Can backbench MPs make laws?

Most legislation which passes through Parliament comes from the government, but how do ordinary MPs get in on the game? It's not easy

Yesterday was a relatively unusual day in the House of Commons, in that it was a Friday, and the House was sitting. The parliamentary week is generally a four-day one (more like three-and-a-half, as business doesn’t start until 2.30 pm on a Monday), allowing MPs time to come from and return to their constituencies and then spend their weekends dealing with their electors and—whisper it—snatching some time with their families. But 13 Fridays each session are set aside for consideration of private members’ bills (or rather, technically, they are free from the constraints of Standing Order No. 14(8), which stipulates that “Government business shall have precedence at every sitting”).

(Some people argue that the standing order is unfair and gives the government too much control over the business of the House; I don’t agree, as it happens, but I will return to this in a future essay, along with the proposal for a ‘House Business Committee’, which some other assemblies have.)

Perhaps we should wind back a bit. Any Member may introduce a bill into the House, though under certain circumstances that introduction may be opposed. Bills introduced by a minister of the Crown are known as government bills, and those brought in by backbenchers are—you’re way ahead of me here—private Members’ bills. In theory, all bills are equal, but, as so often in life, some bills are more equal than others.

There are three ways that a bill can be introduced. It can be brought in following an order of the House; it can be brought in without such an order; or it can be brought from the House of Lords. That last category covers bills which began in the upper house and have completed their stages of scrutiny there, so must, if they are to become law, now go through the different stages in the Commons.

Let us take bills brought in following an order of the House next, as these are relatively rare. Some are introduced following financial resolutions: that is, if the House resolves that the government may collect taxes or spend public money, then the bill which gives statutory effect to this is introduced pursuant to that resolution. Here’s a concrete example: when the chancellor delivers his Budget, the measures are laid out in Ways and Means resolutions. (“Ways and Means” is a parliamentary term of art for taxation and other charges on the public.)

The other main kind of order which leads to the introduction of a bill is the Ten-minute Rule. Under Standing Order No. 23, a backbencher may give notice that, on a Tuesday or Wednesday, he or she wants to introduce a bill. If a slot is obtained (there is only one bill each day), then the Member has 10 minutes at the beginning of public business (so after questions and statements) to explain what the bill does, why it is necessary and why the House should allow it to be introduced. After the Member has spoken, the speaker will invite any Member who wishes to oppose the introduction of the bill. Generally no-one will do so, but from time to time a Member will take this opportunity. He or she should in principle be explaining why the bill should not be introduced but in practice will explain why the bill is bad legislation. After the speech or speeches, the speaker will put the question that the bill be brought in and read the first time. At this point, it is possible, but very unusual, for the House to divide; almost always the question will be agreed to, and the bill is on its way. The Member in charge will be asked to name a date for the second reading debate. He or she can pick any date: there is next to no chance of the bill going any further.

You might be reflecting that this seems a rather complicated procedure, with the (albeit remote) possibility of opposition and defeat. Why, then, would a Member choose this route to introduce a bill? The main reason is that it is the only chance for most private members’ bills to have any discussion on the floor of the House. The Member in charge may only have 10 minutes, but that is a lifetime for a backbencher to explain the purpose and motivation of a cause dear to his or her heart. Once the speech is made, it is on the record in Hansard and on television, and can be reported by the media. For a campaign or hobby-horse, that is no small win. The other, perhaps secondary, reason is the timing. The speech(es) on Ten-minute Rule bills will usually take place between 12.30 pm and 1.00 pm, unless there are urgent questions and/or statements. On Wednesday, moreover, this will follow Prime Minister’s Questions, the popular highlight of the parliamentary week. So the spotlight will glare rather than flickering weakly.

The simplest way to introduce a bill, and the way in which the majority of bills are brought in, is under the provisions of Standing Order No. 57. This says that “A Member may, after notice, present a bill without previously obtaining leave from the House to bring in the same”. All the Member need do is give the appropriate notice, and provide a long and short title for the bill, and it will appear on the Order Paper. Furthermore, it cannot be opposed. SO No. 57(2) explains:

When a bill is presented either in pursuance of an order of the House or under the provisions of paragraph (1) of this order, the bill shall be read the first time without any question being put, shall be ordered to be read a second time on such day as the Member presenting it shall appoint, and shall be ordered to be printed.

There are no real pitfalls here. Provided the bill is in order, as the Member in charge should have checked with the clerks in the Public Bill Office, his or her pet project is accepted, recorded in the Votes and Proceedings (the official record of the House’s actions) and, if a full text is provided (which it need not be), the bill will be printed by the House authorities. The only real drawback with “presentation bills” like this, or “Ten-minute Rule bills” as described above is that they have virtually no chance of being debated, let alone becoming law. The government, remember, sets the agenda for each sitting day, and its business has priority. So the conscientious backbencher can be informed and prepared, all the research done, promoting a popular measure, and it will matter not a jot because time will never be found for his or her bill to be considered in the House of Commons.

I know what you’re thinking: it’s a pretty bleak outlook, isn’t it? Well, in some ways, yes. But there is one more avenue for backbenchers. Remember those 13 sitting Fridays on which government business does not have precedence? Those are for private Members, and those are for “ballot bills”.

