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[00:00:00] Intro: You are listening to Parliament Matters, a Hansard Society production, supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm

[00:00:18] Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox

[00:00:24] Mark D’Arcy: And I'm Mark Darcy. Coming up:

[00:00:27] Ruth Fox: We've got a special August bonus episode where we talk to former Director of Legislative Affairs, Nikki da Costa, who served two Prime Ministers in Number 10 Downing Street.

[00:00:35] Mark D’Arcy: So brace yourself for a deep dive into the hidden world of lawmaking, the world of the fabled PBL committee, that's Parliamentary Business and Legislation, which chooses what goes into a King's Speech, and indeed chooses whether it'll go for primary legislation, a full dress parliamentary Bill, or secondary legislation, regulations and orders made under existing laws. Okay, let's listen.

[00:01:08] Well, Ruth and I are very lucky to be joined on the pod today by Nikki da Costa, who used to head up the legislative operation in Downing Street under a series of Conservative prime ministers. She's here to give us an expert view on Labour's King's Speech and discuss how it's going to play in Parliament and indeed what it tells us about how Labour sees Parliament with its massive majority.

[00:01:30] So, Nikki, first of all then, the King's Speech, it's quite a big programmeme of legislation, but not unprecedentedly so. What are the pressure points that you see in it?

[00:01:39] Nikki da Costa: I don't see a lot of pressure at the moment, and that's partly because the programme isn't very ambitious. And this is not just me speaking as a Conservative, knocking the Labour programme.

[00:01:49] There are about 50 Bills in there, and about 50 percent has been taken from the last session of the last Parliament. Many of them are housekeeping bills. If you look at the ten that have been introduced so far, the majority of them are housekeeping. They're all very short bills. Some of them are Law Commission Bills.

[00:02:04] We're not talking something with a lot of political punch at this moment, and therefore it's hard to work out where the challenges are going to come from. In the Commons, you can't see them crystallizing in terms of amendments to bills, but things can get choppy there. In the Lords, it will be really about what's in the detail of those bigger bills when they come, and what does that mean in terms of scrutiny and concerns to whether the proposals are right.

[00:02:26] So right now, I'm afraid we are in a watch and wait.

[00:02:29] Now you've been in the room when governments have been trying to put together a King's Speech and ministers have come up with their bid for this bit of legislation and other ministers want that bit of legislation and they can't all fit in. So what's the winnowing process like there? Give us a taste of how it works.

[00:02:45] Usually you're working on this for at least six months ahead of the King's Speech, or the Queen's Speech during my day. You send out that bid to Departments, you tell them, you know, grade them, you know, what's urgent, what's politically useful, what's meeting a manifesto commitment, and you get them to fill those forms in and come back with the bids.

[00:03:03] You might be also pushing Departments and say, you mentioned this before, I'd really like to see that proposal because of all the things I'm hearing, that sounds worth including. What comes back? A lot of it is not going to be something that's going to make the Prime Minister happy. The Prime Minister is not going to look at that list and say, Oh, lovely.

[00:03:20] That's going to really be my legacy. It's going to be stuff that has to happen. And then there will be amongst that, useful stuff. Things that will do with crime, things that will change people's lives and their day to day experience, those kinds of things. And then you're going to sift that through.

[00:03:34] You're going to get Policy Unit to comment on it. You're going to think about who's backing it, how easy is it to get through Parliament, all of that, and eventually you send a note to the Prime Minister and say, Prime Minister, here's the grid, these are the Bills I recommend you include, these are the ones you might say, you you know, subject to there being space.

[00:03:51] And this is how you might talk about this programme. The key thing with King's Speeches is you're going to create a theme. It is very difficult to see one just naturally emerge. You're going to do a little bit of sleight of hand and make it seem more coherent.

[00:04:03] And so what does this King's Speech tell you about the kind of parliamentary planning that Labour have done thus far?

[00:04:10] Your first Session is always going to be highly dependent on your civil servants. And that's the Parliamentary and Business and Legislation Committee and the Secretariat there. They will have been thinking about what do, what have we already got on the books that needs to happen, where we could use that, those initial slots where the Government's not yet got going, where we could do the things that we have to do.

