Primary legislation

Parliament has two roles in law-making. The first is to pass the government’s programme of legislation – to turn the bills that the government proposes into Acts of Parliament. The second is to scrutinise the government’s bills, to prevent bad, excessive, or unnecessary law from being made. There is a tension between these roles, and this has been clear in the year since the 2017 Queen’s Speech, as Parliament has sought to balance the need to pass key Brexit legislation in a timely manner with its duty to ensure it is adequately scrutinised.

Most primary legislation is brought forward by the government, meaning that Parliament can only amend, examine and pass those parts of the government’s legislative programme which the government chooses to present to it.* Following the 2017 General Election, the realities of minority government and the need to ready the statute book for Brexit led the Government to curtail its legislative ambition. While the Government introduced and passed a volume of legislation broadly comparable to previous parliamentary sessions, the nature and content of that legislation was not what would usually be expected from a government at the start of a new Parliament. Outside of Brexit legislation, the Government focused on specific areas of policy rather than the kinds of broader reforms more typically attempted by a government in the aftermath of an election.

But on the Government’s main legislative task – preparing for Brexit – progress was slow. Key Brexit bills were delayed by disagreement within the Government over what Brexit should look like, contributing to slow progress in negotiations with the EU. The Government also delayed some Brexit bills in order to stave off crunch votes in the Commons. It took just over a year to pass the centrepiece of Government’s legislative agenda, the EU Withdrawal Act, and on that – and other bills – the Government had to accept amendments and make last-minute concessions to minimise the risk of parliamentary defeats. In this it was largely successful, suffering only one defeat in the Commons in the year since the 2017 State Opening of Parliament. But in the remainder of the session the Government’s minority status means it is likely to face further knife-edge votes.Passage of a bill through the UK Parliament

Government can introduce primary legislation – bills which it wishes to become Acts of Parliament – into either the Commons or the Lords, but each bill must follow the same process to become law. Bills must pass consecutively through each House of Parliament, after which any points of disagreement between the two Houses are resolved via ‘ping pong’, when the Houses send a bill back and forth until they agree. Once the bill is agreed, it must go to the monarch to receive Royal Assent, at which point it becomes an Act.

* Primary legislation introduced by backbenchers is discussed in Chapter 6. This chapter focuses on public bills – those which affect the whole population – rather than the five private bills and one hybrid bill introduced by the Government over the period.

 

The 2017 Queen’s Speech reflected the realities of minority government, and Brexit

In the Queen’s Speech at the beginning of each parliamentary session, government sets out its legislative agenda, although as the session progresses, it may announce additional bills in response to events.Government bills announced in the 2017 Queen’s Speech, by type

The 2017 Queen’s Speech reflected a government facing the dual realities of governing as a minority (albeit with a confidence and supply deal with the Democratic Unionist Party (DUP), who agreed to lend them support on certain key bills and motions); and needing to ready UK law for Britain’s exit from the EU. The Queen’s Speech contained plans for 27 government bills (including one ‘hybrid’ bill – a kind of bill that is of relevance to the nation as a whole, but which particularly affects specific people, in this case relating to high speed rail links). The quantity of legislation proposed was broadly comparable to the volume of bills introduced in the 2010 Queen’s Speech, at the beginning of the last two-year session.[1]

But while the quantity of legislation announced by the new Government was similar to that of previous governments, its content was different. The bills announced by the Government fell into three main categories:

  • Routine legislation (three bills): legislation that government must pass in each session, including three Finance bills (which give effect to Budgets).

  • Brexit legislation (eight bills): laws which the Government identified as necessary to prepare the UK statute book for Britain’s exit from the EU. This included the Repeal Bill (subsequently named the EU Withdrawal Bill), as well as legislation on customs, trade and immigration.

  • Non-routine legislation (16 bills): the legislation that the Government chose to bring forward that was not related to Brexit, consisting of bills relating to smart meters, and to data protection.

Notably absent from the third category were bills to enact some of the Government’s key manifesto pledges, such as the expansion of grammar schools, or changes to the provision of social care. In response to its status as a minority government, operating with support from the DUP, the Government opted not to bring more contentious legislation before Parliament, and ministers have been encouraged to use non-legislative means to implement their policies wherever possible. The Government also decided to focus its legislative energies on key Brexit bills.

