbepreparedusingthetemplateprovidedbythePBL Secretariat.Itmustbecirculatedaweekbeforethemeetingandbeaccompaniedbytheother paperslistedbelow.ParliamentaryCounselwillnormallysupplythetextofthebillitselfdirectly to the PBL Secretariat.
• 20.6 The full set of papers required by the PBL Committee before it will approve a bill for introductionislistedbelow.ThePBLSecretariatcanprovidetemplatesandrecentexamples of these to bill teams on request:
• ● latest draft of the bill;
• ● final explanatory notes;
• ● PBL Committee memorandum;
• ● legalissuesmemorandum(clearedwiththeLawOfficers)andifrequired(forexample, due to lengthy analysis) a separate ECHR memorandum for the JCHR Committee;
• ● impact assessment (if needed) and Regulatory Policy Committee opinion (if applicable);
• ● parliamentary handling strategy covering both Houses; and
• ● delegated powers memorandum (if needed).
• 20.7 ThePBLSecretariatwillcirculatetheagendaandpapersforthemeetingaweekbeforethe meeting.

The PBL Committee meeting

• 20.8 At the meeting, the Leader(aschairofthecommittee)willgenerallyasktheministerto brieflysummarisethemainprovisionsofthebill,confirmthatitisreadyforintroductionand indicate the overall parliamentary handling strategy. Theywillbeaskedtocommentonthe delegated powers or devolution position where relevant.
• 20.9 The Committee will be primarily concerned with questions of timing, handling and the resolutionofanyoutstandingissues.Theminister'spresentationshouldthereforecoverany last-minute developments not included in the memorandum. This could include any arrangementsforpublicity,andanydepartmentalorparliamentarypointswhichotherministers atthemeetingcanbeexpectedtoraise.Thisisalsoagoodopportunityforthebillministerto makeanyrequestsforRoyalAssentbyaparticulardate(thoughBusinessManagerswillnot be able to offer any guarantees).
• 20.10 Bill teams should discuss with thePBLSecretariatwhatissuesarelikelytoariseatthe meeting.Policyissueswillnotbereopenedatthisstageunlesstheygiverisetoasignificant handlingissue.PolicymustbeclearedbyCabinetortherelevantpolicycommitteebeforethe bill is presented to the PBL Committee.
• 20.11 The PBL Committee will always wish to know that:
• ● the bill will be ready for introduction on the date specified and there are no planned (non-concessionary) government amendments;
• ● the explanatory notes are ready;
• ● the impact assessment is satisfactory, as confirmed by a Regulatory Policy Committee opinion;
• ● the work on the bill's compatibility with the ECHR is satisfactory and the section 19 statement on compatibility with Convention rights has been signed;
• ● there are no other outstanding legal issues and any retrospective provisions or early commencement provisions have been agreed by the Law Officers;
• ● the territorial extent and any implications for the devolved governments have been agreed;
• ● handling strategies are in place;
• ● HM Treasury is content with any financial implications of the bill; and
• ● the minister can justify the proposed level of scrutiny for any delegated powers in the bill.
• 20.12 Multiplebillsmaybecoveredinasinglemeeting.Thebillministershouldonlyattendthe portion of the meeting relevant to their bill (unless they are also a member of the PBL Committee).
• 20.13 Ifalltheabovepointshavebeensatisfied,itislikelythatthecommitteewillthenapprove the bill for introduction “subject to any minor or drafting amendments”.
• 20.14 If there are unresolved issues (which should arise only exceptionally at this stage) the committee may decide that they should reconsider the bill after they have been dealt with.
• 20.15 TheCommitteemayalsotakedecisionsabouthowthebillistobehandledatlaterstages of its progress through Parliament (for example, whether any special procedures such as SecondReadingCommitteeshouldberecommended)andthetargetdateforachievingRoyal Assent.
• 20.16 IfabillislikelytoneedCommitteeofthewholeHouseintheCommons,orifMPsmay argueforthis,thePBLSecretariatandtheGovernmentWhips'OfficeintheCommonsshould be alerted at the earliest opportunity. There are various reasons for committing a bill to a Committee of the whole House: it may need to be passed with speed,itmaybeofmajor constitutionalsignificanceorbecontroversialinwayswhichtranscendnormalpartydivisions, or it may be so uncontroversial that no amendments are expected.
• 20.17 The senior ParliamentaryCounselworkingonthebillwillattendthemeetingofthePBL Committee, but it is exceptional for officials to attend and does not usually extend to departmental officials. AnyexceptionalattendancemustbeagreedwiththeSecretariatand chair (but is rare).

Decision on House of introduction

• 20.18 The Business Managers will decide whether the bill should start in the Lords or the Commons,andmayconfirmthisinthemeeting.Theiraimistoensureabalancedprogramme in both Houses.
• 20.19 AbillwillnormallystartintheCommonsifoneofitsmainfeaturesistoprovidefornew public expenditure or impose a charge on public funds but bills in which thecreationofa charge is a subsidiary matter can start in the Lords. Bills that have major constitutional implications have tended to start in the House of Commons. The PBL Committee memorandum will need to makeclearwhetherornotintroductioncouldbeineitherHouse (thoughanypressingrequestsshouldalsohavebeenputtothePBLSecretariatatanearlier stage).
• 20.20 Itisimportantforthebalanceoftheprogrammethatthereshouldbemajorbillssuitablefor the Lords ready at the beginning of the session.

Preparing for introduction

• 20.21 Billteamsshouldcheckwiththeirminister'sPrivateOfficewellinadvanceofintroduction the minister's preferences for documents, box notesandspeakingnotes.Itisalsogoodto book tentative briefing slots with the minister and findouttheirpreferredstyleandlevelof detail for briefing well in advance. The bill team should also ensure that everybody in the departmentwhoisinvolvedinthebillisclearonthedivisionofrolesinsupportingtheminister andcompletingotherbilltasks,toavoidwastefulduplication.Forexample,theyshouldagree withtheirparliamentarybranchtheprocedureforreceivingamendments,marshalledlistsand copies of Hansard.
• 20.22 The bill team should remind the minister's office that parliamentary business must take precedenceoverallotherbusiness. WhilebillteamsmaywishtoalerttheGovernmentWhips' Officesofanyothermajorcommitmentsthebillministermayhaveduringtheparliamentary stagesofthebill,forexample,aplannedoverseasvisit,itisveryunlikelythatthewhipswillbe abletorescheduleanyofthebill'sstagestotakeaccountoftheminister'sothercommitments. The bill team should alert the minister's Private Office to dates as soon as they are agreed.

21. PUBLICATION IN DRAFT AND PRE-LEGISLATIVE SCRUTINY

Key points

• ● The Government is committed to, wherever possible, publishing bills in draft for pre-legislative scrutiny; the minister should write to the PBL Committee seeking initial agreementtotheprincipleofpublishingthebillindraftforpre-legislativescrutinybeforeabill is drafted.
• ● Pre-legislativescrutinyisnormallycarriedoutbytherelevantCommonsdepartmentalselect committee,oranadhocjointcommitteeofbothHouses.Thiswillbesubjecttonegotiation withtheusualchannelsbutagreementinprincipleshouldbeobtainedbeforeseekingfinal PBL Committee approval to publish the bill in draft (working with the Whips offices).
• ● Whenthebillisreadytobepublishedindrafttheministermustseekclearancetodoso, circulatingaPBLCommitteememorandumincludingthedraftbill,explanatorynotes,impact assessment and legal issues memorandum.
• ● Draft bills shouldbepublishedintimetogivethecommitteecarryingoutscrutinyatleast threetofourmonths(excludingparliamentaryrecess)tocarryoutitsworkandstillreportin time for the department to make any necessary changes before the bill is introduced.
• ● Publicationindraftdoesnotguaranteeintroductioninthenextsession,sothedepartment must bid for a slot for a programme bill even as it is preparing a draft bill.
• ● FurtherguidanceisavailablefromthePBLSecretariatandtheCabinetOfficeParliamentary Adviser. You should contact your departmental parliamentary clerk in good time for information on laying documents before Parliament.

Suitability of bills for publication in draft

• 21.1 TheGovernmentiscommittedtopublishingmoreofitsbillsindraftbeforetheyareformally introduced to Parliament, and to submitting them to a parliamentary committee for parliamentary pre-legislative scrutiny where possible.
• 21.2 ThePBLCommitteewillgiveconsiderationtoproposalstopublishpartsofabillindraft where it is not feasible to publish the whole bill in draft.
• 21.3 ThechairofthePBLCommitteewillaskministerstoconsiderwhetherbillsforwhichthey arebiddingforlegislativetimearesuitableforpublicationindraft,aswellasinvitingbidsfor bills specifically intended for publication in draft in the first instance.
• 21.4 There are a number of reasons why publication in draft for pre-legislative scrutiny is desirable.Itallowsthoroughconsultationwhilethebillisinamoreeasilyamendableform,and makesiteasiertoensurethatbothpotentialparliamentaryobjectionsandstakeholderviews areelicited.Thiscanassistthepassageofthebillwhenitisintroducedtoparliamentatalater stage and increases scrutiny of government legislation.
• 21.5 ThedecisiononwhichbillswillbepublishedindraftisforthePBLCommittee,takinginto accounttheoverallrequirementsofthelegislativeprogramme.Somebillsmaynotbesuitable forpublicationindraft,forexamplebillsthatareneededtomeetinternationalcommitments wherethereislittleflexibilityaroundimplementation,billstoimplementbudgetcommitments, or bills which must reach the statute book quickly.

PBL Committee approval for publication in draft

• 21.6 PBLCommitteeagreementisneededtodraftanybill,whetherforpublicationindraftorto introduce a final bill into Parliament.
• 21.7 After the King’s Speech, the Leader of the House of Commons writes to the House of CommonsLiaisonCommitteelistingthebillswhichtheGovernmentexpectstopublishindraft thatsession,andtheirprovisionaldateofpublication.TheLeaderoftheHouseofLordswill also write to the Liaison Committee in that House in similar terms. This allows the usual channels to negotiate scrutiny arrangements for a package of draft bills.
• 21.8 InadvanceoftheKing’sSpeech,thePBLSecretariatwillassesstheprogressofallbills being prepared for publication in draft and confirm with departments which bills will be includedinthelistsenttotheLiaisonCommittee.Inthelightofconsultations,thebusiness managers will bring forward proposals for the establishment of ad hoc joint committeesto undertakepre-legislativescrutinyinthecourseofthesession.Otherdraftbillsarelikelytobe subject to pre-legislative scrutiny by an existing select committee.
• 21.9 TheGovernmentmaypublishfurtherdraftbillsordraftclausesduringthesessionwhich werenotincludedinthelettertotheLiaisonCommittee.TheLeadersineachHousewillwrite to the Commons and Lords Liaison Committee to update them on this.
• 21.10 DraftbillsarenormallyclearedbythePBLCommitteebycorrespondenceratherthanina meeting.ThebillministerwillneedtowritetothePBLCommittee,allowingatleastsixsitting daysforcolleaguestocomment(nineworkingdaysoverarecessperiod)andfourdaysfor clearance to be arranged in time for the draft bill to be published on the date agreed. Clearance is not granted until the chair of the committee has signed a letter confirming agreement to publication. The bill minister should attach the following papers to the letter seeking clearance:
• ● the latest draft of the bill;
• ● explanatory notes;
• ● bill memorandum;
• ● delegated powers memorandum;
• ● legal issues memorandum; and
• ● impact assessment (if needed).
• 21.11 In place of a parliamentary handling strategy, details of the proposed arrangements for pre-legislative scrutiny(whichshouldbeagreedwiththebusinessmanagersandsubjectto agreementwiththeusualchannels)shouldbeincludedinthePBLCommitteememorandum. Thisshouldincludethepreferredtimetableforcompletionofpre-legislativescrutinyandthe Government's response to the recommendations, and any public consultation.
• 21.12 DraftbillsshouldbepublishedandlaidbeforeParliamentascommandpapers.Thisneed notrequirecostlywhitepaper-stylepublication.Theexplanatorynotesandimpactassessment shouldbepublishedalongsidethedraftbill.Whereadraftbillincludesdelegatedpowers,a delegatedpowersmemorandumshouldbepublishedalongsidethedraftbillandacopysent totheDPRRC. Departmentsshoulddiscusslayingcommandpaperswiththeirdepartmental parliamentary clerk.
• 21.13 ThereisnorequirementtoseekKing’sconsentbeforeadraftbillispublished,thoughout ofcourtesythedepartmentmightwishtoalertthePalacetoanydraftbillwhichsignificantly affects the Crown's interests.

Parliamentary pre-legislative scrutiny

• 21.14 Parliamentarypre-legislativescrutinymaybecarriedoutbyavarietyoftypesofcommittee. The options are:
• ● Commons departmental (or cross-cutting) select committee;
• ● Joint committee of both Houses (usually ad hoc);
• ● Ad hoc Commons or Lords committee;
• ● Separate but parallel committees in each House; or
• ● Two or more existing committees meeting concurrently.
• 21.15 The bill minister should indicate the preferred option evenattheearlystageofseeking agreement to the principle of publication in draft, as business managers will take this into account whilst considering the overall needs of the legislative programme. OncethePBL Committeehasagreedapreferredoption,thechoiceofroutewillstillbesubjecttonegotiation withtheusualchannelsanddiscussionswiththerelevantcommitteewhomay,forexample, press for Lords involvement. The factors to consider include:
• ● whetherthedraftbillislikelytobeofparticularinteresttooneHouseratherthanthe other;
• ● whethertheGovernmentdecliningtoinitiatetheappointmentofajointcommitteewill lead to later handling difficulties;
• ● whether the bill engages the responsibilities of more than one department; and
• ● whether an existing select committee has already built up expertise in the area through a previous inquiry such as an inquiry into a related green paper.
• 21.16 IngeneralthereisanexpectationthattheCommonsdepartmentalselectcommitteewillbe thechosenrouteunlessthereisreasontothecontrary,thoughthereisalsosomethingofan expectation that if possible there will be two/ three joint committees in any one session. Departmentsshouldbearinmind,however,that,inthecaseofanexistingselectcommittee,it isforthecommitteetodecidewhetheritwishestoundertakethiswork.Incontrast,anad-hoc committeeistaskedspecificallytocarryoutthework.Anexistingselectcommitteeismore likelytobewillingtodosoifithassufficientwarningthatitcanbuildscrutinyofthedraftbill into its programme of work for the session.
• 21.17 An ad hoc joint committee requires a series of motions in each House and complex negotiation with the usual channels (over membership etc.), although departments can expresstheirpreferencesonwhomightbesuitabletochairthecommitteeandthedateby which it could report. The necessary negotiations and motions take time.
• 21.18 The bill team should discuss the options with the PBL Committee, the Cabinet Office Parliamentary Adviser and the Government Whips' Offices in the early stage of planning pre-legislativescrutiny.Incaseswheretheusualchannelsproposeajointcommittee,existing committeescannot,iftheysowish,bepreventedfromcarryingouttheirowninquiryinparallel, but effective early informal discussions can help to prevent this.
• 21.19 Dependingonotherprioritiesinthesession,adraftbillmaynotbepickedupforformal parliamentarypre-legislativescrutinybyanycommitteebutwillstillbenefitfromhavingbeen publishedindraft,giventheopportunityforinformalscrutinybyparliamentariansandforpublic consultation.

Timetable for parliamentary pre-legislative scrutiny

• 21.20 Parliamentary pre-legislative scrutiny should be completed in time for any resulting amendments to the bill to be made in time for introduction to Parliament to the timetable agreed with the PBL Committee (assuming the bill is to be introduced to Parliament the following session).
• 21.21 If the bill is to be taken by an existing committee, departments should liaise with the committeeclerktoidentifyamutuallyconvenienttimetable.Ifanadhoccommitteeistobe appointedtoexaminethebill,additionaltimeneedstobeallowedforparliamentaryagreement of the motions to establish the committee.
• 21.22 Adatefortheadhoccommitteetoreportwillprobablybesetinthemotionsappointingit. The bill team may wish to discuss timingswiththeGovernmentWhipsOfficeonwhatisa realistic deadline. Motions are required in both Houses and tabled by the Whips’ Offices.
• 21.23 It may also be helpful to discuss practicalities with the Scrutiny Unit in the House of Commonsand,whereajointcommitteeisapossibility,withtherelevantclerkintheHouseof Lords.
• 21.24 AjointcommitteemadeupofMembersoftheHouseofCommonsandHouseofLordsis expectedtobeappointedtomakerecommendationsonthedraftBill.Afteritisappointed,the jointcommitteemayinvitewrittencontributionsandislikelytoholdhearingstoinformthose recommendations. You can find more information on joint committees on the Parliament website and also about how select committee inquiries work. You can contact draftbills@parliament.ukto ask to be informed whenthe joint committee’s inquiry begins.
• 21.25 Generallyacommitteewillneedatleastthreetofourmonthstotakeevidenceandreport (notincludinglongrecesses).Wheredraftbillshavenotgivencommitteessufficienttimeto scrutinise, this has led to serious criticism.
• 21.26 Earlierpublicationmeansthecommitteewillreportearlier,givingthedepartmentmoretime tomakeanychangestothebillasaresultofpre-legislativescrutinybeforeintroducingthebill to Parliament at the beginning of the next session.

The committee inquiry

• 21.27 A committee inquiry will usually involve the following stages:
• ● Initial information:The department may be asked forbackground information in advance of publication of the draft bill. Early and co-operative engagement with the committee staff is recommended.
• ● Evidence to the committee: the Minister is likelyto be asked to give oral evidence to the committee at some stage during the inquiry;
• ● In addition to the draft bill and explanatory notes, the department may be asked to submit additional written evidence;
• ● If the draft bill amends existing legislation, the committee is likely to request a consolidated version of the existing legislation, which highlights the amendments proposed by the draft bill;
• ● Evidence is usually taken in public; and
• ● Bill teams may be asked to attend the public evidence sessions and even to respond to questions during them. This also helps keep the department informed of issues likely to be raised in the committee's report.
• ● Committee report: Committees decide for themselveshow to work, and actual practice will vary, but it is generally expected that the committee will not challenge the overall aim of the bill or become too involved in detailed drafting points. However, the committee may recommend that amendments be made to the bill before introduction, or propose that additional matters should be included in the bill.
• ● Government's response: It is for the Government todecide whether or not to accept the committee's recommendations
• ● In some cases, for example where all the committee's recommendations were accepted or where there is very little time, the bill itself may be sufficient as a response. It is usual, however, for the Government to make a formal response to the committee's report;
• ● In the case of an ad hoc or joint committees, it will not be possible to respond with a memorandum, as the committee will no longer exist, and the response should be published as a command paper (the clerk of the former committee should be kept fully informed). Copies should also be sent to the members of the former committee;
• ● While the usual two-month deadline for responses to committee reports applies, the committee may be willing to allow longer, perhaps to fit the timetable for introduction; and
• ● The committee and wider stakeholders will want to know how the bill has changed as a result of pre-legislative scrutiny, so departments should have a list of changes available on introduction, perhaps in a narrative document accompanying publication of the final bill.

Wider pre-legislative scrutiny – public consultation

• 21.28 Parliamentarypre-legislativescrutinyisonlyonepartofpre-legislativescrutiny.Evenifthe bill is not formally scrutinised by a committee thereisstillvaluetopublishingitindraftfor stakeholders and those who will be affected by the bill.
• 21.29 Departmentsmaythereforewishtopublishaconsultationdocumentorwhitepaperatthe sametimeas,orbefore,thedraftbill.Thisshouldincludeacopyoftheimpactassessment. The normal arrangements for public consultation, as set out in the consultation principles apply.
• 21.30 Departmentswillneedtoconsiderhowthispublicconsultationfitsinwiththetimetablefor parliamentarypre-legislativescrutiny,bearinginmindthatthecommitteemaywishtoseethe results of the public consultation before reporting.

SECTION C

ESSENTIAL GUIDANCE FOR BILL TEAMS

22. AMENDMENTS

Key points

• ● Every amendment the Government makes to a bill delays its progress. Government amendmentstobillsafterintroductionmustthereforebekepttoaminimumandwillonlybe agreedbythePBLCommitteeiftheyareconsideredessentialtoensurethatthebillworks 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 a government defeat, to offer a compromise amendment or to accept other non-government amendments.
• ● An exception may be made for minorandtechnicalamendments,butthesemustfirstbe discussed with the PBL Secretariat. Bill teams should alert the PBL Secretariat to any proposed amendmentsattheearliestpossiblestageandbeforetheministerwritestothe PBL Committee seeking clearance.
• ● TheGovernmentshouldalwaysaimtotableamendmentsatleastonesittingweekbefore theyareduetobedebated,especiallyintheLords.Thisconventionisinplacetoensurethat members and peers have sufficient time to consider the amendments before they are debated. All government amendments require an explanatory statement,inplainEnglish, setting what an amendment will do.
• ● ParliamentaryCounselwilldraftgovernmentamendmentsandwillneedtobeinstructedin good time.
• ● If the Government tables amendments involving delegated powers, a further (supplementary)memorandummustbepreparedfortheDPRRC,whomayreportagainif they have already considered the bill.
• ● Where an amendment raises significant legal issues or early commencement or retrospection,billteamsshouldbeliaisingwiththeAttorneyGeneral’sOfficeandtheLegal SecretariattotheAdvocateGeneralpreferablytwoweeksbeforethePBLwriteroundletter seeking consent to the tabling of the amendment.
• ● You should read the relevant sections on amendments in the chapters relating to the CommonsandLordsforfurtherinformationonmanagingamendmentsinbothHouses:see paragraphs 29.39, 30.3, 35.5, 36.5 and 36.11, and Chapter 37 on ping-pong.

Types of amendments

• 22.1 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,forexample,tobodiesthathavechangednamesincethebillwasintroduced. Minor and technical amendments do not impact at all on the substance of the bill and should therefore not take up any time at all in debate15. Departments should note that “minorandtechnical”isacategoryrecognisedbyGovernmentforthepurposeofseeking collective agreement, but not by Parliament;
• ● Concessionary-amendmentswhicheasebillhandling.Theyarebroughtforwarddirectly toaddressapointraisedbyamemberofeitherHouseinanearlierdebateonthebillor offeranalternativetonon-governmentamendmentswheretheGovernmentislikelytobe defeated.AmendmentsinresponsetorecommendationsoftheLords'DelegatedPowers and Regulatory Reform Committee, the JointCommitteeonHumanRightsoranyother selectcommitteeofeitherHousewillalwaysbeconsideredconcessionary.Anamendment maybeconsideredconcessionaryifbroughtforwardinresponsetoapointraisedabout thebillfromoutsideParliamentbutonlyifthereislikelihoodthatthispointwouldberaised in Parliament at a later stage in the bill’s passage. In some cases, concessionary amendments may only be acceptableiftheyarenecessarytoavoidadefeat.Thisalso includes amendments in response to a government defeat - accepting, overturning or offering a compromise amendment;

15 Renumbering as a consequence of amendments made to the bill, and certain types of typographical corrections, will be made as part of the reprinting process on request to the relevant Public Bill Office and do not require explicit amendments to the bill. Parliamentary Counsel can advise on this point.

• ● 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. correctingsomemajorerrorinthebillordealingwithasituationwhichcouldcausemajor problemsifthebillwentontothestatutebook.Thisalsoincludesdraftingandtechnical changes essential to deliver the policy in the bill;
• ● Desirable–allnewareasofpolicy,eveniftheydonotwidenthebill’sscope.Alsoany issueswhichareproposedtobeaddedtoabillwhicharenotessentialbutmerelyanew policy idea where the bill is being used as a vehicle and there is no pressing time consideration.

Preparation of bills

• 22.2 ThePBLCommitteegrantsdraftingauthorityforspecifiedpolicyareas.Clearancewillneed tobesoughtfromthecommitteeforanynewpolicyareastobeaddedtoabillwhilstitisbeing drafted;thecommitteeislikelytorefuseanyrequestsforadditionaldraftingauthorityunless operationalnecessitycanbedemonstrated.Newareasshouldnotbeaddedbyamendmentif they were not given initial drafting authority.
• 22.3 WhenabillisputforwardtothePBLCommitteeforclearancetobeintroduced,oneofthe keyquestionsmemberswillasktheministerandParliamentaryCounseliswhetherthebillis fullyreadytobeintroduced. Thisisnotaformality. Ifthecommitteeisnotsatisfiedonthis point and feels thatthereisstillpolicydevelopmentordraftingneededwhichmayresultin government amendments after the bill’s introduction, the committee can, and does, refuse clearance. Thiscannotonlydelayabillbutmayresultinitslosingitsslotaltogetherinthat year’slegislativeprogramme. Itisthereforeessentialthatdepartmentsensureallthepolicy forthebillissettledseveralmonthsbeforeintroductionsothattheycaninstructParliamentary Counsel, in tranches if necessary, before a bill is to be introduced.

After introduction – clearance of amendments

• 22.4 Once a bill has been introduced, government amendments and acceptance of non-government amendments must first receive clearance from the PBL Committee and (wheretheyarenotwithinagreedpolicyclearance)therelevantpolicycommittee.Agreement is normally sought through correspondence, though a meeting may sometimes be called, particularly to consider handling of bills during ping-pong.
• 22.5 ClearanceofamendmentsfollowsthesamerulesasallothertypesofCabinet/Cabinet committeeclearance;ministersmustbegivensixclearworkingdaystorespond(ninewhere anypartoftheperiodfallsduringrecess).Inaddition,departmentsshouldallowatleastfour days from the time that they submit a completed ring-round sheet to PBL Secretariat and whentheywishtotabletheamendment(s).Thesetimelinesmayonlybeshortenedwiththe express permission of the Cabinet Secretariat (in discussion with the Cabinet Secretary’s office).Intheeventthatinsufficienttimeisallowedforministerstoconsideramendments,the Secretariatwillrecommendthatclearanceisnotgranted.Thelettershouldquiteclearlyset outthedeadlinebywhichministersshouldrespondandthedatebywhichclearanceissought in order to table the amendments.
• 22.6 Where an amendment raises significant legal issues or early commencement or retrospection, bill teams shouldbeliaisingwiththeAttorneyGeneral’sOfficeandtheLegal SecretariattotheAdvocateGeneralpreferablytwoweeksbeforethePBLwriteroundletter seeking consent to the tabling of the amendment.
• 22.7 Letters seeking clearance for amendments should set out whether amendments are essential, desirable or concessionary and should provide a justification as to why the amendmentsfallintooneofthesecategories.Thedescriptioninthetemplateshouldalsoset outwhattheamendmentwoulddo,withoutrecoursetolegaljargonorreferencestoclauses, aimed at a reader who is unfamiliar with the bill or the policy area. It should include an assessmentofthelikelyhandlingimplications,includingwhatlevelofsupportoroppositionit islikelytoreceive,bothinsideandoutsideParliament.Furtherdetailshouldbeprovidedinthe amendment table annex, provided by the PBL Secretariat.
• 22.8 ThePBLCommitteethenassessestheimpactonthebillinquestion(forexample,willit delay thebill'spassageormakethishardertoachieve)andontherestoftheprogramme. Letters and amendmentstemplatesshouldsetoutanyimplicationsintermsoftheanalysis presentedintheimpactassessmentpreparedatanearlierstage(including,forexample,the costs and benefits for businesses, civil society organisations and the public sector),ofthe devolved governments and any delegated powers.
• 22.9 The letter does not need to rehearse the benefits of the bill or provide any other backgroundinformationbeyondthatdirectlyrelevanttotheproposedamendment.Theletter should not assume that members of the PBLCommitteehaveacopyofthebillinfrontof them. Rather than saying, for example,thattheamendmentwouldinsert“words”inclause 22(a), it should describe the practical effect of the proposed amendment.
• 22.10 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 describethe effectoftheamendmentsinfull.Itisworthgettinganindicationfromthesecretariatwhether 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 draftthemas,assumingtheyare agreed, they are otherwise unlikely to be ready to table in time.
• 22.11 Iftheamendmentaffectstheagreedpolicyforthebill,theagreementoftherelevantpolicy committeemustalsobeobtained.Thiscanbedonethroughasingleletteraddressedtothe chairsofbothcommittees,statingthatclearanceisbeingsoughtfrombothcommittees.The lettershouldsetouttheeffectofthechangeinpolicy,includinganycostsandhowthesewill be met, and the consequences of doing nothing.
• 22.12 MinorandtechnicalamendmentsdonotneedformalPBLCommitteeclearance. However, departments should never assume that an amendment is minor and technical; bill teams shouldsharedetailsofallpossibleamendmentswiththePBLSecretariatwhowillmakethe final judgment. Where amendments are minor and technical (usually with advice of Parliamentary Counsel), the secretariat will confirm that these amendments do not require formalclearance.Undernocircumstancesshouldamendmentsbetabledwheretheydonot have formal clearance or written confirmation from the secretariat.
• 22.13 Allamendmentswhicharegivenclearanceforaparticularstage,butwhichforanyreason arenottabledatthatstage,mustbebroughtbacktothePBLCommitteebeforetheycanbe tabled at a later stage.
• 22.14 At Committee Stage, any non-concessionary amendments should be shown by the bill ministertobeessential.Amendmentsthatarepurelydesirablearenotlikelytobepermitted. The below table summarises the likelihood that will be considered acceptable:

Stage Amendments permitted Desirable Essential Concessionary

Committee Stage (first House) Very unlikely Yes Yes Report Stage (first House) Very unlikely Very unlikely Yes Third Reading (only in the Lords, when the Lords is the first House) No Very unlikely Very unlikely

All stages (second House) Very unlikely Very unlikely Yes

• 22.15 Inconsideringwhethertoseekclearanceforgovernmentamendments,departmentsand bill ministers should consider the above guidance carefully and should not waste the PBL Committee’s time by putting forwardamendmentswhicharepurelydesirableoreven,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

• 22.16 If the secretariat considers thatthePBLCommitteeisunlikelytoagreetotheproposed amendment,itmayadviseagainstseekingclearance.Ifalargenumberofamendmentsare proposed,thesecretariatmayadvisethedepartmenttoreconsiderandseekclearanceonly for a smaller number of amendments.
• 22.17 Even if no other member of thePBLCommitteeobjectstoaparticularamendment,the secretariat will scrutinise all requests for clearance and will advise the committee chair to refuseclearanceforallorsomeamendmentsiftheyeitherdonotcomplywiththisguidanceor if they do not sufficiently justify an amendment to enable a judgement to be made.
• 22.18 Asprogrammesareintendedtoprovidereasonabletimefordiscussionoflegislation,the usualchannels,includingthebillwhipand,throughthem,oppositionparties,willneedtobe keptabreastofthelikelyscaleofgovernmentamendments.Itisimportantthereforethatthere isgoodcommunicationaboutamendmentsbetweenthebillteam,parliamentarybranchand the Government Whips' Office, throughout the bill's passage.
• 22.19 IftheGovernmentbringsforwardsignificantlymoreamendmentsthanwereexpected,the oppositionwillhavecauseforcomplaint.TheGovernmentshouldavoidhavingtorepeatedly revise programmes because significant government amendments were not signalledatthe relevant stages.

Other things to consider

• 22.20 Just as departments should stay in close touch with the Scotland, Wales andNorthern Irelandofficesandthedevolvedgovernmentsduringthedevelopmentofpolicyanddraftingof a bill, so any potential amendmentsthatwouldaffectthedevolvedgovernmentsshouldbe discussedwiththeterritorialofficesearlyon,toensuretimelyagreementcanbereachedwith the devolved governments if necessary.
• 22.21 An updated impact assessment should be provided for amendments that would significantlyalterthecostsorbenefitsofthebillorcreatenewregulatoryburden.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.
• 22.22 Ifamendmentsinvolvingnewdelegatedpowersorchangingexistingdelegatedpowersare tabledduringthepassageofthebill,asupplementaldelegatedpowersmemorandummustbe preparedandsubmittedtotheLordsDelegatedPowersandRegulatoryReformCommittee. Thisshouldbesubmittedonthedaytheamendmentsaretabledatthelatest.TheCommittee may report again inrespectofamendments.TheGovernmenthasalsoagreedthat,where possible and where relevant, it will submit a memorandum to the Delegated Powers and Regulatory Reform Committee on any non-governmentamendmentwheretheGovernment has indicated in advance that it would support both the policy and the drafting of that amendment.
• 22.23 BillteamsshouldalsoseekadvicefromParliamentaryCounselifitisthoughtthatafurther money resolution or ways and means resolution is requiredforagovernmentamendment, though this is likelytoberareandwillrequiretimetodebateontheFlooroftheHouseof Commons.
• 22.24 The deadlines for tabling amendments are:

House of Commons

Stage Amendments Government deadline Tabling deadline

Second Reading Reasoned amendment (decline to give bill 2R) n/a Day before

Committee Essential and concessionary One week Three sitting days

Report Concessionary One week Three sitting days

Third Reading None (except 'merely verbal') n/a n/a

House of Lords

Stage Amendments Government deadline Tabling deadline for marshalled list

Second Reading Reasoned amendment (decline to give bill 2R) n/a Day before

Committee Essential and concessionary One week Two working days

Report Concessionary One week Two working days

Third Reading Tidying or to meet undertakings One week or ASAP after Report if interval is less One working day

Non-government amendments

• 22.25 Billteamsshouldkeepuptodatewithwhatisbeingsaidbystakeholders(throughdirect contact with key stakeholders and by keeping an eye on key stakeholder websites tosee stakeholderbriefings)andthemedia(byensuringthatthebillteamandpolicyleadsareonthe circulationlistfordepartmentalpresscuttings),asthiswillinfluencetheamendmentstabledby non-government MPs and peers.
• 22.26 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.
• 22.27 In other cases, however, the minister responsible for the bill may wish to accept a non-governmentamendment,eitherbecauseitrepresentsanimprovementonthepolicyset outinthebill,orbecausetheyhaveconcluded,afterdiscussionwiththewhips,thataccepting it is necessary to ensure the passage of the bill. In such cases the minister must seek clearancefromtherelevantcommittees. AdvicemustbesoughtfromParliamentaryCounsel on whether the wording is in an appropriate form. If it isnot,theministercanacceptthe amendmentinprinciple(whichtheycanonlydoifclearancehasbeengiven)andoffertotable improved wordingtomeettheintendedaimatalaterstage;ortheministercanacceptthe amendment as it stands if Parliamentary Counsel has been consulted to ensure the amendment uses the right form of words.

Government defeats

• 22.28 WhereanamendmentispassedagainsttheGovernment'sposition,theministerwillneed 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
• ● bringforwardanamendmentthatwouldmeetatleastsomeoftheconcernswhichhave been expressed.
• 22.29 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.
• 22.30 Beforedecidingtoacceptadefeat,theministershouldconsiderwhetherotherdepartments haveapolicyinterest,andthereforewhethertheagreementoftherelevantpolicycommittee aswellasthatofthePBLCommitteewouldbeneededtoacceptthedefeat.Billteamsshould alsoconsiderwhethertheamendmentaffectsthedevolvedlegislaturesandconsultterritorial offices where appropriate.
• 22.31 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 intendedlegally.Non-governmentamendmentsarenotalwaystechnicallyworkable(members donothavetheresourcesofParliamentaryCounselattheirdisposal),inpracticeacceptinga non-government amendment will mean the bill binister asks the sponsoring member to withdrawhisorheramendmentsothattheGovernmentcanbringforwardasimilarbutbetter drafted amendment at a subsequent stage. The minister will need to be in receiptofPBL Committee clearance before making this commitment to the sponsoring member.
• 22.32 If the intention is to offer a compromise or concession, PBL Committee and policy committeeclearancemustalsobesought.Inallcases,billteamsshoulddiscusstheproposed course of action with the PBL Secretariat before advising their ministers to write seeking collective agreement.

Making commitments on the floor of the House

• 22.33 Parliament will hold ministerstoanycommitmentstheymakeontheflooroftheHouse, whicharerecordedinHansard.Ministersmustthereforetakecareduringdebatesnottomake any commitments for which they do not have collective agreement.
• 22.34 Ministersmaystatethattheywillconsiderorgivefurtherconsiderationtoamatterbutthey may not state that they will bring forward an amendment unless they have clearance to do so.
• 22.35 Where the Government wishes to bring forward a concessionary amendment and has clearancetodosobuthasnotbeenabletodrafttheamendmentintimeforthatstage,the minister may wish to address concerns raised bytheHousebyindicatingtheirintentionto bring the amendment forward at the next stage.
• 22.36 Where a non-government amendmentisputdownwhichisacceptableinsubstancebut defectiveinform,anditreferstoaclausewhichwillnotbereachedforsometime,theminister could,iftheyhaveclearancetodoso,writetothemembersuggestinganalternativeformof words as drafted by Parliamentary Counsel.

Explanatory statements

• 22.37 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.Inthiscase,theexplanatory 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.
• 22.38 ThestatementswillbedraftedbyParliamentaryCounselandthenrunpastthedepartment for checking before the amendments are tabled. Theyshouldbesubmittedbytheminister alongsidetheamendment,andaretypicallynomorethanaround50wordsperstatementwith each amendment.
• 22.39 Theexplanatorystatementmustdescribetheintendedeffectoftheamendmentbutmay not bephrasedasanargumentforitsadoptionoragainsttheexistingtextof,oranyother proposed amendment to, the bill.
• 22.40 Explanatory statements are not required for bills committed to a select committee, for example,ahybridbill.TheProcedureCommittee’sreportwasnotintendedtoapplyinsucha casebutonlytobillsinCommitteeofthewholeHouse,inpublicbillcommitteeandinReport Stage.
• 22.41 Questionsastotheapplicationoftheseruleswillultimatelybedecidedbythechairofthe publicbillcommitteeconcerned,theChairmanofWaysandMeansinrespectofCommitteeof the whole House and the Speaker in respect of Report Stage.
• 22.42 Cross-referencesinthestatementstootheramendmentsarepossible,theseshouldusea systemwhichwillcontinuetobecapableofidentifyingtheamendmentconcernedevenifits boldamendmentnumberchanges.Whateversystemisadopted,cross-referencesshouldbe putinsquarebracketssoastoenablecross-referencestobefoundeasilybysearchingfor square brackets. In the Lords itwillnotbepossibletocross-refertootheramendmentsby number because amendments are only numbered at the point the marshalled list is produced.
• 22.43 Financebillsareexcludedfromthisprocess.HMTreasurypublishthetextofallFinance 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-restrictedexplanatorystatements. Treasuryministersalsowritetothechairofthepublic bill committee when government amendments are tabled explaining their effect.

23. 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 stageofdebateonthebillineitherHouse,includingdebateinCommittee)maybeusedby the courts in interpreting the statute.
• ● Particular care should therefore be taken in drafting any statements to be used by the ministerabouttheeffectorinterpretationofclausesofthebill.Billteamsshouldcheckwith the legal advisers for accuracy, who will consult Parliamentary Counsel where appropriate.
• ● Thelegaladvisershouldalwaysattendrelevantparliamentaryproceedingsofthebillaspart ofministers'officialsupport.Wherethereisdoubtaboutinterpretation,ratherthanoffering impromptuadviceitmaybebetterforministerstooffertoreflectonapointandreplyona future occasion.
• ● The bill team and legal adviser should always review the Hansard record of ministers' contributionstoadebateandconsiderwhetherthereisanyinaccuracyorotherhostageto fortune.Whereitisdecidedthattherecordneedstobecorrectedduringthepassageofthe bill,thisshouldbedoneatatimeandinsuchawaythatitwouldbecleartothecourtsinthe 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

• 23.1 FollowingthedecisionoftheHouseofLords(inPeppervHart[1993]AllER42)thecourts may, in certain circumstances, look to parliamentary material as well as to the text of the statuteitselfwhenconstruinglegislation.TheimplicationofPeppervHartisthatcourtsmay do this if three conditions are satisfied:
• ● the legislation is ambiguous or leads to an absurdity;
• ● thematerialrelieduponconsistsofastatementbyaministerorotherpromoterofthebill, together with such other parliamentary material as was necessary to understand that statement; and
• ● the statements relied upon are themselves clear.
• 23.2 Sinceclarityandtheavoidanceofambiguityarekeyobjectsinthedraftingoflegislation, theprocedureadoptedinPeppervHartshouldremainverymuchtheexceptionratherthan therule.Nonethelessdepartmentsshouldbearthispossibilityinmindandexercisegreatcare indraftingmaterialforusebyministerswhichmayfinditswayintotherecordofdebatesin either House (including their committees) and, if necessary, find a satisfactory method for correcting any significant mistakes or ambiguities whichappearinsuchrecords.Billteams should follow the steps below.
• 23.3 As far as possible, speeches and speaking notesshouldbereviewedbythebillteam's legaladviserforpossibleinfluenceoninterpretation(differentarrangementsforlegaladvice apply to finance bills). Parliamentary Counsel do not normally review speaking notesasa matterofcoursebutarehappytobeconsultedonspecificpointsifthebillteamwouldfind their input helpful.
• 23.4 Officialsshouldtakecareinprovidingimpromptuadviceoninterpretationinordertoassist a minister to answer a pointraisedduringproceedingsonabill.Wherepossible,ministers might be invited to offer to reflect on a point and reply on a future occasion.
• 23.5 Ambiguities or inaccuracies in the wording of legislation should always be put right by amendment where this is possible.
• 23.6 References tothePeppervHartjudgmentinministerialstatementsarebestavoidedas this could be taken to imply that the provision of the bill being debated is indeed ambiguous.
• 23.7 Ifitisconsideredthattheofficialrecordcannotbeallowedtostand,ministersshouldbe advisedaccordinglyandaskedurgentlytoconsiderwhatactionshouldbetaken.Ministerswill needtomakeajudgement,inthelightoftheofficialandlegaladvice,onwhetherandhowto clarify the record.Factorsinfluencingthismightincludethepossibleeffectoninterpretation 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 shouldalwaysbeconsultedaboutaproposaltocorrecttheofficialrecordduringproceedings on the bill.
• 23.8 If it is decided that therecordneedstobecorrectedduringthepassageofthebill,this shouldbedoneatatimeandinsuchawaythatitwouldbecleartothecourtsinthefuture thatParliamentwasawareofthematterbeforepassingthebill.Thetimingandmannerofany ministerial correction required during proceedings on the bill should be discussed with the WhipsOffice.Theapproachadoptedmayvarydependingontheimportanceofthematter,the stagewhichthebillhasreachedandthenatureoftheproceedingsduringwhichitisproposed that the correction should be made. Options for correcting therecordincludeclarifyingthe matter in the minister's speech, raising a point of orderorlayingissuingwrittenministerial statement. AlthoughletterstoindividualmembersofParliamentwillnotbeaneffectivewayof correcting statements in Parliament about the meaning of bill provisions, they may still be appropriateasawayofgivingorcorrectingfactualinformationorofansweringpointsraisedin debate.
• 23.9 Whereaministerialcorrectionismadeinthiswayitwouldbehelpfulifacross-reference couldbeinsertedattheHansardrecordoftheoriginalstatement.Thismaybepossibleifthe correctionisissuedintimetobereflectedintheboundvolumeofHansard.Thispointshould be discussed with the Hansard authorities.
• 23.10 Where a ministerialcorrectionismadeafterthebillhasbeenpassedbytheHouseitis unlikely that the courts will take it intoaccount.Thismakesaccuracyparticularlyimportant during the later stages of bills.

SECTION D

COMMONS STAGES

24. THE COMMONS: OVERVIEW OF STAGES

House of Commons

1. Government benches

2. Opposition benches

3. Mace

4. Speaker

5. Civil servants ("the box")

6. Hansard reporters

7. Press Gallery

• 24.1 Most flagship government measures, in particular those which have major spending implications,areintroducedintheHouseofCommons,althoughsomewillbeintroducedin the House of Lords in order to spread the workload of each House over the session.
• 24.2 Duringparliamentarystagesbillteamsshouldinformtheirminister'sofficeassoonasthey areadvisedofthetimingofforthcomingstagestoensuretheministerisonstandbytoattend Parliament when needed.