[00:04:29] And then there will be carefully listening to all those public announcements, all those things that happened prior to the election going, was that a legislative commitment? Okay, that was one. Let's try and see. Can we do enough with the guidance that's been said publicly to start to draft, to start to give some policy instruction around that?

[00:04:46] What's interesting to me, because there's not that much political in the King's Speech beyond some of those headline things regarding railways, OBR (Office of Budget Responsibility) etc, is that either the access talks did not sufficiently focus on the legislative priorities of the Opposition teams, they just didn't give enough guidance to civil servants what they were looking for, or they didn't have the ideas.

[00:05:08] And I think this is the tension and you'll start to see Number 10 starting to say to Departments, "where are your ideas?" What is it that we are in power to do for the next five years? Give us the meat because it's not there yet.

[00:05:19] Ruth Fox: Is it possible that the talks didn't start early enough and they actually haven't had a long enough run at this?

[00:05:24] Nikki da Costa: I don't think so because, as you know, it's always an argument about how many months and who gets the bid, and that's a bit of a political argument. Because it's about clarity of what you go in there. The civil servants are very restricted on what they can do. You know, they have to stay within lines, they can answer questions, they can give a bit of guidance, but they're not there to provide options at that stage.

[00:05:43] But if you go in there and say, we know that within two years, this is what we want to be on the statute books, then you can have that detailed conversation. There was talk of Labour having a legislative team working on this, but I'm not sure that that necessarily filtered through.

[00:05:57] Did it get through from the departments to PBL secretariat? Was there enough work there?

[00:06:02] So right now I'd say the civil service did a fantastic job making sure there was a King's Speech in place, making sure there were good Bills there, making sure that parliamentary time isn't wasted at the start of the Session. That's all the things that the secretariat and business managers will want.

[00:06:16] Now it's really for the politics to start coming through.

[00:06:18] Ruth Fox: And what's, from a behind the scenes perspective, what will now be happening in terms of the individual Bills?

[00:06:23] So we've got the first few that have come out that are getting Second Reading, but they're quite modest Bills, both in size and in terms of the complexity.

[00:06:32] But we know there are a couple of big ones coming, planning, for example, Angela Rayner's big devolution Bill. It's They're going to be much bigger, they're going to be much more complicated to put together in legal terms. How does that work in Whitehall before it gets to Parliament and what's the process of sort of the drafting and then the sign off process to say yes, this is ready to go to the House of Commons or the House of Lords?

[00:06:54] Nikki da Costa: When the Departments make a bid, they'll be asked to indicate how complex is this piece of legislation. Is it just a little tiddler or is it a very big Bill? And then when PBL Secretariat is looking at what has been signed off, they'll be going, right, we'll work with the business managers and they'll start to allocate a slot.

[00:07:12] They'll say, right, you need to be ready for the King's Speech. Immediately after you're going to get a slot, you need to be ready. You hit that deadline. And if you miss it, I can't promise you're going to get another slot and saying over there, okay, you're quite a big bill, we're going to give you a few months over the summer.

[00:07:26] So we'll give you the autumn. You need to be ready. And then there'll be a January wave. I'd expect the very big bills to be in that January wave. And I'd expect the Session to be extended. When I say extended, it's obviously at the discretion of the government, but 18 months, 24 months, to accommodate those bigger Bills.

[00:07:42] So that will give the time. So you, you've got those waves. The Department is given an indication of what they need to do. And they're going to have to drive those, you know, resolve the policy with your Ministers, give the instructions to your lawyers, and then there'll be this iterative process with OPC, the Office of Parliamentary Counsel, who are wonderful people.

[00:08:00] They solve so many issues, and they are wonderful, you know, thoughtful people.

[00:08:04] And then you'll go through that process, and then eventually it goes to PBL Committee, where the Minister is grilled on their readiness to get that Bill in. Have they really thought through how this should be handled in the Commons and the Lords?

[00:08:15] Mark D’Arcy: Now you headed up a unit in Downing Street for Theresa May and for Boris Johnson in times when governments had considerable difficulty in Parliament. Theresa May didn't really have a functional majority. Boris Johnson was always a little bit uncomfortable as well before he won the 2019 election. With Labour's vast majority now, do they still need a unit like that? May they think they can get by without having a big focus on parliamentary management, just concentrate on politics out in the country and let the MPs fiddle around if they want? We've got such a big majority, we can basically shrug them off.

