Passing legislation

In the 2017–19 parliament the minority Government faces the task of legislating to ensure that the statute book is ready for Brexit in March 2019. It needs Parliament to pass a raft of primary and secondary legislation against a challenging timetable. But historically, minority governments have proved particularly vulnerable to parliamentary defeats.

The calling of an early general election in April 2017 triggered a rush to get legislation passed before Parliament dissolved. Not all government bills made it through – and some of those that did faced less scrutiny than usual.

The Government has announced plans to introduce nine bills to prepare for Brexit, followed by a great deal of secondary legislation. This is not scrutinised as much as primary legislation, and Parliament has got used to passing less of it in the past two years. Even so, the timetable for getting everything through will be tight.

Historical examples – notably the Labour governments of 1924 and the late 1970s – show that minority governments are prone to defeats in the House of Commons, which could add to the pressure on the timetable.

The unexpected election created a rush to pass legislation – and meant some government bills were lost

Chart government bills achieving Royal Assent and bills lost at dissolution by legislative stage

In the 2016–17 parliamentary session, 24 government bills were passed – fewer than in any session under the 2010–15 Coalition Government.[1] In part, this reflects the curtailed session, which ended with the dissolution of Parliament on 3 May ahead of the election in early June.

There is often a rush to complete the passage of legislation at the end of a parliamentary session, especially in the ‘wash-up’ period before dissolution. The Fixed-term Parliaments Act, passed in 2011, was partly intended to prevent this by giving greater certainty about the election cycle – and there was less of a scramble to pass legislation at the end of the 2010–15 parliament.[2] But 13 of the 24 government bills passed during the 2016–17 session achieved Royal Assent on 27 April, the day that Parliament was prorogued. This meant that 1,097 pages of legislation – 38% of all pages passed in the session – were dealt with at speed, raising questions about the adequacy of the scrutiny these bills received.[3]

The Government did not manage to get all its business through. The Finance (No. 2) Act 2017 – translating the Budget into law – was passed, but with just 154 pages, compared to the 776 it had when introduced. Three other government bills were lost entirely:

  • Vehicle Technology and Aviation Bill – which would have set a regulatory framework for automated vehicles and other new transport technologies[4]
  • Local Government Finance Bill – to pave the way for local government to fully retain income from business rates[5]
  • Prisons and Courts Bill – to reform prisons and modernise courts.[6]

Chart number of government bills receiving Royal Assent per sitting day per session

A total of 47 government bills were passed during the 2015–17 parliament, working out at 0.16 pieces of legislation per sitting day (days when Parliament is in session). This was a slower pace than in previous parliaments; 0.17 government bills were passed per sitting day in 2010–15, and 0.22 per sitting day in 2005–10.

The Treasury remains the department responsible for the most legislation

Chart number of government bills receiving Royal Assent by session and department

In the 2016–17 session, the Treasury was responsible for more bills than any other government department – as it has been in each session since at least 2010, reflecting the annual finance and supply and appropriation bills (authorising government spending) that it must pass.

Six Treasury bills received Royal Assent in 2016–17, double the number passed by the Home Office (HO), the next most prolific department. HO is likely to face a higher legislative workload due to Brexit, as it designs and implements new customs and immigration regimes. Other departments that will need to pass Brexit-related legislation include Environment, Food and Rural Affairs (Defra), a high proportion of whose work – around 80% – is currently framed by EU legislation.[7] Defra has far less recent legislative experience; it passed just two bills in the 2010–15 parliament and none at all in 2015–17.

There will be a heavy workload for Parliament in the 2017–19 session, dominated by Brexit…

Chart number of bills announced in each Queen's Speech

In the Queen’s Speech following the election, the Government said it would bring forward 27 bills. It also announced a two-year parliamentary session – only the second since 1945 – to allow MPs the time ‘to fully consider the laws required to make Britain ready for Brexit’.[8] Of the 27 bills announced, 19 did not relate directly to Brexit, including legislation to pick up aspects of two bills lost at dissolution: a Courts Bill and the Automated and Electric Vehicles Bill.[9]

Eight of the 27 bills directly related to the need to ensure that the UK is ready to leave the EU in March 2019. These included bills on trade, customs, immigration, and agriculture and fisheries.[10] They also included the EU (Withdrawal) Bill, which will repeal the European Communities Act 1972 and transpose EU laws on to the British statute book, ready for Brexit.[11] In November 2017 the Government announced a ninth Brexit bill: the Withdrawal Agreement and Implementation Bill, which will give force through primary legislation to any agreement reached with the EU.[12]