In the year following the Queen’s Speech, the Government announced plans for four further Brexit bills – including the Withdrawal Agreement and Implementation Bill (now renamed the EU Withdrawal Agreement Bill) – which will put any exit deal reached with the EU into law and provide for a transition period. The Government also announced plans for, and introduced, other additional legislation, often in response to changing events and circumstances.

 

Government passed 18 of the 29 non-Brexit bills it introduced in the year from the 2017 Queen’s Speech – including urgent legislation

In the 155 days that both Houses of Parliament sat in the calendar year following the 2017 Queen’s Speech, the Government introduced a total of 35 bills. Six of these were Brexit bills, of which one received Royal Assent in the period. The remaining 29 were not Brexit-related; 18 of these were passed by the Government. In terms of quantity, this is similar to previous sessions: at the same point in the 2010/12 parliamentary session, the then-government had passed 17 bills.

Non-Brexit Government bills introduced to Parliament, by legislative stage reached, 21 June 2017–21 June 2018

But while the rate at which the Government has got legislation onto the statute books has been comparable to previous sessions, the content of the legislation has not been of the type usually expected from a new government. Typically, following an election, a new government might introduce several major bills. For example, at the beginning of the 2010 Parliament, the Coalition Government brought forward bills to enable more schools to become academies; and to establish the Office for Budget Responsibility (OBR). But of the 18 non-Brexit Government bills which received Royal Assent in the year following the 2017 Queen’s Speech, four were routine bills that government had to pass – two Finance Acts and two Supply and Appropriation Acts. A further four were urgent pieces of legislation required in the absence of an Executive in Northern Ireland, all of which went through their legislative stages in just a few sitting days. The remaining 10 were more focused on specific policy areas than on major reforms:

  • Air Travel Organisers’ Licensing Act 2017

  • Armed Forces (Flexible Working) Act 2018

  • Data Protection Act 2018

  • European Union (Approvals) Act 2017

  • Financial Guidance and Claims Act 2018

  • Laser Misuse (Vehicles) Act 2018

  • Secure Tenancies (Victims of Domestic Abuse) Act 2018

  • Smart Meters Act 2018

  • Space Industry Act 2018

  • Telecommunications Infrastructure (Relief from Non-Domestic Rates) Act 2018.

 

Progress on Brexit legislation has been slow

Parliamentary progress of legislation introduced to implement Brexit

When the Government triggered the Article 50 process in March 2017, the countdown to Britain’s exit from the EU began. In the Queen’s Speech, the Government detailed plans for eight Brexit bills; it has subsequently identified four additional Brexit bills it wishes to pass, though it has indicated that one of them, the Environmental Principles and Governance Bill, will be brought forward in the next parliamentary session. But progress on these bills has been slow.

Within the calendar year from the 2017 State Opening of Parliament, only one Brexit bill received Royal Assent (the Sanctions and Anti-Money Laundering Act, on 23 May 2018). Two others – the EU Withdrawal Act and the Nuclear Safeguards Act – received Royal Assent shortly after, on 26 June 2018, and the Haulage Permits and Trailers Registration Act made it into law shortly before summer recess. But by the time that Parliament rose for its summer break in July 2018, two of the remaining bills had only just progressed beyond the Commons; four had only reached white paper stage; and one had been published only in draft.

There are three reasons for the slow progress of Brexit legislation:

  • Continued disagreement within the Cabinet over what Brexit should look like has made it difficult for the Government to frame and draft legislation.

  • Where the Government has agreed its position, it still has to negotiate those points with the EU, meaning legislation cannot be finalised.

  • Where legislation has been finalised and introduced, the Government’s lack of a majority, combined with differences within both main parties in Parliament over Brexit, mean the Government has had to proceed carefully to avoid defeats. This led to delays in bills being introduced, and significant pauses in their passage (including the EU Withdrawal, Trade, and Customs Bills) while Government tried to shore up support.

