The HE Bill in Parliament – Process and Procedure

It’s finally here. The legislation the some believe the sector has needed for half a decade is finally before us. In one sense, the excitement of parliamentary debate, discussion and discourse is here, and yet in another sense, it is easy to anticipate likely disappointment in the quality of such discussion.

There will be much in this Bill that the sector and those tied to it may find problematic. The merging of the research councils, whatever the government’s statement about ‘legislating’ dual-support actually looks like will set off some nervous twitches. The fast-track to university status and degree-awarding powers will no doubt have some concerned about collective reputation and quality.

However, if universities are hoping that the democratic wisdom of the ‘mother of parliaments’ will save them, they may well be disappointed. One particularly esteemed political commentator has called the modern UK Parliament “little more than an arena assembly – in which ritualised debates trump serious discussion”. Britain, it is argued, suffers from a ‘deficit of deliberation’ on legislation, and much that has made its way into the statute book in recent years has either been poorly drafted, ineffectual, or superfluous.

However, such observations were made before the past year of relative parliamentary turmoil that the present government has experienced with its very slender majority. The present government has had three defeats in the Commons, and more than 50 so far in the Lords. The recent behaviour of the Lords has so raised the government’s ire that there are suggestions that the Queen will announce new plans to reduce its power; unprecedented for a Conservative government. That said, former Health Secretary Andrew Lansley has noted that the upper-chamber’s legislative activism has been largely due to the poor quality of drafts emanating from the Commons.

There are a great many members of the Lords who have spent their careers in higher education and research, and who will no doubt take a keen interest in the HE Bill. Any controversial features of the Bill may well see amendments being sent back to the Commons: the sector would be wise to see its ‘representatives’ in the Lords as its best hope for making changes.

In the Commons, the large SNP bloc may choose to use the Bill as an opportunity to give the government a kicking and highlight their contrasting policy of free higher education tuition fees. It remains to be seen how Labour, as the official opposition, will organise its opposition. But while the politics is inevitable open and highly changeable, the parliamentary process is much more rigid.

The Parliamentary Process

Parliamentary procedure is complex and obscure, and it is difficult to anticipate exactly how and when different parliamentarians may try to leverage influence. Here are some of the likely, and not so likely, flashpoints:

Pre-legislative scrutiny: A government introducing a Bill may, at their own discretion, introduce it in draft form. If this happens then it will be scrutinised by one or more parliamentary committees, usually select-committees, who might hold public hearings and calls for evidence, which in turn can lead to substantive amendments prior to the Bill’s formal introduction in Parliament. Wonkhe understands that Iain Wright MP, Chair of the BIS Select Committee, has been pushing for the government to introduce the HE Bill in draft form, but the decision is ultimately the government’s. Pre-legislative scrutiny has been praised by many scholars for improving the quality of legislation passed and governments have been criticised for using it too sparingly.

Commons First Reading: This is merely the formal introduction of the Bill and there is no debate. We expect the government to introduce the HE Bill in the Commons, but there is also the option to start in the Lords, but this is a decision made by Parliament itself. Key will be whether this takes place before the summer break or in the Autumn.

Commons Second Reading: This debate is on the top-line principles of the Bill. The opposition gives a response and a vote is taken, but there are no opportunities for amendments. Expect little drama here, but it will be interesting to see how Gordon Marsden formally responds for Labour. There is a chance that this could take place before the summer, if the Bill is introduced quickly.

Commons Committee Stage: This line-by-line examination of the Bill is in theory where MPs get to scrutinise legislation and make evidence-based changes. Unfortunately, nothing of the sort tends to happen at committee stage, at least in the Commons. Public Bill Committee (PBC) members are selected by party whips for their loyalty above all else, and not for their interest in the piece of legislation at hand.  However, if the government wishes to correct an error in the Bill (whether legal, practical or political), they may chose to do so here, and so the overwhelming majority of amends accepted here will likely be government proposed. PBCs can make calls for evidence, and members of the public can submit it, but this very rarely results in anything.

Commons Consideration and Third Reading: In the Commons these two stages typically take place on the same day. In consideration, amendments are submitted by members. These may get interesting if any Conservative backbenchers take exception to any aspects of the Bill. After this, the third reading is the final Commons vote on the Bill, unless any amendments are sent back by the Lords.

Lords First and Second Reading: As in the Commons, these are largely formalities.

Lords Committee Stage, Report and Third Reading: This is where there may be the greatest interest for trackers of the HE Bill. Lords committee debates are typically more substantive than their Commons equivalent, particularly if any specialists find their way onto the committee. Government whips’ control over peers is much less tight than over their MPs. Those HE peers who are not on the Public Bill Committee will be able to submit amendments at the report stage. It is over amendments that the government has got itself in trouble in the Lords this past year. Bills have not been rejected outright, but rather been sent back to the Commons for consideration of amendments, and thus forced government climb downs.

‘Ping Pong’ and Royal Assent: A Bill must be approved by both Houses in identical format before being given final Royal Assent. If the Lords does send the Bill back with amendments, it would be surprising to see the government take a stand on something like the HE Bill. This of course will depend on the nature of any amendments, and besides, by the time we get to this stage (we expect it to be the autumn at the earliest), we may have a completely new PM, cabinet and HE minister, and be on our way out of the EU. We shall wait and see.