[00:08:51] Nikki da Costa: It is a very interesting question. for people like us, which may be a relatively narrow cadre.

[00:08:56] Number 10 didn't have a Legislative Affairs Unit before 2017. My role was created, I was the first in post because Theresa May had lost a majority and suddenly Number 10 realised they needed somebody in the room who understood what was possible and the parameters you couldn't afford to be keep on going, Oh, could you get the Chief Whip round?

[00:09:13] You'd lose so much time if, if you were doing that. So the question becomes, do they keep the Legislative Unit? Now, Whitehall has become habituated now to having that unit. They've seen it as vastly useful. It was one of the brainchilds of Jeremy Heywood. Lead officials at the time, they saw the advantages.

[00:09:29] Whitehall's used to Number 10 Legislative Affairs now brokering arguments between different departments on how to handle a cross Whitehall issue. They're used to Number 10 coming in and providing a bit more politics in terms of shaping the programme. Those kind of things.

[00:09:43] I think if they do do away with the unit it would be a sign that they basically think we don't need to worry about our parliamentary party in the Commons. Even if they're not particularly disciplined there's just enough of them we can absorb any rebellion and we're just going to get on with things.

[00:09:59] I think it would be short sighted because the parliamentary game has changed tremendously. They might think actually the Opposition's not quite up to it just yet so why would we need Legislative Affairs?

[00:10:09] Things change very rapidly and I don't think that will remain the case for the Conservatives for very long. And, you know, it, I mean, I'm always going to speak for the, the value of it. I think knowing what you want to do and knowing how to do it, you need to combine those two knowledge sets.

[00:10:24] Mark D’Arcy: I'm very interested in that comment, the "parliamentary game has changed a lot". A lot of people are imagining this is going to be kind of an action replay of the early Blair years.

[00:10:31] Nikki da Costa: I don't think so. For a number of reasons. And, and Philip Cowley is obviously the master of rebellion and looking at the data. But, if we look back to then and people talked about, you know, the massed ranks, the sort of bovine loyalty.

[00:10:44] Uh, the big thing that I think has changed is social media. MPs can no longer afford to just walk through the lobby and say yes to something because the whip has said so. That exposes them to huge political risk. They need to be more actively owning, what are we voting for? How is that going to reflect on my constituents? Do I agree with it?

[00:11:03] I think the second element is when you have such a huge majority, it's all a free hit. Every MP can afford, Labour MP, can afford to say, There are so many of us. If I want to kick up a fuss over here, it doesn't really matter. So you could get a habit of rebellion developing, and we've seen that.

[00:11:19] You know, one of the problems with the Conservative Party, which we've seen, is actually the Brexit years, I think, trained MPs, even the ones that were just observing and then became MPs, in a particular way of behaving. And I think that is also going to impact in terms of how the Labour MPs are there.

[00:11:35] We'll see what happens, but so I think MP behaviour has changed. We've seen new tactics emerge, new ways of dealing with things. It's, it's a much more crafty game, I think, than it was even back in the 2000s when I was in the Opposition Whip's office.

[00:11:48] Ruth Fox: What kind of new tactics do you mean?

[00:11:51] Nikki da Costa: People are becoming more aware of how to craft an amendment that requires a response.

[00:11:57] I think people are more aware of how to put down an amendment knowing that it's not going to become law, but the matter of voting on it is going to cause such a difficult moment in the media and the social media that you may well see movement from the Government anyway because they just don't want that fight.

[00:12:13] So I think it's more about people working out that, that increased need to feed the lobby machine, the Westminster commentariat, creates opportunities with how people adapt to legislation. You've also got some complexities between Commons and Lords and how you have the two-House strategy, but I think that's the fundamental thing.

[00:12:33] People working out how to use that legislative opportunity to raise issues.

[00:12:37] Mark D’Arcy: All of which perhaps explains why Keir Starmer stamped down so hard on his first rebellion and took the whip away from those seven Labour rebels.

[00:12:45] Nikki da Costa: Yes, and I think it's fascinating because, you know, you're damned if you do and damned if you don't.

