Gov.UK

• Immigration Rules: Statement of Changes 1994-2026

House of Commons Library

• Immigration reforms, March 2026

• The immigration rules, July 2024

Hansard Society

• Proposals for a New System for Delegated Legislation: A Working Paper

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Intro: [00:00:00] You are listening to Parliament Matters, a Hansard Society production supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm.

Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.

Mark D'Arcy: And I'm Mark D'Arcy. And coming up this week.

Ruth Fox: Who really controls immigration law? Is it Parliament or the Home Secretary?

Mark D'Arcy: Pro assisted dying bill MPs gear up for a second attempt at legalisation in the next parliamentary session.

Ruth Fox: And the super bill before the Lords, that covers everything from abortion to AI, and that's just the first letter of the alphabet.

Mark D'Arcy: But first, Ruth, there seems to be trouble brewing for the Government over Home Secretary Shabana Mahmood's changes to the immigration [00:01:00] system, with dissident MPs and the former Deputy Prime Minister Angela Rayner signalling their opposition. The changes include big increases in the qualifying time for leave to remain in the country for different categories of refugees and immigrants, more stringent visa requirements, and new safe and legal routes. But most of those changes won't be made by the Government passing a new Immigration Act, but through a procedure set down in 1971, under Home Secretary Reginald Maudling, under which Statements of Changes to Immigration Rules are presented to Parliament, but MPs and Peers don't then get any chance to veto them.

So the brewing opposition in the House of Commons may struggle to have any direct impact.

Ruth Fox: Yeah, Mark, so I thought to guide us through the complexities of how these immigration changes are implemented, we should turn to Jonathan Featonby of the Refugee Council, who's a listener, and like me, he obsesses about delegated legislation.

So the Refugee Council, for listeners, is a charity set up in the aftermath of the Second World War to help refugees and [00:02:00] asylum seekers to rebuild their lives here in Britain.

Mark D'Arcy: Jon, welcome to the pod. First of all, I know as a regular listener, you'll have heard us opine a lot about this before, but two of the big sins of law making are one, giving excessive powers to ministers to determine what the law is through delegated legislation, secondary legislation, and two, doing it very late on in the game so that there really isn't much chance for any kind of scrutiny before the proposals are straight before Parliament to be voted through.

Jon Featonby: Yes, certainly and in my role at the Refugee Council, part of what I try and do is to work out what some of those changes are going to be, then trying to work with parliamentarians to scrutinise some of that as well. And we have specific issues with immigration rules changes and immigration law, and that so much of it is contained within immigration rules, which don't even have some of the same levels of scrutiny that even a normal statutory instrument should have.

And so for us to be able to respond to that in a timely way is very difficult. But for us to also [00:03:00] understand what that's going to mean for the people that we work with becomes very difficult too.

Mark D'Arcy: So give us a sense of, first of all, the scale of the changes that the Home Secretary's now proposing. How big a deal are these changes?

Jon Featonby: The Government themselves have described these as some of the largest changes for a generation to the asylum system. I take that with a slight pinch of salt because as you'll know, we get an Immigration Bill at least every two sessions of Parliament, if not more regularly than that. It's not like this is a policy area that lacks legislation, whether that's primary legislation, immigration rules changes, secondary legislation, everything else that comes with that.

I think what is particularly important about these changes is how much they impact the rights and entitlements of people who come through the immigration system in all kinds of different ways. So we are particularly concerned with the impact on refugees and people seeking asylum, but some of the wider settlement changes, which have had quite a lot of parliamentary interest recently, impact people have come through all sorts of various different immigration routes in recent [00:04:00] years. And really crucially, those people who are already in the UK are already working and living in communities too.

So they're far reaching both in terms of the number of people potentially impacted by it as well. But also far reaching in terms of the level of that impact and particularly the changes to settlement and people who may have been some weeks or months away from being able to access settlement, that permanent status within the UK, could suddenly find themselves facing that time being quadrupled. Or in the case of some refugees potentially quadrupled up to a 20 year wait.

Ruth Fox: And Jon, ultimately, when these changes come through, are you expecting them to come through Statements of Changes to the Immigration Rules, or are you also expecting some additional primary legislation?

Jon Featonby: We're expecting the vast majority to be done through Statements of Changes and we saw the Statement of Changes that was laid earlier this month has started to enact some of the changes as they [00:05:00] apply to refugees. So for anybody who has now applied for asylum as of the 4th of March, if that claim is then granted, that person will get two and a half years initial leave, rather than five years as it has been, in the future.

Those rules changes haven't implemented any of the changes to settlement. But the understanding is, and what was said around those rules changes that people who get that two and a half years granted leave will be into this new route to settlement, which for refugees will be a starting point of a 20 year wait to settlement rather than the current five years. But the actual detail of that is expected in a future Statement of Changes to Rules, and those wide as settlement changes for the rest of the earned settlement consultation response is expected to be implemented in the autumn Statement of Changes to the Immigration Rules. There's generally at least two statement of changes to the Immigration Rules each year, a spring and an autumn one. We just had the spring one.

Mark D'Arcy: It's just like the budget really.

Jon Featonby: [00:06:00] Yeah. The Home Office always tell us that there's supposed to be these autumn and spring ones. There are quite a lot of ad hoc ones in between that now as well, and definitely in previous recent years we've had five, six statement changes within the year as well, so we are expecting expecting quite a lot in the autumn one now.

Mark D'Arcy: Perhaps we could nail down this idea of a Statement of Changes. This is something that, in other laws, it might look a bit like a statutory instrument. It's a way of ministers changing the rules, but the procedures are even less open to scrutiny by Parliament than they would be for statutory instruments, which are not exactly a model of open democratic scrutiny to start with, so talk us through what these statements actually are.

