University 18 Yrs + | Parliament
UK Parliament – Controlling the Executive through Legislation
There are two types of Bills. Public Bills which apply universally, even though their impact may, in practice, be variable, and Private Bills which apply to particular areas or particular individuals or organisations.
Each session of Parliament the Government introduces and passes about 30 Public Bills. Individual MPs may be able to get a handful of their own Public Bills through and these are Private Members’ Bills.
These are limited in their effect. Before divorce law was liberalised rich people were able to get divorced by promoting a Private Bill through Parliament. Most now are promoted by organisations such as local authorities or harbour boards seeking extra powers. A small group of MPs considers them and objectors to the Bill can put their case.
MPs generally dislike going on Private Bill Committees because they take up a lot of time and provide little kudos. Approval for the Channel Tunnel was through a private bill and there was some concern that the procedure was being used to bypass what would otherwise be a more thorough, if lengthy, public inquiry process, however, HS2 ( High Speed Rail Programme) has been authorised through a public bill.
Public Bills go through a set procedure that, on the surface, provides detailed scrutiny of legislation.
- First Reading – Minister reads out the title and purpose of the Bill
- Second Reading – Debate in the Chamber on the general principles of the Bill
- Public Bill Committee –detailed examination of the Bill clause by clause by a group of 40 or so MPs and amendments made (older books will refer to this as a Standing Committee)
- Report Stage – In the Chamber, discussion of Committee amendments and can be further amendments
- Third Reading – In the Chamber, final amendments and Commons approval
- Lords – similar procedures – some less contentious Bills may start in the Lords and then go to the Commons
- Commons considers changes made by the Lords and can reverse them. If the Lords vetos the Bill the Commons can use the Parliament Act to reverse it as on hunting with hounds
- Royal Assent – formally signed by the Queen
English Votes for English Laws
The Conservative Government introduced, in 2015, a significant change to the process of agreeing legislation.
Devolution for Scotland and Wales revived what has been called the West Lothian Question, first raised by Tam Dalyell, the MP for that constituency, in the 1970s. English MPs no longer voted on issues that affected only Scotland or Wales or Northern Ireland as these had been largely devolved but Scottish and Welsh and Northern Ireland MPs voted on issues that affected only England at Westminster.
One solution to this problem would be equivalent devolution to an English Parliament which would choose an English Government but there has not been enough political support for this.
During the Scottish Referendum campaign, party leaders agreed further substantial devolution to Scotland and, as a result, David Cameron committed the Conservative Party to ‘English Votes for English Laws’ and put this into the Conservative 2015 general election manifesto.
This was carried out by the new Conservative Government in 2015, by a change in the House of Commons Standing Orders rather than by legislation, and basically provided that, while legislation still needed a majority of all MPs to pass the Commons, a majority of English MPs could veto the provisions of a Bill that the Speaker has ruled as relating only to England.
The first Bill went through the new process in January 2016.
Although EVEL is an answer to the West Lothian Question, several problems arise:-
- The Conservatives are strong in England but weak in Scotland and Wales. A situation could easily arise with a non-Conservative majority in Parliament and so a non-Conservative Government but with Conservative MPs in a majority in England. The latter could veto all Government legislation for England leading to political deadlock. A new Government could decide to change Standing Orders to prevent this.
- The Speaker’s decision on whether a Bill is English only could become controversial and so endanger the Speaker’s independence from political parties.
- This is the first time that a group of MPs have been prevented from voting on legislation. Critics of EVEL have said that it has created two classes of MPs.
The distribution of Government grant between England, Scotland and Wales is called the Barnett formula, after the Labour Minister who introduced it in the 1970s. Under the formula, grant to Scotland and Wales depends on the level of spending in England and so any Bill that involves the use of Government resources in England has implication for Scotland and Wales thus making it difficult to separate out English only Bills.
The New EVEL Process
The new system works in the following way:-
- The Speaker looks at all Bills and certifies whether their provisions relate to England only.
- All MPs can debate and vote on the Second Reading.
- Only English Constituency MPs will be on the Committee stage of the Bill, and will reflect the political balance of MPs elected for England.
- All MPs can debate and vote on the Report stage
- An English Grand Committee then considers the Bill, as it now stands, and can veto the Bill as a whole, or specific clauses in it. The Bill can go back to the Report stage with all MPs to see if a compromise can be reached, if there are disagreements, but if the English Grand Committee still vetoes any amendments made then these parts of the Bill cannot go forward.
- All MPs can debate and vote on the Third Reading.
If the House of Lords makes any amendments to the Bill, these have to be agreed by a majority of MPs and also by a majority of English MPs.
The same process applies to Bills certified by the Speaker as applying to England and Wales only. For finance bills, Northern Ireland MPs may also be included. Secondary legislation that comes before the Commons will also go through the new procedure.
What does this mean in practice?
In practice meaningful scrutiny is limited. The Second Reading is often a battle between Government and Opposition.