Overview of stages and minimum intervals between them

• 24.3 IntroductionandFirstReading:mostbillsareintroducedbynoticeofpresentation.The short title of the bill is then read outintheChamberbeforetheday'smainbusiness,after questionsandstatements,ontheappointeddayandaministernods.Thebillistherebyread thefirsttime.Thebillwillbepublishedonthedayofintroduction(notnoticeofpresentation). Theminister(usuallyawhip)willthennamethenextsittingday(thewhipwillsay“tomorrow”) asthedayforSecondReadingbutthisisusuallyentirelytheoretical.Theactualdatewillbe announced by the Leader of the House in the weekly business statement. There are no proceedingsintheChamberforbillsmovingfromtheLordstotheCommons;FirstReadingis a formal entry into Votes and Proceedings only.
• 24.4 SecondReading:theminimalintervalisnormallytwoweekendsfollowingpublication(in somecircumstancesitmaybepossibletoadjustthis)orafterFirstReadingifcomingfromthe Lords.Thegeneralprincipleofthebillisdebated.IfabillfailstogetaSecondReading,itcan progressnofurther.TheoppositionmaychoosenottovoteagainstSecondReadingbutretain majorreservationsaboutspecificpartsofthebill. Theoppositionmayalsotableareasoned amendmentwhichseekstodeclinetogivethebillaSecondReadingforreasonssetoutinthe amendment.ImmediatelyfollowingSecondReading,thequestiononcertainmotionsrelating to proceedings on the bill can be put forthwith:
• ● Programmemotion:usuallyincludesprovisionforcommittalofabill(normallytoa publicbillcommittee),determinesthedatebywhichthepublicbillcommitteemust report and specifies the number of days set aside in the House for remaining stages.
• ● Moneyresolution:requiredifthebillcreatesachargeonpublicfunds(i.e.ifitwill involve government expenditure).
• ● Waysandmeansresolution:requiredifthebillimposeschargesofcertainkinds uponthepeopleormakescertainprovisionsaboutborrowingortheuseofreceipts (for example, if it will involve taxes or other charges on members of the public).
• ● Carryovermotion(ifapplicable):requiredifthebillisexpectedtobecarriedover to the next parliamentary session.
• 24.5 Public Bill Committee Stage: the detailed scrutiny of the bill. The minimumintervalis usuallyoneweekifSecondReadingisonaMondayoraTuesdayandtendaysifSecond Reading is on Wednesday, Thursday or Friday. It consists of:
• ● aseriesofpublicevidencesessions.Thecommitteewillcallinindividualsororganisations (such as ministers, key stakeholders or professional experts) to give evidence; and
• ● a clause-by-clause examination of the bill. The Committee may also receive written evidencereceivedfrominterestedpartiessettingouttheirviewsofthebillasawholeoron specific elements.
• 24.6 Some exceptions to this are:
• ● bills ofmajorconstitutionalsignificance,andcertainotherbills,willhaveall(orsome)of their Committee Stage on the floor of the House; and
• ● for bills that start in the Lords, the conventionisthatthebillwillproceeddirectlytothe publicbillcommitteeforaclause-by-clauseexaminationofthebillwithoutholdingapublic evidence sessions (though written evidence may be received).
• 24.7 Remainingstages:asearlyasaweekaftercommitteeends,butdependsonurgencyand parliamentary time. Precise timing will be determined by the Business Managers. This includes:
• ● Report Stage: furtherconsiderationofamendments,thoughthereisnodebateoneach clause and the criteria for selection of amendments are more stringent; and
• ● ThirdReading:usuallytakesplaceimmediatelyafterReportStageonthesameday.Itisa further chance for the House to debate the principle of the bill in the light of any amendments passed at Committee Stage and/or ReportStage.Amendmentscannotbe madetoabillattheThirdReading.AttheendofthedebatetheHousevotesonwhetherto approve the Third Reading of the bill.
• 24.8 Theminimumintervalbetweenstagesdoesnotincluderecessweeks.Forexample,ifabill isintroducedduringthelastsittingweekbeforeChristmasrecesstheentirerecessperiodwill onlycountasoneweekendandtheremustbeatleastonemorefullsittingweekandweekend in the New Year before Second Reading debate.
• 24.9 Theminimumintervalsareexactlythatandbillteamsshouldnotexpectthebilltoprogress tothattimetable.Oftentheintervalsbetweenstageswillbelonger.Thetimetableforabillto completeallofitsstagesintheCommonswillbedependentonanumberoffactors,including theexactnatureofthebill,itssizeandcomplexityandontheotherbillsintheprogramme. Otherbillsmaybeaccordedahigherpriorityiftheyarepoliticallyveryimportant,orhavea fixed deadline for Royal Assent. Minimum intervals in the Lords are slightly different.
• 24.10 Billteamsshouldalertdepartmentalpressofficestothedatesofparliamentarystagesand provide them with background briefing as necessary.

Commons sitting times

The parliamentary day: House of Commons

Monday: 2:30pm - 10pm*

(public bill committee, rarely meets on this day, or Second Reading Committee: 4:30pm - approx. 6pm, and 7pm onwards. NB: THe House always sits according to Monday hours on the first day after recess; Committees will therefore use the times above)

Tuesday: 11:30am - 7pm*

(public bill committee: 9:25am - 11:25am and 2pm onwards)

Wednesday: 11:30am - 7pm*

(public bill committee, rarely meets on this day: 9:25am - 11:25am and 2pm onwards)

Thursday: 9:30am - 5pm*

(public bill committee: 11:30am - approx. 1pm and 2pm onwards)

Friday: 9:30am - 5pm

(public bill committee: does not neet

* Main business adjourns commonly known as 'the moment of interruption' takes place. The daily adjournment debate will follow main business and any further proceedings scheduled by Government. The usual finishing time - the time the Houses rises - is half an hour later.

• 24.11 Unless special provision is made for extended debate, the main business ofthedayis brought toaconclusionatthe‘momentofinterruption’:10pmonMonday,7pmonTuesday and Wednesday, 5pm on Thursday and 2:30pm on Friday. At this time, questions on proceedingsareputbytheSpeakerwhichmayresultinvotes. OnanydaytheHousemay riselateriftherearevotesat10pmonMonday,7pmonTuesdayorWednesdayandat5pm on Thursday, or if there is later business. The House may also rise early unexpectedly if businesscollapses.Animportantpointtobearinmindasthedeadlinefortablingamendments intheCommonsistheriseoftheHouse,or4:30pmonanon-sittingFridayoronprintingdays during recess.
• 24.12 Debateonbillswillnotnormallystartuntilafter3:30pmonMonday,12:30pmonTuesday or Wednesday, or 11:30am on Thursday. The start of debate can be delayed by urgent questions and/or ministerial statements. The start of debate may also be delayed on a Tuesday or Wednesday by a ’ten-minute-rule motion’, which can last between 10 and 20 minutes and can be voted on. Bill teams should check for any likely delays with their parliamentary branch on the morning ofthedebate. Itisprudentforministerstobeinthe Chamber early as exact timings for the start of debate are unknown.
• 24.13 The first day after recess takes Monday hours.
• 24.14 Sitting Fridays (thirteen during a session of normal length) are reserved for private members’ business.
• 24.15 Timings for public bill committees for government bills will depend on the programme resolutionagreedforthebillinquestion.Sittingtimesforpublicbillcommitteesmayvary,butit is usual for them to meet on Tuesdays from 9:25am to 11:25am and 2pm onwards, and Thursdaysfrom11:30amtoapproximately1:00pmand2pmonwards.Theafternoonsessions on any day can run until any hour and continue until the committee decides to adjourn (normally on a motion moved by the government whip on the committee).

25. MONEY RESOLUTION AND WAYS AND MEANS RESOLUTION

Key points

• ● Allprovisionsinabillwhichcreateachargeuponcertainpublicfundsmustbeauthorisedby amoneyresolution.TheneedforsucharesolutionisdecidedbytheHouseauthoritiesin consultation with Parliamentary Counsel.
• ● ThemoneyresolutionmustbemovedbyaministerandmustbetakenbeforeCommittee Stage(usuallyimmediatelyafterSecondReadingandanyensuingprogrammemotion).The text of the resolution must be approved by HM Treasury before it can be submitted by Parliamentary Counsel to the Public Bill Office.
• ● Awaysandmeansresolutionwillberequiredifoneofthepurposesofthebillistoraise moneyoriftheonly‘money’inthebillcomesfromaprovisionrequiringpaymentintothe Consolidated Fund.
• ● Thewaysandmeansresolutionisnormallytakenafterthemoneyresolution,ifthereisone. However, where the primary purpose of the bill is to raise money the ways and means resolutionistakenbeforeFirstReadingandthebillisorderedinontheresolutionasisthe case for a finance bill.
• ● Both types of resolution are normally moved immediately after Second Readingandany ensuingprogrammemotion.Theyarealltakenforthwith(withoutdebate).Itisworthnoting that,ifafurtherwaysandmeansand/ormoneyresolutionisrequiredduringthepassageof the bill, there can be a debate on the resolution on the floor of the House for up to 45 minutes each.
• ● For further informationconsultParliamentaryCounselortheGovernmentWhips’Officein the Commons.

Money resolution

• 25.1 If a bill creates a charge upon certain public funds, either by way of new orincreased expenditureorbyremissionofdebt,alltheprovisionsinthebillinvolvingthechargemustbe authorised by a resolution of the House of Commons known as a money resolution. The HouseauthoritiesdecideinconsultationwithParliamentaryCounselifamoneyresolutionis required. Parliamentary Counsel will draft the resolution, seeking instructions from the department as necessary.
• 25.2 Theresolutioncanonlybemovedbyaminister(reflectingtheCrown'sexclusiverightto initiateproposalsforexpenditure)andmustbetakenbeforethebeginningoftheCommittee Stage. It is normally taken immediately after SecondReadingandanyprogrammemotion. The reason for this is that, though the charging provisions can be debated on Second Reading,thechairofthecommitteeonthebillcannotputthequestiononthemunlessthey have been covered by a money resolution. To mark this fact the charging provisions are printed in italics in the bill as first printed in the Commons.
• 25.3 If a bill proposes new expenditure the Commons will require proof that the proposal is recommendedbytheCrown.ThisisachievedbyincludingthewordsKing'srecommendation signified’intheheadingtothemoneyresolution(thisisdifferentfromKing’sConsent,whichis required where His Majesty's own prerogative or interests are directly affected bythebill). Before accepting the text of a proposed money resolution for tabling,thePublicBillOffice requires confirmation from Parliamentary Counsel that a Treasury minister - generally the FinancialSecretaryiftheyareamemberoftheHouseofCommons-hasapprovedthetext. CounselwillthereforewaituntiltheyhavereceivedconfirmationthattheTreasuryministerhas signedthedraftmoneyresolutionbeforeconfirmingthistothePublicBillOffice.ATreasury minister other than the Financial Secretary can signify approval if necessary.
• 25.4 Private members’ bills which create a charge on public fundswillalsorequireamoney resolution.Althoughitisnotobligedtodoso,theGovernmentwillusuallytableamotionfor sucharesolutionforbillswhichhavereceivedaSecondReadingandprovidetimeforittobe debated,regardlessofwhetheritsupportsthebill.Eachresolutionisdebatableforupto45 minutes.

Money resolution debate

• 25.5 Though appearing in the name of a Treasury minister, the resolution is moved by the minister in chargeofthebillifitistobedebatedorbyawhipifitistakenforthwith.Ifthe money resolution is taken immediately after Second Reading there is no debate (because SecondReadingwillitselfhaveprovidedtheopportunityfordebate)andthequestionisput forthwith.Amoneyresolutionmovedonalaterday(suchasforaprivatemember’sbill)may be debated for up to 45 minutes and the bill team will need to prepare a briefing for the minister.
• 25.6 Thethreekindsofpointmostlikelytoberaisedinsuchadebate,andwhichtheminister's brief should anticipate, are:
• ● asking for explanation of anything obscure in the money resolution;
• ● objecting to the narrowness with which it is drafted; and
• ● asking how much money might be spent.
• 25.7 Amendmentstothemoneyresolutionitselfareveryoccasionallyputdown.Ifthemoney resolution is debatable the bill team will needtopreparenotesonamendmentsforthebill minister.Aprivatemember’samendmenttoamoneyresolutionisoutoforderifitwouldhave the effect of increasing the charge on public funds authorised by the resolution.
• 25.8 Amendmentswhichlackthenecessarysanctionofamoneyresolutionwillberuledoutof orderintheHouseofCommons.ItcanbehelpfultodrawtheattentionofthePublicBillOffice to such amendments. Ifthedepartmentlaterwishestoputdownamendmentswhichentail expenditurenotcoveredbytheoriginalmoneyresolutionorabillisreturnedfromtheLords withsuchamendments,anewresolution(anddebate)willberequiredbeforetheHouseor committee can consider such amendments.

Ways and means resolution

• 25.9 A ways and means resolution of the House of Commons is needed if a bill containsa provisionimposing‘chargesuponthepeople’–atermwhichmaynotincludelevies,charges orfeeswhicharenotakintotaxation–grantingborrowingpowerstotheCrownorproviding forthepaymentofreceiptsnotarisingfromtaxationintotheConsolidatedFundortheNational Loans Fund. This is distinct from a money resolution which is primarily concerned with expenditure.TheneedforawaysandmeansresolutionisdecidedbytheHouseauthoritiesin consultation with Parliamentary Counsel. Parliamentary Counsel will draft the resolution, seeking instructions from the department as necessary.
• 25.10 Awaysandmeansresolutionwillberequiredifoneofthepurposesofthebillistoraise money or if the only ‘money’ in the bill comes from aprovisionrequiringpaymentintothe Consolidated Fund. However, where the sums to be paid into the Consolidated Fund are incidental to a specific project involving expenditure (e.g. fees or incidental receipts ofthe administeringdepartment)aparagraphdealingwiththepaymentsintotheConsolidatedFund is usually included in the money resolution covering the expenditure under the bill.
• 25.11 Wheretheprimarypurposeofthebillistoraisemoney,thenecessarywaysandmeans resolution is taken before First Reading and the bill is ordered in on the resolution like a finance bill.
• 25.12 Inothercasestheprocedureforawaysandmeansresolutionissimilartothatforamoney resolution.ItistabledinthenameofaTreasuryMinister.Ifthereisalsoamoneyresolution, the ways and means resolution is normally taken immediately after the money resolution, which, as noted above, will normally be immediately after Second Reading and any programmemotionrelatingtothebill.Ifthereisaneedforawaysandmeansresolutionata laterstage,aseparatedebatemusttakeplaceonthemotionforthatresolution,lastingforup to 45 minutes and taken on the floor of the House.
• 25.13 Amendments which lackthenecessarysanctionofawaysandmeansresolutionwillbe ruledoutoforderintheHouseofCommons.Asinthecaseofmoneycover,itcanbehelpful to draw the attention of the Public Bill Office to such amendments.

Lords amendments requiring a new money resolution or ways and means resolution

• 25.14 GenerallytheCommonsareable,iftheywish,toagreetoLordsamendmentsthatinfringe their financial privilege, provided that the Government moves any necessary financial resolution.
• 25.15 Where amendments involve financial matters thatarenotcoveredbyapreviousmoney resolution for the bill, the amendments will, by Standing Order No. 78(3),automaticallybe treated as disagreed to on grounds of privilege unless a further resolution covering the amendments is agreed before the amendments are considered.
• 25.16 Similarly,whereamendmentsinvolvefinancialmattersthatarenotcoveredbyaprevious waysandmeansresolutionforthebill,theministerwillbecalleduponbytheSpeakertomove amotiontodisagreetotheamendmentsunlessafurtherresolutioncoveringtheamendments is agreed before the amendments are considered.
• 25.17 Even if the Government intends to oppose the amendments inquestion,itmaywellbe appropriatetotableafurtherresolutiontoenabletheamendmentstobeconsidered,rather thantorelyonatechnicality.ItwillbeessentialtotableafurtherresolutioniftheGovernment wantsnotonlytoopposetheamendmentsbutalsotoofferanamendmentinlieu(evenone not requiring a further resolution).

26. PROGRAMMING

Key points

• ● MostgovernmentbillsaresubjecttoprogrammingintheHouseofCommons.Programming allows the House, following consultation through the usual channels, to determine a timetableforproceedingsinCommitteeandthedurationofremainingstagesonthefloorof the House.
• ● The Whips will consider the bill’s complexity and degree of controversy, experience with similar bills and their own business management needs and negotiate through theusual channels.ParliamentaryCounselwilldrafttheinitialprogrammemotiononinstructionfrom theWhips’Officesettingoutthecompletiondateforpublicbillcommittee(the‘out-date’)or,if committed to aCommitteeofthewholeHouse,howmanydaysofCommitteethebillwill have.The initial programme motion is taken immediatelyafter Second Reading.
• ● For bills beingconsideredbyapublicbillcommittee,theprogrammingsub-committeewill recommendthetimesanddatesfororalevidenceandclause-by-clauseconsiderationwithin theoveralltimeforCommitteeStage,thescheduleofwitnesses,andtheorderthebillisto be considered.
• ● The bill team must keep the Whips’ Office informed about the need for government amendments.Ifsignificantlymoreamendmentsarebroughtforwardthanwereexpected,the opposition will have cause for complaint and this may jeopardise the bill's progress.
• ● The Government should avoid having to repeatedly revise programme orders because government amendments were not signalled at the relevant stages. It is particularly important to predict how many amendments are likely to be made on Report.
• ● Programming does not operate in the House of Lords.

Overview of programming

• 26.1 Most government bills are subject to programme orders in the Commons. Alternatively, therearearrangementsintheCommonsfortheGovernmenttoimposeatimetablethroughan allocation of time order, commonly known as a ‘guillotine’, or a Business of the House motion.
• 26.2 ProgrammemotionsaretakenimmediatelyafterSecondReading.Theyareexpectedtobe agreedinadvance,atleastinbroadoutline,andinformallyandprivatelybetweentheparties. Programmingisintendedtobeflexible:theprecisenatureoftheprocesswilldependonthe bill and how the minister, the Business Managers and the opposition wish to handle it.
• 26.3 Once a programme motion is agreed to by the House extra time can only be made availablebybringingforwardamendmentstotheprogrammeorder.Thereforeprogramming increases the importance of forwardplanning,ofgoodcommunicationsbetweenbillteams, parliamentary branches and the Whips’ Office and of keeping amendments to a minimum.
• 26.4 Assoonasthebillisintroducedtherewillneedtobeinformaldiscussionwiththewhips, whowillliaisewithotherpartiestoidentifywhatwouldbeareasonabletimescaleforthebill's CommitteeStage.Todothisproperlyitisessentialthatthewhipshaveasmuchinformation as possible about:
• ● the areas of the bill which are likely to be controversial;
• ● suggestions for witnesses for oral evidence sessions (where oral evidence is to be taken);
• ● the number of government amendments expected; and
• ● the complexity of the provisions.

At Second Reading

• 26.5 The programme motion willbedraftedbyParliamentaryCounseloninstructionfromthe Whips’Office.ItmustbetabledbeforeSecondReadingandistakenimmediatelyafterSecond Reading.Thereisnodebateonaprogrammemotiontakenatthisstagebutitmaybereferred to during the debate on Second Reading. The programme motion will usually include:
• ● provisionforwhatkindofCommitteeStagethebillwillhave.Mostbillsarecommittedtoa public bill committee, though bills of major constitutional significance are normally committed to a Committee of the whole House;
• ● in the case of a bill committed in whole or in part to a committeeofthewholeHouse, provision for the number of days, and for a time to conclude proceedings on those days;
• ● inthecaseofabillcommittedtoapublicbillcommittee,provisionforthecommitteetosit twiceonitsfirstday;provisionforproceedingsinpublicbillcommitteetobeconcludedbya certain date (the ‘out-date’);
• ● provision aboutthenumberofdaystobeallottedforremainingstages,andaboutwhen proceedings on that day or those days are to conclude; and
• ● provisiontodisapplytherequirementforaprogrammingcommitteeforReportStageand other proceedings on the floor of the House (e.g. Committee of the whole House).
• 26.6 BeforeSecondReadingthebillteamwillbeadvisedbytheChiefWhip’sprivatesecretary howlonghasbeenagreedforCommitteeStage. Forpublicbillcommitteethiswillbebased on two sittings each on Tuesdays and Thursdays when the House is sitting

Public bill committee: the role of the programming sub-committee

• 26.7 Whenabilliscommittedtopublicbillcommittee,asub-committeeisappointedtomake recommendations about how proceedings in public bill committee should be timetabled.
• 26.8 The programming sub-committee is chaired by the one of the nominated chairs of the public bill committee that is to consider the bill (the chairs are members of the Panel of Chairs). The programming sub-committee iscomposedofsevenmembersofthepublicbill committee nominated by the Speaker. They will include the lead minister, the opposition spokesperson, the minister's parliamentary private secretary (PPS), a government backbencher, a government whip, an opposition whip and a representative from the third-largestoraminorityparty.Theprogrammingsub-committeeusuallymeetsnolaterthan the day before the public bill committee first sits.
• 26.9 Parliamentary Counsel will draft the appropriate resolution for consideration by the programmingsub-committeebasedoninstructionsfromtheWhips’Office,whichwillinturn arise from discussions through the usual channels. The level of detail in programme resolutionsvariesfrombilltobill. Programmeresolutionswilldetailthedatesandtimesthe committeewillmeet,theorderinwhichthebillwillbeconsideredandthetimeproceedingswill concludeatthelastsession,butwillalsoprovidefororalevidencesessionsformostbillsthat start in the Commons.
• 26.10 Inrarecircumstances,therecanbe‘knives’toensurethatallpartsofthebillaredealtwith inthetimeallotted.‘Knives’arethecut-offpointsatwhichdebateonparticularsectionsofthe bill must be completed. Importantly, these affect votes as well as debates.
• 26.11 AllprogrammedgovernmentbillswhichstartintheCommonsarelikelytohaveuptofour oralevidencesessionsbeforethecommitteebeginsclause-by-clauseconsideration.Inthese instancesthetimesanddetailsofthewitnesses(namesofindividualsand/ororganisations) are specified in the resolution.
• 26.12 Programming sub-committees meet in private and their proceedings are not recorded. Departmental officials, including Private Office, are not permitted to attend the meetings, althoughParliamentaryCounselmayattend.Theprogrammingsub-committeewilldiscussthe resolutiondraftedbyParliamentaryCounselandmaysuggestchangesincludingrequesting additionalwitnesses.Thewhipandtheministerwilltakethelead.Aslongastheoveralltime allotted or 'out-date' from Committee Stage remains unchanged, there is considerable flexibility.Ifbillministersandwhipsonthecommitteethinkchangesareneededwhichwould affect the 'out date', they should discuss this with the Government Whips' Office.

Public bill committee

• 26.13 Amotiontogiveeffecttotheresolutionoftheprogrammingsub-committeeisconsidered bythepublicbillcommitteewhenitfirstmeets.Thisisdebatableforuptohalfanhourandcan be voted on. Amendments may also be tabled. The committee will then agree a motion to allow written evidence to be received and published (see from paragraph 29.13). If the committeeistotakeoralevidence,itwillagreeamotionallowingittositinprivate,ondayson which oral evidence is to be heard, until witnesses are admitted. This is to enable the committee to informally discuss how questioning will proceed. The committee will then proceedto takeoralevidence,ifapplicable(seefromparagraph29.18),andconsiderthebill in the order agreed.
• 26.14 When a knife (the deadline for the conclusion of debate) falls in accordance with the programme motion, the chair will put the question before thecommittee,followedbyother questions necessary to dispose of proceedings (clauses and schedules stand part and government amendments). Questions of the same type which occur consecutively are ‘bundled together’ so that the questions put to the committee are as few as possible.
• 26.15 Opposition amendments may be divided on,iftheyhavealreadybeendebatedandthe chair has indicated that they will allow separate division.
• 26.16 Publicbillcommitteeshavethepowertosendforpersons,papersandrecordsrelatingto thebill,ifthebillhasbeenprogrammedoriftheHousehasotherwisegrantedthispower.This allowsthecommitteetoreceivewrittenevidenceandtotakeoralevidenceifdesired.Itdoes not mean that the committee would actually order people to attend or to bring papers or records with them.

Public bill committee: revising the timetable

• 26.17 Itispossibletorevisetheprogrammeorderoriginallyagreedbythepublicbillcommitteetorecommendachangetothearrangementsfororalevidence,theorderofconsiderationor tointernalknives(ifapplicable).Ideallythisisachievedthroughconsensusinusualchannels with the amendment moved at the next appropriate time. If there is an objection to the amendment,theprogrammingsub-committeewillhavetomeettodiscusstheamendment;if an objection is anticipated a meeting of theprogrammingsub-committeecanbeconvened without the amendment being moved in the committee itself first
• 26.18 Once the programming sub-committee has concluded its discussion the committee will resume and the amendment will be moved. The amendment can be debated forupto30 minutesandvotedon.IfitisfeltthatthetimeallottedtoproceedingsinCommitteeistooshort then the Government may, after discussions in the usual channels, table a supplementary programme motion extending the ‘out-date’, for consideration by the House. This supplementaryprogrammemotionistakenontheflooroftheHouse.Itcannotbedebatedbut canbevotedon.Ifthesupplementaryprogrammemotionisagreedto,anamendmenttothe programmeorderagreedtobythepublicbillcommitteewouldberequiredtoagreethenew times and dates for thecommitteetomeet.Departmentsshoulddiscussextendingthe'out date' with the Whips’ Office.

Supplementary programme motions for remaining stages in the Commons

• 26.19 The programme motion agreed immediately after Second Reading will make provision aboutthenumberofdaysforremainingstagesandaboutwhenproceedingsonthatdayor those days are to conclude. It is possible for this provision to be changed by way of a supplementary programme motion, which would be drafted by Parliamentary Counsel, on instructionsfromtheWhips’Office.Anysupplementaryprogrammemotionmustbeagreedby the House and can be debated for up to 45 minutes and can be voted on.
• 26.20 It is not uncommon for a supplementary programme motion to be brought forward in respect of Commons Report Stage and Third Reading and for a further supplementary programme motion to be brought forward for Consideration of Lords Amendments. A supplementary programme motion can alter the order of consideration for the remaining stages (see the relevant chapters on Report Stage and Consideration of Amendments/’ping-pong’)orprovidefor‘knives’toensurethatallpartsofthebillaredealtwith inthetimeallotted.AsinCommittee,‘knives’affectvotesaswellasdebatesandtheWhips’ Office will advise on the appropriateness of including these

Allocation of time order (the ‘guillotine’)

• 26.21 Anallocationoftimemotion(commonlyknownasaguillotine)isexceptionallymovedby theGovernmenttoimposeamandatorytimetableforproceedingsonaBillintheHouseof Commons.Themainadvantagethatallocationoftimemotionshaveoverprogrammeorders isthattheycanbeusedtotimetableSecondReading,aswellasotherstagesoftheBill.They are therefore most commonly used for fast-track legislation.
• 26.22 AnallocationoftimemotionisdraftedbyParliamentaryCounseloninstructionsfromthe whipsandmovedbyaminister,usuallyatthebeginningofproceedingsonthedayofSecond Reading. An allocation of time motion is debatable for up to three hours under Commons Standing Order No. 83 and is also amendable.
• 26.23 In some cases a Business of theHousemotionisusedinsteadofanallocationoftime motion. This allows a single motion to be used both to:
• ● set a timetable for proceedings (in the same way as an allocation of time motion); and
• ● make provision that would otherwise require a separate procedure motion.
• 26.24 Thereisthennolimitonthetimeforwhichthemotionmaybedebated(i.e.StandingOrder No. 83 does not apply). Parliamentary Counsel or the Whips Office can advise on these matters.
• 26.25 Where an allocation of time or Business of the House motion is used,anyclausesnot discussed when the allocated time is up, together with all amendments to those clauses moved by a minister, have to be put to the vote without discussion.
• 26.26 The motions discussed here are used only in exceptional circumstances and the Government Whips' Office should be consulted in the first instance.

27. COMMONS INTRODUCTION AND FIRST READING

Key points

• ● The date of introduction will be agreed by the Business Managers and No.10.
• ● Before introduction the bill team should:

o Ensure that the Public Bill Office has received the final text of the bill and the explanatory notes for printing at the same time as the notice of presentation. ParliamentaryCounselsendsthebilltothePublicBillOfficeandthedepartmentsends the explanatory notes;

o Ensurethatallothersupportingdocuments(including:delegatedpowersmemorandum, impact assessment, ECHR memorandum, where needed, are cleared and ready for publication);

o Ensure that the minister has signed the ECHR, Environment Act and Northern Ireland-Great Britain Trade statements. If a separate ECHR memorandum hasbeen preparedthisshouldalsobecopiedtothePublicBillOfficesoitcanbepublishedon the bill’s webpage on the Parliament website; and

o Ensure thenamesofbillbackersarewithParliamentaryCounselbeforeintroduction. Thelistofbillbackersshouldbeagreedthroughdepartmentalparliamentarybranches, whowillcontacttherelevantprivatesecretariestoseektheirconsenttotheministers’ names being added to the bill.

o EnsurethatParliamentaryCounselhasformalauthorityfromtheministerinchargeof thebilltosubmitthenoticeofpresentationandthefinaltextofthebilltothePublicBill Office on their behalf.

AtFirstReadingtheclerkatthetablereadsouttheshorttitleofthebillatthecommencementof publicbusiness.Theminister,orbyarrangementthewhiponthebench,‘nods’intheaffirmative and the bill is thereby read the firsttime.Undernocircumstancesshouldcopiesofthebillbe madeavailablebeforeFirstReading.Copiesofthebillmustnotbemadeavailabletothepress beforetheyareavailabletoParliament,whichmaybethedayafterintroductionifthebillisnot printeduntilthen.BusinessManagersandNo.10willagreeboththedateofintroductionandthe dateofpublication.Thiscaneitherbethesameday,orpublicationcantakeplacethefollowing day.

Introducing a bill into the Commons

• 27.1 Most government bills are introduced under Standing Order No. 57whichrequiresonly writtennotice.ThenoticeispreparedbyParliamentaryCounselandishandedintothePublic Bill Office on the sitting day prior to that on which the bill is to be introduced.
• 27.2 ThedateofintroductionwillbeagreedbytheBusinessManagersandNumber10.Notice ofpresentationcanbegivenonthedayoftheKing’sspeech,withthebillconcernedbeing introduced the following day, but bills cannot be introduced on the day of the King’s Speech.
• 27.3 Billscaneitherbepublishedonthedayofintroduction,oronthedayfollowingintroduction. Eitherway,noticemustbegiventhesittingdaypriortointroduction.ParliamentaryCounsel will ask for authority to submit the notice in the name of the minister in charge of the bill.

Bills brought from the Lords

• 27.4 If a government bill isbroughtfromtheLords,itmustbe‘takenup’byaministerinthe HouseofCommons:theGovernmentWhips'Officearrangesfortheclerksatthetabletobe notifiedthataministerwilltakechargeofthebill.Thebillisdeemedtohavebeenreadafirst time and is then printed.
• 27.5 FirstReadingisrecordedinVotesandProceedings;billministersarenotrequiredtodo anythingintheChamber.UnderStandingOrderNo.57A,eveniftheCommonsisnotsitting whenthebillcomesfromtheLords(whichwillhappenimmediatelyafterthebillcompletesits Lordsstages),itcanstillbesentforprintingandisdeemedtohavebeenreadafirsttimeon thenextsittingdayaslongasnoticeisgiveninwritingthataministerwilltakechargeofthe bill. This will be arranged by the Government Whips' Office.
• 27.6 IfanamendmenthasbeenmadeinthefirstHousewhichtheGovernmenthassaiditwill seek to overturn in the second House,therevisedexplanatorynotesshouldgiveaneutral description of theamendmentanditseffectandsaytheGovernmentseekstooverturnthe amendment but should not argue its pros and cons.
• 27.7 If a minister has saidintheHousethattheGovernmentintendstoseektooverturnthe amendment,theexplanatorynotesmaygivetheHansardreferenceforthatstatementbutifno announcement has been made to that effect, the notes are not the place for it.

Before introduction: ECHR compatibility, Northern Ireland-Great Britain Trade, and Environment Act statements

• 27.8 TheministertakingthebillthroughtheCommonsmustmakeastatementonthefaceof the bill setting out its compatibility with the European ConventiononHumanRightsand,if required,anEnvironmentActstatementandaNorthernIreland-GreatBritainTradestatement. ThestatutoryrequirementisforthestatementtobemadebeforeSecondReadingandtobe published in such manner as the minister considers appropriate.
• 27.9 The bill team should ensure that the minister signs therelevantECHRand,ifrequired, Environment Act statement and a Northern Ireland-Great Britain Trade statements before introductionandconfirmationthatithasbeensignedshouldbesenttoParliamentaryCounsel. ParliamentaryCounselwillensurethattheversionofthebillfirstprintedineachHousehas the statement on the face of it.
• 27.10 Ifforanyreasonthestatementwillnotbesignedbeforethebillisfirstprinted(onentryto either House), Parliamentary Counsel should be consulted immediately. The minister concerned shouldmakeawrittenministerialstatementandwillproduceastatementbefore Second Reading. This is true whether the bill is introduced in the Commons or has been brought from the Lords; the relevant Secretary of State in the Commons and the relevant Lords minister in the Lords will need to sign a ‘section 19’ ECHR and, if required, an Environment Act statement and a Northern Ireland-Great Britain Trade statement.

Bill backers

• 27.11 ForgovernmentbillsintroducedintheHouseofCommons,theremustalsobealistofbill ‘backers’atthebackofthebill.ParliamentaryCounselwillneedtoknowthenamesofthese ‘backers’,toarrangetohavethemputonthebackofthebill.Theseshouldincludeajunior minister and any ministers particularly interested in the bill. Not morethan11ministers,in addition to that of the presenting minister, may appear and the number is often much smaller.
• 27.12 The departmental parliamentary clerk, after consultation with the billteam,willseekthe agreement of other ministers concernedtobebackers.Awrittenlistofthebackersisthen sent to Parliamentary Counsel, who will hand it in with the notice of presentation.

First Reading

• 27.13 Thebill,unlessbroughtfromtheLords,ispresentedin‘dummyform’,containingonlythe shortandlongtitleandthenamesofthebackers.Theclerkatthetablereadsouttheshort titleofthebillatthecommencementofpublicbusiness.Theminister(or,byarrangement,the whip on the bench) stands and ‘nods’ assent and the bill is thereby read the first time.
• 27.14 OnFirstReadingthegovernmentwhipnamesthenextsittingdayforSecondReading (the whip will normally say “Tomorrow”). This demonstrates the importance of government legislationbutthismerelyputsthebusinessonthe‘theremainingordersandnotices’section oftheorderpaper(alsoknownasthe‘FuturebusinessB’section). Thebillwillbescheduled by the Government Whips' Office who will inform departments in the usual way.

Printing

• 27.15 At First Reading an order is made automatically for the bill to be printed and given a numberinthepublicbillseries.Anordertoprintisalsomadefortheexplanatorynotes.Bills and explanatory notes are printed and published on the parliamentary website.
• 27.16 The bill may be published on presentation (immediately after First Reading) or on the followingday.ParliamentaryCounselwillaskthedepartmenttoconfirmitswishesafewdays in advance, and convey them to the Public Bill Office. The usual approach is to ask for publication on presentation.
• 27.17 Whereabillistobepublishedonpresentation,thefinaltextofthebillisnormallysupplied byParliamentaryCounseltothePublicBillOfficeforprintingatthesametimeasnoticeof presentation(inotherwords,thedaybeforeFirstReading).ParliamentaryCounselwillaskfor authority to do this in the minister’s name. The bill team must providethefinaltextofthe explanatorynotesonthesameday.WhenabillistobepublishedthedayafterFirstReading, the text and the notes are usually provided on the day of First Reading.
• 27.18 The publication date is the key date in terms of publicity. Bills may be published on non-sitting Fridays but undernocircumstancesshouldcopiesofthebillbereleasedbefore First Reading (although a draft bill may of course have been published as part of pre-legislativescrutiny).Inthecaseofemergencylegislationadraftbillhassometimesbeen published for the convenience of Parliament in advance of First Reading.
• 27.19 Inthecaseofaverylongbill,thePublicBillOfficecannotguaranteepublicationontheday afterthefinaltextisprovidedbyParliamentaryCounsel.Itisimportantthattheintendeddate of publication is notified to the parliamentary clerk who, after consulting the bill team, will arrange to receive enough copies of the printed bill and the explanatory notes for the departmentandforanyLobbybriefingorpressconference.Copiesforthispurposeshouldbe obtainedthroughParliamentaryCounsel,whocanarrangeforthemtobemadeavailableto the minister in the Vote Officeassoonasthebillispublishedtogetherwiththetextofthe explanatory notes. As a general rule,publicationofabillcannotbedelayedtofitinwitha minister'spressconference.Thetimeofpublicationneedstobeborneinmindwhenarranging a statement in the House or a Lobby briefing.

Supporting documents

• 27.20 ThedelegatedpowersmemorandumshouldbesenttotheCommonsPublicBillOfficeso they can arrange to publish itontheParliamentwebsite.TheMemoonlyrequiresformally sendingtotheDelegatedPowersandRegulatoryReformCommitteewhentheBillmovesto, or has been introduced in, the House of Lords.
• 27.21 Thedepartmentmustalsoensurethatthedelegatedpowersmemorandumisdepositedin bothHousesonintroduction.ForabillstartingintheCommonsorarrivingintheCommons fromtheLords,50copiesofthememorandumshouldbesenttotheHouseofCommonsVote Office,withtencopiessenttotheLordsPrintedPaperOffice.Furthercopiesshouldbesentto the libraries of both Houses.
• 27.22 A full impact assessment should be published by the departmenttoaccompanythebill introducedtoParliament.FiftycopiesshouldbeplacedintheVoteOffice.Copiesshouldalso be sent directly to the Commons Public Bill Office for placing in the public bill committee room.
• 27.23 IfaseparatememorandumonECHRimplicationshasbeenprepared(astheanalysisis toodetailedfortheexplanatorynotes)thisshouldbepublishedonGOV.UKbutalsocopiedto theCommonsPublicBillOfficetobeputonthebill’swebpageontheParliamentwebsite. The ECHR memorandum should also be sent to the Joint Committee on Human Rights (jchr@parliament.uk).

Revised editions of Acts

• 27.24 If provisions in the bill make reference to heavily amendedActsofwhichnoup-to-date editionsarereadilyavailable,thedepartmentshouldconsiderprovidingaclear,readableand up to date version of the legislation concerned. Where onlysomeprovisionsofanactare relevant, the revised edition can be limited to those provisions.
• 27.25 CopiesshouldbeavailablebeforeornotlongafterSecondReadingintheHouseinwhich the bill is introduced. A copy should be sent to the Librarian in each House, the Clerk of LegislationintheCommons,andtheClerkofPublicBillsintheLords.Forbillsstartinginthe Commonsitisalsogoodpracticetosendacopydirectlytoeachmemberappointedtothe publicbillcommittee,theclerkofthecommitteeandtotheclerkintheScrutinyUnitdealing with public bill committees.
• 27.26 Ifthedepartmentwishestoshowhowexistinglegislationwillbechangedbythebill,this should be done as an annex to the explanatory notes.

List of relevant older papers for the House of Commons Library

• 27.27 The department must supply the House of Commons Library with a list of alltheolder paperswhichhaverelevancetotheforthcomingdebatesonthebill.Thisshouldbesentby the parliamentary clerk to the Library as soon as possible after the bill is introduced, in preparationforSecondReading.Thelistshouldmentionthebillstatus,thetitleofthebilland the date of First Reading (and of Second Reading, if known).

Publicity

• 27.28 Thebillteamshouldkeepintouchwiththedepartment'spressofficeoverarrangementsfor publicity.Unlessthebillisofonlyminorimportance,ashortpressnoticewillusuallybedrafted bythebillteamandthepressoffice.Thismaybesupportedbyamoredetailedpressnoticeto explainthepurposeofeachpartofthebill.Thisnoticeshouldbepurelyexplanatoryandmust not anticipate the Second Reading debate.
• 27.29 ALobbybriefing(i.e.tothosecorrespondentswhohaveprivilegedaccesstotheLobbyof the House) and / or a briefing to specialist correspondents may be desirable if the bill is important.ThebillministershouldalwaysbeconsultedonthisandanyLobbybriefingshould be arranged through the Prime Minister's press secretary.
• 27.30 Copies of the bill must not be made available to the pressbeforetheyareavailableto Parliament, which may be the day after introduction if the bill is not printed until then.
• 27.31 Anybriefingsmusttakeplaceafterpublicationofthebillandpublishedcopiesshouldbe made available at the briefings. Where a bill is sent to be printed overnight, copies will normallybeavailablethefollowingmorningintimeforapressconferencearoundlunchtime.

The bill team will need to brief the billministerforanyLobbyorspecialistcorrespondent’s briefing (e.g. with question-and-answermaterial).Thelegaladvisershouldhelpensurethat any publicity material is accurate, particularly when the bill or part of a bill is especially complex. The press office may also need support from the bill team in answering press queries after publication.

• 27.32 Billteamsshouldensurethatafterintroductiontheycontinuetokeepintouchwithexternal stakeholderswhohavebeeninvolvedindevelopingthebill,asthesegroupsmayinfluencethe shape of debate on the bill.
• 27.33 ImmediatelyafterintroductiontheHouseofCommonsLibrarymaycontactthebillteamfor background information as they prepare a research paper onthebill.Thepaperisusually published before Second Reading and can be used by members during debate.

28. COMMONS SECOND READING

Key points

• ● Second Reading is a debate on the general principles of the bill. The senior minister in chargeofthebill(usuallytheSecretaryofState)opensthedebatemovingthat“thebillbe now read a second time” then going through the main features of the bill clause by clause.
• ● A junior minister, (usually the bill minister or a minister from another departmentwithan interest)willwindup,thoughtheorderscansometimesbereversed.Alternativelythesenior minister can both open and wind up the debate, with the leave of the House.
• ● Theministerwindingupshouldanswerasmanyaspossibleofthepointsraisedduringthe debate,andespeciallythoseaskingforadirectanswer.Officialsintheboxwillneedtowrite notes on these points as they are raised and clear them with their legal adviser.
• ● Theoppositioncanopposethebilleitherbya‘reasoned’amendmentorbyvotingagainst themotionthatthebillbereadasecondtime.IfavoteislostatSecondReadingthebillwill fall.
• ● In certain circumstances, parliamentary material including ministerialspeechesatSecond Readingoranyotherstageofthebillmaysubsequentlybeusedbythecourtsininterpreting thestatute.Particularcareshouldthereforebetakenindraftinganystatementstobeused by the minister about the effect or interpretation of clauses of the bill which is why final clearance with their legal adviser is essential.

Date of Second Reading

• 28.1 ThedateforSecondReadingissettledbytheofficesoftheChiefWhipandtheLeaderof theHouse.Theconventionisforatleasttwoweekendstobeallowedbetweenpublicationof the bill and Second Reading except in emergency situations. The parliamentary clerk will informallconcernedassoonastheyreceivenoticeofthedateforSecondReading.Thisdate ismadepublicbytheLeaderoftheHouseintheThursdayBusinessStatementafortnightin advance and should remain confidential until then.

Procedure at Second Reading

• 28.2 Onthedayfixedtheshorttitleofthebillisprintedasoneoftheeffectiveordersoftheday. The Government Whips' Office arranges this with the Table Office. When it is called, the minister begins the debate by moving that the bill “be now read a second time”.
• 28.3 Theusualorderofspeakingisfortheseniorministerinchargeofthebilltoopenandfora juniordepartmentalminister,oraministerfromanotherdepartmentwithaninterest,towind up. However, this could be reversed.
• 28.4 An opposition front bench memberwillspeaksecondinthedebateandanotherleading oppositionmembersecondlast.Inbetween,membersselectedbytheSpeaker,usuallyfrom the two sides of the House alternately, will make their contribution. Members (including ministers)cannotspeaktwiceinaSecondReadingdebatewithoutleaveoftheHouse.The member(includingtheoppositionfrontbench)whose‘reasoned’amendment(seebelow)has beenselectedfordebatebytheSpeakerwillmovetheamendmentwhentheyarecalledto speak.
• 28.5 SecondReadingofamajorgovernmentbillwillusuallylastforawholedayandwillstart after any urgent questions, statements and/or ten-minute rule motions.

Opposition to Second Reading

• 28.6 TheoppositioncanopposeaSecondReadingofabillbyeithera‘reasoned’amendment whichsetsoutthegroundsonwhichthebillshouldberefusedaSecondReadingorsimplyby votingagainstthegovernmentmotionthatthebillbereadasecondtime.Backbencherscan alsotablereasonedamendments.InbothcasesitisuptotheSpeakertodecidewhichare selectedfordebate.VotescanbeheldonanyquestionbeforetheHouse. Theministerwill needaspeakingnoteforeachreasonedamendmenttabledthatcanbeaddedtotheirspeech in the event one is selected.
• 28.7 Ifareasonedamendmentiscarried,orifthegovernmentmotiontogivethebillaSecond Reading fails, the bill cannot progress any further. The opposition maychoosenottovote againsttheSecondReadingofabill,acceptingtheprincipleofthebill,yetstillopposepartsor details of the bill in Committee. Second Reading can provide a useful indicator of the opposition's attitudes – and those of other members – to a piece of legislation and the arguments that are likely to be deployed.

Assistance to ministers

• 28.8 Theopeningspeechusuallygoesthroughthemainfeaturesofthebillclausebyclause. Briefingandbackgroundmaterialwillbeneeded:formandstylewilldependontheminister's preferences, thecharacterofthebillandhowcloselytheministerhasbeeninvolvedinthe detailofthebillbeforehand.AfullSecondReadingspeechmaywellberequiredoratleast speakingnotesonthemoretechnicalorcomplexpartsofthebill.Ifareasonedamendmentis selected the minister’s speaking notes should address it.
• 28.9 The more important representations received by the department from outside bodies betweenFirstandSecondReadingshouldbeoutlinedinthebackgroundmaterialsincethey may well lead to interventions during the minister's speech.
• 28.10 The closing speech must answer as many as possible of the points raised during the debate,andespeciallythoseaskingforadirectanswer.Officialsattendingthedebatewrite notesonthesepointsastheyareraisedandtheParliamentaryPrivateSecretaryhandsthem to the minister who will wind up. It is very important that these notes:
• ● are legible;
• ● identify the speaker by constituency as well as name (the annunciator screens in the Chamber and Vacher's Quarterly will help here); and
• ● clearlyandbrieflyindicatethepointraisedandthefactualanswerorthesuggestedlineof argument in reply.
• 28.11 The closing speaker may or may not want asetbrieffortheirfinalremarks.Iftheydo, officials should bear in mind that a closing speech on a motion not opposed will be quite differentfromoneonanopposedmotion:itwillbemoreconciliatoryandwillbedirectedto preparingthegroundforgoodprogressinCommittee.Sometimestheclosingspeakerasksfor anoralbriefingtowardstheendofthedebate,andtheremustbesufficientofficialspresentto provide this while still covering the debate in the Chamber.

