Professor Meg Russell, Director of the UCL Constitution Unit, and Lisa James, Senior Research Fellow[1] at the UCL Constitution Unit - Written Evidence (ROL0102)

Context

1. The Constitution Unit is a research centre based in the Department of Political Science at UCL. The authors of this submission are political scientists rather than lawyers, and our particular interest is in the processes by which law is made.
2. Our submission focuses particularly on the role that parliamentary scrutiny of legislation can play in upholding the rule of law. In doing so, it touches on three of the questions raised in the call for evidence: 4) parliament’s role in upholding the rule of law; 4i) how parliament can improve its legislating to better facilitate the rule of law; and 5) the government’s role in upholding the rule of law. This submission considers first the role that parliament and government play in upholding the rule of law as it relates to law-making, then the current state of affairs relating to both the legislative process and the delegation of powers, and finally reforms that might be considered by parliament and government.
3. An obvious question is why parliamentary scrutiny should be included in the committee’s wide-ranging consideration of the rule of law. As the inquiry has already heard from various witnesses, the precise definition of the rule of law is contested, as are the criteria which might be applied to measure it. But for example the Venice Commission’s Rule of Law Checklist explicitly includes the law-making process and the delegation of powers as two essential aspects of the principle of legality, setting the following tests:

‘4. Law-making powers of the executive

Is the supremacy of the legislature ensured?

1. Are general and abstract rules included in an Act of Parliament or a regulation based on that Act, save for limited exceptions provided for in the Constitution?
2. What are these exceptions? Are they limited in time? Are they controlled by Parliament and the judiciary? Is there an effective remedy against abuse?
3. When legislative power is delegated by Parliament to the executive, are the objectives, contents, and scope of the delegation of power explicitly defined in a legislative act?...

5. Law-making procedures

Is the process for enacting law transparent, accountable, inclusive and democratic?

1. Are there clear constitutional rules on the legislative procedure?
2. Is Parliament supreme in deciding on the content of the law?
3. Is proposed legislation debated publicly by parliament and adequately justified (e.g. by explanatory reports)?
4. Does the public have access to draft legislation, at least when it is submitted to Parliament? Does the public have a meaningful opportunity to provide input?
5. Where appropriate, are impact assessments made before adopting legislation (e.g. on the human rights and budgetary impact of laws)?
6. Does the Parliament participate in the process of drafting, approving, incorporating and implementing international treaties?’[2]

4. The Venice Commission checklist treats the legislative process itself as an aspect of the rule of law. In addition, the legislative process allows a crucial opportunity for any rule of law concerns about the content of legislation to be identified and resolved, before the law reaches the statute book.
5. This suggests that there would be merit in the committee considering the processes for making and scrutinising both primary and secondary legislation, and for the delegation of powers, as part of its broader investigation into the rule of law.

What are the roles of parliament and the government in upholding the rule of law?

6. As already indicated, this submission focuses primarily on the roles played by parliament and the government as they relate to the two checklist criteria mentioned above: the legislative process, and the circumscribing of delegated powers.
7. The UK’s parliamentary system, and its principle of parliamentary sovereignty, means that the legislature has a critical responsibility to uphold the rule of law. Beyond the two criteria listed, which we primarily focus upon, there are clearly other ways in which parliament can act to do this – relating not to the process by which law is made, but to its content. Most obviously, it has the power to amend, or ultimately refuse assent to, legislation which it believes to breach the rule of law. At the most extreme, parliament could withdraw its confidence from a government which it considered to be repeatedly or systematically breaching the rule of law.
8. The government, meanwhile, has substantial influence over the process by which its own legislation is passed. It is the government’s responsibility to ensure that such legislation is ready for introduction; it has significant control over the House of Commons agenda, and thus over the extent and timing of legislative scrutiny; and it can decide either to compromise in the face of challenge, or to whip its Commons majority to reject all proposed amendments, including those coming from the Lords.

