Legislation

The volume of legislation introduced by the Government in the current parliamentary session is comparable with previous years. But the Government’s lack of a majority in the Commons, combined with the need to prepare the UK statute book for Brexit, has led it to focus its energies on key Brexit bills and limit its legislative ambition in other areas.

In the June 2017 Queen’s Speech, at the beginning of the current two-year parliamentary session, the Government made clear that it planned to focus its legislative attention on preparing for Britain’s withdrawal from the EU.

Meanwhile, notably absent from the Queen’s Speech were many of the Conservative Party’s key manifesto pledges, such as the expansion of grammar schools and reform to the funding of adult social care. The revised legislative agenda reflected both the demands of Brexit and the loss of the Government’s majority in the 2017 election, which forced it to seek the support of the Democratic Unionist Party to govern through a confidence and supply arrangement.

So far, the volume of legislation that the Government has brought before Parliament is comparable with that of recent parliamentary sessions. However, the scope and ambition of its non-Brexit legislation has been decidedly limited, as it has opted to focus its political capital on ensuring its Brexit legislation reaches the statute book.

Despite this, progress on key Brexit bills has been slow. The long process of securing Cabinet-level agreement for Britain’s negotiating positions, and prolonged uncertainty over the outcome of negotiations with the EU, have made it harder to finalise legislation. And once legislation has been introduced to Parliament, the Government has opted to delay certain stages of its own bills in an effort to stave off possible Commons defeats. In December 2018, the Government also chose to delay Parliament’s meaningful vote on the draft withdrawal deal reached with the EU.

Continued delays to its legislative programme have limited the time available to pass essential primary and secondary legislation, creating the potential for a rush before the end of March 2019.

 

The Government is introducing a similar amount of legislation to recent years

Government bills introduced to Parliament per sitting day, per session, since 2010–12, as at 21 December 2018Since the beginning of the current parliamentary session in June 2017, the Government has brought a total of 46 bills before Parliament. This is equivalent to one new bill every five sitting days, or 0.2 bills each day that the Commons has sat.

This volume of legislation is broadly comparable with recent parliamentary sessions. The length of a session partly determines how much legislation can be introduced by a government to Parliament, with shorter sessions offering less time to bring forward bills. In each session since 2012–13, the Government has brought an average of 29 bills before Parliament – though those one-year sessions averaged just 148 sitting days. The current 2017–19 session is scheduled to last for two years, meaning the closest comparison is the 2010–12 session, in which there were 295 sitting days. In that session, the then Government introduced 47 bills to Parliament, or one every six sitting days – broadly similar to the current session.

While the Government faces the dual challenges of passing contentious Brexit legislation and governing as a fragile minority, it has not reduced the amount of legislation it has brought before Parliament.

 

But apart from Brexit, the Government has scaled back its legislative ambition

Government bills (non-Brexit) passed in the 2017-19 session, by date of legislative stages, as at 21 December 2018

In the 2017 Queen’s Speech, the Government made clear that its priority for the current session was to pass the legislation needed to prepare for Brexit. This has not stopped it from passing legislation on other matters, but beyond Brexit, the Government’s legislative programme has displayed little of the ambition usually expected immediately following an election.

Of the 28 non-Brexit bills that the Government has got on to the statute book so far:

  • Five were routine pieces of legislation relating to the funding and spending of government, that all governments need to pass – two finance acts and three supply and appropriation acts.
  • Six were urgent bills relating to Northern Ireland – including two budget acts – which the UK Parliament needed to pass in the continuing absence of an executive at Stormont.
  • The remaining 17 acts dealt with specific policy areas, such as the Data Protection Act 2018, which implemented new GDPR rules, or the Laser Misuse (Vehicles) Act 2018, which created a new offence of shining lasers at aircraft and other forms of transport. The Government also passed legislation to merge existing financial claims bodies into one organisation (the Financial Guidance and Claims Act 2018) and to cap certain energy tariffs (the Domestic Gas and Electricity (Tariff Cap) Act 2018).

Much of this legislation was significant in specific policy areas. But it was not the kind of major reforming legislation often introduced by governments in the first session of a new parliament. The Government has chosen to focus its energies and political capital on Brexit bills, and has avoided potentially contentious legislation in other areas.