Attendance of officials

• 28.12 The departmental parliamentary clerk will need to know beforehand which officials and legaladviserswillattendintheofficials'gallery(‘thebox’);thisshouldbesettledontheday beforethedebatetoallowtimeforsecuritypassestobearranged.Numbersshouldbekeptto aminimumasofficialsfromotherdepartmentsmayneedplacesandtheboxonlyholdsseven with sufficient space for everybody to deploy papers andforParliamentaryCounseltojoin them if they wish.
• 28.13 Ifmoreofficialsareneededtocoverdifferentpartsofthebill,theywillneedtowaitoutside andtaketurnsintheboxasneeded.NameswillbecheckedonarrivalbytheHouseofficials at the back of the Chair, who may also be willing to send in amessage,e.g.summoning someonefromtheboxtoanswerthetelephone(incomingcallersshouldaskfor“thebackof the Chair”). The official in the box may need to have an opposite numberavailableinthe departmentfortelephonemessageswhilethedebatelasts. Whilstinthebox(intheChamber or in the committee Room) officials shouldkeepanoteofanypointstowhichtheminister agrees to write or respond, so these can be actioned.

Box etiquette

• 28.14 Handheldelectronicdevicessuchasmobilephonesandtabletsmaybetakenintothebox but must be turned on silent mode and used inawaythatdoesnotimpairdecorum.This means that such electronic devices should only be used for purposes connected with the business of the House on which officials are assisting ministers or for other urgentofficial businessandshouldnotbeusedexcessively.Billteamsmaywanttoacquireadedicatedbill teammobilephonetoensurethatamemberofthebillteamcanbereachedduringdaysin Parliament.Billteamsmayalsousethephonesonthecommitteecorridorforofficialbusiness however it should be remembered that Members take precedence.
• 28.15 Nobagsorcasesareallowedintheboxthereforepapersshouldbecollatedinlargering binders that can be carried in andoutoftheboxeasily.Pagesinthesebindersshouldbe orderedcoherentlyandseparatedbydividerssothatnotesonatopiccanbefoundquickly whenitcomesupindebate.Takeafewcopiesso,ifneeded,pagescanbeannotatedand passedtotheminister.Aneasilytransportablecasesuchasabriefcaseonwheelsislikelyto be usefulforcarryingpaperstoandfromParliament.Departmentalparliamentarybranches mayhaveone.Billteamsshouldensurethattheytakewiththemallthepaperworktheyneed astherearenodedicatedprintingorcopyingfacilitiesforbillteamsinParliament.Incaseof needofficialsshouldaskthedoorkeeperinattendance,whomaybeabletoreferofficialsto appropriate House staff.
• 28.16 Conversationswhileintheboxshouldbekepttoaminimumandthereshouldbenoeating ordrinkinginthebox.Officials(pinkpassholders)mayusetheTerraceCafeteria.Allusersof the Palace of Westminster mayusetheJubileeCafeteriaoffWestminsterHallwhichoffers limited facilities and is also used by the public.
• 28.17 Decide in advance whether private secretaries or the bill team willreadHansardinthe Editors’ Office on behalf of ministers in order to suggest corrections.

Second Reading Committee

• 28.18 UnderStandingOrderNo.90,abillmaybereferredtoaSecondReadingCommitteeforits SecondReadingdebate.Thisisreservedforafew,veryuncontroversialbills.Taxlawrewrite billsareautomaticallyreferredtoaSecondReadingCommittee.UnderStandingOrderNo.59 Law Commission bills (other than consolidation bills) are also automatically referred to a Second Reading Committee. When the Second Reading Committee has reported its resolution, That the bill ought tobereadasecondtime,themotionforSecondReadingis takenforthwith(withoutdebate)ontheflooroftheHouse. TheWhipsOfficewillarrangethe Second Reading motion.

29. COMMONS COMMITTEE STAGE

Key points

• ● Committeestageusuallyinvolvesanintensiveperiodofworkforbothministersandofficials; preparationshouldbeginearly.CommitteeStageisaclause-by-clauseexaminationofabill and any schedules, usually allowing the House to suggest amendments to clauses or schedules and remove or insert new clauses or schedules.
• ● AfterSecondReading,mostbillsarecommittedtoapublicbillcommitteewithmembersof the committee nominated by the Committee of Selection so as to reflect the party composition of the House; some bills will have Committee on the floor of the House.
• ● All programmed public bill committees have the powertohearwrittenandoralevidence, generallyincludingwithministers.However,oralevidencewillnotnormallybeheardifthe bill started in the Lords or has already been subject to pre-legislative scrutiny.
• ● Amendments normally arise either from the members seeking to challenge or probe the Governmentonaparticularprovision,orfromtheGovernmentdecidingtoamendexisting clausesorinsertnewprovisionstoaddressdraftingissuesorrespondtopointsraisedduring earlier debate (although these should be kept to a minimum).
• ● AnygovernmentamendmentsmustbecollectivelyagreedwithintheGovernmentandtabled at least one sitting week in advance (see Chapter 22).
• ● The bill team will need to prepare notes for the minister on all amendments, both government and non-government.
• ● Thebillteamshouldensurethatanycorrespondencefromthebillministertothepublicbill committeeshouldbecopiedtotheclerkofthebillCommitteeandtotheHouse'sScrutiny Unit (SCRUTINY@parliament.uk) for publication as partof the bill committee's proceedings.
• ● Theministermustnotmakeanycommitments,legislativeornon-legislative,withouthaving firstcollectivelyagreedthese.Whereaministerpromisestoconsideramatter,thiswillbe noted by the clerk and amendments on the subject are likely to be selected at Report.

Work of the bill team in Committee

• 29.1 Publicbillcommitteestageisoneofthemostintensiveperiodsofworkinthebill'sprogress throughParliament.Thebulkoftheworkinvolvessupportinganyoralevidencetobegivenby theminister,andprovidingnotesonamendments(bothgovernmentandnon-government)for theminister.Thenumberofamendments(andtheamountofwork)willvaryaccordingtothe sizeandsubjectmatterofthebillandhowwellpreparedthebilliswhenitisintroduced.The teamcanhelptomanagethisworkloadbypreparingnotesfortheclausestandpartdebates before the bill is introduced.
• 29.2 The work at Committee Stage can be divided into:
• ● work in connection with the evidence-taking process;
• ● work on drafting clause / schedule stand part speaking notes;
• ● work on government amendments or new clauses; and
• ● work on opposition or backbench amendments and new clause

Committal

• 29.3 MostgovernmentbillsarecommittedafterSecondReadingtoapublicbillcommittee,with thepowertohearoralevidence(ifapplicable).AbillcanalsohaveitsCommitteeStage‘on theflooroftheHouse’ifspeedisessential,ifthebillisofmajorconstitutionalimportanceor, occasionally, because the bill is so uncontroversial that no amendments are expected. Committalprovisions(thatis,provisionsstatingtowhatformofcommitteeabillistobesent) are contained in a programme motion.
• 29.4 Ifabillisnotprogrammedandnoseparatecommittalmotionismade,thebillautomatically goes to a public bill committee without the power to take evidence. However, although uncommon,aseparatecommittalmotioncouldbemovedimmediatelyafterSecondReading, without debate, committing the bill to a Committee of the whole House or to a select committee.Alternativelyaseparatemotioncouldbemovedtoallowapublicbillcommitteeto take evidence (by giving it power ‘to send for persons, papers and records’).
• 29.5 Financebillsand,veryoccasionally,otherbillsaresplitbetweenaCommitteeofthewhole Houseandapublicbillcommittee.Thisrequiresamotionwhichcanbebrieflydebated,orwill be wrapped up, like othercommittalmotions,intheprogrammemotion.Whichclausesare taken on the floor is a matter for discussion between the usual channels: the bill team is unlikely to be involved in these decisions.
• 29.6 Billteamsnormallyfinditusefultotalktotheclerkofthecommitteeaboutthehandlingof the bill and this is encouraged. Remember, however, that to avoid confusion, the formal channel of communication between the department and the Public Bill Office is through ParliamentaryCounsel.Billteamsshouldmakecontactwiththeclerkofthecommitteeearly on and ensure that they are included on the clerk’s email list circulating the chair’s final selection list of amendments to committee members.

Membership of the public bill committee

• 29.7 MembersofpublicbillcommitteesarenominatedbytheCommitteeofSelectionsoasto reflectthepartycompositionoftheHouse.TheCommitteenormallymakesitsselectiononthe Wednesday afternoon following Second Reading. The minister may wish to suggest the selectionofmembersfromamongthoseinterestedinthebill.Thesesuggestionsshouldbe routed through the Government Whips' Office via the bill team.
• 29.8 Law Officers who are members of the House of Commons may attend committees ex officio;theymaythentakepartinthedebatesbutmaynotmoveanymotionoramendment,or vote. They may on the other hand be chosen as full members of the committee if this is desirable in view of the nature of the bill. A whip serves on all committees dealing with government bills.
• 29.9 ThroughoutCommitteeStagethechairofthecommitteewillbeadvisedbythecommittee clerk, who will have consulted Parliamentary Counsel on the selection and grouping of amendments and other procedural points. Generally, the same clerk will subsequently be responsibleforpreparationofaninitialdraftselectionforconsiderationbytheSpeakerwhen the bill returns to the floor of the House for Report Stage and 'ping pong'.

Attendance of officials

• 29.10 OneormoreofficialsfromthebillteamandthelegaladvisersattendCommitteesittings, occupyingtheseatstotherightoforbehindthechair.Officialsgoingtoandfromtheseseats shouldalwaysenterbythemembers'entrancetothecommitteeroomandmovequietlyalong thedaisbehindthechair,butshouldnotwalkacrossthedaisbehindthechairwhilethechair is putting questions or addressing the committee. Any additional officials can usually be accommodatedinthepublicgallery.Iforalevidenceisbeingtaken,officialsmaybeplacedin seatsbehindthemembers.Innocircumstancesshouldofficialsenterorcrossthepartofthe room in which the members sit while the committee is sitting. Permission to attend is not necessaryasitisfortheofficials'boxintheChamber,thoughsecuritypassesforthePalace of Westminster are required.
• 29.11 OnarrivalitisusualtogivetheHansardwriteracopyofallspeakingnotes.Parliamentary Counselmayattendandwill,amongsttheofficials,sitclosesttothechair,aspartofCounsel’s functionistoassisttheclerkinadvisingthechairon,forexample,questionsofscopeorthe effect of a proposed amendment. Notes from the bill team should be cleared by thelegal adviser and passed to the minister via the parliamentary private secretary.
• 29.12 Arrangements for public bill committee are dealt with by the Public Bill Office and the House of Commons Scrutiny Unit. Bill teams should make contact with the Scrutiny Unit beforeorassoonaspossibleafterintroductiontotheCommons,tohelpplanningforpublic bill committee.

Revised editions of Acts

• 29.13 Sufficientcopiesofup-to-dateeditionsoflegislationthatisbeingamendedbythebill,and isnotreadilyavailableelsewhere,shouldbeprovidedtotheclerkofthepublicbillcommittee for each member of the committee to be given their own personal copy.
• 29.14 The bill minister should consider sending an introductory letter to members of the committee,copiedtotheclerk,providinganyinformationthatmightbehelpfultothemembers andoutlininganyamendmentsthattheGovernmentmaybetablingduringthecommitteeif collective agreement has been obtained.

Timing and timetabling of proceedings in Committee

• 29.15 Committee stages of bills will generally be programmed. The initial programme motion taken after the Second Reading debate willsetan‘outdate’bywhichthecommitteemust report.The‘outdate’isagreedbetweentheusualchannelsandbillteamsshouldliaisewith theWhips’Officetodiscussproposedtimescales.Theprogrammingsub-committee,chaired byamemberofthePanelofChairs,willsetamoredetailedtimetabletocontrolproceedings in public bill committee. The level of detail will vary according to circumstances. The resolution,agreedbytheprogrammingsub-committeeandratifiedbythecommitteeitself,will generally include the proposed timesanddatesthecommitteewillmeet,thetimetableand proposed witnesses (preferably by nameoforganisation,ratherthanindividual)fortheoral evidence sessions, and the order the bill will be considered by the committee.
• 29.16 Thecommitteewillmeetatsettimes,usuallyonTuesdaysat 9:25amto11:25amand2pm onwards, and Thursdaysat11:30amto1pmand2pmonwards.Theafternoonsessionson anydaycanrununtilanyhourandcontinueuntilthecommitteedecidestoadjourn(normally on a motion moved by the government whip on the committee).
• 29.17 Theresolutionagreedbytheprogrammingsub-committeeismovedbytheministerinthe publicbillcommitteeatthebeginningofthefirstday,andcanbedebatedforuptohalfanhour (although it rarely is). The minister may wish to make a short opening statement but this should relate to the programme resolution rather than the merits of the bill.

Oral evidence in a public bill committee

• 29.18 ItisnormalpracticeforbillswhichstartintheHouseofCommonsandarecommittedtoa publicbillcommitteetotakeoralevidence.Oralevidencesessionsmostoftentakeplaceat thestartofcommitteeproceedingstoinformline-by-linescrutinyofthebill.Whereabillhas received parliamentary pre-legislativescrutiny,justoneevidencesession,orinsomecases none,maybeappropriate.Theremaybeotherexceptionalcaseswhereusualchannelsagree to dispense with oral evidence-taking for a programmed bill.
• 29.19 Thedecisionwhethertohearoralevidenceistakenbytheusualchannels,agreedbythe programming sub-committee on the bill and ratified by the committee itself.
• 29.20 ThepublicoralevidencesessionsoperateundertheprogrammingstructureforCommittee, sodepartmentscanstillplanonthebasisofan‘outdate’,setbytheprogrammemotion,by whichthebillmustbereportedfromCommittee.Theprocessallowstheavailabletimetobe divided up between evidence-taking and clause-by-clause scrutiny.
• 29.21 The schedule for oral evidence will form part of the resolution which the programming sub-committeewillagreeandputtothefullcommitteeforapproval. Liketheotherpartsofthe motion,itwillbedraftedbyParliamentaryCounselonthebasisofinstructionsfromtheWhips’ Office, arising from discussion through the usual channels. Bill teams should discuss oral evidencesessionswiththeWhips’Officeearlyonandincludeapotentiallistofwitnessesin their parliamentary handling strategy.
• 29.22 Thedecisionastowhomtoinvitetogiveevidenceisforthecommittee,butdepartments willwanttoconsideradvisingtheministeronwhichotherwitnessesorgroupsofwitnesses would be appropriate, balancing available time, the different interests involved and any consultation process. It is also possible, and indeed sometimes appropriate, for ministers and/or officials to give evidence. Departments should liaise with the Government Whips' Officeaboutplansforthecommitteeinthisrespectasthewhipinchargeofthebillwilldiscuss proposedwitnessesinusualchannels. BillteamsshouldcontacttheWhipsOfficewhocan advise on how oral evidence sessions operate.

Written evidence in a public bill committee

• 29.23 Allprogrammedbillsinpublicbillcommittee,whethersubjecttooralevidencehearingsor not,havethepowerto publishwrittenevidence. Amotiontoreportanysuchevidencetothe House (i.e. to publish it) is normally agreed by the committee without debate or division. Parliamentary Counsel table the motion in the minister’s name on authority from the department.Itistakenaftertheprogrammeresolutionhasbeendebatedandagreedonthe firstdayofthecommittee’sproceedings.Anywrittenevidence(whetherfromthosegivingoral evidence,orfromothers)willbereceivedandprocessedbytheHouseofCommonsScrutiny UnitworkinginsupportofthePublicBillOffice,butwillnotbepublisheduntilthecommittee has agreed the motion.
• 29.24 Anywrittenmaterialreceiveddirectlybythedepartmentwillnotcountformallyaswritten evidencetothepublicbillcommittee,althoughifitappearsthatthematerialhasbeensentto the department by mistake or under the impression that this was the correct route for submission, the department can redirect it to the Scrutiny Unit.
• 29.25 The public bill committee is responsible for deciding whether it formally accepts any materialreceivedas‘evidence’,howandwhenitwillbemadeavailabletothemembersofthe committee,andhowitwillbereportedtotheHouseandpublished.Thebillministerandwhip willreceivecopiesasmembersofthecommittee.Notethatletterstothecommitteefromthe bill minister may wellhavethestatusof‘evidencetothecommittee’and,ifpublished,may become liable to the rule inPeppervHart.Writtenevidenceacceptedbythecommitteeis publishedontheinternetregularlywhilethecommitteeissitting;allofitispublishedinhard copy as part of the Hansard transcripts of committee proceedings.
• 29.26 Departments may wish to encourage stakeholders to submit written evidence. Written evidencecanonlybereceivedwhiletheCommitteeissitting;ifaCommitteeconcludesearly, evidencewillnotbeacceptedbytheHouse. Anysubmissionsshouldthereforebesenttothe Scrutiny Unit as soon as the Committee starts to ensure it can be received and published.

Supporting the public bill committee evidence-taking process:liaisonwiththeHouseof Commons Scrutiny Unit

• 29.27 During the oral evidence stage, bill teamswillneedtobriefthebillministerforanyoral evidencetheyaretogive(andattendinsupportoftheministerifinvited)andfollowtheother oralevidencesessionsinordertoinformtheirworkonthebill.Theywillalsoneedtofollow any written evidence which is received. Written evidence is published on the parliament website (find each bill here:https://bills.parliament.uk/and go to 'Publications').
• 29.28 The House of Commons Scrutiny Unit coordinates briefing to members for the evidence-takingstagesofpublicbillcommitteeandprocesseswrittenevidence.Subjecttothe agreementofthewhipinchargeofthebill,earlydiscussionsbetweendepartmentsandthe ScrutinyUnitwillbeadvisable(ifnecessaryonaconfidentialbasis)as,whatevertheoutcome of the discussions in the usual channels and the final proposal of the programming sub-committee,itwillbetheScrutinyUnitwhichhastomaketheformalarrangementsforthe attendance of witnesses.
• 29.29 DepartmentsmayalsowishtoliaisewiththeScrutinyUnitoverpublicityarrangementsfor invitingwrittenevidence.TheParliamentwebsitehasbasicinstructionsforthepubliconhow to submit evidence but the Scrutiny Unit may be able to propose a form of words for incorporationintodepartments'ownpublicityaboutthebilltoensureacoordinatedandhelpful approach.
• 29.30 The Scrutiny Unit may also wish to engage with departments,whilstworkingwithother HouseservicesincludingtheLibrary,astothecontentandtimingofbills(includingaheadof thebill'spublication,wherepossible)inordertofacilitatetimelyandaccuratebriefing.Contact details are available in Appendix B.

Completion of oral evidence and transition to clause-by-clause consideration

• 29.31 Usually all the oral evidence sessions will take place at the beginning of the publicbill committeeproceedings.Itispossibleforline-by-linescrutinytostartonthesamedaythatoral evidencefinishesbutitwillusuallystartatthenextsession.However,itispossibleforanoral evidence hearing to be scheduled at a later point afterclause-by-clauseconsiderationhas started.

Order of consideration during clause-by-clause consideration

• 29.32 Ifnoprovisionismadetothecontrary,thecommitteegoesthroughthebillclausebyclause in the following order:
• ● amendments proposed to each clause, followed by thequestionthateachclausestand part of the bill;
• ● new clauses proposed;
• ● amendments to schedules and questions that each schedule stand part of the bill;
• ● new schedules; and
• ● amendments to the long title.
• 29.33 Theprogrammeresolutioncanvarytheorderabillisconsidered. Itiscommonpracticeto change theorderofconsiderationtotakeschedulesimmediatelyaftertheclausestowhich they relate. More substantial changes to the order of consideration needtobediscussed through the usual channels. DepartmentsshouldcontacttheGovernmentWhips'Officeto discuss.
• 29.34 The committee may disagree to any (or indeed all) of the clauses and schedules.
• 29.35 Amendmentsthatarenotrelevanttothesubjectmatterofthebillarebeyonditsscopeand cannot be entertained unless a special instruction has been given by the House to the committee. There are limits on the matters that can be made the subject of an instruction.
• 29.36 Amendmentswhichlackthenecessarysanctionofamoneyorwaysandmeansresolution are not in order and will not be selected for debate.
• 29.37 The chair of the committeehasthesamepowerastheSpeakerhasonthefloorofthe Housetocheckirrelevanceorrepetitionindebate,refuseorallowdilatorymotions,selectand group amendments or decide that they are out of order and decide whether to accept a closureorputthequestiononclausestandpartwithoutdebate.Adilatorymotionisamotion toadjournadebate.Notethatonceabillisprogrammed,dilatorymotionsmaybemovedin Committee of the whole House only by a Minister of the Crown.
• 29.38 There is no rule against a member of the committee speaking more than once onany question in public bill committee or in Committee of the whole House.

Tabling government amendments in Committee

• 29.39 ThissectioncoversproceduralpointsspecifictotablingamendmentsintheCommons.Bill teams should also read the main section on amendments, which describes types of governmentamendmentsandhowtoobtaincollectiveagreementforamendmentstobills(see Chapter 22).
• 29.40 Amendments may be put down by any member of theHousebutmustbemovedbya memberofthecommittee.Anamendmentputdownbyonememberofthecommitteemaybe movedbyanothermember.Amendmentswhichnomemberofthecommitteehassignedare therefore unlikely to be selected.
• 29.41 WherepossiblegovernmentamendmentsshouldbetabledatCommitteeStageratherthan Report, since more time for debate is available.
• 29.42 Government amendments must be put down inthenameoftheleadminister.Theonly exceptiontothisruleiswhereabillisclearlythejointresponsibilityoftwodepartmentsorfor territorial amendments, where the name of more than one minister may be used. These exceptional cases should always be discussed with Parliamentary Counsel, the PBL Secretariat and the Whips’ Offices. Whichever style is decided upon should be used throughout Committee. If alistofnamesistobeused,officialsandParliamentaryCounsel should have the list before Committee Stage begins.
• 29.43 Allgovernmentamendments(andproposalstoacceptnon-governmentamendments)must be cleared by the PBL Committee and by the relevant policy committee ofCabinetwhere appropriate.Onceagovernmentamendmenthasbeendrafted(forwhichthedepartmentwill needtoinstructParliamentaryCounsel),ParliamentaryCounselwillneedauthorityfromthe minister to table it on their behalf.
• 29.44 Amendments should ideally be tabled at least one sitting week in advance to give the committee sufficient notice but must be tabled no later than three sitting days before the earliestdayonwhichtheymaybereachedinproceedingsofthepublicbillcommittee,ortwo sitting days in Committee of the whole House. As a general rule therefore, for public bill committeeonaTuesday,amendmentsmustbetabledbeforetheHouserisesonaThursday andforpublicbillcommitteeonaThursday,amendmentsmustbetabledbeforetheHouse rises on a Monday.
• 29.45 Notethatnon-sittingFridaysareregardedassittingdaysforthispurpose,asarecertain specified days towards the end of a periodic adjournment (a recess). So, for example, if amendmentsaretabledonaThursdayinrecess,theHousereturnsthenextMondayandthe committeesitsontheTuesday,theamendmentswillnotusuallybestarredontheorderpaper onTuesday(andthereforemaybeconsideredbythecommittee).Inpractice,theonlydays thatdonotcountassittingdaysfortablingpurposesareweekends,bankholidaysandmostof recess.
• 29.46 Thebillteamshouldensurethatministerialapprovalisobtainedanddraftingiscompleted intimetomeetthesedeadlines(billteamsshouldensurethattheycheckwhattimetheHouse rises as this is the deadline for tabling). The minister may wish to send a short note to committee members giving the reasons for the amendment(s).
• 29.47 Totableonagivenday,amendmentsmustbehandedintothePublicBillOfficebeforeit closes. The closing time may vary depending on what time the House rises that day and ParliamentaryCounsel,whowilltabletheamendments,willadvise.Itisimportantnottoleave tablinguntiltoolateintheday;businessintheHousecanfinishearlierthanexpectedandwith littlenoticesodepartmentsshouldmonitortheparliamentaryannunciatorandensuresufficient timetotabletheamendments.Amendmentstabledthedaybeforethesittingofacommittee will appear with a black star on the order paper for that sittingandthosetabledtwodays beforewillappearwithanoutline(or‘empty’)star.Asarule,chairsdonotusuallycall‘starred’ amendments, except in very exceptional circumstances.
• 29.48 Manuscriptamendmentsmaybehandedinonthedaythecommitteewillreachthembut chairswillnotusuallyacceptmanuscriptamendmentssaveinexceptionalcircumstances,for example,wheretheamendmentisgenerallydesiredandarisesoutofcurrentdiscussionor wheretheGovernmenthastableditsamendmentssolatethechairconsidersitonlyfairto accept manuscript amendments to them.

Tabling of non-government amendments

• 29.49 Amendmentsandnewclausesappearnumberedinthevotebundleonthedayafternotice ofthemishandedin.TheyareusuallyavailableelectronicallyontheBillpagesontheevening of the day of tabling. The numbering of amendments reflects the order in which the amendmentsweretabled.Amarshalledlistinthecorrectorderisissued(onawhitesheet)on the morning of the day the committee is sitting. In the run-up to a committee session, departmental parliamentary branches should check with the Public Bill Office eachdayfor advance notice of any amendments that have been tabled and can collect copies of the amendmentsatanytimeuptotherisingoftheHouse.Itshouldberememberedthatonsome sittingFridaystheHousemayrisebefore3pm,anditislikelytohaverisenbefore5:30pmon aThursdayevening.Amendmentsmaybetabledonnon-sittingFridaysupuntil4:30pm.Bill teams should agree with their parliamentary branches what time they will send the list of amendmentsforeachsitting,andshouldscanandallocateimmediatelytopolicyleadsforthe preparation of notes on amendments.
• 29.50 Amendments identify the clause, page and line number to which they relate, and will propose to do one of the following:
• ● leave out words;
• ● leave out some words and insert others; or
• ● simply to insert or add new words.
• 29.51 The amendment“toleaveoutfromwordXinlineptowordYinlineq”wouldhavethe effect of deleting the words between X and Y but neither of those words themselves. An amendmentcanproposetoleaveoutaspecifiedelementwithinaclauseorschedule,suchas asubsection,paragraphorsub-paragraph.Noamendmentisneededtoleaveoutaclauseor schedule since the question on each is proposed automatically. Nonetheless, if the Governmentintendstovoteagainstaclauseitshouldsignalthefactinadvancebytablinga (strictly unnecessary) amendment to leave out the clause.

Selection and grouping of amendments

• 29.52 Apartfromamendmentsofwhichinadequatenoticehasbeengiven,thechairmayrulean amendmentoutoforderforoneofseveralreasons(e.g.irrelevance,pointalreadydecidedor being out of scope). They may also decline to select an amendment if, for example, it is frivolous or the point is better covered by another amendment.
• 29.53 Thechairwillalsogroupamendmentsfordiscussionwheretheyallbearononesubjectof debate.ThecommitteeclerkusuallyconsultsParliamentaryCounselbeforeadvisingthechair onthegroupingandselectionofamendments.Ifthedepartmenthasparticularpreferencesas tothegroupingoftheamendmentstheseshouldbecommunicatedtotheClerkbeforehand (eithervia,orfollowingdiscussionwith,ParliamentaryCounsel).TheClerkwillusuallyemail thechair'sprovisionalselectionandgroupingofamendments(atleastonaprovisionalbasis) to interested parties, including a list of recipients in thedepartment,onthedaybeforethe sitting. Final versions of groupings lists are available in the public bill committee room.
• 29.54 Where one amendment paves the way for a more substantial later one (a ‘paving amendment’), the substantive amendment may be debated with it. In the same way, a consequentialamendmentmaybedebatedwiththesubstantiveamendmentgoingbeforeit. The‘consequential’willnotbemovedifthesubstantiveamendmenthasbeenlostandwillbe movedformally,whentheappropriatepointinthebillisreached,ifthesubstantiveamendment has been made.
• 29.55 Anamendmentcanbeproposedtoanamendment.Ifthishappens,theamendmenttothe amendment is moved and disposed of before a decision is taken on the original amendment.

Grouping

• 29.56 Each day a list of amendments will be issued under the authority of the chair of the committee. It may look like this:

Clause 1

1 + 7

3 + Gov 4 + Gov 10 to Gov 12 + Gov 5

6 + NC17 ...

• 29.57 The clause heading refers only to the position of the first amendment in the group. Subsequent amendments in the group may be scattered throughout the bill.
• 29.58 Debate on all the amendments will take place on the first amendment in each group. Howeverifgovernmentamendmentsaredebatedaspartofagroup,theministerwillneedto movethemformallywhentheyarereached,whichmaynotbeuntildaysorweekslater(the chair of the committee will usually prompt the minister to do so).
• 29.59 Theamendmentsarelistedineachgroupintheorderinwhichtheyfalltobeconsidered, not numerical order. The order of consideration is usually determined by the programme order.
• 29.60 Governmentamendmentsarenumberedinthesamesequenceasallotheramendments;it ismerelyconventionthattheyaremarkedas‘Gov’ontheselectionlist.Billteamswillneedto check that no government amendments have been left un-noted and that no backbench amendments have been mis-identified as government.

Keeping track of amendments

• 29.61 Averylargenumberofnon-governmentamendmentsmaybetabledforCommittee(and Report)Stageandthebillministermustrespondtothemall.Agoodsystemforkeepingtrack of each amendment is therefore critical,particularlyforLordsstages,wherethenumbering systemcanmakeithardertokeeptrackofamendments,evolvinggroupingsandthedrafting of speaking notes. Note that the numbering systems for amendments in the Lords and Commons differ.
• 29.62 Attheveryleast,aspreadsheetshouldbeusedtorecordamendmentsastheycomein and provide a means of checking that speaking notes have been drafted. A spreadsheet allowsamendmentstobesortedintogroups,andthesegroupstobeassignedtoanofficialfor drafting.Italsoallowsbillmanagerstoassigna‘dummy’numbertoamendmentswhichhave yettoappearonthemarshalledlist,sotheycanbeassignedtoprovisionalgroupsandsent outforspeakingnotestobedrafted.Thespreadsheetgenerateswhatwillbecomethefinal numbers when the list is marshalled. When the marshalledlistarrivesthebillteamshould carefullycross-check,amendanydummynumbersusedinspeakingnotesandgothroughthe groupingsagain.Thisshouldbequickerthangoingthroughthemarshalledlistandconverting each number in turn.

‘Clause stand part’ (and equivalent for schedules)

• 29.63 Onceallamendmentsrelatingtoanindividualclausehavebeendisposedofor,ifthereare nosuchamendments,assoonastheclauseisreached,thequestionisthenproposedfrom thechair“Thattheclause[asamended]standpartofthebill”.Billteamsshouldnotethatthe ministerdoesnotmovethismotion,northatschedule‘n’bethe‘nthschedule’tothebill:the questionisproposedbythechairwithoutanymotion.IftheGovernmentintendstoleaveouta clause,itshouldtableanamendmenttothiseffect.Thisamendmentwillnotbeselectedfor debate but it signifies the Government's intention to vote against the proposition that the clause stand part of the bill. It willbeespeciallyimportanttomakesurethatmembersare awareoftheGovernment’sintentiontoleaveoutanyclauses,sincetheirnaturalassumption (on the Government side) is that they will be voting ‘aye’ on any stand-part decisions.
• 29.64 Dependingonthesignificanceoftheclauseandtheextenttowhichithasalreadybeen discussed,theremaybeadebateontheprincipleoftheclauseasawholeoranypointinit. Thechairhaspowertodirectthattheprincipleoftheclausehasbeenadequatelydealtwithin debateontheamendmentsofferedtoitbutthisisonlyrarelyexercisedsoasnottoallowa clause stand part debate. Occasionally the debate on clausestandpartwillappearonthe groupinglistexplicitlylinkedtoanearliergroupofamendments,toindicatethattherewillbe noseparatedebate. Itisadvisabletodraftnotesonclausestandpartasearlyaspossiblein proceedings, perhaps even before a bill is introduced into Parliament but definitely before Second Reading. Any format that suits the minister's preferences could be used.

New clauses or schedules

• 29.65 Anewclauseisfirstdebatedonthequestionthattheclausebereadasecondtime(First Readingtakesplacewithoutdebateattheconclusionofthemover'sspeechandissignified bytheclerkreadingthetitleofthenewclause.)Ifthequestionisagreedto,amendmentsmay be proposed to the clause. After they have been disposed of the question isput,thatthe clause(asamended)beaddedtothebill.Thesameprocedureappliestoanewschedule. Thelocationofanewclauseinthebillisnotspecifiedbythemover(asitisintheLords),but isnotifiedtotheclerkofthepublicbillcommitteebyParliamentaryCounsel.Occasionallya new clause may be grouped with arelatedamendmentorwithaclausestandpartdebate (particularly if the new clause is a substitute for the existing clause).

Producing speaking notes on amendments

• 29.66 Speakingnotesandbackgroundbriefingwillbeneededonallamendments,newclauses, schedules and new schedules, even those which have not been selected by the chair (although clearly priority will be given to those which have) because there could be late changesintheselectionandgroupingorthemembermaytrytomakethepointraisedbya non-selected amendment during the ‘clause stand part’ debate.
• 29.67 Almost daily sessionswiththeministerandfrequentcontactwithParliamentaryCounsel mayberequiredtosettlethelinetobetakenoneach.Timeisoftensoshortatthisstagethat a good understanding with the minister about what need or need not be cleared by the ministerisinvaluable.Thefactthatamendmentslookoutoforderorunlikelytobeselected shouldnotbereliedontoomuchalthoughParliamentaryCounselwillbeabletoadvisethat an amendment is likely or unlikely to be selected.
• 29.68 Asthereisoftenlittletimeavailabletoproducenotesonamendments,thebillteamshould arrangewiththeparliamentaryclerktogettheearliestpossiblenoticeofnewamendments.It maybepossibletoleaveasideforthepresentamendmentsreferringtoclausesfaraheadin the bill but a good margin should be allowed because committee proceedings canalways begin to run faster without warning.
• 29.69 Thebillteammustalsounderstandwhichamendmentsgotogether,whattheirintentionis and what their effect would be (which may be very different). Consultation with the legal adviser or Parliamentary Counsel may be needed to inform the position the Government decides to take on each amendment.
• 29.70 Depending on the minister's personal preference, the note drafted oneachamendment should either be headed ‘Government Amendment’ (if it is one), or should begin by indicating in a short heading the line recommended e.g. ‘Resist’, ‘Accept in principle’, ‘Accept’ or ‘Agree to consider’. If the recommendation is to be anything but ‘Resist’, Parliamentary Counsel must be consulted before the recommendation is made to the minister.
• 29.71 Managingthedraftingofspeakingnotesforamendmentsisoneofthemostchallenging responsibilitiesforabillteam.Itisessentialthatthebillteamdevelopastandardtemplatefor drafting notes on amendments using a format clearly understood byministersandofficials alike. Any template that meets the minister's preferences could be used.
• 29.72 The substance of the notes on amendments needs to be carefully thought out. For governmentamendmentsthisshouldbestraightforwardbutfornon-governmentamendments it is not always easy to work out just what the member is trying to achieve or why.
• 29.73 For an ordinary amendment, the structure would be:
• ● This amendment…[and then summarise what it says];
• ● The practical effect of the amendment would be to…[and then spell out the consequences];
• ● The intention is thought to be…[and then have an informed guess and explain what it is based on, for example, it was raised at Second Reading or during a Westminster Hall debate.
• 29.74 Havinganalysedtheamendmentinthisway,thenoteshouldthensetoutthelineorlines of argument recommended.
• 29.75 Thebillteamshouldclarifyinadvancewhattheministerwants:eitheraseriesofpointsset outcrisplyandclearly,intolerablyshortsentences,fortheministertobuildintoaspeechin theirownwayor(asismoreusualwithanyministerunfamiliarwiththesubject)aspeaking notewhichtheycansimplydeliververbatim,addingonlytheconventionalcourtesies(which officialsneednotdraft).Thereis,ofcourse,adegreeofriskwithaspeakingnotedraftedin advance:ifwhentheamendmentisproposedofficialsrealisethattheyhavemissedthepoint, they will have to warn the minister somehow.
• 29.76 Itmaybehelpfulforthebillteamtocontactothermembers,particularlymembersofthe publicbillcommittee,includingthoseinoppositionparties,directlytodiscussthepurposeof their amendments but the bill minister's approval should be sought before doing this.
• 29.77 Notes on amendments should never devote more than a passing reference to the adequacyorotherwiseofthedrafting.Oppositionandbackbenchamendmentsareveryoften defectiveinsomedegreebutitisfortheoppositionandbackbencherstoproposechangesto the bill and for the Government, which alone has drafting resources, to clean up the drafting.
• 29.78 Whereseveralamendmentsareconsequentialonanearliersubstantiveamendmentand thewholegroupislikelytobeconsideredtogether,theymayallbecoveredbythesamenote. If this is done it must be made clear that the note does in fact cover a number of amendments.
• 29.79 ParliamentaryCounseldonotnormallyreviewnotesonamendments,althougharehappy to advise on specific queries if time is available.
• 29.80 Onthequestionthattheclausestandpartofthebill,pointsmayberaisedofwhichnotice hasnotbeengiven.Theexplanatorynotesareofvalueherebutofficialsmustbereadytogive ministers notes on any points if required. What was said about notes in Second Reading debatesapplieshere.Whileministersaremoreaccessibleinthecommitteeroomthaninthe Chamber, speeches tend to be shorter so the temptationtodelugetheministerwithnotes should be resisted.
• 29.81 Ministers may wish to have speaking notes for use on ‘clause stand part’, or the explanatorynotesoranynotesonclausesthemselvesmayincludepassagessuitableforsuch use.
• 29.82 Generally,thetoneofproceedingsinpublicbillcommitteeisverydifferentfromthatinthe Chamber. Practical points are more in evidence than debatingpointsandallmembersare usuallyanxioustoseethatthebillisimprovedbythecommittee'sscrutiny.Theministerwill usuallywishtorespondaccordingly.Particularlyintheearlystagesofcommitteeproceedings, theminister'sattitudemaymakeagreatdifferencetotheprogressthatcanbemade.Thebill team'sadviceandthewayinwhichtheirnotesareexpressedshouldaimtohelptheminister to strike the right note.

Doprovide full factual analysis and give reasons why an amendment is to be resisted as fully as possible.

Don'tbegin briefing with political point scoring,concentrate on the opposition's record, or suggest the minister commit to look again at an issue unless the policy really will be reconsidered.

Providing text of existing legislation as amended

• 29.83 If the bill team has prepared a text showing howthebillwouldlookifparticularsetsof amendmentswereagreedtoaspartoftheminister'sbriefing,theyshouldpublishthispartof thebriefing(onlythetextofthebillasitwouldlookifamended,notanyofthesurrounding commentaryorbriefing)andsupplycopiestomembersofthepublicbillcommittee.However, thereisnoobligationondepartmentstopreparesuchbriefingformembersofthepublicbill committee if they had not planned to produce it for the minister anyway.

Commitments

• 29.84 Ministers must not make commitments to bring forward amendments or to accept non-government amendments without clearance from the PBL Committee and from the relevant policy committee if the amendment would effect a change in policy.
• 29.85 Non-legislativecommitmentsdonotrequirePBLCommitteeclearanceunlesstheyrelate tofutureuseofparliamentarytime,forexample.acommitmenttoholdanannualdebateona certain topic, but will require policy clearance if they would effect a change in policy.
• 29.86 The bill team should keep a list, day by day, of commitments made by ministers in Committee.Actionshouldbesetintrainimmediatelyonthesepoints.ParliamentaryCounsel must be asked to draft the necessary amendments; or officials to prepare letters for the minister to send to the member etc., which will generally be copied to the chair, other members of the committee, the committee clerk and the Library of the House.
• 29.87 If a minister promises to consider a matter, the promise will be noted by the clerkand amendmentsonthesubjectarelikelytobeselectedonReport.Ministersshouldaccordingly beselectiveinsuchpromisesorReportStagewillbecomearepetitionofCommittee.When suchpromisesaremade,thenecessaryworkshouldbeginatonceandnotbeleftuntilthe end of Committee Stage.
• 29.88 Iftheministeragreestowritetoamemberofthecommittee,thelettershouldbeaddressed to that member of the committee and sent within 24 hours, if possible. This letter should generallyalsobecopiedtothechair,othermembersofthecommitteeandthecommitteeclerk and a copy placed in the Library of the House.
• 29.89 AttheendofCommitteeitisusualforthebillministertothankeverybodywhohasbeen involved for their hard work.
• 29.90 Decide in advance whether private secretaries or the bill team will read public bill committee Hansard on behalf of ministers.

Select committees on bills

• 29.91 OccasionallyabilliscommittedafterSecondReadingtoaselectcommittee.Thisisusual for hybrid bills or the quinquennial Armed Forces Bill. Thecommitteetakesevidenceand deliberates,likeanyselectcommittee,andmayproduceareport.Itthengoesthroughthebill in private and amends it as it thinks fit. Once the select committee has reported it to the House,thebillisnormallyrecommittedtoapublicbillcommitteeortocommitteeofthewhole House.TheprogrammemotionmovedafterSecondReadingwillusuallycontainprovisionfor recommittalafterproceedingshaveconcludedintheselectcommittee. Inrecenttimesthis procedure has been used only for hybrid bills and for the quinquennial armedforcesbills, wherethestageatwhichthecommitteeisconsideringamendmentsisnowheldinpublic(this is provided for in the programme motion) and proceeds in a similar way to a public bill committee.

30. COMMONS REMAINING STAGES (REPORT AND THIRD READING)

Key points

• ● TheChiefWhipandLeaderoftheHousedecidewhenReportStageistaken,thoughthebill team should give advice based on the time likely to be needed for preparing amendments.
• ● ReportStageistakenontheflooroftheHouse.Debateisconfinedtoamendmentstoinsert new clauses or schedules, to amend the existing text, or to leave out clauses or schedules.
• ● AmendmentsfulfillinggovernmentcommitmentsmadeinCommitteemayneedtobemade atReport,butshouldbekepttoaminimum.Ifalargenumberofgovernmentamendments aretabled,theremaybecallsforadditionaltimetobegiventoconsiderationorforthebillto be recommitted to public bill committee, which will significantly delay the progress of the bill.
• ● It is for the Speaker to select amendments for debate. Not all amendments tabled are selected. DepartmentalparliamentarybranchesshouldcollecttheSpeaker'sselectionand grouping of amendments once it is available, usually on the afternoon of the daybefore Report, although it is likely the clerks will circulate an electronic copy.
• ● NotesonamendmentsarerequiredinthesamewayasforCommittee.Asignificantnumber of amendments at short notice may make Report Stage the busiest stage of all for officials.
• ● The purpose of Third Reading istoallowtheCommonstolookatthebillasithasbeen amendedandreaffirmitsdecisionatSecondReadingtoallowthebilltoproceed.Itisalmost invariablytakenimmediatelyafterReport. NoamendmentsmaybemadetoabillonThird ReadingintheCommons.Ifissuesofsubstancestillneedtobeconsideredthebillmaybe recommitted.
• ● ThedeadlinefortablingamendmentsforReportStageisthreedaysbeforehand,although Government should aim to table one week in advance.

Report Stage

• 30.1 When Committee Stage is concluded,thebillisreportedtotheHouse,andformallyset downforconsiderationonthenextsittingday,soitappearsontheremainingorders(‘Future businessB’intheorderpaper).AlaterdayisappointedforitsconsiderationbytheHouse, andannouncedintheweeklybusinessstatement.ConsiderationonReporttakesplaceonthe flooroftheHouseandthearrangementsforattendanceofofficialsareasforSecondReading. AbillreportedwithoutamendmentfromCommitteeofthewholeHouseproceedsdirectlyto Third Reading; there is no Report Stage.
• 30.2 When a bill has completed its Committee Stage (whether in a public bill committee, a CommitteeofthewholeHouseorboth),itwillordinarilybereprintedifithasbeenamended. There is an exception in relation to fast-track bills, where the Report Stage follows on immediately after completion of proceedings in a Committee of the whole House. The parliamentary clerk should obtain a sufficient number of copies of any reprints of the bill.

Amendments at Report

• 30.3 On Report, the House considers the whole bill in its current form,nottheamendments already made. No questions are putforeachclausetostandpartofthebill.Therefore,a proposal to leave outaclauseorconsecutiveclausestakestheformofanamendment,of which due notice must be given.
• 30.4 Atthisstage,amendmentsfulfillingcommitmentsmadebytheministerinCommitteemay needtobeputdownbytheministerorpossiblyagovernmentdraftedamendmentwillhave been offered to a backbench member whose amendment in Committee was accepted in principle,andwillbeputdownbythatmember.However,amendmentsatReportshouldbe kepttoaminimum.IfalargenumberofgovernmentamendmentsaretabledforReport,there maybecallsforadditionaltimeorforthebilltoberecommittedtopublicbillcommittee,which can significantly delay the progress of the bill.
• 30.5 The order in which the billisdiscussedonReportdiffersfromthatinCommitteeandis normally as follows (though it can be changed, usually through a programme motion):
• 1. New clauses together with any amendments proposed to these;
• 2. Amendments to existing clauses;
• 3. New schedules together with any amendments proposed to these;
• 4. Amendments to existing schedules;
• 5. Amendments to the long title.
• 30.6 Except in the case of private members’ bills (where that member's amendments take precedence), new government clauses are taken before other new clauses and new government schedules are taken before other new schedules.
• 30.7 Non-government amendments for Report may be tabled up to three days before the debate.Itisadvisableforsomebodyfromthebillteamordepartmentalparliamentarybranch togotothePublicBillOffice(onthethirdfloorintheliftbehindtheofficials’box)about30 minutesaftertheHousehasrisentocollectanyfurtheramendmentstabledthatday,aspolicy leads will, of course, need to prepare speaking notes on the amendments in time for the minister's box the following day.