The Government would like the vast majority of its Brexit legislation to make it onto the statute book by March 2019, in case the UK ends up leaving the EU with no deal. With only seven months to go, it will be a big ask for Parliament to pass that legislation, while fulfilling its duty of scrutiny. Government will have to prioritise its use of legislative time in order to have the right legislation in place for whatever outcome is reached in negotiations.

It is possible that the legislative timetable could be extended. This could happen in one of two ways. First, by the EU agreeing to a UK request to extend the Article 50 negotiating process. Second, by the UK securing an exit deal that includes provision for a ‘standstill transition’ (described by the Government as an ‘implementation period’) up to December 2020. Provision for a transition has been made in the current draft text being negotiated by the UK and the EU.[2] If a withdrawal agreement with a transition is secured and agreed by Parliament, this would extend the period available to pass primary and secondary Brexit legislation – apart from the Withdrawal Agreement Bill, which needs to put the withdrawal agreement into law before ‘exit day’ on 29 March 2019, when the UK is formally due to leave the EU.

 

Parliament spent over 273 hours debating the EU Withdrawal Bill – significantly more time than any other bill Hours spent considering the EU Withdrawal Bill on the floor of both Houses

A bill’s length is not the only factor determining the amount of scrutiny it receives – its constitutional importance and political salience are also important.

The EU Withdrawal Bill sought to repeal the 1972 European Communities Act, and convert all existing EU law into UK law. As the centerpiece of the Government’s Brexit bills, it is unsurprising that it received a considerable amount of parliamentary attention, disproportionate to its length. The bill, as introduced, was just 66 pages long, but Parliament spent more than 273 hours debating it. By comparison, the Data Protection Bill, which was a much longer bill at 218 pages, received a total of 56 hours of debate in both Houses.

Reflecting the significance of the bill, as well as the fissures in Parliament over Brexit, the EU Withdrawal Bill was also responsible for a high proportion of the divisions held in both Chambers: of the 191 divisions held in the Commons in the year following the 2017 Queen’s Speech, 80 (42%) were on the EU Withdrawal Bill. The EU Withdrawal Bill also accounted for 18 of the 48 divisions in the Lords (38%).

The time it took to pass the EU Withdrawal Bill has implications for the rest of Government’s programme of Brexit legislation, not least because it has constrained the time available to consider the 800 pieces of secondary legislation that the Government has said will be required for Brexit – something discussed in Chapter 4. This reflects the tension at the heart of Parliament’s role: to pass government’s legislation, while also ensuring that it receives appropriate scrutiny, particularly where the legislation concerned is of considerable political and constitutional significance.

 Hours spent debating Government bills that received Royal Assent, 21 June 2017–21 June 2018

The EU Withdrawal Bill did not receive Royal Assent in the calendar year from the 2017 Queen’s Speech. But the 19 bills that did were debated for an average of 16 hours and 15 minutes – almost nine hours in the Commons, and just under seven and a half hours in the Lords. However, this average masks significant variation.

The Data Protection Act was debated for over 68 hours across both Houses- almost a quarter of the time that the EU Withdrawal Bill was debated for. The Sanctions and Anti-Money Laundering Act (a Brexit bill) was debated for almost 46 hours. Other bills received little debate and passed through their legislative stages quickly. This was particularly the case for the four bills relating to Northern Ireland, which were debated for under four hours on average. Because much of this legislation – such as a Budget for Northern Ireland – needed to be passed urgently due to the lack of an Executive in Stormont, these four bills took an average of six days between introduction and Royal Assent.

 

Parliament has extracted concessions from the Government on some legislation, including the Withdrawal Act

It is easy to measure whether a government is getting its legislation through Parliament. Assessing Parliament’s effectiveness in scrutinising legislation is harder. The time spent on a bill is one indication of the amount of scrutiny it has received; but not of the quality of that scrutiny. Parliament could linger on legislation which needs little work, while skimming over more problematic bills.

