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.
On 10 May it is one year since the 2022 Queen’s Speech, but so many Bills have yet to secure Royal Assent that the Government is extending the parliamentary Session. What is the scale of the legislative logjam, why has it arisen, and what are the prospects for key Bills in the time left in this Parliament?
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.
Senior Researcher, Hansard Society
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.
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Over the last year a combination of political and economic turmoil, policy development failures and poor parliamentary handling have combined to clog-up the legislative machine to such an extent that the Government has extended the parliamentary Session in order to get through its “packed” agenda.
Normally a Session lasts for around 12 months, but for the 2022-23 Session this landmark is passed on 10 May 2023. No date for the end of this now-extended Session has yet been confirmed, but it is widely expected that Parliament will be prorogued for a new King’s Speech in November.
This will provide just over five months’ extra time for proceedings on the current legislative programme, minus the substantial chunks of time that will be eaten away by the Summer and Conference recesses, assuming that those are of the normal length. (The House of Commons has not yet formally agreed its recess dates beyond the Whitsun break.)
After a full calendar year, the legislative logjam in this 2022-23 Session is considerable.
Of 51 Government Bills that have been presented to Parliament since the Queen’s Speech of 10 May 2022, only 22 have achieved Royal Assent. One has been formally withdrawn, and 28 formally remain under consideration.
Of the 28 Bills that have not yet received Royal Assent:
9 Bills are still in the first House (the Commons in all cases), of which three have been presented (First Reading) but not yet seen a start to their scrutiny process;
12 Bills are in the second House, of which nine are in the Lords and three in the Commons;
4 Bills are in ‘ping-pong’ between the two Houses; and
3 Bills are effectively stalled and are unlikely to proceed further in this Session but have not formally been withdrawn.
On our count, of the 51 Bills presented in the Session so far, 29 were included in the 2022 Queen’s Speech (including five carried-over from the previous Session). Of these, only eight have so far reached Royal Assent.
A further 22 Bills have been presented which were not in the Queen’s Speech, of which 14 have received Royal Assent.
Twelve months after the start of the Session, proportionately greater progress has been made with non-Queen’s Speech Bills than Queen’s Speech Bills. This is tantamount to a parliamentary distress signal, highlighting the scale of the political and other upheavals of the last year.
The State Opening for the 2022-23 Session was one year but two Prime Ministers ago. Some of the legislative logjam reflects the divergent policy choices made by each of these leaders. For example, the Truss Government introduced a Bill in Autumn 2022 to abolish the health and social care levy introduced just a year earlier by the Johnson Government. The Truss Government’s economic mismanagement also necessitated an emergency Budget and therefore a Finance Bill early in the new Sunak administration.
Ministerial churn has also contributed to the logjam, especially because the legislative burden across Whitehall is spread unevenly. The Department for Housing, Levelling Up and Communities, the Department for Culture, Media and Sport and the Home Office have had more Bills than other Departments, so ministerial changes at these Departments coupled with policy problems have seen some of their legislation run aground, as decisions are delayed pending legislative and policy stocktakes.
Wider economic and political upheavals have also been a critical factor. Bills which were not included in the 2022 Queen’s Speech were introduced subsequently to address the cost-of-living crisis, and prices and windfall profits in the energy sector following Russia’s invasion of Ukraine, and to deal with the ongoing implications of the lack of an Executive in Northern Ireland.
Legislative time was also lost during the period of national mourning following the death of HM Queen Elizabeth II in September. A new Bill was subsequently introduced to add two of the new Monarch’s siblings to the list of Counsellors of State to whom Royal functions might be delegated.
But the Government has also not helped itself by introducing Bills which were poorly prepared, and which sought to implement policy which was not fully developed, sometimes in technically complex and highly sensitive fields. Such Bills are likely to take longer, certainly in the House of Lords, than they would have if the Government had taken more time before introducing them.
The remaining Bills before Parliament can be grouped into four categories.
Four Bills are currently in ‘ping-pong’, of which at least three have experienced difficulties along the way.
The National Security Bill’s central feature – the Foreign Influence Registration Scheme – was effectively ripped up and re-written by Ministers at Report stage in the second House (the Lords) in March 2023, in response to the concerns of Peers and stakeholders particularly in the business and diplomatic community.