Jon Featonby: So the Immigration Rules date themselves back to what is the Immigration Act 1971, which made quite a lot of changes. The 1971 Act pretty much got rid of any immigration law that existed before it, brought it all into one place, and within that legislation was the ability for the Home Secretary to set out Immigration Rules.

And these are rules around the particular bit of the [00:07:00] immigration systems that are to do with people being granted permission to enter and then stay in the uk. So there's bits that aren't covered in the immigration rules. But a lot of that, the core bit really, about what we talk think about in terms of the numbers of people arriving and the numbers of people staying, there is a power set out in the 1971 Act for the Home Secretary to set that out in these Immigration Rules. The rules then have their own form of parliamentary scrutiny. They're not classified as a statutory instrument. They're not covered by the Statutory Instrument Act. And what the 1971 Act says is that the Home Office has the power to bring forward these Rules as and when they see fit.

And then Parliament is able to have a debate on them under what is known as a disapproval motion. So the wording in the 1971 Act is that Parliament can disapprove the Statement of Changes to the Rules within 40 days of that Statement of Changes being laid before Parliament. That feels very much like the negative procedure for statutory instrument, but I think one of the key differences, and one of [00:08:00] the things that sometimes gets missed, is that whereas with that negative instrument, if Parliament passes that motion against that statutory instrument, that statutory instrument is no longer law, even if it has already taken effect.

The disapproval motion is kind of, the clues in the name, that it is Parliament just saying that we disapprove of this. It doesn't actually have any legal effect.

Mark D'Arcy: So mPs can kind of pout at it, but it doesn't stop it.

Jon Featonby: Exactly. So it remains law. What the 1971 Act does say is that the Home Secretary should then come forward with a further Statement of Changes trying to address those concerns that have been raised when that disapproval motion was passed, but it doesn't actually necessitate them to do anything. And in terms of, obviously, the people who are impacted by those changes, it remains the law and how the Home Office and how the Home Secretary is going to actually operate the immigration system.

Ruth Fox: So it's actually a huge amount of power in the hands of the Home Secretary with very little parliamentary grip, even less than you get with a statutory instrument, precisely because of [00:09:00] that point that it's disapproval not outright rejection and effectively the instrument being annulled. But it's worth saying it's very rare for Parliament in modern times to have a debate on Changes to Immigration Rules. And as far as we can tell, and I owe the House of Commons Library a debt here on their paper that they published, I think about 18 months ago, they only found two instances, I think, where these Statements of Changes had been debated and disapproved, and that was 1972 and 1982. So it's a very long time.

For the House of Commons and the House of Lords to have any traction, you are into texactly the same problems you have with the made negative scrutiny procedure for statutory instruments, Mark, you know my favourite subject today. It's all circular.

So in the House of Commons, an MP would have to table a prayer motion in the form of an early day motion to seek a debate. But the government controls the order paper, so there's no guarantee that the Government will make time available for it. Now, it's worth saying, Stella [00:10:00] Creasy, the Labour MP has tabled a prayer motion, an EDM, precisely about the Statement of Changes, Jon, that you were just talking about, that were were laid before Parliament earlier this month.

And in the House of Lords, again we go back to one of our favourite committees, the Secondary Legislation Scrutiny Committee does look at them, but again, the elected house doesn't have a mechanism unless the Home Affairs Committee chooses to scrutinise them, and it's not a natural part of their work. The elected House doesn't have a model for it, but the unelected house is monitoring them in the Secondary Legislation Scrutiny Committee. How effective is that?

Jon Featonby: The Secondary Legislation Scrutiny Committee does a great deal of work, and as you said, because of the lack of other mechanisms, certainly from our point of view and other organisations' interest in how rule changes work, that is one of the places we will try and submit evidence to, to try and reflect on what we think has been done, and particularly where there are some questions that we think need to be asked about how those rules changes are going to be made.

And quite regularly now that committee will draw [00:11:00] rules changes to the attention of the House of Lords as well. There's been particular issues that committee has had with the level of the information that comes alongside those rules changes, the evidence for the impact of those rules changes as well. And they've called ministers in front of them a couple of times in recent years to try and get more information out and to try and push for that better information too.

We do see rules changes being debated slightly more regularly in the House of Lords and that there are two regret motions that have been tabled to these recent rules changes, one by Lord Dubs, one by Lord German.

And I think that debate is probably likely to happen shortly after the Easter recess.

Mark D'Arcy: But the regret motions wouldn't stop them, would they?

Jon Featonby: Exactly, yeah. I mean, similarly there's an underlying issue I think with the Immigration Rules that there isn't an equivalent of the fatal motion anyway, so it almost has a similar effect.

But yeah, they absolutely wouldn't stop it. What we have seen in recent years is even when those regret motions have been tabled, the Government has only found time for them far after the 40 day window [00:12:00] anyway. There's been several where they were actually ended up being debated 6, 7, 8 months after they actually come into force too.

But then, as you say, from the Commons side of things, the last time we were aware that the Commons even debated a Statement of Changes was 2008 in a motion brought forward by Chris Huhne. But see, since then we've had 17 years of Statements of Changes, so probably 50 plus Statements of Changes in that time, none of which, the actual detail of those changes, have been debated by the elected chamber, and obviously some of those changes make relatively minor tweaks to it. But we've also seen during that time substantial changes to the rights and entitlements to people either trying to get to the UK or those people who are in the UK as well, without any real scrutiny of what those changes will mean.

Mark D'Arcy: It's absolutely extraordinary, isn't it? That there is so little ability for either the elected MPs or the peers to have any real influence on these changes. You can pass a motion disapproving and then maybe hope [00:13:00] that the Home Secretary will go away and come up with new proposals that turn your frown upside down.

