The Slow Death of Parliamentary Scrutiny
One of Parliament’s core roles is to scrutinise policy and legislation. Dr Alice Lilly from the Institute for Government finds that with a Commons that has limited time to look at bills in detail, and an overworked second chamber, it is struggling to do its job properly. Illustrations by Tracy Worrall
Parliament is not renowned for rapid reform of its working practices. Usually, change happens slowly, the product of reviews, reports, and debate. Perhaps that is why the temporary changes made during Covid – the furthest-reaching, quickest changes in Parliament’s recent history – have had such unexpected effects on a core part of its job: effective scrutiny of the government.
Concerns about how well Parliament can fulfil its scrutiny role are hardly new. But speak to Members in both Houses and from across the political divide about scrutiny and it is striking how quickly the lingering effects of Covid come up. Effective scrutiny of government is underpinned by a complicated web of procedure, culture, and resources—among both ministers and parliamentarians. To many inside Westminster, Covid has weakened this web in ways that are both new and distinctive—and that has worsened longer term problems. The result is a Parliament struggling to meaningfully scrutinise government policy and, above all, legislation.
Generally, Members agree that adopting a hybrid system in Parliament during the pandemic was better than the alternatives. Parliament could at least still meet, debate, and vote. But the procedural changes that working via Zoom required were not conducive to good scrutiny. The standard of debate was “quite poor”, says Tim Loughton, a Conservative MP since 1997. He points to call lists and a lack of interventions and follow-up questions, as encouraging “formulaic, set-piece speeches” rather than the usual back-and-forth debate. His Labour colleague Meg Hillier agrees. There was less real debate during hybrid working, says Hillier, and instead a “series of three-minute speeches”.
This limited the ability of Members in both Houses to tease out the details of government policy. “Being online favoured the executive,” says Lord Norton, a long-time expert on Parliament’s ways of working. “Ministers could have greater control over the flow of information,” with the temporary procedures making it harder for MPs and peers to test how robust that information was or dig into tricky details.
The Lords has always been the revising chamber, but it is increasingly also trying to tidy up legislation
Most of these procedures were temporary, meaning that the immediate problems that they posed for scrutiny have gone. But they have had a lingering cultural effect, especially for the 140 MPs – over a fifth of the Commons – elected just months before Covid struck. The new intake had little opportunity to get used to how the House worked before they were suddenly operating in a completely different environment. This was a particularly acute problem given that, as Hillier points out, there is little real training for MPs. Members tend to learn on the job how to ask effective questions, follow debate, or pick up on the elusive sense of the House.
The inability to do this during Covid has continued to shape the approach of at least some MPs to scrutiny. Newer members are more likely to make contributions or ask questions in a way designed to score political points rather than probe for information or weaknesses, say more experienced MPs. The incentives of social media add to this, as contributions can be clipped and posted on Twitter. Of course, campaigning and making noise on an issue can be a form of scrutiny—but more experienced MPs say it seems to be the first resort of some newer members, and is one that is less conducive to detailed assessment of government proposals.
Covid has also had a practical effect on MPs’ workload that has persisted. Data on constituency casework is hard to come by, but MPs from different parties and areas of the UK consistently report that Covid was a step change, dramatically increasing the demands on them and their staff. Karen Bradley, chair of the Procedure Committee, says that during Covid MPs often acted as a “first triage” for constituents wanting clarity on the latest rules or needing help accessing support schemes.
The more recent cost of living crisis and public service backlogs mean that rising demand hasn’t abated. As one parliamentary staffer recently wrote for The Constitution Society, “we are tired, stressed, and overworked.” Staffers and the MPs they work for have to juggle rising amounts of often complex casework alongside their other duties. This presents a huge practical challenge –despite additional funding from IPSA to help Members better resource their offices.
For MPs, casework inevitably comes first—understandably so, given the direct impact it has on constituents’ lives. But beyond this, priorities will depend on the size of their majority, the kinds of work voters will value, as well as personal interests and expertise. And here the detailed work of scrutiny – especially legislative scrutiny – can lose out. As Hillier highlights, MPs can’t easily point to their work scrutinising a bill when talking to voters on the doorstep. Lord Norton puts the problem even more bluntly: “who watches a public bill committee?”
Select committees are also not immune from this problem. While it can be a bit easier for MPs to talk to voters about their membership of a committee, there still tends to be little recognition for the scrutiny work this involves. This – and MPs’ workload – contributes to the vacancies that some committees struggle to fill. And it’s why some select committees, including the Public Accounts Committee chaired by Hillier, as well as the Home Affairs Committee, on which Tim Loughton sits, are trying to allow Members to take more responsibility for specific inquiries. “It’s a chicken and egg scenario,” says Loughton, where MPs will be more attracted to the scrutiny role of committees if the value of that work is more visible to people outside Parliament.
As well as its distinctive effects on culture and workload, Covid has also further heightened longer-term barriers to effective scrutiny, in terms of how government acts and the ways in which parliamentary procedures support this.