The Higher Education (Freedom of Speech) Bill suffered delays amid controversy about the provisions for freedom of speech on university and college campuses.
The Social Housing (Regulation) Bill had a smoother passage than most, reflecting perhaps the fact that the Bill has been nearly five years in the making and involved the publication of both a Green and White Paper, aspects of the policy development process which seem to have largely fallen out of fashion. The Bill was, however, amended at a late stage in the second House (the Commons) to enable the Government to add new clauses to require social housing providers to tackle hazardous conditions in their properties, following the case in Rochdale of two-year-old Awaab Ishak who died in 2020 after prolonged exposure to mould.
The Strikes (Minimum Service Levels) Bill had its Third Reading in the second House (the Lords) on 9 May, the day of this publication and the day before the one-year sessional anniversary. Amidst a wave of strikes in key sectors, the Bill extends a ‘minimum service’ requirement to ensure the provision of essential public services by the NHS and in the education, fire and rescue, border security and nuclear decommissioning sectors. The Bill passed through the Commons in just a month in January but progress has been more eventful in the Lords, where the Government has suffered four defeats to date.
The Online Safety Bill is one of the Government’s most pressing legislative problems. Having been carried-over from the 2021-22 Session it must pass in the 2022-23 Session or fall (because Bills cannot be carried-over a second time, into a third Session). By default, a carried-over Bill falls if it is not passed within one year of its First Reading in its first Session. The House of Commons has already extended this deadline once, in March, to 20 July 2023 (the planned date of the House’s rise for the Summer).
The Bill had a difficult passage in the first House, having twice been dropped from Commons business – in July 2022 (reportedly to make way for confidence motions on 18 July) and then again in early November, as the new (third) ministerial team in charge of the legislation re-drafted significant provisions, in particular those concerning the contentious proposals to tackle ‘legal but harmful’ content, which critics feared would have a chilling effect on freedom of expression online. Now, the Bill is snarled-up in the Lords, having completed just four of the eight days scheduled in Committee. Such is the rate of progress that a further two to three Committee days may yet be added.
The Levelling-up and Regeneration Bill started out as a White Paper in February 2022 (almost six months later than originally scheduled) and just three months later was the number-one Bill featured in the Queen’s Speech, before being formally presented to Parliament the following day (11 May 2022). It has been widely criticised as a ‘Christmas tree’-style Bill adorned by a “mish-mash” of policy provisions ranging from housing to local democracy to town planning. Such wide-ranging Bills can be attractive to Ministers, but they are also a recipe for parliamentary handling problems because the breadth of their provisions leaves the potential scope for amendments wide open. In the Commons the Bill was assailed by Conservative backbench rebels (including the two most recent former Prime Ministers) over onshore wind farms and housebuilding targets. In the Lords, the Bill was originally scheduled for eight days in Committee, but hundreds of amendments have been tabled and this has since been extended to 14 days, of which 12 have been completed to date.
The Financial Services and Markets Bill completed 10 days in Committee in the Lords at the end of March but a date for Report stage has not yet been scheduled. When the Bill does return, much attention will focus on a proposed amendment from Lord Bridges of Headley, Chair of the Lords Economic Affairs Committee, who wants to create an Office for Financial Regulatory Accountability to scrutinise and report on the performance of the Financial Conduct Authority and Prudential Regulatory Authority.
The Retained EU Law (Revocation and Reform) Bill has been the subject of some of the most searing criticism of a Government Bill ever uttered in the House of Lords. The Delegated Powers and Regulatory Reform Committee (DPRRC) recommended that five of the six most important provisions in the Bill should be removed altogether.
After the Bill finished in Committee on 8 March, the two scheduled days for Report stage were initially dropped before Easter, but these have now been provisionally rescheduled for mid-May following a reported stocktake by the new Secretary of State Kemi Badenoch. Media reports suggest that Ministers are considering removing the controversial 31 December 2023 sunset date and the provision for automatic revocation of any piece of Retained EU Law that is not actively saved before the deadline. Unless significant changes are made to the Bill, the Government will likely endure some heavy defeats at Report stage.