…and much of this workload will come from secondary legislation

Chart UK Acts and statutory instruments

In addition to these government bills, or primary legislation, the Government estimates that it will have to pass between 800 and 1,000 statutory instruments (SIs) – pieces of secondary legislation – to ensure that EU law is technically effective once it has been transposed, as well as to allow for the implementation of any agreement reached with the EU.[13]

To this end, the Government has sought delegated powers, through the Withdrawal Bill, to make changes to ‘retained EU law’ through secondary legislation. While it argues that this is the easiest way to make minor changes without ‘a prohibitively large amount of primary legislation’, the scope of the powers it has sought has proven controversial.[14] In particular, the inclusion of so-called ‘Henry VIII’ powers, allowing the Government to amend or repeal existing primary legislation without the scrutiny normally afforded to bills, has provoked concern among some parliamentarians.[15] During the Commons committee stage of the Withdrawal Bill, the Government accepted an amendment tabled by the Procedure Committee to establish a Sifting Committee to consider which SIs will be subject to affirmative procedure.

In recent decades there has always been considerably more secondary than primary legislation, and the use of SIs has increased significantly since the mid-20th century. In the calendar year 1950, there were 2,144 SIs, while by 1990 there were 2,667, and this number continued to grow, reaching a high of 4,150 in 2001. The Hansard Society has found that between 1950 and 1990 the number of SIs per calendar year averaged around 2,500; but this rose to over 3,000 per year between 1992 and 2015.[16] In the past two calendar years, numbers of SIs have fallen significantly, with only 1,242 in 2016 – the lowest since records began in 1950.[17] The brevity of the 2015–16 session – the shortest first session of a parliament since 1997–98 – and the early election may have affected the number of SIs in calendar years 2015 and 2016.[18]

Chart statutory instruments passed per sitting day per session, by procedure

If SIs are counted by parliamentary session (the parliamentary year which tends to run from Spring to Spring) rather than by calendar year, then since 1997 an average of 1,291 SIs have been passed per session, equating to 8.6 each sitting day. Scrutiny of SIs is less intensive than scrutiny of primary legislation. They are subject to two main procedures, neither of which allows Parliament to make any amendments:

  • negative procedure, in which an SI is laid before Parliament and incorporated into law unless either House objects within 40 days
  • affirmative procedure, in which both Houses must approve a draft SI when it is laid before them.

Most SIs – 80% since 1997 – are subject to negative procedure, equating to an average of 6.9 SIs per sitting day. Since 1997 just 1.5 SIs per sitting day, on average, were subject to affirmative procedure. In the Commons, most affirmative SIs are considered in Delegated Legislation Committees (DLCs), appointed by the House to review secondary legislation on its behalf. Only a few are considered on the floor of the House – just 13 affirmative SIs (8.6%) in the 2015–16 session.[19] Up to 90 minutes’ consideration is allowed in DLCs, though the Hansard Society estimates that in the 2015–16 session, SIs were debated for an average of just 26 minutes. It is rare for approval of an SI to go to a division.[20]

It is also rare for governments to have SIs rejected by Parliament. The Commons has rejected just 11 since 1950, and the Lords has rejected six – 0.01% of all SIs considered.[21]

The estimated 1,000 SIs that the Government has said are necessary for Brexit, passed at the average rate over the past two decades – 8.6 per sitting day – would take 116 sitting days. In the last two-year session (2010–12), there were 295 sitting days, and the current session is already more than a fifth of the way towards that – not taking into account the fact that Britain is due to leave the EU before the likely end of the session.

This already difficult timetable is still more challenging because most of these Brexit- related SIs cannot be ‘made’ – signed by a minister or other person with authority under the relevant primary legislation – until the legislation delegating the powers to do so (the EU (Withdrawal) Bill and other Brexit bills) receives Royal Assent. The progress of the Withdrawal Bill through the Commons has been slower than anticipated with the Bill only passing Commons committee stage before Christmas – partly a reflection of the 405 amendments and 85 new clauses proposed for the Bill’s committee stage.[22] And of the nine Brexit bills the Government says it will need, four have yet to be introduced in Parliament.[23]

The longer it takes Parliament to pass this primary legislation, the more compressed will be the parliamentary time available to get secondary legislation on to the statute book before 29 March 2019. The smaller the window, the greater the pressure on government departments to prepare the secondary legislation required. The Withdrawal Bill includes a power enabling urgent SIs to be passed using negative procedure and then approved retrospectively using affirmative procedure within one month. Nonetheless, it may be that the normal parliamentary sitting hours and patterns of recess and sitting periods will fall prey to the legislative workload if the statute book is to be ready in time.