Tony Wright the former MP and Chair of the Public Administration Committee said that, when he was there during the New Labour period , this took the form of the Government proposing something, the Conservative Opposition attacking it for one reason and then the Liberal Democrat Opposition attacking it for a different reason without much constructive discussion overall.
The whole process is whipped so that the Government almost always gets what it wants.
In the last 30 years only one Government Bill has been rejected at second reading, the Shops Bill in 1986 which extended Sunday opening and met with combined opposition from Labour because of the effect on workers and Conservatives concerned about the religious implications.
The composition of Public Bill Committees are controlled by the Whips who are concerned to keep MPs critical of aspects of the Bill and even MPs who are knowledgeable of the topic off the Committee. Sarah Wollaston a new Conservative backbencher who had been a GP was surprised to be left off the Health and Social Care Bill Committee.
Backbench MPs realise they are there to vote through the Bill and, although it is not allowed to take books into a Committee, they are likely to have half an eye on their correspondence and papers that need reading.
The amendments in Committee that are agreed are from the Government because civil servants have realised at the last minute that clauses are badly drafted or because of interest group pressure.
Example: The Birds Eggs Regulations
Statutory Instrument 1487 in 2004 which amended the Wildlife and Countryside Act 1981 looked quite innocuous because there had been protection in British law for wild birds’ eggs since 1981 and it had been a criminal offence to take them from nests before that date.
The Regulations merely made small changes to bring British law in line with European law and there was no discussion in Parliament. But by amending the 1981 Act they made it retrospectively illegal to take eggs from 1954, when earlier legislation had come into being, to 1981. The curator of the National Museum of Scotland found that he had to start checking where their collection of 26,000 eggs had come from and a private collector and his family suffered a dawn raid by police. His solicitor followed up the issue by getting the government files on the regulations through a Freedom of Information request and tracked down the change as a drafting error. Finally the Government Ministry admitted the mistake.
The use of secondary legislation
Parliament is often effectively bypassed by means of secondary legislation.
Acts of Parliament have increasingly given ministers powers to issue detailed regulations at a later date. Much of this is in the form of statutory instruments. Some have to be approved by Parliament, others can be vetoed by Parliament and there is a Joint Committee of the Commons and Lords to look at problems with them.
The problem is the number, by the 1990s they were running at about 1800 a year and this has increased further with the Coalition Government to a record 3486 in 2014. MPs are only able to look at a handful each year.
Some Acts even contain what has been called ‘Henry VIII clauses’ which allow Ministers to amend legislation by statutory instrument rather than through the normal Parliamentary procedure.
Ministers have the power to issue guidance which does not have to be agreed by Parliament. Parliament debated the Coalition Government’s new National Planning Policy Framework, which had been very controversial , but did not have to approve it. Ministers may also issue, under the Royal Prerogative, Orders in Council which have the same effect as legislation.
Finally Parliament is consulted on draft European legislation by the EU. A European Scrutiny Committee looks at this and can recommend a Commons debate but, as with statutory instruments, the volume is considerable with some 1000 pieces of draft legislation and policy documents a year.
Although the dominant view is that Parliament has little influence on legislation because of Government control of procedures, the whipping system and the ability of the Commons to overturn Lords amendments, a different view is provided by Meg Russell, Daniel Gover and Kristina Wollterin Parliamentary Affairs April 2016.
Their arguments cover two areas:-
The Government is well aware that Parliament sets limitations on what they can propose. Parliamentary questions, Early Day Motions and debates give an indication of views of MPs and members of the House of Lords and Ministers will take notice, especially of their own backbenchers or key people such as the Chairs of Select Committees. Indeed, a civil service team produces a ‘handling strategy’ for each Bill which will outline which members of the Commons and Lords are interested in the topic, the issues they are interested in, what the Government’s response might be and what concessions could be made.
They looked at the amendments that were made to a selection of Bills between 2005 and 2015 and concluded that the significant changes that were made resulted from non-Government pressure. Select Committee views were influential and even though the Government might not accept an amendment from MPs, the points were often cleared with Government departments and introduced later as a Government amendment. They were able to point to changes on topics such as not introducing identity cards, corporate manslaughter and not selling public forests because of Parliamentary pressure.
Limitations leading to reform?
The limitations of Parliamentary scrutiny of legislation have led to ideas for reform.
The main change has been the introduction of pre-legislative scrutiny so that the draft of a Bill is published early and can be looked at by an all-party Committee of backbenchers and allows interest groups to appear before the Committee, which they cannot do with other legislation. This has been about three Bills a year in recent years largely those Bills on which there seemed likely to be a consensus. There is general agreement that the new system has been a success. However, Graham Allen, the Chair of the Political and Constitutional Reform Committee was unhappy that his Committee was not allowed to look thoroughly at the Fixed Term Parliaments Bill that had significant constitutional implications.
House of Commons Briefing Paper 05859 (2015) on Pre-legislative Scrutiny under the Coalition Government 2010-2015 gives details of the Bills that went through the process and the Liaison Committee Report reflecting on how successful it was.