But it's entirely possible, isn't it, for Shabana Mahmood to go away and say, well, they've disapproved of this, but we don't really mind.

Jon Featonby: Exactly. Anything immigration related is one of those factors, it gets debated a lot in Parliament, it's not like we are short of parliamentary debate on immigration and within sort of the wider political context as well, but when it comes down to the detail about what's being proposed, there's very little scrutiny of it. Obviously we do get these Immigration Bills that go through, but so much detail is contained within the Immigration Rules in a way that was never really expected to be the case, going back to 1971, when obviously the system of these rules was first set up.

But it means that there's very little scrutiny of them, and I think this should be a concern whether you are somebody who has a more of a positive view towards immigration, or even if you're somebody who's concerned about the scale of immigration. I think it probably noteworthy that some of the liberalisation of the immigration system under Boris Johnson's government was done [00:14:00] pretty much solely through Immigration Rules changes without any real parliamentary scrutiny, without really then therefore the Government setting out what they expected the implications of some of these changes to be as well.

Ruth Fox: Alongside the Statement, they have to produce an Explanatory Memorandum, a bit like they have to do with the statutory instrument. But those are, I think it's fair to say, and probably the secondary legislation scrutiny committee picks this up, those are a variable quality and obviously there's no process also of holding the government to account for what they said they thought the impact was gonna be compared to what actually happens. You would've hoped that something like the scandal of Windrush would've prompted some thinking around this, but some of the problems that led to Windrush were through Statements of Changes, weren't they?

Jon Featonby: Yeah, exactly. It's the things that happen to the immigration system, and again, so much in terms of how people's rights and entitlements, and particularly those people already here completely lawfully, how much that can be changed through Immigration Rules, I think is a really vital point because it just means that it doesn't get that same level [00:15:00] of scrutiny, doesn't get that same level of testing, and I think anyways, part of that, you don't get that same level of the Home Office having to really understand what the impact is gonna be and probably testing their own policies as well. As you say, we get these Explanatory Memorandums alongside the rules changes, which is sort of largely narrative about what they think they mean in practise.

Alongside that as well, we get, at times, various impact assessments, setting out some of these things. But for example, with the most recent rules changes, one of the biggest impacts within those rules changes was this move to granting people two and a half years leave rather than five years leave. There's no impact assessment being published alongside that, so we don't understand what the Home Office thinks that will achieve in terms of maybe acting as a deterrent for people arriving irregularly into the UK, but also in one of the things that we are really concerned about it, what it's gonna mean in terms of the impact on the Home Office, because they're gonna have to review people's status that much more regularly. So the Home Office haven't said what that's going to mean for [00:16:00] them either. So these huge tranches of changes to immigration law as the rules have now become that don't really set clearly this is what the Home Office expects to happen. Which I think also then has a knock on impact when you go back in the future years to see what impact the policy has had. Actually has it met government objectives? Has it met government expectations? Which should really form part of the policy making process and that learning from how past policy development has gone as well.

Mark D'Arcy: Labour MPs are signing letters attacking this policy and opposing the changes that are being proposed. But given the democratic deficit around this kind of rule change, they don't really have many ways to express their opposition.

Jon Featonby: Those are obviously the kind of mechanism that people then have. We have Home Office oral questions happening next week. I'm sure some of these changes will be part of that as well.

We will quite often try and work with MPs to secure debates through Westminster Hall debates, but none of that ever gets to [00:17:00] that detail about actually what is in the Statements of Changes themselves, but also the breadth of the statement of changes too. The ones that were published earlier this month, there were some of the headline grabbing changes, particularly around the length of leave granted to refugees. What was described as the visa brakes for people coming from particular countries on student and work visas as well.

But there's all sorts of other changes in there. There's a sort of a relatively minor tweak to how access to work for somebody who's stuck in the asylum system works, for example. None of that will ever get any proper scrutiny because there's quite vast change to the immigration rules, but unless it's been one of those headline grabbing things that then might get that follow up question or that letter or whatever it might be, there's not that much pushback on it.

And then as you say, there's no way then for a parliamentarian to ever use that vote within Parliament really to push back on it. They might try and do something for a future piece of primary legislation to influence what is either in the rules currently, or might be in the rules in the future.

But until [00:18:00] that point, the Home Secretary has just got this power to make these changes. And what I think we've increasingly seen from the Home Office as well is that those changes have applied either immediately or again in looking at the most recent changes, applying to people who are already in the system. That's certainly one of those main concerns about that wider changes to settlement, that those changes that we might see being brought in the autumn could apply people who have been lawfully in the UK for five years, potentially changing their rights and entitlements overnight.

Ruth Fox: And that's the problem, also, we see, Mark with delegated legislation. You know, one of the problems is once it's implemented, there's a real reluctance on the part of parliamentarians to start rolling it back because it's already in train and it becomes a real problem.

Just going back, this is all shaped, as you've said, Jon, by this 1971 Immigration Act, and we've had an awful lot of other legislation since, we've got primary legislation, we've got. Statements of Changes to Immigration Rules, we've then got below all of that an [00:19:00] absolute enormous volume of policy and guidance that the Home Office issues. For example, the Hansard Society used to be a tier four visa licence holder for our international scholars programme. And the complexity of navigating that system and all these guidance and rules was immense. It seems to me that if ever there is an area of legislation which is crying out for some kind of consolidation and trying to reduce the complexity, this is it. There have been efforts in the past, but they founded. I can't imagine that the politicians in 1971 who legislated for this system, ever imagined that the system would look like this 50 odd years later. Is there any kind of push anywhere to get some consolidation or are we just gonna keep adding layers on layers on layers?

Jon Featonby: There have been sort of in relatively recent memory moves to try and simplify and to consolidate the immigration rules and there's some work led [00:20:00] by the Law Society around 10 years ago.

