The length of modern legislation means that the effectiveness of parliamentary scrutiny is often compromised

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.

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The policy power of the Westminster parliament: The empirical evidence

Meg-Russell

The UK parliament continues to be dismissed as powerless in many academic and popular accounts. Drawing on a large body of quantitative and qualitative research conducted over more than 15 years, a recent article by Meg Russell and Philip Cowley argued that the Westminster parliament is in fact an institution with significant policy influence. Meg Russell summarises here.

In the study of public policy, legislatures tend to be portrayed as relatively weak institutions. This applies to the UK parliament in particular. The classic comparative view associates the Westminster model, of which the UK is seen as the emblematic case, with centralised executive power and an acquiescent legislature. Assumptions of Westminster’s weakness are not, however, confined to comparative scholars or to the recent past. In a 2011 article Matthew Flinders and Alexandra Kelso traced gloom-laden statements of British parliamentary powerlessness back over a century and more. Meanwhile, a public policy textbook published in 2012 reflected the view of many scholars in the field when stating that ‘Despite the name “parliamentary democracy”, the parliament plays only a limited role in decision-making in the British Westminster model’ (p. 139).

Yet in recent years scholars specialising in the study of the UK parliament have found evidence of significant parliamentary influence on the policy process. This may in part be due to changes in parliamentary structures and behaviour, but also simply result from more exhaustive research approaches. I have contributed to this literature through my work on the House of Lords, and the policy impact of the Westminster parliament. Professor Philip Cowley has also contributed greatly, particularly through his work on the Commons. In a recent article in the journal Governance we drew these various strands together – using four large quantitative data sets, complemented by more than 500 interviews with key parliamentary and government actors – to demonstrate that Westminster’s influence is both substantial and probably rising. We conclude that parliament’s critics make two key mistakes – by concentrating largely on the decision-making stage of the policy process, and focusing almost exclusively on visible parliamentary impact (e.g. government defeats on legislation). We broaden the focus to take into account both visible and less visible impact, with a particular interest in anticipated reactions. Our arguments are summarised in this post.

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McKay Commission Report: Parliament on the Sidelines … Again

28th March 2013

In a couple of earlier posts (here and here), I looked at the creation and operation of the McKay Commission on the West Lothian Question, criticising the fact that it was set up unilaterally by the Government, despite dealing with a core issue of parliamentary procedure.

Sadly, its newly-published report confirms this executive-centred approach to parliamentary reform.  The key section entitled ‘next steps’ (paras 248-9) contains phrases like “We envisage that the Government would first make an assessment of our proposals and put before the House..” and “When the House has expressed its views, we suggest that the Government should move for a select committee to advise the House on the details..”

Announcing publication of the report on 25 March, ministers said: “We will consider seriously and constructively this report and provide a substantive response to it in due course.”

The initial response from parliamentary officers and committees was ….. [fill in the blank].

Presumably Parliament is expected, as usual, to sit back quietly and wait for its executive masters to work out how it should operate.  The idea that one of the Commons’ select committees dealing with House matters (given the current Political & Constitutional Reform Committee’s inquiry into the ‘Wright Committee reforms’, we currently have 2 of them, ie it and Procedure Committee) should do a brisk inquiry into the subject of WLQ and the McKay Report, independently of Government’s own deliberations, is presumably far too revolutionary for the current House.  Ditto for some sort of initiative of this sort by the Speaker.

Or perhaps they will surprise us all?

Press release: Constitutional Changes to feature strongly in Queen’s Speech

The Black RodThree constitutional items will almost certainly feature strongly in the coming session of Parliament: Lords reform, Scottish independence and changing the rules of succession. Lords reform is the biggest, and threatens to overwhelm the rest of the legislative programme, and cause big tensions between the coalition partners.

Lords reform faces massive opposition in both Houses’ said the Constitution Unit’s deputy director Meg Russell.

The bill may fail: ‘We know the reform proposals are opposed by the Lords itself, but there is so much resistance among Conservative MPs in particular that the bill may fail to get through the House of Commons’, Meg Russell added.

It risks completely dominating the parliamentary session, she suggested. ‘Committee stage of the bill must be taken on the floor of the Commons and could take six weeks or more. Lords reform risks being for Cameron what the Maastricht bill was for John Major: this took 23 days on the floor of the House in committee alone, and saw numerous painful rebellions. At the bill’s Second Reading the rebels will seek to defeat the programme motion on its timetabling. If they succeed, the government will lose control over timing completely – but even if they fail, the bill may still be lost’.