[00:12:49] I don't think you can ameliorate. I think if you've done that, you've got to be hardline and everything. I personally have a lot of empathy for the idea that on a King's Speech and on a budget, if you rebel, there should be pretty harsh penalties. So I'm old school on that. I think the key thing is making sure your MPs know how you're going to do the whip.

[00:13:06] Ruth Fox: Talk about the House of Lords. So they obviously were a source of some difficulties when you were in Number 10 in terms of the Brexit legislation. We're in a different situation now where the Government isn't the largest party, so it's the third largest group in the House of Lords. How do you think that may play out with the Government's legislation over the next Session?

[00:13:24] Nikki da Costa: It's always very difficult, as you know, to actually work out what is the numbers of the active peers. I don't think I have an answer. I'd love it if the Hansard Society has done that, and did a wonderful analysis of actually saying if you take the active players, the ones that vote reliably,

[00:13:38] this is the party split.

[00:13:40] Whatever the numbers, no party has ever been able to get a vote through without the support of another, and, crucially, the Crossbenchers. That's why we often say the Lords is much more about making arguments. Things can change off the back of what's said in the chamber. You can have that, that flex. So my instinct is that the Conservatives in general, we do tend to be a little bit more, or we don't want to be Opposition for opposite state.

[00:14:02] We've been shaped by Government. So almost, you may see Conservatives probably holding back, you know, their frustrations that we experienced that, for example, deals were being broken, may shape the fact that we don't want to break deals. And Lord True is a class operator in my view. And he will be thinking, when I use political capital, I'll use it in the right places on things that really, really matter.

[00:14:25] So I think you'll see some good collaboration where that's usual, which is always the Usual Channel way. And when there's a fight, then you'll see that that that play out.

[00:14:33] Mark D’Arcy: Lord True, of course, the Conservative leader in the House of Lords.

[00:14:35] Sorry,

[00:14:35] Nikki da Costa: yes, yes indeed.

[00:14:36] Mark D’Arcy: Is there a thought that in the long term Labour are going to have to beef up their presence in the House of Lords quite a lot to make the operation work smoothly at least?

[00:14:45] Nikki da Costa: It's a very good question. I don't think that there's naturally the case for it now. Let's take this on two fronts. One is, what's the political case? They have to, first of all, see that the Lords are starting to be obstructive, to go beyond its constitutional role. There have been times in recent years where actually, you know, the Lords and the Commons have sort of flirted with, are we approaching that, and everyone has drawn back from it.

[00:15:09] My feel is, you'll still see the Lords keep on doing that. I think that you'll see people put into the Lords to boost ministerial numbers. I think you can, people might confect a case, but I don't think it's there at the moment. There's also some procedural obstacles to bringing lots of peers in. I think there's sort of a maximum of two you can introduce a week in terms of the current system.

[00:15:28] And so it takes some time. Also, you want to make sure you get good people in, um, is my hunch.

[00:15:33] Mark D’Arcy: Oh, I'm available.

[00:15:36] Ruth Fox: Nikki, can we talk about an issue that is an obsession of mine? And I know you've expressed concern about the wonderful world of statutory instruments, delegated legislation. I mean, you have said publicly that you think sometimes there's too much resort, too quickly, too easily, to use of delegated legislation, when perhaps it would be better to pursue primary legislation.

[00:15:58] From your perspective, having been in Downing Street and in these discussions, where does the push come from? Is it from Ministers? Is it from officials? I mean, we know what the advantages of using delegated legislation are. It's speed, it's, it's, you can do it quickly. There's not much debate attached to it in Parliament, if any. But where is the push coming from in Government?

[00:16:19] Nikki da Costa: I'll just take a step back. I do think secondary legislation, and I think Hansard Society would also be of the view, is a useful thing. You don't want to keep on coming back to Parliament to pass primary legislation. And traditionally you've done that where it doesn't make sense to put it on the face of the bill.

[00:16:33] Maybe there needs to be ongoing policy work where you might need to keep adapting for time. So there's lots of reasons where you would use powers. I think, there has been a tendency, I, more than not, I saw it coming from departments, not necessarily ministerial. In two situations, one where there is a timetable that needs to be met, the policy's not been fully worked through, and there's a desire to take a power to just have a little bit more time, they can work through it afterwards.

