Publications / Articles

Constitution and Governance in the UK: Parliament and Legislation

4 Apr 2022
Bird's-eye view of the Palace of Westminster, UK Houses of Parliament

The Brexit process, the pandemic and the approach of the Johnson Government have all tended towards Parliament's marginalisation and the accretion of executive power. For UK in a Changing Europe's report on the constitutional landscape, we show how – in the legislative process and control of public money and executive action, including delegated legislation.

Dr Ruth Fox, Director , Hansard Society
Dr Brigid Fowler, Senior Researcher, Hansard Society
Director , Hansard Society

Dr Ruth Fox

Dr Ruth Fox
Director , Hansard Society

Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.

In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.

In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.

Senior Researcher, Hansard Society

Dr Brigid Fowler

Dr Brigid Fowler
Senior Researcher, Hansard Society

Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.

After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.

Get our latest research, insights and events delivered to your inbox

Subscribe to our newsletter

We will never share your data with any third-parties.

Share this and support our work

This piece was first published as a contribution to the March 2022 report ‘Constitution and Governance in the UK’, produced by UK in a Changing Europe.

The UK now has greater autonomy to make its own laws as it sees fit. Most interest is directed towards the substance of the UK’s new policy regimes, but the process by which the UK legislates is also under the spotlight.

One issue arising is the emergence of delegated legislation — regulations in the form of Statutory Instruments (SIs) — at the centre of often contentious political debates (a feature shared by the Brexit process and the pandemic). Delegated legislation will remain the principal legislative vehicle for delivering the government’s agenda in critical post-Brexit policy areas. New acts for immigration, the environment, agriculture, fisheries and customs are replete with delegated powers. The same applies to further bills yet to reach the statute book, including on borders and subsidies. Trade agreements will also require implementation partly via SIs, as will plans for regulatory reform.

Given the inadequacies of the SI scrutiny process, parliamentarians will struggle to discharge effective oversight of major changes in these areas.

However, some Brexit-era powers are also set to expire. In particular, the main delegated power in the EU (Withdrawal) Act 2018 (EU(W)A) — to legislate by regulations under section 8 to address ‘deficiencies’ in retained EU law — expires on 31 December 2022, two years after the end of the post-Brexit transition period. Whether the government seeks to secure an equivalent, replacement, power in some new or amended piece of primary legislation, or instead considers that it can achieve its legislative objectives without it, will make a significant difference to the way in which post-Brexit law is enacted.

The fate of the section 8 power may well become entangled in the wider question of the status and amendment of retained EU law. After Lord Frost announced a review of retained EU law in September 2021, the government confirmed at the end of January 2022 that it would use a piece of primary legislation — the ‘Brexit Freedoms Bill’ — to make retained EU law easier to amend or repeal. The suggestions from Lord Frost and Suella Braverman, the Attorney General, that this law has less or no democratic legitimacy than law initiated in the UK, and that it might be amended through some form of accelerated scrutiny process, raises concerns about possible further legal uncertainty and the continuing marginalisation of Parliament.

At Westminster, as in many other legislatures, the emergency nature of the pandemic eroded parliamentary controls over legislation and money.

Parliament was marginalised by Ministers’ habitual use of ‘urgent’ powers, predominantly those in the Public Health (Control of Disease) Act 1984. Twenty percent of the 555 pandemic-related SIs laid before Parliament by the end of 2020 used the ‘urgent’ power procedure, which requires only retrospective parliamentary approval.

But ministerial abuse of the concept of ‘urgency’ in the laying of regulations, and the government’s cavalier approach to their scrutiny, prompted a backlash among its own backbenchers. This culminated in a government with an 80-strong majority having in December 2021 to rely on Opposition votes to deliver vaccine passports, at the time a crucial plank in its pandemic management policy. Having previously taken advantage of the speed and convenience afforded them by urgent powers, ministers would now face a degree of political jeopardy from within their own party ranks, if they needed to exercise them in future.

