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Tue, 26 January 2021

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The argument for giving Parliament greater legislative scrutiny

The argument for giving Parliament greater legislative scrutiny

Government business always has priority, and it’s governments with big majorities who effectively run Parliament, writes John Stevenson MP. | PA Images

4 min read

Governments should not be afraid of greater legislative scrutiny. By doing this we will get better government, a better Parliament – and most importantly, better policy.

The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, is one of the most egregious abuses of Parliamentary power by the executive in recent British history.

It is often the small issues which highlight a larger problem – and for me this was a real eye opener. Under the guise of coronavirus, the government has used the Electronic Communications Act 2000 to allow wills to be witnessed remotely.

This change will have long-term negative consequences. It is not the specific details of this change that shocked me, but the way it was brought about. The change was implemented with little or no consultation, is retrospective, and cannot be properly challenged in Parliament.

Much is often made about the importance of Parliament's role in holding the government to account, scrutinising legislation and challenging the decision of Ministers. The reality is often very different. Parliamentary procedure favours the government of the day. The Leader of the House – who determines the business – is a member of Cabinet. Government business always has priority, and it’s governments with big majorities who effectively run Parliament.

This is demonstrably the case with primary legislation. In Committee, the government always has a majority, all of whom are chosen by the Whips. Although there is line-by-line scrutiny of Bills, just look at how many amendments are usually made at this stage.

Once the Bill returns to the floor of the House, all non-government amendments are rejected. Whilst all government amendments are incorporated into the Bill – often with little or no debate.

At least primary legislation has these stages. For secondary legislation, the most common form is the Statutory Instrument (SI) – the power for Ministers to rule by decree.

A government with a substantial majority tends to take less notice of Parliament. This is now happening at a time when Parliamentary scrutiny is needed most

Increasingly legislation is ‘enabling’, which gives greater power to the government. When SIs are proposed, no amendments are permitted. An affirmative SI goes to Committee where it can be debated, but no amendments added. It is simply passed or rejected. But a negative SI doesn’t even go to a committee. This is what was used to make a fundamental change to Will-making legislation nearly 200 years old. This may have been exacerbated by emergency Covid legislation and the way that government has implemented it, but Parliament has been like this for a long time.

The Wright Committee – established to improve the procedures and relevance of Parliament – began reform, but it is clear another fundamental review is urgently required. 

Circumstances have been different over the past 10 years, as we have had a coalition government, small majorities, and even no government majorities. Under these circumstances it’s clear a tilt toward the executive is needed, or legislating would become an impossibility.

As we are discovering now – just as with Labour in the 90s – a government with a substantial majority tends to take less notice of Parliament. This is now happening at a time when Parliamentary scrutiny is needed most.

There are simple changes that could make a real difference. For example, the Leader of the House could become accountable to the House alone, instead of a member of government.

There could be a system of standing committees for Bills – and greater independence in the membership of such committees, as with Select Committees now.

SIs should have the ability to be amended and negative SIs should require a proper debate, if say 20 or 30 MPs call for one.

It is becoming increasingly apparent Parliament needs substantial modernisation of its procedures, if it is to avoid becoming irrelevant in a more complex and informed world. Parliament needs increased scrutiny, the ability to challenge and improve government performance, whilst at the same time not preventing government from getting its basic agenda through.

Governments should not be afraid of greater legislative scrutiny. By doing this we will get better government, a better Parliament – and most importantly, better policy.

 

John Stevenson is the Conservative MP for Carlisle.

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