There are numerous issues over which the plans may fall apart: ‘Simply to win the programme motion the government may need to concede a referendum on reform, which Nick Clegg doesn’t want. But defeats in the Commons are also likely on the powers of the Lords, the proportion of elected members, the electoral system, the proposed 15 year non-renewable terms, and the presence of the Bishops. Once MPs get hold of it, the bill may suffer a death of a thousand cuts’, Dr Russell concluded.

Scottish independence will also loom very large. The UK and Scottish governments will start negotiating in the summer and autumn about how to legislate for the independence referendum. The UK government wants there to be a single question, just on independence; while Alex Salmond will hold out for a second question, on Devolution Max. If they cannot agree the UK government may withdraw its offer to legislate for the referendum at Westminster, throwing up the risk that any referendum authorised by the Scottish Parliament is open to legal challenge.

Changing the rules of succession to the throne is much less contentious. To give a lead to the other countries where the Queen is head of state, the UK will want to legislate soon to remove the rule of male primogeniture, that sons come before daughters, and to remove one element of the discrimination against Catholics, that any heir to the throne who marries a Catholic is removed from the line of succession. (Catholics themselves and anyone else not in communion with the Church of England will remain barred from succeeding.)

Notes for Editors

  • For interviews, please contact the Unit’s Press Officer Brian Walker on 07802 176347 (williambrianwalker@gmail.com) or the Unit’s Administrator on 0207 679 4977 (v.spence@ucl.ac.uk).
  • The Constitution Unit is an independent and non-partisan research centre based in the Department of Political Science at University College London http://www.ucl.ac.uk/constitution-unit/

The McKay ‘West Lothian’ Commission: Two Cheers?

In a post last month on this Blog (here) I looked at the new McKay Commission on the West Lothian Question, and especially at its status and operation, given that it  was set up, and is sponsored, by Government, not Parliament. It argued that, despite this provenance, to have any credibility and utility it needed to demonstrate independence, openness & transparency, and real public and parliamentary engagement. This includes a genuinely open evidence-taking process, and transparency through, for example, a live website and an initial ‘consultation paper’.

The Commission met for the first time in late February, and it seems some of this minimum agenda has been adopted. For example, there is now a website – note the word ‘independent’ in the address, akin to that of the Silk Commission on devolution in Wales, a similar Government established and resourced commission. It is, at this early stage, a bit thin, but potentially it can be used as the engine of its operation in much the same way that the impressive, content-rich Silk Commission site has developed.

The crucial tests are those of openness & transparency and of genuine, evidence-based engagement with public and parliaments. For example, the Cabinet Office press release on 17 January suggested that the Commission “will be expected to call experts to give oral or written evidence.” The website front-page now invites “submissions and enquiries from those with an interest or views on the West Lothian question”, though its 2 March press release (hands up, all those who spotted this!) is a bit more engaging, stating that “the Commission is keen to hear from those with views on the subject of the West Lothian question” and quotes its Chair, Sir William McKay, as saying that “the Commission had a productive first meeting and will be meeting again soon to develop its thinking and initiate arrangements to progress its work.”

Does this mean that it is starting with a genuinely blank sheet of paper, within the terms of its remit, or that it is to be largely expert-driven, with a veneer of public engagement? We must hope the former, ie not just ‘transparency’ (“look, but don’t touch”) but genuine ‘openness’. That requires a more positive and engaging approach than has been suggested thus far – again the Silk Commission (and earlier devolution inquiries like Calman or Richard) can provide a model to learn from. If the Commission is not in a position yet to issue a consultation or ‘issues & questions’ paper, as a focus for its inquiry, it could state that it intends to do so, as a prelude to formal evidence-taking or public/parliamentary consultation.

That the Commission requests submissions by 13 April is potentially concerning, unless this is just intended to be a preliminary phase, prior to a more formal consultation/evidence-gathering process which includes the public. However, the Commission said on 2 March that its next meeting will be in late March and “it is planned that evidence will be heard by the Commission in April, May and June. Dates and locations of forthcoming meetings will be published through the website over the coming weeks in March.”

