In a new report published by the Centre for Policy Studies Daniel Greenberg identifies a number of trends that he argues are reducing the effectiveness of parliamentary scrutiny of legislation. In particular, he suggests that the length of modern legislation is becoming so great that significant parts of bills often receive no detailed scrutiny at all. Here, he summarises his report and suggests action that might be taken to help remedy the situation.
Recent parliamentary practice discloses a number of dangerous legislative trends that threaten the effective protection of the rule of law, by diluting parliament’s power and influence, and concentrating power in the hands of the executive in general and the civil service in particular.
The length of new bills and the number of clauses that they include has become ever greater over recent decades, and the result of portmanteau bills in particular is that even if parliament wanted to scrutinise them effectively it would be unable to do so. Over the past 50 years, the number of acts passed by governments has stayed approximately the same. However, the average number of clauses included within them has doubled.
It is still common to describe the committee stage of the examination of bills in both Houses as a ‘line-by-line’ scrutiny process; and parliamentarians on all sides of each House commonly refer to it in that way, and often congratulate themselves on scrutinising and refining bills at great length. The reality, however, is that the committee stage in particular has become diluted to such a degree that it can no longer be described as taking place in a consistent way.
It is true that the House of Lords in particular often spends a great deal of time and expertise considering a number of provisions of a bill, and improving them significantly; but there are often lengthy and significant parts of a bill that receive no detailed scrutiny at all at any point in its parliamentary passage, and that is particularly true of the modern ‘portmanteau’ bill that allows government departments to empty their filing cabinets of all possible proposals in a particular area of law or social policy (or sometimes in more than one area). Trespass was criminalised by a provision in a general criminal bill that received almost no serious scrutiny in either House, which is a particularly troubling thought; similarly, the Scotland Bill, to give a recent example, received overall scrutiny at the rate of less than half an hour per page in each House, which in reality meant that many pages of potentially considerable impact both on the constitution of the United Kingdom and on the lives of citizens passed without any scrutiny at all.
The number of amendments passed in the House of Lords in particular is sometimes cited as evidence of the degree of revision and improvement that takes place in that House: but the reality is that the vast majority of successful amendments are either tabled or supported by the government, and say more about the half-baked state in which bills are introduced than about parliament’s ability to change government policy.
In my report for the Centre for Policy Studies I rehearse these and other problems that threaten the effective rule of law in relation to legislation, drawing on an earlier and more detailed article. My report suggests that publicity could offer at least a partial solution to some of the problems discussed. In particular, I suggest that by focusing attention on the adequacy of scrutiny, renewed pressure would be placed on ministers (and other parliamentarians) to prioritise it.
For example, procedural motions in the House of Commons limiting debate which were once the exception (in the form of allocation of time or ‘guillotine’ motions) have now become the norm (in the form of programme motions). Guillotine motions were forced by the government on the opposition in the interests of forcing through unpopular policy to which the government was committed. Today, programme motions are basically consensual, agreed between the front benches of all sides, and show that all parties are either colluding in the reduction of parliament’s scrutinising role or have simply given up all hope of resurrecting it.
My report proposes the introduction of two new elements to the legislative process.
The explanatory notes for each bill and act should record the scrutiny given to the legislation in each House; they should also record incidences of certain powers for subordinate and quasi-legislation that undermine parliamentary control; this information should be consolidated into a yearly review, which would be debated in both Houses of parliament.
The aim and predicted result of the specific publication proposed is to focus minds on the adequacy of scrutiny. Those who believe that for the most part existing scrutiny is adequate and effective (and there are some such) would acquire data to support their view. But if there is a problem, parliamentarians and others would be able to see the size of it, and bring pressure to bear on ministers both to limit the size of bills so as to permit effective scrutiny and to organise bill programming and other parliamentary arrangements for the same purpose. Internally within government, because of the sharper public focus on the adequacy of scrutiny, business managers would then exert pressure on departmental ministers to limit the size and number of bills. Although the effects of that would necessarily be limited and frequently outweighed by political drivers, any constraining effect would be a good thing in itself, as it would serve the deregulatory agenda, reduce industry and other compliance costs associated with changing legislation, and make the government think harder about whether new primary legislation is really necessary. The aim is for there to be less legislation; and for the legislation that is enacted to be better scrutinised.
This report would also be an opportunity for the government to clarify what use had been made of the wide powers for supplementary provision or for quasi-legislation mentioned above. This would facilitate general scrutiny of the use of these mechanisms and allow parliament to reassure itself that they were being used in line with the purposes for which they were stated to have been required, and in a proportionate and generally appropriate way. The report might also include information on what provisions had been commenced in the previous year, and what provisions remained to be commenced. At one stage the government came under pressure to publish regular details of the legislation that was enacted but never brought into force; and for a while that was done. But there is no longer a regular and systematic publication of information on this key rule of law, and the yearly reviews on the legislative process would be an opportunity to revive and formalise the practice.
It would be the responsibility of government to produce the yearly review; and this responsibility could be accepted by a collective decision of the cabinet, probably taken after discussion in the Legislation Committee, without requiring legislation or a change in the procedures of either House. In order to ensure that the report was confined to the provision of raw data, the same approach could be applied as to explanatory notes to bills (from which most of the information would be compiled): they would be prepared by the government and published by the two Houses, with it being the responsibility of the clerks to satisfy themselves that the report was confined to facts and information and did not include argument or justification.
The measures proposed in my report would require neither legislation nor procedural change to implement. They involve creating no new expensive committees or other mechanisms. Their implications for public finance are limited to a small amount of civil service time taken in including additional information in notes already available.
No business of any size would allow its board and shareholders to take strategic decisions without the inclusion in its end-of-year report of detailed information about its progress and activities in the past year: parliament, which is in the business of controlling the lives of citizens through a range of legislative activities, should feel the need to ensure that both it and its citizen-shareholders are properly informed.
Daniel Greenberg’s full report for the Centre for Policy Studies, Dangerous Trends in Modern Legislation… and How to Reverse Them, can be downloaded here.
About the author
Daniel Greenberg is a lawyer specialising in legislation and the legislative process. He served in the Office of Parliamentary Counsel from 1991 to 2010.