The Terminally Ill Adults (End of Life) Bill – commonly known as the assisted dying bill – is now very unlikely to pass in this session. Its supporters have accused opponents of filibustering – a charge which they strongly deny. Lisa James looks at how delay tactics work in the House of Lords, where they have been used in the past, and what peers could do to stop individuals using procedure to block bills rather than allowing them to stand or fall on their merits.
Last week, the Terminally Ill Adults (End of Life) Bill – commonly known as the assisted dying bill – met its likely end, at least for this session. With the legislation around halfway through its already extended House of Lords committee stage, but nowhere near halfway through the amendments already tabled to it, government Chief Whip Lord (Roy) Kennedy of Southwark announced that no further time would be made available beyond the already scheduled dates. Consequently, the bill is almost certain to fall at the end of this parliamentary session, expected in May.
Increasingly, the bill’s opponents have been accused of filibustering – a charge they equally vehemently deny. Such accusations, when levelled in the UK parliament, tend not to concern the lengthy speechmaking familiar from, for example, the US Senate. Instead, they often refer to tabling unusually high numbers of amendments. But the alleged intent – to use procedural methods to effectively block a bill through continuous delay – is the same.
Because filibustering concerns intent, it can be difficult to identify with certainty. One person’s cynical obstruction may be another’s earnest effort to apply thorough scrutiny to inadequate legislation. Accusations of filibustering may reflect honest frustration with game-playing opponents, or be an attempt to delegitimise much-needed scrutiny.
The purpose of this post is not to adjudicate on whether filibustering has taken place on the Terminally Ill Adults (End of Life) Bill. Instead – with alleged filibustering in the House of Lords once more in the headlines – it will assess the aspects of Lords procedure that make delaying tactics viable, describe some examples of their past use, and ask what pressures for change they may lead to.
House of Lords procedure and obstruction
Procedure in the House of Lords differs to the Commons in some key ways. The two Houses operate under different principles: crucially, the House of Lords is a self-regulating chamber. This means that the Speaker has comparatively limited powers; instead, peers are collectively expected to apply and enforce the rules of the House.
There are also some important differences in bill procedure. Notably, the House of Lords does not use programming for bills. In the House of Commons, programming is common for government bills (though not for private members’ bills such as the assisted dying bill, which can fall through lack of time). Timetabling takes the form of a programme motion, which is moved immediately after second reading and sets fixed endpoints for the bill’s remaining stages. Any amendments which have not been considered when the deadline is reached are simply lost. In the Lords, stages end only when all clauses and amendments have been considered. The length of stages is therefore flexible: the more amendments that are tabled, the longer a bill will take.
Amendments are also dealt with differently. Commons procedure gives the Speaker the power to select amendments (i.e. to decide which of the amendments tabled can be proposed), and group them by topic (with the Deputy Speaker taking this role in committee of the whole house, and the committee chair in public bill committees). In the Lords, there is no selection of amendments, and grouping is ‘informal and not binding’, negotiated between party whips and the members who tabled the amendments.
This means that the simplest approach for peers seeking to delay legislation is to table large numbers of amendments, and refuse or minimise grouping.
Recent examples
Government bills and private members’ bills (PMBs) can both be subject to delay as a result of the flexibility of Lords procedure.
In the current parliamentary session, peers have accused one another of filibustering on several government bills. Notably, the House of Lords (Hereditary Peers) Bill had to be given substantial additional time after peers (mainly from the Conservative Party) tabled large numbers of amendments – prompting accusations of filibustering from the bill’s supporters. Peers have also made similar accusations over the Football Governance Bill and Great British Energy Bill.
PMBs – which do not benefit from whipping, and have less claim on the legislative agenda – are at greater risk of being lost altogether. The Assisted Dying Bill 2014 – a predecessor to this session’s bill – fell after large numbers of amendments were tabled and it became clear that the bill would run out of time; Lord (Bruce) Grocott’s bill to end hereditary peer by-elections fell in 2016 for similar reasons (as did its successor in the 2017-19 session); the Hunting Trophies (Import Prohibition) Bill 2023 fell after opponents refused to group amendments for debate.