Selection of amendments

• 30.8 OntheafternoonbeforethedaywhenReportStageistobetaken,theSpeakerconsiders theamendmentstabled(unlessthisisaMonday,inwhichcaseitwouldbethatmorning).The power of selection is more freelyusedonReportthaninCommittee.In1967theSpeaker, Horace King, set out the criteria that he used for selection and these remain a good guide:
• ● All government amendments or, equally, all amendments by the member in charge of a private member's bill;
• ● All involving some undertaking by the government;
• ● New 'compromises' or 'halfway' proposals;
• ● Important issues carefully debated in committee but still containing vital matters worthy of a 'last look';
• ● New matters brought in by members of the committee or non-members;
• ● New developments that have occurred since the committee examined the bill.
• 30.9 The clerk will circulate a copy of the Speaker's provisional grouping and selection of amendments.ItisusuallyavailablethedaybeforeReport.Thefinalgroupingandselection maynotbeconfirmedbytheSpeakeruntilthedayofdebatesobillteamswillneedtoreactto anychanges. Groupingandselectionmayaffectthewayinwhichtheministerwillhandlethe debateandbillteamsshoulddiscussthiswiththeminister.Afloodofamendmentsatshort notice may make Report stage on a contentious bill the busiest stage of all for officials.
• 30.10 NotesongovernmentandotheramendmentsornewscheduleswillbeneededonReport in the same way as in Committee. If all or part of the bill was considered in a public bill committee,onlythememberinchargeofthebill(anyminister,inthecaseofagovernment bill)andthememberwhohasmovedanewclauseoranamendmentareentitledtospeak more than once (without leave). No other member may speakmorethanonceperdebate without the leave of the House. There are no clause stand part debates.

Third Reading

• 30.11 Third Reading is usually taken immediately after Report. Its purpose is to allow the Commons to look at the bill as it hasbeenamendedandtoreaffirmthedecisiontakenat SecondReadingthatthebillshouldproceed.Itwould,forexample,beopentotheHouseto decidethattheamendmentsmadetothebill,orthefactthatnoamendmentshadbeenmade, meant that in spite of the broad decision taken at Second Reading that such a bill was desirable, this particular bill should not be passed.
• 30.12 NoamendmentsmaybemadetoabillonThirdReadingintheCommonsunlesstheyare ‘merelyverbal’(StandingOrderNo.77).Inpractice,thepossibilityofsuchamendmentswould notnormallyarise,becausetheycouldhavebeentabledforReportStageinstead.Ifmaterial amendmentswerenecessary,theorderforThirdReadingwouldhavetobedischargedand the bill recommitted to a public bill committee or committee of the whole House.
• 30.13 For certain important bills, more than an hour may be allocated for debate on Third Reading. In such cases it may be that more than one minister will participate in the debate.
• 30.14 The bill team should check that, if the bill requires King’s consent, the Order Paper mentionsthis.Ifthishasbeenomitted,itshouldbepointedouttoParliamentaryCounselwho willalerttheHouseauthorities.Theparliamentarybranchshouldarrangeforaministerwhois aprivycounsellortosignifyConsentjustbeforeThirdReading.Tosignify,theministerneeds to nod in the affirmative when prompted by the Speaker.
• 30.15 Thebillteamshouldensuretheministerhasashortspeechsettingouthowthebillhas changedsinceintroduction.ItiscustomarytothankMembersfortheirinterestinthebill. The ministerwillneedto“begtomovethebillbereadathirdtime”atthebeginningofthespeech. Whiletheministerhasrightofreply,thereisoftenlittletimetodosobillteamsshouldensure theminister'sopeningspeechspeakingnotesincludeeverythingthattheministerneedsand wishes to say.

Preparing for the second House

• 30.16 OncompletionofThirdReadingthebillwillbesenttotheLords,normallyonthefollowing day.ItcantakelongerifthebillisheavilyamendedatCommonsReport;thiscandelayLords SecondReading,particularlyifCommonsThirdReadingisonaWednesday.Furtherdetails onarrangementsforsendingabilltotheLordsareintheLordssectionofthisguidebutatthis stage bill teams should ensure that:
• ● thebillasamendedinCommonsisproof-readandapprovedforpublicationwhensentto the Lords;
• ● explanatorynotesarerevisedasnecessarytopublishalongsidebillandareclearedwith thePublicBillOfficeintheLordsatleasttwotothreeworkingdaysbeforethebillissentto the Lords;
• ● impact assessment and delegated powers memorandum revised and republished as necessary,withthedelegatedpowersmemorandumnowformallysubmittedtotheLords Delegated Powers and Regulatory Reform Committee;
• ● a fresh ECHR statement is signed for second House; and
• ● ‘take up’ arrangements are clear (i.e. which minister is to take charge of thebillinthe second House).
• 30.17 CompletingpassagethroughthefirstHouseisalsoagoodtimeforbillteamstotakestock. ForexampletoensurethatallfirstHousepapersarecorrectlyfiledandtocheckthatplansare inplaceforanyworkthatmayneedtobedonepost-RoyalAssent,asthesecondHousewill beaverybusyperiodforbillteams.Inparticular,billteamsshouldensurethatarrangements have been made todraftanyguidanceneededoncethebillbecomesanact(forexample, implementationguidanceforbusinessorcivilsociety).Thisisunlikelytobeataskforthebill team itself, but the bill team should ensure that arrangements are in place for any such guidance to be prepared (and if appropriate published in draft before Royal Assent).

31. CARRYING OVER LEGISLATION

Key points

• ● EachsessionBusinessManagersidentifyasmallnumberofbillsforCommonsintroduction towards the end of the session for carry over to the next session.
• ● Carryovershouldnotbeseenasameansofextendingthetimeavailableforabilltowards theendofitspassage,asthebillmustnormallycompleteitsparliamentarypassagewithin 12monthsofthedateofFirstReading.RatherithelpsParliamentandgovernmentspread the workload over each session.
• ● TheintentiontocarryovershouldbeindicatedatSecondReadingwithacarryovermotion movedbythebillminister.TobecarriedoverabillmusthavereceivedaSecondReading but not yet received a Third Reading in its first House. The bill is presented in the new sessioninthetermsinwhichitwassuspendedandgoesstraighttothestagewhereitleftoff (stagesalreadycoveredintheprevioussessionaretakenagainasaformality).Carryover of bills in the Lords is possible but rare.
• ● BillshaveneverbeencarriedoverfromoneParliamenttothenextunlesstheyarehybrid bills or private bills, when different procedures apply.

Background

• 31.1 CarryoverbillshelptospreadtheworkloadofParliamentoverthecourseofthesession. BillsintroducedintheCommonsforcarryoverinthespringgivetheCommonsnewbillsto scrutinise at a time when most Commons starters have gone to the Lords (and because generallyfewerbillsstartintheLordstherearenotasmanybillsarrivingfromtheLordstothe Commons).
• 31.2 Carryovershouldnotbeseenasameansofextendingthetimeavailableforabilltowards theendofitspassage.Acarryoverbillmustcompleteitsparliamentarypassagewithin12 monthsofthedateofFirstReading,unlesstheHouseagreestoaseparatemotionextending the timetable. Carry over does however give the Government some flexibility to delay the introduction of a small number of bills (normally no more than two or three per year).
• 31.3 Inthenextsession,thebillispresentedandprintedinthesametermsasitstoodwhen suspendedintheprevioussession(i.e.includinganyamendmentsthatweremadetothebill). Itwillthenbeconsideredtohavebeenreadthefirstandsecondtimeandwillbesetdownfor whateverstageithadreached(orcommittedtoaCommitteeinrespectoftheremainingparts of the bill, if proceedings in the previous session were suspended partway through Committee).Anynoticesofamendments,newclausesandschedulesnotdisposedofinthe previous session will be reprinted. In the Commons, this happens automatically under StandingOrderNo.80A(11). IntheLords,eitherthecarryoverproceduremotionwillmake provision for reprinting or the amendments will need to be retabled.
• 31.4 On re-introduction in the secondsessiontheexplanatorynotes,impactassessmentand delegatedpowersmemorandummustbereissued,andrevisedasnecessarytoreflectthebill asitstoodattheendofthefirstsession(i.e.incorporatinganyamendmentsthatweremade tothebillinthefirstsession).TherelevantSecretaryofStateintheCommonsortherelevant Lords minister, depending on which House the bill is in, mustalsosignafreshsection19 ECHR and a fresh section 20 environmental law statement.
• 31.5 DecisionsonwhichbillstocarryoveraremadebytheBusinessManagers.Departments whoconsiderthattheirbillmightbesuitableforcarryovershouldmentionitwhenbiddingfor alegislativeslotandshoulddiscussthepossibilityofcarryoverwiththePBLSecretariat.More oftenitwillbethePBLCommitteethatsuggestscarryingabillovertoassistthemanagement of the legislative programme.

Carry over of Commons bills whilst still in the Commons

• 31.6 UnderStandingOrderNo.80A,publicbillswhichstartedintheCommonsandhavenotyet left theCommonsmaybecarriedoverfromonesessiontothenext.Theintentiontocarry overshouldnormallybeindicatedatSecondReading(althoughthecarryovermotionmaybe moved at any stage before Third Reading).
• 31.7 Tocarryabillover,theministermustputdownamotionthatproceedingsonapublicbill not completed before the end of the session shall be resumed in the next session. Each motionmustbeinrespectofonlyonebill.Ifacarryovermotionisputdownforthesameday as Second Reading, it can be decided without debate. If put down at anyothertime,itis debatable for up to 90 minutes.
• 31.8 UnderStandingOrderNo.80A,abillmustcompleteitsparliamentarypassagewithin12 months of its First Reading or it will fall unless the House agrees toanextensionmotion.

RoyalAssentitselfneednotbenotifiedwithin12monthsthoughitwouldnormallybenotified shortlyafterthebillcompletesitsparliamentarypassage.Adebateonamotiontoextendthe carry over period is debatable for up to 90 minutes.

• 31.9 There is no requirement for the bill to reach theendofCommitteeStageortheendof Report Stage by the end of the session. Proceedings may be suspended at any stage between Second and Third Reading.
• 31.10 When the bill is re-introduced in the second session, the explanatory notes, impact assessment and delegated powers memorandum must be revised to incorporate any amendmentsthatweremadetothebillinthefirstsession,andreissued.Afreshsection19 ECHRstatementandafreshsection20environmentallawstatementalsoneedtobesigned bytherelevantSecretaryofStateintheCommons.Oncetheyaresigned,confirmationmust be senttoParliamentaryCounsel.Thebillbackersalsoneedtobereconfirmed.Itisworth notingthatthepersonsonthelistneednotbethesameasthoseonthelistwhentheBillwas first introduced if, for example, there has been a reshuffle in the intervening period.

Carry over of Lords bills whilst still in the Lords

• 31.11 CarryoverofbillsintheLordsispossiblebutrare.Whetherornotabilliseligibleforcarry over needs to be agreed through the usual channels.
• 31.12 TheprocedureforcarryoverintheLordsisnotregulatedbystandingorders,andinvolves theLordsagreeingtoanadhoccarryovermotion,whichisdebatable.Theprecedentshave required two motions - a paving motion in the first session, contingent on the bill not completing all its stages before the end of the session, and a main motion in the second session, allowing the debate on the bill to pick up where it left off.
• 31.13 Aswithre-introductionintheCommons,whenabillisre-introducedinsecondsessionthe explanatorynotes,impactassessmentanddelegatedpowersmemorandummustberevised andreissuedandafreshsection19ECHRstatementandafreshsection20environmental law statement must be signed by the Lords minister.

Carry over of bills once in their second House

• 31.14 TherearenoprecedentsforsecondHousecarryoverofpublicbills,althoughtheHouseof Lords has agreed in principle that this could happen, subject to thebillinquestionhaving undergonepre-legislativescrutinyindraft16.Theprocesswouldrequiretheagreementofboth Houses by means of specially tailored motions. These motionswouldbedebatable.Inthe second of the two sessions, the bill would be presented in the originating House, be consideredtohavegonethroughallitsstagesinthatHouseandpassed.Itwouldthenbesent to the second House, where it would be considered to have completed all the stages completed the previous session and be set down for the next stage.
• 31.15 SecondHousecarryoverwouldonlyeverbepracticableincaseswheretherewasahigh level of cross-party agreement.

SECTION E

LORDS STAGES

32. THE LORDS OVERVIEW AND DIFFERENCES FROM COMMONS' STAGES

Parliamentary copyright17

House of Lords

1. Sovereign's throne

2. Cloth of estate

3. Speaker

4. Judge's woolsack

5. Government

6. Bishops

7. Opposition

8. Cross benchers

9. MPs (who can sit on the steps of the throne)

Key points

• ● ThereareimportantdifferencestohowtheHouseofLordsapproachscrutinisinglegislation comparedtotheCommons.Thisincludesmoredetailedconsiderationofdelegatedpowers and particular emphasis on the supporting documents settingoutthetechnicaldetail.Bill teamsshouldbeintouchwiththeWhips’OfficebeforeintroductiontoParliament,evenifthe

17Image available at:https://lordslibrary.parliament.uk/who-sits-where-in-the-house-of-lords/ billisintroducedintheCommons,astherearethingstheteamcandointheCommonsto 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 ministerandWhiptakingthebillthroughtheHousewillnotnecessarilybethe policy minister for the Bill and may therefore require additional briefing. There is a substantial body of professional expertise among peers across a range of subjects.
• ● TheLordsDelegatedPowersandRegulatoryReformCommitteewillscrutiniseeverybillthat containsdelegatedpowerstoconsidertheappropriatenessandsuitabilityofthedelegated powers.
• ● The Lords Constitution Committee may also wish to scrutinise the bill. Bill teams should consulttheGovernmentWhips'OfficeintheLordsiftheythinktheConstitutionCommitteeis likelytohaveaninterestinthebillandensurethereisaplanforatimelyresponsetoany reports.

Differences in practice and procedure in the Lords

• 32.1 Therearedifferencesintheconductofdebatesandprocedureduringthebill'spassage.It isnottheLordSpeakerbuttheHouseasawholewhichdecidesquestionsoforder.Peers address their remarks to the whole House (“My Lords”) whereas in the Commons they address the Speaker or the chair of the committee. There are no financial resolutions or programme motions. What the Lords can do is restricted by Commons financial privilege, other constitutional and parliamentary conventions, and the Parliament Acts.
• 32.2 EveryamendmenttabledintheLordsiscalledinturnintheorderofthe‘marshalledlist’ andcanbespokento.Thereisnoselectionofamendments;scoperulesareappliedbythe Clerks.Anamendmentthathasbeentabledneednotbemoved,althoughifnoneofthepeers namedassupportersoftheamendmentmovesit,anothermembermaydoso.Amendments arenotgroupedfordiscussionbythechairasintheCommons,butinformalgroupingsare negotiated through the Government Whips' Office in the Lords.
• 32.3 Itisthebillteam'sresponsibilitytoproposegroupingsofamendmentsforeachday.Asin 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 speaktoanamendmentinitsplaceinthemarshalledlistbuttheGovernmentWhips'Office triestogetagreementfromallmembersconcernedaboutproposedgroupings.Anymember canasktheGovernmentWhips'Officetode-grouptheiramendmentfromthosethebillteam hassuggesteditbegroupedwith.InthiscasetheGovernmentWhips'Officewilltellthebill team.However,itisopentoanypeertode-grouptheiramendmentinCommitteeoratother stages (although this is now formally discouraged).
• 32.4 Amembermayspeaktoawholegroupofamendmentswhenthefirstamendmentinthe groupiscalled.Onlythefirstamendmentinthegroupiscalled(inthetechnicalsensethat thereisaquestionspecificallyonitbeforetheHouse)andtherestareatthisstagemerely spokento.Proceedingsonlateramendmentsinthegroupareoftenformalbutfurtherdebate may take place and an amendment previously debated may be moved at its place in the bill.
• 32.5 Unlike in the Commons where, for example, Report and Third Reading areoftentaken together,intheLordsnotmorethanonestageofabillcanbetakenduringonesitting.Thisis a standing orderoftheHouseandisdispensedwithforbillsthataremoneyand/orsupply bills. The standing order may also be dispensed with for a particular bill that is urgently required,buttheagreementoftheusualchannelsandthentheHouseisrequiredtodoso. Noticemustbegivenontheorderpaperofamotiontodispensewiththisstandingorder,and itispossibleforthemotiontobeopposed.LordsCommitteestageisopentoallmembersand does not involve evidence-taking. Lords Third Reading is an amending stage, though restrictions apply.

Minimum intervals between Lords stages

• 32.6 Thedifferentstagesandminimumintervalswhichareusuallyobservedaresetoutbelow. This is the conventional minimum timetable that could beexpectedforabillofreasonable 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 calendardays

Between Committee Stage and Report Stage: 14 calendardays

Between Report Stage and Third Reading: three clearsitting days.

'Sitting days' excludes weekends and non-sitting Fridays.

• 32.7 Billteamsareadvisedtoprepareonthebasisofminimumintervals.However,billteams shouldnotexpectabilltoprogresstothattimetableasoftentheintervalsbetweenstageswill belonger.ThetimetableforabilltocompleteallofitsstagesintheLordswillbedependenton anumberoffactors,includingtheexactnatureofthebill,itssizeandcomplexity,availabilityof opposition spokespersons and, perhaps most importantly,theotherbillsintheprogramme. Other bills maybeaccordedahigherpriorityiftheyarepoliticallyveryimportantorhavea fixeddeadlineforRoyalAssent.ThewhipsorthePBLSecretariatwillbeabletoadviseonthe relativepositionofyourbillandtheyneedtobemadeawareattheearliestpossiblemomentif thereareanypressingpolitical,financial,operationalorotherreasonsforbillstoreceiveRoyal Assent by a particular time, although there are never any guarantees.

Lords sitting times

• 32.8 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)

• 32.9 Oral Questionsareheldfor40minutesatthestartofbusinessonMondaytoThursday. Debates will start after Oral Questions. Statements can also be taken at any time after Questions, with usual channels agreement.

Constitution Committee

• 32.10 The Constitution Committee is appointed by the House of Lords “to examine the constitutionalimplicationsofpublicbillscomingbeforetheHouseandkeepunderreviewthe operationoftheconstitutionandconstitutionalaspectsofdevolution.’’Inexercisingthefirstof thesefunctions,thecommitteescrutinisesgovernmentbillsbeforetheHouseandanyprivate members’billswhicharelikelytoreachthestatutebook. Whilethereisnorequirementfor departmentstoproduceamemorandumfortheConstitutionCommitteeinthesamewayas fortheDelegatedPowersandRegulatoryReformCommittee,officialsshouldbeawareofthe ConstitutionCommittee'sroleandconsulttheGovernmentWhips'OfficeintheLordsifthey think the committee will take an interest in the bill.
• 32.11 Ifabillappearstoraiseissuesofprincipleaffectingaprincipalpartoftheconstitution,the committeemayrequestinformationfromtheministerresponsible,orseekadvicemorewidely. Thiscorrespondenceisusuallypublishedonthecommittee'swebsite.Moreinfrequently,the committeewillpublishasubstantivereportonasinglebill.Forexample,billswillattractthe attentionofthecommitteeiftheydealwiththerelationshipbetweentheExecutive,Judiciary andParliament,theelectoralsystemandreferendums,therelationshipbetweencentraland local government or with devolution. In other cases, for example where a bill gives new powers to public authorities oramendsexistingpowers,orgrantsnewpowerstocollector sharepersonaldata,thecommitteewillformaviewonwhetherthebillmakesasignificant change to the system of government or the relations between the state and the individual.
• 32.12 The Constitution Committee will consider whether procedures provided for inrelationto appeals,reviewandredressofgrievancesissatisfactoryandwhetherthebillmakesaclear divisionbetweenmattersforwhichministershaveauthorityandmattersforwhichauthorityis devolved to autonomous office-holders.Ifabillproposesanewtribunal,thecommitteewill expect the tribunal to be placed under the supervision of the Council on Tribunals.
• 32.13 WhereabillstemsfromtheUK'sinternationalobligations,thecommitteewilllookatthe mannerinwhichParliamentisbeingaskedtoimplementthem.Whenthecommitteereports on a bill it will aim to do so before Lords Committee Stage.

33. LORDS INTRODUCTION AND FIRST READING

Key points

• ● ForbillsstartingintheHouseofLords,thedateofintroductionwillbeagreedbytheBusiness Managers and No.10. For bills transferring fromtheHouseofCommons,FirstReadingwill takeplaceoncetheCommonshasformallypassedtheBilltotheLords.Thisisusuallythe nextsittingday,buttheLord'sBusinessManagerscanadviseonthetimingsthatwillvaryfrom bill to bill.
• ● ThepublicationoftheBillisagreedbetweentheLordsWhipsOfficeandtheLordsPublicBill Office. PublicationmaybeonthedayabillisintroducedintheLordsoronthedayafter.The bill team should liaise with the Lords Whips Office on the timing of any letters, press conferences, and briefings being issued on introduction.
• ● ThesameaccompanyingdocumentationasfortheCommonsmustbepublishedalongsidethe bill:explanatorynotes,impactassessmentanddelegatedpowersmemorandumifrequired.If a bill comes from the Commons, the explanatory notes,impactassessmentanddelegated powers memorandum should be revised to take into account any changes made in the Commons. Whichever House the billstartsin,onarrivalintheLordsthedelegatedpowers memorandum should be formally submitted totheLordsDelegatedPowersandRegulatory Reform Committee.
• ● WhicheverHousethebillstartsin,theLordsministerwillneedtosignasection19statement oncompatibilitywiththeEuropeanConventiononHumanRights(ECHR),and(ifapplicable) statements under section 13C of the European Union (Withdrawal) Act 2018 (Northern Ireland-Great Britain trade statement) and section 20 of the Environment Act 2021 (environmental protection statement).

Introducing a bill in the Lords

• 33.1 The date of introduction will be agreed by the Business Managers and No.10 and communicated to the department. It must be a day when the Lords will sit.
• 33.2 AbillstartingintheLordscarriesonlythenameoftheministerorwhipwhohassignedthe section19ECHR,section13CEuropeanUnion(Withdrawal)Act2018NorthernIreland-Great Britaintrade,andsection20EnvironmentActstatements.UnliketheCommons,thereisno provision for other "bill backers" to be listed.
• 33.3 NoformalnoticeofpresentationofabillisrequiredbutParliamentaryCounselwillemail the Lords Public Bill office with the name of the minister in charge of the bill, the date of introduction (also known as First Reading) and thelongandshorttitlesofthebill. Thisis usuallyby5pmthedaybeforeintroduction. ThebillprintwillthenneedtobesenttotheLords PublicBillOffice,usuallyby2pmonthedaythebillisintroduced,whowillarrangeforittobe published.ParliamentaryCounselwillneedformalauthoritytosubmitthetextoftheBillonthe minister’s behalf.
• 33.4 OnthedayofFirstReading,theministerorwhipintroducesthebillbyreadingthelongtitle andmoving“thatthebillbenowreadafirsttime”.ThisisorganisedbytheGovernmentWhips’ Office. The Lords Whips' Office can advise onanyrequirementsfromtheministerforFirst Reading.
• 33.5 The bill is then ordered to be printed and a day is arranged for SecondReading.First Readingsarenotopposed.Nobillsmaybeintroducedbeforethetexthasbeenhandedtothe Lords Public Bill Office. At First Reading an order is made automatically for the bill to be printed and given a number in the HL Bill series. An order to print is also made for the explanatorynotes.Billsandexplanatorynotesareprintedandpublishedontheparliamentary website.ThisusuallyoccursduringtheafternoonoreveningonthedayofFirstReading,but this cannot be guaranteed.
• 33.6 The same supporting documentation is required for Lords starters as for Commons starters. The bill team should ensure that allothersupportingdocumentsareclearedand ready for publication: delegated powers memorandum, impact assessment, ECHR memorandum, Environment Act statement, and statement on bills affecting trade between Northern Ireland and other parts of the UK where needed. The delegated powers memorandum,theECHRmemorandum(ifpreparedseparatelytotheExplanatoryNotes)and theimpactassessmentshouldalsobecopiedtotheLordsPublishingTeamforuploadingto thebillwebpageontheParliamentwebsite.Thedelegatedpowersmemorandumshouldbe formally submitted to the Lords Delegated PowersandRegulatoryReformCommittee. No documentsneedtobesenttothePublicBillOfficeintheHouseofCommonsforbillsstarting in the House of Lords.
• 33.7 IfforanyreasontheECHRstatementwillnotbesignedbeforethebillisfirstprinted(on entrytoeitherHouse),ParliamentaryCounselandtheLordsWhipsOfficeshouldbeconsulted immediately. Where a statement is not made on Bill introduction, a written ministerial statement must be made before Second Reading.
• 33.8 TheexplanatorynoteswillhavetobeclearedbytheLordsPublicBillOffice,andshouldbe shared with them at least two to three working days before the bill is introduced.
• 33.9 AlistofrelevantpapersshouldbeprovidedwhereappropriatetotheLordsPrintedPaper Office (printedpaperoffice@parliament.uk)whenthebillarrivesorstartsintheLords.These are papers which have relevance to the forthcoming debates on the bill, such as recent consultations, international agreements or Office for National Statistics publications, and shouldbesentbytheparliamentaryclerktotheLibraryassoonaspossibleafterthebillis introduced,inpreparationforSecondReading.Thelistshouldmentionthebillstatus,thetitle of the bill and the date of First Reading.

Bills brought from the Commons

• 33.10 After Third Reading in the House of Commons, a copy of the latest print of the bill, incorporatingallamendmentsmadeintheCommonsandsignedbytheClerkoftheHouse,is deliveredtotheHouseofLords(withoutinterruptingproceedings)withamessagestatingthat the Commons has passed it and desire the agreement of the House of Lords.
• 33.11 FirstReadingwilltakeplaceoncetheCommonshasformallypassedtheBilltotheLords. This is usually the next sitting day, but the Lord's Business Managers can advise on the timingsthatwillvaryfrombilltobill. Thebillcannotbedelivereduntilthetextissettled;fora largebillheavilyamendedatCommonsReportthismaytakeseveraldays. Themessageis 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 thenprintedand arrangements must be made for a Second Reading date.
• 33.12 The Whips Office will inform the bill team of thetimetable.Billscanbereceivedbythe Lords Public Bill Office whentheHouseisnotsittingand,ifitishelpfulfortheHouseand practical, printed immediately, with First Reading afterwards when the House next sits.
• 33.13 Theexplanatorynoteswillneedtoberevisedandrepublishedtoreflectanysubstantive amendments to the bill in the Commons. Even if there were no substantive changes, the formatoftheexplanatorynoteswillrequiresomeminorchangesinallcases.Anysubstantial revisionstotheexplanatorynotesshouldbeapprovedbythebillminister.Thedepartmentis responsible for updating the notes and sending them to the Lords Public Bill Office.
• 33.14 IfanamendmenthasbeenmadeinthefirstHousewhichtheGovernmenthassaiditwill seek to overturn in the second House,therevisedexplanatorynotesshouldgiveaneutral description of theamendmentanditseffectandsaytheGovernmentseekstooverturnthe amendment but should not argue its pros and cons.
• 33.15 If a minister has saidintheHousethattheGovernmentintendstoseektooverturnthe amendment,theexplanatorynotesmaygivetheHansardreferenceforthatstatementbutifno announcement has been made to that effect, the notes are not the place for it.
• 33.16 AswithintroductiontotheCommons,theexplanatorynoteswillhavetobeclearedbythe LordsPublicBillOffice. Therevisednotesshouldbesharedatleasttwotothreeworkingdays before the bill transfers to the Lords.
• 33.17 The impact assessment and delegated powers memorandum, if required, must also be revisedtotakeaccountofanychangesinthefirstHouse.Thebillteammustalsoensurethat the Lords minister signs the relevant ECHR, Northern Ireland-Great Britain trade, and Environment Act statements and, once they have been signed, inform Parliamentary Counsel.
• 33.18 ThedelegatedpowersmemorandumshouldbeformallysubmittedtotheLordsDelegated Powers and Regulatory Reform Committee: hldelegatedpowers@parliament.uk. The delegatedpowersmemorandum,therelevantstatementsshouldalsobecopiedtotheLords 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. The ECHR memorandum should also be sent to the Joint Committee on Human Rights (jchr@parliament.uk).
• 33.19 In addition, a list of relevant older papers should be provided where appropriate tothe Lords Printed Paper Office when the bill arrives in the Lords.

Supporting documents

• 33.20 ThedelegatedpowersmemorandumshouldbeformallysubmittedtotheLordsDelegated Powers and Regulatory Reform Committee on the day the bill is published.
• 33.21 Thedepartmentmustalsoensurethatthedelegatedpowersmemorandumisdepositedin both Houses on introduction. Further copies should be sent to the libraries of both Houses.
• 33.22 A full impact assessment should be published by the departmenttoaccompanythebill introduced to Parliament.
• 33.23 IfaseparatememorandumonECHRimplicationshasbeenprepared(astheanalysisis toodetailedfortheexplanatorynotes)thisshouldbepublishedonGOV.UKbutalsocopiedto the Lords Publishing Team to be put on the bill’s webpage on the Parliament website.

Revised editions of Acts

• 33.24 If provisions in the bill make reference to heavily amendedActsofwhichnoup-to-date editionsarereadilyavailable,thedepartmentshouldconsiderprovidingaclear,readableand up to date version of the legislation concerned (see also section on ‘Keeling Schedules’). Whereonlysomeprovisionsofanactarerelevant,therevisededitioncanbelimitedtothose provisions. TheseshouldbesenttotheLibrarianineachHouse,totheClerkofLegislationin the Commons and to the Clerk of Legislation in the Lords before, or soon after, the bill receives a Second Reading.
• 33.25 Ifthedepartmentwishestoshowhowexistinglegislationwillbechangedbythebill,this should be done as an annex to the explanatory notes.

Press and publicity in the Lords

• 33.26 The publication date is the key date in terms ofpublicityintheHouseofLords. Press briefingshouldnottakeplacebeforethedayofintroduction,whichistheearliestthebillmay bepublishedintheLords(whereasCommonsbillscanbeintroducedandpublishedonthe same day and therefore earlier press briefings are possible).
• 33.27 Billsmaybepublishedonnon-sittingFridays. Undernocircumstancesshouldcopiesof thebillbereleasedormadeavailabletothepressbytheGovernmentbeforepublicationby Parliament(althoughadraftbillmayofcoursehavebeenpublishedaspartofpre-legislative scrutiny).InthecaseofemergencylegislationwhereabillstartsintheLords,adraftbillmay be published for the convenience of Parliament in advance of First Reading.
• 33.28 It is importantthattheintendeddateofpublicationisdiscussedwiththeWhipswhowill liaise with the bill team to arrange to receive enough copies of the printed bill and the explanatorynotesforthedepartmentandforanyLobbybriefingorpressconference.Copies forthispurposeshouldbeobtainedthroughParliamentaryCounsel,whocanarrangeforthem tobemadeavailabletotheministerinthePrintedPaperOfficeassoonasthebillispublished togetherwiththetextoftheexplanatorynotes.Publicationofabillcannotbedelayedtofitin withaminister'spressconference.Thetimeofpublicationneedstobeborneinmindwhen arranging any briefings.
• 33.29 Thebillteamshouldkeepintouchwiththedepartment'spressofficeoverarrangementsfor publicity.Unlessthebillisofonlyminorimportance,ashortpressnoticewillusuallybedrafted bythebillteamandthepressoffice.Thismaybesupportedbyamoredetailedpressnoticeto explainthepurposeofeachpartofthebill.Thisnoticeshouldbepurelyexplanatoryandmust not anticipate the Second Reading debate.
• 33.30 Anybriefingsmusttakeplaceafterpublicationofthebillandpublishedcopiesshouldbe made available at the briefings. Where a bill is sent to be printed overnight, copies will normallybeavailablethefollowingmorningintimeforapressconferencearoundlunchtime. The bill team will need to brief the billministerforanyLobbyorspecialistcorrespondent’s briefing (e.g. with question-and-answermaterial).Thelegaladvisershouldhelpensurethat any publicity material is accurate, particularly when the bill or part of a bill is especially complex. The press office may also need support from the bill team in answering press queries after publication.
• 33.31 Billteamsshouldensurethatafterintroductiontheycontinuetokeepintouchwithexternal stakeholderswhohavebeeninvolvedindevelopingthebill,asthesegroupsmayinfluencethe shape of debate on the bill.

34. LORDS SECOND READING

Key points

• ● Second ReadingintheLordstakesasimilarformatasSecondReadingintheCommons and,unlessotherwisestatedinthischapter,proceduresandrequirementsarethesameas for the Commons.

Differences from the Commons

• 34.1 The minister in charge of the bill in the Lords is often the bill minister. Theymaybea government whip or law officerwhodoesnotworkwithintheleaddepartment.Briefingwill often not need to be more thorough than in the Commons.
• 34.2 Second Reading is rarely opposed in the Lords.IfSecondReadingisopposeditisthe usualpracticetogivewarningintheformofanamendmentontheorderpapertotheeffect that"thisHousedeclinestogivethebillasecondreading".Theamendmentmayaddareason (a ‘reasoned amendment’). Agreeing to such an amendment, in whatever form, kills the bill.
• 34.3 LordswishingtodemonstrateoppositiontotheGovernment,withoutgoingtotheextreme ofseekingtostopthebill(whichwouldberegardedasabreachofconvention),mayinstead tableanamendmentallowingSecondReadingbutobjectingtoaspectsoftheGovernment’s stance(a‘non-fatalreasonedamendment’). Anexampleofanon-fatalreasonedamendment wouldbe“butregrets…andcallsontheGovernmentto…”;theHouseagreeingtosuchan amendment may have political impact would not kill the bill.
• 34.4 Theministerinchargehasarightofreplyandusuallybothopensandwindsupthedebate, thoughdifferentministersmaydoso.Ifanamendmentistabled,themoveralsohasarightof reply.
• 34.5 The opening speech shouldsetoutthepurposeandrationaleforthebill.Somecontent might be broadly similar to the Commons, but should not be arepetitionoftheCommons version and should be tailored to likely concerns in the Lords.
• 34.6 For the closing speech, the bill team should have notes ready on points raised in the debate.NotesareusuallypassedtothefrontbenchviatheDoorkeeperorWhip.Thebillteam shouldliaisewiththePrivateOfficeonarrangementsfornotesandtheMinister’spreferencesforexample,iftheypreferphysicalorelectronicnotes.Ensurethatthefulltitleoftheminister inchargeisonthenote(e.g.‘LordSmithof[Place],notsimply‘LordSmith’astheremaybe more than one).
• 34.7 Peersfinditparticularlycourteousifaproperresponseisgiveninthewindingupspeech. Failingthat,anindicationtowriteonthedetailedpointsshouldbegivenandalettershouldbe sent to the peer(s) within24hours.SpeakersareexpectedtobepresentfortheMinister’s response; the Minister need not respond to a member who is not.
• 34.8 BillteamscanwatchthelistofspeakersgrowontheGovernmentWhips'Officewebsite before the debate. This will help in preparation of material for ministers. The final list of orderedspeakersispublishedon‘Today’sList’,normallyanhourbeforetheHousesits.Every peer on the speakers’ list will have a chance to speak in the order shown. Theminister's openingspeechshouldnotexceed15minutesandthewindingspeechshouldnotexceed20 minutes.
• 34.9 There is no procedure for money resolutions intheLords,althoughabillstartinginthe LordsmayneedamoneyresolutionwhenitcomestotheCommons.Abillforwhichthesole purposeistoraisetaxationorauthoriseexpendituremaybea‘moneybill’,a’supplybill’(or ‘billofaidsandsupplies’)orboth.SuchbillsalwaysstartintheCommons.TheLordscannot amendasupplybill.UndertheParliamentAct1911,theLordscannotpreventamoneybill passing into law. While it could, in theory, propose amendments, in practice the House of Lords does not consider such bills in Committee.
• 34.10 A motion is required to commit a bill to Committee:eithertoaCommitteeofthewhole Houseortoagrandcommittee.ThisistabledbytheGovernmentWhips'Officeinadvanceof Second Reading to be moved straight after the Second Reading has been agreed.

Box etiquette

• 34.11 Yourdepartmentalparliamentarybranchisresponsibleforsendingnamesfortheofficials' box to Black Rod's Office. Similar rules apply as forboxetiquetteintheCommons.Inthe HouseofLords,officialsarenotallowedonthebluecarpet(inthePrince'sChamberbehind theLordsChamber)whentheHouseissitting.Inpracticetheyhavetowalkacrossthecarpet to reach the officials’ box buttheyshouldonlydosowheninvitedbythedoorkeepersand shouldnotwaitaroundthere.WhenwaitingtogointotheChambertheyshouldwaitinthe ContentsLobbyforthedoorkeeperstoshowthemin.Intheboxthereisroomforupto four officials (usually including the minister's private secretary). There are a few more chairs outsidetheboxbuttheyarenotveryclose.Inparticularwatchthefoldingdowndesksinthe boxas,unlessfoldeddownverycarefully,theycanfallthemselveswithaloudbang.Billteams canalsomakeuseoftheBillTeamRoom,whichisbookedthroughtheGovernmentWhips’ Office.

35. LORDS COMMITTEE STAGE

Key points

• ● IntheLordsbillsareconsideredeitherontheflooroftheHouse(‘Committeeofthewhole House’), or in the Moses Room (‘grand committee’).
• ● Any non-concessionary government amendments in the Lords should be tabled for Committee.Thebillteammustensurethatanyamendmentshavebeencollectivelyagreed (bythePBLCommitteeandtherelevantpolicycommitteeifnecessary)andaredraftedin time to be tabled at least one sitting week in advance of the debate.
• ● Lords Committee follows different procedures to Commons Committee, though the requirement for bill teams to provide notes on amendments for ministers is the same.

Types of committee

• 35.1 A motion is moved after Second Reading to commit a bill toeitheraCommitteeofthe wholeHouseortoagrandcommittee.Thisisdecidedthroughtheusualchannels,although themotioncanbevoteduponandthefinaldecisionisfortheHouse.Amotionmayalsobe movedtoinstructtheCommitteetoconsiderthebillinaparticularorder,usuallytotakeeach schedule after the clause on which it depends; see 35.16 and 20-21 below.
• 35.2 InbothCommitteeofthewholeHouseandgrandcommittee,allmemberscanattend,table amendments and speak. The proceedings in grand committee are identical to those in a CommitteeofthewholeHouseexceptthatnovotestakeplace:decisionstoalterthebillmay only be made with unanimity. Thus when a question is put, a single voice against an amendmentcausestheamendmenttobenegatived.Ifthereisoppositiontoanamendment,it shouldbewithdrawningrandcommittee,toenabletheHousetodecidethematteronReport. A single voice against “clause stand part” is ineffective; leaving a clause out requires unanimity.
• 35.3 In addition, bills can, in principle, be sent to a select committee or a special public bill committee,althoughtheseareextremelyrare.TheGovernmentWhips'Officewillbeableto advise on procedures in each case.
• 35.4 AdayintheChambertypicallylastsuntilaround10pm(7pmonThursdays),adayinGrand Committee for 4 hours or 5 by prior agreement. The Committee Stage in theLordsisnot subjecttoaprogrammemotionanditslengthcannoteasilybecontrolledbytheGovernment. The length of Committee will be decidedthroughtheusualchannelsandcanbeextended after further discussion.

Tabling amendments

• 35.5 Billteamsshouldreadthemainsectionofthisguidanceonamendmentswhichdescribes whatsortofgovernmentamendmentsarelikelytobeagreedtoandhowtoobtaincollective agreement for amendments to bills. The bill team must ensure that any government amendmentshavebeencollectivelyagreedandaredraftedintimetobetabledatleastone sitting week in advance of the debate.
• 35.6 Any government amendments needed in the Lords should be brought forward for Committeeor,ifabsolutelynecessary,forReportasthepracticeoftheHouseisnormallyto resolvemajorpointsofdifferencebytheendofReportStageandtouseThirdReadingfor tidying up the bill. Government amendments at Third Reading are limited to ‘tidying up’ amendments(notnecessarilythesameas‘minorandtechnical’)ortofulfilundertakingsmade by the minister at an earlier stage of the bill’s passage in the Lords.
• 35.7 TheprocedurefortablingamendmentsisthesameforbothCommitteeofthewholeHouse andgrandcommittee.Amendmentsmayappearinthenamesofuptofourmembers(orfiveif the peer in charge of the bill adds his or her name). Government amendments shouldbe tabled in the name of the Lords minister in charge but another minister may nevertheless movethem.Thenameofonlyoneministershouldappearagainstagovernmentamendment. Newclausesmustbepositioned(usually“AfterclauseX”),unlikeintheCommons.Asinthe Commons,anamendmenttoleaveaclauseoutcannotbetabledatCommitteestage;instead a notice is tabled to “oppose the question that the clause stand part”. Tabled by another member,suchanoticeusuallymeansanintentiontodebate,notliterallytooppose;see35.15 below.
• 35.8 AmendmentsputdownbypeersarenotincludedinthevotebundleasintheCommons, butareprintedintheHouseofLordsbillseries,bearingthenumberofthelastprintofthebill with suffixes, e.g. HL Bill X (a), (b), etc - these lists are published daily. The deadline for amendments to be publishedonthe firstmarshalledlistis4pmtwodaysbeforethe date fixedforCommittee.Thefirstmarshalledlistispublishedlaterthatevening.Allamendment papers are available on the Parliament website on the day of their publication.
• 35.9 Anyamendmentswhichhavenotpreviouslybeencirculatedare‘starred’inthemarshalled listsbutthisdoesnotmean,asintheCommons,thattheymaynotbecalled.Amendments mustberelevanttothesubjectmatterofthebillandtotheclauseorscheduletowhichthey relate.Amendmentstabledafterthedeadlineformarshallingbutbeforethedayofdebateare publishedonasupplementarysheetorarevisedmarshalledlist.Manuscriptamendments,i.e. amendments tabled on the day of debate, may be moved at any stage except on Third Reading but their use is discouraged.
• 35.10 ThesystemfornumberingamendmentsintheLordsdiffersfromthatintheCommons,and needs to be carefully managed to avoid confusion. In the Commons amendments are numberedconsecutivelyastheyaretabled.Whilethenumbersdonotbearanyrelationtothe position of the amendment in the bill, amendments do retain their number on subsequent reprints. In the Lords amendments are only numbered in the marshalledlist.Amendments publishedbeforethepublicationofthefirstmarshalledlistandtheninbetweeneachdebate andpublicationofthenextmarshalledlistarenotnumbered.Itisthereforeusefulifthebill teamassignthemtemporary‘dummy’numbersinordertotrackthemuntiltheyarepublished withtheirnumbersinthemarshalledlist.Whenthemarshalledlistisprintedthebillteamwill then need to convert the dummy numbers, and amend any notes on amendments accordingly.
• 35.11 Inthefirstmarshalledlistamendmentsaresimplynumberedbasedontheorderinwhich the bill will beconsidered.However,subsequentmarshalledlistswillslotnewamendments intotheirplaceandnumberthemaccordingly.Forexample,amendmentsbetween20and21 will be numbered 20A, 20B, etc. Any amendmentbetween20Aand20Bwillbenumbered 20AA. An amendment between amendments 20 and 20A it will benumbered20ZA,theZ signifying that it comes before the amendment with the next letter in sequence.
• 35.12 Amendmentscanbetabledbetween10amand4pmonanyworkingday.Insittingperiods theyareprintedovernightandareavailablefromthePrintedPaperOfficeandonlinethenext morning.BillteamsshoulddiscusswiththeLordsWhipsOfficethearrangementsfortabling amendments during recesses.
• 35.13 The same procedure for preparing explanatory statements and notes on clauses and amendments applies as in the Commons.

Procedure in committee of the whole House

• 35.14 TheLordinchargemoves“thattheHousedonowresolveitselfintoacommitteeuponthe bill”.Thismotionisusuallytakenformally,thoughitmaybeusedoccasionallyfordiscussionof theproceduretobeadoptedinCommitteeortoexpressdisapproval.WhentheHousehas agreedtogointoCommitteetheLordSpeaker(oradeputy)leavestheWoolsackandgoesto thetableoppositetheclerkstopresideoverthecommittee.TheLegislationOfficewillproduce a ‘peer in charge’ brief on procedural points for the minister and whip.
• 35.15 Thequestion“thatclauseXstandpartofthebill”isputinrespectofeachclauseafterany amendments to that clause have been dealt with. No motion is moved. This gives the opportunity to debate the clause generally, or to raise any points on it which are not the subjectofamendments.Anypeerisfreetospeakonthequestionthataclausestandpart, whetherornottheyhavegivennotice,butLordswillgenerallyindicatetheirintentiontospeak by means of an italic note stating: “The Lord X gives noticeofhisintentiontoopposethe questionthatclause/scheduleYstandpartofthebill”whichappearsintheappropriateplace in the marshalled list, but does not get an amendment number.
• 35.16 The order in which the bill isconsideredincommitteeofthewholeHouseisusuallyas follows(theorderofconsiderationcanbechangedintheformofamotionbeingputtothe House to be agreed before Committee Stage starts):
• ● amendmentstoclausesaretakeninorder,followedaftereachclausebythequestion“that clause X (as amended) stand part”;
• ● amendments to schedules, followed after each schedule by the question “that this schedule (as amended) be the nth schedule to the bill”; and
• ● long title and any preamble.
• 35.17 TherulethatmembersoftheLords(includingtheministerbutnotincludingthemoverofa motionoramendment,whohasarightofreply)mayonlyspeakoncetoanyquestiondoesnot applyinCommittee(thoughitdoesonotherstagesofthebill).Newclausesandschedules are treated likeotheramendments,e.g.theLordputsdownanamendment“afterclauseX insertthefollowingnewclause...”andthemotionissimplythattheamendmentbeagreedto. The place of the new clause or schedule proposed is therefore determined by the Lord proposing it.
• 35.18 Where there are a number of clauses with no amendments the chair may put asingle questionthattheclausesstandpartenblocbutanyLordwhowishestospeakonaparticular clause may object.

Procedure in grand committee

• 35.19 ProcedureingrandcommitteeisverysimilartothatincommitteeofthewholeHouse.The main differences are:
• ● nomotiontoresolveintoacommitteeismovedatthestartofproceedings:thechairsimply calls the first amendment;
• ● grand committees meet for four-hour sessions in a committee room(theMosesRoom) rather than in the Chamber, though any peer may participate;
• ● divisions are not permitted, and the bill may only be amended if there is unanimous agreement; and,
• ● ifthereisadivisionintheChamber,thegrandcommitteeusuallyadjournsforashorttime to allow members to vote .

