18th May 2023
Over at The House Magazine – in effect, parliament’s in-flight magazine – there is a thoughtful and informative article by Dr Alice Lilly entitled The Slow Death of Parliamentary Scrutiny.
One merit of her piece is that is looks at other long-term and structural reasons for the difficulties parliament have in scrutinising draft legislation – that is, other than the obvious one that any government does not want to be scrutinised.
And although ministers and their media supporters often play-act about the undemocratic House of Lords, it is plain that the government is increasingly relying on the upper house to save the government from itself in the legislative process.
Peers are now doing the tidying up of bills that really should be done before legislation is even presented to parliament.
And, in turn, departments, are seeking to shove more through by means of unscrutinised secondary legislation.
In essence: the House of Commons is becoming an ornament – though not a pretty one – rather than an instrument of the state.
But.
Although the problem can be stated, it is less clear what – if anything – could be the solution.
Scrutinising legislation is dull, thankless work – and so, unless it is made a well-resourced priority for active members of the the House of Commons, then the natural tendency will be for politicians to do other things.
And one can take for granted that ministers (of any party) and officials will seek to avoid scrutiny if they can.
Abolishing – or restricting – the House of Lords would cause more problems, unless such a change was part of a broader package of fundamental parliamentary reform.
The current situation is far from ideal – and it may be unsustainable: for there is only so much one can expect from members of the House of Lords.
Yet unless Members of Parliament make scrutiny of legislation a priority – and insist to ministers and departments that enough time is provided for scrutiny, and also insist on there being proper resources in place for that scrutiny – then it may be we have a worsening problem without any likely solution.
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I believe this is a problem of tempo. As in, who sets the tempo sets the game. Whitehall and HoC have there roots in traditional change that take many layers of approval. The world of the interweb does not. Approval is sought after the change in interweb land. Move fast & break things. So to stay relevant, the above institutions find themselves trying to emulate the tempo set by what they see on their phones. Which has the scrutiny of drunk ex.
It’s never been clear to me why the qualification for making laws is winning popularity contests in the first place. The process of selecting debaters by periodic rounds of ad-hominem mud slinging is a really poor way to do things if you want reason and rhetorical skill to be the principle tools your parliament employs. Our political people have made a business of being professional fomenters of infantile tribalism for the explicitly stated objective of getting elected. Actually making good laws is completely subordinated to earning electoral ‘likes’ these days. Perhaps the whole thing should be made a tourist attraction along with the King and we should head towards a system where constituencies are obliged to return people selected by a periodic process of sortition? This way those selected could at least focus on the job they are paid to do and would actually be a representative group. Which sort of amateurs do we want making interesting laws for our lords and legal system to untangle?
‘And one can take for granted that ministers (of any party) and officials will seek to avoid scrutiny if they can.’
Not entirely fair. I’ve worked with colleagues and Ministers all of whom respected the Parliamentary process and were keen to engage with it. But the scope to make concessions often was limited by business managers, who wanted to railroad through the legislation regardless of merit.
That said, public bill committee can be depressing, with government backbenchers told by the whips to (in effect) keep quiet and get on with constituency business, and opposition backbenchers failing to get any traction on Ministers who don’t want, aren’t allowed, or can’t comprehend, to admit to any shortcomings.
It would seem to me that here is a potentially useful application for AI – if only in a first instance. Just saying…
The new prevalence of SPADs is unhelpful, I feel. SPADs are likely to egg on the wilder, more eye-catching legislative proposals of their ministers without concerning themselves overmuch whether these are likely to work or compromise other legislation.
Career civil servants might be much more willing to point out the dangers of what was proposed and its drafting flaws BEFORE their minister had committed himself / herself to the latest daft idea.
As a lawyer you will know that fine tooth combing anything is laborious and often boring work. As a former academic I did it everyday of my working life. The reward comes when you find something no one else has spotted a major flaw in a tried and trusted theory, a gap in the impervious evidence in an argument.
So it is with politicians, finding the flaws in a piece of proposed legislation or proposed policy in a Green Paper, can be rewarding for the scrutineer…..but unless he is a member of the opposition he can expect no thanks from his party for telling the world about the flaws in their legislation or policies – quite the reverse. So for that reason the party in power don’t scrutinise proposed legislation or policy. It falls on the opposition parties to do that work d because in a majority government the chances of overturning a policy are practically nil – e.g. the Illegal Immigration Bill has so many flaws and contentious issues it should be a gift to the opposition, and yet there is very little serious opposition to this bill in the lower chamber – enough they vote with their feet and consider their duty done.
One model that already exists is the ”independent” OBR, which scrutinises economic policy and is allowed to pronounce on it when proposals are submitted to it Truss and Kwarteng refused to do that to their eternal cost, they knew better, except they didn’t.
But why not a similar body for Health and Social Care, for Defence, for Education etc etc. Just a thought.
Can’t read the Politics Home article – can’t get rid of the cookie accept button.
Following Betteridge – no. I seem to recall that the main problem with making legislation is building in the loopholes without them being too obvious up front.
I suppose the first problem is that it is hard to make a silk purse out of a sow’s ear. If the fundamental intention of the legislation is rubbish then it will take a lot of hammering and paintwork to make it look nice.
The next is that one might need a very long and broad experience of the background to legislation to understand the implications of change. Such people probably have better things to do than sit poring over papers they know are fundamentally flawed and are designed not to do very much and operate in a very tangled ecosystem. So leave it to the apprentices then chuck it upstairs.
Then if I were an MP I might want to spend my time climbing the greasy pole and in making money – APPGs seem to be the thing. My MP appears to have made circa £50K and is invisible as well as useless to constituents.
I don’t think you can improve scrutiny without looking at the whole system. The 2019 election seems to have brought in some particularly brain-dead MPs, but I may be remembering previous generations with excess generosity. If parties are selecting MPs only on the basis of loyalty, or delegating it to constituency parties dominated by headbangers, you won’t get high quality MPs. It is arguable that FPTP for single seats amplifies this, as electors can’t differentiate between a diligent representative from their favoured party and a publicity-seeker lacking the cognitive skills necessary to make a positive impact in Parliament. Could Parliament change its procedures to help? Possibly. If MPs were willing to refuse a second reading to half-baked legislation, Departments and business managers might introduce better legislation. But the existence of a revising chamber probably guarantees that the Commons will just do the yah-boo politics of a Bill rather than thinking about whether it is operationalisable.
Part of the problem may be the desire to legislate too much. I believe it is possible to be more discerning in what really requires a legislative basis and to ensure that sufficient time and effort is spent on scrutinising and understanding how powers are, in fact, used. This is particularly true in relation to regulatory matters. Too much reliance on legislation means that regulators’ remit and powers lag behind developments in their sector. Far better, surely, to have a framework that enables the remit to be expanded where necessary, following meaningful consultation and with full accountability through select committee scrutiny.
Agree, Kate, but I think what the MPs and their parties are after is “performative” gains.
Enacting laws LOOKS like you’re making a difference and righting wrongs. It also gives MPs something comfortingly busy to do. The worst thing about becoming an MP must surely be the horrible sense of paralysis and futility experienced when MPs do genuinely try to sort out the political, economic and social evils they see – and realise they can’t.