Government has got increasingly used to legislating at speed, limiting time available to the Commons to examine bills in detail. At times this resulted from crises either external or of the government’s own making: the passage of the EU Withdrawal Agreement Act 2020 in under a month, or the Covid Act 2020 within just five sitting days. But this kind of crisis legislating has encouraged ministers to move quickly on other legislation that is less clearly an emergency, says Dr Ruth Fox, director of the Hansard Society.
They are legislating before the policy and evidence base is nailed down
The most obvious recent example is the Illegal Migration Bill, which the government called “vital” and fast-tracked through Parliament. It was allotted just two days in Committee of the Whole House – a maximum of 12 hours – limiting how long MPs could speak for on a complex and controversial bill. At the bill’s combined report and third reading stage, says Loughton, he had just a few minutes to speak to the several amendments that he had tabled.
In part, this kind of strict timetable in the Commons is enabled by programme motions, introduced back under New Labour. Lord Cormack, who has spent time in both Houses, reflects that when he was an MP prior to programming, it was not uncommon for bill committees to hold 40 or more sessions. Under programming – and with reforms to make the Commons’ hours more family-friendly – there tend to be fewer. And though committees can take evidence on bills, this doesn’t always happen. Research by my colleagues at the Institute for Government, in conjunction with the Bennett Institute at Cambridge University, found that only 27 per cent of bills in the last five sessions were examined by a committee that took oral evidence – in part because of the number of bills going to Committee of the Whole House. Even when bill committees do take evidence, says Loughton, there is also no formal requirement for them to draw on the expertise that a relevant select committee may have amassed.
This is why many in the Lords feel they are increasingly picking up slack from the lower House. It is doing the detailed scrutiny of legislation that “the Commons doesn’t have the time nor the political will to do,” says Lord Norton. Lord Cormack agrees, highlighting the number of prolonged, late-night sessions in the Lords. Analysis shows that in the first four months of 2023, the upper House sat beyond 10pm 16 times—roughly once every four sitting days. The Lords has always been the revising chamber, but it is increasingly also trying to tidy up legislation.
The lack of time available in the Commons – and the greater burden this puts on the Lords – is a further problem because of what is, and isn’t, contained in legislation. There has long been concern about the use of skeleton bills, which according to Fox are “more skeletal than ever”. Placeholder clauses are increasingly found in bills, with ministers subsequently laying dozens of amendments at committee and report stages. “They are legislating before the policy and evidence base is nailed down,” says Fox, forcing MPs and peers to scrutinise legislation where its full details are far from clear. This isn’t helped by late production of supporting documents: the Illegal Migration Bill cleared the Commons before its impact assessment was even due to be published.
Skeleton bills also increasingly delegate powers to ministers. These powers, and the limited options Parliament has for meaningfully scrutinising them, have long been a source of concern to parliamentarians. But Covid – and Brexit – are seen to have made matters worse. Ruth Fox highlights how both these events required government to quickly take large-scale powers – creating a “ratchet effect” for future legislation. And there is a suspicion that ministers are increasingly keen to use secondary legislation rather than primary: the Windsor Framework, for example, was given effect via an Statutory Instrument (SI).
A 2021 report by the Lords Secondary Legislation Scrutiny Committee (SLSC) on how the government uses delegated legislation was titled Government by diktat, while another report by the Delegated Powers and Regulatory Reform Committee spoke of democracy denied. Debating the report in the Lords, the DPRRC’s chair Lord Blencathra summed up the committee’s view: “far too often primary legislation is just skeletal, with all the details filled in by secondary legislation, which may get little or no scrutiny at all.” In its 2022 response to both reports, the government argued that some bills require relatively extensive delegated powers, and that it is ultimately “for Parliament to debate and either agree, disagree or amend” the powers contained in primary bills.
Procedurally, the options that MPs and peers have to meaningfully scrutinise secondary legislation are extremely limited. They cannot amend it, meaning there is little incentive to engage with it. And when SIs are debated, there are time limits. Karen Bradley points out that during Covid, debates on regulations with far-reaching consequences for people’s everyday lives were limited to a maximum of three hours. More recently, the Windsor Framework was debated for just 90 minutes.
The last time that the Commons successfully blocked secondary legislation was in 1978; the Lords in 2015. But this is not because secondary legislation is of consistently high quality or making only limited technical changes that are uncontroversial. A February 2023 report by the Lords SLSC, pointed to by Fox, found that week’s SIs had an error rate of 35 per cent, with ministers having to lay instrument to correct errors in previous ones. Instead, scrutiny procedures are so inadequate that government knows it can clear them.
So where does this leave Parliament? Scrutiny – and high quality, effective scrutiny – does exist. But it is increasingly hard to enact properly. Long-term issues with procedure have been worsened by the crises of recent years – and the pandemic has had lingering effects on the scrutiny culture of Parliament, exacerbated by MPs’ heavy workloads. While the culture of the next Parliament may be different, the longer-term procedural and resource constraints on scrutiny will remain. And for all that governments like to rhetorically welcome scrutiny, it is hard to imagine that any government would willingly facilitate procedural changes that actually subject them to it. A new Parliament, though, would offer a good moment to ask whether Members have the resources – and ability to develop skills – that they need to pursue effective scrutiny.
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