Variation in order of amendments

• 35.20 Totakeclausesandschedulestoabillinadifferentorderthanintheorderoftheprinted bill(e.g.eachSchedulestraightafteritsgoverningclause;anyothervariationfromtakingthe billinorderisunusual),amotionforaninstructionshouldbetabledassoonaspossibleafter Second Reading in the name of the peer in chargeofthebill.Thismotionwillsetoutthe proposed order. Since new clauses and new schedules are taken at the place where itis desiredtoinserttheminthebill(forexample,“afterclauseX”)andnotattheend(asinthe Commons), they need not be mentioned in the motion for an instruction.
• 35.21 The motion is drafted by Parliamentary Counsel on the department's instructions and tabledbytheWhips.ParliamentaryCounselwillnormallysendanydraftorderofconsideration motionforLordsCommitteetotheWhipsbeforeSecondReading,sothatthemotionmaybe takenonthedayofSecondReadingaspartof,orimmediatelyafterthemotiontocommit,if desired.YoushouldconsulttheWhips’Officeasanyvariationfromtheprintedorderofthebill will need to be agreed by the Usual Channels.

Committee on a money or supply bill

• 35.22 For money and/or supply bills the Committee Stage is usually negatived after Second Reading. Such bills are normally taken through all of their stagesafterFirstReadingona single day, with no Committee or Report Stage and no amendments at Third Reading.

Discharging a committee

• 35.23 CommitteeStagemaybedischargedaltogetheriftherearenonoticesofamendmentsand nomemberoftheLordshasindicatedawishtospeakonthebillinCommittee.Noticeofa motiontodischargetheCommitteeStagemustappearontheorderpaper;theGovernment Whips' Office will see to this. This is a great incentive for departments to ensure that no governmentamendmentsaremadetonon-contentiousbillsintheLords.Ifthecommitteeis discharged there is also no Report Stage.

36. LORDS REPORT AND THIRD READING

Key points

• ● Unlike in the Commons Report and Third Reading usually take place on separate days.
• ● AmendmentsatThirdReadingarelimitedto‘tidyingup’pointsortofulfilundertakingsmade at an earlier stage of the bill’s passage

Report Stage

• 36.1 ImmediatelyafterCommitteeStage,thechairreportsthatthecommitteehaspassedthe bill with orwithoutamendment.IfthebillhasnotbeenamendedinCommittee,thepeerin charge may then move that the report of the committee “be now received”, and a day is arrangedforThirdReadingwithoutaReportStage.Thisrarelyhappensongovernmentbills, and only by agreement.
• 36.2 If the bill has been amended in Committee, an order is made for it to be reprinted as amendedandtheReportStageisfixedforasubsequentdate.Furtheramendmentsmaybe put down.
• 36.3 UnlikeintheCommons,theLordsReportandThirdReadingstagesarenormallytakenon separatedays.TheruleofthumbisthatReportStagewillusuallytakehalfthenumberofdays the bill was considered in Committee but, again, this is agreed through the usual channels.
• 36.4 ProceedingsonReportareopenedbythepeerinchargeofthebillmoving“thatthisreport benowreceived”.Althoughonrareoccasionsthisquestionmaybedebated,itisusuallytaken formally.Oncethemotionisagreedthetabledamendmentsarecalledintheorderinwhich theyaremarshalledwiththequestionputoneach(ifmoved)“thatthisamendmentbeagreed to”.Again,theLegislationOfficewillproducea‘peerincharge’briefonproceduralpointsfor the minister and whip.
• 36.5 The order inwhichtheamendmentsaretakencanbealteredbyanorderoftheHouse agreed to on a motion which, like the instruction at Committee Stage, is drafted by ParliamentaryCounselonthedepartment'sinstructionsandgiventotheGovernmentWhips' Office as soon as possible to be tabled.
• 36.6 The rule that no member of the Lords may speak twice on any question(includingthe Ministerbutexcludingthemoverofanamendment,whohasarighttoreply)appliesonReport Stage as it does on Second and Third Reading.
• 36.7 WhereasinCommitteethewholebillisopentodiscussion,regardlessofwhetherornot amendments are tabled (because each clause orschedulemustbestoodpart),onReport debate is limited to amendments before the House. Amendments to leave out clauses or schedules are therefore, at this stage, treated as ordinary amendments.

Recommittal

• 36.8 Veryoccasionally,thebillmayberecommitted(asawholeorinpart)toCommitteeStage toallowforamendmentstobefullydiscussedunderCommitteerules,followedbyaReport Stage. The late tablingofimportantorextensivegovernmentamendmentsafterCommittee stagecanleadtorecommittal.ThiscanbedoneatanytimebetweenCommitteeandThird Reading.

King's and Prince of Wales' consent

• 36.9 King'sPrinceofWales’consentis(ifrequired)signifiedbyaPrivyCounsellorwhoisalsoa Minister (usually the LeaderoftheHouseorGovernmentChiefWhip)assoonastheLord Speaker has read the notice and before Third Reading is moved.

Third Reading

• 36.10 WhentheThirdReadingiscalled,theLordinchargemoves“thatthisbillbenowreada third time”. When this has been agreed to, further amendments may bemovedbutonlyif notice of them has been given not later than the day before that on whichtheyaretobe moved. Manuscript amendments are inadmissible on Third Reading.
• 36.11 The principal purposes of amendments on Third Reading are to clarify any remaining uncertainties,toimprovethedraftingandtoenabletheGovernmenttofulfilundertakingsgiven at earlier stages of thebill.Theoverallpurposeofthestageistotidyupthebill.Anissue whichhasbeenfullydebatedandvotedonornegativedatapreviousstageofabillmaynot be reopened by an amendment on Third Reading.

Legislative consent statement

• 36.12 Whenlegislativeconsentarisesandhasbeenrefused,ornotyetgrantedbythetimeof thirdreading,theMinisterisexpectedtomakeanoralstatementbeforeThirdReading,setting outtheeffortsthatweremadetosecureconsentandthereasonsforthedisagreement.Such statements are not debatable but issues can be raised on 'Bill Do Now Pass'. See Chapter 14.

Privilege amendment

• 36.13 ItistheprivilegeoftheCommonstocontrolchargesonthepeopleandonpublicfunds. WhereabillthatstartsintheLordsmayinvolvesuchcharges,toavoidinfringingthisprivilege, theHouseofLordsformallydeclarethatnothingthebillinvolvessuchacharge.Theydosoby meansofa‘privilegeamendment’onThirdReading,addingasubsectiontotheendofthebill. Theprivilegeamendmentismadeviaanentryintheminutesofproceedings-theMinister doesnothavetomoveordebateanamendment.WhenthebilltransferstotheCommons,the privilege amendment appears in the bill in bold type. An amendment should betabledto remove it in Committee.

Passing

• 36.14 The motion “that this bill donowpass”ismovedimmediatelyafteranyamendmentson ThirdReadinghavebeendisposedof.Itisusuallytakenwithlittleornodebate,althoughit can be used by the minister and others to say a few words of thanks..
• 36.15 WhenabillwhichstartsintheLordshaspassedthroughallitsstagesthere,itissenttothe Commons with a message asking for their agreementandthebillwillbeintroducedinthe Commons,normallyonthefollowingsittingday.WhenabillstartingintheCommonshasbeen amended in the Lords, the amendments go back to the Commons for their agreement.

SECTION F

FURTHER ACTION AFTER COMPLETING COMMONS AND LORDS STAGES AND AFTER ROYAL ASSENT

37. CONSIDERATION OF AMENDMENTS AND 'PING PONG'

Key points

• ● BeforeabillcanbecomeanactbothHousesmustreachagreementonasingletext.Any amendments made by thesecondHouseneedtobeagreedbytheHousewherethebill started. If there isnoagreement,thebillenterswhatisknownas‘ping-pong’withfurther exchanges between the Houses until agreement is reached.
• ● Ifnoagreementisreachedbeforetheendofthesessionorthereisa‘doubleinsistence’ (whereeachHouseinturnstickstoitspreviousstanceandnoalternativesareoffered)the bill will fall. Double insistence can be avoided by offering further concessions.Billteams musttakegreatcarethatdoubleinsistencedoesnothappenbyaccidentbecauseasuitable concession is not offered.
• ● Government amendments during ping-pong must be collectively agreed, as with amendmentsatearlierstagesofthebill.Giventhespeedofping-pong,billteamsandthe 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 amendmentsmadeinthesecondHouse.Theexplanatorynotesshouldalsoincludedetailof the financial effects (if any) of the amendments made in the secondHouse.Explanatory notesarenotrequiredforanyfurtherexchangesofping-pongafterthebillhasbeenreturned to the first House.

Overview

• 37.1 Ping-pongonlyoccurswhereabillhasbeenamendedinthesecondHouse. Ping-pongis more formally known as: Commons Consideration of Lords Amendments (CCLA) or Lords Consideration of Commons Amendments (LCCA), according to the House in which the amendmentsarebeingconsidered. Technically,CCLAisthefirststageofping-ponginthe 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.
• 37.2 Duringping-pongonlyamendmentsthathavebeenmadeinthesecondHouseareableto bedebated. ClausesofthebillthathavebeenagreedbybothHousesarenolongerunder consideration. Asping-pongprogresses,andasdisagreementsbetweenthetwoHousesare resolved, the number of amendments being debated therefore reduces.
• 37.3 IfthefirstHouseagreestoalloftheamendmentsmadeinthesecondHouse,thebillis readyforRoyalAssent.Ifitdoesnot,itreturnsthebilltothesecondHousewithreasonsfor disagreeing totheamendmentsand/orwithfurtheramendments.Thiscanbefollowedby 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.
• 37.4 Ping-pong can involve repeated consideration by both Houses and can become very complicated,giventhecomplexproceduralrequirements,thetimepressureattheendofthe sessionandthepoliticalcontext.Onlythemostpoliticallycontentiousofbillsarelikelytogo into protracted ping-pong.
• 37.5 If there is no agreement by the end of the session, the bill falls. If there is a ‘double insistence’,whereoneHouseinsistsonanamendmenttowhichtheotherHousehasalready disagreedandtheotherHouserefusestoalteritsposition(‘insistsonitsdisagreement’)the bill falls.

Ping-pong strategy

• 37.6 If there have been any amendments in the Lords which need to be overturned in the CommonsoranyCommonsamendmentswhicharelikelytobecontentiousintheLords,then thebillteamshouldconsidertheoptionsandadviseministersonthebestwayforwardwellin advanceofconsiderationandping-pongstages.Thisshouldbedoneinconsultationwiththe Government Whips’ Office in both Houses and with Parliamentary Counsel.
• 37.7 Bill teams must ensure that everybody involved in the bill is absolutely clear about the procedure during ping-pong and understands that concessions may benecessarytoavoid double insistence and losing the bill.
• 37.8 Departmentsmustnotassumethat,ifLordsdefeatsareoverturnedintheCommons,the Lordswillbepreparedtoacceptthiswithnofurtherattempttoamendthebill.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.
• 37.9 Just as at earlier stages, ministers must seek collective agreement through the PBL Committeeand,whereappropriate,apolicycommitteeofCabinet,foranyproposalstotable government amendments or accept non-governmentamendmentsduringconsiderationand ping-pong.
• 37.10 Giventherateatwhichthebillmayping-pongbetweenthetwoHouses,itwillnotnormally bepossibletoallowthefullsixworkingdaysforthePBLCommittee(andthepolicycommittee 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.
• 37.11 Billteamsshouldalsodiscusstimingofclearanceforping-pongwiththePBLSecretariat andtheWhips’Office.Therearenofixedtablingdeadlinesforping-pong,giventhespeedat which it can progress, but bill teams should table as close as possible to government deadlines wherever possible.
• 37.12 Generally,itisadvisabletowriteinadvanceseekingcollectiveagreementtomakethose concessionswhichtheyarealmostcertaintheywillneedtomake,andcontingentclearanceto makefurtherconcessionsonlyifabsolutelypressedduringconsiderationorping-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.
• 37.13 OnreturntothefirstHouse,departmentsmustordinarilysubmitrevisedexplanatorynotes onanyamendmentsmadeinthesecondHouse;itisnotnecessarytoprepareacompleteset ofexplanatorynotesforthewholebill.Anexceptionmaybemadeiftimeisparticularlytight, forinstanceduringwash-uporthepassageofafast-trackbill.Explanatorynotesdonotneed toberevisedonreturntothesecondHouseoratanyfurtherstageofping-pong.Thenext time they will need to be revised is on Royal Assent.
• 37.14 Thedetailsoftheping-pongprocedurearesetoutbelow;thekeymessageforbillteamsto note is that ministers will need to be prepared to offer concessionstoavoidlosingthebill through double insistence. This may includepoliciesthattheyhavedefendedverystrongly throughout previous parliamentary stages.

Commons Consideration of Lords Amendments

• 37.15 SecondHouseamendmentsarepublishedinadistinctlistbyreferencetotheprintofthe billasitleftthefirstHouse. Onthislist,theamendmentswillbemarshalledandnumbered according to the order that they appearintheBill;thenumberingtheyhadonamendment papers at earlier stages in the second House is not continued with. At each stage of ping-pong,thelistwillbeupdatedtoreflecttheresponseoftheHousethathasjustconsidered the bill; any amendments that are agreed to or otherwise resolved will be removed.
• 37.16 LordsamendmentsmaybeconsideredbytheCommonsimmediatelyifthereisanurgent need for Royal Assent or if the amendments are so minor and technical that theycanbe consideredveryquickly.Thebillcouldthenpassalmostimmediately.Usually,however,alater day is fixed for consideration.BillteamsmustpreparenotesontheLordsamendmentsfor theirministerandamoredetailedbriefforanyamendmentswhichmaygiverisetodebatein the Commons.
• 37.17 Lords amendments altering financial arrangements proposed by the Commons, or otherwiseaffectingthepublicfinances,mayberegardedasengagingthefinancialprivileges oftheCommons.ThisisdeterminedbytheCommonsSpeakerwhentheBillreturnstothe Commons. If an amendment made in the Lords seems likely to engage privilege, the departmentshouldseekearlyadvicefromParliamentaryCounsel,whomayinturnconsultthe Commons Public Bill Office.
• 37.18 The Government can invite the Commons to agree to a Lords amendment engaging privilege(referredtoastheCommons‘waiving’privilege),providedthatithasanynecessary coverofafinancialresolution.ButiftheCommonsdisagreetosuchanamendment,theyhave todosoonprivilegegrounds(embodiedinthe‘reason’senttotheLords).Byconvention,this stopstheLordsfrominsistingontheamendment(althoughitcannotbereliedontostopthem proposinganalternativethatalsoengagesprivilege).Privilegecanbeasensitiveissueinthe Lords, particularly where financial matters do not actually lie at the heart of the disagreement—it can seem that the Government is usingproceduraldevicestoshutdown debate. But in truth the Government has no choice about whether privilegeisinvokedifit wishes to disagree to the Lords amendment.
• 37.19 Where Lords amendments involve financial matters that are not covered by a previous moneyorwaysandmeansresolutionforthebill,theamendmentswillautomaticallybetreated asdisagreedtoongroundsofprivilegeunlessafurtherresolutioncoveringtheamendmentsis agreed before the amendments are considered (see 25.14-17).
• 37.20 The Commons have the following options in considering Lords amendments:
• ● agree;
• ● disagree (with a reason given for each disagreement);
• ● agree a Lords amendment but propose an amendment to it;
• ● disagree to a Lords amendment andproposeanamendmentoramendmentsinlieu,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.
• 37.21 It is for the Commons member in charge (i.e. the bill minister,orinthecaseofprivate members’bills,themember)toproposeagroupingforLordsamendments.Thisneedstobe agreedwiththeWhips’Officeasgroupingofamendmentswillrelatetotheprogrammemotion required to manage Commons consideration of Lords amendments.
• 37.22 ParliamentaryCounselwillforwardthegroupingtothePublicBillOffice.Debateisusually initiatedbyaministermovingamotiontoagreeordisagreewiththeleadLordsamendmentin aparticulargroup.Exceptionally,ifthefirstLordsamendmentinagrouphasanamendment tabledtoit,thefirstthingtobemovedisthatamendment.ParliamentaryCounselwilldraftthe motion.
• 37.23 Amendmentscanalsobe‘packaged’.Thisiswhereanumberofrelatedamendmentsare grouped together for the purposes of both debateanddecision.(‘Grouping’intheordinary sense means that amendments are debated together, but theirfateisdecidedseparately.) ParliamentaryCounselwillensurethatthemotionfordebatemakescleartotheotherHouse when amendments are ‘packaged’ and what the links are between different elements ofa ‘package’.Thisnormallyhappensonlyinthelaterstagesofping-pong.Themainsignificance of packaging is that movement on any part of a packageavoidsdoubleinsistenceonany otherpart—so,ifLordsAmendments1,2and3allrepresentasingleareaofdisagreement and are accordingly packaged together, a concession is only needed on one of those amendments to keep the bill alive.
• 37.24 No notice is required of a motion to agree with the Lords but notice is required for amendmentstotheLordsamendments,amendmentsinlieuofthoseLordsamendmentsand consequentialamendmentstothebillandnoticeisexpectedofamotiontodisagreewiththe Lords.ThisisanalogouswithclausestandpartdebatesinCommittee,whentheGovernment givesnoticeifitintendstoleaveoutparticularclausesbutnotifitintendstoleavetheminthe bill.
• 37.25 If the Commons disagree with a Lords amendment and do not offer an alternative, a committee(withagovernmentmajorityandincludingthebillminister)isappointedtodrawup ‘reasons for disagreement’, immediately after all the Lords amendments have been considered.TheWhipsarrangethatthenamesofthecommitteebenotifiedinadvancetothe PublicBillOffice,whicharrangesfortheappropriatemotiontobeavailabletobemovedbya whip. Parliamentary Counsel will draft the reasons and agree them with the department.
• 37.26 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.
• 37.27 WhenthebillreturnstothesecondHousethisiscalled‘LordsConsiderationofCommons Reasons (or Amendments or both)’.
• 37.28 TheLordshavethefollowingoptionsinconsideringtheCommonsdisagreementwithLords amendments:
• ● not insist on their amendment;
• ● not insist on their amendment but propose a different amendment in lieu;
• ● insistontheiramendment(unlessitwasdisagreedforreasonoffinancialprivilege); or
• ● make further amendments in regard to any of theamendmentsdisagreedbythe Commons.
• 37.29 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 amendmentscannotbetableduntilthemessagearrivesinthereceivingHouse. Ifthecontent ofthemessageisunexpected,billteamsmustveryquicklyadvisetheirministerontheoptions opentothem,bearinginmindtheneedtoavoiddoubleinsistence.Onceacourseofactionis agreed,billteamsmustprepareanynotesorbriefingtheministerorpeerinchargewillneed forthenextstage.IntheCommons,ifitisknowninadvancethata‘reasonfordisagreement’ willberequired,ParliamentaryCounselwillprepareadraftfortheministertoapprove.These ‘reasons’areasbriefaspossibleanddonotseektoarguethecaseindetail;inrecentyears they have tended to indicate the grounds for disagreement in a succinct way.
• 37.30 The process continues until such time as agreement is reachedoritbecomesclearno agreementispossible,orthereis‘doubleinsistence’.‘Insist’inthiscontextisatechnicalterm withaprecisemeaning.IfoneHouseinsistsonanamendmenttowhichtheotherhasalready disagreed, and the other House then insists onitspreviousdisagreement(i.e.disagreesa second time), without offering anything new on that amendment (or in thatpackage–see above), the bill is lost.
• 37.31 To avoid this, where the Lords insist on an amendment to which the Commons have disagreed, the Government has to offer some sort of concession to keep the bill alive. A concessionhastobesubstantive(sonotmerelyverbal)—ParliamentaryCounselmayhaveto consultthePublicBillOfficeonwhatwillbeenoughintheparticularcontext.Asnotedabove, the ‘packaging’ of different but related amendments is another possiblemeansofavoiding double insistence (although a concession will still be needed for each package).

Lords Consideration of Commons Amendments

• 37.32 Lords Consideration of Commons Amendmentsworksinmuchthesameway.Allofthe above could be read substituting “Commons” for “Lords” andviceversa,withthefollowing differences:
• 37.33 Groupings are arranged by the Lords Whips’ Office.
• 37.34 It is open to the Lords to ‘unpackage’ amendments for the purposes of debate.
• 37.35 IntheLords,wheretherearelargenumbersofCommonsamendmentsitisoftensensible to move them en bloc but this can only be done if the amendments are consecutive, no counter-propositionshavebeentabledandwiththeleaveoftheHouse(i.e.intheabsenceof objection when leave is asked for).
• 37.36 The Lords no longer appoint reasons committees. When the Lords disagree with a Commonspropositionwithoutproposinganalternative,astandardreason(‘becausetheLords wish the Commons to consider the matter again’) is given.

Parliament Acts 1911 and 1949

• 37.37 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 Actsof1911and1949, which make provision for presenting a bill for RoyalAssentwithouttheconcurrenceofthe House of Lords. The Parliament Act can only be used for bills first introduced in the Commons.
• 37.38 In the case ofmoneybillswithinthetermsofsection1ofthe1911Act,thebillmaybe presentedforRoyalAssentamonthafterithasbeensenttotheLords,disregardingeitherthe failureoftheLordstopasssuchabilloranyamendmentstheypropose.Forthisreason,such billsarenotusuallyamendedorsubjecttoextendedproceedingsintheLords.Thedefinition ofa‘moneybill’forthesepurposesisnarrowandissetoutinsection1(2)ofthe1911Act. ParliamentaryCounselwillbeabletoadviseonitsapplicationinspecificcases;thedecisionis madebytheSpeakerasthebillleavestheCommons.Nobillhaseverbeenpassedunder section 1 of the 1911 Act.
• 37.39 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 ReadinginthefirstofthetwosessionsandCommonsThirdReadinginthesecondofthetwo sessions.ThebillmustbesenttotheLordsinthesecondofthetwosessionsinthesame form as sent up in the first of the two sessions, except that it may contain alterations necessaryowingtotheelapseoftimeandmayincludeanyamendmentsmadeintheLordsin 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 unacceptabletotheCommons)itisautomaticallypresentedforRoyalAssentnotwithstanding the Lords' disagreement, unless the Commons directs to the contrary. The provision only appliesif,ineachsession,thebillwassenttotheLordsatleastamonthbeforetheendofthe session.
• 37.40 Theprocedureisararityandalastresort.Theprocedureswhichapply,particularlyinthe caseofsuggestedamendments,aresomewhatuncertain,andadviceshouldbesoughtfrom Parliamentary Counsel. Departments should also consider the wider handling implications. TheParliamentActprocedurescanbeusedonlyinthesessionimmediatelyfollowingthatin which the bill fell; a bill reintroduced in a subsequent session must follow the normal process.

38. ROYAL ASSENT AND COMMENCEMENT

Key points

• ● RoyalAssentisannouncedthroughoutthesessionbynotificationfromtheSpeakerofeach House or at prorogation by commissioners.
• ● TheproofprintsoftheActwillneedtobecheckedcarefullybyParliamentaryCounseland the bill team.
• ● Where the text of anActneedstobemadeavailableurgently,thebillteamshouldnotify ParliamentaryCounselandLegislationServices,whowillensurethattheLordsPublicBill Officegivesprioritytoprovisionofthefinalapprovedtextoftheactandthatthisismade available onwww.legislation.gov.ukas soon as itis ready.
• ● The bill team should send the final explanatory notes(updatedtoreflectanysubstantive changes to the bill through amendment at Consideration or ping-pong) to Legislation Servicesforformattingandpublishingalongsidethetextoftheactorassoonaspossible thereafter.
• ● UnlesstheActstatesotherwiseitcommences(comesintooperation)onthedateofRoyal Assent.

Royal Assent

• 38.1 WhenabillhasbeenpassedbybothHousesandanyamendmentshavebeenagreedto, itisreadytoreceiveRoyalAssent.Forbillswhichcompletetheirparliamentarypassageright attheendofthesession,RoyalAssentwillbecommunicatedatprorogation(theendofthe session) by the commissioners who arecommissionedtoprorogueParliamentanddeclare Royal Assent for those bills on behalf of The King.
• 38.2 For bills which complete their parliamentary passage earlier on in the session, Royal AssentisnotifiedtoeachHousebyitsSpeaker.ThetwoHousesarenormallynotifiedonthe samedaybutnotnecessarilyatthesametime.RoyalAssentiseffectivewhenthesecondof the two Houses is notified.
• 38.3 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.
• 38.4 It is possible to make a request through the GovernmentWhips'OfficeintheLordsfor RoyalAssenttobenotifiedonaparticulardateiftheoccasionisimportantenoughandthe timingisreasonablebutnoguaranteescanbegiventhatthiswillbepossible.Thisisdifferent from requests for Royal Assentbeforeaparticulardeadline.Theselatterrequestsmustbe madewhenbiddingforaslotinthelegislativeprogramme,andmustbeagreedtobythePBL Committee.Suchrequestsshouldonlybemadewhereabsolutelynecessary,andshouldbe made as early as possible to allow Business Managerstoplanbusinessaccordinglyifthe request is sufficiently pressing.
• 38.5 When a bill receives Royal Assent, it becomes an Act.

Proof prints of Acts

• 38.6 TheLordsPublicBillOfficeisresponsibleforthecorrectnessofprintsofActsandwillsend theproofprintsoftheActtoParliamentaryCounsel.Proofsshouldbecarefullycheckedby Parliamentary Counsel and the billteam.ThePublicBillOfficeshouldbeinformedthrough ParliamentaryCounselatanearlystageifalargenumberofproofsarerequired.Corrections to these proofs should be channelled through Parliamentary Counsel.
• 38.7 Onceanycorrectionshavebeenmade,theActisprintedandpublished,withthedateof Royal Assent included after the long title. The act will be published on the www.legislation.gov.uk websiteinPDFformatimmediatelyaftertheapprovedtexthasbeen receivedfromtheLordsPublicBillOfficeandinHTMLformatatthesametimeastheprinted copy is made available.
• 38.8 If any provisions of the bill are to take practical effect immediately or soon after Royal Assentorifthereareotherreasonswhyitshouldbegivenpriorityoverotherbillsforearly printing / publication on enactment, the department should let Parliamentary Counsel and LegislationServicesknowasearlyaspossible.WhereappropriatethePublicBillOfficewill prioritisetheproofprintsandLegislationServiceswillarrangetoexpediteprintingonreceiptof the approved text.
• 38.9 Whereanactcannotbepublishedbeforeittakespracticaleffect,thedepartmentshould seek to disseminate the finaltextoftherelevantsectionstothosemostinterested,ortheir representatives.

Finalising the explanatory notes

• 38.10 On completion of parliamentary passage, the explanatory notes (including any transposition notes) must be updated to reflect any substantive changes to the bill at Considerationorping-pong.Irrespectiveofanyamendments,certainotherchangesmustbe madeaswellseeChapter10formoreinformation.Itisthebillteam'sresponsibilitytofinalise the explanatory notes and then send them to The National Archives (contact details at AppendixB)forformattingandpublishingalongsidethetextoftheact,orassoonaspossible thereafter.
• 38.11 Rather than publishing the final act and explanatory notes on their own website, departmentsshouldprovidealinktothedocumentsonthewww.legislation.gov.ukwebsiteas these are the official documents that will be updated with any necessary changes in future.

Commencement of Acts

• 38.12 UnlesstheActstatesotherwise,itcommences(comesintooperation)onthedateofRoyal Assent.Detailsoncommencementprovisionsandconsentforearlycommencementcanbe found earlier in this guide.
• 38.13 Where the provisions have an impact on business and civil society organisations, they shouldbecommencedononeofthetwoannual‘commoncommencementdates’(6Apriland 1 October). For more information speak to your departmental Better Regulation Unit. .
• 38.14 Officials responsible for theimplementationofdifferentpartsofanActwillneedtowork togethertoensurethat,whereprovisionsaretobebroughtintooperationbycommencement order, the numberofordersmadeandcommencementdatesspecifiedshouldbekepttoa 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.

39. FURTHER ACTION AFTER ROYAL ASSENT

Key points

• ● RoyalAssentisnottheendofabillteam'swork.Thereismuchtodopost-RoyalAssent,so it is important to retain sufficient resource on the billteam,andtomakepreparationsfor post-Royal Assent tasks at an earlier stage.
• ● Secondary legislation may need tobepreparedandlaidbeforeParliament.Thebillteam should work with their parliamentary teams to input into the centralsecondarylegislation triage process.
• ● Wherenewlegislationhasasignificantimpactonbusinessorcivilsociety,theGovernment has committed to publishing guidance12weeksbeforeregulationscomeintoeffect,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.
• ● ThebillteamwillneedtomakeprovisionsforthefilingofbillpapersafterRoyalAssentby keeping papers in order during the bill's passage.

Overview

• 39.1 Resource pressures within departments often leadtobillteamsbeingdisbandedrapidly afterRoyalAssent.Thisisunfortunate,asmuchworkremainstobedoneandisoftenbetter donebybillteammemberswhoarefamiliarwiththebillthanbypolicycolleagueswhohave not been so closely involved with the bill (and for whom this work may be of lesser priority).

Secondary legislation

• 39.2 Anystatutoryinstrumentswillbedraftedbythelegaladviseroninstructionsgivenbythe policyteamandwillbesubjecttosuchparliamentaryproceduresashavebeenprovidedforin the Act. Frequently, draft statutory instruments will have been published during the bill's passage through Parliament.
• 39.3 Guidance on preparing secondary legislation can be found in the Statutory Instrument Practiceguidance,copiesofwhichshouldbeheldbydepartmentalparliamentarybranchesor legal advisers. It is one of the tasks of the Office oftheParliamentaryCounseltovetany subordinate legislation which amends primary legislation. Itmayalsobepossibletomake 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. Initialcontactonsuchissuesshouldbemadewiththeteamleader within the Office of the Parliamentary Counsel responsible for the department.

Guidance

• 39.4 Wherenewlegislationhasasignificantimpactonbusinessorcivilsociety,theGovernment has committed to publishing guidance 12 weeks before regulations come into effect. Departmentsshouldstrivetomeetthiscommitmentwhereverpossible,asabsenceoftimely andgoodqualityguidancemayresultinextracostsforbusinessandcivilsociety,forexample, seekingprofessionaladviceaboutwhattodoinordertocomplywiththenewlaw.Production of guidance should be factored into the bill team's delivery plan.
• 39.5 Guidanceshouldnotsimplyrepeatthematerialalreadyavailableintheexplanatorynotes althoughsomematerialfromtheexplanatorynotesmayberelevant.Theaimofguidanceisto give external organisations a clear ideaofhowthenewlawwillaffectthemandwhatthey needtodoinordertocomplywithit.Unliketheexplanatorynotes,itdoesnotneedtocover 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.
• 39.6 Where the new legislation is likely to have a particularly significant impact on external organisations,itisgoodpractice,whereappropriateandreasonable,topublishguidancein draftduringthebill'spassage.Draftguidancewillhelpbusiness,thevoluntary,communityand socialenterprisesectorandMPsandpeerstobetterunderstandtheimpactonbusinessand civil society, thus assisting proper parliamentaryscrutiny.Itwillalsogivebusinessandcivil society more time to make any adjustments necessary for when theActcomesintoforce. However, before publishing any draft guidance, departments should carefully consider the degreetowhichthedraftguidanceissubjecttochangeasaresultofparliamentaryscrutinyor anyothermeans.Toavoidissuingconflictingorconfusingmessagesaboutwhatisrequiredto 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.
• 39.7 Publicationofdraftorfinalimplementationguidancewillnotnormallyrequireclearanceby thePBLCommittee,butmayrequireclearancethroughtherelevantpolicyCabinetcommittee. The PBL Secretariat can advise whether collective agreement is needed. Even if formal clearance is not required,billteamsshouldensurethattheyconsultwithothergovernment departments as appropriate.
• 39.8 Where guidance has been published in draft it should normally bereissuedafterRoyal Assent with any revisions necessary to reflect amendments made to the bill during its passage.However,wherethebillhasnotbeensignificantlyamendeditmaybesufficientto remind interested parties of the existence of the material provided earlier.
• 39.9 Guidance mayincludenotesforpracticingsolicitors,accountantsandotherswhoadvise the public.
• 39.10 Allguidanceshouldbeavailableinarangeofformatsthatareaccessible,asappropriate andreasonable,e.g.departmentalwebsites(aswellaslocalauthoritywebsitesifappropriate), leafletsetc.Toensurehighlevelsofmarketpenetration,guidanceshouldalsobepublishedon orlinkedtotheHMRCwebsiteandanywiderpublicity(seebelow)shoulddrawattentionto the guidance.
• 39.11 Guidanceorinstructionsmayalsoneedtobeissuedwithingovernmentitself,forexample to ensure that other interested departments receive up-to-date copies of any transposition notes.

Publicity

• 39.12 Pressorinformationofficerswillnormallylookafterpublicityaboutthepassingofthebill buttheywillneedtheadviceofthebillteamaboutpressnotices.SomeActsmayresultina flood of enquiries to the press office in which case they will need to have good working arrangementswiththebillteam.IftheministerisholdingapressconferenceonthenewAct,a briefwillbeneededorperhapsnotesonthemainquestionslikelytobeasked,andsomeone from the bill team should attend. Press advertisements as well as a press notice may be required.

Leaflets

• 39.13 ItmaybeappropriatetopublishaleaflettoexplaintheActtomembersofthepublicwhose rights ordutiesmaybeextendedordiminished.Allleafletsshouldbecheckedbythelegal adviserforaccuracy,butthedesignandlanguageoftheleafletisoftenbestundertakenby specialist editorial / design staff.

Circulars

• 39.14 StatutoryandotherbodiesmaybedirectlyaffectedbytheActandcircularsmaybeneeded explainingitanddrawingtheirattentiontoanyactiontheyshouldtakeorpreparetotakeasa result.TheaimshouldbetosendoutsuchcircularsbythetimetheActbecomeseffectiveand particularly by an appointed day.

Forms

• 39.15 Formsmayhavetobedesignedforcompletioneitheronbehalfofstatutoryorotherbodies orbymembersofthepublic.Thedifficultyofdesigningthemsothattheycoverallnecessary points without becoming unintelligible or impossibly cumbersome isnotoriousanditwillbe advisable to involve design specialists at an early stage. Guidance should besoughtfrom experts within departments or from Government Communications in the CabinetOffice.All government forms should bepre-testedwitharepresentativesampleofusersbeforebeing issuedandallformstobesenttobusinessesshouldbeclearedwiththe‘departmentalforms gatekeeper’.

Registration and custody of bill papers

• 39.16 Every department willhaveitsownsystemforfilingbillpapers.Theirimportancewillbe obviousinpreparinglaterlegislationonthesamesubject,intheadministrationoftheActand duringpost-legislativescrutiny:forallActsgainingRoyalAssentsince2005,thedepartment responsible for implementing the legislation must, three to five years after Royal Assent, submitamemorandumtotherelevantselectcommitteesettingouthowtheActhasworked out in practice and whether its objectives have been achieved. This will allow the select committeetodecidewhethertocarryoutfullerpost-legislativescrutiny.Theobjectiveswillbe assetoutintheexplanatorynotes,impactassessmentandanyministerialstatementsmade toParliamentduringpassageofthebill.Furtherinformationonpost-legislativescrutinyisset out in Chapter 40.
• 39.17 Thedifficultyofkeepingpapersinorderduringthecriticalphasesofthelegislativeprocess is obvious, and sometimes impossible, but busy periods are usually followed by relatively easieroneswhenamemberofthebillteamshouldberesponsibleforgatheringtogetherand filing the last batch of important papers. A useful working rule is that all incoming original documentsshouldbedirectedtoonefocalpointinthebillteam.Theyshould,inparticular,not remain with the legal adviser.
• 39.18 Billpapersstartatthemomentwhenlegislativeproposalsareendorsedbytheministerand finish with the record of Royal Assent.

Conducting a lessons learnt exercise

• 39.19 Becausebillsarefiniteprojects,theofficialsandlawyersworkingonabilloftenmoveonto newprojectsbutitisimportantthatthedepartmentcapitalisesontheexperienceofofficials, lawyers and ministers so future bill teams can learn lessons and avoid previous mistakes.
• 39.20 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.
• 39.21 The PBL Secretariat and theOfficeofParliamentaryCounselconductaregularlessons learntexerciselookingatthemesacrossthelegislativeprogramme.Departmentsmaywishto followthemodelusedforthisexercise,wherefeedbackissoughtfromthebillministers,the bill team, officials from the Business Managers’ offices, departmental lawyers and Parliamentary Counsel. This is thencompiledintoashortreportidentifyingkeylessonsfor each stage of the process; from instructions to Royal Assent. The PBL Secretariat can provide advice on how to conduct a lessons learnt exercise.

40. POST-LEGISLATIVE SCRUTINY

Key points

• ● Threetofiveyears(normally)afterRoyalAssent,theresponsibledepartmentmustsubmita memorandumtotherelevantCommonsdepartmentalselectcommittee(unlessithasbeen agreedwiththecommitteethatamemorandumisnotrequired),publishedasacommand paper.
• ● Responsibledepartmentsshoulddrawupatimetableforproducingamemorandumtomeet the three to five-year deadline, taking into accountotherreviewprocesses(includingany statutory reviews required under sunsetting regulations policy and post-implementation reviews).
• ● The memorandum will include a preliminary assessment of how the Act has worked in practice,relativetoobjectivesandbenchmarksidentifiedduringthepassageofthebilland in the supporting documentation.
• ● Theselectcommittee(orpotentiallyanothercommittee)willthendecidewhetheritwishesto conduct a fuller post-legislative inquiry into the Act.
• ● Whenpreparingnewlegislation,departmentsshouldtakeintoaccountthecommitmentthat, takentogether,theimpactassessment,explanatorynotesandotherstatementsmadeduring the passage of a bill should give sufficient indication of the bill's objectives to allow any post-legislativereviewingbodytomakeaneffectiveassessmentastohowanActisworking in practice.

Post-legislative scrutiny: Background

• 40.1 Post-legislative scrutiny of Acts complements, but does not replace any of the existing processesforpost-legislativescrutinyandreview. Departmentswillthereforeneedtoadhere to any obligations to consider Acts post-implementation, in addition to conducting post-legislative scrutiny. Existing processes for post-legislative scrutiny and review include:
• ● at the instigation of the department through the post-implementation review impact assessment process;
• ● areviewcarriedoutinordertosatisfyastatutoryreviewobligation,forexampleasmaybe required under theGovernment’s Sunsetting Regulations:Guidance.
• ● examinationbyaparliamentarycommitteechoosingtoconductaninquiryintotheoperationof an Act; and,
• ● examinationbyaparliamentarycommitteewheretheoperationofanActisintegraltosome other inquiry the committee is conducting.
• 40.2 Post-legislativescrutinywasintroducedtorespondtocallsthatonceanActhasreceived Royal Assent insufficient attention was paid to whether it had been well implemented (or implementedatall),itsactualeffectandimpact.Togetherwithotherinitiativesitpromotesa moresystematicapproachwithgovernmentworkingwithParliamentinanareathathasbeen recognised as a relative weakness in the legislative process. It should benefit government by:
• ● improving the preparation of bills, by focusing attention on likely implementation difficulties;
• ● helping to identify problems with the implementation of Acts earlierormoresystematically; and,
• ● allowinglessons(bothaboutwhathasworkedwellandwhathasnotworkedwell)tobelearnt and disseminated to the benefit of other legislation, and significant achievements to be identified and highlighted.
• ● Atthesametime,theintentionistoensurethatsuchscrutinyisproportionatetoneed.While somedegreeofscrutinywillberequiredforeachAct-thismayjustbeaninitialassessmentof thelegislationthatinformsadiscussionwithaparliamentarycommittee-itisnotenvisaged that there should be a full in-depth review of every Act.

Other processes for the review of Acts within government

• 40.3 Post-enactment review work within government will remain important and departments should continue to carry out whichever of the following may be appropriate:
• ● internalreviews(orreviewscommissionedfromanoutsidebody)ofallorpartofan Act and its operation, as part of a department's general policy responsibilities. Where appropriate the Government would expect such internal reviews to be published;
• ● post-implementation reviews as required by the process set out in the impact assessment; or
• ● anyreviewrequiredbytheprovisionsoftheActaspassed,includingastatutory review clause introduced under the sunsetting regulations policy.

The system for supporting parliamentary review of Acts

• 40.4 Thecentralcommitmentunderpost-legislativescrutinyisthattheresponsibledepartment will,withintheperiodthreetofiveyearsafteranActhasreceivedRoyalAssent,submittothe relevant Commons departmental select committeeamemorandumreportingoncertainkey elementsoftheAct'simplementationandoperation. Atthesametime,copieswillneedtobe sent to key stakeholders. Further information on who should the memorandumshouldbe submitted to is under the heading 'Clearance processes' below.
• 40.5 Exceptionsandvariationstothisrulearelistedbelow,buttheobjectiveistoensurethatin allappropriatecasestherelevantselectcommittee,facilitatedbyinformationprovidedbythe departmentonthebasisofaninitialassessmentoftheAct,cangivesystematicconsideration as to whether it would be appropriate for a fuller review to be carried out.
• 40.6 The relevantgovernmentdepartmentineachcaseisthedepartmentresponsibleforthe Actatthetimeamemorandumistobesubmittedordiscussedwiththerelevantcommittee, irrespective of whether it was the responsible department at the time the Act was passed.
• 40.7 Therelevantcommitteewillbethedepartment'snormaldepartmentalselectcommittee(for the Cabinet Office, this is the Public Administration and Constitutional Affairs Select Committee).Ifthereisanydoubtastowhichistheappropriateselectcommittee,departments should seek advice from the Cabinet Office Parliamentary Adviser and PBL Secretariat.
• 40.8 Ineachsessionsince2012therehasbeenaLordsSpecialInquiryCommittee(previously calledanadhoccommittee)appointedtocarryoutpost-legislativescrutinyonspecificActs. TheLordsLiaisonCommitteeselectstheAct(orActs)tobescrutinisedonanadhocbasis, and in due course a select committee is established.
• 40.9 The process applies to most government bills that reach Royal Assent (see the list of exceptionsbelow). Italsoappliestoprivatemembers'billsthatreceiveRoyalAssentsince such Acts form part of the body of primary legislation for which departments are responsible.
• 40.10 If a department plans to submit a memorandum within three to five years after Royal Assent as required, there is no particular need to discuss it with the select committee beforehand,althoughifthememorandumistobesubmittedtowardstheendofthefive-year limit, the committee might contact the department earlier to ascertain its plans. Wherethe department plans to submit a memorandum on a different timescale or not to submit a memorandum at all, it must contact the committee as described below.
• 40.11 Memorandaneednotbesubmitted(norwillitbenecessaryforthedepartmenttocontact thecommitteetoexplainwhynomemorandumisbeingsubmitted)forthefollowingcategories of Acts:
• ● Consolidated fund and appropriation Acts;
• ● Finance Acts;
• ● Tax law rewrite Acts;
• ● Consolidation Acts;
• ● Statute law repeal Acts;
• ● Private Acts; and,
• ● Armed forces Acts.
• 40.12 There will be other occasions where the department and committee can agree that no memorandumisrequired.Departmentswillneedtoagreethiswiththerelevantparliamentary committee. Exampleswheredepartmentsmaywishtoconsiderproposingthismightinclude where:
• ● an Act has already been repealed (without having been consolidated);
• ● an Act has only a very limited policy or practical significance;
• ● a review has already been committed to or carried out (e.g. following a pilot); or
• ● a department has already submitted relevantevidenceinconnectionwithanother inquiry by the parliamentary committee.
• 40.13 This is not an exhaustive list of cases where a memorandum might be considered unnecessaryandtheremaybeothersituationsinwhichadepartmentwishestoproposethis. Equally there may be cases within this list where a memorandum is still appropriate. Non-submissionofamemorandumwouldbetheexceptionandthedepartmentwillneedto make its case to the committee, and inform the PBL Secretariat of its intention to do so.
• 40.14 WheretherelevantCommonsdepartmentalselectcommitteeagreesthatamemorandum isnotrequired,thisdoesnotprecludeanyotherparliamentarycommittee(intheCommonsor Lords)withalegitimateinterestrequestingamemorandumfromthedepartmentundertheir existing powers. If another committee has requested a memorandum,departmentsshould inform the PBL Secretariat.
• 40.15 Therewillalsobecaseswhereadepartmentconsidersthatitwouldbemoreappropriateto submit a memorandum outside the three to five-year post-Royal Assent timeframe, for example where:
• ● theprincipalprovisionsoftheActwerenotbroughtintoforceuntilsometimeafterRoyal Assent(butitmayofcoursebethatadelayinbringingtheActintoforceisitselfamatterof key interest for post-legislative scrutiny); or
• ● someoutsideevent(whetherenvisagedintheActitselforunforeseen)orongoingscrutiny means that a different timescale is appropriate.
• 40.16 In these or any other circumstances it considers appropriate, a department is free to propose to the relevant committee that the memorandum be submitted later than five (or earlierthanthree)yearsafterRoyalAssent.Itwillbeforthedepartmenttomakethecaseto the committee (remembering that the select committee would anyway be free to ask the department for a memorandum at any time, even without these new arrangements).
• 40.17 Thetimingof‘threetofiveyears’runsfromtheactualdateofRoyalAssentratherthanthe calendaryear(thoughinpracticecommitteesmaybeunlikelytobeundulyconcernedabout precise dates).

