Should we be worried about the decline of parliamentary scrutiny?

It has become commonplace in recent years to hear complaints about declining standards of government scrutiny by parliament. In 2023, Institute for Government director Hannah White suggested that "expectations of legislative scrutiny have plummeted", while her colleague Alice Lilly wrote of "the slow death of parliamentary scrutiny". Likewise, Professor David Judge suggested that Boris Johnson’s government was ‘walking the dark side’ by avoiding parliamentary scrutiny. But how can we objectively assess such claims, and how concerned should we be, particularly now the disruptions of Brexit and Covid are behind us? I addressed these questions in an article recently published in the journal Public Law, and I summarise its findings here.

Context

Parliamentary scrutiny of government matters for various reasons. Ministers are accountable to parliament – and particularly to the House of Commons, as the UK’s central elected institution. Parliamentary approval of legislation, and checking of other government action, is essential to legitimise policy. Scrutiny has value for potentially highlighting problems and thereby helping to avoid policy mistakes. But crucially its effects are often preventative: if ministers and civil servants know that policy will face tough scrutiny in parliament, they are more likely to think it through carefully before it even arrives.

There are clear reasons to think that standards of scrutiny may have crumbled in recent years. The Brexit process led to prolonged battles between government and parliament, where a minority government seeking to implement a controversial referendum result often sought to avoid scrutiny where it could. The sheer complexity of Brexit resulted in a huge volume of delegated legislation, which is subject to limited parliamentary oversight. Boris Johnson at one stage even sought to shut parliament down. Then, immediately Brexit was agreed, the UK was hit by the Covid pandemic. Again, policy was rushed through, and for long periods parliament didn’t sit normally. Both of these were extraordinary events. But even if scrutiny suffered, it could clearly have subsequently recovered again. So was the Brexit and Covid period a one-off, or did it have lasting effects in terms of government accountability to parliament?

My Public Law article addresses these questions, drawing together data from various parliamentary sources. It argues that such data is often difficult to piece together, but that doing so leads to significant concerns. Perhaps surprisingly, Rishi Sunak’s government performed even more poorly than its predecessors could be put in the Brexit and Covid years.

Rushed government legislation

The first data that the article considers concerns government legislation that is rushed through parliament – thereby allowing little chance for scrutiny. There were some notorious examples of this during Brexit and Covid, but actually matters subsequently seem to have got even worse.

One category is bills which are officially fast tracked – taking all of their House of Commons stages in a single day. Concerns about such bills have long been expressed. Table 1, based on published parliamentary data, shows that their number has historically been low, but increased in the 2017-19 session (dominated by Brexit), remaining high in the 2019-21 session (dominated by Covid). But it climbed even higher during the (one rather than two-year) 2022-23 session under Rishi Sunak, when no equivalent challenges applied. The full paper discusses some examples.

Table 1: Number of government bills fast tracked in the House of Commons by session, 1997–2023

These are not the only rushed bills, but data on others is more difficult to piece together. Table 2 does so for just four sessions, summarising the overall number of days for those government bills that began in the House of Commons. Under Labour in 2007-08, the proportion of such bills getting fewer than five days’ scrutiny was 35%, and under the coalition in 2013-14 it was just 20%. But in 2021-22 it was 53%, and then reached 67% in 2022-23 under Sunak. One example was his illegal migration bill. It and others discussed in the article reflect what the House of Lords Constitution Committee has referred to as a pattern of "act in haste and repent at leisure" – as several were subsequently shown to be flawed and resulted in government reversals.

Other problems with government bills

This connects to other general points and problems regarding government bills, which when rushed into parliament and through parliament often show evidence of having been introduced when insufficiently ready. A connected phenomenon is the government making multiple late amendments to its own bills.

This subject is even more difficult to research, as summary figures are not published, but also importantly because there can be many reasons for late government amendments. As my own previous work has shown, such amendments can be an indication that the government has listened to parliament at earlier stages. But when bills are insufficiently ready, government may seek to fix them in parliament itself. And when a bill’s passage is rushed, parliamentarians have little opportunity even to formulate concerns to which the government might respond. Table 3, based on data provided by the House of Commons Library, shows government amendments to its own bills in the House of Commons by session across 10 years, 2013-23. Again, there is a particularly sharp rise under Rishi Sunak. The article lists various problematic recent examples, including a change to mayoral electoral systems in Boris Johnson’s elections bill at Commons report stage – which was subject to no parliamentary or other consultation, and once implemented, proved to significantly benefit the Conservatives.

