By Louise Thompson
The scrutiny of legislation is key to the role of MPs. It sounds relatively simple – asking lots of questions about what the government is planning to do and probing elements of bills to make sure that they will work properly, but the task facing them is a formidable one. Not only is the quantity of legislation increasing (particularly from delegated legislation), but the parliamentary timetable is busier than ever. Bills are also becoming much more complex, using terminology which can be tricky to understand. The language used facilitates the interpretation and implementation of the legislation. It is not written with Members of Parliament or the general public in mind. Yet, as this weekend’s discussions about whether the Scotland Act 2016 means that the Scottish Parliament can veto the UK’s decision to leave the EU show, the precise wording of legislation is important.
Actually understanding the nitty-gritty of what bills mean is therefore crucial to the quality of the scrutiny that MPs can provide. And it’s not just the legal terminology and language of drafting that MPs need to know. It’s also processes, whether this be Henry VIII clauses, affirmative resolution procedures or sunset clauses. The Office of Parliamentary Counsel and the National Archives have done some really fascinating research showing whether or not people are able to understand what common styles of drafting actually mean (though the really interesting bit is where academics are shown to have the worst understanding of it!).
So understanding what legislation means is hard work. Yet MPs and government are tabling more amendments to bills than ever before. In fact, the average bill committee now considers around 125 amendments. Most of these amendments will fail. Less than 1% of opposition and backbench amendments moved in committees are actually accepted by the government. Drafting mistakes are often cited as reasons for this and prompt ministers to say they will reword amendments and introduce them as their own at a later stage of the process. In some committees this can be as high as one in every five amendments. The most common problem cited by ministers is that the drafting in an MP’s amendment is ‘flawed’ or that there is a ‘technical problem’. But if we look at all of the occasions that this has happened we can also see other deficiencies, including MPs failing to make the consequential amendments which would be required in other areas of the bill, ignoring the impact of proposed changes on Scotland or Wales. Those who draft legislation describe it as something akin to a spider’s web. Changing one aspect of a bill has a knock-on effect on several other areas of that bill (or related bills) and MPs aren’t always aware of this.
This may suggest that we should be thinking about how to provide more support to MPs. After all, if they can get the drafting of their amendments right, wouldn’t we see more success in terms of amending government legislation? Maybe. But there are three problems with this:
- Government never wants to accept amendments from anyone but Government: Party discipline is so deeply engrained in the culture of scrutiny at Westminster that Ministers feel that they are letting their side down if they accept any amendments from opposition MPs. Government backbenchers have more of a chance, but even here it is relatively rare. Drafting errors provide an easy get out clause for ministers, but even if things were drafted perfectly it is unlikely that ministers would accept them.
- The motivation in tabling an amendment isn’t always to change the legislation: When we think about the role of MPs in scrutinising government bills, there is a very important legal dimension. Here, MPs are motivated by seeking to change the law, correct errors, or to probe what it may mean in order to make legislation watertight. But there is also a very important political dimension to the work of MPs and we ignore this at our peril. For as well as making sure that Parliament passes workable legislation, MPs also want to be seen to be holding the government to account. This may be forcing it to change its mind, extracting concessions or providing tough and robust scrutiny of the various clauses. Bills are, after all, political creations and bring with them political motivations. An MP tabling an amendment to a bill may therefore also be trying to make a political point, to get things ‘on the record’. They may be trying to forward interest group, constituency or personal concerns, or they may be trying to filibuster – to prevent a committee of MPs from reaching certain sections of the bill. Where these political motivations are concerned, it doesn’t really matter if amendments having drafting errors as they weren’t intended to make it into legislation in the first place.
- Does it matter who amends the legislation, so long as the problems are ironed out? This is a key question for those examining the power of Parliament to scrutinise legislation. Although few amendments are accepted instantly by government, a much higher proportion find their way into the bill when they are reintroduced by government at a later stage. If we think this is a problem, then providing more resources to MPs at an early stage of the legislative process may help them to put forward amendments which leave the government with little wriggle room. But if the changes will be made anyway, does it matter? The answer to this isn’t black and white, and requires us to turn our traditional understandings and interpretations of Parliament’s legislative scrutiny on its head. Encouraging government to accept amendments directly from opposition and backbench MPs would require a much greater culture shift; one that is unlikely to happen any time soon. When we look at the legislative process and how to reform it, we don’t always take this into account. Perhaps we should.
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About the author
Louise Thompson is Lecturer in British Politics at the University of Surrey. She tweets @louisevthompson.