Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.
When parliamentarians reassemble at Westminster on 7 November for the start of the new Session, all eyes will be on the legislative programme to be announced in the King’s Speech. Speculation about the likely date of the next general election is rife at Westminster, but until the date is settled there are a lot of parliamentary issues still to be tackled. We’ve picked out a few things to look out for on the political horizon.
Researcher, Hansard Society
Researcher, Hansard Society
Matt joined the Hansard Society in 2023 to focus on the Society’s ongoing research into delegated powers and the system of scrutiny for delegated legislation. He also maintains the Society’s legislative monitoring service, the Statutory Instrument Tracker®. He graduated with a BA in Philosophy, Politics, and Economics from the University of Oxford in 2020 and an MSc in Political Theory from the London School of Economics and Political Science in 2021. Before joining the Hansard Society, Matt worked as a researcher for a Member of Parliament focusing primarily on legislative research.
Director , Hansard Society
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.
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The King’s Speech is the Government’s chance to set out its legislative agenda for the upcoming Session. However, a Bill’s inclusion in the Speech does not guarantee that it will be introduced to Parliament, and the Government is free to introduce a Bill during the Session that it did not mention in the Speech. The Speech will therefore provide an indication of the Government’s priorities but it is unlikely to be the last word on the content of the legislative programme for the whole Session.
There are seven Bills that will certainly appear in the programme because they have already been introduced to Parliament and have received carry-over motions so that their scrutiny can be completed in this new Session. These are:
the High-Speed Rail (Crewe – Manchester) Bill (see below regarding the future of HS2 legislation).
There are also three Bills which the Government has already published in draft form, and which it may commit to formally introducing in this next Session:
Conversely, in the last Gracious Speech in May 2022, four pieces of legislation were proposed but never published: a draft Audit Reform Bill, a Conversion Therapy Bill, a Modern Slavery Bill and a Transport Bill. It remains to be seen whether these Bills – or some aspects of the proposals – will now see the light of day in this new Session.
The size of the legislative programme is unlikely to be much of a guide to the date of the general election. If a short programme were unveiled this would reveal the Government's intentions to go to the country sooner rather than later, whilst laying Ministers open to the criticism that they had run out of ideas. But a large legislative programme does not mean the Session will necessarily run long for a year or more through to an election. Whenever the Government decides it wants the general election it can use the final days before dissolution to force through the bills that have been laid before Parliament but not yet completed all their scrutiny stages in what is known as the 'wash-up'. In this period outstanding legislation is expedited through the Commons and Lords on the basis of deals made privately between the government and main opposition party. This process sees important legislation hit the statute book having been subject to minimal parliamentary scrutiny and it marginalises backbenchers, crossbenchers and the other parties.
In an assessment published on 5 October 2023, Dame Bernadette Kelly, the Department for Transport’s Permanent Secretary and Accounting Officer, confirmed that 'the decision to cancel parts of the HS2 programme will require primary legislation.' The King’s Speech may shed light on how provision for this primary legislation will be made.
The High-Speed Rail (Crewe-Manchester) Bill is currently making its way through Parliament and has been carried over into this new Session. Are any powers in this Bill still needed? Will the Bill be substantially amended to provide for the cancellation of parts of the HS2 programme? Or will it be abandoned, and a new Bill introduced to provide legislative cover for the cancellation of parts of HS2?
The Select Committee on the Bill - which has spent just under 62 hours scrutinising the Bill in public sessions to date - announced last week that it was pausing its work until it receives further information from the Government or instructions from the House of Commons. The Minister for Transport subsequently wrote to the Committee recommending that it await further instruction from the House. If the Government must table a motion to discharge the Committee from further consideration of the Bill early in the new Session, it may create an opportunity for those opposed to the HS2 decision to mobilise against the Government. Alternatively, to avoid the political hazard, Ministers may simply leave the Bill in legislative purgatory pending the end of the Session, when it would fall away.
The fate of the High-Speed Rail (West Midlands-Crewe) Act 2021 also remains unclear. This provides the Government with the powers needed to construct a high-speed rail link between Birmingham and Crewe. Repealing the Act would require primary legislation, providing opponents of the Government’s plans with a further opportunity to vent their displeasure. Ministers may conclude, therefore, that the 226-page Act should simply be left on the statute book, its powers unused. However, this would generate its own uncertainty as well as legislative clutter: what would become of the Act and its many powers if Labour were to win the general election?
Ministers may seek to introduce some small-scale, uncontroversial policy proposals via legislation introduced by backbenchers rather than through a Government Bill. In the Queen’s Speech in May 2022, for example, an Employment Bill was proposed. However, given the pressure on the legislative programme Ministers decided to support several Private Members’ Bills promoted by backbenchers in order to deliver some of their proposed new employment law provisions rather than introducing them via the planned Government Bill. This contributed to an unusually high number of Private Members Bills (24 of them) achieving Royal Assent in the last Session.
The Speaker will announce the ballot for Private Members’ Bills early in the new Session. It usually takes place on the second Thursday of the Session with the First Reading of the Bills on the fifth Wednesday of the Session. If normal practice prevails the ballot will therefore take place on 16 November and First Reading on 6 December.
Hundreds of backbench MPs enter the ballot: securing legislative time to address an issue of constituency or national concern is a great prize, particularly in the months before a likely general election.
