Government by diktat?
Or democracy denied? Peers call for rebalance of powers
Two little-known committees of the House of Lords have joined forces today to publish reports of fundamental constitutional importance.
Each committee panel of peers has summed up its concerns by giving its report a title that is uncharacteristically blunt:
Government by Diktat: A call to return power to Parliament is the report of the secondary legislation scrutiny committee, which examines at statutory instruments made by ministers under delegated powers.
Democracy Denied? The urgent need to rebalance power between Parliament and the Executive is the report of the delegated powers and regulatory reform committee, which considers whether bills give ministers inappropriate powers.
The secondary legislation committee is chaired by Lord Hodgson of Astley Abbotts, a Conservative peer for more than 21 years and, from 1976 to 1979, a Conservative MP.
The delegated powers committee is chaired by Lord Blencathra, a Conservative peer and former minister who sat in the Commons for nearly 27 years as David Maclean.
The combined total of their members’ parliamentary experience is more than 520 years.
This is how the secondary legislation committee summarises its conclusions:
This report is intended to issue a stark warning — that the balance of power between parliament and government has for some time been shifting away from parliament, a trend accentuated by the twin challenges of Brexit and the Covid-19 pandemic.
A critical moment has now been reached when that balance must be re-set: not restored to how things were immediately before these exceptional recent events but re-set afresh.
Over recent years, bills — which become acts of parliament and which are subject to robust scrutiny in their passage through parliament — have often provided only the broadest outlines of the direction of policy travel, with all the detail that will have a direct impact on individual members of the public left to secondary legislation.
And the more that is left to secondary legislation, the greater the democratic deficit because, in contrast to primary legislation, there is relatively scant effective parliamentary scrutiny of secondary legislation; it cannot be amended; in some cases, it may become law without any parliamentary debate; and, because the decision to accept or reject is all or nothing, very rarely will [parliament] reject it.
And here is the delegated powers committee:
This report is about the relationship between parliament and the executive. Its purpose is to alert members of both houses, and the wider public, to a potentially serious threat to a cornerstone of our constitution — effective parliamentary scrutiny of legislation.
Based upon committee reports since its inception in 1992 and covering pre- and post-Brexit and the Covid-19 pandemic, we highlight a disturbing trend in the way in which bills are framed with the effect that they often limit or even avoid appropriate legislative scrutiny.
We have concluded that it is now a matter of urgency that parliament should take stock and consider how the balance of power can be re-set.
The fundamental principles underpinning this necessary change are twofold: that primary legislation, and powers conferred by it, should be drafted on the basis of the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of the executive to parliament; and, second, that the threshold between primary and delegated legislation should be founded on the principle that the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegation.
Skeleton bills and Henry VIII clauses
Some of this may appear a little technical. Hodgson’s secondary legislation committee wants to restrict the use of skeleton bills, which peers describe as “so devoid of content that they leave the real operation of the law to ministers”. Blencathra’s delegated powers committee wants to limit the use of Henry VIII clauses, which allow ministers to amend or even repeal acts of parliament, simply by making regulations.
These Henry VIII clauses are a particular concern of mine. I was pleased to see my blog quoted by the Labour MP Alex Cunningham during the committee stage of the Judicial Review and Courts bill last week. He said:
Clause 26 has caused particular concern to some. I note that Joshua Rozenberg has observed that this clause differs in this bill from its earlier forms in the Courts and Tribunals (Online Procedure) Bill and the Prisons and Courts Bill, in which there were more stringent limits on the ability of this power to be used to amend future acts of parliament. Mr Rozenberg described the refinement of the drafting as “Henry VIII mission creep”. He said:
Let’s imagine that parliament passes new legislation of some sort in 2030. There is a change of government in 2035 and the new lord chancellor thinks the 2030 legislation gets in the way of procedural rules that the incoming government wants to introduce. Using legislation passed in 2022, the lord chancellor will have power to sign an order in 2035 which, if all goes to plan, will repeal legislation made by parliament in 2030.
It’s no excuse to say that this is very unlikely to happen — and the clauses are simply included just in case. Having got a foot in the door, ministers are pushing it a bit further open every time they try. Soon, they'll be pushing at an open door.
If they really need to amend or repeal an act of parliament, ministers should take the trouble to bring forward legislation in the normal way.
Cunningham added: “I certainly agree.”
This was all the minister could offer in response to my point about mission creep:
Where the regulation amends primary legislation, it is subject to the affirmative procedure and must therefore be scrutinised, debated and approved by both houses.
Recommendations for the future
The two committees have joined forces in
asserting the fundamental importance of the appropriate balance between primary and secondary legislation as the foundation of the relationship between parliament and government; and
seeking to bring about culture change by recommending that ministers, when deciding whether a bill should include delegated legislative powers, should take into account to the fullest extent possible the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of government to parliament.
But it’s Blencathra’s delegated powers committee that really spells out the importance of all this:
The shift of power from parliament to the executive must stop. To support this, we need to challenge the culture of Whitehall itself — which appears to encourage a tendency to see the delegation of legislative powers as a matter of political expediency.
We therefore recommend significant amendments to the Cabinet Office Guide to Making Legislation — the bible which officials must follow — including an explicit assertion of the fundamental principles of parliamentary democracy as the basis for the way in which bills are framed.
We have also revised our own guidance to departments in the light of our conclusions in this report and we believe that it should be reproduced in full in the Cabinet Office guide, including a reinstatement of the presumption that most, if not all, of our recommendations should be accepted by ministers.
Legislative scrutiny really matters. We are conscious of the fact that this report is full of parliamentary nomenclature and technical procedural explanations which may read as an esoteric constitutional essay. However, the issues raised are anything but esoteric.
The way our laws are made can have a profound effect upon the lives of millions of citizens — granting rights, imposing obligations, involving enforcement measures possibly including criminal sanctions and imprisonment. As we said at the outset, parliamentary scrutiny is a cornerstone of parliamentary democracy.
I agree entirely. But the cynic in me believes the government will simply try to sweep this under the carpet. It suits ministers to shift the balance of power in favour of the executive. It does not suit the rest of us.
What’s novel about these committees is that they point the finger at senior civil servants working within Whitehall. There’s a lot they could do to rebalance the constitution — so long as they have not yet had their independence and integrity wrung out of them by decades of underinvestment and politicisation.
These officials are the last gatekeepers of parliamentary democracy. They know their duty. Let us hope they rise to the occasion.
Update February 2022: The government has rejected most of the committees’ recommendations.
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