Last week’s opposition day debate in the House of Commons about Gaza and Israel was overshadowed by a bitter procedural row over the Speaker’s selection of amendments. But the rules governing opposition days – and their role in allowing these arguments – are not straightforward. Tom Fleming discusses the procedural background and implications.

The background

Last week saw a House of Commons debate about a ceasefire in Gaza and Israel overshadowed by a bad-tempered row about the Speaker, Lindsay Hoyle, selecting an amendment from the Labour Party.

This debate came on an ‘opposition day’. There are 20 such days in each parliamentary session, when MPs can debate motions put forward by opposition parties rather than by the government. Of these, 17 are allocated to the largest opposition party in the Commons (currently Labour), and three to the next-largest, which is currently the Scottish National Party (SNP). Last Wednesday’s debate was on an SNP motion calling for ‘an immediate ceasefire in Gaza and Israel’.

Usually when the House debates motions, MPs can propose amendments to them in advance, and the Speaker selects which of those amendments will be debated. MPs then vote on the selected amendments before voting on the final motion (incorporating any successful amendments).

If this usual practice were followed on opposition days, it could mean opposition parties’ proposals regularly not getting voted on. This is because any government amendment is highly likely to pass, after which MPs would only be able to vote on the amended motion, not the original proposal. In acknowledgement of this, government amendments on opposition days are voted on after the main motion. In contrast, any non-government amendment selected would be voted on before the main motion. But it is a long-established convention that when a government amendment has been selected, no further amendments are chosen.

The controversy

At the start of Wednesday’s debate, Lindsay Hoyle announced that he had selected two amendments: one from the government as expected, but also one from Labour. This meant the first vote would be on Labour’s amendment rather than the main motion, so was immediately criticised by the SNP.

The Speaker defended his decision as allowing the House to consider the ‘widest possible range of options’ (though this didn’t extend to him selecting the Liberal Democrats’ proposed amendment). However, achieving that goal would depend on the Labour amendment being defeated, so that the SNP motion could then still be voted on in its original form. This initially seemed likely, as the government could be expected to oppose Labour’s proposal. However, once the government withdrew from proceedings – ostensibly in protest at Hoyle’s breach with convention – the Labour amendment became almost certain to pass.

This was the point at which the Commons erupted into an unedifying row about the Speaker’s decision, which has been widely covered elsewhere. His decision has been variously criticised as undermining the rights of small parties, showing partisan bias toward Labour, caving in to pressure from Labour, or responding to the threats and intimidation facing some MPs over their position on this issue. While these reflect legitimate concerns, the row also included a fair amount of disingenuous party politics, as Hannah White has rightly highlighted. The Speaker later apologised for his decision, and claimed he had been motivated by fears about threats to MPs’ safety.

The crux of this dispute was that by selecting both a government amendment and an opposition amendment, the Speaker had not followed established practice. This was made clear in a letter sent to Hoyle by the Clerk of the House (and published under a procedure that Hoyle had himself introduced).

Why was the Speaker’s decision possible?

Many observers of Wednesday’s arguments will have come away with the impression that Lindsay Hoyle ‘broke the rules’. But the reality is a bit more nuanced, because House of Commons procedures come in various forms. Some of them are codified in the House’s formal rules, known as its Standing Orders. But others instead come from more informal precedents and conventions which supplement the Standing Orders and guide their interpretation. The Speaker therefore has some discretion over how far to conform to established practices, within the constraints of the Standing Orders.

This mattered last week because the rules on amendments to opposition day motions stem partly from Standing Orders, and partly from established practice. Standing Order 31(2) establishes the procedure discussed above, whereby government amendments on opposition days are voted on after the main motion. This provision was added to the Standing Orders in 1979, precisely to ensure that opposition day motions could be voted on without government amendments superseding them.

However, the Standing Orders say nothing about whether other amendments can be selected on opposition days, or when they should be voted on if so. This means that the Speaker is technically free to select other amendments, which must then be voted on in the usual way, i.e. before the main motion. Nonetheless, as discussed above, the convention is that no other amendments will be selected when there is also a government amendment to be considered. Non-government amendments have been selected on previous opposition days (including an SNP amendment in 2016), but only rarely, and never alongside a government amendment.

The Speaker’s decision therefore departed from conventional practice, but did not actually contradict the House’s Standing Orders. Important informal precedents were broken; formal rules were not.

This distinction was understandably lost on many observers and – less understandably – some MPs. For example, the SNP Chief Whip, Owen Thompson, claimed the following day that ‘convention and the Standing Orders of this House were overruled’. In a similar vein, though focusing on the Labour Party, the Conservative former minister Ben Wallace criticised it for seeking ‘to override standing orders’.

Procedural implications

When announcing his selection of amendments, the Speaker also said he would be asking the House of Commons Procedure Committee to consider the operation of Standing Order 31, as it ‘reflects an outdated approach that restricts the options that can be put to the House’.

Any such review may not be completed in the limited parliamentary time remaining before the next general election, as committee inquiries can take several months and MPs’ attention will increasingly turn to their constituencies as polling day approaches. Nonetheless, others have highlighted that it might still be an opportunity to address the long-standing complaint that the House of Commons lacks adequate procedures for considering multiple different options (rather than a binary vote on a single proposition). The committee might also consider other ways of amending Standing Order 31 to allow multiple amendments to be voted on after the main motion on opposition days.

If MPs do not wish to change the existing procedures, they might adopt the more modest goal of clarifying them. In particular, the committee might explore the case for codifying existing practice fully in the Standing Orders rather than the current mixture of formal codification and informal precedents. This could mean amending Standing Order 31 to more explicitly regulate whether, and how, non-government amendments should be considered on opposition days.

Codifying and clarifying existing practice in this way could help the Commons avoid a repeat of last week’s scenes, by reducing the Speaker’s discretion to make similar decisions again on opposition days (although the backlash against Hoyle already makes such decisions unlikely in the near future). If there is a widespread view in the Commons that no amendments should be voted on before the main motion on opposition days then there may be little downside to saying so explicitly in the Standing Orders.

Of course, a common defence of relying on past precedents rather than strictly codified rules is that flexibility allows the Speaker to adapt procedures to new and possibly unexpected circumstances. So any amended Standing Order would need to be carefully drafted to be compatible with various parliamentary situations. In particular, it should reflect the possibility of a future hung parliament in which the relationship between government and opposition, and between opposition parties, could be very different. Whatever approach is taken, any effective reform of opposition days will need to look beyond last week’s controversy and focus on establishing procedures which are built to last.

About the author

Tom Fleming is a Lecturer in British and Comparative Politics at UCL. He is currently leading the Unit’s ESRC-funded project ‘The Politics of Parliamentary Procedure’.

Featured image: Prime Minister’s Questions – 31 January (CC BY-NC-ND 2.0) by UK Parliament.