REUTERS | Larry Downing

Passing legislation and decision-making in Parliament’s “wash-up” period

Following the Prime Minister’s  announcement of her intention to seek an early election, the House of Commons voted on 19 April 2017 by 522 votes to 13 in favour of the Prime Minister’s motion that there should be an early general  election. Section 2 of the Fixed-term Parliaments Act 2011 (FTPA 2011) provides that an early election can be held if a motion for an early general election is agreed either by at least two-thirds of the whole House or without division (that is unanimously).  Parliament has to be dissolved 25 working days before polling day, meaning that parliament will be dissolved on 3 May 2017 given an election is to be held on 8 June 2017.

So what does this mean for the legislation that is still making its way through the parliamentary process?

Before the FTPA 2011 came into force, the Prime Minister had the power to announce the date of a general election (subject to a maximum five-year interval between general elections) and the date that Parliament was dissolved.  That meant the “wash-up” period, the last few days of a parliament during which unfinished business had to be agreed by both Houses if it was not to be lost altogether was unpredictable.  There had long been criticism of the procedures that were used to ensure the passage of legislation at the end of a parliament and that, given the limited period of time, Bills were receiving little detailed scrutiny in order to get them on to the statute book. Certainly, it was hoped that the FTPA 2011, which provided that general elections must normally be held every five years, would provide greater certainty in the legislation process albeit concerns were raised during the 2015 pre-dissolution period about the impact of the FTPA 2011 on the process for scrutinizing the Finance Bill (a number of clauses that were intended for the Finance Bill 2015 had to be deferred as a result of discussions with the opposition, see Legal update, Finance Bill 2015 receives Royal Assent). For more information on the legislative process in the UK Parliament and the stages that a Bill has to go through in both the House of Commons and the House of Lords before it becomes law, see Practice note, The legislative process in the UK and how Bills become law.

In relation to the current legislative programme, any Bill that has not received Royal Assent by the date that Parliament is dissolved will be lost, meaning that the government needs the co-operation and agreement of the opposition in passing legislation that is still in progress.  Reaching agreement may involve the government dropping controversial parts of particular legislation in order to get the rest through parliamentary scrutiny.  A report, Wash-up: What Happens to Bills Before Parliament is dissolved,  published by the House of Lords Library on 21 April 2017 includes a table setting out the government Bills that are still before parliament, the stage that they had reached as at 21 April 2017 and the latest schedule for completing their remaining parliamentary stages.  In particular:

  • The Northern Ireland (Ministerial Appointments and Regional Rates) Bill had its first reading in the Commons on 20 April 2017, with all remaining Commons stages taking place on 24 April 2017 and the Lords second reading and remaining stages scheduled for 26 April 2017. It is likely that the Bill will receive Royal Assent before Parliament is dissolved.
  • The public bill committee agreed on 20 April 2017 not to proceed with the Prisons and Courts Bill, see Legal update, Prisons and Courts Bill “to lie upon the Table”.
  • A carry over motion has been passed for the Local Government Finance Bill (the Bill had completed its Commons committee stage but no date had been set for further stages). For more information on the Bill, see Legal update, Local Government Finance Bill introduced into the House of Commons and factsheets on the Bill published by the DCLG.
  • The Bus Services Bill is currently ping-ponging between the House of Lords and the House of Commons with the Lords considering the amendments on 25 April 2017. If the Bill does not get Royal Assent before Parliament is dissolved, it could be revived in the new Parliament and carry on from where it was left before the election (assuming the new government would want to revive it).
  • The Local Audit (Public Access to Documents) Bill (a private members’ Bill) is scheduled to have its Lords committee stage on 26 April 2017, with the Lords third reading scheduled for 27 April 2017.
  • The Children and Social Services Bill (a government Bill) and the Homelessness Reduction Bill (a private members’ Bill) have completed their passage through both Houses and are awaiting Royal Assent.

Decision-making of public bodies in the pre-election period

The convention that is known as “purdah” is a reference to the period of time immediately before the election when specific restrictions on the activity of civil servants and ministers are in place. During a period of purdah ministers, civil servants and non-civil servants in non-departmental public bodies will continue to take decisions on a “business as usual” basis. However, the convention involves a “self-denying ordinance”, where decisions will not be taken or policies announced if they are, or may be, significant in their effects and politically contentious. This is the subject of Cabinet Office General Election Guidance. The Guidance for the 2017 election (dated 20 April 2017) (see Legal update, General election guidance for civil servants published by Cabinet Office), summed up the position as follows:

“It is customary for Ministers to observe discretion in initiating any new action of a continuing or long-term character. Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money”.

The self-denying ordinance is necessarily applied on a case-by-case basis. If there is any doubt as to whether purdah precludes an action from being taken during the pre-election period, it will typically be resolved in favour of delaying that action until after the election.

While purdah strictly applies to ministerial government departments, and does not prevent local councils or other public authorities outside of central government from making decisions during the pre-election period, many public bodies observe it to some degree.  At the very least, they can be expected to be sensitive about taking action that may compete with candidates for the attention of the public or influence support for any political party or candidate. There is statutory guidance for local authorities about publicity during the period just before local elections, see Legal update, Code of practice on local authority publicity published.

For more information on the implications of purdah on the decision-making of central and local government and other public bodies in the period leading up to a general election, see Practice note, “Purdah”: the decision-making of public bodies in a pre-election period.

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