 

Progress on Brexit bills is slow

The Government has identified a total of 13 pieces of primary legislation as necessary to ready the UK statute book for Brexit, although one – the Environmental Principles and Governance Bill – is not expected to be brought forward until the next parliamentary session. In addition, it has introduced the Financial Services (Implementation of Legislation) Bill as part of its preparations for a no-deal scenario

Of the 12 bills that the Government has indicated it plans to pass in this session in the event that a deal is agreed, the Government had passed five by the time MPs rose for Christmas recess in December 2018:

  • the EU Withdrawal Act
  • the Nuclear Safeguards Act
  • the Sanctions and Anti-Money Laundering Act
  • the Taxation (Cross-border Trade) Act
  • the Haulage Permits and Trailer Registration Act.

However, the process of passing these bills has been drawn out. The flagship EU Withdrawal Act, which repeals the 1972 Communities Act and transfers EU laws on to the UK statute book, took almost a year, and more than 270 hours of parliamentary time to pass.[1]

Delays to the Government’s Brexit bills reflect the challenges of legislating on a contentious issue as a minority government. Protracted disagreements within the Cabinet over the nature of Britain’s exit from the EU have made it harder to draw up legislation, and ongoing negotiations with the EU have prevented bills from being finalised.

But the Government has also delayed bills during their parliamentary passage, allowing long periods to elapse between different stages as it sought to stave off Commons defeats. For example, the Taxation (Cross-border Trade) Act completed its Commons committee stage in February 2018, but did not reappear for its report stage until July, a gap of more than five months.

Five other Brexit bills – covering immigration, trade, agriculture, fisheries and healthcare arrangements with the EU – are currently before Parliament. However, the Government was not able to introduce the Withdrawal Agreement Bill before Christmas 2018, waiting for Parliament to vote in favour of its deal before it does so. This bill would translate any agreement reached with the EU into law, and in the event of a deal would need to be passed by 29 March 2019.

Until Parliament approves the deal and passes the Withdrawal Agreement Bill, the Government needs to continue to plan for the possibility that Britain will leave the EU with no deal. In that scenario, six of these bills will need to be in place (all except the Environmental Principles and Governance Bill, the Animal Welfare Bill and the Withdrawal Agreement Bill). These delays mean that it still needs to pass a raft of primary legislation against a rapidly shrinking timetable – as well as a high volume of secondary legislation.

 

The Government has introduced only a small proportion of the secondary legislation needed for Brexit

Expected number of Brexit statutory instruments, number laid by the Government, and number scrutinised by Commons (ESIC) and Lords (SLSC) sifting committees, as at 21 December 2018

Secondary legislation, usually in the form of statutory instruments (SIs), is used to flesh out the technical detail of measures contained in primary Acts of Parliament. Parliament delegates powers to government to draw up this legislation, which is subject to less scrutiny than primary bills. Between 2010 and 2015, an average of over 3,000 SIs were passed each year.[2]

The Government estimated in November 2018 that the UK Parliament will have to pass around 700 pieces of secondary legislation (on top of other, non-Brexit SIs) to ensure that British law continues to work after the UK leaves the EU.[3] This was a slight downwards revision of earlier estimates, which suggested that between 800 and 1,000 SIs were required. The figure has been revised down in light of the passage of some primary legislation that has superseded the need for SIs (for example, the Haulage Permits Act), and because the Government has in some cases been able to combine multiple SIs into one instrument.[4] In the event that a deal, including a transition period, with the EU is accepted by Parliament, the Government has stated that “a significant number” of these SIs may not be needed by Exit Day. But ministers have been unable to put an exact figure on this.[5] While ‘no deal’ remains a possibility, the Government’s target of around 700 additional SIs remains in place – though in January 2019 ministers suggested the figure may be revised down again to around 600. However, by the time that Parliament rose for its Christmas recess in December 2018, the Government had laid 297 pieces of Brexit secondary legislation – less than half of what it expects to lay in total.[6]

Some departments whose work is particularly affected by Brexit will have to introduce a significant amount of secondary legislation. Defra, for example, is due to produce 86 SIs, which between them refer to 850 separate pieces of legislation.[7] Departments including BEIS, DfT, HMRC and the Treasury are each expected to be responsible for between 10% and 15% of Brexit SIs.[8] According to analysis by the Hansard Society, Defra, BEIS and DfT have been responsible for the highest numbers of Brexit SIs so far.[9]

Of the 297 pieces of Brexit secondary legislation laid, 111 were subject to the more rigorous ‘affirmative’ scrutiny procedure, through which both Houses must agree to the SI. But the majority – 186 – were proposed by the Government to be subject to the less rigorous ‘negative’ scrutiny procedure, under which the SI will become law unless an objection is passed by either House within a certain time period.