[00:17:02] And my question would always be, is this a legitimate use? Because, again, it's the tragedy of the Commons, which is a great phrase for this particular podcast, but every department will maybe want to make their lives a little bit easier. But if every department is allowed to do so, then when you do need to use a big power or you do need to do something, your room for manoeuvre is constrained because the reaction's going to be that much greater and saying, actually, you're starting to take the *pee* here.

[00:17:29] But the balance would be about, is it because there's been a ministerial hold up on policy making? But also departments don't often get a bill. So you might be a small Department who knows that maybe in five years you'll be given two legislative slots. And that's your one shot at getting your changes.

[00:17:45] And you think, ah, could we just expand the scope of this a little bit and I could snaffle some powers so our Department could do something more in the future? It's your one go at it. You know, will Number 10, the business manager's mind if we did a little bit more here?

[00:17:59] You know, these are natural desires when you have a very limited resource and I think that's also a big trend.

[00:18:06] Mark D’Arcy: What would happen, do you think, in government if Parliament did get into the habit of shooting down delegated legislation. It almost never happens. I can't really recall an instance where it has happened. But just suppose some Order under a Bill was defeated in the House of Commons or the House of Lords.

[00:18:23] I mean, we're talking, what is it? I think there's been a handful of SIs rejected since the Second World War. You will know the stats?.

[00:18:30] Ruth Fox: The last one, the last one rejected in the Commons was 1979.

[00:18:33] Nikki da Costa: That's it. And we're talking thousands and thousands and thousands of SIs. That's it. You would have to show a significant uptick.

[00:18:38] I mean, I don't know where the level of uptick would have to be before Government said, actually, we've got a problem here. I think largely it's a scrutiny problem. I think it comes down to essentially being alert and trying to be better at scrutinising things.

[00:18:53] Ruth Fox: Behind the scenes, one of the questions is, is whether the Parliamentary Business and Legislation Committee is as functional as it could be. One of the things that I often hear from former Conservative Chief Whips, who are now in the House of Lords, is this wouldn't have happened in my day. Now there may be a bit of golden age-ism in that, but there is a feeling that, you know, But, um, the way that committee operates, who's in the room, and the extent to which they push back on Bills that are perhaps not quite ready, or the powers that are being sought that are too broad and actually there ought to be some pushback and told to go away and think again, what's your thoughts on that?

[00:19:28] Nikki da Costa: Being the, uh, slightly detail oriented person, I'm trying to think about who the Conservative Chief Whips are that have served in government that are in the Lords, which might reveal more of, of who you're, who you're thinking about because most of our Chief Whips were Opposition chiefs.

[00:19:41] I don't think that's the case.

[00:19:42] So if you think about Cabinet committees, and I've had the privilege of sitting at the back of Cabinet and in some other Cabinet meetings, my experience is this is actually one of the most effective Cabinet committees you can have. Most officials are banned from the room, and that's been something that was long defended by the Principal Private Secretary to the Chief Whip, saying that this isn't, this is not appropriate to have officials because the Minister is going to be put through their paces.

[00:20:06] They're going to be really pushed by the Chief Whip, the Lords Leader, by the Secretary of State for Wales. It's sort of a bit of a free for all because you're testing, you know, how prepared are you? Have you really thought this through? And I saw Bills stopped, not allowed to meet their introduction date, even though it was a week away.

[00:20:23] And the Secretary of State going, you, this is outrageous. I'm going to speak to the Prime Minister. Well, you can speak to the Prime Minister, but you're not ready and you will cause issues in the system. So I saw Bills put back. I saw them move. And then when you maybe saw little gaps in the, in what was happening in Parliament, that's because the Bill has been held.

[00:20:37] So actually that would happen quite frequently. There is a limit to what PBL can do. Um, They started to institute what we call the four BMs meeting, which is the four business managers meeting. They'd bring in Ministers earlier than those sort of main gate meetings with PBL. And that was also then just to say, you know, how are you approaching it?

[00:20:54] What are you doing with secondary legislation to try and address this?

[00:20:56] So actually, I think the system has started to evolve more to address the issues that you've got there. But there's always, you know, a tension.

