Labour’s plans to improve the legislative process are welcome, but government is about more than law making

To a Leader of the House, charged with organising and delivering a government’s legislative programme, there is a danger that the route to meeting every policy objective is seen through the prism of legislation. For an incoming government – especially one that has spent years watching its political opponents pass laws with which it does not agree – the prospect of getting its hands on the legislative machine is intoxicating. 

“To a man with a hammer every problem is a nail”

Just as a new government may as a whole be inclined to produce new attention-grabbing legislation, for a new secretary of state the experience of passing a major bill through parliament is often seen as something of a rite of passage. Labour has already made clear that – if it comes into power – there are laws it will wish to repeal, or amend. Much of what a new government wants to do may require changing the legal framework that regulates certain activities, establishing new institutions, setting new rules or articulating new offences. Legislation will be required.

But paradoxically much of the job of a Leader of the House is to push back on the idea of passing laws at all. The Westminster parliament passes more legislation than almost any legislature in the world. Some might say our political class is addicted to law-making. So the UK already has a lot of law and – as ministers discovered during the pandemic, when the 40-year-old Public Health Act 1984 was the main legislative vehicle used to restrict and shape the behaviour of the population – in many instances politicians will discover that they already have the legal powers they need to achieve their ends. 

Sometimes it is tempting for politicians to pass laws as a form of political propaganda signalling publicly their commitment to an issue. But this is a temptation a good Leader of the House will help them to resist. And not just because it risks leading to a cluttered and confusing statute book – although this ought to be a primary consideration. 

Talk of a rejuvenated Parliamentary Business and Legislation Committee is promising

Parliamentary time is a scarce commodity and the resources of parliamentary counsel, who draft legislation, are finite. From a personal point of view, ministers will soon realise that both developing inside government, and then taking a bill through parliament are enormously time-consuming – sucking up precious time they might more usefully deploy elsewhere. 

In this context, it was good to hear Lucy Powell affirm her intention to rejuvenate the crucial Parliamentary Business and Legislation Committee (PBL). This Cabinet Office committee is intended to operate as a ferocious gatekeeper to the legislative process – testing proposals brought forward by cabinet ministers and rejecting those which are unnecessary, not a priority or not ready to be introduced. Its responsibility is to shape a coherent legislative programme which, in theory, makes the most efficient use of ministerial, official and parliamentary time.

All the indications are that PBL has not been operating well in recent years. We have seen laws announced before their feasibility has been confirmed, bills rushed into parliament with whole sections missing, only to be introduced late in the scrutiny process. Others have been subjected to swathes of government amendments throughout their passage. 

Bad legislative practice has increased – for example, asking parliament to grant sweeping powers to ministers in lieu of articulating policy detail on the face of a bill, missing the opportunity for that policy to be tested, scrutinised and improved, and shifting the burden to departments to fill in the detail with secondary legislation once the bill has reached the statute books. If Labour does come into office, some of those currently in government will have a sharp realisation of the extent of the powers that will pass into the hands of their political opponents. 

Ministers’ energies can be well used other than in passing legislation

It is sensible for opposition parties to devote time to considering how they will operate the government machine as well as what they want it to achieve. The legislative process is a key function of that machine and there is enormous scope for its operation to be improved. But just because law-making is a function of government, that doesn’t mean government should spend all its time making laws. A smart government thinks carefully about when legislation is and is not required and can save considerable time, effort and resource by using the laws already at its disposal and putting its energies into the other parts of the government machine that will be at its disposal.