The issue that comes along this though is that so much, it seems, is led by political mood rather than kind of really long term thinking or plan about the immigration system because there is so much leeway to make these changes within immigration rules, even where there are those desires to try and simplify processes, you end up with ever more complication.

You look at the immigration rules as they are now. You've got various chapters, various parts, and then what's feels like an endless list of appendices now to it as well with the various different routes that spring up. Some of those are in the response to humanitarian situations. You get various appendices to deal with, say, the Afghan programmes, the Ukraine schemes, but then you get all the different types of the tier four visas and everything else that falls within those as well. Global talent visas. And rather than just having either a system which is quite straightforward, which exists within primary [00:21:00] legislation, and maybe some of that detail then sits within more traditional second legislation or then policy guidance.

So much of obviously what's contained in the rules doesn't have that sort of parent legislation that speaks to it. I mean absolutely tthe 1971 Act as it was passed, nobody at that point could have even imagined what an immigration system looks like in 2026, at that point. We're a vastly different world, and when the 1971 Act was going through Parliament, there were two draft Statements of Changes, Statements of Rules, that were published alongside that, so that parliamentarians at the time could understand what at least that first set of rules was going to look like. But even combined, they were about sort of 40 to 50 pages. It's quite hard to work out exactly how many pages the current rules would run to because of the way that they're framed on gov.uk, but I think you've probably got as many chapters or appendices as that now anyway.

And the idea that a power that was given back in 1971 by Parliament [00:22:00] reflects now the actual power and the scope of the Home Secretary to make these changes is certainly sort of one of our concerns around how legislation is made in this area.

Ruth Fox: It's one of those things. Mark, a colleague of mine said in the office when we were discussing this earlier this week, it's almost like the home Secretary has got a prerogative power of her own to manage the King's borders.

A very historic, massive amount of power, which would once have resided with the sovereign, and then it carries on in the form through this Act.

Mark D'Arcy: It kind of raises the question, really, Jon, what does an organisation like yours do to try and have any influence at all over these rules. Where do you go? Who do you speak to?

Jon Featonby: What we will try and do is shape the rules beforehand where we can, so there may be things that we know are coming. So we will try and speak privately to Home Office officials, Home Office ministers around that as well. The Refugee Council, we provide the secretariat for the all party parliamentary group on refugees as well.

So we have that [00:23:00] caucus of parliamentarians who will try and use both their abilities to influence privately, through parliamentary questions and then those other routes too. And then after that, and we've certainly done it in the past around change that we tried to see, for example, around the ability for refugees to be reunited with their family members.

We have used either private members' bills or primary legislation itself, and it's been going through Parliament in terms of government bills to try and lay amendments, which would require the Home Office to then bring forward changes in the Immigration Rules as well. But it's both trying to react in a parliamentary way to things that have then been changed in rules. We are then relying on there being those upcoming vehicles to be able to do that through one of those legislative vehicles. If not, it's trying to do it through those other mechanisms and then what we and others also end up doing, and this area is particularly prone to this, I think, a lot of this ends up being contested in the courts too.

Mark D'Arcy: Well, Jonathan, thanks very much [00:24:00] indeed for joining Ruth and me on the pod today.

Ruth Fox: Thanks, Jonathan.

Jon Featonby: Thank you for having me.

Ruth Fox: Well, I think Mark, after that high fibre discussion, we should take a quick break and when we come back talk about another example where ministers are seeking extensive new powers, but this time over artificial intelligence.

Mark D'Arcy: Join us then. And we are back. And Ruth in the House of Lords, they've been busy dealing with the Crime and Policing Bill, which is now a mega bill of quite awesome size. Peers are complaining it's more like three bills in one. It's what's known in the trade as a Christmas Tree Bill. So many different baubles have been hung upon it.

Ruth Fox: Yes. I mean, if you look at the long title of the bill Mark, it's always a good indicator, deals with antisocial behaviour, offensive weapons, property offences, criminal exploitation of persons, the border force, it deals with control of terrorism, national security, and artificial intelligence, which we will come on to in a moment, as well as as abortion.

It started out at 308 pages when the Government first presented it in the Commons to [00:25:00] MPs. It's now having left Committee in the House of Lords, it's 479 pages. And, as you say last night, peers were up until the early hours amending it further. Who knows, it'll grow even bigger. But it's a perfect example of how difficult it is to scrutinise a bill like this when there's so many, as you say, Christmas tree baubles hanging off it.

Mark D'Arcy: And on such a wide range of subjects as well.

But as we were saying in our discussion with Jonathan Featonby, two of the deadly sins of legislative bad practise are, first of all, coming to issues very late in the day, amendments when the bill cleared the Commons, is now before the House of Lords, suddenly great new provisions are stuck onto a bill.

And also skeleton bill type amendments that just say, well, somehow or other we've gotta deal with this issue. And when we think of how we're going to do it, when we finally come up with a policy, we'll have the power to implement it, because it says so here.

Ruth Fox: Yeah. And the third deadly sin is a Henry VIII power to use regulations to amend an Act of Parliament that's already been passed by Parliament. And [00:26:00] to do it through, you know, lesser scrutinised regulations. And that's exactly what's in this bill.

So the Government has tabled during Report Stage, as you say, the bill's been through the Commons, it's in the final stages in the Lords, and the Government wants to insert a new power in the bill so that they can essentially amend the Online Safety Act of 2023. So a bill that they dealt with several years ago so that they can amend any provision of that 2023 Act by regulations. And the only constraint on it is that it's got to be connected with mitigating the risk of harms arising from what they describe as illegal artificial intelligence generated content, or the use of AI services for the commission or facilitation of what are described as priority offences, so serious offences that are listed in that 2023 Act. Essentially, it could apply to things like the AI chatbots, which of course are, you know, a new development over recent years. But if you remember, the [00:27:00] Online Safety Act went through extensive scrutiny in the Commons.

