Rishi Sunak is in a hurry to fulfil his ‘five priorities’, especially on small boats. He’s in a hurry because there isn’t much time before the public use the general election to judge how well the Tories are doing. So legislation that promises to ‘stop the boats’ is moving through parliament swiftly. Most people agree that something must be done to prevent the deadly crossings in the Channel. But ministers are trying to get their own version of ‘something’ through parliament so quickly that MPs might not notice whether it will actually make the situation better – or indeed make it worse.
Principles are important, but if they are embodied in badly-drafted legislation, you end up with unintended consequences
The Illegal Migration Bill has passed its first stage in the Commons, with no Tory MPs voting against it at second reading. Because of the rush with the legislation, it isn’t passing into the normal lengthy committee stage where a small cross-party, politically-weighted group of MPs examine the legislation line-by-line and try to improve it, but to something called a ‘Committee of the Whole House’. This ostensibly allows all MPs to have a say in the most detailed bit of legislative scrutiny, but as the Institute for Government’s Hannah White complains here, what often ends up happening is a rehash of the second reading, where MPs merely make ‘grandstanding’ speeches about principles – the ‘something must be done’ argument – rather than about the details of the legislation. Principles are important, but if they are then embodied in badly-drafted legislation, you end up with unintended consequences that are only visible once the law is implemented and MPs see the results in their constituency surgeries or in tragic cases in the national news.
Why might this be a particular problem with this Bill? Firstly, immigration legislation is particularly complex and always needs proper thought. Secondly, what’s before MPs is currently a bit ropey. There are two ‘placeholder clauses’ which allow the government to add more details about what they intend to do at a later date. These are not small matters: they largely concern how the UK law works – or doesn’t – with the European Court of Human Rights. Last night in the Commons, Labour’s Yvette Cooper said of one of these clauses that:
‘It adds to the chaos within this piece of legislation that the Government have not worked out what they want to do: as a consequence, they are undermining our reputation as the kind of country that stands up for the rule of law and leads the way in expecting other countries to follow the law.’
One of the reasons there is a gap left in the legislation is that there is a dispute within the Conservative party about how far it should go. Tory backbenchers want clause 49, which covers the powers the government has to make regulations about interim measures from the ECHR, to allow the Home Secretary to be under a statutory duty to remove unlawful migrants. There will be other big amendments at Committee stage: as Katy wrote last night, the big rebellion will be over a proposal to withdraw from the European Convention on Human Rights. These will be principle arguments, though, not about detail.
The MPs who raised concerns about proper detailed scrutiny were not the ones who were opposed to doing something to stop these deadly Channel crossings, or the gung ho types who want the Bill to be tougher. In fact, they took care to say it was important to do something – but not anything. Diana Johnson, chair of the Home Affairs Select Committee and a Labour MP, told the Commons that ‘I believe there is consensus that we all want to stop people crossing the Channel in unsafe, small boats, and risking their lives in some of the busiest shipping lanes in the world.’ She added that because the Bill was part of one of Rishi Sunak’s five priorities and was ‘so important’, she had asked for her Committee to ‘carry out pre-legislative scrutiny to test the robustness and evidence supporting the Bill’ – something which had been refused.
Theresa May raised another problem with the speed of this Bill, which was that it was too soon after the previous legislation for ministers to be able to tell what was working and what wasn’t: ‘I am concerned that the government have acted on Albania and the Nationality and Borders Act 2022, when neither has been in place long enough to be able to assess their impact. I do not expect government to introduce legislation to supersede legislation recently made, the impact of which is not yet known.’
But May, Diana Johnson and Yvette Cooper are still on the Remain-y side of this argument, which means many ministers, including Home Secretary Suella Braverman and indeed Sunak himself, might well ignore them. That’s not to say that Brexiteers are all that happy about this government’s approach to scrutiny, either. Another select committee, this time chaired by a Conservative Brexiteer – in fact, some might say he is the Conservative Brexiteer – Bill Cash, has been complaining today about the way the Prime Minister is proposing to give MPs a say on the Windsor Framework. In this report, the Committee warns against the government rushing parliamentary approval of this agreement.
Cash says:
‘Parliament should not be railroaded into a deal that it has not had sufficient time to come to an educated choice over whether to proceed or renegotiate, which will be unlikely to happen if the Government were to rush ahead particularly if the EU wishes to do so. MPs in the House must have a meaningful chance at input before this happens.’
The report also says the Committee is ‘disappointed’ Sunak has declined to give evidence to it on his solution to the Northern Ireland Protocol stand-off. ‘Appearing before us would have provided the Prime Minister with an opportunity to discharge what we consider to be his obligation to the House to subject the Windsor Framework to close and detailed parliamentary scrutiny.’
Sunak might think he has better things to do than spend an hour giving evidence to Cash, but then that’s what all prime ministers in a hurry think when threatened with scrutiny that might slow them down. And for all Keir Starmer complains about ‘sticking plaster politics’, he has yet to propose anything that suggests he won’t end up being just as scrutiny averse if he enters government in the next few years and wants to get his way on something he wants done, too. The problem is that just because a government has decided something must be done, doesn’t mean that it ends up doing that thing in law, or indeed that the thing is the right solution to the problem. MPs who really care about policies working – as both Sunak and Starmer claim to – rather than mere symbolism, should be a little more forceful in slowing down leaders in a hurry, if nothing else to stop them tripping over their own feet.
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