The Economic Crime and Corporate Transparency Bill has similarly taken longer than expected since it was first introduced in the Commons in September 2022. This legislation was promised during the debate on the earlier Economic Crime (Transparency and Enforcement) Act, which was given an expedited passage through Parliament in Spring 2022 following Russia’s invasion of Ukraine. The current Bill received its Second Reading in the Lords on 8 February 2023 and is now nearly finished in Committee, with a seventh day there scheduled for 11 May.
The Energy Bill, having been passed by the Lords, begins its passage through the Commons on 9 May. Dealing with energy production and security and the regulation of the energy market, the Bill had a difficult passage through the Lords, where the Government suffered five defeats, including on provisions to stop new coal mines, support small community-owned electricity generators, and introduce a net zero mandate for the energy regulator, Ofgem.
The Schools Bill stalled after Report stage in the Lords (the first House) in July 2022 when no date was set for a Third Reading. The Bill was heavily criticised – including by Conservative former Secretaries of State – for the sweeping powers that Ministers sought and the lack of clarity about the Government’s policy intentions towards academy schools. At Report stage, Ministers supported amendments from Peers to remove 18 clauses – one-quarter of the Bill – and indicated that they would re-draft the provisions and reintroduce them during the first amending stage in the Commons. However, during her first appearance before the Commons Education Select Committee in December 2022, new Secretary of State Gillian Keegan confirmed that the Bill would not proceed further in this Session.
The Illegal Migration Bill is flagship legislation that the Government wants on the statute book as soon as possible. Ministers have indicated that they want the Bill passed "by the Summer", which suggests pre-recess; and the Leader of the House of Commons has said that the Government is “prepared to sit through the night, if necessary, to get this on the statute book as swiftly as possible”.
The Bill was given quick passage through the Commons (between 13 March and 25 April), during which it was heavily amended by the Government itself. Ministers added new clauses and removed or changed existing ones, including the addition of provisions that necessitated an amendment to the long title of the Bill. The Government failed to publish an Impact Assessment for the legislation during its Commons passage; on the eve of the Bill’s Second Reading in the Lords (scheduled for 10 May), it still had not appeared. With the Bill seeking to impose tougher conditions on people who arrive in the UK through irregular routes, it is expected that the Bill will face heavy amendment in the Upper House.
The Data Protection and Digital Information (No. 2) Bill was introduced to the Commons early in March 2023 and is currently awaiting Committee stage consideration. This Bill will not reach Royal Assent by the end of the Session: the Government has already secured a carry-over motion so that the Bill can be considered in the next, 2023-24, Session.
The Bill is largely the same as the Data Protection and Digital Information Bill which was introduced in the Commons earlier in this Session, in July 2022, but which was delayed by the then-new Truss Government in September 2022 before it had its Second Reading, in order to allow the proposals to be reviewed by the new ministerial team. That Bill was formally withdrawn in March 2023 and the new No. 2 Bill presented in its place.
The Victims and Prisoners Bill is scheduled to have its Second Reading in the Commons on 15 May. This Bill was subject to pre-legislative scrutiny earlier in the Session, during which it was heavily criticised by the Commons Justice Committee. The Committee found the draft Bill “to be a case of good intentions not matched by well thought through legislation”. The Government agreed to just five of the 47 recommendations made by the Committee, so it remains to be seen whether this is sufficient to address Members’ concerns.
The Digital Markets, Competition and Consumers Bill was presented to the Commons in April and a date for Second Reading has not yet been set. At 369 pages, this is a long and complex Bill. Given the current logjam in the Lords, it will probably either be passed as a beneficiary of the legislative ‘wash-up’ process at the end of the current Session, in which case scrutiny will be limited (as discussed below), or it will be a candidate for carry-over into the next Session.
Given the pile-up in the Lords of some very large, complex and contentious Bills, it is on the Upper House that much of the legislative focus will fall in the coming months.
The Government has already endured 31 defeats on nine Bills (and a further four on regulations) in the Lords this Session. Given the number of Bills which are yet to complete Report stage in the Upper House, this number is only likely to increase. This is because it is at Report stage that divisions on amendments in the House of Lords usually take place. (Amendments at Committee stage are generally used to probe the Government but are rarely pressed to a vote.) If the addition of extra days at Committee stage gives rise to the tabling of more amendments, it is more likely that Report stage will also be elongated.
