Following a defeat in the House of Lords on the Draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015, the Government asked Lord Strathclyde to examine how the Government might “secure their business in Parliament” and to consider how to ensure “the decisive role of the elected House of Commons in relation to its primacy on financial matters, and secondary legislation”.
There are indeed serious problems with the current system of delegated legislation that must be addressed. But by tasking Lord Strathclyde to consider the balance of power between the two Houses of Parliament, it seems to us that the Government focused his Review on the wrong questions. It consequently addressed the wrong issues. We believe that the more serious concerns arising from the delegated legislation process are rooted in the relationship between Parliament and the Executive. For that reason our report examines not only the options considered by the Strathclyde Review, but wider issues relating to the delegated legislation process that were outside the remit of that Review.
Successive governments have proposed primary legislation containing broad and poorly-defined delegated powers, including Henry VIII powers, that give wide discretion to ministers—often with few indications as to how those powers should be used. This Committee and others have noted a trend whereby delegated legislation has increasingly been used to address issues of policy and principle, rather than to manage administrative and technical changes.
The reasons for this are clear. Delegated legislation cannot be amended, so there is little scope for compromise. Far less time is spent by Parliament debating delegated legislation than primary legislation, and there is little incentive for members of either House, but particularly the House of Commons, to spend their precious time debating legislation that they cannot change. Finally, established practice is that the House of Lords does not vote down delegated legislation except in exceptional circumstances. The result is that the Government can pass legislative proposals with greater ease and with less scrutiny where they are able to do so through secondary, rather than primary, legislation.
These developments have strengthened the Executive at the expense of Parliament’s legislative authority.
We do not, in this report, put forward concrete proposals to improve the recommendation of the Strathclyde Review; we believe that proceeding with changes to Parliament’s role as an overseer of the Executive on the misdirected remit of that Review—whatever the political impetus behind those changes—will only damage Parliament’s role and reputation in the long run.
We consider that the Government should not seek to move forward with proposals based on the Strathclyde Review without proper consideration of the delegated legislation process in its entirety. A six week review based on informal consultation following highly politicised events in both Houses is not a proper basis for determining constitutional change.
We note that there have been calls for a Joint Committee to review the operation of the current system of secondary legislation. We do not seek to prescribe how Parliament and the Government should take forward a more comprehensive review of delegated legislation. Both Houses of Parliament, however, either together or separately, need to play an active role in considering how powers should be delegated appropriately in primary legislation, how those powers should be exercised by Government and the way in which both Houses scrutinise and approve delegated legislation.
The balance of power between Parliament and the Executive lies at the heart of our constitution. There is a strong case for reviewing the operation of delegated legislation, but change must be careful, considered and, importantly, not undertaken in haste or for the wrong reasons.