At the beginning of each parliamentary session, eager backbenchers can enter their names into the ballot for bills which will be considered on Private Members’ Fridays. The ballot takes place on the second Thursday after the King’s Speech, and, mirabile dictu, it has in the last decade or so, become something of an event. The chairman of ways and means (the principal deputy speaker) and his or her secretary, as well as the clerk assistant (deputy clerk of the House) and the clerk of private Members’ bills (an official from the Public Bill Office who oversees non-government bills), gather in a committee room and the chairman of ways and means draws 20 numbers at random, corresponding to numbers in the ballot book. They are called in reverse order, meaning that the Member who is last to be drawn gets the first choice of a second reading slot, which guarantees a debate on the bill. If you want to experience the tension, excitement and glamour of the occasion, here is the draw from June 2014, with the numbers drawn by then-chairman of ways and means Lindsay Hoyle (now Mr Speaker), and the clerk assistant, David Natzler (later clerk of the House). To Hoyle’s right are his private secretary and the clerk of private Members’ bills.

The 20 lucky Members at the top of the ballot will garner some publicity, because the top half-dozen or so, depending on the circumstances, have a genuine chance of their bills getting well into the consideration process. Each Member must provide the Public Bill Office with a short and long title: below is one of the bills from this session’s ballot, the Carer’s Leave Bill, showing the short and long title. The Public Bill Office clerks will provide advice on what can and cannot be in these elements of the bill, and how they are best worded.

Most ballot bills, and every bill which comes for actual consideration, must also have text. That is, there must be a whole bill, not just a title. How is all of this composed and agreed? It depends on the Member. Some will have a very clear idea of what they want to try to legislate on and will work with the PBO clerks to draft the clauses of the bill. Others will be more open-minded. They might accept an idea (and perhaps a whole bill text) from an outside campaigning organisation, which lobby the lucky 20 MPs intensively after the ballot is drawn. Others might be open to helping the government; ministers may have minor measures or policies they want to introduce but cannot easily accommodate in government time, so might give a full bill, written by the Office of Parliamentary Counsel, their lawyers, to the obliging Member. These are referred to as “handout bills”.

(Parliamentary Counsel are as intelligent and learned a bunch of people as you will ever meet. The current head of the office, first parliamentary counsel Dame Elizabeth Gardiner KC, is a really lovely Scotswoman who combines high intelligence with genuine friendliness and warmth, and was always a pleasure to deal with when I was in the Public Bill Office. (One former first parliamentary counsel, Sir Courteney Ilbert, who held the office from 1899 to 1902, then moved to become clerk of the House of Commons 1902-21. I cannot imagine someone making the same move nowadays.) Formidable intellect can be combined with all sorts of quirks of behaviour among the government draughtsmen. The most brilliant, funny and unpredictable with whom I worked was Daniel Greenberg, who worked in the office from 1991 to 2010. He has edited many distinguished legal textbooks like Craies on Legislation, written a wonderfully unusual book called How to Become Jewish (and Why Not To) and in January will become the parliamentary commissioner for standards.)

Debate on the Fridays set aside for PMBs begins at 9.30 am and finishes at 2.30 pm. The intricacies of procedure which the bills undergo can wait for another day but there are two facts to observe: the first is that only the first seven or so bills on the ballot will get a proper debate in the House, and the number which become law may be even smaller still, depending on whether the government wishes to obstruct them or not. In the last session (2021-22), an unusual 13 bills passed, but in the long 2019-21 session only seven did. So unless you are in the top 10 of the ballot, you are really just making a statement. (Bear in mind that private Members’ bills must go through the same scrutiny procedure as any other bill: second reading, committee stage, report stage and third reading.)

The other fact is that it is very easy to obstruct a bill. If the debate is still going on at the moment of interruption, its continuation will be scheduled after the first consideration of all the other bills, sending it to the back of the queue and effectively killing it. Equally, when the titles of the bills still awaiting consideration are read out by the clerk at the end of Friday, any Member may shout “Object!” and no further progress will be made on the bill. Again, it is effectively dead. There is a handful of Conservative MPs who regard PMBs with distrust on principle, and will often object to them: Sir Christopher Chope and Philip Davies are the most prominent, although the past master of wrecking was the late Eric Forth, MP for Bromley and Chislehurst. There have been suggestions that this ability should be curtailed. I generally disagree, as backbenchers have few enough powers to impede legislation, and explained my stance in The Daily Telegraph last year.

That is a quick guide to how private Members can introduce legislation and how succeessful it might be (in general, not very). As a ray of sunshine, however, let me conclude by saying that of the select band of backbench bills which become law, some have achieved lasting renown. The most famous is probably the Abortion Act 1967 (David Steel, Liberal), but the Murder (Abolition of Death Penalty) Act 1965 (Sydney Silverman, Labour), the Gangmasters (Licensing) Act 2004 (Jim Sheridan, Labour) and the Autism Act 2009 (Cheryl Gillan, Conservative) all began their lives as private Members’ bills. So there is hope!

I hope this has answered a few questions readers may have about backbenchers and their ability to achieve legislative change. It is a rapid and light-touch guide, and there is much more I could say, but this may demystify matters just a little.