It will take political will to make Parliament better at its most important job – scrutinising legislation
Parliament is a core institution of the state because its assent is necessary for a measure of public policy to be the law. It is its capacity to say no that renders it a powerful body.
Before giving assent, it serves to scrutinise a bill to ensure that its purpose and its provisions – the end and the means – are appropriate and as good as they can be. This is at the heart of what it does. It is not only its most important task, but also the one where it is arguably at its weakest.
Scrutinising a bill effectively has always been a challenge in a House of Commons dominated by a government with a working majority. The House of Lords has been more effective, given different procedures as well as its political composition (no government majority) and the experience and expertise of its members. However, in recent years, the challenge facing both chambers has becoming greater. There are several reasons for this.
One is the “something must be done” approach of government. A problem hits the headlines. The government promises to tackle it by legislation. A bill is quickly drafted. The result is legislation that is rushed and may not actually be necessary. The haste is exemplified by government introducing a swathe of new provisions late in a bill’s passage. If introduced at report stage in the Lords, for a bill that was a Commons’ starter, there is little opportunity for MPs to consider the changes. The fact that they may not be necessary is illustrated by the sheer number of provisions on the statute book never given effect. They constitute what I have characterised as “law, but not law”. A study by the House of Lords Library found that more than 480 Acts passed between 1960 and 2020 had at least one section or schedule not yet completely in force.
Rushed bills can be big bills, putting pressure on parliamentary time, especially when introduced in close proximity to one another. A different pressure derives from a power-grabbing tendency by ministers. They want power to act quickly and as unencumbered as possible. This has led to the greater use of Henry VIII powers and skeleton bills. The former empower ministers to amend primary legislation though the use of secondary legislation. Skeleton, or framework, bills are measures drafted in outline and confer powers on ministers effectively to fill in the detail later. Their use has been deplored in reports by the Lords’ Delegated Powers and Regulatory Reform Committee and Secondary Legislation Scrutiny Committee. They argued that their use may conceal a growing tendency to draft bills before thinking through the underlying policy. As Baroness Cavendish of Little Venice said in opening a debate on skeleton bills, the cumulative effect of these powers is corrosive. She concluded that laws that affect our lives and rights should not be made by bypassing the very institutions which are supposed to be a check on power.
The list of problems is illustrative rather than exhaustive. Is there a solution? There are various reforms worth pursuing, including the creation of a Legislative Standards Committee. However, no reforms will make a difference without the political will to make them work. Unless members of both Houses are prepared to use their existing powers, ministers will continue to engage in power-grabbing practices that reflect laziness and a failure to think through policy. Good government requires an effective Parliament.
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