Unsurprisingly, given the haste with which legislation has been treated, there has also been a decline in government bills published in draft for pre-legislative scrutiny. And analysis by the Institute for Government shows that the proportion of bills subject to evidence-taking in the Commons has recently dropped to just 27%. In addition, complaints about overuse of delegated legislation have become commonplace – both inside and outside parliament.

Treatment of select committees, and other matters

There have also been concerns expressed beyond the legislative process. David Judge documented ministers failing to appear in front of select committees when requested, or cancelling after they had agreed to appear. This seemed to be a phenomenon of the Johnson government. More generally, however, there are ongoing concerns about slow government replies to select committee reports. Such responses are due within two months, but one departmental committee highlighted in 2023 how replies that it received had been late by an astonishing six months on average. Surprisingly, while data is collected on responses to written parliamentary questions and government responses to parliamentarians’ correspondence, no central register is kept on government responses to select committees.

Various other concerns have been expressed, some more valid than others. As well as some "old chestnuts" like government announcements outside parliament, there are new questions, such as whether parliamentary scrutiny of international agreements post-Brexit is up to the task.

What can be done?

Overall, this analysis concludes that there is indeed much to worry about. In some areas expectations have risen in the last 20 years; but standards slipped badly in the years of Brexit and Covid, and have failed to recover. To a significant extent this reflects a problem of culture. As Hannah White put it in 2023, "our current generation of ministers have got used to the apparent benefits of legislating at speed. They have forgotten the downsides. And MPs … have lost institutional memory of what used to count as adequate scrutiny". This cultural change urgently needs to be reversed.

"A challenge is that so many MPs are new, and they do not have an imprinted culture of scrutiny. Achieving this is important"

The 2024 general election and change of government offered an opportunity, but also brought new threats. When Lucy Powell was shadow leader of the House, she spoke out against the overuse of delegated legislation, rushed government bills and late government amendments, promising to strengthen the internal government committee which ensures that bills are ready for introduction. She is now the leader of the House of Commons, and chair of the new Modernisation Committee – so in a position to act. But in the early months of the government the rushing through of some bills continued. A challenge is that so many MPs are new, and they do not have an imprinted culture of scrutiny. Achieving this is important. Notably, the quality of scrutiny has been a hot topic over the "assisted dying bill" (a private member’s bill). Ideally, new MPs would learn from this, and insist on the same standards of scrutiny on government bills. They and the opposition should hold Powell to her promises.

In addition, there are other things parliament could do. In the 1990s, a newly strengthened House of Lords was crucial to ensuring that the government upped its game in terms of quality of legislation introduced. The current House of Lords (hereditary peers) bill offers an opportunity to improve the chamber’s reputation, and thereby its leverage (but would do so further if amended to place constraints on prime ministerial patronage and the size of the chamber). A suggestion made over many years has been creation of a parliamentary legislative standards committee which would report on the readiness of government bills, thereby providing a further ‘preventative’ check.

Finally, the difficulty in pulling together data on some of the key metrics of scrutiny is something that parliament could itself address. For example, summary data should be published by session on the time spent scrutinising government bills (e.g. Table 2) and on how frequently the government misses the targets in its own Guide to Making Legislation. Likewise on how frequently government misses the targets to respond to select committee reports (further examples are listed in the paper). The gathering and regular publication of such data by parliament would strengthen the incentives for government to behave well. It would also allow those inside and outside parliament to monitor the situation and hold government better to account.

Meg Russell FBA is professor of British and Comparative Politics at UCL and director of the Constitution Unit.

This post was first published by the UCL Constitution Unit. It is a summary of the recent article by the same name in the journal Public Law, which is freely available to read via the Constitution Unit website. The article itself was adapted from the author’s delivery of the journal’s annual lecture at the University of Durham. She is very grateful to the editors of the journal for their support throughout this process.

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