History suggests that legislation is passed more slowly under minority government...

Chart UK General Public Acts passed per sitting day per session

Following the June election, the Conservative Party was returned to government – but relying on support from the Democratic Unionist Party on a confidence and supply basis.[24] History suggests that a minority government finds it harder to legislate. The most recent prolonged period of minority government was between April 1976 and April 1979, after Labour gradually lost the small majority it enjoyed following the October 1974 general election.

In the 1974–75 session, when Labour maintained its slim majority, 0.32 bills per sitting day were passed, or one bill every 3.1 days. But in the three final sessions of the parliament, with a Labour minority government, an average of 0.23 bills per sitting day were passed: one every 4.4 days. This suggests that the need of minority governments to ensure support from their own backbenches and from other MPs can slow down the legislative process.

Chart Government bills before Parliament, and bills achieving Royal Assent, after 70 sitting days

In the 70 Commons sitting days between the 2017 Queen’s Speech and the Christmas recess, 20 pieces of legislation were brought before Parliament (receiving their first reading in either the Commons or the Lords). Of these, five achieved Royal Assent.

This is broadly in line with the situation after 70 days of the 2015–16 session, where the then-government, operating with a majority, had three bills receive Royal Assent, and had introduced another 18. There were more bills in progress than compared with the Coalition Government at the same stage in the 2010–12 session. That was a two- year session, like the current session, and one in which the Government faced the challenge of legislating as a coalition. After 70 days, the Coalition Government had placed only 16 bills before Parliament, with a fifth (three bills) receiving Royal Assent.

The Government has therefore passed a marginally higher proportion of its legislation than governments at the same stage in the 2010–12 and 2015–16 sessions. However, of the acts passed so far this session, two were financial (Finance (No. 2) Act 2017 and Supply and Appropriation (Main Estimates) Act 2017), which tend to pass through their stages faster than other legislation. Another was the emergency Northern Ireland Budget Act 2017, which received Royal Assent within four days of its first reading.

The Government’s legislative progress may be slower on major pieces of Brexit-related primary legislation, with the Withdrawal Bill already behind the schedule originally anticipated for it. Following the January 2018 reshuffle, more than 70% of the Commons Whips’ Office are new in post, and the government Chief Whip has only been in place since November. This may further affect the ability of the Government to ensure the timely passage of its business through Parliament.

…and minority governments are prone to parliamentary defeats

Chart Size of government defeats in the House of Commons

The Government has been defeated once in the Commons since the June 2017 election, by a margin of 309 to 305 on an amendment to the EU Withdrawal Bill to give Parliament a vote on any final Brexit deal. Separately, the Government was defeated several times on non-binding opposition day motions (ODMs), and has reportedly adopted a policy of abstaining on ODMs it does not think it will succeed in defeating. These are not included above, due to difficulties in piecing together consistent long-term data on relatively rare government defeats on ODMs.

Historically, while majority governments have suffered defeats, most government losses have clustered around periods of minority government. In 1924, Labour under Ramsay MacDonald experienced 12 defeats during its almost 10 months in office. Of these, two were by margins of over 150, both on 8 October 1924, and both relating to the ‘Campbell Case’, in which the Government prosecuted the editor of a magazine for incitement to mutiny, and then dropped the proceedings. They were treated as confidence motions and led to the collapse of the Government.

When Labour governed as a minority in 1976–79, it suffered over 30 defeats, culminating in its loss, by one vote, of a confidence motion in March 1979, leading to a new general election. It also experienced the largest government defeat in the Commons since 1918, when in March 1977 it lost a vote by 293-0 on public spending cuts to pay for the 1976 IMF loan.[25]

The Major Government was defeated just once – by a margin of one vote, on the second reading of an education bill – between losing its majority in December 1996 and the May 1997 election.

Under the Fixed–term Parliaments Act, votes of confidence are now clearly defined and subject to an explicit process, which has yet to be used.[26] But other defeats in the Commons can be damaging for minority governments, as they lose political capital and make the challenge of legislating all the more difficult. This is exacerbated by the absence of a government majority in the Lords, a chamber which in the past has proved itself willing to vote against governments. Between 1999 and 2010, governments were defeated over 450 times in the Lords.[27] Overturning Lords amendments in the Commons may prove harder for a minority government. The current Government’s caution in proceeding with the Withdrawal Bill reflects awareness of the damage any defeat could do.