The Government does not have a majority in the House of Lords and does not control the agenda of that House in the way it does in the Commons. Bills are not programmed in order to end debate after an agreed amount of time, as happens in the Commons; and if a Peer wants to debate a clause, or press an amendment to a vote, they can do so. However, ‘peer pressure’ may be applied if it is felt that the discussion has run its course and that it is time to move on to another issue.
To encourage the application of ‘peer pressure', and encourage their Lordships to bring their scrutiny to a conclusion, one of the few weapons at the Government’s disposal is to threaten to extend sitting times.
As the legislative pile-up builds, the House of Lords is already scheduled to sit a week longer than expected – and probably a week longer than the Commons – into the Summer. As the BBC’s parliamentary correspondent Mark D’Arcy has noted, there are also “murmurs of a move to curtail the summer recess, so peers would find themselves doing detailed debate in late August - a kind of "scrutinise till you drop" strategy". There is also speculation that the Lords may sit for three rather than the usual two weeks in September. During September sittings in the Lords, normal practice is that votes (divisions) are not scheduled, and no Whip therefore applies. This may not be possible this September.
As time passes and the end of the Session nears, the Government will try to expedite outstanding legislation through both Houses on the basis of ‘wash-up’ deals made privately with the official Opposition through the ‘Usual Channels’. This approach restricts parliamentary scrutiny and marginalises backbenchers in the Commons, and crossbenchers and other parties in the Lords. Even Bills which have only just received their Second Reading in the Commons have been known to reach the statute book in the last few days of a Session because of ‘wash-up’ deals between the two frontbenches.
If the next King’s Speech is held in November 2023 as expected, that will presumably leave a final Session – the remaining legislative time in this Parliament - of anything between six months and a full year, depending on the date of the next General Election. If it has not been dissolved earlier, the current Parliament dissolves automatically on 17 December 2024 under the Dissolution and Calling of Parliament Act 2022.
The Data Protection and Digital Information (No. 2) Bill (see above) and the High Speed Rail (Crewe-Manchester) Bill have already been carried-over to the next Session. Given the logjam, other Bills may similarly have to be carried-over.
To date, several Bills that were promised in the Queen’s Speech in May 2022 have not yet appeared. The Transport Bill was the second Bill referred to in the Speech, but as early as October 2022 the then-Transport Secretary, Anne-Marie Trevelyan, informed the Transport Select Committee that the Bill would not get parliamentary time in this Session but would be addressed in the next. She blamed the impact of the energy crisis on the legislative timetable as the reason for the delay. The Bill will legislate for the new railway body Great British Railways, and the Government is under pressure from the rail industry to bring the legislation forward as soon as possible.
The Renters Reform Bill has also not yet appeared. Given problems in the housing sector, particularly the rental sector for young people, the Bill has potential political appeal ahead of the General Election – not least the measures to abolish so-called ‘no fault’ evictions. However, as another piece of housing-related legislation, it might also threaten to again expose differences on the issue within the parliamentary Conservative Party. If the Bill does appear before the end of this Session, it may be a candidate for carry-over for delivery in the final Session before the Election.
A number of Bills have been published in draft for consultation, and so may be candidates for formal presentation to Parliament in the next Session:
A Media Bill was promised as a full Bill in the 2022 Queen's Speech but was subsequently published in draft for pre-legislative scrutiny. The Commons Culture, Media and Sport Committee opened its inquiry in April.
A draft Conversion Therapy Bill and a Boycotts, Divestments and Sanctions Bill have also been promised by the Government but, at the time of writing, have yet to appear.
In all these cases, the Government may hope that pre-legislative scrutiny will help smooth the Bills’ formal passage through Parliament once they are introduced, enabling it to get the Bills onto the statute book before the General Election, particularly if the last Session runs its full length.
This piece was amended on 10 May to correct an error regarding progress on the Economic Crime and Corporate Transparency Bill.
Fox, R. & Fowler, B. (9 May 2023), Legislative logjam: What is the state of the Government's programme at the one-year mark? (Hansard Society)
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