The pandemic also exacerbated Parliament’s traditional weakness regarding control over public spending. Normally, a Contingencies Fund Bill uncontroversially provides a contingency limit of two per cent of public spending without prior parliamentary approval. The limit was raised to an extraordinary 50% by the Contingencies Fund Act 2020, and in 2021 only lowered to 12%. Via the Contingencies Fund Bill for 2022–23, it remains to be seen whether the limit is returned to two per cent or whether ministers try to retain the financial flexibility they acquired during the crisis.

Even away from Brexit and Covid-19, the accretion of power to the executive has been a strong theme of the government’s legislative activity, in terms of both substance and process. For example, the Dissolution and Calling of Parliament Bill proposes to reinstate prime ministerial control over early dissolution. The Elections Bill and the draft Online Safety Bill propose to establish considerable scope for ministerial direction of the work of the relevant regulators, the Electoral Commission and OFCOM, respectively.

Ministers seem little concerned that the broad powers they claim for themselves will remain on the statute book for use by governments of a different political complexion in future.

MPs, including on the government benches, have also complained about rushed legislation based on inadequate evidence. For example, the Health and Social Care Levy Bill received just one day’s scrutiny in each House, only six days after the policy it enacted had been announced. The Public Administration and Constitutional Affairs Committee — chaired by a Conservative MP — said the evidence base for the Elections Bill was so poor the measure should be paused.

The government’s legislative approach has led to record numbers of defeats in the House of Lords. Although ministers have sought to portray these as defiance of the elected House, they often build on, or provide a platform for, opposition by MPs.

The effect of the government’s legislative approach on its relations with its own backbenchers is set to be critically important in 2022. Accumulated unhappiness on his backbenches certainly provided Boris Johnson with little protection from the crisis that was engulfing his premiership at the beginning of the year. Relations with backbenchers might always have been strained, given the political complexities of the post-2019 parliamentary Conservative party — part-homecounties, part-‘Red-Wall’. Whether the government persists with its poor legislative and parliamentary management and its aversion to oversight will be critical to the future legislative as well as political landscape.

Blog / How should Parliament handle the Seventh Carbon Budget - and why does it matter?

The Climate Change Act 2008 established a framework for setting carbon budgets every five years. But the role of Parliament in approving these budgets has been widely criticised, including by the Prime Minister. The Environmental Audit Committee has proposed improvements in the scrutiny process to ensure effective climate action, particularly in the context of the UK’s commitment to achieving 'Net Zero' emissions by 2050. These reforms will significantly alter the way Parliament handles the Seventh Carbon Budget in 2025.

18 Apr 2024
Read more

News / Tobacco and Vapes Bill: free vote blows smoke in Rishi Sunak's eyes - Parliament Matters podcast, Episode 30

Rishi Sunak offered his MPs a free vote on his flagship Tobacco and Vapes Bill and dozens concluded they could not support it. As well as exploring the politics of the Bill, Ruth and Mark discuss the concept of a free vote and how they have been deployed in previous parliamentary sessions.

19 Apr 2024
Read more

Guides / Private Members' Bills (PMBs)

Private Members' Bills (PMBs) are bills introduced by MPs and Peers who are not government ministers. The procedures, often a source of controversy, are different to those that apply for government bills. Below are 7 short guides that explain key aspects of the process, as well as data on the number of PMBs that are successful each Session, and our proposals for reform of the PMB system.

Read more

Blog / Two Houses go to war: the Safety of Rwanda Bill and the origins of the Parliament Act

The Parliament Act is being bandied about in the media again in connection with the Rwanda Bill. This blogpost explains why the Parliament Act cannot be used in relation to the Rwanda Bill and looks at the origins and key features of the Act to place the current debate about the role of the House of Lords in its historical context.

25 Mar 2024
Read more

Blog / Creeping ministerial powers: the example of the Tobacco and Vapes Bill

The Government’s flagship Tobacco and Vapes Bill will ban the sale of tobacco to anyone born after 2009. The genesis of the delegated powers in the Bill – dating back a decade - tells an important story about the way in which incomplete policy-making processes are used by Ministers to seek ‘holding’ powers in a Bill, only for that precedent to then be used to justify further, broader powers in subsequent Bills. This ‘creeping’ effect in the legislative process undermines parliamentary scrutiny of ministerial action.

15 Apr 2024
Read more