By stewartb

The Director of the Institute for Government (IfG), the London-based think tank close to the ‘establishment’ of Westminster governance (look up its board of directors), has recently (13 March) published an article on Westminster’s parliamentary practices entitled:

‘Illegal Migration Bill highlights how expectations of legislative scrutiny have plummeted – Expectations of parliamentary scrutiny of legislation have dropped over the past decade.’

(https://www.instituteforgovernment.org.uk/comment/illegal-migration-bill-legislative-scrutiny)

This is a worrying trend in any parliamentary democracy. It is of course an ironic situation in a democracy that as recently as 2016 voted for Brexit in order to ‘take back control’ to the UK parliament. For us in Scotland, whilst we remain in the Union and dependent on Westminster’s decision making, this is as concerning as it should be for a UK citizen anywhere. But for Scotland there are added dimensions: our representation in the House of Commons is very small compared to England’s (and due to become smaller) and we are governed now as so often before by a political party a majority of the Scottish electorate reject. 

Here are some of what the IfG’s Director has stated (with my emphasis):

On controversial new legislation to overhaul the UK’s asylum system: ‘The government has said that it wants to rush this legislation onto the statute book and its proposed timetable for the scrutiny of the bill reflects this. The bill will spend two days in Committee of the Whole House (CWH) before having its third reading and being sent up to the Lords ….’  

‘This sort of timetable is not untypical of the way parliament has legislated in recent years. But the way parliament has legislated in recent years is atypical considered in historical context.’ 

She notes: ‘Less than a decade ago, expectations of the scrutiny that a major policy bill of this sort would undergo – particularly one on a controversial subject like immigration – were radically different. It was normal for this sort of legislation to be considered over a period of weeks with parliamentarians genuinely engaged in the detail of what was proposed: the Criminal Justice and Immigration Act 2008 underwent detailed scrutiny in 24 committee sittings, the immigration Act 2014 had  11 committee sittings and received 66 pieces of written evidence and the Immigration Act 2016 had 15 committee sessions and received 55 written pieces of evidence.’

By way of contrast: ‘The government’s timetable implies that the Illegal Migration Bill will receive 12 hours detailed scrutiny. In practice this is not true. CWH is a format poorly suited to detailed scrutiny – unlike in public bill committee, clauses, schedules and amendments have to be discussed in large groups, opportunities for detailed discussion and decision on specific proposals are limited and ministers do not need to respond in detail to all the points made in debate. Because voting takes up time, any questions pushed to a vote cut at least 15 minutes from debate. And, unlike in public bill committee, there is no opportunity for evidence taking and there are no pauses in between committee meetings to allow MPs time to reflect. CWH is suited to wide-ranging debate, speech-making and – frankly – grandstanding.’ 

Storing up problems

The IfG Director acknowledges that this approach to scrutiny (or lack of it) may suit a government wishing to raise the profile of a flagship policy, to demonstrate to the public that ministers are acting with urgency and, she adds: ‘cynically – minimise the time available for opposition to contentious provisions to materialise.’

‘But the legislation is likely to be significantly the worse for it. Detailed scrutiny of legislation is invaluable for highlighting problems with drafting, spotting unintended consequences and identifying potential problems with the implementation of policy proposals – all concerns that have been raised in expert and political commentary about this bill.’  

A creeping change in Westminster to our detriment

The IfG’s assessment is that ‘events of the past eight years have radically changed expectations of what is normal when it comes to parliament’s role in creating new laws.’ It acknowledges that Brexit and Covid ‘created imperatives to legislate quickly’ that may have been justified.

However the present circumstances are different: ‘This is not a crisis in the normally understood sense of a pandemic or a war. There is no legal imperative to legislate – in the way there occasionally is when parliament legislates in response to a court judgement or on behalf of the suspended NI Assembly. Nor is there any shortage of time available for scrutiny in the parliamentary calendar – the legislative programme has been light for weeks.’ 

The IfG identifies something that is becoming embedded in Westminster: ‘The reality is that our current generation of ministers have got used to the apparent benefits of legislating at speed. They have forgotten the downsides. And MPs generally – one third of whom have joined the House since 2017 – have lost institutional memory of what used to count as adequate scrutiny.‘

Stuck in a Union in decline

The IfG’s warning is sobering: ‘The UK’s legal system shapes the lives of UK citizens – and in this case the lives of desperate people who may – or may not – have a justifiable case for seeking asylum in this country. When the government wants to change that system it has a duty to allow parliamentarians the time and opportunity to scrutinise its proposals – to challenge them, to enhance them or to spot unforeseen problems.

‘And parliamentarians should reassert their right to such opportunities. If they do not do so, a marked decline in the quality of law-making will be amongst the most serious long-term consequences of the pandemic and, ironically, of aspirations – through Brexit – to return legislative control to parliament.’

It’s unacceptable having the existing democratic deficit. However, if the IfG’s assessment is right – that ‘expectations of legislative scrutiny have plummeted’ in Westminster to the detriment of quality law-making – then the need for constitutional change, to take back control to our Scottish parliament in Holyrood, becomes even more urgent! We can do – we must do – so much better!