Legislative Speed: On Money Bill Certifications

Any future government hoping to rapidly implement radical changes against the wishes of the existing establishment must consider the speed at which they can push legislation through Parliament, especially against a hostile House of Lords. Assuming the House of Commons being governed by a majority, what is the most damage the upper house can do in preventing the government from rapidly passing legislation, and what measures can be pursued by the government to challenge it?

According to the Salisbury Convention (Doctrine), the House of Lords should not oppose the second or third reading of a government bill which was included in the government’s election manifesto. As was shown during Brexit repeatedly, the Salisbury Convention is largely a dead constitutional trope when the House of Lords strongly objects to legislation. The Lords repeatedly blocked the government from passing its legislation which was included in its election manifesto, without substantive amendments, attempting to prevent Brexit. 

When attempting to make fundamental change, any future government should expect normal constitutional (non-binding) conventions to be pushed aside. 

According to the Parliament Acts, the House of Lords can delay a bill for a maximum of one-year, after which the government can send the bill to receive Royal Assent, without consideration to any upper house amendments. 

However, if the bill is certified as a Money Bill, then the maximum time the Lords can delay is one month. This is the most secure path for speeding up the passing of (financial) legislation, especially if the Lords is trying to block or make substantive amendments to the bill. 

A bill is certified as a Money Bill by the Speaker of the House of Commons after it has passed through all stages of the Commons, by the issuance of a formal certificate which is sent to the House of Lords by the Speaker. 

A “Money Bill” is loosely defined as a bill that in the opinion of the House of Commons Speaker is concerned only with national taxation, public money or loans. Most Money Bills are either Finance Bills (taxation) or Appropriation Bills (government spending / use of funds from the Consolidated Fund).

What is it, where does it originate, and why did it come to be?

The current legal understanding of the Money Bill certification and its special role in Parliamentary procedure, emerged after the controversial Finance Bill 1909 (also known as the People’s Budget) was rejected by the House of Lords which led to a constitutional crisis, two elections in 1910, and eventually the Parliament Act 1911 which limited the powers of the House of Lords to block legislation.

The Money Bill was legally defined in Section 1 of the aforesaid act. 

Section 1 of Parliament Act 1911:

Powers of House of Lords as to Money Bills.

(1) If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is not passed by the House of Lords without amendment within one month after it is so sent up to that House, the Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill.

(2) A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, the National Loans Fund or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In this subsection the expressions “taxation,” “public money,” and “loan” respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes.

(3) There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill. Before giving his certificate the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection.

In more common vernacular, Section 1 can be summarised thus:

Section 1(1) providing the restriction that the House of Lords cannot block a Money Bill from reaching Royal Assent for longer than a month.

Section 1(2) providing the definition for what constitutes a Money Bill. A Public Bill is certified as a Money Bill if in the opinion Speaker of the House of Commons it contains only provisions dealing with:

• Imposition, repeal, remission, alteration, or regulation of taxation.
• Charges on or payments from the Consolidated Fund or National Loan Fund.
• Appropriation, receipt, custody, issue, or audit of public money.
• Raising or guaranteeing loans or their repayment.
• Subordinate matters incidental to these financial provisions

Section 1(3) providing the method for the Speaker to send the certificate to the Lords, after consultation with two members of the Panel of Chairs (formerly Chairmen’s Panel). 

Note: it is interesting there is no formal request or motion for a bill to be considered for a Money Bill certificate.

Process for a Bill being Certified as a Money Bill

How does a legislative act become a money bill? Well, the timeline is intensive and the process deeply bureaucratic, as one might expect.

Bill Passes Through Commons Stages:

• The bill is introduced in the House of Commons and progresses through its standard legislative stages: First Reading (formal introduction), Second Reading (debate on principles), Committee Stage (detailed scrutiny), Report Stage (further amendments), and Third Reading (final approval).
• The bill is introduced as any public bill is to the House of Commons. No request for the bill to be considered as a Money Bill is ever made. All bills are up for consideration once they are introduced to the House of Commons, and are screened by parliamentary clerks.
• The bill must contain only provisions related to:
  • Taxation (imposition, repeal, remission, alteration, or regulation).
  • Public expenditure (charges on or payments from the Consolidated Fund or National Loan Fund).
  • Appropriation, receipt, custody, issue, or audit of public money.
  • Raising or guaranteeing loans or their repayment.
  • Subordinate matters incidental to these financial provisions, as defined in Section 1(2) of the Parliament Act 1911.

Initial Screening by Parliamentary (Commons) Clerks:

• During the bill’s passage through the Commons, pardddliamentary clerks, including the Clerk of Legislation or other senior officials, review its content to identify whether it potentially qualifies as a Money Bill.
• This preliminary assessment helps flag bills that meet the financial criteria, informing the Speaker’s office and streamlining the certification process.

Appointment of Two Members from the Panel of Chairs:

• At the beginning of each parliamentary session, the Committee of Selection (a Commons committee responsible for appointing members to committees) appoints two members from the Panel of Chairs specifically to assist the Speaker in Money Bill certification, as required by Section 1(3) of the Parliament Act 1911.
• The Panel of Chairs consists of experienced MPs who chair legislative committees, Westminster Hall debates, or other Commons proceedings.