Contents of memorandum for committee

• 40.18 The memorandum itself will not constitute full post-legislative scrutiny of the Act but it shouldbesufficienttoallowtherelevantselectcommittee,orotherparliamentarybodies,to decide whether fuller post-legislative scrutiny would be appropriate. These are minimum requirements rather than limitations on what a department may wish to include in a memorandum.

Points from memorandum Comment / guidance

• a) Summary of the objectives of the Act Drawn from documentation and commitments made at the time of the passage of the bill, but memorandum will provide an opportunity for reference to any changed context which might in practice have altered these objectives

(b)Implementation: information on when and how different provisions of the Act had been brought into operation. Information highlighting any provisions which had not been brought into force, or enabling powers not used, and explaining why not Largely factual information, save for the explanation of why any provisions have not (yet) been brought into force or enabling powers not used

(c)Secondary legislation etc.:a brief description or list of the associated delegated legislation, guidance documents or other relevant material prepared or issued in connection with the Act A comprehensive summary of secondary legislation and other documents issued in connection with the Act. If necessary or appropriate it need only be in list form, but should at least include dates of issue and a headline indication of the purpose or scope of each document (it may overlap with information given under the previous heading)

(d)Legal issues:an indication of any specific legal or drafting difficulties which had been matters of public concern (e.g. issues which had been the subject of actual litigation or of comment from parliamentary committees) and had been addressed Opportunity to summarise any legal issues which have arisen publicly, either in the courts or elsewhere, and the response

(e)Other reviews:A summary of any other known post-legislative reviews or Information should be included on any other assessments or reviews of the Act of which the department is aware. These might be governmental, parliamentary (including National

Points from memorandum Comment / guidance

assessments of the Act conducted in government, by Parliament or elsewhere Audit Office reports) or from other sources such as academic studies (in some cases the existing studies may have led the committee to agree that no new memorandum was required)

(f)Preliminary assessment of the Act:

A short preliminary assessment of how the Act has worked in practice, relative to objectives and benchmarks referred to in point (a) above, and drawing on data and evidence to show implementation in practice, and identifying stakeholders impacted by the Act's provisions Not in itself a full post-legislative scrutiny of the Act, though it should be sufficient for a parliamentary committee to assess whether such scrutiny is needed

• 40.19 For examples of previous memoranda, contact the PBL Secretariat.

Summary of the objectives of the Act

• 40.20 TheobjectivesoftheActwillhavebeensetoutintheexplanatorynotestotheActandany impact assessment published alongside the bill, but also in any accompanying ministerial statements (for example in Parliament). Taken together, these documents should provide sufficient information to allow any post-legislative reviewing body to make an effective assessmentastohowanActisworkingoutinpractice.Preparationofthesedocumentsatthe time of the bill should take the Government's commitment on post-legislative scrutiny into account.

Preliminary assessment of the Act

• 40.21 Thisisthecoreofthememorandum.Aswellassettingoutitspreliminaryassessment,the department maywishtoincludesuchinformationaslessonslearned,whetherinrelationto policy or administration (e.g. IT systems), any cost-benefit information or any ongoing parliamentary scrutiny such as oral statements, Westminster Hall debatesorparliamentary questions. Itisnotenvisagedthatpreparationofthispartofthememorandumshould,unless the department so wishes, include new, in-depth investigation, however, departments may wanttotalktointernalandexternalstakeholderstounderstandifthelegislationisworkingfor them. DepartmentsshouldalwaysconsultwithParliamentaryCounselbeforepreparingthe memorandum.
• 40.22 As stated above, the memorandum is not in itself a fullreviewoftheActandthework involvedisintendedtobeproportionatetoneed.Whereapplicable,toavoidduplication,the memorandumcouldrefertoormakedirectuseofanyotherreviewsorassessmentoftheAct of which the department is aware, annexing those documents to the memorandum.

Delegated legislation

• 40.23 Post-legislative scrutiny applies only to primary legislation. However individual statutory instruments may be subject to their own statutory review obligation, or a separate post-implementation review under the impact assessment process. The memorandum submitted inrespectofanActshouldlisttheassociateddelegatedlegislation,summarising theimplementationhistoryoftheAct,andthepreliminaryassessmentoftheActwouldcover how the principal delegated legislation under the Act has worked in practice.
• 40.24 Any Northern Ireland policing and criminal justice legislation made by Order in Council shouldbetreatedinthesamewayasActsbutsincesuchlegislationgenerallyfollowsdirectly fromequivalentEnglandandWaleslegislationitshouldbeconsideredinthecontextofthat legislationratherthanonitsown.Therewouldneedtobeappropriateconsultationbetween the Northern Ireland Office and the relevant UK government department,andbetweenthe Northern Ireland Affairs Committee and other relevant departmental select committees.

Format and publication of the memorandum

• 40.25 Thememorandummustbepublishedasacommandpaper. Thisisintendedtomakeclear thesignificanceofthepost-legislativescrutinyprocess.Itwillalsohelptomakethecontentsof the memorandum readily available to all interested parties, not just the Commons select committee to which it is submitted.
• 40.26 The command paper should make clear, in any introduction or preface, that it is being publishedaspartofthepost-legislativescrutinyprocesssetoutinCm7320,andbeclearly entitled in such a way as to indicate this (for example ‘XX Act 2005: post-legislative assessment’).ItshouldalsoindicateclearlytheCommonsdepartmentalselectcommitteeto which it is being submitted in the first instance.
• 40.27 Subject to this, there is nospecifictemplatewhichdepartmentsshouldfollow,sincethe circumstancesandnatureofeachActwillbedifferent,andforsomeActsthememorandum will be quite short. Departments might find it helpful to use the headings indicated in the summaryabove,butarefreetousealayoutwhichisappropriatefortheirparticularActand may wish to include other information not specifically included under these headings.

Clearance processes

• 40.28 Amemorandumwillnotusuallyincludenewpolicyannouncementsandwillnotroutinely requireanycollectiveclearancethroughtheCabinetcommitteeprocess.Inparticular,thereis no need for the memorandum to be approved by the PBL Committee. If it does contain significant new policy announcements or other relevant information then these should be collectively agreed in the normal way.
• 40.29 Forallmemoranda,departmentsshouldsubmitacopyofthememorandumtoindividuals listedbelow. Thisshouldhappen6daysbeforeformalpublication,9daysifinrecess. Once the memorandum has been published, departments should confirm with the same list of individuals that the memorandum had been published. The memorandum should be submitted to:
• ● The relevant Commons select committee, and the Managing Director of the Select Committee Team;
• ● ThePrivateOfficesoftheLeaderoftheHouseofCommons,LeaderoftheHouseof Lords, Chief Whip (Commons) and Chief Whip (Lords);
• ● PBL Secretariat;
• ● Cabinet Office Parliamentary Adviser;
• ● Office of the Parliamentary Counsel;
• ● Private secretary in the Prime Minister’s Office responsible for the legislation;
• ● Cabinet Secretariat desk officer responsible for the legislation; and
• ● LordsLiaisonCommittee,copiedtotheircentralmailbox,theirclerk,andtheClerkof Committees.
• 40.30 These should be sent six working days beforepublication(nineduringrecess).Itisnot necessarytowaitforresponsesbeforepublication.Contactdetailsforallonthecopylistcan be obtained from the PBL Secretariat.
• 40.31 DepartmentsarefreetodiscussthedraftingofanymemorandumwiththeCabinetOffice Parliamentary Adviser and the PBL Secretariat beforehand.

Further review by Parliament

• 40.32 Followingconsiderationofamemorandum,theCommonsdepartmentalselectcommittee may decide that a fuller post-legislative scrutiny of the Act is appropriate. Such aninquiry would be carried out by the select committee in the same way as other select committee inquiries.Thecommitteemaywellaskthedepartmentforafullerpapertoinformitsinquiry,in whichcasethedepartmentwouldbeexpectedtorespondaccordingtothenormalprinciples forrequestsforevidencefromselectcommittees.WheretheCommonsselectcommitteedoes not instigate a fuller inquiry, the memorandum might be taken up by another interested parliamentary committee, of either House.
• 40.33 Itcanreasonablybeexpectedthatifadepartmentalselectcommitteetakesupaparticular Act(andassociatedmemorandum)forfurtherexaminationthenothercommitteeswouldnot normally seek to duplicate this work. This is subject to the normal principles for resolving overlap between select committees (i.e. that different committees may agree amongst themselvesthatthereisalegitimateroleformorethanonecommitteetolookatasubject) andtothepowersandroleoftheHouseofLordsanditscommittees.Forexample,itwouldbe opentocommitteesorotherinterestsineitherHousetoproposetheestablishmentofajoint committeetoconductafullerpost-legislativescrutinyofanAct,andanysuchproposalwould be considered. The Lords Liaison Committee will also select Actsonanadhocbasisfor post-legislative scrutiny.

SECTION G

OTHER TYPES OF GOVERNMENT BILL

41. HYBRID BILLS

Key points

• ● A hybrid billisapublicbillwhichaffectsaparticularprivateinterestinamannerdifferent from the private interests of other persons or bodies in the same category or class.
• ● Thechangestothelawproposedbyahybridbillaffectthegeneralpublicbutalsohavea significant impact on the private interests of specific individuals or bodies.
• ● Hybridbillsthereforehavetogothroughsomeofthestagesofaprivatebill,includingselect committee hearing of petitions against the bill after Second Reading. Generally the procedureislongerandmoreexpensive(parliamentaryagentshavetobeengagedbythe department), so hybrid bills are best avoided wherever possible.
• ● Departmentsshouldindicatethepossiblehybridityofabillwhenmakingabidforaslotin the programme.

What is a hybrid bill?

• 41.1 Apublicbillwhichaffectsaparticularprivateinterestinamannerdifferentfromtheprivate interestsofotherpersonsorbodiesinthesamecategoryorclassiscalledahybridbillandis subject to a special procedure which includessomeofthestepsapplicabletoprivatebills. This means that itgenerallytakesfarlongertocompleteitsparliamentaryprocessthanan ordinarypublicbill,andtheprocedureismorecomplex.Suchbillsarebestavoided,ifatall possible.
• 41.2 RecentexamplesofActsresultingfromhybridbillsaretheChannelTunnelRailLinkAct 1996(firstintroducedinNovember1994andreceivedRoyalAssentinDecember1996),the CrossrailAct2008(firstintroducedinFebruary2005andreceivedRoyalAssentinJanuary 2008),theHighSpeedRail(London-WestMidlands)Act2017(firstintroducedinNovember 2013andreceivedRoyalAssentinFebruary2017)andtheHighSpeedRail(WestMidlandsCrewe) Act 2021 (first introduced in July 2017 and received Royal Assent in February 2021).
• 41.3 “Privateinterest”iswideenoughtocovernotonlytheinterestsofapurelyprivatepersonor body(suchasanindividualorcompany)butalso,forexample,theinterestalocalauthority hasintheadministrationofitsarea. Abillmayalsoberegardedashybridifitaffectsanamed geographicalareaoutsideLondon(Londonisoftenviewedasaspecialcase)andalsoaffects privateinterests.Abillthatsinglesoutaparticularpersonorbodyforfavourabletreatmentis not normally regarded as hybrid so long as others in the same category or class are not therebyprejudiced.Theseare,however,onlyroughguidestohybridity.Ifthereisapossibility of a bill being regarded as hybrid, it is essential for the matter to be checked with ParliamentaryCounsel,whowillconsulttheauthoritiesofbothHouses.Theultimatedecision on whether a bill is hybrid lies with the House authorities.
• 41.4 Thefactthataprovisionofabillmakes,ormaymake,thebillhybridshouldbeindicated whenthebillisputforwardforaplaceinthelegislativeprogramme.Thedegreeandnatureof theoppositionwhichsuchabillmightbeexpectedtoarousefromtheinterestsaffectedwould be an important consideration in most cases. On both points it will be for the bill teamto advisetheministeronthisasaccuratelyaspossible.Consultationshouldassistinthisand,in some cases, help avoid or reduce opposition.
• 41.5 It is obviously desirable to determine whether a bill will be hybrid as earlyaspossible, though the House authorities may not be able to form a clear view until the provisions in questionhavebeendrafted.Ifitbecomesclearduringdraftingthataparticularprovisionthat isnotcriticaltothebillwouldmakeithybrid,andcannotberedraftedsoastoavoidhybridity, the presumption should be to remove the provision from the bill.
• 41.6 Given the procedural complications and the extra time a hybrid bill will require, it is absolutelyessentialthatanyhybridbillisintroducedrightatthestartofthesession.However ahybridbillmaybecarriedoverfromonesessiontothenext,likeaprivatebill,andevenfrom oneParliamenttothenext(aswiththeCrossrailBillandtheHighSpeedRail(WestMidlandsCrewe) Bill).

Decision on hybridity

• 41.7 Parliament'sformaldecisionsonhybridbillsaretakeninseveralstages. Thesearesetout below.
• 41.8 ThePublicBillOfficeoftheHouseinwhichthebillisintroducedmayconsiderthat,prima facie, some of the standing ordersrelatingtoprivatebusinessmaybeapplicable;ifsothe 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 thesestandingordersdoapply(inother words, to decide whether the bill isin facthybrid).
• 41.9 The Examiners may decide that:
• ● thestandingordersrelatingtoprivatebusinessdonotapplytothebill,inwhichcasethe bill proceeds as an ordinary public bill; or
• ● the standing ordersdoapply to the bill, in whichcase 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:
• ● thestandingordershavenotbeencompliedwith,inwhichcasethebillisreferredtothe StandingOrdersCommitteeforadecisionwhetherthestandingordersnotcompliedwith should be dispensed with; or
• ● thestandingordershavebeencompliedwith,inwhichcasethebillproceedstoSecond Reading and, after that, the bill is committed to a select committee as a hybrid bill.
• 41.11 Where a bill is referred to a Standing Orders Committee the Committee may decide that:
• ● thestandingordersshouldbedispensedwith,inwhichcase thebillproceedstoSecond Reading and, after that, the bill is committed to a select committee as a hybrid bill; or
• ● thestandingordersshouldnotbedispensedwith,inwhichcasenofurtherproceedingson the bill can take place.
• 41.12 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.
• 41.13 These steps,andproceedingsbeforetheExaminersandinselectcommittee,aredealt withonbehalfofthedepartmentbyaparliamentaryagent(amemberofafirmofspecialist private solicitors). The legal adviser will consult the parliamentary agent at an early stage aboutthestepstobetakenandtheywilldrawupatimetablefortakingthem.Thedepartment is usually represented before the select committee by an independent counsel, who is instructedbytheparliamentaryagent.Thiswillinevitablyincreasethecostsassociatedwith the bill.

After Second Reading

• 41.14 Wherethestandingordersrelatingtoprivatebusinessapplyandhavebeencompliedwith (ordispensedwith)ahybridbillisreferredafterSecondReadingtoaselectcommittee(or, rarely,ajointcommittee)appointedforthispurpose.IntheHouseofCommons,Parliamentary Counsel will draft acommittalmotion,tobetakenafterSecondReading,whichwillamong otherthingssettheperiodwithinwhichpetitionsmustbepresented.IntheHouseofLordsthe petitioning period (usually ten days) is set by a formal entry in the minutes made by the authorities of the House.
• 41.15 The select committee hears petitioners against the bill if they are directly or personally involvedandifthepetitionshavebeendulylodged.Thedepartmentpromotingthebillhasa righttobeheardagainstthepetitioners.Itisnotnecessarytoprovetheexpediencyofthebill as a whole in select committee, since this has been decided on Second Reading. If no petitionsarepresentedagainstthebill(orifallsubmittedarewithdrawn)theselectcommittee will be discharged and the bill recommitted.
• 41.16 Afterhearingthepetitionersinajudicialmanner,theselectcommitteewillgothroughthe billclausebyclauseandmaymakeamendments.Copiesoftheminutesofevidencemaybe obtained. Parliamentary Counsel may not be directly involved throughoutthisstageunless amendmentsneedtobedraftedbuttheyshouldbemadeawareofanythinglikelytoaffectthe bill at a later stage.

Remaining stages and second House

• 41.17 Onreportbytheselectcommittee,thebillisformallyrecommittedtoacommitteeofthe wholeHouse,althoughintheCommonsitisusualforthewhipsthentotableamotionforthe bill to be considered by a public bill committee instead. Thereafterthebillproceedsasan ordinary public bill.
• 41.18 TheprocedureonhybridbillsisbasicallythesameinbothHouses,sothat,unlessajoint committeehasbeenappointedtohearthepetitioners,theremaybeaselectCommitteeStage inbothHouses.Itisnot,however,generallynecessarytodoanythingfurthertocomplywith the standing orders in the second House. The government parliamentary agentwillsimply indicatetotheexaminersafterthebillarrivesinthesecondHousethatnothingfurtherneeds to be done.

Amendments to hybrid bills

• 41.19 IfahybridbillisamendedineitherHousetheamendmentsmayhavetheeffectofrequiring furthercompliancewiththestandingordersorabillmaybecomeprimafaciehybridasaresult oftheamendment.Amendmentswhichhavethiseffectaresaidtohybridiseorre-hybridise the bill and the Public Bill Office may refer the bill to the Examiners..
• 41.20 ParliamentaryCounselshouldbeconsultedwellinadvanceifitisproposedtoamenda hybridbill.Theywill,ifnecessary,discusswiththeauthoritiesofbothHouseswhethermaking them would re-hybridise the bill and, if it would, what implications this has for the further progressofthebill.Theneedforfurthercompliancewith(ordispensationfrom)thestanding 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

• 41.21 TheCommonsstandingorderprovidingforcarryoverofbillsdoesnotapplytoahybridbill. To carry over a hybrid bill would require the agreement of both Houses.

Hybrid statutory instruments

• 41.22 In the House of Lords (but not in the House of Commons) there is a standing order applyingspecialrulestoanysubordinateinstrumentwhichissubjecttoaffirmativeprocedure andcontainsprovisionthatwould,ifcontainedinabill,havemadethebillhybrid.Billsgiving power to make affirmative instruments have sometimes exempted them from the standing order but any provision of that nature could be contentious.

42. CONSOLIDATION BILLS, LAW COMMISSION BILLS, STATUTE LAW REPEAL AND REVISION BILLS

Key points

• ● Inareasoflawwheretherehavebeenasignificantnumberofactsoveraperiodoftime,the LawCommissionmayrecommendaconsolidationbill,tobringalloftherelevantprovisions into a single act.
• ● Thesebillsmayeitherbepurelytoconsolidateexistinglegislationortheymayalsomake some minor amendments such as tidying up past errors andambiguities,thoughwithout making any changes of substance.
• ● Similarly,theLawCommissionmayproposestatutelawrevisionbillsandstatutelawrepeal bills.
• ● ThesebillsmustbeapprovedbythePBLCommitteebeforeintroductionbutarethensubject tospecialproceduresinParliament,involvingscrutinybyajointcommitteeofbothHouses and other stages being taken formally.
• ● TheLawCommissionmayalsodraftbillswhichgofurtherthanclarificationorconsolidation which,ifagreedtobytheGovernment,areintroducedfollowingeitherasuccessfulbidfora legislative slot by the relevant department and approval by the PBL Committee or alternatively through a special accelerated procedure.

What is a consolidation bill?

• 42.1 Inmanyfieldsoflegislationaseriesofactswillbuildupovertime,eachamending,adding to, or subtractingfromthepreviousones.Thepointisreachedwhenitisverymuchinthe publicinterestthatthisseriesshouldbeconsolidatedintoasingleact(ofcoursethisinnoway preventstheconsolidatedactfromitselfbeingamendedbyfurtheracts).Recommendations for consolidation are the responsibility of the Law Commission and the Scottish Law Commission.TheministerinchargeistheSecretaryofStateforJustice.Consolidationbills arealwaysintroducedintheHouseofLords;theParliamentaryUnder-SecretaryofStatein the Ministry of Justice usually takes them through the Commons.
• 42.2 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 amendmentsgivingeffecttorecommendationsoftheLawCommissionortheScottish 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.
• 42.3 Billsthatincludesomeconsolidationorsimplificationaspartofalargeramendingbill(i.e. wheretheamendmentsstemfromgovernmentandrepresentasignificantchangeinpolicy, ratherthanamendmentsrecommendedbytheLawCommissionwhicharelikelytobesmaller innatureandprobablyfairlytechnical)arenotconsideredtobeconsolidationbillsandmust follow the normal procedures.
• 42.4 The purpose of Law Commission recommendations is to produce a satisfactory consolidationofthelawinquestion.Thismayincludetidyinguperrorsofthepast,removing ambiguitiesandgenerallyintroducingcommonsenseonpointswheretheformofdraftingin thepastappearedtoleadtoaresultwhichdepartedfromcommonsense.Itisnottointroduce 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.
• 42.5 TheLawCommissionwillworkinco-operationwiththerelevantdepartment.Theminister andpolicydivisionsarenotlikelytohavetodevotemuchtimetothiswork;legaladvisersmay havetodevoteagooddealmore.Itmayhoweverbenecessaryforapolicydivisiontoexpress a viewonmattersconnectedwithaconsolidation.If,forexample,anamendingbilldealing 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.Theattractionofconsolidatingfirstisthattherewillthenonlybeoneactonwhich the amending bill needs to operate, so that the amending bill can be a good deal simpler.

Procedural differences applying to consolidation bills

• 42.6 The responsible department (usually the Ministry of Justice) does not need tobidfora legislativeslotforaconsolidationbillaswithothergovernmentbills,butmustmakethebill 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.
• 42.7 AconsolidationbillmustbeapprovedbythePBLCommitteebeforeintroduction,normally through correspondence.
• 42.8 The Ministry of Justice will play an oversight role in relation to the programme of consolidationbillsintroducedeachsession,andtogetherwiththeGovernmentWhips'Officein the Lords, will advise departments on the appropriate timetable.
• 42.9 Explanatorynotesarenotnormallyprovidedforconsolidationbills.Thedocumentstobe 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)andthetableofdestinations(settingoutwheretheexistingstatutorymaterial appears in the consolidation). Together the two tables show that the contents of the consolidationbillrepresentonlythecontentsoftheactsbeingconsolidated.OnRoyalAssent the tables of origins and destinations should be sent to Legislation Servicesforpublishing alongside the act, as would otherwise be the case with finalising the explanatory notes.
• 42.10 The following special procedures apply to consolidation bills:
• ● theyarereferredtoandexaminedbyajointcommitteeofbothHouses,themembers 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 a Government amendment is neededin orderfortheBilltoaccountforotherlegislationpassedwhilsttheBillismakingprocess, theGovernmentshouldconsulttheChairmanoftheJointCommitteeonConsolidation Bills(JCCB).ThereisnoformalminimumintervalbetweentheJCCBandCommittee 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.
• ● Whenaconsolidationbillispassed,bodiesespeciallyconcernedinthatfieldoflaw,and the public so far as they may be affected, need to be informed that the lawisnow containedinanewstatuteandthatithasnot(astheymightassume)beensubstantially changed. See further action after Royal Assent for more detail about the type of explanatorymaterialwhichmaybeneeded,thoughthiswillprobablybeonareduced scale from what is described there for amending Acts.

Law Commission bills that would represent a more significant change in policy

• 42.11 The Law Commission may also, as part of its rolling programme of work,recommend changestothelawwhichgobeyondclarificationorconsolidation,andprepareadraftbill.If the Government wishes to accepttheserecommendationsandtakeforwardlegislation,the responsibledepartmentmustbidforalegislativeslot,collectivelyagreethepolicyproposals andclearthebillthroughthePBLCommitteebeforeintroductioninthenormalway.However, iftheproposalsarenon-controversial,onceintroducedtoParliamentsuchabillmaybeable to follow a special, accelerated procedure.
• 42.12 TheacceleratedprocedureforsubstantialLawCommissionbillsofthiskindisavailable onlyforbillsthatareconcernedsolelywithimplementingLawCommissionrecommendations, 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.
• 42.13 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 motionfor SecondReadingbeingtakenformally;specialpublicbillcommittee;remainingstagesinthe usualway.CommonsStandingOrderNo.59providesthatanypublicbill,themainpurposeof which is to give effect to a Law Commission report is automatically referred to a Second ReadingCommitteeunlesstheHouseordersotherwise.Forfurtheradvice,contactthePBL Secretariat,theCabinetOfficeParliamentaryAdviserortheSeniorParliamentaryCounselat the Law Commission.

SECTION H

PRIVATE MEMBERS' BILLS

43. 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 governments, compatibility with the European Convention of Human Rights, regulatory and other impacts and spending implications.

Government response

• 43.1 There are three positions that can be taken:
• ● Support:thiswillneedcollectiveagreementfromPBLCommitteeandtheappropriate policy sub-committee of Cabinet.Althoughsupportingabillwillnotusuallyjustifythe creationofafullbillteam,theleadpolicydivisionwillneedtoprovideministerswiththe same type of support as for a government bill.
• ● Remainneutral:thiswillalsoneedcollectiveagreementfromthePBLCommitteeand the appropriate policy committee. The Government remains neutral only in very exceptionalcircumstances,forexampleifthebillconcernsanissueofconsciencesuch as abortion or euthanasia, or matters more properly for Parliament, rather than the Government, to decide.
• ● Oppose: there is no collective agreement needed to takethisposition,althoughthe PBLCommitteeshouldbeinformedbywayofa‘forinformation’letterbeforeSecond Reading.

44. PRIVATE MEMBERS' BILLS: PARLIAMENTARY PROCEDURE

Key points

• ● In a typical session lasting a year, there are 13 Fridays reserved for debates on private members’billsintheCommons.SecondReadingstakeprecedenceonthefirstsevenand remaining stages on the final six.
• ● IntheCommons,therighttointroducethefirsttwentybillsisdecidedbyaballotofmembers 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 threebillsonanyprivatemembers’billdayhavearealistic chance of being debated. However, any billontheorderpapercanproceed‘onthenod’ without a debate at the end of business, provided no member objects.
• ● OncepastSecondReadingprivatemembers’billsusuallygotoapublicbillcommitteebut 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 theLordsdiffersinthattherearenofixedprivate members’billdaysalthoughtimeisnormallyfoundfordebatesononeFridaypercalendar monthwhentheHouseissitting.WheretheGovernmentcannotsupportaprivatemember’s billintheLords,itexplainsitsreservationsduringthebill'spassagethroughtheLordsbut willnotattempttoblockthebilluntilitreachestheCommons.Aballotisheldshortlyafter StateOpeningtopickthefirst25privatemembers’billstobeintroducedatthestartofeach session in the Lords.
• ● Irrespectiveofwhetherthebillisfirstonthelistfordebateorlastinalonglineofprivate members’bills,theGovernmentwillwanttoreachanagreedpositiononeverybillonthe orderpaperthatday.Ifaministerisdesignatedtorespondtoaprivatemember’sbill,they will need to be within easy reach of the House to speak if called.
• ● Thestandingordersofeachofthedevolvedlegislaturesmakespecialprovisionaboutthe timingoflegislativeconsentmotionsrelatingtoprivatemembers'bills18. Ineachcasethe resultisthatthelegislativeconsentmotioncannotbetabledinthedevolvedlegislatureuntil theprivatemembers'billinquestionhascompleteditscommitteestageinthefirstHouseat Westminster. This does not effect the need for early discussions with the devolved government(s).

Methods of introduction: Commons

• 44.1 IntheHouseofCommonsmembersmayintroduceabilloncetheyhavegivennoticeof presentation. The right to introduce the first 20 bills each session is givento20members successful in a ballot heldonthesecondThursday(onwhichtheHouseissitting)ofeach session.Oncethe20‘ballot’billshavebeenintroducedonthefifthWednesday(onwhichthe Houseissitting)ofthesession,anyothermembermayintroducefurtherbillsaftergivingdue notice of presentation under Standing Order No. 57 (ordinary ‘presentation’ or ‘back-of-the-chair’ bills) or following a successful ‘ten-minute-rule’ motion.
• 44.2 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 sponsoringthebillhastogivethelongandshorttitleofthebilltothePublicBillOfficebefore close of business on the sitting day before it is to be introduced.
• 44.3 UnderStandingOrderNo.23,‘ten-minute-rule’motionsseekingleavetointroducebillsmay be put down in the Commons, but not until after the ballotbillsareintroducedonthefifth Wednesdayinthesession.Normally15sittingdays'noticeisgivenofthesubjectofamotion, thoughitmaybeaslittleasfivesittingdays(itisopentomemberstochangetheshorttitleof theirbillsbeforetheyseekleavetobringthemin,andinitiallytousea‘holding’motionsuchas ‘That leave be given to bring inaBillunderSONo.23[detailstobeprovided]’.).Onlyone ten-minute-rule motion may be considered at the beginning of public business on each subsequentTuesdayandWednesday(unlessthatdayturnsouttobeaBudgetDayinwhich case it is taken on the following Monday).
• 44.4 Onthedayoftheten-minute-rulemotion,theproposerspeaksforuptotenminutesand anothermember,notaminister,mayspeakagainstitforasimilartime.Ifthemotionhasbeen

18See rule 9B.3 of the Standing Orders of the ScottishParliament (5th Edition, 8th revision, 8 March 2021); S.O. 29.2 of the Standing Orders of the Welsh Parliament (March 2021); and S.O. 42A of the Standing Orders of the Northern Ireland Assembly (8 March 2021).

opposedtheHouseusuallydividesand,iftheproposersecuresamajority,thebillcanthenbe formally introduced and listed for Second Reading on one of the private members’ Fridays.

• 44.5 Often,ten-minute-rulebillsareintroducedmorewiththeaimofairingthesubjectthanwith any expectation of carryingthemthrough,butifthebillisformallyintroducedandlistedfor Second Reading then the Government will need to agree its position before the Second Readingdebate.AmembercouldchooseaSecondReadingdateverysoonafterintroduction (but the bill will not appear on the order paper if it has not been published).

Methods of introduction: Lords

• 44.6 IntheHouseofLords,aballotisheldshortlyafterStateOpeningtodeterminetheorderin whichthefirst25privatemembers’billsareintroducedatthestartofeachsession.Toenter the ballot, peers must submit the long and short titles of their bill to the Legislation Office.
• 44.7 Subsequently, a peer may introduce a bill on any sitting day without prior notice of presentation.ThepeerusuallyagreesthedatewiththePublicBillOffice,whowillnotifythe Government Whips' Office on the morning of the day the bill is introduced. There is no equivalentoftheCommons'ten-minute-ruleprocedure.Thereisastandardminimuminterval 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

• 44.8 In a year-longsession,13Fridays(9:30am-2:30pm)arereservedfordebatesonprivate members’bills.Thedatesareagreedbymotionatthebeginningofeachsession.Onthefirst sevenFridaysbillstakeprecedenceintheorderinwhichtheyweresetdown,regardlessof thestagetheyhavereachedwhichusuallymeansthattheyaredevotedtoSecondReadings. OnandaftertheeighthFridaybillsarearrangedaccordingtothestagetheyhavereached, withbillsreturningfromtheLordswithLordsamendmentstakenfirstandSecondReadings last(exceptthatReportStageswhichhavenotalreadybeenenteredupontakeprecedence over Report Stages which have been adjourned at a previous sitting).
• 44.9 The20memberswhoaresuccessfulintheballotpresenttheirbillsonthefifthWednesday ofthesessionintheorderinwhichtheydrewplacesintheballot.Forthispurposetheyhand inthelongandshorttitleoftheirbill,butnotnormallythefulltext,tothePublicBillOfficeby the previous day at the latest.
• 44.10 OnpresentationabillisgivenaformalFirstReadingandthememberlistsitforSecond ReadingononeofthereservedFridays.Normallythefirstsevenmemberssuccessfulinthe ballot will choose the first sevenFridaysinturnandtheremainder,togetherwithmembers whointroducebillssubsequentlyaftergivingnoticeorfollowingasuccessfulten-minute-rule motion,willselectwhicheverdaytheythinkgivesthemthebestchanceofsecuringaSecond Reading debate.
• 44.11 OnlythosebillswhicharehighintheorderforSecondReadingonthefirstsevenFridays standagoodchanceofgoingontocompletealltheirparliamentarystages,iftheyareatall controversial.Exceptionally,abillwhichisstraightforward,uncontroversialandhascross-party support can complete all stages without a debate, ‘on the nod’.
• 44.12 Aprivatemember’sbilloriginatingintheHouseofLordswhichhascompleteditsprogress throughtheLordscanonlyproceedthroughtheCommonsifitistakenupbyamemberofthe 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

• 44.13 NormallyonlythefirsttwoorthreebillslistedforaparticularFridayhavemuchprospectof debate.However,parliamentarybrancheswithaninterestinlistedbillsshouldalwayscheckin advancewiththeGovernmentWhips'OfficewhatisexpectedtohappenonaparticularFriday asthespeedwithwhichbillsfurtherdownthelistarereachedcannotalwaysbeaccurately predicted.Irrespectiveofwhetherthebillisfirstonthelistfordebateorlastinalonglineof privatemembers’bills,theGovernmentneedstoreachanagreedpositiononeveryprivate members’billontheorderpaperthatday.Ifaministerisdesignatedtorespondtoaprivate member’sbill,theywillneedtobewithineasyreachoftheHousetospeak,shouldtheybe called upon, until dismissed by the private members’ bill whip.
• 44.14 If a bill which has been tabled for a particular Fridayhasnot,infact,beenprintedand published(aprocesswhichthememberconcernedmustarrangewiththeCommonsPublic BillOffice),thenitwillberemovedfromthelistofbillsforthatFriday,althoughitmaybeput down again for a subsequent Friday.
• 44.15 Ifdebatestartsonabillbutisnotfinishedby14:30itissaidtobe‘talkedout’.Amember 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 debatehastakenplace.Acontestedclosuremotionisonlycarriedifitisagreedbydivision and at least a hundred members vote in support of it. Iftheclosuremotioniscarried,the question for Second Reading is then put forthwith. Members may also seek to delay proceedingsbymovingthattheHouseshouldsitinprivateatthebeginningofadiscussionon abill.Iffewerthan40members(includingtheoccupantofthechairandthetellers)takepart intheensuingdivision,thebusinessunderconsiderationstandsoveruntilthenextsittingof theHouseandthenextbusinessistaken.Toavoidthishappening,amotiontositinprivateis oftenmoved,andnegatived,atthebeginningofaFridaysittingbeforethefirstbillhasbeen reached.Suchamotionmayonlybemovedoncepersittingandthispreventsdebateonany of the day’s bills being interrupted in this way.
• 44.16 When thetimeforopposedbusinessendsat2:30pm,thetitlesofallremainingbillsare read.Aslongasabillisnotopposed,itcanpassatthisstage.Indeed,thememberincharge may move that it be considered in Committee of the whole House, take Committee immediately,takeReportandThirdReadingimmediatelyafterCommittee,andhavethebill passed, in two or three minutes – as longasnooneobjects.Asingleobjection,however, preventsabillfromproceedingfurtherthatdayafter2:30pm.Inrecentsessions,ithasbeen usual for bills on which there has been no debate to be objected to.

Commons Committee and remaining stages

• 44.17 Privatemembers’billsthatsecureaSecondReadingarecommitted,aswithgovernment bills,toapublicbillcommittee.Onlyonepublicbillcommitteeofaprivatemember’sbillmay beactiveatanyonetime,unless,underStandingOrderNo.84A(5),theGovernmenttablesa 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.
• 44.18 NamesforpublicbillcommitteememberscanbeputforwardbythesponsoringMPfora 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 privatemember’sbilltocompleteits committeestage,abillcanthereforestartitscommitteestagelessthantwoweeksafterits Second Reading.
• 44.19 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, committeemaylastonlyonesitting.Nopublicbillcommitteesforprivatemembers’billshave takenwrittenororalevidencesofaranditwouldbeexceptionalforthemtodosoaseitherthe billwouldhavetobeprogrammedortheHousewouldhavetoauthorisethecommitteetotake evidence.
• 44.20 ItispossibleimmediatelyafterSecondReadingtomovethatthebill'sCommitteeStagebe takenontheflooroftheHouse.Ifthismotioniscarried,theCommitteeStageisnamedforthe same or oneofthelaterprivatemembers’billdays.Acompletelyuncontroversialbillmight haveitsCommitteeStagetaken‘onthenod’ontheflooroftheHouse,possiblyonthesame dayasitsecuresSecondReading;butanopposedbillmightbedeferredatthatstagethrough lack of time.
• 44.21 TheGovernmentdoesnotprovidegovernmenttimeontheflooroftheHousefordebate (i.e. on Monday to Thursday) for private members’ bills except in the most exceptional circumstances.
• 44.22 Aministeroftheleaddepartmentisexpectedtotakepartinalldebatesonthefloorofthe House,butwillnotopenorclosethedebate(unlessagovernmentamendmentleadsagroup at Report Stage). Normally they will alsobeamemberofthecommitteeanddepartmental officials will need to provide briefing on amendments, as for a government bill.
• 44.23 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

• 44.24 The main differences in Lords procedures for private members’ bills are:
• ● Second Reading debates take placeonsittingFridaysandarenormallytakeninthe same order in which bills were introduced.
• ● All stages are taken onthefloorandminimumintervalsbetweenstagesapply.If,as often happens, no amendments are tabled for Committee, then Committee is discharged and there is no Report stage and Third Readingisnormallyunopposed. Substantive amending stagestakeplaceonasittingFriday. Wherenoamendments are tabled for Committee, Report or Third Reading,thesestagescantakeplace,by agreement, on a sitting day other than a Friday; and
• ● Where a private member’s bill is unacceptable to the Government, the government ministerorwhiprespondingindebateexpressesreservationsduringitspassageinthe Lords,ratherthanattemptingtostopitspassage.TheGovernmentcanthenattemptto block the bill in the Commons, if it progresses that far.
• 44.25 Ifaprivatemember’sbillenterstheLordsfromtheCommons,thesponsorwillneedtofind apeertotakethebillforward.IftheGovernmenthassupportedthebilltheministermay,in consultationwiththeGovernmentWhips'Office,wishtosuggestasuitablepeerandinstruct the department to assist, much as with the Government's own legislation (the Commons memberwillneedtobekeptintouchthroughout).TheLordswillalmostalwaysgiveaSecond Reading to any bill which has passed the Commons but subsequently may alter it substantially, sometimes on the Government's initiative if they support it, or reject it. A CommonsbillmaynotformallybewithdrawnintheHouseofLordsbythepeerwhohastaken it up, although it is open to them not toproceedfurtherwithit.BeyondthelastCommons sittingFridayofthesession,anyLordsamendmentisfataltoaCommonsprivatemember’s bill because the Commons will have no opportunity to consider it.
• 44.26 Inaddition,duetothelimitedParliamentarytimefortheconsiderationof privatemembers' bills,departmentswillneedtohaveagoodunderstandingofwhethertheyarelikelytosecure 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 absenceofsuchamotion,canbemadeatReportStageinthefirstHouse. Waitinguntilthe secondHousetomakethenecessaryamendmentsmaymeanthatthereisinsufficienttimefor theamendmentstoalsobeconsideredbythefirstHousewiththeresultthatthebilldoesnot reachRoyalAssent. Furtherinformationonlegislativeconsentmotionsandworkingwiththe Union and Devolution Directorate and the devolvedgovernmentscan be found in Chapter 14.

Post-legislative scrutiny

• 44.27 Therequirementsonpost-legislativescrutiny(thattheresponsibledepartmentwill,within theperiodthreetofiveyearsafteranacthasreceivedRoyalAssent,submittotherelevant Commonsdepartmentalselectcommitteeamemorandumreportingoncertainkeyelements of the act's implementation and operation) applies to acts which began life as a private member’sbilljustasforanyotheract.Thisisbecausetheyformpartofthebodyofprimary legislation for which departments are responsible. The ‘responsible department’ is the one responsiblefortheactatthetimeamemorandumistobesubmitted,irrespectiveofwhetherit wastheresponsibledepartmentatthetimetheActwaspassed. SeeChapter40forfurther information on post-legislative scrutiny.

45. PRIVATE MEMBERS' BILLS: RESPONDING TO NON- GOVERNMENT BILLS

Key points

• ● TheGovernmentneedstoagreeitshandlingpositiononnon-governmentproposalsintime for Second Reading.
• ● TheresponsibleministerwillneedtowritetothePBLCommitteeandtherelevantCabinet policycommittee(ifnecessary)recommendingwhatpositiontheGovernmentshouldtake: support, oppose or (in very rare and exceptional cases) remain neutral.
• ● Tosatisfythecommitteesthattheconsequencesofsupportingaprivatemember’sbillhave beencarefullyconsidered,theministerwillneedtoattachtotheletterseekingclearance,a PBL Committee memorandum setting out any handling issues and explaining the implicationsofthebill(forexampleforthedevolvedgovernments),thebillprint,explanatory notes (where possible),delegatedpowersmemorandum,handlingstrategy,alegalissues 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 theGovernmentisnotsupportingthebill.Policyleads shouldkeepintouchwiththePBLSecretariatandtheirparliamentarybrancheswhowillalert them to any action that needs to be taken.

Allocatingprivatemembers’billstodepartments,preparinghandlinglettersandagreeinga government position

• 45.1 ThePBLSecretariatregularlycirculatesalistofallforthcomingprivatemembers’billsto parliamentaryclerks,allocatingeachonetotherelevantleaddepartment.Ifthisallocationis incorrect,theparliamentarybranchshouldinformthesecretariatimmediately,sothebillcan beallocatedtothecorrectdepartment.Privatemembers’billsdownfordebateonagivenday intheCommonscanalsobefoundinthe‘futurebusiness’sectionsoftheParliamentwebsite. Progress of a particular private member’s bill can be found in the ‘bills before Parliament’ section of the website.
• 45.2 Assoonasaprivatemember’sbillhasbeenallocatedtothedepartment,theparliamentary clerkshouldalerttherelevantpolicyofficial,whowillthenneedtofindoutwhatthebillwould 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.
• 45.3 Thepolicyofficialwillneedtoconsiderthefactorsforandagainstsupportingthebill,in discussionwithlegaladvisersfromtheirowndepartmentandpossiblywithotherdepartments withaninterest(inparticularwithHMTreasuryifthebillwouldimposeafinancialcostonthe Government). The policy official should then advise the relevant minister on whether the proposal should be supported or opposed.
• 45.4 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?
• 45.5 Officials should give careful consideration to whether the Government could sensibly support the bill, subject to any necessary amendments.
• 45.6 If the summary on the Parliament website does not provide sufficient detail for the Government to beabletotakeaview,officialsshouldspeaktotheirparliamentaryclerkor PrivateOffice,astheminister,hisorherparliamentaryprivatesecretaryoraspecialadviser willneedtospeaktotheMPorpeertofindoutwhatislikelytobeinthebill.MostMPs,peers ortheirassistantswillbehappytogiveagoodindicationofthebill'saims.Ministersshould thenwritetothePBLCommitteeonthebasisoftheirexpectationofwhatthebillwilldo.Itis important that handling recommendations are based on as clear an understanding as possible, so early engagement with the sponsoring MP or peer is helpful.
• 45.7 TheministerwillthenneedtowritetothePBLCommitteerecommendingwhatpositionthe Governmentshouldtake:support,oppose(or,forabillintheLords,expressreservations)or (inveryrarecases)remainneutral.Ifadepartmentismindedtosupportorremainneutralon a bill, policy officials should discuss the arguments for such an approach with the PBL Secretariat before the minister sends the letter.
• 45.8 ThePBLSecretariatisabletoprovideahandlinglettertemplateonrequestandwillhappily lookatdraftlettersbeforetheyaresentout.Whatevertheproposedstance,thehandlingletter 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 weeksbeforetheSecondReadingdate,andgivemembersofthecommitteeatleast six working days for consideration (nine during recess);
• ● explainwhatthebillaimstoachieve.Summarisethecontentofthebill,andnotjustits title,unlessthisisallthatisknown.Avoidjargonandtechnicaltermsunlesstheseare explained;
• ● state clearly whether the letter is informing the PBL Committee of the intention to opposethebill(thehandlinglettershouldbeaddressedtothechairofthecommittee and copied to members of the PBL Committee for information), or whetherthePBL Committeeandtherelevantpolicycommitteeclearanceisbeingsoughttosupportthe bill orremainneutral(inthisinstance,thehandlinglettershouldbeaddressedtothe chairs of both committees);
• ● explain the reasoning behind the recommended position: support, oppose (express reservations in the Lords) or remain neutral.StateclearlywhethertheGovernment's supportwouldbeconditionalonamendmentsbeingmadetothebillinCommitteeandif so what these amendments would be; and
• ● state whether the proposed handling position is based on the published bill, on discussionswiththesponsorMPorpeer,oronassumptionsaboutwhatanunpublished bill would do.
• 45.9 Evenifthebillhasnotyetbeenpublished,ahandlingletterwillstillneedtobeprovidedto the deadlines given above. In the Lords, private members’ bills must be introduced and publishedatleasttwoweekendsinadvanceofSecondReading.IntheCommonsaprivate member’sbillonlyfallsofftheorderpaperifithasstillnotbeenprintedthedaybeforeSecond Reading is due.
• 45.10 Where a private member’s bill is down for a Second Reading debate shortly after introductionanditisnotpossibletoadheretothedeadlinesabove,theministershouldwriteto the PBL Committee as soon as possible, allowingareasonableperiodforcommentanda position to be agreed before Second Reading.

