Dr Ruth Dixon of the Blavatnik School of Government, University of Oxford, who was a Parliamentary Academic Fellow in 2018–19, discusses the efficacy of parliamentary scrutiny during 2016-2017. The post was originally published on the House of Lords Library blog but has been kindly shared with the PSA Parliaments group.
An academic fellowship with the House of Lords Library allowed me to analyse the 2016–17 parliamentary session—my study was published as a Library Briefing Note last July. In retrospect, 2016–17 may have been the last ‘normal’ session that we can expect for some time. In this post, I explore what we might learn from that session in these unusual times.
The 2016–17 session was not without incident, of course. In June 2016, Prime Minister David Cameron resigned following the EU referendum. In April 2017, Cameron’s successor Theresa May unexpectedly asked Parliament to agree to hold a general election. MPs voted for the election and ended the parliamentary session about a month early. Nevertheless, with a small Conservative majority, the government’s legislative programme was more-or-less complete by that time and the session ended in an orderly way.
Subsequent sessions have been far more turbulent. Theresa May lost her majority in the 2017 election and failed three times to win parliamentary support for her EU withdrawal agreement. After May’s resignation, Boris Johnson became Prime Minister. The subsequent election of a majority Conservative government in December 2019 could have led to a return to more familiar parliamentary politics. But as we know, the coronavirus pandemic has meant that Parliament is now operating under decidedly abnormal conditions.
Lessons from the 2016–17 session
So how can the 2016–17 session inform the current situation? I believe it offers two main lessons.
First, we can see how Parliament reacted to an unexpected event, the announcement of the 2017 general election. Of course, a ‘snap’ election is not unprecedented but this one took legislators and officials by surprise, both because the Prime Minister was understood to have ruled out the possibility and because the Fixed Term Parliaments Act 2011 was meant to make such elections less likely. Nevertheless, Parliament showed how quickly it could adapt its procedures and timetables to complete the government’s programme in the five sitting days remaining—the so-called ‘wash-up’ period. Legislation was drafted to enable local taxes to be collected in the absence of a Northern Ireland Executive and to allow appointment of ministers should Stormont be reconvened while the Westminster parliament was suspended. The Government compromised on its massive Finance Bill, cutting it to about a fifth of its original length. Just three government bills were lost, though they were already expected to be carried over to the following session had there not been a general election. Time was also made for conventions to be observed such as farewell speeches from long-serving MPs, one maiden speech, and tributes to retiring MPs and officials.
Second, Parliament did not simply act as a ‘rubber-stamp’ either during wash-up or before it. One or more stages of nine government bills were debated across the two chambers during wash-up. The Lords insisted on amendments in several cases and government concessions were made in the form of ‘amendments in lieu’. As my study reported, the UK Parliament is assessed as ‘weak’ in international comparisons relative to the executive government and the second chamber is often portrayed as lacking influence and legitimacy relative to the elected chamber. There are fewer opportunities for opposition MPs or government backbenchers to make substantial changes to bills than in many other legislatures and the Commons can overturn Lords amendments. Nevertheless, when it chooses to use its powers, Parliament can make a difference.
How parliamentary scrutiny affected the Children and Social Work Act 2017
An example occurred during the passage of the Children and Social Work Act 2017. Initially, this bill does not appear to have been considered controversial by the Government. The bill was introduced first in the Lords—which is not usually the case for controversial bills—and scrutiny committees had not raised particular concerns. One of the bill’s proposals, however, attracted critical attention. It proposed that any aspect of children’s social care legislation could be waived for up to six years by the Secretary of State by secondary legislation at the request of a local authority. This was intended to allow local authorities to pilot innovations in children’s social care and to reduce the regulatory burden on social workers. As noted in a Lords Library briefing at the time, children’s charities and advocacy groups voiced their opposition even before the bill entered parliament. They argued that these provisions could remove valuable statutory protections and duties towards children.
After extensive debate, the Lords voted at report stage to remove the provisions, arguing that innovation in children’s social care did not require such far-reaching powers. When the bill reached the Commons, ministers argued that the provisions were too important to let drop. Despite the concerns expressed across the chamber in the second reading debate, the clauses were reinserted in revised form at committee stage. Unusually, that was not the end of the matter. Opposition outside parliament grew, and a petition with over 100,000 signatures was presented to the government. Finally, a meeting of opponents from both Houses with the Secretary of State for Education resulted in the clauses being removed from the Bill at Commons report stage—the government’s amendments pre-empting further opposition in the Commons or a possible defeat in the Lords.
Continuing importance of scrutiny in Parliament
Even—indeed especially—in a crisis, Parliament’s scrutiny function remains essential. While the Government must be able to use emergency powers, its ability to bypass parliamentary scrutiny should be used with discretion. For example, the Government has attracted criticism for amending the ‘lockdown’ regulations three times using an urgent procedure that requires only retrospective parliamentary approval when Parliament could in principle have debated and voted on the proposals before they came into force. Temporary changes to children’s social care provisions—reminiscent of those rejected in 2017—have also drawn criticism from the Children’s Commissioner.
In 2017, Parliament showed that it could react rapidly and effectively to an unexpected event. In the far more serious situation of Covid-19, parliaments across the world have made radical changes. In the UK, the Commons swiftly introduced hybrid working—even enabling online voting—albeit temporarily. The House of Lords has been meeting largely remotely and started hybrid proceedings on 8 June. It plans to introduce online voting from 15 June. Parliament has a long history of holding the executive to account—there is no reason why the Commons or the Lords should allow this important function to be attenuated during this crisis.