Mark D'Arcy: A real legislative merry-go-round. It went through endless committees, stopped, started restarted.

Ruth Fox: I think they had at least two iterations of the bill, two goes at it, it had pre legislative scrutiny, and here we are a couple of years later after it was passed and the Government's wanting to make significant changes to deal with the challenge of artificial intelligence on the internet, on all our software, on all our devices and the harms that it can do. And of course, the focus of the political debate is very much around the harms, particularly for children.

Mark D'Arcy: I suppose in the Government's defence on this, this is such a fast moving area, new manifestations of how AI can be applied, how the internet evolves, are there every 30 seconds, it sometimes seems. And ministers have to move pretty fast to deal with them when they are manifestly very harmful. So maybe there's unusually in this more of a case than there sometimes is for these sweeping Henry VIII powers that ministers love to take.

Ruth Fox: Yeah, [00:28:00] that's true. And that's why in our reform proposals here at the Hansard Society, for for the way in which delegated legislation is scrutinised by Parliament in the future, we actually think if you can fix the delegated legislation system, you need to worry less about very broad changes that are put into powers in Acts of Parliament and focus on the regulations at the point at which they come through, and you know exactly what it is the government wants to do.

At the moment, you're kind of scrutinising the hypothetical. So the ministers get a very broad power and you don't know how they're going to be able to use it. And equally, having got that power, you don't know how they'll use it in 2026 or 2027, but that power's gonna sit on the statute book for years, how they might want to use it in 2036 or 2037,

Mark D'Arcy: How a completely different government might wish to use it from a completely different set of first principles.

Ruth Fox: Absolutely. But the power that they've got is so broad that they can create new criminal offences, they can impose new fees and charges, they could confer further [00:29:00] legislative powers and you know, legislate through guidance and issuing of codes of practise and so on. And they spent an inordinate amount of time in the Online Safety Act debating how these things would relate to the provisions covered by that act. And here they are looking at applying all of that kind of thing, to artificial intelligence, but without any really detailed debate or detailed understanding of how it would work in the AI context. So partly because it's late on, it's rushing through the Lords, and you've gotta be very wary about granting ministers powers to amend legislation that Parliament has already established.

Mark D'Arcy: It's an incredibly tricky area. And I suppose when this bill bounces back to the Commons, presumably with these amendments attached to it, MPs really won't have very, very much time to talk about it at all.

You know, typically they get a basket of amendments that they deal with collectively in about 45 minutes. So this will not be something that MPs get an [00:30:00] extensive chance to talk about when it's, as you say, very, very important and very, very sweeping, and nobody knows how it'll be used in a few years time.

Ruth Fox: Well, the Government's now got a decision to make. Because Baroness Kidron tabled a group of amendments to the Crime and Policing Bill itself to create two new offences. The first one is of creating or supplying an AI chatbot which creates content that would result in terrorist offences or threats to national security. And the second offence would be to create or supply a chatbot that produces illegal content or content that's harmful to children as defined under the Online Safety Act. Now, the lead amendment in this group passed comfortably. Peers voted 203 to 148 yesterday evening. So the Government will have to decide once the bill goes back to the Commons whether they'll accept these amendments or insist on their removal or offer an alternative.

Mark D'Arcy: And they should certainly look at it seriously. Baroness Kidron is one of the Lords' in-house experts on this kind of issue. I mean, it's quite [00:31:00] easy to run away with the idea most peers are stuck somewhere in the 17th century scraping away their amendments with a quill pen on vellum, but she's someone who's probably more up to date with this stuff than most MPs. So she's well worth listening to and she deserves a serious response. But again, you've got a situation where MPs will have very, very little time to talk about this, and it'll doubtless be bundled up with several other issues as well.

Ruth Fox: Yeah. Meanwhile, I thought initially that there might be considerable opposition to the Government's amendment to its Henry VIII power to amend the Online Safety Act and to give itself this power in future to change that Act in relation to AI via regulations.

But the Lords didn't get to vote on that until five to one in the morning. So I'm afraid I'd given up, Mark, watching it on the parliamentary website and gone to bed.

Mark D'Arcy: Oh, shame on you, shame on you.

Ruth Fox: But 83 hardy peers stuck around to vote with the Government in the wee small hours, but there were only 64 opponents who stuck it out to vote against. So the Government got its amendment and when that obviously [00:32:00] goes back to the Commons during ping-pong or Commons consideration of Lords amendments as it should probably be known, essentially that will be accepted, given the Government's inbuilt majority in the Commons.

Mark D'Arcy: You've gotta admire the 147 peers who did stick it out for 1:00 AM.

But it's worth saying also that 351 were involved in the division on Baroness Kidron's original amendment earlier that evening. So what that goes to show is the attrition you get in these long drawn out sittings. And the how the timing of divisions on amendments to these big government bills does have an impact on the results. The later you go, the more hardcore the people doing the voting are. But unless there's a very unusual development, the Government will have its way and will get its power to amend the Online Safety Act by regulation, which will attract a lot less scrutiny than having a full dress bill.

Ruth Fox: Yeah. And now an argument in the Lords is why, if these matters are really important, if AI is gonna be so critical in the future, why did they not do it through further primary legislation rather than regulations? [00:33:00] And of course the answer is administrative convenience. The government wants to push on and get this done quickly.

Mark D'Arcy: And maybe the awful feeling that by the time they've legislated the whole online world would've moved on again. And there'll be a whole new layer of technologies and they'll be talking about yesterday's technology rather than tomorrow's.

