Dr Hannah White

Deputy director of the Institute for Government

The twin challenges of Brexit and Covid demanded government pass large volumes of legislation above and beyond its manifesto commitments. Much was done using secondary legislation, but primary legislation was also required, and it had to be passed at speed because of the constraints of the Article 50 deadline and the exigencies of Covid-19. Most dramatically, the European Union (Future Relationship)

Act, implementing the Trade and Cooperation Agreement, was passed in a single day on 30 December 2020.

The use of expedited and emergency procedures during Brexit and Covid restricted the amount of time available for parliamentary scrutiny. And because the government did not have the luxury of time for policy development, Parliament agreed to pass numerous “skeleton” bills granting sweeping powers to ministers to fill in the detail later using minimally scrutinised regulations.

These scrutiny-limiting measures may have been justified by the exceptional circumstances, but their use has persisted into more “normal” times. The government, for example, used expedited procedure to pass the Health and Social

Care Levy Act in a single week, without any obvious justification for doing so. Ministers seem to have gotten into the habit of using procedures which curtail scrutiny – obviously more convenient than spending long hours discussing policy detail in Parliament. And they have done so with little challenge from the many parliamentarians who have never known scrutiny to operate any differently – including more than 200 MPs elected for the first time since 2016.

The ability of the government to deprioritise scrutiny if it wishes to has been facilitated by the change in its electoral fortunes. Its approach to getting its legislation through Parliament was turned on its head by the 80-seat majority it won in 2019. Gone was the precautionary principle imposed by minority government: do not legislate unless you absolutely have to, and if you must pass a bill, avoid inconvenient amendments by keeping its scope as narrow as possible. In came the freedom created by a comfortable majority – legislate when you want, confident your bills will sail through the Commons – and don’t worry unduly about concession strategies.

With wide ranging manifesto commitments to deliver on immigration, justice and various constitutional matters, ministers have been tempted to introduce multi-purpose, omnibus bills, such as the Police, Crime, Sentencing and Courts Act. The wide scope of such bills makes scrutiny harder – parliamentarians must prioritise, which means swathes of legislation may go barely scrutinised in favour of a focus on highly controversial clauses. Omnibus bills also risk becoming “Christmas trees” – allowing parliamentarians to try to hang amendments on a wide range of issues tangential to what the government sees as the purpose of the bill.

There have been examples of good scrutiny in this Parliament. The pre-legislative scrutiny of the Online Harms

Bill demonstrates the significant benefits of careful examination of complex policy issues by MPs and peers with relevant expertise. The process facilitated invaluable debate of tricky policy issues and generated a slew of amendments that the government has been able to consider ahead of the bills formal parliamentary stages. Many argue that greater use of pre-legislative scrutiny would have significant benefits, but it remains an underused tool.

Growing concern about whether

MPs and peers are getting the opportunity to scrutinise bills properly might be dismissed as the inevitable consequence of the shift in power from Parliament to the executive, caused by the government’s majority. But it has led to questions about whether the present government recognises the value of scrutiny – which lies in testing why ministers think they need to change the law and compelling ministers to explain proposed changes in public before they come into force. Unless ministers recognise the importance of the scrutiny process – which can often save them from the embarrassment of later policy failures – there is a risk they will fail to capitalise on its benefits.

“The ability of the government to deprioritise scrutiny if it wishes to has been facilitated by the change in its electoral fortunes”