A better measure of the extent to which Parliament is scrutinising a bill is the degree to which it is amended during its passage, and by whom. The extent of amendments made may reflect the quality of a bill on its introduction, as well as the level of parliamentary concern about its implications. But this is also complicated: amendments may be proposed for reasons other than to improve the quality of a bill, for example, to slow its passage or even to attempt to prevent it becoming law. Recent academic research has shown that tracing the source of an amendment is tricky: while an amendment may appear to have been tabled by the government, they may only have done so as a result of backbench pressure.[3]

Since the 2017 General Election, Parliament has made numerous amendments to the bills it has passed, in some cases extracting concessions from the Government. As the case study below shows, the Government’s minority status and the significance of the EU Withdrawal Bill to its Brexit programme have meant it has had to listen intently to backbench concerns.

 

Amending legislation – a case study of the EU Withdrawal Act 2018  

Ruth Dixon and Matthew Williams, University of Oxford

The Withdrawal Bill was one of the most intensively debated pieces of legislation in the current parliamentary session. But how much was the text of the bill actually altered during the parliamentary process? And how did those amendments affect the bill’s language? Drawing on automated and semi-automated textual analysis, this case study addresses these two questions.

How much was the Withdrawal Bill amended during the parliamentary process?

The Withdrawal Bill was amended considerably more than the average bill. Over 55% of the lines of text of the bill were altered, and the length of the legislation increased by 63% during the parliamentary process. By comparison, about a third of the lines of text of bills passed in the sessions between 2007 and 2015 were altered due to parliamentary amendments, and legislation typically grew in length by about 40%.[4]

A schematic representation of the amendments agreed at each amending stage is shown in Figure 3.7. This was produced by a semi-automated comparison of each successive pair of bill versions, hand-coded to distinguish ‘government’ and ‘non-government’ amendments. The amount of amendment is shown by the density of bars, which show that:

  • Most amendments were made at report stage in the House of Lords. The majority of amendments were ‘government’ amendments made in the name of a minister (black).

  • Some non-government amendments (green), particularly in the Commons Committee stage, were accepted by the Government and agreed without a vote. Others were opposed by the Government and only agreed after a government defeat.

  • Amendments during ping pong reflected a combination of government and non-government influences (blue). Many non-government amendments were reversed during ping pong, though in several cases government concessions resulted in further changes to the bill (‘amendments in lieu’).

Changes made to the EU Withdrawal Bill at each stage of its passage

How did amendments made to the Withdrawal Bill affect its language?

An important aspect of legislative language is its clarity, which can affect the flexibility with which it is implemented and the amount of discretion allowed to ministers and judges in interpreting the law. Natural language processing (NLP) algorithms allow us to assess the clarity of the Withdrawal Bill. We can also assess how the language changed during its parliamentary journey, and compare the final act to all other acts of Parliament enacted since 2000.[5]

The bill as introduced to Parliament had considerably more flexible language than other legislation made over the past 15 years. For instance, over 8% of the bill’s words were adjectives or adverbs, as compared with the less than 5% on average for all laws enacted since the millennium. An example is shown from Schedule 2, part 1, paragraph 1 (emphasis added):

‘A Minister of the Crown acting jointly with a devolved authority may by regulations make such provision as they consider appropriate to prevent, remedy or mitigate – any failure of retained EU law to operate effectively.’

This flexibility of its language is unsurprising, given that the bill delegates significant policy-making discretion to government, and discretion is achieved by incomplete or flexible legal language. However, as Parliament forced concessions from government that limited its discretion, the language of the bill became less flexible during the parliamentary process. For example, the proportion of adjectives and adverbs fell from 8% in the initial bill to 7.5% in the Act. Determinate modal verbs such as ‘must’, ‘shall’ and ‘will’ rose six-fold to 0.3% (above average), and the number and proportion of indeterminate modal verbs such as ‘may’ and ‘might’ fell from 0.6% to 0.4%.

The majority of agreed amendments were in the name of a government minister, but a substantial number were non-government amendments. The text added by non-government amendments was more determinate than text added by government amendments. Nonetheless, both government and non-government amendments relied on less flexible language than the original bill text. This reflects the role of the amendment process in clarifying legislative language. Despite these changes, the final Act contained far more flexible language than average in terms of adjectives, adverbs, conditional conjunctions, and enabling verbs such as ‘amend’, ‘make’ and ‘specify’.