Ruth Fox: Yes. And we're talking about chat bots now, but I mean, who knows what the successor to the chatbot goodness knows will be.

But that is a growing problem about the way we legislate and we focus so much on what happens in bills, the regulations get much less attention. I actually think because in particularly in these sort of fast moving areas, we need to change the balance of focus.

Mark D'Arcy: The regulations are much more significant, and frankly the Commons needs to develop ways of addressing this much more effectively than it does. And of course, the other issue beside it is that it's usually inconvenient for Governments for that to happen. Yes, all oppositions are in favour of controls on the evils of secondary legislation and skeleton bills and Henry VIII powers for ministers, and all governments do a four minute mile up the road to Damascus and decide that they actually quite like [00:34:00] them when they're the ones employing them.

Ruth Fox: We've talked about it so often on the podcast. It's one of the critical questions about how do you bring about parliamentary reform when the politicians in opposition oppose governments pushing through things, rushing through unscrutinised, but as soon as they get the chance to do it themselves, of course they do. They love it.

Mark D'Arcy: Well, the Crime and Policing Bill is of course an extremely wide ranging bill, and there are all sorts of different segments of it that we could talk about. But the one that was causing a lot of heat in the House of Lords this week was the section on abortion.

Now, there's some backstory here in the Commons. An amendment promoted by the Labour back bencher, Tonia Antoniazzi was brought in, which to some extent decriminalised late term abortions in circumstances where women were trying to stop their own pregnancy. It was trying to stop them then being prosecuted for doing that, and that came up in the House of Lords.

But there was quite a passionate debate. And amongst other things, the new Archbishop of Canterbury, Sarah Mullaly, had to break off the [00:35:00] pilgrimage to Canterbury that she was engaged in to come back to the Chamber of the House of Lords to oppose the changes that Tonia Antoniazzi had made and try and strike them down.

Ruth Fox: Yeah, I mean, there's been an awful lot of confusion about this proposal, but that was inserted in the Commons, a lot of criticism because again, it was pushed through quite quickly and abortion was not part of the Crime and Policing Bill, this was not a government amendment, it was a backbench amendment, and, you know, abortion sort of added to this bill felt somewhat uncomfortable. So significant change, of course, to the Abortion Act 1967, but it's important to say this does not decriminalise abortion. It is still for doctors and medical professionals, the provisions of the 1967 act still apply, so decriminalising it where essentially an abortion is performed by the woman herself at any point up to and including birth. So it's complex in terms of the legislation, it was debated quite quickly in the House of Commons, there was a lot of criticism last night in the House of Lords about that from opponents of this who think

Mark D'Arcy: Essentially they just thought it had been a rather casually made change.

Ruth Fox: [00:36:00] Yeah, I think that's probably unfair. I don't think it was casual, but the way of things in the House of Commons, particularly where government bills are timetabled, means that often these things are dealt with quite speedily.

And last night, there were two amendments proposed by peers who were opposed to this decriminalisation to try and remove the Tonia Antoniazzi provision. So Baroness Rosa Monkton had a proposal to remove the clause altogether. That was defeated by peers, so she didn't get the support she wanted, 148 voted with her, 185 against. So that main clause, it's retained in the bill. And then there was another related amendment from Baroness Stroud to reinstate what are described as in-person consultations with a medical professional prior to an abortion taking place at home.

So essentially before abortion pills can be prescribed. And that was, again, also rejected, more heavily this time. So Baroness Stroud got [00:37:00] 119 votes in support, but 191 peers voted against. So that provision for decriminalisation remains in the bill.

Mark D'Arcy: And we should say that that particular issue was a legacy of the pandemic, when the rules were relaxed to allow abortion pills to be sent to women at home and taken at home simply because they couldn't otherwise break the lockdown. It's something that then stayed after the pandemic.

Ruth Fox: Yeah. So it goes back to, the legislation will go back, to the Commons in due course and that seems to be it for the moment.

Mark D'Arcy: Just one other generic point you could make that one of the difficulties you get with these very widely drawn omnibus bills with all sorts of stuff in them is that they are quite easy for people in the Commons to stick on additional amendments.

And this is why these bills expand so rapidly. If you've got a Crime and Policing Bill or a Crime and Courts bill, it's very easy to draw up amendments that work within the long title of the bill are therefore permissible on issues that aren't particularly addressed within the bill. So it's a way that smart MPs can pick up an issue of their choice and put it into legislation.

Ruth Fox: [00:38:00] Yeah. I mean, it's easier to try and get it debated, harder to win the support. I mean Tonia Antoniazzi's a fairly unusual case these days to get to,

Mark D'Arcy: But Stella Creasy for example does it quite a lot.

Ruth Fox: Yeah. I mean, she's the

Mark D'Arcy: Past master of this.

Ruth Fox: And now actually, interestingly on this, she had an alternative amendment to Tonia Antoniazzi and there was quite a bit of, you know, friction in that debate back in the Commons in June last year of competing amendments and it was Tonia's that won out.

Well with that Mark, I think, we should take another break and come back and talk about the assisted dying bill. Now, a lot of the issues raised last night and a lot of the lineup of supporters and opponents of the abortion provisions also feel similarly about the assisted dying legislation on moral grounds.

But there's been quite a few developments this week in the assisted dying bill, and we should come back and talk about them.

Mark D'Arcy: Yeah, definitely a lot of action on stage and off stage.

Ruth Fox: See you in a minute.

Mark D'Arcy: And we are back. And Ruth, the [00:39:00] assisted dying bill still becalmed in the House of Lords, but there's been plenty of action off stage in Holyrood. The bill to bring in assisted dying in Scotland has been thrown out by MSPs. While in Westminster, MPs are now making preparations for their next move, if, as expected, the Kim Leadbeater - Charlie Falconer assisted dying legislation runs out of time in the House of Lords. A new all party group on Lords Reform is sabre rattling about clipping their Lordship's wings to stop them from doing the same thing in future, and I hope you'll forgive the mixed metaphor.