Opposing a private member’s bill

• 45.11 Iftherecommendedpositionistoopposetheprivatemember’sbill,aletterneedstobe circulatedtomembersofthePBLCommittee,explainingwhytheGovernmentshouldoppose thebill.Itwillbeimportantforthehandlinglettertosetoutastrongcaseforopposingthebill. Ifastrongcaseisnotprovided,thePBLCommitteeislikelytopresstheministeragainasto why the billcannotbesupported.Itisnotacceptabletorecommendthatabillbeopposed simplybecauseitsdraftingisdefective:Iftherearenootherreasonswhythebillshouldnotbe 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.
• 45.12 Theremaybeanumberofreasonswhytheresponsibleministerwillwishtorecommend 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, isincompatiblewithinternational laworwouldhavesignificantcostimplications.However,evenwherethereappearstobea good reason why the Government should not support the bill, it will be important for the departmenttoconsiderwhetherthiscouldbeaddressedtoallowtheGovernmenttosupport anamendedversionofthebilland,whereappropriate,fortheministertodiscussthiswiththe sponsoring member.
• 45.13 Iftheprivatemember’sbillhasnotyetbeenpublished,thesponsoringmembermaybe persuadedtodropthoseelementsofthebillwhichtheGovernmentisunabletosupport,to enable the Government to give support to the bill from the outset.
• 45.14 TheGovernmentwillnormallyseektodefeatabillthatitopposesatSecondReadinginthe Commons. Where the bill being opposed is introduced in the Lords, the Government will expressitsreservationsatSecondReadingbutwillnotseektoblockthebilluntilitreaches theCommons.OnnoaccountshallaministerinitiateavoteonaSecondReadingmotionin the House of Lords.
• 45.15 Where the Government opposes a privatemember’sbill,ParliamentaryCounselwillnot normally be involved, as the fate of such bills is often decided at Second Reading. Occasionally,however,amendmentsneedtobepreparedtoprovideclarification(andpossibly compromise)fromthesponsor.Wheretheministerasksforsuchamendmentstobeprepared they will usually be tabled in his or hername;wheretheyaretabledbybackbenchersthe Housewillexpectittobemadeclearwhethersuchgovernmentdraftingassistancehasbeen given.

Supporting, or supporting subject to amendment

• 45.16 WhereitisproposedthattheGovernmentsupportsaprivatemember’sbillorsupportsit subjecttoamendment,thismustbeclearedthroughtherelevantpolicycommitteeofCabinet aswellasthePBLCommittee.Priortoseekingclearance,officialswillwanttoconsiderthe policy implications for other departments, implications for the devolved governments, legal issues, the regulatory and other impacts andcompatibilitywiththeECHR.Thedepartment 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.
• 45.17 Wheredepartmentsaresympathetictotheoverallaimsofthebillbutcouldnotaccepta particularpartofthebill,theyareencouragedtodiscusswiththememberthepossibilityof amendingthebilltoenablegovernmenttoofferitsfullsupport. RecentLeadersoftheHouse of Commons have indicated that they would liketobeabletooffergovernmentsupportto moreprivatemembers’billsandhaveencourageddepartmentalministerstoactivelyconsider waysinwhichtheycouldworkwithmemberstoensureabillthatwouldbeacceptabletothe member and to government.
• 45.18 It is important thatdepartmentalministersengagethememberearlyenoughsothatifa compromiseisagreed,thereisstillenoughtimeforthedepartmenttopreparethenecessary 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 Committeethatsupportingthebillistherightthingtodo,andforthispositiontobeformally agreed.
• 45.19 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 consenttoofficialsintheirdepartmentdiscussingtheproposalwiththememberortheirstaff. Suchco-operationcanbehelpfultobothsidesandcanimprovethechancesofreachingan 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.
• 45.20 A joint letter to the chairs of the PBL Committee and the relevant policy committee of Cabinet seeking clearance tosupportthebillshouldbesentatleastonemonthbeforethe datescheduledforSecondReading.OfficialsareadvisedtocontactthePBLSecretariatfor advicebeforedraftingthisletter.ThePBLSecretariatcanalsoadvisewhichpolicycommittee of Cabinet it would be appropriate to write to in each case. The handling lettershouldbe 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, regulatoryandotherimpactsordelegatedpowers.Animpactassessmentand legalissuesmemorandummustalsobecirculated.Thedepartmentmayalsowishtoprepare explanatory notes, but this is not a requirement.
• 45.21 Policy officials in departments should therefore engage early with officials in:
• ● the Regulation Directorate in the Department for Business and Trade;
• ● the Scotland, Wales and Northern Ireland Offices, on any devolution issues; and
• ● the Attorney General's Office and the Legal Secretariat to the Advocate Generalfor ScotlandonanyECHRmatters.Thelegalissuesmemorandumshouldbesenttothe Attorney General's Office and the Legal Secretariat to the Advocate General for Scotland for commentsbeforeitiscirculatedtothePBLCommitteeandtherelevant policy committee of Cabinet.
• 45.22 The letter should also state whether any amendments would be needed to enable the Governmenttosupportthebill,andlegaladvisersshoulddiscusswithParliamentaryCounsel 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 euthanasiaormattersmoreproperlyforParliament,ratherthantheGovernment,todecide.If the bill does not fall into one of the two narrow categories above, theGovernmentwillbe expected to take a view and must agree collectively whether to support or oppose the bill.
• 45.24 Asprivatemembers’billscananddoreachthestatutebook,aneutralpositionshouldonly be recommended if the Governmentisgenuinelypreparedtoacceptthelegislation,should that be the will of Parliament. BynotopposingabilltheGovernmentisindicatingthatitis prepared to accept it reaching the statute book with all of the consequences.
• 45.25 Itmaybe,therefore,thatawriteroundtocollectivelyagreethestancewillberequired.If so, this would generally be in the same way as supporting a privatemember’sbill,witha handlingletterandaccompanyingdocumentation:aPBLCommitteememorandum,billprint andexplanatorynotes(wherepossible),impactassessment,legalissuesmemorandumand delegatedpowersmemorandum.ThesemustbesenttothePBLCommitteeandtherelevant policy committee of Cabinet at least one month before Second Reading.
• 45.26 If a private member’s bill on which the Government has remained neutral receives a SecondReading,theGovernmentwilloftenhavetomakedraftingchangestoensurethebill is technically correct. This is because the Government has a duty of care to the statute book.

Clearance

• 45.27 Iftherearenooutstandingissues,thechairofthePBLCommittee(andthechairofthe relevantpolicycommitteeofCabinet,asnecessary)willwritetogiveclearancefortheagreed position shortly before Second Reading.
• 45.28 Ifthebillispublishedafterthehandlingletterhasbeensent,departmentsshouldcontact the PBL Secretariat to confirm whether the proposed position still holds. If, for any other reason,thedepartmentwishestochangeitspositionaftersendingahandlinglettertothePBL 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

• 45.29 Clearancetosupportaprivatemember’sbillwilloftenincludePBLandpolicycommittee clearancetoworkwiththemembertodraftmutually-satisfactoryfirstHouseamendmentsto 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,
• ● theGovernmentcanfullysupportthebill,forexamplewhereithasagreedtosupport the bill on the condition that certain provisions are removed, amended or added.
• 45.30 As far as possible, amendments should be made at Committee Stage in the first House.
• 45.31 IfamendmentsaremadeinthesecondHouse,thebillwillhavetoreturntothefirstHouse for consideration. Given the limited amount of parliamentary time available for private members’bills,thisislikelytokillthebill. Timeforprivatemembers’billsisevenmorelimited in the Lords, so departments should contact the GovernmentWhips'OfficeintheLordsto discuss Lords handling in good time before the bill reaches the Lords, and discuss any proposedamendmentswiththeGovernmentWhips'OfficeinbothHouses.Governmenttime is given to private members’ bills in the Commons only in the most exceptional circumstances.
• 45.32 If clearance was giventosupportthebillsubjecttocertainamendmentsbeingmadein Committee, no further clearance is required before tabling those amendments. Any other amendmentswhichtheGovernmentwishestotabletoaprivatemember’sbillorhandtothe sponsoringmembertotablemustbeagreedbythePBLCommittee,andbytherelevantpolicy committee of Cabinet if the amendments would have the effect of achangeinpolicy.The responsibleministerwillneedtowritetothechairsofthecommittee(s)seekingclearanceand allowing colleagues six working days to respond (nine during recess) plus four days for clearancetoissue.AmendmentsshouldbediscussedwiththesponsoringMPorpeerwhose support is crucial.
• 45.33 InviewofthepressureonParliamentaryCounsel,draftingassistanceshouldbeofferedas sparinglyaspossibleand,ifthebillisnotexpectedtoprogressasfarasCommittee,itwill clearly not be worthwhile. When a department anticipates that it could need drafting assistance it should prepare instructions in advance on a contingency basis.
• 45.34 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 amendmentsaretobeputdowninthenameofaprivatemember,thedepartmentwillusually invitethemembertoputtheamendmentdownhimorherself.Itisoftenmoreconvenientif they are handed in by Parliamentary Counsel on behalf ofthemember;inwhichcasethe memberinchargemusteithersigntheamendmentsorgivewrittenauthoritytothePublicBill Office to accept the amendments from Parliamentary Counsel.
• 45.35 Whereamendmentsaretabledbytheminister,thedepartmentshouldensurethatboththe privatemembersponsoringthebilland,wheretheamendmentisbeingtabledinthesecond House, the private member sponsoring the bill in the first House are kept informed.
• 45.36 Delegatedpowers:TheLordsDelegatedPowersandRegulatoryReformCommitteeand the Business and Trade Select Committee (formerly considered by the Regulatory Reform Committee) may report on any public bill containing delegated powers. If a government-supportedprivatemember’sbilllookslikelytocompleteitsCommonsstagesand reachtheLords(eveniftheGovernmenthasonlyagreedtosupportthebillpart-waythrough itspassage),thedepartmentresponsibleshouldsubmitadelegatedpowersmemorandumto the LordsDelegatedPowersCommitteeandtheBusinessandTradeSelectCommittee,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.
• 45.37 ECHR:itisnotnecessaryforministerstosignastatementundersection19HumanRights 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 itmuststillprovide analysisofhumanrightsissuestotheJCHR.IftheGovernmentispreparingtheExplanatory Notes for the bill then this should include the analysis of human rights issues as for Government bills (see Chapter10forinformationonExplanatoryNotesandChapter11for information on ECHR). If the Government is not preparing the Explanatory Notes then bill teamsshoulddiscussthesituationwiththePBLSecretariat.Inthesecasesthedepartments will likely need to contact the JCHR directly to provide information.

Further action required bydepartmentsforanyprivatemember’sbillthatlookslikelyto pass, irrespective of whether government is supporting or opposing the bill

• 45.38 King'sconsent:ThepossibleneedforKing'sconsentshouldalwaysbeconsidered.King's consent can only be signified by aprivycounsellor,normallyaminister,so,ifitisneeded, stepsshouldbetakentoensureaprivycounsellorisavailableintherelevantChamber.King's consentwouldnotnormallybewithheldfromabill,eveniftheGovernmentintendedtoblock oropposeitduringitslaterstages.ThePalaceshouldbegivenatleasttwoweekstoconsider requests for King's consent. Nevertheless, the Department may wish to indicate in the covering letter to the Private Secretary requesting King’s or Prince’s consent that the Government intends to oppose the bill during its later stages.
• 45.39 Moneyresolutions:Intheory,aprivatemember’sbillentailingpublicexpenditurecouldbe halted by the Government declining to table a money resolution. Motions for money resolutions are not usually taken until after Second Reading andtheningovernmenttime. OnlytheGovernmentcanmoveamotionforamoneyresolution,andneitheritalicisedwords norclausesgovernedbythemcanbeconsideredbythecommitteeunlessamoneyresolution authorisingthemhasbeenagreedbytheHouse.Iftheexclusionoftheseclauseswouldmake the bill unworkable, the Speaker would probably not allow the remaining stages to be taken.
• 45.40 The Government usually moves a motion for amoneyresolutioninrespectofaprivate member’sbillwhichhasbeengivenaSecondReading,regardlessofwhetheritsupportsthe bill, although it is not under any obligation to do so. Moving such a motion does not necessarily indicate government support for a bill.
• 45.41 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.
• 45.42 Where a privatemember’sbillproceedsbeyondSecondReading,furtheractionmaybe required from departments even if the Government is not supporting the bill. Policy leads shouldkeepintouchwiththePBLSecretariatandtheirparliamentarybrancheswhowillalert them to any action that needs to be taken and advise if or when any furtherclearanceis required.

46. PRIVATE MEMBERS' BILLS: GOVERNMENT 'HANDOUT' BILLS

Key points

• ● InadvanceofeachparliamentarysessionthePBLCommitteeasksdepartmentstosubmit proposalsforshortanduncontroversialmeasuresforanapprovedlistofbillswhichcanbe offered to members successful in the private members’ ballot.
• ● DepartmentsmustobtainpolicyclearanceandprovidedraftinginstructionstoParliamentary Counsel as they would for a government bill.
• ● If a member picks up a ‘handout’ bill, the department must obtain the PBL Committee’s approval before givingthefinaltextofthebilltothememberforpublication.Theminister must write to the PBLCommitteeattachingaPBLCommitteememorandum,thebillprint and explanatory notes, impact assessment, delegated powers memorandum, and legal issues memorandum at least one month before Second Readingtoallowthememberin chargetopublishthetextofthebillatleastoneweekbeforeSecondReading.Ifdeadlines aretight,departmentsshouldcontactthePBLSecretariattodiscussthetimingsforseeking collective agreement.
• ● The department will have tobereadytooffersomesupport(forexample,briefing)tothe member in charge of the bill, aswellastheresponsibleminister,attheSecondReading debate and during the remainder of the bill's parliamentary passage.

Preparing measures for the ‘handout’ list

• 46.1 IntheHouseofCommons,onthesecondThursdayofeachsession,aprivatemembers’ ballot is held to select 20 MPs who will be given the opportunity to introduce a private member’s bill that session. While many MPs who are successful in theprivatemembers’ ballotalreadyhaveagoodideaofwhatbilltheywanttobringforward,somedonotandmay be receptive to suggestions of small, sensible measures put forward by Government.
• 46.2 Well in advance of the start of each session, the chair of the PBL Committee invites departmentstosuggestpossiblemeasuresofthissortfordiscussionwithmembers.Giventhe limited amount of parliamentary time available for private members’ bills, measures for ‘handout’ should be:
• ● short (no more than 10 clauses) and simple (non-technical);
• ● relatively uncontroversial but interesting enough for memberstowanttopickupand take forward;
• ● without major financial implications;
• ● not concerning major constitutional reform; and
• ● onareaswherepolicyhasalreadybeencollectivelyagreed,orwherepolicyclearance is sought in parallel to the handout bid.
• 46.3 Agoodexamplewouldbeasmallmeasurethedepartmentwouldhavelikedtoincludeina recentgovernmentbillbutwasunabletodosobecauseoftheeffectitwouldhavehadonthe scopeofthebillorthesubjectofarecentprivatemember’sbillwhichtheGovernmentwould havelikedtohavesupportedbutwasunabletodosobecauseoftechnicalissues(ifasolution to these can be found).
• 46.4 In putting forward suggestions,departmentsareaskedtoconsiderthesameissuesthat they would consider for any government bill, e.g. impact on the devolved governments, compatibilitywiththeECHR,financialimplicationsetc.,andtosettheseoutinalettertothe PBL Committee.
• 46.5 ThePBLCommitteewillassessthesuitabilityofsuggestionsfromdepartmentsanddraw upanapprovedlistofmeasures.Onceadepartment'ssuggestionisincludedonthislistitwill need to start preparing drafting instructions and submit these to Parliamentary Counsel.
• 46.6 Suggestions for additional measures for the next session may be made after the initial approved list hasbeendrawnuporatanytimeofyear.DetailsshouldbesenttothePBL Secretariat.
• 46.7 The government whips (not departmental ministers or officials) will discuss with those members successful in the ballot whether any of the Government's proposals might be suitable for them to take forward.
• 46.8 Ifa‘handout’billisnotpickedupbyoneofthememberssuccessfulintheballot,itisstill possibleforanotherMPtointroducethebillasanordinary‘presentation’or‘back-of-the-Chair’ billandforthebilltoreachRoyalAssent.Ministerswillwishtoconsiderwhetherthereareany MPs to whom the bill would particularly appeal and who may wish to take it forward.
• 46.9 Apeermayalsobeinterestedintakingforwarda‘handout’proposal.Aprivatemember’s billintroducedintheLordsislesslikelytoreachRoyalAssentthanaprivatemember’sbill introducedintheCommons,becausewhenitarrivesintheCommonsitwillhavetotakeits place on the order paper below bills already listed for debate that day and may not be reached.
• 46.10 Forprivatemembers’billsstartingintheCommons,timeisnormallyfoundforthemtobe debatedintheLordsaslongasthereisatheoreticalprospectofthebillbecominglaw,andall stages are usually taken on the floor, making for quicker progress through the House, assumingtherearenoobjections.However,thedepartmentmaywishtoconsidertheoption ofaLords‘handout’billifnoMPhasshowninterestinpickinguptheproposals(althoughan MP would still have to be found to pick up the bill when it arrived in the Commons after completing its Lords stages).

Working with the member to finalise the text of the bill

• 46.11 IfabillistakenupbyanMP,ParliamentaryCounselwilldraftlongandshorttitlesforthe member to present on the fifth sitting Wednesday of the session. Current practice is for Parliamentary Counsel to sendthenoticeofpresentationtotheGovernmentWhips'Office, which will then arrange forthemembertohanditintothePublicBillOffice.Thenoticeof presentationshouldbewiththeGovernmentWhips'OfficenolaterthantheriseofHousethe day before the fifth sitting Wednesday ofthesession,asthisisthelastdayforhandingin noticeofpresentationforballotbills. However,itisadvisabletohandinnoticeofpresentation sooner if possible.
• 46.12 AspriorityisgiventoSecondReadingsonthefirstsevenprivatemembers’billFridays,the firstsevenmembersintheballotwillusuallynamethosesevendaysforSecondReading,with thoselowerdowninthetoptwentyintheballottakingsecondorthirdplaceontheorderpaper for those days. A private member’s bill introduced on the fifth sitting Fridaycouldhaveits Second Reading debate just a few weeks later or several months later.
• 46.13 During this time, the responsible department will need to be workingwiththemember, externalstakeholderswhereappropriateandwithParliamentaryCounseltofinalisethetextof the bill and resolve any issues, for example, agreeing the nature of any impact on the devolvedgovernments.Beforethedrafttextofabillisgiventothememberwhowishesto introduceit,theresponsibledepartmentalministermustensurethatthepolicyhasbeenfully agreed with colleagues, and that the bill has been approved by the PBL Committee. Departmentswillalsoneedtoensurethatthememberinchargehasseenandagreedtothe text of the bill. Any changes to the bill may require additional collective agreement.
• 46.14 The minister must write to the PBL Committee, coveringtheissuesoutlinedinthePBL Committeememorandumandattachingthedrafttextofthebill,explanatorynotes,animpact assessmentandalegalissuesmemorandum.Confirmationmustbegiventhatthedevolution implications have been addressed and that policy clearance has been obtained.
• 46.15 ThePublicBillOfficewillexpectthetextofthebilltobepublishedatleastoneweekbefore thedatescheduledfortheSecondReadingdebate.Theministermustalsoallowsixdaysfor colleagues to comment (nine during recess), an additional 4 days for clearance to be arranged,andsufficienttimeforthemembertoapprovethedraftofthebillbeforepublication. ThismeansthatthelettertothePBLCommitteemustbesentatleastonemonthinadvance ofSecondReading.Ifdeadlinesaretight,departmentsshouldcontactthePBLSecretariatto discusstimingsofcollectiveagreementandif,forexample,afinalcopyofthebillprintcanbe circulatedinslowertimetoallowdraftingtocontinue. Itshouldbeemphasisedthatpublishing thebilloneweekbeforetheSecondReadingdebateistheminimumacceptableperiodand, whereverpossible,theministershouldaimtohandthetextofthebilltothemembertoallow them to publish it well in advance of this.
• 46.16 InordertoensurethePublicBillOfficereceivesthebillusingcompatiblesoftware,andto reducetheriskoferror,itisadvisableforthetextofthebilltobehandedinbyParliamentary Counsel. Departments will need to ensure the member in charge gives Parliamentary Counsel authority to hand in the text on the member's behalf. This is confirmed by the memberinchargeinformingthePublicBillOfficethatParliamentaryCounselcanhandinthe text of the bill. The department will need to ensure supporting documents are sent to the PublicBillOffice. MemberscanalsobeexplicitthatParliamentaryCounselhavetheauthority totableanyamendmentsonthemember'sbehalf. Aswiththebilltext,thememberincharge mustagreetoanyamendmentsbeforetheyaretabled. Ifthememberinchargeprefersto handinthebillandsupportingdocumentsthemself,thedepartmentwillneedtoprovidethem with final copies for submission.

Further action required of departments during parliamentary passage of a ‘handout’ bill

• 46.17 DuringtheSecondReadingdebatetheresponsibleministerwillbeexpectedtoindicatethe Government's support for the bill. Thedepartmentwillalsohavetobereadytooffersome support (e.g. briefing) to the member in charge of the bill, atSecondReadingdebateand during the remainder of its parliamentary passage.
• 46.18 Giventhata‘handout’billhasbeenagreedbythememberinchargeandtheGovernment anddraftedbyParliamentaryCounsel,noamendmentsshouldberequiredafterintroduction unlessrespondingtosignificantunforeseenpointsraisedindebate.Ifthebilllookslikelyto completeitsCommonsstagesandreachtheLordstheGovernmentmayneedtopreparea delegated powers memorandum. See further action required by departments where the Government is supporting a private members’ bill for more detail. See also further action requiredbydepartmentsforanyprivatemember'sbillthatlookslikelytopass,irrespectiveof whether the Government is supporting or opposing the bill for detail of action required by departments in relation to King’s consent and money resolutions.
• 46.19 The member in charge will need to find a peertoagreetosponsorthebillthroughthe HouseofLords.IfnopeeriswillingtopickupthebillandtakeitthroughtheLords,thebillwill be unable to proceed. The department and minister in charge, with the assistance of the Government Chief Whip’s Office in the Lords, will therefore wish to assist the member in identifying a peer to pick up the bill.
• 46.20 If the bill reachesRoyalAssentthedepartmentmustfinalisetheexplanatorynotesand sendthemtoLegislationServicesatTheNationalArchivesforpublishingalongsidethebill,as if the bill had been a government bill.

APPENDIX A: GLOSSARY

Affirmative instrument– delegated legislation thatthe 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 Parliamentby Command of His 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.

Commencement– the coming into effect of legislation.In the absence of a commencement provision, the act comes into force from the beginning of the day on which Royal Assent was given (at midnight).

Committee of the whole House– A Committee Stage thattakes place in the House itself, rather than in a public bill committee. Any MP may take part in proceedings.

Delegated legislation– legislation made by a minister,or occasionally by a public body, under powers conferred by an act of Parliament. Different types of delegated legislation may be called orders, rules, regulations, schemes or codes, depending on what the ‘parent act’ calls them. Also known as ‘secondary legislation’.

Dissolution– the formal conclusion of a Parliamentahead of a general election.

Draft bill– a bill that is published for pre-legislativescrutiny by a select or joint committee. A draft bill has not been formally introduced into either House.

Explanatory notes– a document accompanying a governmentbill that sets out the bill’s intention and background. It explains the clauses in language that a lay person could understand.

Explanatory statements– a simple statement to explain what an amendment does. They are mandatory for government bills with the exception of Finance Bills.

First Reading– the formal first stage of a bill’spassage through Parliament.

Grand committee– A Committee Stage in the House ofLords that takes place off the floor of the House.

Grouping– a set of related amendments for debate.

Guillotine– an order that imposes time limits onthe remainder of its progress. Can be made at any stage in a bill’s passage through the House of Commons. Also known as an ‘allocation of time motion’ or a 'Business of the House motion'.

Handout bill– a bill that is drafted by ParliamentaryCounsel and offered to a back bencher to take forward as a private member's bill, usually with the continuing support and briefing of the government department concerned.

Introduction– the formal start of a bill’s passagethrough Parliament. Also known as First Reading.

King’s Consent: agreement by The King that Parliamentmay proceedto debate a billthat would affect the prerogative of the Crown or the interests of the Crown, the Duchy of Lancaster or the Duchy of Cornwall.

King's speech– the Speech written by the Governmentand delivered by The King at the State Opening of Parliament. It outlines the Government’s plans for the new session, especially its legislative programme, and sets out the events for the coming year (including state visits).

Knives– the deadlines within a programme motion. When a knife falls, only specified decisions may be taken. It may not be possible to debate or decide on certain clauses or amendments.

Law Officers –the collective term for the AttorneyGeneral, the Solicitor General and the Advocate General for Scotland. The Attorney General for England and Wales is also the ex-officio Advocate General for Northern Ireland. The core function of the Law Officers is to advise on legal matters, helping ministers to act lawfully and in accordance with the rule of law.

LCCA– Lords consideration of Commons’ amendments.

Long title– the passage at the start of a bill thatbegins ‘a Bill to...’ and then lists its purposes. The content of the bill must be covered by the long title.

Money bill– a bill whose only purpose is to authorise expenditure or taxation.

Money resolution– a motion to authorise governmentexpenditure in relation to a bill. When the motion is approved it becomes a resolution.

Negative instrument– delegated legislation that,under the parent act, may be made and come into effect unless one or other House decides otherwise (‘the negative procedure’).

Parliamentary Business Managers– the Leaders andChief Whips of both Houses. Also known as the BMs or 4BMs.

Parliamentary Counsela group of government lawyerswho are expert in drafting legislation. They draft all government bills.

PBL Committee– the Cabinet committee on parliamentarybusiness and legislation chaired by the Leader of the House of Commons. Other members include the Leader of the House of Lords, the Chief Whips of both House, the Law Officers and the Secretaries of State of the territorial offices.

Ping-pong– the to and fro of bills and amendmentsbetween the two Houses towards the end of a bill’s passage.

Prince's consent– agreement by the Prince of Walesthat Parliament may proceed to consider legislation that would affect his interests.

Private bill– a bill that would only have a localor personal effect, rather than a general effect.

Private member’s bill– a public bill introduced bya ‘private member’ of Parliament (not a minister) i.e. a backbencher in the Lords or Commons.

Prorogation– the formal end of a parliamentary session,bringing almost all parliamentary business to an end.

Public bill– a bill that, if passed, will have generaleffect in some or all of the constituent parts of the UK.

Report Stage– the consideration of a bill in theform in which it left Committee, and an opportunity for any member to propose amendments (not just those who were on the committee).

Royal Assent– the sovereign’s agreement to a bill.

Second Reading– approval of a bill in principle. The second stage of the passage of a bill through each House of Parliament.

Session– the main subdivision of time during a parliament.The period from State Opening to prorogation.

Short title– the title by which a bill is known duringits passage through Parliament for example ‘Civil Aviation Bill’.

Standing committee– In the Commons, a committee towhich most bills are referred for their Committee Stage.

Sunset clause– a provision in legislation that makesit time-limited.

Table– to deposit formally before the House or committee,as ‘to table an amendment’.

Third Reading– the final stage of the passage ofa bill through each House of Parliament.

Usual channels– the informal and private contactsbetween the whips and Business Managers on both sides of each House.

APPENDIX B: CONTACT DETAILS

Attorney General’s Office

0207 271 2492 correspondence@attorneygeneral.gov.uk https://www.gov.uk/government/organisations /attorney-generals-office

Advocate General for Scotland

enquiries@advocategeneral.gov.uk https://www.gov.uk/government/organisations /office-of-the-advocate-general-for-scotland

Clerk to the Joint Committee on Human Rights

0207 219 2797 jchr@parliament.uk

Clerk to the Lords Constitution Committee

0207 219 3871 constitution@parliament.uk

Clerk to the Lords Delegated Powers and Regulatory Reform Committee

0207 219 3103 hldelegatedpowers@parliament.uk

Competitions Policy Team,

Department for Business and Trade

CompetitionPolicy@businessandtrade.gov.uk

Crown Dependencies Team, Ministry of Justice

crown.dependencies@justice.gov.uk

Crown Dependencies: Bailiwick of Guernsey

Jo Reeve, Director of International Relations & Constitutional Affairs externalrelations@gov.gg

Crown Dependencies: Bailiwick of Jersey

Dan Marcos, Head of International Compliance +44 (0) 1534 440 543 da.marcos@gov.je

Crown Dependencies: Isle of Man

Anne Shimmin, External Relations Manager +44 (0)1624 685 202 Anne.Shimmin@gov.im

Crown Estate

1 St James’s Market, London, SW1Y 4AH 0207 851 5000 enquiries@thecrownestate.co.uk

Digital Regulation Team,Department for Science, Innovation & Technology

digital-regulation@dsit.gov.uk

Data Protection Policy Team,Department for Science, Innovation & Technology

datapcorrespondence@dsit.gov.uk

Environmental Principles Team (section 19), Department for Environment, Food & Rural Affairs

environmental.principles@defra.gov.uk

Government Whips’ Office (Commons)

0207 276 2020 cwocommittee@cabinetoffice.gov.uk

Government Whips’ Office (Lords)

0207 219 3131 holgovernmentwhips@parliament.uk

Joint Committee on Human Rights

jchr@parliament.uk.

Journal Office, House of Commons

0207 219 3317 journaloffice@parliament.uk

Legal Secretariat to the Advocate General for Scotland

0207 270 6722 https://www.gov.uk/government/organisations /office-of-the-advocate-general-for-scotland

Parliamentary Business and Legislation (PBL) Secretariat, Cabinet Office

pbl-secretariat@cabinetoffice.gov.uk

Lords Printed Paper Office

0207 219 3037/3038 printedpaperoffice@parliament.uk

The National Archives, Legislation

Services Team(enquiries about the accuracy or content of official legislation published onwww.legislation.gov.uk) legislation@nationalarchives.gov.uk

The National Archives, Official Publishing Enquiries Team

(obtaining Command paper numbers and enquiries about producing and publishing draft bills, and pre and post-legislative scrutiny documents) 0208 392 5218 official.publishing@nationalarchives.gov.uk

The National Archives, Policy Team

(notification of intention to amend Public Records Act 1958) pra@nationalarchives.gov.uk

Northern Ireland Office

communications@nio.gov.uk

Northern Ireland Office, Rights Team

(Article 2 of the Windsor Framework) crsg@nio.gov.uk

Office of the Parliamentary Counsel

0207 276 6541 https://www.gov.uk/government/organisations /office-of-the-parliamentary-counsel

Overseas Territories Directorate, Foreign,

Commonwealth & Development Office

DLOTDStrategyTeamSensitive@fcdo.gov.uk

Palace of Westminster Pass Office

0207 219 5920 securityvetting@parliament.uk

Parliamentary Adviser (Cabinet Secretariat), Cabinet Office

0207 276 9941

Public Bill Office (Commons)

0207 219 3251 pbohoc@parliament.uk

Public Bill Office (Lords)

0207 219 3153 HLPublicBills@parliament.uk

Public Bodies Team, Cabinet Office

publicbodiesreform@cabinetoffice.gov.uk

The Private Secretary to The King

Buckingham Palace, London SW1A 1AA

The Private Secretary to The Prince of Wales

Kensington Palace, London, W8 4PX

Scotland Office

enquiries@ukgovscotland.gov.uk

Regulation Directorate (formerly the Better Regulation Executive), Department for Business and Trade

0207 215 5000 (switchboard) BRF@businessandtrade.gov.uk

Windsor Framework Taskforce, Cabinet Office

wftf-sgim@cabinetoffice.gov.uk

Vote Office (Commons)

0207 219 3631 vote_office@parliament.co.uk

Wales Office

0207 270 0534 correspondence@ukgovwales.gov.uk

APPENDIX C: CODES OF PRACTICE AND LEGISLATION

• ● Billteamsshouldreadthissectionifthereisaproposaltoadopt,use,orotherwisereferto acodeofpracticeorsimilardocumentinimplementingthelegislation.Whereitisproposed tointroduceacodeofpracticeinawayorforapurposewhichdepartsfromtheguidance below, Ministers should be awarethatthisislikelytobecontroversial,particularlyinthe House of Lords.
• ● Whereuseofacodeofpracticeiscontemplatedaspartof,orasanadjunctto,thescheme ofanAct,thedraftingofthecodeoughttobeginearlyenoughtoenableadecisionasto whetherstatutoryprovisionisrequired,andifsowhatkindofprovisionisappropriate,tobe madewithaclearideaoftheproposedcontentsofthecode.Equally,ifParliamentistobe askedtoenactstatutoryprovisionsrelatingtoacode,adraftoftheproposedcodeshouldif atallpossiblebemadeavailablesothattheappropriatenessofthestatutoryprovisionscan be properly considered.
• ● Failure to do this canhinderthepassageoftheenablinglegislation. Whilethischapter offers a general guide only and the paramountconsiderationineverycasemustbethe framing of a legislative scheme which is appropriate for the particular purpose in hand, departure from the general rules in this guidance should rarely be necessary and will require justification. In particular, departments should bear in mind that any unusual or novel provision will be closely scrutinised in Parliament.

Meaning of ‘code of practice’

• ● A‘codeofpractice’isanauthoritativestatementofpracticetobefollowedinsomefield.It typicallydiffersfromlegislationinthatitoffersguidanceratherthanimposingrequirements: its prescriptionsarenothardandfastrulesbutguidelineswhichmayallowconsiderable latitude in their practical application and may be departed from in appropriate circumstances.Theprovisionsofacodearenotdirectlyenforceablebylegalproceedings, which is not to say that they may not have significant legal effects. Acodeofpractice, unlike a legislative text, may also contain explanatory material and argument.
• ● A number of different kinds of document may be described by statute as a ‘code of practice’. They may contain general principles or minute technical details, they may describeexistingpracticeorpracticewhichisrecommendedforthefutureandtheymay containexplanationandinformationofvariouskinds.Conversely,othertermsmaybeused to describe essentially the same kind of document. This guidance refers to ‘codes of practice’ but its comments apply equally to similar documents under other names.
• ● ItwillusuallybeundesirableforanActtorefertosomeotherkindofdocumentasa‘code ofpractice’.Thisisapttomisleadastothestatusorintentionofthedocument.Somemore accurate descriptive title should be used.
• ● Different kinds of provisions may befoundwithinasingledocument.Accordingly,where this guidance refers to a type of code the comment should be read as applicable to particular provisions of that description in a code of practice.

Is statutory provision necessary?

• ● This guidance is concerned with legislation and is therefore not concerned with non-statutorycodes.However,apreliminaryquestionwhichmustalwaysbeconsideredis whether statutory provision is necessary.
• ● Therearemanythingsdepartmentscanproperlydowithoutexpressstatutoryauthority.It has been the practice for many years for departments to issue information, advice or exhortationofvariouskinds,fortheguidanceofthepublicoroftheauthoritiesorofficers charged with administering some branch of Government. These documents may be describedas‘codes’andmaybeofconsiderablepracticalimportance.Itdoesnotfollow that statutory provision is necessary.
• ● AprovisionwhichmerelyconfersonaMinisterpowertoissueacodeofpracticeconsisting ofinformation,adviceorexhortationwhichisnotintendedtohaveanyparticularlegaleffect is unnecessary.
• ● Statutoryprovisionisjustifiableifthecodeisintendedtohaveaparticularlegaleffect(the varioustypesofwhicharedescribedbelow).Itisalsojustifiableifitisintendedtoimposea legaldutytoissueacodeofpracticeortoimposelegalrequirementsastotheprocedureto befollowedinconnectionwithitsissue.Eitherofthosecoursesindicatesthatimportanceis attachedtothecodeofpracticeandcarefulconsiderationshouldbegiventothequestion of its legal effect.
• ● Statutoryprovisionmayalsobejustifiablewhensettingupastatutorybodytomakeclear that the body has power to issue codes of practice. Expressprovisionisnotnecessary where,aswillusuallybethecase,theissuingofcodesismerelyincidentaltothebody's general functions.
• ● Ifstatutoryprovisionisnecessarybutthecodeisnotintendedtohaveanyparticularlegal effectofthedescriptionsbelow,thereshouldbeappropriatewordsindicatingthatthecode is issued only for purposes of advice or information.
• ● Codes of practice are not to beusedtodefinespecificlegalobligations.Wherespecific legalobligationsaretobeimposed,breachofwhichleadsdirectlytocivilorcriminalliability, theircontentshouldbespelledoutinprimaryorsecondarylegislation.Acodeofpracticeis not appropriate for this purpose, either to delineatethemainobligationortoprovidefor exceptions or defences.
• ● Acodeofpracticemaybeappropriatetoexplainorsupplementtheprovisionsofprimaryor secondary legislation. It should not be regarded as a substitute for legislation. It is the function of legislation tosetminimumstandardsofconductanditisusualtoprovidefor penalties for those who fall below the minimum standard and forlegalremediesforthe protectionorcompensationofthosewhosufferinjuryorlossasaresult.Itisusualtoset legal minimum standards notwithstanding that the overall policy objective is to raise standards generally above theminimum-anobjectivetowardswhichacodeofpractice may contribute.
• ● Codesaddressedtothepublicorasectionofit:failuretocomplywithcodeasevidenceof breach of legal dutyThemostcommontypeofprovisiongivinglegaleffecttoacodeof practiceisthatmakingfailuretocomplywiththecodeevidenceofbreachofsomemore general legal duty. The codes in relation to which such provision is made are normally addressed to the public at large or a section of it (for instance, road users or employers).
• ● The liability is not for breach of the code but for breach of a duty arising elsewhere.
• ● Thereisnoessentialdifferencebetweenthetwostylesofprovisiontothiseffect.Thefirst typeofprovisionfocusesontheeffectofbreachorcomplianceinestablishingliability;the secondfocusesontheeffectofthecode'sprovisionsinelaboratingstandardsofconduct. Both types of provision produce substantially the same result: that in certain kinds of proceedingsthecodeisanelementindecidingtheissueofliabilityorsomeotherquestion, but is not itself decisive.
• ● Inneithercasedoestheprovisiondirectlyshiftthelegalorevidentialburdenofproof.The significanceofafailuretocomplywithaprovisionofacodecannotbeassessedexceptin relation to the circumstances of a particularcase.Theevidentialweightdependsonthe relevanceandimportanceofthefailureinrelationtothematterstobeprovedinorderto establish liability.
• ● Whenconsideringwhatevidentialeffectshouldbeattributedtoanyparticularcodecareful considerationshouldbegiventoidentifyingsofaraspossiblewhatproceedings,andwhat issues,abreachofthecodemayberelevantto.Theresultingstatutoryprovisionshouldbe as specific as is possible.
• ● Ingeneralthefirsttypeofprovisionispreferablebecauseitismorespecific,butitcannot beregardedasuniversallyapplicable.Itmaybethatsomeadaptationofit,orsomething moreakintothe"questionsarising"form,isinparticularcircumstancesmoreappropriate. For instance, it may not be "liability"whichisinissuebutsomeotherquestion;andthe proceedings may not be ordinary legal proceedings.
• ● A form appropriate to the determination of issues in legal proceedings should not be stretchedtocovertheexerciseofadministrativefunctionswhichismoreaptlydealtwithby adutytohaveregard.Itmayinsomecasesbenecessarytoprovideforbothtypesofeffect in relation to the same code.
• ● Thereisavariantformoftheevidentialcodeprovisionins.17(1)and(2)oftheHealth& SafetyatWorkAct1974(c.37)whichexpresslyshiftstheburdenofproof.Itisnotusualto attempt in legislation to modify the operation of general legal principles such as those relatingtotheevidentialburdenofproofwhoseimpactinthenatureofthingsvariesfrom case to case. And to shift thelegal(or"persuasive")burdenofproofwouldnormallybe regardedasgivingacodetoomuchlegalforce.Forthesereasons,althoughthisprovision maybejustifiedinitsparticularcontext,itshouldnotingeneralberegardedasaprecedent for future legislation.

Codes addressed to authorities and officers: duty to have regard to code

• ● Another type ofcodeofpracticeisthatrelevanttotheexerciseofstatutoryfunctionsby public authorities or officers.
• ● General principles ofadministrativelawrequirepublicauthoritiesorofficersinexercising theirfunctionstodirectthemselvesproperlyandtotakeintoaccountallrelevantfactorsand nottotakeintoaccountirrelevantfactors.Failuretodosomayresultinadecisionorother Actbeingchallengedinproceedingsforjudicialrevieworsimplybeingregardedasbeing legally ineffective.
• ● Iftheprovisionsofacodeareintendedtobeincludedamongtherelevantfactorsinthe exerciseofaclassoffunctionsitwillnormallybedesirabletomakethisclearbyrequiring therelevantauthoritiestohaveregardtothecode,or,whichamountstothesamething,to take it into account. As indicated above, the consequences of their failing to do soare governedbygeneraladministrativelaw;adhocstatutoryprovisionastotheeffectoffailure is neither necessary nor desirable.
• ● Therequirementthatanauthorityorofficermusthaveregardtothecodemeansthatthe authorityorofficermustconsidertheprovisionsofthecodeandgivethemdueweightin comingtotheirdecision.Theyarenotboundtofollowthecodeiftheyproperlyconclude thattherecommendationsofthecodeare,inaparticularcase,eithernotrelevantorare outweighed by other considerations.
• ● Careful consideration should be given to identifying the persons or authorities who are requiredtohaveregardtothecodeandthedecisionsorfunctionsinrelationtowhichthe provisionsofthecodearetobetakenintoaccount.Again,thestatutoryprovisionshouldbe as specific as the circumstances admit.

Codes administered by authorities having regulatory or disciplinary powers: failure to comply with code leading to action by authority

• ● Another formofprovisionfoundisthatfailuretocomplywiththeprovisionsofacodeof practice is a ground for the exercise of regulatory or disciplinary powers by some supervisoryauthorityor,whichamountstothesamething,thatanauthorityshallexercise itsgeneralsupervisorypowerssoastosecurecompliancewiththecode.Thecodeitself may be one issued by the authority in question, by Ministers or by some third party.
• ● Thistypeofprovisionwillnotnormallyoffendagainsttheprinciplementionedabove(thata code of practice should not to be usedtodefinespecificlegalobligations)becauseany legal liability arises as a result oftheexerciseoftheauthority'sgeneralpowersandnot simplyfromthefailuretocomplywiththecode.Theauthoritywillnormallytakeactionon somewidergroundthanbreachofthecodealoneandwillhaveadiscretionastohowit exercises its regulatory powers.
• ● Theeffectofabreachofthecodeisinsuchcasesbroadlysimilartothatmentionedabove inthatitisagroundonwhichasanctionmay,butneednot,beimposed.However,similar considerationstothosementionedabove(thatacodeofpracticeshouldnottobeusedto definespecificlegalobligations)applyifwhatisenvisagedisasetofbindingrulesbreach ofwhichwill,withoutanythingelsehavingtobeshownorotherwiserequired,leaddirectly to the imposition of a sanction.

Statutory mention of codes having extra statutory effect

• ● Theframingofcodesofpracticebytradeassociations,professionalbodiesandotherselfregulatoryorganisationsiscommonplaceandwhateverlegaleffecttheyhaveisbasicallya matter of private law. Thereareanumberofstatutoryprovisionswhichconferdutieson regulatory authorities to encourage the preparation and dissemination of codes by non-governmental bodies.
• ● These provisions do not confer any additional legal effect on the codes in question.

Drafting codes of practice

• ● Codesofpracticearedrawnupforawiderangeofaudiencesandpurposesandcontaina variety of provisions. No general guidance is possible, or indeed necessary, as to the mannerinwhichacodeisexpressed.Themainpurposeofacodeofpracticeistoinform and guide and it will fail in that object if its provisions are not clear.
• ● Every code which is drawn up under statutory authority should refer to its authorising provision and recite or summarise the purposes for which it is issued.
• ● Whereacodeistohavelegaleffectofanyofthekindsmentionedabove,itshouldalso recite or summarise the provisions giving it that legal effect. Such acodemustalsobe sufficientlypreciselydraftedforitsintendedpurpose.Inparticular,whereacodecontains provisionsofdifferentkindsitshouldbearranged,sofaraspracticable,insuchawayasto make it clear which passages are prescriptive and which contain only exhortation, explanation or information.
• ● Whereuseofacodeofpracticeiscontemplatedaspartof,orasanadjunctto,thescheme ofanAct,thedraftingofthecodeoughttobeginearlyenoughtoenableadecisionasto whetherstatutoryprovisionisrequired,andifsowhatkindofprovisionisappropriate,tobe madewithaclearideaoftheproposedcontentsofthecode.Equally,ifParliamentistobe askedtoenactstatutoryprovisionsrelatingtoacode,adraftoftheproposedcodeshouldif atallpossiblebemadeavailablesothattheappropriatenessofthestatutoryprovisionscan be properly considered.
• ● Failure to do this can hinder the passage of the enabling legislation.

Parliamentary procedure for codes of practice

• ● DepartmentsshouldensurethatthereisappropriateprovisionforParliamentaryprocedure wherethenatureandimportanceofthesubjectmatterofacodewarrantsit.Inthecaseof evidential codes (where the failure to comply with a code can be taken as evidenceof breach of legal duty) and codes to which authorities are to have regard, there is a presumption in favour of parliamentary procedure of some kind; but this may not be appropriatefordetailedtechnicaldocuments.Ifitisenvisagedthatacodewillbefrequently amended,itmaybesufficienttoprovideforparliamentaryprocedureonlyinrelationtoits original issue or revocation.
• ● Theconsiderationsinvolvedindecidingbetweenaffirmativeandnegativeprocedure,orno procedure, are broadly similar to those applicable in thecaseofsubordinatelegislation. Parliament will wish to consider the substance of the code, so that provision for Parliamentaryprocedureshouldrelatetothecodeitselfandnot,wherethereisone,tothe orderbringingthecodeintooperation,eventhoughthatmaybeastatutoryinstrument.In the case of the approval by Ministers of a code drawn up by a third party it may be appropriate to provide for Parliamentary procedure in relation to the approvalorder,the code itself having been laid before Parliament.