The names of only 20 MPs will be drawn in the ballot, guaranteeing them time for consideration of their Bill on dedicated PMB Fridays in the Commons. Of the 20 names drawn, those securing the top seven places will have the best chance of steering their legislative proposals on to the statute book, but they will be successful only if the Government does not oppose them. Ministers will have a number of ‘hand out’ bills ready to offer to the 20 MPs, providing fully drafted pieces of legislation and proactive Government support to those Members willing to adopt them.
The Chancellor, Jeremy Hunt MP, is set to make his Autumn Statement on November 22, just two weeks after the King’s Speech. The Statement will provide an update on the state of the public finances. If there are any changes to taxation then a Finance Bill will be required. In July this year the Government published a consultation on draft clauses for the next Finance Bill. However, this consultation only closed in September. Last year’s Autumn Statement required a Finance Bill which was published just five days after the Statement and received Royal Assent six weeks later. It remains to be seen whether there has been sufficient time for the Treasury to consider the consultation submissions prior to including the draft clauses in a Finance Bill this Autumn or whether these will need to wait until a Spring Budget.
In addition to the Autumn Statement and the Budget, the other main financial event in Parliament is the approval process for departmental spending, in line with the annual estimates cycle. The Vote on Account (a request from the government for advance funding to cover departmental spending plans for the first four months of the next financial year) and Supplementary Estimates (the Government’s additional requests to Parliament to authorise new funding levels or changes to the purpose for which money is sought) are usually published in February for approval in Supply resolutions by 18 March. The Supply resolutions then need to be given legal effect via a Supply and Appropriation (Anticipation and Adjustments) Bill.
Speculation about a possible general election in May 2024 has receded in recent weeks but were this date to be in play then the timing of the financial events next Spring would be tight, but not impossible. For a general election to coincide with the local elections on 2 May 2024 Parliament would need to dissolve on 26 March. In these circumstances the Budget and the Supply process might therefore be among the last legislative acts of the Government, providing a financial springboard into an election campaign.
The Retained EU Law (Revocation and Reform) Act 2023 (or the ‘REUL Act’) introduced a suite of new powers to retain, restate, amend, or revoke “retained EU law”. This is a category of domestic law consisting of EU-derived legislation that was preserved in the UK’s domestic legal framework through the European Union (Withdrawal) Act 2018 following the UK’s departure from the EU.
The Government’s Retained EU Law dashboard indicates that there are currently 4,989 items of REUL still on the statute book. The Government is committed to reviewing this body of legislation and then reforming or revoking it where appropriate.
15 Statutory Instruments (SIs) utilising powers in the REUL Act have already been laid before Parliament since the legislation received Royal Assent in June 2023. How many more SIs will be laid in the next Session is unclear but given the scope of the powers available and the policy salience of REUL many of the SIs may be of significant political interest.
The Government's intentions will become clearer in the next couple of months. The REUL Act placed the Government under a statutory obligation to publish and lay before Parliament a series of six REUL status and planning reports at six-monthly intervals until June 2026. The first of these reports must be published between 24 December 2023 and 22 January 2024.
The reports must provide a summary of the data on the REUL dashboard, set out the progress made in revoking and reforming REUL in the six-month reporting period, and importantly set out the Government’s plans to revoke and reform REUL in future reporting periods.
Depending on the timing of the general election, we can expect a further report next year sometime in June or July 2024. If the Parliament were to run the full five-year length, the third report would fall due during the dissolution of Parliament and would therefore have to be picked up by the new cohort of MPs after the general election.
Ministers have indicated that they consider the European Scrutiny Committee (ESC) to be the select committee with responsibility for scrutinising these reports. However, for some time now the ESC has barely functioned as a cross-party committee and other select committees – Environment, Food and Rural Affairs; Environmental Audit and Women and Equalities to name just three - will have an interest in the REUL reform agenda. How the select committees choose to scrutinise these REUL update reports – if they opt to do so at all – will be interesting to watch in the coming Session. Reaction to the government’s future plans for REUL may also reopen Conservative Party fissures if backbenchers feel Ministers lack ambition when it comes to regulatory reform.
Before Christmas we expect a debate – but not necessarily a division – on the strategic direction of the much-delayed Restoration and Renewal (R&R) programme to refurbish the Palace of Westminster.
A series of options have been worked up by the R&R team and presented to the programme’s Client Board (comprising the members of the House of Commons and House of Lords Commissions) with the objective of presenting a small number of shortlisted options at the end of the year. Each House will be asked to endorse the preferred way forward and to agree to further detailed work being done on two of the short-listed options, after which fully costed proposals will be worked up and put to both Houses for a decision in late 2024 or early 2025, subject to the timing of the general election.
How happy MPs will be to indicate a preferred way forward at the end of this year, in the absence of detailed costings, remains to be seen, particularly when, as officials have already indicated, whichever delivery options are shortlisted ‘a significant element of decant from the Palace of Westminster will be required.’ A combination of eye-watering costs and an unwillingness on the part of many MPs to contemplate leaving the Palace for an extended period has long bedeviled the R&R project.
England, M. and Fox, R., 6 things to look out for in Parliament in the next Session (Hansard Society: London), 7 November 2023
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