Current options to limit delay
The self-regulating nature of the House of Lords means that frontbenchers are expected to take the lead in preventing obstructive behaviour by their backbenchers. If frontbenchers are unable or unwilling to do so, the House has relatively few tools at its disposal to limit delay.
Two PMBs passed during 2019 illustrate these mechanisms. In March and September that year, the House of Commons passed the so-called Cooper-Letwin and Benn-Burt Bills. Each mandated the government (first of Theresa May, and then of Boris Johnson) to seek an extension to the Article 50 negotiating period in the event that a Brexit deal was not approved by parliament by a specific deadline.
In the Lords, the bills’ supporters moved ‘business of the house’ motions, to make time for the legislation to be debated (and, contrary to usual procedure, to allow multiple stages to be taken in the same day). Very unusually, the Benn-Burt Bill’s business of the house motion also fully timetabled the legislation in order to prevent delay. Multiple amendments were tabled to both business motions. Facing the risk of the business motions being talked out – and the bills themselves falling as a consequence – supporters resorted to the use of a ‘closure motion’. This rare procedural device allows for debate on an amendment to be halted, and the amendment to move straight to a vote; six closure motions were approved on the business motion for each of these two bills.
As a tool for preventing obstruction, closure motions have important limitations. They are intended to be a last resort (enough so that the Lord Speaker must make reference to the mechanism’s exceptional nature when it is put to the House). And they would not work as a regular tool for getting legislation through or for dealing with very large numbers of amendments: debating and voting on the six closure motions on the Cooper-Letwin Bill took around seven hours.
Though closure motions are unusual, the use of timetabling for the Benn-Burt Bill was even more so. Two senior clerks, writing in a specialist journal (pp.55-91), called this ‘a radical departure from the norms and practice in the House of Lords’, and suggested that it set a precedent: ‘the door is now open, if thought necessary, for a Government or Opposition to table another programme motion’.
Consequences
Frequent accusations of filibustering levelled by peers against one another can only harm the reputation of the House of Lords. Recent months have seen these allegations made in the media, and being widely discussed by campaign groups as well as peers. A perception that members are using procedural tactics to frustrate legislation, rather than engaging in honest scrutiny and allowing measures to succeed or fail on their merits, risks damaging public views of the upper chamber – particularly where it concerns a high-profile bill such as that on assisted dying.
The House of Lords has long been conscious of the responsibilities imposed by self-regulation. A 1999 committee noted that ‘[w]ithout a high degree of courtesy and self-restraint, self-regulation will become unworkable, and the freedoms which enable the House to do its job will be forfeit.’ In hustings during the recent election period for a new Lord Speaker, the winning candidate Lord (Michael) Forsyth of Drumlean emphasised the importance of ‘people in this House… behaving sensibly about using the freedoms that we have to table amendments, to degroup amendments and other things, and doing so in a responsible manner’.
If self-restraint is seen to fail, pressures may grow for procedural change. This would be difficult, and controversial; both of the key options for change (discussed below) would materially impinge on the principle of self-regulation.
The first would be the greater use – or threat – of programming of legislation, building on the precedent provided by the Benn-Burt Bill. In practical terms, this could only be used relatively sparingly (i.e. only on occasions when the government, or bill’s proponents, could assemble a majority in support of a timetabling motion).
The second would be a shift in the House of Lords’ approach to amendments. This could, for example, see the Lord Speaker take on some similar powers over the selection and grouping of amendments to those exercised by their Commons counterpart. Such a move was proposed by some when the post was being created, though a Lords committee which considered the role shortly before its creation dismissed the idea out of hand: ‘the question is not a choice between regulation and self-regulation… The question is how we make self-regulation effective.’
There is currently little appetite among peers for changing Lords procedures, and legitimate concerns about what may be lost by doing so. But, if suspicions of filibustering continue, and self-regulation is seen to be no longer working, change may become increasingly hard to resist. One option might be for the House to ask a committee to look into the recent operation of self-regulation, and consider whether any changes would be desirable to support its better working.
About the author
Lisa James is a Senior Research Fellow at the Constitution Unit.