Private Members' Bills: The flawed and occasionally successful route to change

(Alamy)

They have been regarded, variously, as a “pain in the neck”, as Conservative MP for Christchurch Christopher Chope put it in 2012. Or, to go back to Richard Crossman – Labour MP and major parliamentary figure in the 1960s – as a crucial democratic means for backbenchers to make “bold proposals for the solution of social problems of the day”.

They are either a rare opportunity to shine a spotlight on causes and crusades dear to many inside and out of the House – or a flawed mechanism too easily hijacked by its more eccentric members to pursue their own personal bête noire. 

A lot of change legislation originated as Private Members’ Bills. They’re a way of forcing a government to think another way and campaigning on it

Introducing his Private Members’ Bill on workplace mental health discrimination in 2013, former MP for Croydon Central, later Downing Street chief of staff Lord Barwell said: “It’s not often that a backbencher gets to change the law of the country.”

Some – including government whips – would argue that that’s for the better. Governments’ legislative programmes are packed tightly enough into each session. Giving most of a Friday over to bills from the backbenches is giving up precious political time.

Yet this instrument of democracy has been either the cause, or the catalyst, of some of the most progressive, era-defining legislation in British history. 

Repeal of laws banning male homosexuality

By the second half of the 1960s the British public overwhelmingly supported the legalisation of homosexuality, as did the majority of MPs. But for attitudes to be translated into actions a concerted legislative campaign in Parliament was needed. Cue Conservative Peer Lord Arran – whose gay brother had taken his own life – backbenchers Humphrey Berkeley, a Conservative, and Labour’s Leo Abse, and the Sexual Offences Bill 1966. Despite reactionary opposition both inside and outside the House, the bill passed into law in the form of the Sexual Offences Act the next year. Abse had already had much success with the Private Members’ Bill – in 1963 he used a successful ballot draw to bring about liberal forms of the divorce laws, with his Matrimonial Causes Bill. For his troubles over the legalisation of homosexual relations in particular Abse, who took on the bill as its main sponsor after Berkeley had lost his seat, would for years afterwards receive packages of human excrement in the post.

It was William Wilberforce’s tenacious one-man campaign of introducing bills railing against the injustices of slavery that sparked its abolition in 1807. During the Harold Wilson government of the 1960s, Private Members’ Bills prompted, directly or indirectly, the legalisation of homosexuality and abortion, and the end of capital punishment (see boxout).

And in just the past four years, backbenchers have brought about overdue reform of the laws protecting victims of stalking, made upskirting a criminal offence, and secured full legal status for British Sign Language, marking, in the words of the chair of the British Deaf Association, “a historic day for the deaf community”.

When Sarah Wollaston introduced the Stalking Protection Bill to the Commons in 2018, she cited the many victims who had “with great courage” spoken out about their own harrowing experiences, adding: “It is with all of those individuals in mind that I promote this bill.”

Her words went to the essence of what Private Members’ Bills can be: a powerful, directly democratic means of serving people who need urgent legal reform.

And if prominent examples like that show anything, it is that bills from backbenchers can work. But making them work is a notoriously complex and convoluted business, described by former Tory Leader of the House John Biffen in his political memoirs as “formidable”.

Bills of progress
Private Members’ Bills played a pivotal role in the liberal reform agenda of the 1960s, prompting legislation that shaped the future British society. For this we have to thank a series of campaigns emanating from the backbenches, led by a small number of tenacious MPs and Lords on both sides of the aisles. One of the key figures in this, characterful Jewish MP for Torfaen, Leo Abse, later said that “until our intervention, our laws relating to divorce, suicide, illegitimacy, adoption and homosexuality were unbecoming to any society claiming to be civilised”. 

Of the 192 Private Members’ Bills put before Parliament in the 2019-21 session, only seven received royal assent. Of those that fell, the vast majority didn’t make it past the second reading stage.

Add to that the fact that 20 of those 192 bills were introduced following a customary ballot held close to the start of each session – and bearing a striking resemblance to a community fête bingo draw. Those 20 MPs lucky enough to be picked in 2019 were drawn out of 395 hopefuls.
And almost all Private Members’ Bills fail. In all sessions of each Parliament between 1997 and 2015 generally only between three per cent and six per cent of bills succeeded. The record was 13 per cent.

