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Laying down the law: legislation and the preparation for power

The Shadow Leader of the House of Commons, Lucy Powell, gave an intriguing speech this week at the Institute for Government outlining three ways an incoming Labour government would reform the executive’s relationship with the legislature: by rebuilding trust and accountability, by governing and legislating more effectively, and by improving the culture of parliament.

Coverage of Powell’s speech has tended to focus on the last of these. This was understandable: in a moment of high drama the night before she spoke, the House of Commons had agreed that MPs who have been arrested for serious or violent sexual offences could be banned from entering the parliamentary estate. The proposal was won by a single vote, with newly-defected Labour MP Natalie Elphicke – whose ex-husband is a former MP sent to prison for sexual assault – voting in favour of it. Little wonder that so much focus was given to Powell’s proposals for tackling abuse and harassment among elected politicians.

Yet the second of the Shadow Leader’s proposed reforms merits attention as well, not least because it gives a good sense of how seriously the official opposition is taking the task of preparing for government as well as some early indications as to how they might behave in office. 

The untenability of the status quo is undeniable. Parliament’s sitting days have become shorter and shorter as the government’s legislative programme has dried up. What legislation there is has often been rushed (with 32 ‘emergency bills’ proposed since 2019 – more than in the whole 13 years of the previous Labour government) and poorly drafted (with the most recent session of parliament seeing the highest ever number of government-proposed amendments to its own bills).

Labour, Powell told us, would do things differently. The emphasis would be on better planning, drafting and scrutiny; on taking a “whole of parliament approach” (thinking about how to get the government’s legislative programme through both Houses); and on striking an appropriate balance between primary and secondary legislation. As ever, the proof will be in the pudding as to whether a Labour government can genuinely resist the temptations of falling back on some of the Tories’ bad habits when the pressure is on.

But what Powell’s emphasis here does show is that Labour is starting to think about how it will implement its policy programme as much as what that programme should look like in the first place. This is a central focus for us at FGF, and our Into Power series – where we’ve looked to learn the lessons of past transitions into government both here at home and overseas – has revealed just how vital it is that an opposition starts thinking in these practical terms as it prepares for office.

Well-drafted legislation isn’t just an end in itself, or something to earn the approving nods of House of Commons clerks. It is what enables a new government to act at pace and, crucially, to get things right first time. 

In the second of our Into Power reports, former Conservative adviser Sam Freedman discussed where this had gone both well and badly back in 2010. As part of Michael Gove’s education team, Freedman had drawn up a draft Academies Bill while still in opposition. In government, while this was revised by civil service draughtspeople, “the fact we’d gone that far meant they realised we wanted to move quickly and were clear on what we wanted to do”. It also allowed the shadow Education team to secure a prime spot in the legislative schedule for the fabled first 100 days, ahead of less well-prepared Cabinet colleagues. 

Yet he also flagged the risks of moving too quickly in legislative terms: the team worked on the assumption that they would “come back a few years later and… iron out all the problems that emerged”, but this never happened.

This week Lucy Powell showed she was at least aware of the need to get this right when she spoke about her process of “stress testing” Labour’s legislative programme and striking the balance between pace, accuracy and scrutiny. 

That’s a challenge that would and should humble any party looking to come into government after such a long time in opposition. Yet as Powell acknowledged, the task is arguably even bigger for today’s Labour Party given that it has committed itself to five major missions and a new governing philosophy. 

The temptation, which you could feel tugging at Powell throughout this speech, will be simply to go back: back to a time when legislation was both better drafted and better scrutinised, and back to when the executive treated the legislature with more respect as it advanced its policy programme. Back to when the prevailing system worked effectively, in other words.

But the challenge for a Labour administration intent on mission-driven government is about going forward, and moving on from that prevailing system: on to a whole new way of governing, where fixing these sorts of fundamentals is essential but not sufficient to success. The challenges and opportunities of the complex times we live in demand nothing less.