Speaker’s Review of the Bill:

• After the bill passes its Third Reading in the Commons, the Speaker of the House of Commons assesses whether it qualifies as a Money Bill by reviewing its content against the criteria in Section 1(2).
• The Speaker typically seeks advice from parliamentary clerks, such as the Clerk of Legislation or Clerk of the House of Commons, to ensure the bill contains only financial provisions or incidental matters.

Consultation with Two Members of the Panel of Chairs:

• Before certifying the bill, the Speaker must consult, if practicable, the two members appointed from the Panel of Chairs, as mandated by Section 1(3).
• These members provide input on whether the bill meets the Money Bill criteria, helping the Speaker ensure the decision is procedurally sound and impartial.
• The phrase “if practicable” allows flexibility in rare cases (e.g., time constraints or unavailability), but in practice, this consultation is typically conducted.

Speaker’s Certification Decision:

• After reviewing the bill and consulting the two members of the Panel of Chairs (if practicable) and clerks, the Speaker decides whether the bill qualifies as a Money Bill.
• If the criteria are met, the Speaker issues a certificate, signed by them, declaring the bill a Money Bill. This certificate is a formal document stating that the bill complies with the Parliament Act 1911.

Endorsement and Transmission to the Lords:

• The Speaker’s certificate is endorsed on the bill when it is sent to the House of Lords, indicating its Money Bill status.
• The certificate is also endorsed when the bill is later presented for Royal Assent, ensuring the Lords’ limited role is acknowledged.

Lords’ Consideration (Limited Role):

• Once certified as a Money Bill, the House of Lords can review and debate the bill for a maximum of one month from the date it is received.
• The Lords cannot amend or reject the bill in a way that prevents its passage. If they fail to pass it unamended within one month, the Commons can present it for Royal Assent without Lords’ consent.

Royal Assent:

• If the Lords pass the bill unamended within one month, it proceeds to Royal Assent as normal.
• If the Lords delay or fail to pass the bill within one month, the Commons can invoke the Parliament Act 1911, presenting the bill for Royal Assent directly, bypassing the Lords’ objections.
• Royal Assent, granted by the monarch, is typically a formality, making the bill law.

Can the Great Repeal Bills be Money Bill certified?

No. They cannot. There are too many non-financial provisions. If a Speaker did certify the Great Repeal Bills as Money Bills, it would be against all advice given by the Clerk of Legislation (as well as other parliamentary clerks) and the two members of the Panel of Chairs, and would be nearly guaranteed to be challenged and subject to judicial review then overturned.

For those who say that money bills certification cannot be subject to judicial review they are likely incorrect. 

What if a Speaker is chosen by the government?

Could a Money Bill certification still be given? Could it be legally challenged and overturned?

In attempting to rig the process to ensure the Great Repeal Bills (substantial legislation with many non-financial provisions) qualify as Money Bills, a Speaker would have to be chosen who was going to certify the bills irrespective of the immense pressure from the general public, parliamentary staff, media, and explicitly against the advice he would likely be given by the parliamentary clerks and members of the Panel of Chairs. Even though a money bill certification has never been judicially reviewed or challenged since the Parliament Acts, it is incredibly likely it would be challenged and legally overturned.

Let's consider the following scenario.

1. A new “friendly” Speaker of the House of Commons is immediately chosen as soon as the new government comes to power.
2. The new Speaker immediately nominates “friendly” MPs to be members of the Panel of Chairs who will chair public bill committees, and two of whom are involved in a formal consultation for any money bill certification.
3. All Great Repeal Bills are passed through the House of Commons Stages: First Reading, Second Reading, Committee Stage, and Third Reading
4. Whilst the Great Repeal Bills have been going through the Commons, an initial screening of the Bills has been done by the Clerk of Legislation and other senior parliamentary clerks, to determine whether the Bills should be classified as Money Bills.
5. After the Bills reach their Third Readings in the Commons, the Speaker assesses each Bill to determine whether they qualify for a Money Bill certification against the criteria laid out in Section 1(2) of the Parliament Act 1911.
6. The preliminary assessment by the Clerk of Legislation and other parliamentary clerks is given to the Speaker as advice.
7. The Speaker must have a formal consultation with two members of the Panel of Chairs, who have been selected by the Committee of Selection at the beginning of the selection
8. The Speaker then determines that the Great Repeal Bills (with many non-financial provisions) should be money billed certified, and issues certificates formally stating that each bill complies with Parliament Act 1911.
9. The certificates are then sent to the House of Lords which indicate that each Great Repeal Bill is considered a Money Bill.

After these certificates are sent to the House of Lords, they will almost certainly be legally challenged. Grounds for judicial review will be based on: illegality; irrationality; procedural impropriety; breach of natural justice. The likelihood of judicial review is extremely high given the substantial number of non-financial provisions in each bill, despite parliamentary privilege and the principle of parliamentary sovereignty.

A similar precedent has been already established when the Supreme Court successfully overturned the prorogation of Parliament with the 2019 R (Miller) v The Prime Minister case.

A word to the wise

The Salisbury Doctrine is a non-binding convention which the House of Lords has shown it is willing to push aside, if they so choose. The Money Bill certification is unlikely to be a successful tool for pushing through any fundamental legislation which contains substantive non-financial provisions.

Other measures must be studied, such as the use of “guillotine” motions and specific delegated powers within specific secondary legislation, in order to speedily push through legislation against the establishment’s wishes.