[00:21:03] Ruth Fox: And one of the things we spoke about earlier was the, way the Opposition might handle things in this Parliament.

[00:21:09] And compared to the 1997 Parliament, there are a range of different opportunities. I mean, the Urgent Question didn't exist in the same way. You didn't have Backbench Business debates. You didn't have e-petitions and petition debates and so on. So there were a range of opportunities as well, of course, as elected Select Committee chairs. So if you were advising the official Opposition on how can you sort of strategically take on the Government now with this massive majority in front of you, you can't do everything, you've got a limited number of Members, resources are going to be stretched, how would you advise them to think procedurally, strategically to scrutinise the Government?

[00:21:48] Nikki da Costa: You've got to think about those force multipliers, things that are going to have maximum effect with the smallest amount of time necessary. First of all, I would create a shadow role to the director of Legislative Affairs in Government. Somebody that is in the Leader of the Opposition's office. And I hasten to add, I am not bidding for the role. I, I, I, this is not for me. But there, there, there are very good people out there, but this is not, for me,

[00:22:09] I'd create that role because you need somebody that can bring in the experience of knowing what might the Government do. You need your gamekeeper turned poacher and that's going to give you a huge advantage.

[00:22:21] Get them to create a blueprint for your shadow Secretaries. Tell them, okay, look, a good parliamentary operation in your team is going to look like this and you've got to go and create that. This is the rhythm. This is how far advance you. If you can give them that, then people can start to run. You're going to equip them with the skills to do that.

[00:22:39] And then maybe you focus your attention on saying, you know, we know what our vote base wants us to focus on, so let's choose three roles. Let's just get the parliamentary operation running really, really well there. Get the hits coming through, because you're getting social media, the media commentary, of going, that was an effective operation.

[00:22:56] You'll never have a chance of winning a vote, but you made the Labour Government squirm because they were put on the hook for something and so you try that and then you can evolve it But you start to give glimmers of hope as to how you run the operation across the board. And then you'll start to get those recalcitrant MPs who are thinking maybe I'll be a free rider... sorry, this is all... this .. I don't do not wish to disparage MPs but there will be a lot that actually go I have done a lot of time in Parliament and I don't really want to be participating in the hard graft of this parliamentary operation.

[00:23:27] But you'll get the eager ones too, and they'll make their names in this Parliament. And you want them to start to set an example. And then others are going to go, actually, I want a bit of that action, because I'm here for five years, I may as well be useful.

[00:23:36] Mark D’Arcy: I'm old enough to remember when the great Eric Forth and sort of wild eyed young backbenchers like a certain John Bercow would stage sort of midnight ambushes and suddenly out of the blue, vote down or attempt to vote down some Statutory Instrument or whatever it was. That kind of troublemaking worth doing?

[00:23:53] Nikki da Costa: Yes, um, I think so. Keeping Government on its toes is really, really important across a whole bunch of things because it means that actually you keep Usual Channels, that negotiation, behind the scenes negotiation, respectful.

[00:24:07] The minute Government starts to think, I don't really need to care about the Opposition, we've got such big numbers. But keep them on their toes, make them respect it. The Government will know that the Opposition can make life harder work for their MPs than it otherwise needs to be. It can just be a little bit more fractious than it needs to be, and things could be a bit more consensual.

[00:24:26] So I think, yes, keep them on their toes, make sure they show respect.

[00:24:29] Mark D’Arcy: Nikki da Costa, thanks very much indeed for joining us on the pod today.

[00:24:32] Nikki da Costa: Thank you very much for having me.

[00:24:36] Ruth Fox: Well, that's all from us. We'll be back if Parliament's recalled over the summer, but otherwise we'll see you in September, where we look ahead to a busy Autumn of lawmaking.

[00:24:46] Mark D’Arcy: Brace yourself for that. Goodbye for now. Bye for now.

[00:24:56] Well, that's all from us for this week's episode of Parliament Matters. Please hit the follow or subscribe button in your podcast app to get the next episode as soon as it lands. And help us to make the podcast better by leaving a rating or review on Apple or Spotify and sharing your feedback. Our producer tells us it's important for the algorithm to give the show a boost.

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