Washed-up: the fate of legislation in a snap election

The decision of the Prime Minister to trigger an early election unexpectedly sabotaged a number of bills caught up in the legislative process, while causing others to be rushed through in something of a panic before parliament was dissolved. Paul Magrath looks at some of the winners and losers in that process, and why it has been so rushed.

Public bills cannot be carried over from one parliament to the next in the same way as they can from one session to the next: any unfinished business will be lost once parliament is dissolved, unless it can be agreed by both Houses in what is known as “wash-up”.

The Fixed Term Parliaments Act 2011 (FTPA) was intended to provide a level of certainty about the parliamentary time available to complete the legislative process, and make it less contentious. But by using the “break clause” provisions in section 2 of the FTPA, Theresa May threw the normally unhurried process into disarray, resulting in a purge of proposed provisions.

Losers and winners

The most spectacular victim would appear to be the Prisons and Courts Bill 2017, which among other things was designed to usher in the new digital courts, offering online justice open to public scrutiny via viewing booths in public buildings, and a raft of other digital innovations. The Bill also provided for prisons reform, and made controversial changes to personal injury litigation and to the treatment of domestic violence victims in court.

In view of the amount of work still to be done on it, and the controversial nature of some of its provisions, MPs on the bill committee on 20 April voted unanimously to scrap the Bill. So it’s back to the drafting board.

Two other major bills which seem to have fallen by the wayside are the Vehicle Technology and Aviation Bill, which deals with driverless vehicles and their insurance, and creates an offence of “shining or directing a laser at a vehicle”, and the Local Government Finance Bill which deals with various aspects of non-domestic rates.

Although it was passed in the end, the Finance Bill (No 2) which enacts measures included in Philip Hammond’s Budget last month, had to shed many of its clauses – the version that received the royal assent as the Finance Act 2017 was only 148 pages, compared with 762 in the original Bill.

Other bills have fared rather better. Although the Lords had tabled 50 amendments, the Criminal Finances Bill was considered by the Commons on 26 April and received the royal asset on 27 April, along with a long list of other bills. It includes new powers to oblige suspects to explain the origin of their assets and for the authorities to seize the proceeds of crime stored in bank accounts or used to purchase property or jewels, as well as measures to tackle tax evasion and combating terrorist finance.  

A bill which has had an even more rocky ride is the Children and Social Work Bill  —  which has now also been passed, although not until it had been given a gruelling ride in the House of Lords and had to drop some of its more controversial provisions. Other notable bills that have now made it onto the Statute Book are the Digital Economy Act 2017, the Higher Education and Research Act 2017, and the Intellectual Property (Unjustified Threats) Act 2017.

Last, and probably also least (in terms of size  —  it only has two sections), the Merchant Shipping (Homosexual Conduct) Act 2017 corrects an anomaly which Rich Greenhill on Twitter noted a year ago, when the Armed Forces Act 2016 repealed section 146(4) of the Criminal Justice and Public Order Act 1994 enabling dismissal for “homosexual acts” of members of armed forces  —  but not of merchant navy.

So homosexual acts in the merchant navy (as well as in Royal Navy) are no longer grounds for dismissal under sections 146 and 147 of the 1994 Act. In fact, as the explanatory notes to the bill explain, those provisions of the 1994 Act were no longer of any legal effect, due to other legislation (primarily the Equality Act 2010 and regulations made thereunder) so repealing them was largely symbolic and what one might call “clarificatory”.

Still pending

Two significant pieces of legislation promised in the last parliament have not been the subject of any consideration yet, only a lot of advance fanfare and briefing. One is the so-called Great Repeal Bill, which will be needed to put into effect the deal (if any) achieved at the end of the Brexit negotiations with the remaining 27 members of the European Union. This was the subject of a White Paper in March, but the actual Bill must be a priority for the new government after 8 June.

The other is the long-promised and long-delayed British Bill of Rights, which does not appear even to have reached a first draft, and whatever has been jotted down so far seems to have been filed for now in the bottom drawer of some Cabinet office filing cabinet. The most we have had in documentary form is a campaigning paper (which predates Brexit) called “Protecting Human Rights in the UK”, and various pronouncements, at various times, and not always consistent as to their effect, by Conservative politicians.

What about the Fixed Term Parliaments Act?

For the avoidance of doubt, one thing Theresa May’s triggering of an early election has NOT done is to repeal the FTPA, as one MP rather over-excitedly tweeted at the time.

The motion which was passed on 19 April was not a vote to repeal the 2011 legislation introduced by the coalition parliament to ensure “long and stable” government, as it were. The Act already made provision in section 2 for parliament to be dissolved before the expiry of the five-year fixed term, either in response to a motion of no-confidence against the government of the day, or on the passing of a motion to hold an early election supported by a majority of more than 2/3 of the number of seats in the House of Commons. (The House of Lords is not involved.)

The vote in the Commons on 19 April 2017 was carried by 522 to 13 — a majority of 509.

In other words, far from rendering the FTPA nugatory, the vote was actually a demonstration of the Act working in the way it was designed to. If Theresa May had wanted to make a bonfire of the Act, she would have needed to introduce another piece of legislation (either a standalone bill or an amendment or insertion into another bill), with the specific purpose of repealing the FTPA, and get that passed (by a simple majority) in Parliament, after completing its passage through both Houses and committee stages in the usual way.

That hasn’t happened and is unlikely to if, as is widely predicted, Theresa May’s government is re-elected on 8 June. That’s because she’ll need all the time she can get to complete the Brexit negotiations without the threat of another election before 2022.

Paul Magrath is Head of Product Development and Online Content at the Incorporated Council of Law Reporting for England and Wales (ICLR). He tweets as @Maggotlaw