A new Constitution Unit report by Meg Russell, Hannah White and Lisa James, published jointly with the Institute for Government, provides a menu of constitutional reform options ahead of political parties’ manifesto preparation. Its chapters appear on this blog throughout August, with this second excerpt identifying potential changes to parliament.

Recent years have seen significant tensions over the role of parliament, which came under particular pressure over Brexit and Covid. There have been concerns about declining standards of scrutiny, and parliament has yet to adapt fully to the new policy environment post-Brexit. There are long-standing concerns about the House of Lords, including over its size and the nature of prime ministerial appointments. Reforms could be very beneficial, to improve governmental accountability, to avoid the government advancing poorly thought-through policy, and thereby to build trust in political decision-making.

Numerous proposals have been made for change, both by external experts and by parliamentary committees. There are some long-running concerns which could be resolved quickly and easily by ministers as ‘quick wins’. Various other changes would necessarily require a little more time and consideration. Some of these are naturally subject to government initiative (e.g. legislation), but various others are formally within the purview of parliament itself and would be dependent, for example, on reviews by parliamentary committees. These would nonetheless greatly benefit from cooperation by the government. Large-scale House of Lords reform is the most obvious proposal which is more disputed, and would require further work – and potentially significant consultation and deliberation – before being ready to be implemented.

Quick wins

• The government should publicly commit to allowing sufficient time for parliamentary scrutiny of primary legislation. In recent years (particularly after Covid) too many bills have been rushed through without adequate consideration by MPs, sometimes leading to reversals later. Likewise, substantial government amendments to bills late in their passage through both the Commons and the Lords, restricting scrutiny, have become too frequent. Changing these bad habits requires a clear commitment from government, which might be affirmed in a statement to parliament, and include tightening of the rules for the government’s internal Parliamentary Business and Legislation (PBL) committee.
• There have been widespread concerns about the overuse of delegated legislation, which allows little opportunity for any parliamentary input.  A straightforward commitment to improve this, by scaling back the use of delegated legislation for significant policy changes, and avoiding unnecessary use of ‘skeleton bills’ granting broad additional powers, would be a widely-welcomed first step. Constitution Unit research shows that public instincts are in favour of full parliamentary scrutiny, rather than the government being able to fast track legal change.
• Important changes can be achieved to House of Lords appointments via simple commitments from the Prime Minister, who retains significant personal power over the system. This should include a commitment to always respect the recommendations of the independent House of Lords Appointments Commission on propriety, and (in the first instance) to give it more powers to manage down the size of the chamber to no larger than the House of Commons, ensure that new seats are shared fairly between the parties, and exercise tighter control over the number and quality of appointments. There is clear public support for such changes; they would also be in line with repeated recommendations by the Lord Speaker’s Committee on the Size of the House, supported by the Commons Public Administration and Constitutional Affairs Committee.

Moderate changes

Time in the House of Commons

The government’s iron grip over the timetable of the House of Commons is unusual in international terms, and it caused major flashpoints both over Brexit and during the pandemic.  

• One key change would be to implement an outstanding recommendation from the 2009–10 ‘Wright Committee’, to allow the Commons to approve its own weekly agenda on an amendable motion, while maintaining appropriate protections for non-government business. Details have been set out in a recent Constitution Unit report.
• The same report builds on proposals from various others in support of the idea that House of Commons approval should be needed for dissolution and prorogation, and the chamber should be able to recall itself from recess.

The legislative process

Beyond the immediate ‘quick wins’ set out above, there is widespread support for further changes to cement and build further improvements in the legislative process:

• The government should agree to parliament’s creation of a legislative standards committee – as suggested by the Hansard Society and Lords Constitution Committee, among others – so that parliamentarians themselves play a part in agreeing that legislation is ready for introduction.
• The government should commit to publishing more legislation in draft form, for pre-legislative scrutiny and evidence-taking by expert select committees, as proposed by many bodies, including most recently the Institute for Government.
• The government should support improvements to House of Commons public bill committees, whichlag well behind the select committees in terms of permanence, expertise and evidence-taking. While merging the two sets of committees would be undesirable, the Constitution Unit and Institute for Government have made various suggestions.
• Wider-ranging reform of the delegated legislation process is overdue. This should include agreement of a new concordat between government and parliament to reset the boundary between primary and secondary legislation, as recommended by the Hansard Society. This might recognise a list of matters that should not be legislated for by delegated legislation, such as the creation of new criminal offences or public bodies. The Hansard Society has also made further proposals for an overhaul of the system.
• Finance bills operate differently to other legislation, with guaranteed parliamentary time and, by convention, no Lords scrutiny. However, Commons scrutiny of the annual Finance Bill can and should be improved, for example – as the Institute for Government, Chartered Institute of Taxation and Institute for Fiscal Studies have recommended – by using bill committee sessions to take oral evidence, improving liaison between the Treasury Select Committee, House of Lords Economic Affairs Committee and the Finance Bill Committee, and by increasing the specialist capacity on these committees to support members.
• There have long been complaints about the Commons’ private members’ bill system, which fails to incentivise well-developed legislation that can command cross-party support. A sensible package of reforms has been proposed by the Procedure Committee,  building on earlier recommendations by the Hansard Society.  This would, for example supplement the ballot scheme with a system allowing some PMBs to be selected on merit, possibly via the Backbench Business Committee. The government should support improvements to the private members’ bill process.
• Impact assessments provide crucial information to support parliamentary scrutiny of primary and secondary legislation, but their timeliness and quality can be patchy – as highlighted by the Regulatory Policy Committee. As the Secondary Legislation Scrutiny Committee has suggested, the government should commit to producing timely impact assessments of all kinds (regulatory, economic, equality, human rights, environmental) and always making them available on publication of legislation.

Scrutiny of internatinal agreements

There is a widespread view that existing scrutiny arrangements for international agreements are insufficient, in both their scope and their powers, in a post-Brexit environment.

• Capacity for treaty scrutiny should be increased in the House of Commons – in particular, a dedicated treaty scrutiny committee should be created to fill the gap left when machinery of government changes led to abolition of the International Trade Committee earlier this year.
• The current arrangements under the Constitutional Reform and Governance Act 2010 (CRAG) apply only to formal treaties, and allow MPs only to delay ratification. The Commons power of delay over treaties should be upgraded to a power of veto and scrutiny should be extended to significant non-treaty international agreements. These changes would be in line with recommendations by the Lords International Agreements Committee and Commons International Trade Committee.

House of Lords reform

Beyond the ‘quick win’ of immediate commitments on the quality, number and balance of House of Lords appointments, the following changes are desirable:

• The House of Lords Appointments Commission should be put on a statutory footing, to give it greater stability and enforceable powers. This should cement in legislation the changes proposed above, to give the Commission oversight of the size of and party balance in the chamber (according to a fair formula), and strengthened powers over quality and propriety of new peers. A version of this recommendation is currently being pursued via Lord Norton’s House of Lords (Peerage Nominations) Bill [HL].
• The same or a different bill could remove the remaining hereditary peers, either by ending by-elections to those seats and allowing them to lapse over time, or through abolishing the remaining 92 seats altogether, instead giving some of the most active hereditary peers life peerages. This would help enhance the public legitimacy of the chamber, as well as contributing to shrinking its size. Such action has been called for by the cross-party Lord Speaker’s Committee on the Size of the House, and in Lord Grocott’s House of Lords (Hereditary Peers) (Abolition of By-Elections) (No.2) Bill [HL].
• Faster progress on the size of the chamber could be achieved through an organised cross-party system of retirements, which might be agreed on a voluntary basis between the parties, or set out in legislation. The internal party elections to reduce the number of hereditary peers in 1999 provide a model.

Larger, more controversial reforms

The most significant large-scale parliamentary reforms which have been under discussion for many years, but are disputed, relate to the House of Lords. Most recently a commission chaired for the Labour Party by Gordon Brown proposed moving to an elected Assembly of the Nations and Regions. But these proposals do not amount to a detailed blueprint, and past experience over decades shows that wholesale Lords reform is extremely politically difficult. Such measures would require more consultation and negotiation before being ready to implement, particularly if they are to link convincingly to the devolved areas.

This is the second of five chapters to be published in blog form from the recent joint Constitution Unit and Institute for Government report Rebuilding and Renewing the Constitution: Options for Reform. The first – on the executive branch – is available here. Future posts will look at the territorial constitution, courts and the rule of law, and elections and public participation. A summary post marking the report’s publication is available on this blog, and the full report is available for download on the Constitution Unit and Institute for Government websites.

About the authors

Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit. 

Hannah White is Director of the Institute for Government. 

Lisa James is a Research Fellow at the Constitution Unit.