The Law-making process

9. One of the authors of this submission is joint author of the largest recent academic study on the parliamentary legislative process, based primarily on the period 2005-12.[3] This concluded that, while there were complaints about the process, government was more constrained by parliament than is often assumed. Earlier this year, she published a new paper analysing the subsequent operation of some aspects of the legislative process, suggesting several ways in which the scrutiny of primary legislation has declined.[4]
10. Perhaps most obviously, the number and proportion of bills rushed through the House of Commons has increased. When bills are rushed, this risks providing inadequate time for parliamentarians properly to scrutinise them, and for the public, media and outside experts to observe and feed into the process. The government’s own Cabinet Office Guide to Making Legislation sets out minimum intervals between stages of the legislative process, to allow adequate consideration and tabling of amendments, but these have frequently been breached.[5] In addition, the number of days of debate has often been limited.
11. One phenomenon is formally ‘fast tracked’ bills which take all their Commons stages in a single day – previously subject to criticisms from your committee.[6] The number of such bills has historically been low, but rose during the two long Brexit and Covid parliamentary sessions of 2017-19 and 2019-21, and subsequently peaked at an unusually high total of 11 during the one-year 2022-23 session.
12.          Beyond this, the number of bills afforded only a few days of scrutiny in the Commons also appears to have sharply increased. In the 2007-08 session, 35% of bills had four or fewer days’ consideration in the Commons; in 2013-14 the proportion was 20%; but in 2021-22 it climbed to 53%, and it reached 67% in 2022-23. The Illegal Migration Bill was one example of a major measure subject to such constraints.
13.          Alongside this, the number of government amendments to its own bills has increased, from an average of 48 amendments per bill in 2013-14 to 80 amendments per bill in 2022-23. Government amendments may sometimes respond to concerns raised by parliamentarians, but may equally reflect an attempt to introduce new areas of policy into a perhaps hastily constructed bill at late stages. Again, this phenomenon prevents parliamentarians, and outside groups, from considering policy proposals adequately (in clear breach of the Venice principles 5iii-iv above). One example was the then government’s attempt to introduce substantial new material into the Police, Crime, Sentencing and Courts Bill at Lords Report stage (largely rejected by the Lords and later included in the Public Order Bill). Another was the Johnson government’s introduction of new material into the Elections Bill at Commons report stage, changing the electoral system for mayoral elections after parliamentary evidence-taking was complete, and with no public consultation.
14. A particular form of late government amendment relates to replacement of so-called ‘placeholder’ clauses – an increasingly common government practice, which has attracted criticism from House of Lords committees.[7] This arises from inadequately prepared legislation, and results in a restriction of opportunity for public and parliamentary input.
15. There has also been some decrease in the number of bills published in draft for pre-legislative scrutiny, though this has always been relatively low. House of Commons Library research indicates that only nine bills were published in draft in the 2019 parliament, compared to 16 in the 2015 and 2017 parliaments combined and 35 in the 2010 parliament.[8]
16. This clearly risks an erosion of opportunity for parliamentary and public input into the making of law (Venice principles 5iii-iv). Equally or more concerning is Institute for Government analysis which shows that only 27% of bills from the 2015-16 to 2019-21 sessions were subject to evidence-taking in the House of Commons.[9] Evidence-taking in public bill committees was intended to be standardised from 2006; but rushed bills and those taking their committee stage on the floor of the House (often part of an expedited process) omit this stage (as do bills starting in the Lords).
17. Meanwhile, the Regulatory Policy Committee has noted an increase in the numbers of red-rated Impact Assessments produced by departments, as well as an increase in the number published late.[10] This appears contrary to the spirit of Venice principle 5v above.
18. Although not the main focus of this submission, it is worth noting that some recent bills have shown governments unwilling to engage with challenges on rule of law or human rights grounds; heavy whipping, particularly in the House of Commons, can be an element of this. This was for example the case in relation to the Safety of Rwanda (Asylum and Immigration) Act 2024.