The EU Withdrawal Act is a key legislative pillar for the UK’s withdrawal from the EU, a process which has been framed as the UK Parliament ‘taking back control’ from the EU. In practice, however, the flexible language of the Act means that control, at least in the short term, will be concentrated in the hands of ministers and judges, rather than parliamentarians.

 

Amendments can lead to government defeats, but they can also avoid them

Minority governments are at greater risk of defeat in the Commons. To try and stave off defeats, government may choose to delay legislation – as the current Government has done on various Brexit bills – in order to work behind the scenes to build support. But government may also opt to either accept amendments from potential rebel backbenchers, or work with them to develop compromises, as was the case on the EU Withdrawal Bill. Amendments can therefore create the prospect of government defeats; but they can also be a means for government to avoid them.

Government defeats in the Commons (circled) and Lords (grey dots), by size, May 2005 to 21 June 2018

Following the 2017 Queen’s Speech, the Government has accepted amendments to prevent Commons defeats, particularly on the EU Withdrawal Bill:

  • The Government adopted amendments tabled by Charles Walker MP, Chair of the Procedure Committee in the Commons, which established a new Commons committee to scrutinise Government proposals for the parliamentary procedure to which certain secondary legislation under the bill should be subject (negative or affirmative procedure; the latter requiring the approval of both Houses of Parliament).

  • Following concern from parliamentarians about how the Government would use secondary legislation-making powers in the Bill, it introduced an amendment that requires a minister to make a statement to the House of Commons before introducing a statutory instrument under the bill about why the instrument is appropriate and how it may have an impact on legislation for equalities.

  • At report stage, the Government amended Clause 7. Clause 7 of the EU Withdrawal Bill gives ministers the power to use secondary legislation to amend primary and secondary legislation to ensure that UK law continues to operate effectively after exit day. The amendment circumscribes the Government’s use of that power by setting out a complete list of the kinds of deficiencies that UK ministers would be able to correct. 

  • The Government amended the bill to introduce an exception to Schedule 1. Schedule 1 states that no legal challenges can be brought to domestic legislation on the basis of failure to comply with the general principles of EU law. Schedule 8 now allows legal challenges on this basis if they relate to anything that happened before exit day and begin within three years of exit day.

It was not just on the EU Withdrawal Bill that the Government accepted amendments. On several other pieces of legislation, the Government agreed to backbench-initiated amendments rather than risk defeat. For example:

  • In the wake of the Windrush scandal, the Government accepted Conservative MP Dr Sarah Wollaston’s amendment to the Data Protection Bill, reversing the requirement on NHS staff to share data with the Home Office.

  • The Government accepted Conservative MP Andrew Mitchell and Labour MP Dame Margaret Hodge’s amendments on the Sanctions and Anti-Money Laundering Bill.

In accepting these amendments, the Government ensured that, despite being a minority, it was defeated only once in the Commons in the year from the Queen’s Speech. This defeat came on an amendment tabled by Dominic Grieve MP to the EU Withdrawal Bill on 13 December 2017. The Government was subsequently defeated on an amendment to its Trade Bill on 17 July 2018.

Defeats in the Lords tend to be more frequent than in the Commons, as governments do not have in-built majorities in the Upper House. In the year from the State Opening of Parliament, the Government was defeated 32 times in the House of Lords; 16 of these defeats were on the EU Withdrawal Bill. Most of these defeats, however, were reversed when they came back to the Commons: only one Lords amendment was accepted, six were rejected, and the Government offered amendments in lieu for eight. Three further defeats were on the Sanctions and Anti-Money Laundering Bill, two were on the Nuclear Safeguards Bill, and one was on the Haulage Permits Bill – all Brexit-related legislation.

 

Looking forward

  • The Government still requires several pieces of Brexit legislation to make it onto the statute book in time for Brexit; Parliament will need to balance getting these bills through with ensuring that they receive appropriate scrutiny. Striking the right balance will be particularly important for the Withdrawal Agreement Bill, due to be introduced once Parliament agrees to any deal reached by the Government with the EU – provided that agreement is reached before 21 January 2019. 

  • Minority government is likely to mean that the Government will continue to face crunch votes, and may have to make further concessions to avoid defeats. Backbenchers have seen the opportunity to amend bills in this context, and will continue to attempt to do so.