Most of this legislation will be made under powers delegated to the Government by the EU Withdrawal Act. During the passage of the Act, parliamentary concern about the extent of these powers, and the need for Government’s use of them to be scrutinised, led to the establishment of a new sifting procedure for Brexit SIs.

Under this procedure, every Brexit SI that the Government proposes should be subject to ‘negative’ scrutiny is to be examined by a new Commons European Statutory Instruments Committee (ESIC), and the existing Lords Secondary Legislation Scrutiny Committee (SLSC). The committees assess whether each SI should be upgraded to the more rigorous ‘affirmative’ procedure. While the Government does not have to accept the recommendations of the committees, the relevant minister must make a statement explaining any decision to ignore their recommendations.[10] The Government has previously estimated that between 20% and 30% of its Brexit SIs will be subject to the affirmative procedure, and therefore do not require sifting by the ESIC or SLSC.[11] This means, based on the estimate of a total of 700 Brexit SIs, that each sifting committee can expect to consider around 490 to 560 pieces of secondary legislation.

However, the slow flow of Brexit secondary legislation laid by the Government has meant that the sifting committees were only able to consider 138 SIs (ESIC) and 140 SIs (SLSC) before the 2018 Christmas recess, with further SIs awaiting sifting in January 2019. Over the same period, ESIC recommended 27 proposed negative SIs be upgraded to the affirmative procedure, while the SLSC recommended that 21 be upgraded. So far, the Government has accepted the committees’ recommendations.

In response to concerns about the slow progress of Brexit secondary legislation, the Government indicated in October 2018 that it expects to pick up the pace in the coming months.[12] Departments heavily affected, such as Defra, have increased their legislative capacity, and the Government is working to improve their management of SIs.[13]

The Government has indicated that work is under way on all the Brexit SIs that remain to be laid, but the trickle of legislation so far will need to become a flood if everything is to be in place by Exit Day.[14]

The need to pass a high volume of secondary legislation against a tight deadline raises questions about the ability of Parliament to conduct adequate scrutiny – especially when there is already concern about existing scrutiny procedures for all secondary legislation.[15]

 

The Government has repeatedly made concessions to try to avoid defeats

Size of government defeats in the House of Commons, January 1919 to December 2018 (periods of minority government highlighted)

Minority governments are much more likely to be defeated in the Commons, as history shows. Prior to December 2018, and despite its fragile position in the lower House, the Government only lost two votes in the Commons: one in December 2017, during the passage of the EU Withdrawal Bill, and another in July 2018, on the Trade Bill.

However, on 4 December 2018, the Government lost three Commons votes in just one afternoon. Ministers were defeated on an amendment to a motion setting out what would happen in the event that MPs voted down the Government’s Brexit deal; and the Government also experienced two defeats over its refusal to release the full legal advice given to the Cabinet on the Brexit deal – including a vote which, for the first time, found a government to be in contempt of Parliament.

Since the beginning of this parliamentary session, the Government has been keen to avoid Commons defeats. To do this, it has adopted several strategies. At times, it has delayed bills when support from its own backbenchers has been in doubt. This happened on the Customs and Trade bills, and also on the (non-Brexit) Offensive Weapons Bill, which was supposedly rescheduled due to issues with parliamentary time, but is widely regarded as having been pulled amid fears of a backbench rebellion.[16] Most notably, in December 2018 the Government also chose to delay Parliament’s meaningful vote on the Brexit deal, in the face of a likely defeat.

The Government has also frequently made last-minute concessions to backbenchers. On the EU Withdrawal Bill, it accepted a number of amendments, including to strengthen scrutiny procedures for secondary legislation, which meant it avoided defeats. It employed a similar tactic on non-Brexit bills, for example making changes to the Data Protection Bill to reverse a requirement for NHS staff to share data with the Home Office, in the wake of the Windrush scandal.

As the Government faces further legislative challenges in the coming months, it may find itself pushed into making more concessions by backbenchers who are aware of its desire to avoid defeats.