Delegation of powers

19. Venice Commission principle 4iii above requires the ‘objectives, contents, and scope’ of any delegated power to be ‘explicitly defined’. As this committee has previously pointed out, ‘broad or vaguely worded delegated powers that leave considerable discretion to ministers … make it harder for Parliament to scrutinise the policy aims of the bill and can raise concerns about legal certainty’.[11]
20. This means that so-called ‘framework bills’ are a particular cause for concern (the same Constitution Committee report called them ‘the extreme end of the spectrum of legislative uncertainty’).[12] In 2021, the House of Lords Delegated Powers and Regulatory Reform Committee identified long-running concerns about framework bills, and suggested that their numbers had increased in recent years.[13] More recent research by the House of Commons Library has also identified such an increase.[14]
21. As Ruth Fox recently argued in oral evidence to the committee, there are also significant flaws in the current process for scrutinising secondary legislation.[15]

How can the legislative process and legislative practice be improved to better facilitate the rule of law?

22. There exist numerous suggestions for how the legislative process might be improved (including those made in a series of reports by this committee in the 2017-19 parliament).
23. It is important to note that, while there are reforms that can be undertaken by parliament, action by the government will also be needed, given the extent of executive control over the day-to-day operation of the legislative process. Action by the government might include:
• Higher standards for bill preparation, including to avoid the additional of substantial government amendments to bills at a late stage in their parliamentary passage.
• A commitment to allowing enough time for parliament to scrutinise primary legislation. Though the definition of ‘enough’ is clearly contestable, the proposed intervals between Commons stages laid out in the Cabinet Office Guide to Making Legislation could provide a minimal first step. The government should also be mindful of the impact of rapid bill timetables on parliamentarians’ ability to access information; for example, rushed public bill committee timetables make it practically very difficult for those committees to access expert evidence.
• A commitment to making all relevant impact assessments available at the same time as legislation is published.[16]
• The publication of more legislation in draft form, to allow for early-stage scrutiny.
• Reduced use of framework bills.
24. There are also various reforms which parliament itself might consider (we recognise that those related specifically to procedures in the House of Commons may be considered beyond the committee’s remit; we include them here for completeness):
• Higher government standards for bills preparation could be incentivised by the creation of a legislative standards committee – as previously endorsed by the Constitution Committee and Hansard Society.[17]
• The development of a ‘concordat’ between government and parliament on the use of delegated legislation, with clear criteria for the delegation of powers.[18] The House of Lords Delegated Powers and Regulatory Reform Committee has also proposed that framework legislation (or sections of legislation) should be required to be justified by the government, with the committee given a ‘reserve’ power to pause legislation if it considers the explanation inadequate.[19]
• Stronger scrutiny processes for delegated legislation, which are more likely to identify errors or potential rule of law problems in instruments before they become law.[20]
• Ensuring more consistent evidence-taking on bills. Theoretically this already applies to bills starting in the House of Commons, but recent rushed legislation and overuse of the Committee of the Whole House procedure has reduced it. Meanwhile it has never applied to bills starting in the Lords, and there should be consideration of how this anomaly can be rectified. The committee’s earlier recommendation that the Lords should take evidence prior to committee stage would be an obvious starting point for discussion.[21]
• In addition, Public Bill Committees in the House of Commons might be reformed to improve their access to evidence-taking.[22]
25. Improvements to the collection of data in both Houses of Parliament would make it easier for the health of the legislative process to be monitored.[23] Although some of this information is available, it is currently scattered. For example, data might routinely be published, and annually assessed, on:

• the number of fast-tracked bills
• the number of days spent on each bill at each stage in the House of Commons
• how often intervals set out in the Cabinet Office Guide to Making Legislation are breached
• the number of government amendments to bills
• the use of ‘placeholder’ clauses
• the number of bills published in draft
• the number denied an evidence-taking stage
• the number of ‘skeleton’ or framework bills.

26. Fundamentally, upholding the rule of law requires a culture of respect for the rule of law in both government and parliament. Governments should refrain from asking parliament to act in ways – whether relating to the legislative process, or to the delegation of powers – which may erode the rule of law; parliament must be willing to stand up to a government which asks it to do so.

29 April 2025