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Illegal Migration Bill highlights how expectations of legislative scrutiny have plummeted

Expectations of parliamentary scrutiny of legislation have dropped over the past decade.

Suella Braverman at the press conference to launch the stop the boats campaign.
Home secretary Suella Braverman at the Downing Street press conference to launch the government's 'stop the boats' legislation.

The government’s proposed timetable for scrutinising the Illegal Migration Bill reflects how far expectations of parliamentary scrutiny of legislation have dropped over the past decade, argues Hannah White

Last Tuesday, Rishi Sunak announced controversial new legislation to overhaul the UK’s asylum system, and today the bill will have its second reading in the Commons. 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 (typically bills considered in CWH normally do not have a report stage unless they have been amended).  

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.  

Expectations of parliamentary scrutiny have fallen 

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.  

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. 

A lack of scrutiny risks storing up problems for later 

This approach to scrutiny may suit a government keen to raise the profile of a flagship policy, show the public that ministers are acting with urgency and – 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. And when a bill is rushed through the Commons, the Lords may feel the onus has been placed on it to conduct detailed scrutiny, creating problems for the government later in the scrutiny process, although in some circumstances a government may relish the optics of a battle with the unelected house.   

The current generation of ministers have grown used to avoiding scrutiny 

The 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. Both Brexit and Covid-19 created imperatives to legislate quickly. And the time constraint of the Article 50 process and the need to respond rapidly to a global pandemic were two examples of justifications for making laws at speed that have long been accepted as justifiable – a legally binding time limit and a crisis.  

The current circumstances are neither. The UK’s asylum system has long been a contentious, high profile area of policy – however dramatic the home secretary’s rhetoric about small boats and immigration numbers, these are simply the latest government proposals to address longstanding problems. 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 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. 

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. 

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