Ruth Fox: Well, Mark a hundred Labour backbenchers have also written to the Prime Minister this week demanding debating time in the next parliamentary session, which we've talked about the timing of, and we're expecting it mid-May, but it's not confirmed, for a second attempt to force the legislation through Parliament, if necessary using the Parliament Act. That of course, we've talked about on our special episodes of the pod previously.

The coordinator of that letter is Peter Prinsley MP, who's a former NHS surgeon. Used Commons business questions this week to [00:40:00] press the Leader of the House of Commons on the issue, and he joined us hot foot from the Chamber shortly afterwards.

Mark D'Arcy: Peter Prinsley, thanks very much indeed for joining Ruth and me on the pod this morning.

I wanted to ask you, first of all, it seems pretty clear now the bill in the House of Lords, the assisted dying legislation there, is not going to get through the House of Lords in time to become law in this parliamentary session.

So it seems to me that the debate is now shifted to what happens next. What sort of attempt will be made to pursue this cause in the Commons in the next session. And that really was the point of the letter that you got a hundred Labour MP colleagues to sign and send to the Prime Minister. What were you attempting to get out of the Prime Minister?

Peter Prinsley: Well, specifically, we asked for a meeting with the Prime Minister so that we could discuss what should happen next.

What we got was a reply from the Leaders of the House of Lords and the House of Commons, a short reply saying that the intention of the government was that this would remain a private member's [00:41:00] bill. There was no proposal to allot government time for this to happen. I think you're quite right that it looks very much as if the bill cannot pass in this session because of what many have regarded as a filibuster in the House of Lords by a small number of very determined peers.

So in order for the matter to be brought back into the Houses of Parliament next session, there seem to be two options. One is that it would come back as a private member's bill if one of the supporters of the bill came high in the ballot. There's a lottery that takes place to work out which of the backbench MPs get the opportunity to bring a private member's bill.

Now, we do have a lot of supporters, so there's quite a high probability that one of the supporters will come high enough in the ballot for it to come back as a private member's bill, but there's no guarantee, no guarantee of that, and failing that, what we wanted to ask the government was to allot some parliamentary time in government time, but not necessarily with the government expressing its distinct [00:42:00] support for this matter, so that it could be debated, it would go through a second and third reading in the House of Commons. If it was exactly the same bill, I don't believe it would need to go to a Committee Stage, or it could have a quick Committee Stage done at the same time, and then it would go back to the House of Lords, where I expect if it's the same bill, the same thing will happen and it'll get stuck, at which point the Speaker of the House of Commons is the person who has the jurisdiction to say that this is now stuck. He will enact what are called the Parliament Acts, and it'll go straight to the Crown for Royal Assent.

As some people have told me, a private member's bill has never previously been subject to the Parliament Act, but there's no reason why it couldn't be. So I think one of those two things will happen, but I don't think that the members of the House of Commons are content to let matters rest.

Ruth Fox: And Peter, your group of MPs, I mean, have you sort of explored in detail the way the Parliament Act works because even if it comes back as a private member's bill through the ballot, you're [00:43:00] still going to need the government to table the procedural motions necessary on a Friday to ensure that the bill doesn't get amended at committee and report stage.

And there's this special process in the Parliament Act or a bill going back in a second session that's unamended to the Lords, of this sort of suggested amendment stage. And it seems to me one of the problems with the bill is that Lord Falconer has tabled a lot of amendments in the House of Lords to this and clearly some, perhaps not all, but some are amendments that the government wants, that it feels are necessary to improve or sort out some anomalies in the drafting of the bill, and they therefore need to be put to the Lords through this suggested amendment stage. So a ballot bill in and of itself doesn't resolve the fact that the government somehow is gonna have to get involved unless procedures are going to be changed.

Have you had discussions with the government, with the whips, with the Speaker's office about any of [00:44:00] those?

Peter Prinsley: Well, we have had some discussions about this, and I think you're quite right that for the bill to just simply be enacted by means of the Parliament Act, it has to be an identical bill. But I don't think that there's a reason why there couldn't be amendments made in the Lords that then could come back to the Commons and be agreed. That's my understanding of it. But you're quite right that if that were the case, some time would need to be made available in the government time for that to happen. I think the problem that the government has, it doesn't want to make it a government bill because there are members of the government, including senior members of the cabinet, who are opposed to the bill, are known to be opposed to the bill, and of course, this is a conscience matter. Everybody agrees it's a conscience matter, so I think there is some parliamentary procedural thinking that needs to happen, but I don't think that it's impossible for this to be brought back in the next session and for it to pass.

Mark D'Arcy: There are two questions here really, aren't there?

There's first of all the procedural hurdles that you need to find a way to overcome, but the [00:45:00] second question, almost the more fundamental one. Is there really going to be the political energy behind this bill to have another go? Is this really what Labour MPs want to be devoting vast amounts of energy to in the next parliamentary session, given all the other crises exploding on all fronts at the moment?

Peter Prinsley: Well, I think that's true, but this is the biggest piece of social legislation change that will be enacted in this Parliament. I mean, interestingly, I've just been reading the fantastic little biography of Harold Wilson by Alan Johnson, which is a short but marvellous book, which describes what happened when Harold Wilson first became the Prime Minister.

And you know, and within a few months of him coming into government, he'd abolished the death penalty, they'd legalise consenting homosexuality, they'd removed the censorship of the theatres, there was a whole draught of absolutely societal changing legislation that came in as this new government arrived.