They are split into three different categories, each with its own nuances and technicalities. There are Ballot Bills, Presentation Bills, and Ten-Minute Rule Bills.

Easily the most successful of these are Ballot Bills. Of the seven Private Members’ Bills to be granted royal assent in the 2019-21 session, all began life at the ballot. 

It’s got to do some good, it’s got to be pretty short, and not cost anything

In contrast, since the start of the 1988 session, 925 Presentation Bills and 883 Ten-Minute Rule Bills have been introduced to Parliament. Only 16, less than one per cent, have made it all the way.

There is a caveat to that statistic – one that highlights an important aspect of the legislative process. 

Abolition of the death penalty
The rising tide that had lifted tolerance to sexuality was sweeping across the social landscape of Britain. Around the same time the practice of capital punishment came under question. Was it really right in a “society claiming to be civilised” that criminals were still put to death? Especially when, as one of the leading lights of the movement, MP Sydney Silverman, sought tirelessly to show, so many were executed having been victims of travesties of justice. One of the founders of the National Campaign for the Abolition of Capital Punishment, Silverman had actually tabled a Private Members’ Bill furthering the cause in 1956, which only fell after being defeated in the Lords. It took another nine years, and the passing of the Murder (Abolition of Death Penalty) Act 1965, to put a stop to the death penalty for good. The executions of two prisoners on 13 August 1964 were to be the last ever carried out on British soil.

Many bills that originate from the backbenches are taken over later by governments swayed by their power and popular appeal, or simply embarrassed into action by them. Even more are in truth “hand-out” bills allocated by whips to backbenchers, which Barry Sheerman, Labour MP for Huddersfield, has described as a “government bill once-removed”.

One member with direct and freshly-remembered experience of the process is Wera Hobhouse, Liberal Democrat MP for Bath. In March 2018 Hobhouse tabled the presentation bill that would later be taken over by Theresa May’s government and become law as the Voyeurism (Offences) Act 2019, specifically making upskirting a criminal offence.

Speaking to The House, Hobhouse recalls the experience, which made headlines for an attempt by Christopher Chope, a fierce critic of Private Members’ Bills, to block the bill at second reading – ultimately, and ironically, securing its royal assent.

She says: “A lot of change legislation originated as Private Members’ Bills. They’re a way of forcing a government to think another way and campaigning on it.

“In the UK it’s the only way for the opposition to put their own ideas forward.”

But Hobhouse is frank that even her almost universally-supported upskirting bill was precarious, as are all Private Members’ Bills.  

“They are ultimately very fragile things,” she says. “They rely on good will, and the good will of government. Behind the scenes there’s far more cooperation than you think. 

“[The system] is very flawed in many ways. One objection will make something fall. It’s crazy.”
Negotiating such a complex legislative pathway became something of a specialism for former Labour MP for Hendon and London Assembly Member, Andrew Dismore. 

He is the record-holder for the longest parliamentary speech of the 20th century, 181 minutes long – to defeat an opposition Private Members’ Bill. And, he tells The House, he once took a sleeping bag and camped overnight outside the Public Bill Office to ensure he was first in line to table a Presentation Bill the next day.

Dismore has personally seen through to the statute books one of only 11 successful Presentation Bills since 1988 – an Act securing the return of items stolen from European Jews by the Nazis – and assisted colleagues with several more. 

He was also instrumental through the tabling of a question to prime minister Tony Blair in securing the establishment of the Holocaust Memorial Day in the UK, highlighting another route backbenchers can use to influence change.

His advice to MPs considering using Private Members’ Bills is to be fully prepared, and to seek as much advice as possible.

“It’s really knowing the procedure back to front and inside out,” he says. “It’s got to do some good, it’s got to be pretty short, and not cost anything. 

“Most people don’t have a clue how to go about it. Someone I know ended up taking their own bill out because they didn’t follow procedure. Sometimes you just think, ‘That’s going nowhere’.”
It is sobering to think how easily the bills aiming to make upskirting illegal, or to protect the victims of stalking, or even, possibly, at one stage, to reverse the laws banning homosexuality, could have been among those which did go nowhere. 

MPs considering their own legislation should be inspired as much as they are warned by the lessons of those who took on this “formidable” quirk of democracy; this, in the words of Speaker Lindsay Hoyle, “real opportunity to affect true legislative change”. History is replete with examples of those who let that opportunity come to nothing.

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