Publication and commencement

• ● Departmentsshouldensurethattherearesatisfactoryarrangementsforpublicationorother meansofbringingthecontentsofacodeofpracticetothenoticeofthosetowhomitis directed.
• ● Nospecialstatutoryprovisionisrequired,althoughitissometimesfound,forthepublication and sale of codes.Inthecaseofcodesaddressedtoauthoritiesorofficersitshouldbe borne in mind that others will have a legitimate interest in thecontentsofthecode,for instance,inordertochallengeadecisiontakeninbreachofthecode.Insuchcasesother means of disseminating the necessary information may be appropriate, for instance, publishing the code on a website, as a circular in a series sold through TSO, or the department’sdesignatedpublisherincludingthecodeinarelevantannualreportwhichis published. Every code issued under statutory authority ought to be made available to Parliament; if it is not otherwise available, by placing a copy in the Library of each House.
• ● Itwilloftenbeimportanttoknowwhenacode,oranamendmentofit,cameintooperation.

Thereisnoreasonwhythisshouldnotbestatedinthecodeitselfbutitmaybeconvenient to make provision in a separate order, particularly where it is necessary to include transitionalprovisionsorsavings.WheresuchordersaremadebyMinisterstheyshouldbe made by statutory instrument.

Evidence: Admissibility and proof of document

• ● Provisionissometimesfoundthatacodeofpracticeistobe"admissible"incertainkindsof legalproceedings.Acode(whetherexpressedasacommandorastatementoffact)isa statement of the opinion ofthemakerofthecodeastowhatoughttobedone.Sucha statement would not normally be relevant to a court's consideration of what is legally requiredtobedone.Thatmaybesimplyamatteroflawonwhichthecourtmakesupits ownmindafterhearingargument;oritmayinvolvequestionsoffact(suchas,whatis"best practicable means" or "reasonable care")onwhichexpertwitnessesmaybecalled.The contentsofacodeofpracticeareaformof“opinionevidence”ofsomeonewhoisnota witnessandmaynotbeanexpertinthesenseunderdiscussion(i.e.thecodeofpracticeis compiledbypersonswhoareunidentifiedandwhoifidentifiedmightnotcountasexperts). To provide that the code is admissible, therefore, means that the document canbeput before the court despite these general rules of the law of evidence.
• ● ProvisiontothiseffectisunnecessaryifthecourtisdirectedbytheActtotakethecodeinto accountforsomespecifiedpurpose.Itmustfollowfromsuchadutythatthecourtcanlook at the code whatever its status may be so far as the general rules of evidence are concerned.
• ● Thisquestionmustbedistinguishedfromthequestionofhowthetextofthecodeisproved.

Assumingacodeofpracticeis"admissible"ormaybereliedoninparticularproceedings, theremayinsomecasesbetechnicaldifficultiesinprovingthatthedocumentisinfactthe code referred to in the Act or in establishing what the text of the code is. In criminal proceedings, in particular, the prosecution may find itself put to proof of a code not in commonuseortheremaybearealdisputeastothecorrecttextofacodeatanymaterial time.Aswellasthetext,thepartyrelyingonacodemayberequiredtoprovewhenthe code, or an amendment, was issued or came into operation.

• ● Codes and related documents issued by Government departments may have the benefit of the Documentary Evidence Act 1868 (c.37), as amended and extended, which enables the document to be proved by a copy purporting to be printed by, or under the superintendence or authority of, His Majesty's Stationery Office. In other cases it will be necessary to consider whether provision should be made for facilitating the proof of the document, and of any order or other instrument approving it for the purposes of the statute, by creating a presumption that such a document is what it purports to be.

APPENDIX D: SECURING LEGISLATIVE CONSENT MOTIONS IN THE DEVOLVED LEGISLATURES

General principles

• ● IneachofthedevolvedlegislaturestheprocessofsecuringaLegislativeConsentMotion (LCM) beginswithalegislativeconsentmemorandumbeingtabledbythecorresponding devolved government.ThismemorandumcannotbetableduntiltheWestminsterbillhas been introduced by the UK Government (UKG) before Parliament. The subsequent processesandtimingsvaryslightlybetweenthedevolvedlegislaturesassetoutbelow.In theory,theLCMprocesscanbeexpeditedinallthreeofthedevolvedlegislatures,however the timing and process of LCMs is very much a matter for the devolved legislatures to consider.
• ● LCMs must be passed by the devolved legislatures before the bill reaches its final amendingstagesinthesecondHouseinParliament19.ThisistoensurethatUKGhasthe contingency option of tabling amendments to the bill to remove or amend the relevant provisions/clauses in the event that any of the devolved legislatures choosetowithhold legislative consent.
• ● Further information on the LCM processes in each of the devolved legislatures can be found in Devolution Guidance Notes (DGNs) 8, 10 and 18.

Scottish Parliament

• ● TheScottishParliament’sStandingOrderssetouthowthedevolvedlegislaturedealswith LCMs.TheStandingOrdersstatethat,oncelegislationisintroducedintheUKParliament, and if thelegislationrelatestoamatterwithinthelegislativecompetenceoftheScottish Parliament (or alters/modifies executive or legislative competence), the Scottish Government is required to lodge a legislative consent memorandum within two weeks (althoughthatcanbeextendediftheScottishGovernmentcansecureagreementfromthe

19 In the case of the House of Lords, the final amending stage should be considered as Report Stage (and not Third Reading).

ScottishParliamenttosuspendtherelevantStandingOrder).Thismemorandumshouldset outtheprovisionswhichareconsideredtoengagetheLCMprocessalongsidetheScottish Government’srecommendationonwhetherornottheScottishParliamentshouldagreeto give legislative consent.

• ● Prior to the introduction of the memorandum, theScottishParliament’sPresidingOfficer mustdeterminewhetherthelegislativeconsentmemorandumfallswithinthescopeofthe Scottish Parliament’s Standing Orders in relation to LCMs.
• ● When a memorandum has beentabledintheScottishParliament,theprocesscantake around eight weeks and cannot be expedited without the agreement of the Scottish Parliament.Aspartofthisprocess,thememorandumwillbeconsideredbyaleadscrutiny committeeoftheScottishParliament,whowillproduceareportpriortoafinalvoteonthe LCMitself.Insomecases,UKGMinistersmaybeaskedtoattendacommitteesessionin order to provide formal evidence in relation to the bill.
• ● Under the Scottish Parliament’s Standing Orders, it is possible for any Member of the ScottishParliament(MSP)totableanLCMbeforetheScottishParliament,howeverLCMs are almost always tabled and promoted by the Scottish Government.

Senedd Cymru/Welsh Parliament

• ● Under the Senedd Cymru/Welsh Parliament’s Standing OrdersforWestminsterbillsthat engage the LCM process, the Welsh Government must lay a legislative consent memorandum in the Senedd setting out the provisions which fall within the legislative competence of the Senedd. The memorandum must identify “relevant provision” (ie: provisionswhichfall withinthelegislativecompetenceoftheSeneddorprovisionswhich modifyoralterthelegislativeorexecutivecompetenceoftheSeneddorWelshMinisters), and explain whether or not the Welsh Government considers it appropriate for a Westminster bill to legislate in areas of devolved competence. The Senedd’s Standing Ordersalsostatethatsuchamemorandummustnormallybelaidnolaterthantwoweeks after the bill’s introduction in the Westminster Parliament.
• ● The Senedd’s Business Committee normally refers the Welsh Government’s legislative consent memorandumtoaSeneddcommitteeforscrutinyandsetsadatebywhenthat committee must reportbacktotheSeneddonit.Insomecases,UKGMinistersmaybe askedtoattendacommitteesessioninordertoprovideformalevidenceinrelationtothe bill.Oncethecommitteehasreportedonthememorandum,orthedeadlinebywhichthe committeeisrequiredtoreporthaspassed,anyMemberoftheSenedd(inpractice,usually a Welsh Minister) may table an LCM for the Senedd to consider and vote on.
• ● WhilstthereisnospecificrolefortheSenedd’sPresidingOfficerinrelationtoWestminster bills,theirgeneralcompetencetodeterminequestionsontheinterpretationorapplicationof the Standing Orders would enable them to rule out an LCM debate if the Welsh Government’slegislativeconsentmemorandumfailstoidentify“relevantprovision”,orifthe process of scrutiny was defective.
• ● The process fromlayingthememorandumtothedateoftheSenedd‘sLCMdebateand voteusuallytakesaroundsixtoeightweeks,althoughthiscandependonthecomplexity and content of the bill being considered for legislative consent.

Northern Ireland Assembly

• ● The LCM process in the Northern Ireland Assembly begins with the relevant Northern Ireland Executive Minister laying a legislativeconsentmemorandumbeforetheNorthern Ireland Assembly, either explaining that consent is being sought or explaining why the Ministerisdecliningtorecommendthatconsentbegiven.Thiscannothappenuntilafterthe bill has been introduced at Westminster and should normallyhappenwithintenworking days of the bill’s introduction at Westminster.
• ● ItispossibleforanyotherMemberoftheLegislativeAssembly(MLA)tolayalegislative consent memorandum.ThismayonlyhappenaftereithertheNorthernIrelandExecutive Minister has laid a legislative consent memorandum; or the Northern Ireland Executive Ministerhaslaidamemorandumexplainingwhyconsentisnotbeingrecommended;orthe ten working day period has elapsed.
• ● Once a legislative consent memorandum has been laid before the Northern Ireland Assembly,thoseprovisionsofthebilldealingwithatransferredmatterarereferredtothe relevant Northern Ireland Assembly scrutiny committee for consideration, unless the Assemblyordersotherwise.ThecommitteemayreportitsopiniontotheNorthernIreland Assembly within 15 working days of referral.
• ● Atleastfiveworkingdaysafterpublicationofthecommittee’sreport(or20workingdays afterreferraltothecommittee),therelevantNorthernIrelandExecutiveMinistermaythen table an LCM and move the motion. The Northern Ireland Assembly will then vote on whethertoagreetotheLCMi.e.giveconsent.Ifthemotionisnotsupportedthenconsent will not have been provided.
• ● Unique to Northern Ireland, a Petition of Concern can apply to any Northern Ireland Assemblyvote,includingavoteonanLCM.If30ormoreMLAssupportapetition,thenthe vote requires either the support of a majority of the members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting; or the supportof60percentofthemembersvoting,40percentofthedesignatedNationalists voting and 40 per cent of the designated Unionists voting. Except in exceptional circumstancesapetitionmustbedeliveredtotheSpeakeratleastonehourbeforethevote is due to take place; if one is presented, the vote cannot take place for a further 24 hours.
• ● The LCM process in Northern Ireland (involving the agreement of the Northern Ireland Executive,therelevantcommitteescrutinyandvoteoftheNorthernIrelandAssemblyitself) can generally take around eight weeks. ThereisnourgentprocedureintheAssembly’s StandingOrders,althoughStandingOrderscanbesuspendedwiththeagreementofthe Northern Ireland Assembly itself.

APPENDIX E: DELEGATED LEGISLATION TOOLKIT

• ● An Act of Parliament can give ministers or others thepower(sometimescalleda ‘delegatedpower’)tomakesecondarylegislation. Thistoolkitwillhelpyoudecide whethertoincludedelegatedpowersinabill.Itsetsoutsomeguidingprinciplesand practical examples (which are not intended to be exhaustive).
• ● The toolkit covers the following issues:

○ What is the right balance between primary and secondary legislation?

○ What is the proper role for delegated powers?

○ Where will delegated powers not generally be justifiable?

○ In what circumstances may it be appropriate to take powers that enable primary legislation to be amended (so called “Henry VIII powers”)?

○ What alternatives should be considered when deciding whether to take a delegated power?

○ What safeguardsshouldbeconsideredwhenithasbeendecidedtotakea delegated power?

• ● Questions about the application of this guidance should be discussed in the first instancewithdepartmentalpolicyofficialsandlawyers,whocanliaisewiththeOffice of the Parliamentary Counsel and, as appropriate, with the Attorney General’s Office/Legal Secretariat to the Advocate General for Scotland for clarification or further assistance.
• ● Theseissueswillultimatelyneedtoberesolvedaspartoftheusualprocessesfor agreeingtheformandcontentoflegislationbeforeintroduction,andwithministerial discussion where required.
• ● This guidance is exclusively concerned with decisions aboutwhethertotakenew powersinprimarylegislation.Itisnotintendedtodealwiththeexerciseofexisting powers to make secondary legislation.

A. What is the right balance between primary and secondarylegislation?

• ● An Act of Parliament is the way that the most important aspects of policy are translated into law. An Act should contain the main aspects of a policy at an appropriate level of detail to be meaningfullyscrutinisedbyParliament,andtobe understood and applied by those at whom it is aimed.
• ● Delegated powers are generallyusedtogiveeffecttothepolicyframeworkinthe Act.

Example

• ● TheMarriage (Same Sex Couples) Act 2013introducedmarriage for same-sex couples in England and Wales. The Act allowed existing civil partnerships to be converted into a marriage. A delegated power was taken to allow ministers to set out how that procedure should work in practice (e.g. the information that should be provided to support an application).
• ● Asaruleofthumb,themoresignificantalegalchange,thestrongerthepresumption thatitshouldbesetoutinprimarylegislationsothatitcanbedebatedbyParliament via the bill process, rather than included within the scope of a delegated power.

B. What is the proper role for delegated powers?

• ● Secondary legislation is an indispensablepartofmodernlawmaking,butitisvital thatitisusedappropriately,andnotabused.Thescopeofpowers,therationalefor theiruse,andwhetheranysafeguardsareappropriate(asbelow)shouldbeproperly tested and justified in every case.
• ● Delegated powers are more likely to be appropriate for matters such as:

○ dealingwithsecondarypolicydetailrequiredtogiveeffecttotheAct,including technical or administrative matters (e.g. application processes, detailed procedural rules);

○ making consequential changes to other legislation;

○ includingdetailwhichmayneedamendingmoreoftenthanParliamentcanbe expected to legislate for by primary legislation, incircumstanceswherethe purpose of the Act will be defeated if changes could only be achieved by furtherbills(e.g.inanareaofrapidlyevolvingtechnologywherereferencesto technical concepts could quickly become defunct);

○ dealingwiththingswhichcanreasonablybeanticipatedtochangeregularlyin the future (e.g. uprating sums in line with inflation);

○ accommodating the fact that a detailed policy has to work differently for differentgroupsofpeople,differentareas,etc.(e.g.tosetupapilotscheme for a new policy in one part of the country) or has to deal with niche cases;

○ dealingwithemergencysituations,whereprimarylegislationisnotfeasibleas a means of responding to fast-moving events (e.g. public health emergencies).

C. Where will delegated powers not generally be justifiable?

• ● Delegatedpowersshouldnotgenerallybetakensoastomakeprovisioninfuture whichiscentraltotheeffectoftheBill.Thatdetailshouldnormallybeincludedon the face of a bill for scrutiny and debate as part of its passage.
• ● For example, delegated powers should only exceptionally be taken to deal with:

○ thecreationorextensionofgenerallyapplicablecriminaloffencesorpenalties (andregulatoryoffences,unlesstheyaretobecreatedbypowerscontaining appropriate safeguards – see section F below);

○ measures effecting significant constitutional change.

• ● Itisofparticularimportancethatadelegatedpowerwhichiscapableofinterfering with human rights is appropriately justifiedandcontainspropersafeguards(which may vary according to the nature oftherightandthesignificanceofthepotential interference).
• ● Delegated powers are unlikely to be appropriate, for example:

○ tolegislateforessentialaspectsofapolicyframeworkwhichhavenotbeen setoutintheAct(including‘skeletonclauses’whichleavetherealsubstance of the Act to regulations made under it);

○ because there has been insufficient time for proper policy development; or where powers are being included speculatively on a ‘just in case’ basis.

D. In what circumstances may it be appropriate to take Henry VIII powers?

• ● Asageneralrule,anActofParliamentshouldbeamendedorrepealedbyanother Act. Powers to amend or modify primary legislation by secondary legislation (sometimes called‘HenryVIII’powers)shouldonlybetakenwheretheirnecessity has been rigorously tested, and appropriate safeguards – or alternatives – fully considered.
• ● Henry VIII powers are sometimes misunderstood as being unacceptable in all circumstances. What really matters, though, is the scope of the power, and the substance of the change that is capable of being made to primary legislation.
• ● Some examples of where Henry VIII powers may be acceptable include:

○ toamenddetailwhichcouldwellhavebeenlefttosecondarylegislation(see sectionB)buthasbeenincludedinprimarylegislationtomakethelaweasier for the reader to understand;

○ tomakeconsequentialamendmentstolegislationinlightofchangesmadeby an Act;

○ toaddnewcasestoalegalframeworksetoutinanAct,wherenotbeingable todosowouldunderminethepolicyofthatAct(e.g.inapolicyenvironment involvingrapidtechnologicalorotherchange,orwherethereislikelihoodof abuse or avoidance).

Section 339ZH(10) of theProceeds of Crime Act 2002allows the Secretary of State to uprate in line with inflation the maximum penalty set out in the Act for failing to comply with a court order

Example 2

Section 10 of theGenetic Technology (Precision Breeding)Act 2023allows the definition of 'relevant animal' in the Act to be updated in order to ensure consistency with related regulatory regimes.

• ● By contrast, Henry VIII powers should not generally (and not without appropriate safeguards) be taken to amend the matters that are identified above as only exceptionally being the proper subject of a delegated power (see section C above).
• ● ThestartingassumptionisthatHenryVIIIpowersshouldbesubjecttotheaffirmative procedure unless, having regard to the substance of the power, there is a good justificationforadifferentlevelofscrutiny(e.g.becausethepowerisonlycapableof making amendments of a minor character).

E. What alternatives should be considered when deciding whether to take a delegated power?

• ● Some examples of alternative approaches to taking a delegated power may be:

○ delaying introduction of the Bill until policy formulation is more advanced;

○ including, on the face of the Bill, more aspects of the policy that a power seeks to implement;

○ where policy formulation is still ongoing, to consider whether it may be possible and appropriate to proceed by way of Government amendment at a later stage.

F. What safeguards should be considered when it has been decided to take a delegated power?

• ● Powersshouldbenowiderthannecessarytomeettheirintendedobjective.Thisis particularly important where the power is capable of amending primary legislation.
• ● Thewiderapower,themorelikelyitisthatspecificsafeguardsshouldbeincludedto upholdtheproperconstitutionalbalancebetweenParliamentandtheexecutive,and to guard against future abuse.
• ● Some examples of appropriate safeguards, or alternative approaches, may include:

○ expressrestrictionsonthescopeofapower(e.g.limitingtotheexpansion, rather than removal of rights granted by anAct;limitingitsapplicationtoa particular group of people/typeofcase;settingstatutorymaximumlimitson matters such as fines and sentences);

○ a test or threshold that must be met, or process undertaken (e.g. consultation), before a power can be exercised;

○ cleardescriptionof,orparametersaround,whatthepowercanpositivelydo (e.g.describingastightlyaspossiblethekindofconductthatmayamountto a regulatory offence);

○ appropriate parliamentary scrutiny procedures: as a rule of thumb, powers capable of making more significant provision should be subject to the affirmative resolution procedure;

○ sunsetprovisions(whichmeanthatthepowerwillexpire,ormustberenewed by Parliament, after a given period of time).

• ● The implications of these different approaches will need to be carefully worked through, including by reference to legal and delivery risks.

APPENDIX F: OTHER GUIDES

Cabinet Office

a. Ministerial Code

b. Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers and the Northern Ireland Executive Committee

c. Devolution guidance notes

d. Common Legislative Solutions: a guide to tackling recurring policy issues in legislation

e. Consultation Principles: Guidance

f. Guide to Parliamentary Workfor information on security,access and accessibility

g. Cabinet Manual

Competition and Markets Authority

h. Competition impact assessment: guidelines for policymakers

Department for Business and Trade

i. Legislative Reform Order-making Powers

j. Better regulation framework

Department for Science, Innovation & Technology

k. Data Protection Impact Assessments

l. Guidance on the application of Article 36(4) of the General Data Protection Regulation (GDPR)

m. ICO Data Sharing Code of Practice

Department for Food, Environment and Rural Affairs

n. Environmental Principles Policy Statement

Equality and Human Rights Commission

o. The Essential Guide to the Public Sector Equality Duty p. Meeting the equality duty in policy and decision-making

Government Legal Department

q. GLD Digital - Legal guidance for civil servants(Governmentemail address required)

r. The Judge Over Your Shoulder

HM Treasury

s. Managing Public Money

t. The Green Book: appraisal and evaluation in central government

Ministry of Justice

u. Guidance: Crown Dependencies

v. Justice impact test guidance

Parliament

w. Companion to the Standing Orders and Guide to the Proceedings of the House of Lords

x. House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC), Guidance for Departments on the role and requirements of the Committee

y. Joint Committee on Human Rights,The Committee's FutureWorking Practices

z. Standing Orders of the House of Commons - Public Business

Other

aa. Making Laws that Work, by David Goddardreflectionson creating effective legislation. The legislative checklists are available online.

APPENDIX G: CHECKLISTS FOR EACH STAGE

Thesechecklistsarenotcomprehensiveandarenottobereadinisolationbutreferred to alongside the relevant sections of the Guide. Youshouldreadallofthechapterson parliamentary stages in the Guide first to allow for timely preparation in advance of deadlines.

PREPARING A BILL FOR INTRODUCTION

Before drafting legislation

Bid for the bill, completing a bid template provided by the PBL Secretariat. Contact the PBL Secretariat to discuss the bid. Obtain drafting authority from the Leader of the House of Commons for OPC to draft the bill. Put in place resources: a bill team, legal team, and governance mechanisms. If there is a joint bill team with two or more departments, agree a protocol for managing the bill. Produce a clear delivery plan for developing the bill and supporting documents from now until after Royal Assent. Arrange for training (contact the Parliamentary Capability team or the PBL Secretariat). Engage the Union and Devolution Directorate, Territorial Offices and then the devolved governments on any devolved implications of the bill.

During drafting

Obtain collective agreement for the policy in the bill. Work with departments across-government on any implications for their areas. Contact the AGO and LSAG to discuss the key legal issues in the bill and whether any Law Officer consents will be required.

Consider the duty on Ministers of the Crown in section 19 of the Environment Act 2021 to have due regard to the environmental principles policy statement when making policy, including proposals that lead to legislation. Contact the United Kingdom Intelligence Community to discuss whether the proposals impact on work of the Agencies. Consider the impact, if any, on the Crown Dependencies and British overseas territories, as necessary, in consultation with MoJ and FCDO. Contact the Data Protection Policy Team in DSIT to discuss whether the proposals which relate to the processing of personal data are compatible with data protection legislation. Consult the Information Commissioner's Office on any new data sharing proposals or gateways Address any finance, public expenditure or tax implications of the bill and obtain the agreement of HM Treasury where necessary. Seek Cabinet Office and HM Treasury ministerial approval before taking steps to establish, disestablish, re-classify, or merge an Arm’s-Length Body (ALB), if applicable. Give the House Authorities an opportunity to comment on proposals intended to apply in relation to Parliament or the parliamentary estate. Begin work on your economic and equalities impact assessments, if applicable. Begin work on explanatory notes, delegated powers memorandum, ECHR memorandum, factsheets, “keeling schedules” and other supporting documents. Keep in regular contact with the PBL Secretariat.

Before PBL Committee consideration of the bill for introduction

Ensure you have a plan to draft and deliver the documents required, and assigned members of the team. You will need to provide (see below for detailed checklists on each product): Bill print (OPC will provide) Explanatory Notes PBL Memorandum Parliamentary handling strategy Legal Issues Memorandum Delegated Powers Memorandum, if needed Impact Assessment and RPC opinion, if needed Ask the PBL Secretariat for the templates. Documents need to be circulated to PBL Secretariat one week before the Committee meeting, with drafts shared the week before that, or in the case of the Legal Issues Memo, at least three weeks before. Ensure the AGO and LSAG are sent the draft legal issues memorandum three weeks before documents are sent to the PBL Committee. AGO and LSAG officials will need to comment on any draft requests for retrospection or early commencement in good time for the final requests to be sent to AGO and LSAG.

Explanatory Notes:

Identify the personnel who will be responsible for preparing the explanatory notes (ENs), including the person who will act as the point of contact with the Public Bill Offices (PBO). Begin drafting the ENs (using the template), starting with the sections on policy background and legal background. Seek comments from departmental lawyers throughout drafting of the Bill, including the final version of the ENs before they are sent to PBL Committee. Consider whether you should consult OPC on parts of the ENs relating to territorial extent and application. If the bill is to be introduced in the House of Commons, ask OPC to provide, or to clear, the wording for the part of the ENs that relate to parliamentary approval for financial costs or charges imposed. Consult the Territorial Offices and Office of the Advocate General (as appropriate) to provide final clearance for the relevant sections of the notes. Ensure the final draft of the ENs are consistent with the final text of the bill. Arrange for the Public Bill Office to comment on the explanatory notes (at least two days before introduction). Action any comments from the PBO.

Prepare a PBL Committee memorandum

Draft the Memo, summarising the content of the bill and any other important issues which have been covered in the other PBL Committee documents referenced above.

Proof read the final version of the Memo, ensuring all sections are complete.

Prepare a final parliamentary handling strategy

Draft the handling strategy. Share the draft handling strategy with the Whips at least one week before they are submitted to the PBL Committee for circulation. Action any comments to from the Government Whips’ Offices in the Commons and Lords.

Produce a delegated powers memorandum (DPM), if applicable,for publication Draft the DPM, explaining the purpose of and justification for any delegation of power in the bill Share the DPM with Lords Whips’ Office at least one week before they are submitted to the PBL Committee for circulation. Action any comments from the Government Whips’ Office in the Lords.

Produce full impact assessment, if applicable

Engage with your departmental Better Regulation team. Produce the impact assessment. Engage with the RPC, where appropriate. Action any comments from the RPC in relation to an initial opinion.

Draft the Legal Issues Memorandum (LIM)

Draft the LIM, setting out the justification for any provisions that may potentially be considered to touch on Convention rights in a legal issues memorandum. Consider the bill's compatibility with the European Convention on Human Rights and arrange for the bill minister to sign the ECHR statement to support the bill. Consider whether the bill contains environmental law (NB: the minister may need to sign a statement, or include a sentence in the ENs). Consider whether the bill relates to Northern Ireland-Great Britain trade (NB: the minister may need to sign a statement, or include a sentence in the ENs) Consider whether the bill is compatible with Scottish and Northern Ireland law. Consult with the Territorial Offices and Office of the Advocate General as appropriate in relation to any devolution matters.

Before PBL Committee

Clear the PBL Committee documents with your minister/s. Submit the papers to PBL Secretariat one week before the PBL Committee meeting. Brief your minister ahead of the PBL Committee meeting.

THE HOUSE OF COMMONS

Ahead of presentation/First Reading in the Commons

Arrange bill backers If applicable, arrange for the minister to sign an ECHR statement. Arrange for the minister to sign an environment law statement, or include a sentence in the ENs Arrange for the minister to sign a Northern Ireland-Great Britain trade statement, or include a sentence in the ENs. Agree that OPC can give notice of presentation of the bill. Send the final bill print and ENs to the PBO (OPC will send the bill print; the bill team should send other documents including the ENs). The PBO will add the bill number and arrange printing of both documents. Confirm with the Whips Office which minister will sit on the front bench to 'nod' in the bill. If necessary, write to the devolved governments requesting their agreement to initiate the legislative consent process. You should repeat this whenever the bill is amended in a way which engages the legislative consent process.

On the day of introduction

Send the delegated powers memorandum to Commons PBO for publication (requires sending to the DPRRC when the Bill reaches the Lords - see Lords intro requirements). Share soft copies with the PBO of: the impact assessment and Regulatory Policy Committee opinion (if applicable), ECHR memo (if separate analysis has been undertaken). Send the ECHR memo to the JCHR. Provide printed copies of relevant documents to the PBO, including:

50 copies of the impact assessment and Regulatory Policy Committee opinion (if applicable).

Arrange for publication on GOV.UK (on dedicated Bill page) of:

Impact assessment(s) and Regulatory Policy Committee opinion (if applicable), Delegated powers memo and ECHR memo (if relevant), and Other supporting statements (e.g. fact sheets) where relevant. Arrange for deposit of supporting documents in the House libraries.

After the bill has been introduced

Arrange for a written ministerial statement (WMS) to be issued (if relevant) and agreed with the Whips offices and No.10. Send a 'Dear Colleagues' letter to MPs (as agreed with the Commons Whips office and No.10). Send stakeholder and select committee correspondence (where relevant). Issue a press notice and media briefings (where relevant).

Ahead of Commons Second Reading

Keep in touch with the Whips about the timing for Second Reading. Meet the minister to understand their briefing requirements. Arrange for ministers to open and close - agree the approach with the Whips Office. Draft an opening speech, including details of the bill. Draft a skeleton closing speech, with placeholders to respond to the expected areas of questioning, and rebuttals to any reasoned amendments tabled. Provide a Q&A pack with top lines to respond to anticipated issues that will come up during the debate. Take stock of stakeholder briefings and wider public narratives ahead of debate - and reflect positions in the briefing pack. Ensure you have copies of speech for Hansard, and copies of the final briefing pack that can be annotated and passed to the minister (via the PPS) as necessary. Agree officials to attend the box with the departmental parliamentary branch (establish a virtual box for policy leads/lawyers).

After Commons Second Reading

Provide a readout of the debate across the department, PBL Secretariat and business managers. Follow up on any commitments e.g. 'I will write' letters.

Commons Committee Stage

Provide the Whips with a list of witnesses for oral evidence sessions (agreed by the bill minister). With Whips and OPC, prepare programming resolution and standard motions for sitting in private and publication of written evidence. Brief minister for programming sub-committee. Prepare suggested questions for the minister to ask witnesses. Develop a tracker for amendments. Agree a process for responding to amendments and briefing ministers with policy, legal, press and private offices (including drafting / clearance processes). Communicate deadlines and expected pressure points to the department. Arrange an early discussion with the Committee Clerk and agree process for the bill team to comment on draft groupings. Consider providing a procedural brief on how Committee works to the bill minister (in discussion with the Whips office). Draft clause/schedule stand part notes for each clause/schedule in the bill. Agree suggested Government amendments needed with the PBL Secretariat and Whips offices before seeking collective agreement. Seek collective agreement (PBL Committee and policy committee if needed) Factor in time for instructing OPC to prepare any Government amendments. Commission notes on amendments (explanations of amendments, speaking note and Q&A) to be cleared by legal and (if necessary) communications colleagues. Stay in touch with the Whips offices about timing for Committee and what will be debated when. Table Government amendments at least a week before consideration (having agreed that they can be tabled with the Whips); provide details in a letter to co-chairs of the Public Bill Committee (enclosing, as appropriate, supplementary delegated powers and ECHR memos).

If needed, discuss final grouping with the Clerk directly, or via OPC. Provide final ministerial briefing pack. Brief minister/s Agree officials to attend the box and alert the departmental parliamentary branch. Establish a virtual box as required for those not attending in person. During Committee:keep a list of Ministerial commitmentsand provide a readout of the debate across the department, PBL Secretariat and business managers. Prepare script for minister at end of committee thanking co-chairs etc. Ensure your explanatory notes are updated and ready to be re-published on Lords introduction If applicable, ensure your Delegated Powers Memo is updated and ready to be published as soon as Committee Stage has concluded. Keep in regular contact with the PBL Secretariat.

Commons Remaining stages (Report and Third Reading)

Keep in touch with the Whips office about the timing of remaining stages, including tabling deadlines and how the debate will run. Obtain clearance for any Government amendments, factoring in time to instruct OPC to prepare any Government amendments that are wanted. Send a letter detailing amendments to the Official Opposition spokesperson (enclosing supplementary ECHR and delegated powers memos where appropriate). Table amendments at least one week before the debate (having agreed that they can be tabled with the Whips). Send a letter detailing amendments to the Official Opposition spokesperson (enclosing supplementary ECHR and delegated powers memos, where appropriate). If necessary, issue further Dear Colleague letter covering key Government amendment and high-profile non-government amendments. If you are at the final amending stage in the second House, ensure that any LCMs have been passed by the devolved legislatures. Commission notes on amendments (explanations of amendments, speaking note and Q&A) to be cleared by legal and (if necessary) communications colleagues. Agree with Whips terms of any supplementary programme motion. If needed, discuss final grouping with the Clerk directly, or via OPC.

Provide a Q&A pack with top lines to respond to anticipated issues that could come up during the debate. Brief minister. Arrange any briefing sessions with MPs that may be required. If the bill requires King’s and/or Prince's consent, check that the Order Paper mentions this; if this has been omitted, it should be pointed out to OPC who will alert the House Authorities. Arrange for a Minister, who is a privy counsellor, to signify Consent just before Third Reading, if applicable. Ensure the Minister has a short Third Reading speech setting out how the bill has changed since introduction and thank Members for their interest in the bill. Provide a readout of the debate across the department, PBL Secretariat and business managers.

Preparing to transfer to the second House

Ensure the ‘take up’ arrangements are clear (i.e. which Minister is to take charge of the bill in the second House). Agree an approach to parliamentary engagement with the Whips Offices. Ensure the bill, as amended in the Commons, is proof read and approved for publication. Ensure explanatory notes are revised as necessary to publish alongside the bill. These needs to be cleared with the Public Bill Office in the Lords at least two to three working days before the bill is sent to the Lords. Arrange a fresh ECHR statement to be signed. If the Bill contains environmental law, arrange for the Lords Minister in charge of the Bill to sign an environmental law statement. If the bill relates to Northern Ireland-Great Britain trade, arrange for the Lords Minister in charge of the Bill to sign a statement, or include a sentence in the ENs. Revise and arrange for re-publication of the impact assessment(s) and delegated powers memorandum as necessary,

THE HOUSE OF LORDS

Lords Introduction and First Reading

Note that after Third Reading in the Commons, the House copy of the print incorporating amendments (signed by the Clerk of the House) is delivered to the House of Lords with a message. There is no formal process for the Lords Minister to move First Reading (this will be done by the Whips.

If the bill starts in the Lords:

Agree that OPC can alert the PBO to the intention to introduce a bill (different to notice of presentation). Ensure the government Peer is lined up to read the long title. If the bill started in the Commons, theWhip will read out the short title andformally move First Reading. Send draft explanatory notes to the PBO for comment (at least two to three working days before introduction). Arrange for the Lords Minister in charge of the Bill to sign an ECHR statement. If the bill contains environmental law, arrange for the Lords Minister in charge of the Bill to sign an environmental law statement. If the bill relates to Northern Ireland-Great Britain trade, arrange for the Lords Minister in charge of the bill to sign a statement, or include a sentence in the ENs. Send the delegated powers memorandum to the DPRRC Committee.

Whether the bill starts in the Lords or Commons, departments also will need to:

Send final explanatory notes to the PBO the day before publication. Share soft copies of the impact assessment(s), and ECHR memo (if separate analysis has been undertaken) with the Lords Publishing Team for publication on the Bill’s Parliament webpage.

Arrange for publication on GOV.UK (on dedicated Bill page) of:

Impact assessment(s) and Regulatory Policy Committee opinion (if applicable), Delegated powers memo and ECHR memo (if relevant), and Other supporting statements (e.g. fact sheets) where relevant.

Make provision for revised editions of Acts ("keeling schedules") (where necessary).

Arrange press briefings and memos to be publishedafterpublication of the bill and

supporting documents.

Set up necessary engagement with peers, either through an all-peers meeting or

attending party group meetings.

Send any All Peers letters (as agreed with the Lords Whips office and No.10).

Lords Second Reading

Ahead of Second Reading, agree and arrange briefings for the lead Minister - usually the same Minister opens and closes. Draft an opening speech. Draft a skeleton closing speech and a briefing pack providing lines on issues that might come up. Keep track of the Bill speakers list onthe GovernmentWhips’ Official websitebefore the debate. The final list can be obtained from the Government Whips’ Office around lunchtime on the day of Second Reading (10am on Thursday). Agree and arrange for officials to sit in the box including provision of passes. During debate, provide any additional responses needed for the closing speech via notes to the Minister. After the debate, respond to any outstanding questions or points via correspondence within 24 hours. Update your parliamentary handling strategy based on what was raised during debate.

Lords Committee Stage

Stay in touch with the Whips offices about timing and what will be debated and when. Consider providing a procedural brief on how Committee works to the bill Minister (in discussion with the Whips offices). Design a system for tracking amendments and applying dummy numbers to ensure consistency. Ensure any necessary Government amendments have been drafted, collectively agreed and tabled (having agreed that they can be tabled with the Whips) at least one week before Committee. Factor in time to instruct OPC to prepare these. Agree handling and communication of amendments being tabled with the Lords Whips office. Send any supplementary delegated powers memo to DPRRC. Agree a process for responding to amendments and briefing ministers with policy, legal, press and private offices (including drafting / clearance processes). Communicate deadlines and expected pressure points to the department. Draft clause/Schedule stand part notes for each clause/Schedule in the bill. Commission notes on amendments (explanations of amendments, speaking note and Q&A) to be cleared by legal and (if necessary) communications colleagues. Provide the Whips office suggested groupings for debate. Finalise the ministerial pack based on final groupings. Brief the minister. If needed, ensure your explanatory notes are updated as soon as Committee Stage has concluded, though republication at this stage is highly unusual (see 10.30).

Lords Report

Keep in touch with the Whips office about the timing, including tabling deadlines and how the debate will run. Obtain clearance for any Government amendments or concessions in the usual way, factoring in time for OPC to prepare these and table before the deadline (having agreed that they can be tabled with the Whips).Agreehandling and communication of amendments being tabled with the Lords Whips office. Send any supplementary delegated powers memo to DPRRC. Keep PBL Secretariat, No.10 and the Whips Offices regularly updated on risk areas (e.g. where there may be votes / defeats) and ensure there are processes for agreeing the approach to each amendment. Draft notes on amendments to agreed drafting / clearance process. Agree an approach to ministerial briefing and clearance of the approach. If you are at the final amending stage in the second House, ensure that any LCMs have been passed by the devolved legislatures. Respond to DPRRC, Constitution Committee and JCHR, if applicable. Provide the Whips office a suggested grouping of amendments and update the Minister’s pack based on the final groupings (noting that Peers can change groupings on the day of debate).

Brief the minister. If applicable, ensure your explanatory notes are updated and ready to be published as soon as Report Stage has concluded.

Lords Third Reading

Keep in touch with the Whips office about the timing, including tabling deadlines and how the debate will run. Draft notes on any amendments tabled (note that theonly amendments that are admissible are tidying up amendments and amendments to enable the Government to fulfil undertakings given at an earlier stage). On tabling any Government amendments, send a letter to the Official Opposition spokespersons (attaching, as necessary, supplementary delegated powers and/or ECHR memos). Send any supplementary delegated powers memo to DPRRC. Ensure the Minister has a short speech for 'Bill Do Now Pass'. It is customary to thank Members for their interest in the bill. Prepare a statement for the ministertoreadbeforeThirdReadingcommencesto informtheHouseofthebill’spresentLCMstatuswhereconsenthasnotyetbeen received or has not been granted. Brief the minister. Ensure your explanatory notes are updated and ready to be published following Royal Assent.

If the bill started in the Lords, see:Preparing totransfer to the second Houseabove for the checklist.

Ping-pong

Note: there are various complexities to ping-pong that cannot be captured in a checklist. This is therefore designed to give a sense of the issues to consider, but further detailed planning and training should be undertaken ahead of this stage.

Keep in touch with both Whips offices about the timing, including tabling deadlines and how the debate will run. Arrange training for the bill team (the PBL Secretariat in consultation with OPC and the Whips Offices can support this).

Complete early analysis of issues that could be in play at ping-pong with options for responding. Agree the approach to issues outlined above with the PBL Secretariat, No.10 and the Whips offices, and where necessary seeking contingent collective agreement from PBL Committee and the relevant policy committee to a range of options. This will enable speedy deployment if needed. If necessary, ahead of Commons Consideration of Lords Amendments, issue further Dear Colleague letter covering key Government Lords amendments and non-government amendments. Engage both MPs and peers ahead of ping-pong to ensure strong intelligence on the options and approach the House is likely to take (agree your strategy with the Whips Offices). Agree the approach to all amendments and ensure OPC have the necessary instructions to draft the motions for debate, including reasons for seeking to overturn any amendments. Prepare briefing for the Minister to respond to amendments during debate. Ask the PBL Secretariat for the explanatory notes template used during ping-pong. On return to the first House for the first time (only), submit explanatory notes on any amendments (government and non-government) made in the second House to the PBO. In the Commons, it is for the bill minister to propose groupings for Lords amendments for debate. This should be done in consultation with the Whips Office. If an amendment is overturned / rejected in the Commons, a Reasons Committee will meet to provide a reason for this. This is arranged by the Whips office, but the bill team will be asked to: Input the reasons drafted by OPC; and Confirm the name of the minister serving on the Committee. Keep the master explanatory notes updated throughout ping pong as these will be needed once the bill reaches Royal Assent.

Royal Assent

Ensure the explanatory notes are updated to reflect any changes to the bill throughout the bill's passage through the second House and during ping-pong..

They need to be in line with the Guide to Making Legislation (Note: no new template is needed; it is the original template with elements removed as set out in the Guide). Ensure the Act and explanatory notes are proof-read before publication. Send the final explanatory notes to Legislation Services at The National Archives for formatting and publication alongside the text of the Act. Formally handover any work to the teams working on implementation e.g. any secondary legislation, guidance needed. Departments should highlight any debates that were pertinent to ongoing work to ensure this is factored into future handling Conduct a lessons learned exercise (the PBL Secretariat or the Parliamentary Capability can support this). Ensure all templates, documents and submissions are saved in shared areas for archive. Share best practice and consider training for wider bill teams or within the department. Arrange a celebration.

PRIVATE MEMBERS' BILLS

Ensure the department has a good system for tracking bills introduced by Members and for agreeing a position. Ensure you are engaging with your legislative strategy team and/or parliamentary branch.

Taking a position on PMBs that have been introduced

Determine the policy and legislative implications, including the impact on the devolved governments, legal issues, compatibility with the European Convention of Human Rights, regulatory impact, and spending implications. Ensure a clear ministerial decision is taken on whether to: Support the bill; Oppose the bill; or Remain neutral If the Minister wishes to support the bill or take a neutral position, collective agreement must be sought. Engage with the PBL Secretariat as soon as possible to ask for bill document templates.

Attach to the write round: PBL memorandum Bill print Explanatory notes Legal issues memorandum (LIM) Parliamentary handling strategy, Delegated powers memo (if applicable) Impact assessment (if applicable). Engage with OPC on drafting the bill print. Contact the AGO and LSAG as soon as it is known that the Government may be supporting a PMB to ensure the LIM can be cleared. Contact UDD to discuss any devolution implications. Seek King's and/or Prince's consent, if applicable. Ask the Member if OPC can hand in the bill and supporting documents. If the Government wishes to make amendments to the bill, be clear in the write round what those amendments are. If the Minister wishes to oppose the bill, write to PBL Committee for information ahead of Second Reading setting out the reasons why.

Government supported PMBs - after introduction

Support the Member as necessary (in consultation with the Whips offices). Provide the minister with a briefing pack for all stages of the bill in the first House. Ensure the impact assessment and delegated powers memo have been published and the latter shared with the Commons PBO for publication(requires sending to the DPRRC when the Bill reaches the Lords - see Lords intro requirements). Ensure collective agreement is gained for any further amendments. If any amendments are made to the bill, ensure the explanatory notes are updated to reflect the changes. If necessary, write to the devolved governments asking that they initiate the legislative consent process. Ensure you have a good understanding of whether the relevant devolved governments are likely to secure a legislative consent motion before Report Stage in the first House. Work with the Member to identify a MP/peer to pick up the bill in the second House.

Consider and set up systems to support the Member in the second House (in consultation with the Whips offices). Send the delegated powers memorandum to the DPRRC Committee (cc’d to the PBO) when the bill passes to the second House. Provide the minister with a briefing pack for all stages of the bill in the second House. Arrange for a Minister, who is a privy counsellor, to signify Consent just before Third Reading, if applicable. If the bill reaches Royal Assent, send the final explanatory notes to Legislation Services at The National Archives for formatting and publication alongside the text of the Act.

Government handout bills

Bid for the bill, completing a bid template provided by the PBL Secretariat. Obtain drafting authority from the Leader of the House of Commons for OPC to draft the bill. Obtain policy clearance for the content of the hand out bill ahead of the ballot. Draft a ‘handout one pager’ setting out what the Bill does and share with the PBL Secretariat. Agree a timetable to provide OPC with drafting instructions and provide them on time. Ahead of the write round, engage with the PBL Secretariat and ask for the bill templates. Attach to the write round: PBL memorandum Bill print Explanatory notes Legal issues memorandum (LIM) Parliamentary handling strategy, Delegated powers memo (if applicable) Impact assessment (if applicable). Contact the AGO and LSAG as soon as it is known that the Government may be supporting a PMB to ensure the LIM can be cleared. Contact UDD to discuss any devolution implications. Seek King's and/or Prince's consent, if applicable.

Ask the Member if OPC can hand in the bill and supporting documents. If a Member picks up the bill, consider and set up systems to support the Member (in consultation with the Whips offices). Provide the minister with a briefing pack for all stages of the bill in the first House. Ensure the impact assessment and delegated powers memo have been published and the latter shared with the DPRRC. Ensure collective agreement is gained for any further amendments. If any amendments are made to the bill, ensure the explanatory notes are updated to reflect the changes. Ensure you have a good understanding of whether the relevant devolved governments are likely to secure a legislative consent motion before Report Stage in the first House. Work with the Member to identify a MP/peer to pick up the bill in the second House. Consider and set up systems to support the Member in the second House (in consultation with the Whips offices). Send the delegated powers memorandum to the DPRRC Committee (cc’d to the PBO) when the bill passes to the second House. Provide the minister with a briefing pack for all stages of the bill in the second House. If the bill reaches Royal Assent, send the final explanatory notes to Legislation Services at The National Archives for formatting and publication alongside the text of the Act.