There remains the thorny issue of the extent of its remit. Even apart from what ministers say is expected to be excluded (especially devolution funding and Commons representation), the Commission needs, initially, to set out very clearly and openly how wide or narrow it sees its terms of reference. Will they include, for example, ‘Sewel Convention’ aspects, or inter-parliamentary relations? Will they take account (and if so, how?) of the three devolution ‘settlements’ as being dynamic processes, as with the current Scotland Bill, the Silk Commission and the looming Scottish Independence Referendum, so that their proposals are adequately flexible and robust to accommodate conceivable developments in the coming years?

So, two cheers for now, and a hope that the third cheer will be soon deserved.

The West Lothian Commission: getting it right from the outset

The recently announced McKay Commission on the West Lothian Question has the potential to be a significant factor in the constitutional and political development of the UK.  Whether it makes things better or worse will depend a lot on how it goes about its work.  The initial omens are not good.

The Commission derives from the May 2010 Coalition Government agreement to “establish a commission to consider the ‘West Lothian question’”, itself derived from a similar pledge in the Conservative manifesto, and a more general one in the Liberal Democrat manifesto about the place of England in any new constitutional arrangement.  The Government’s thinking, as it developed, was set out in Parliament by Ministers, culminating in the announcement on 17 January.

I and others have already commented on the narrowness of the Commission’s remit, and its prospects for ‘success’, however that is measured.  These are important issues, because, for example, if its report is seen to be timid because of its inherent restrictions, it could inflame rather than quell the claimed resentments inEnglandabout the current situation.  Not to mention the possibility of it being largely overtaken by any move towards Scottish independence….

The recent announcement said that the Commission will begin its work this month, and it is understand that the members will meet for the first time over the next few weeks.  As far as I can see, no further details have been released.  So, perhaps there is still time for a few suggestions on its structure and operation:

Sponsorship: The Commission is described by Ministers as “independent” and “non-partisan”.  Be that as it may, it is wholly a Government exercise, supported by Cabinet Office staff – albeit with, according to Ministers, some initial consultation with House authorities.  Sadly, but wholly true to form, the idea that such a Commission, solely examining Commons procedure and practice, should actually emanate from Parliament rather than Government is, almost literally, unthinkable to the Westminster/Whitehall political and media classes.  It is probably too late for such a fundamental change, but, at the very least, the sponsorship of the Commission should be shared equally by the House and the Cabinet Office, including resourcing and staffing support (the Cabinet Office probably still has a senior Commons Clerk on secondment to liaise on parliamentary issues).  The Commission should report to both the Speaker and the Deputy Prime Minister.  Its contact details, including website, should reflect its independent status, and not be seen as a Government outpost.

Public Engagement:    The Commission should operate at least as openly and inclusively as we now expect from such an independent, expert public sector inquiry. Westminster, following the lead of Holyrood and the other devolveds, is becoming more ‘publicly engaged’, so any reform inquiry should, at worst, match the openness of a Westminster select committee – a fairly undemanding standard.  The ministerial announcements make no mention of this, so the implication is that it is to be an exclusive, private inquiry, engaging solely with “experts” (as last month’s announcement put it).  What is needed includes an accessible website containing all relevant information and scope for interactivity; the early publication of a consultation paper or ‘issues & questions’ paper on which to invite evidence and comments from the public; public sessions (ideally all around the UK), and interim reports describing the Commission’s thinking.  There may well be scope for ‘private seminars’ and similar standard inquiry devices where discussion can be free and frank, but these should complement, not replace, public evidence-gathering and operation.

Parliamentary engagement:  There needs to be formal engagement, in an open and transparent manner, with the House of Commons at all levels.  Quiet words with selected officials, committee chairs, whips and the like through the ‘usual channels’ may still be seen as acceptable parliamentary practice at Westminster even today, but it is not good enough for such an important inquiry. Even the narrow remit of the Committee engages the interests of the House authorities, its various committees, party groups, individual Members and others.    Similar engagement should take place with the UK Government, and the devolved parliaments/assemblies and administrations, which all have genuine interests in the Commission’s work. The thorny issue of the Sewel Convention – a relevant parallel to the West Lothian Question, from a legislative procedural perspective – was eventually dealt with reasonably clearly some years ago, when parliamentary committees north and south of the border finally cooperated openly to tackle it.

Whether the Coalition Government’s aim in setting up this Commission is to ‘solve’ the West Lothian Question or to kill it off as a running sore, the more legitimate the Commission is seen to be by the public and politicians alike, in terms of its structure and operation, the better chance, however slim, of some sort of positive and productive outcome.