Westminster Watch

Is the business of government grinding to a halt as we face up to a spate of elections and the EU referendum and is legislation being pushed through without sufficient scrutiny? asks Mark Hatcher

With the imminent election on 5 May of the Mayor of London and members of the London Assembly, local government elections in England, elections to the National Assembly for Wales and voting for Police and Crime Commissioners in England and Wales, the political classes are gorging on a feast of campaigning and political activity. 

But spare a thought for public servants whose political impartiality in discharging their official business must be beyond question.

Six weeks before last year’s General Election, the Cabinet Secretary issued detailed advice and guidance to civil servants on restrictions on their role and conduct during the pre-election period.

Often referred to as ‘purdah’ this expression is used across central and local government to describe the period immediately preceding elections or referendums when specific restrictions on the activity of public servants are in place.

Purdah before general elections is governed by conventions based largely on the Civil Service Code. Referendum purdah on the other hand is regulated by the Political Parties, Elections and Referendums Act 2000. Statutory guidance, issued under the Local Government Act 1986, applies to local authorities in relation to publicity during the period just before local elections.

Inevitably during this period there will be uncertainty. However, the business of the country and the Queen’s government must go on. The UK government retains the responsibility to govern and ministers remain in charge of their departments. Public servants must keep delivering government services. And No 10’s news grid runs on.

Although the official message in Whitehall is it’s ‘business as usual’, a pre-election period provides ample scope for policy drift and dither. Ministers postpone taking decisions which are deemed too difficult or require further time for more careful consideration. In the meantime, officials slip into a different gear pending the outcome of the democratic process. As time passes, the results of earlier policy development with external bodies and interests on issues (which need not be partisan) start to pile up awaiting resolution.

The Tories’ election manifesto commitment to bring forward proposals for a British Bill of Rights seems to have been kicked firmly into the long grass as the first session of the current Parliament draws to a close without the repeatedly promised consultation.

A new parliamentary session begins with the Queen’s Speech being delivered on 18 May. By then we will know whether the former Shadow Secretary of State for Justice, Sadiq Khan has become Mayor of London, perhaps offsetting heavy Labour losses predicted in the English local elections, and a lack lustre performance in Scotland and Wales.

A clear victory in London for Khan and his nomination of Jeremy Corbyn for the Labour leadership could inhibit the plotters who have been dreaming of ousting their leader for the best part of a year. There is unlikely to be sufficient support among the majority of members of the parliamentary party at Westminster who feel the time is right to support ‘unity candidates’ like Hilary Benn and Angela Eagle. Barring further unforeseen accidents among the governing party and two-nation PR disasters such as Osborne’s welfare cuts and mishandling of the Panama papers by No 10, Her Majesty’s Opposition looks set to remain in disarray for some time to come.

What of the fate of those policy initiatives which do receive ministerial approval and await implementation by legislation? ‘Laws are like sausages. It is better not to see them being made’, an observation often attributed to Bismarck, but probably apocryphal. Consider the Investigatory Powers Bill, introduced to the Commons in March by the Home Secretary, Theresa May. It is the first piece of major legislation affecting the security services’ powers in 15 years. It currently runs to no fewer than 233 clauses with 10 schedules, of which there are 19 separate parts.

If one agrees with Dominic Grieve (chairman of the Commons Intelligence and Security Committee) that the Bill is necessary on the grounds of national security and is well-intentioned, parliamentarians will need to be able to ensure it fulfils the equally important role of being seen as an upholder of our freedom and liberty. Members of Parliament need to be assured therefore that the potential for misuse of extensive powers and capabilities available to the security services has been addressed and proper safeguards provided.

Yet the Bill that the government introduced was on the back of a draft measure which suffered from lack of sufficient time and preparation. In the eyes of many, it did not go far enough to protect civil liberties. In the space of a few weeks, three parliamentary committees expressed significant misgivings about many aspects of the draft Bill and they made extensive recommendations for its revision. As the SNP Justice and Home Affairs spokesman, Joanna Cherry, told the Commons during the Second Reading debate: ‘The Bill introduced by the Home Secretary barely two weeks after the ink was dry on the last of those three reports, [left] insufficient time for the government to go back to the drawing board to deal adequately with the concerns expressed by the three committees.’

Detailed consideration of this complex and controversial measure began, line by line, in committee on 12 April. In accordance with a ‘programme motion’, approved by the Commons on 2nd Reading, what passes for ‘independent scrutiny’ of the Bill must be completed by 5 May before the remaining Commons’ stages – Report and Third Reading – are completed in just two days. Notwithstanding pre-legislative scrutiny, the Bill is being taken through Parliament very quickly and without sufficient time for proper, independent scrutiny by the legislature.

It is timely therefore that the Centre for Policy Studies, the think-tank founded by Sir Keith Joseph and Margaret Thatcher in 1974 to promote the principles of a free society and the dissemination of free market economics, has recently published a paper, Dangerous Trends in Modern Legislation…and how to reverse them. Written by a former member of the Office of Parliamentary Counsel, Daniel Greenberg, it argues that legislative trends are emerging which threaten the effective protection of the rule of law. Drawing attention to the length of new Bills and the number of clauses they include, Greenberg says that Parliament is unable to scrutinise them properly. Line by line scrutiny has become so diluted that it can no longer be described as taking place. As a result, Whitehall is being allowed ever greater power over Westminster.

In procedural terms, it is open to argument whether or not there was a golden age in the past when legislation received full and effective scrutiny. What is not open to argument, he considers, is that it does not do so now.

What is the solution? It could be greater publicity. Greenberg suggests that two new elements should be introduced to the legislative process. First, the explanatory notes for each Bill and Act should record the scrutiny given to the legislation in each House. They should also record incidents of certain powers for subordinate and quasi-legislation that undermine parliamentary control. Secondly, this information should be consolidated into an annual review, which would be debated in both Houses of Parliament. These measures would be inexpensive and require neither legislation nor procedural change to implement. ●

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Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.