We came in with a big majority a year and a half ago, [00:46:00] and we have made some changes, but you know, this change, the change to legalise assisted dying in this country would be an enormous political achievement and having seen it get stuck in Parliament, I think there'd be very significant dismay in the country if it were the case that Parliament was seen not to be capable of actually getting this thing done.

And I believe that in a way, although it's a private member's bill, the people of the country don't really understand the difference between a private member's bill and a government bill, and it would be seen as a government, which wasn't able to get stuff done. And so I think that there's a political imperative now for this to happen.

Mark D'Arcy: There's another point here, which is that when Harold Wilson was faced with the legislation to legalise abortion, one of his reasons for pursuing it and allowing it to go forward and providing a bit of behind the scenes government support was that he knew the cause would keep coming back if he didn't. Is that the case that people [00:47:00] like yourself, your people who signed your letters on the Labour backbenchers, are determined to keep bringing this up?

Peter Prinsley: Absolutely. And this is not a measure which will go away. This will keep coming back. And if it doesn't pass in the next session, there'll be another session, probably two, at least two more sessions before the next general election.

And so this is a matter that has to be addressed. And in a way, I think that the Prime Minister himself needs to consider that and work out whether he wishes there to be a very significant piece of social legislation, which would become a legacy of this Parliament.

Ruth Fox: Peter, this letter, you say you've got over a hundred signatures.

Has it been published, and will you be publishing that and the response from the government?

Peter Prinsley: You know, I wonder if it has been published, I think it was.

Ruth Fox: I've seen extracts in the media reports, but I've not seen a copy of the letter, or indeed, more particularly the list of MPs that have signed it. I think there's some questions about, well, who are these a hundred MPs?

Peter Prinsley: Okay. [00:48:00]

Ruth Fox: Publish on your website, perhaps.

Peter Prinsley: To be honest with you, I don't know the answer to the question about whether a decision has been made for this letter to be published.

Ruth Fox: Okay. The other aspects of this is, the reaction to what's happened in the House of Lords, is that there's a new all party parliamentary group on House of Lords Reform.

Are you involved in that?

Peter Prinsley: No, I'm not actually. To be honest, I'm involved in so many other things at the moment, I haven't quite got the head space for it, but you know, that has arisen as a result of this problem. And that really was the crux of the question I asked the leader of the House of Commons just before we started this podcast this morning about this exact matter.

I mean, I was in Parliament late last night, long after the Commons had shut up and gone home, and I wandered up to the Gallery of the House of Lords, it must have been about 11 o'clock at night with some visitors, and I was completely astonished to find the chamber utterly full, completely full, with a very lively debate going on, all about the changes to the Abortion Act. Actually, I believe that debate went on until [00:49:00] about two or three in the morning.

And so what I wanted to say to the Leader of the House of Commons was that I think we need to really recognise the great diligence and application of our colleagues in the House of Lords in scrutinising legislation. And that's what I saw in this very lively debate last night. However, did the leader of the House of Commons agree with me that the role of the Lords was scrutiny and not to obstruct the will of the elected chamber? And frankly, he did exactly agree with that. And so if it comes back, if it comes back to the House of Commons in the next term, I think that what will happen is that quite a number of MPs who previously voted against the assisted dying bill will abstain.

And the reason for that is that although they have feelings about the wisdom or not of the assisted dying bill, they do feel very strongly that it shouldn't be the situation that the House of Lords is obstructing the will of the elected [00:50:00] chamber. And so I think we'll see a bigger majority in the next Parliament if the thing were voted again.

Mark D'Arcy: There is talk that MPs have been radicalised at least in some quarters by the behaviour of the House of Lords on this issue. Is there though ever any serious prospect of a move to clip the Lords' wings, because that, again, is a huge legislative undertaking that would crowd out a lot of other stuff that the Government's trying to achieve.

Peter Prinsley: Well, that's partly why I didn't get involved in this APPG about House of Lords Reform.

Let's not change the rules in the middle of the game. Let's use the rules that we've got in order to enact the legislation that we have voted for. And there are rules that deal with this. There are the Parliament Acts of 1911 and 1949, last used for the Hunting Bill in 2004. So isn't very rarely used, but it exists to deal with exactly this situation.

Mark D'Arcy: Well, Peter Prinsley, thanks very much indeed for joining Ruth and me on the pod today.

Peter Prinsley: Thanks for talking to me.

Ruth Fox: Thank you. Well, Mark, because this is [00:51:00] such a novel idea, this using the Parliament Act to push through a private member's bill, there are different views about how that might be done, and at the Society, I just wanted to flag that we are working on a briefing to deal with all of these questions and to build on what we've already discussed in the special episodes of the pod, and we'll be publishing that when Parliament returns after the Easter recess. So, look out for that.

Mark D'Arcy: It'll be required reading and we'll be doing a short test.

But before we go, we said we'd deal with listeners questions this week, but some of them cover quite big issues, so we've decided to hold them over for our upcoming recess edition. So if you've got a question, there's still time to send it to us and we'll try to answer it over Easter. Use the Q&A link in the show notes in your podcast app, or send us a message on X or Twitter as it used to be called, Blue Sky or LinkedIn.

Ruth Fox: And, can I just, before we go, Mark, just make my usual appeal to listeners, can you forward it on to your family and friends? Help us grow the podcast. And if you're a new listener, welcome, we hope you've enjoyed it. And just remember to [00:52:00] click subscribe in your podcast app so that you get all the future episodes, including those Q and As up in your podcast feed automatically each week.

So we'll see you next week, Mark.

Mark D'Arcy: See you then. Bye-bye.

Ruth Fox: Bye.

Outro: Parliament Matters is produced by the Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information, visit hansardsociety.org.uk/pm or find us on social media at Hansard Society.