Chapter 3: The remit of the Strathclyde Review
34.Before we turn to consider the propositions put forward by the Strathclyde Review, we make first some overarching observations about the delegated legislation process and about the remit set by the Government for the Review. These concern:
- The relationship between Parliament and the Executive
- The proper scope of delegated legislation
- The House of Commons
- The role of the House of Lords in relation to statutory instruments
The relationship between Parliament and the Executive
35.Lord Strathclyde was asked “how to secure the decisive role of the elected House of Commons in the passage of legislation”. This remit, set by the Government, cast the Strathclyde Review’s consideration of secondary legislation procedure as concerning the balance of power between the two Houses of Parliament. The title of the Review, Secondary legislation and the primacy of the House of Commons, echoes that emphasis on inter-House relations. But a focus on inter-House relations ignores the other, vital, balance of power that would be altered should changes be made to statutory instrument procedure in the House of Lords: the balance of power between Parliament and the Executive. By tasking Lord Strathclyde with considering the balance of power between the two Houses of Parliament, the Government focused his Review on the wrong questions. We believe that consequently it addressed the wrong issues.
36.Delegated legislation is the product of a delegation of power from Parliament to the Government. Parliamentary scrutiny of secondary legislation is the mechanism by which Parliament assures itself that the Government is exercising that delegated authority in an appropriate way, and in a manner which accords with Parliament’s intentions. Yet Parliamentary scrutiny of delegated legislation is less intensive and arguably less effective than its scrutiny of primary legislation. Statutory instruments cannot be amended, so there is little scope or incentive for compromise. Far less time is spent debating delegated legislation than is spent debating primary legislation. And, as we previously noted, it is established practice 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 if it can do so as delegated, rather than primary, legislation. It is in this context that proposals to weaken the powers of the House of Lords should be considered.
The proper scope of delegated legislation
37.The Strathclyde Review focuses on the actions of the House of Lords in relation to delegated legislation, but was prevented from considering in any detail the other side of the equation—the framing and use of delegated powers by Government. This Committee has brought the widening scope of the delegated powers proposed in primary legislation to the attention of the House on a number of recent occasions. In several reports in this Session alone we have expressed concerns about vaguely-worded legislation that left much to the discretion of ministers.48 Likewise we have expressed serious reservations about wide discretionary powers, including Henry VIII powers,49 being conferred on ministers with few indications as to how those powers should be used to achieve the objectives set out in the parent Bill.50
38.The Chair of the Lords Delegated Powers and Regulatory Reform Committee, together with the Chairman of this Committee, wrote to Mr Chris Grayling MP, Leader of the House of Commons, in July 2015 expressing concern about this issue. That letter concluded:
“delegations of legislative power must be appropriate, the degree of flexibility afforded to ministers proportionate to the objectives set out in primary legislation, and … ‘skeleton’ bills should be introduced only when absolutely necessary and with a full justification for the decision to adopt that structure of powers.”51
39.The trend observed by our Committee has also been noted by the Hansard Society:
“the use of delegated legislation by successive governments has increasingly drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational details … It is used extensively, for example, in areas such as the criminal law”.52
40.Parliament rejects statutory instruments extremely rarely. Only 17 statutory instruments have been rejected by the two Houses over the last 65 years out of nearly 170,000, including five instruments out of some 23,000 laid before Parliament since 1997. Since statutory instruments are, except in extremely unusual cases, unamendable by Parliament, that legislation is passed into law precisely as drafted by Government. There are obvious incentives for successive Governments to propose broad delegated powers that make it possible for ministers to pass significant policy decisions through Parliament without undergoing the full scrutiny afforded to primary legislation.
41.One of the consequences of broadly drafted delegated powers is their use by Government in ways that were not envisaged at the time the powers were granted by Parliament. The Tax Credit Regulations that sparked the Strathclyde Review contained £4.4 billion worth of spending cuts. Many argued that it was a vehicle for a policy change that was not envisaged at the time the delegated power was granted. We note that it was put to Lord Strathclyde, when he gave evidence before PACAC, that:
“this delegated legislation [on tax credits] was intended to vary rather than to abolish the benefit altogether, and that is what amounted to exceeding the powers intended by the primary legislation?”.
Lord Strathclyde replied that:
“I am sure that was the original intention of Ministers who brought it forward, but the drafting of the founding Act was such that what the Government proposed in the tax credits regulation was entirely intra vires with the founding Act … under law they were totally within their correct powers.”53
42.Lord Strathclyde’s answer illustrates how the Government may use delegated powers in ways not necessarily anticipated by Parliament. Professor Russell, in evidence to PACAC stated:
“If the peace is to be kept between the Government and the House of Lords on statutory instruments, then it requires the House of Lords to act with restraint, but it also requires the Government to act with restraint.”54
43.The Strathclyde Review acknowledges the importance of considering the role of Government: “it would be appropriate for the Government to take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument.” We welcome this recognition of the many concerns that have been expressed by parliamentarians and other observers at the extent and use of delegated powers in recent years.55
44.Given the increasing concerns we and others have in respect of broad or poorly-defined powers, and the key role played by the House of Lords in the scrutiny of delegated legislation, any diminution of the House’s power to hold the Government to account over its use of delegated powers is of great concern. Weakening the House’s power to hold the Government to account for delegated legislation—making it easier for “elected Governments to secure their business in Parliament”—would increase the incentives for Governments to widen the use of delegated legislation.
The House of Commons
45.The Strathclyde Report envisages the House of Commons as having a “decisive role” in the process of approving delegated legislation. Yet we are concerned that no attempt has been made to determine what the effect would be on the overall quality of parliamentary scrutiny of delegated legislation if the Government, with its majority in the House of Commons, were able simply to disregard with little inconvenience the Lords’ views on delegated legislation.
46.Our concern about relying solely or primarily on the House of Commons to scrutinise delegated legislation is twofold. First is the degree to which the Commons is able to devote time and resources to scrutinising secondary legislation. The Hansard Society, which conducted a thorough review of delegated legislation in its 2014 report The Devil is in the Detail: Parliament and Delegated Legislation, concluded that “a heavy burden of scrutiny responsibility falls on the House of Lords in large part because House of Commons procedures and the engagement of MPs is wholly inadequate.”56
47.The second problem is structural: except in extremely rare circumstances, statutory instruments cannot be amended. Hence the only option open to MPs if they have concerns about an instrument is to reject it. The Government can be forced by either House to compromise in relation to primary legislation; Government amendments are often tabled as a result of backbench or opposition pressure, and the Government may need to reach a compromise with the House of Lords as each House considers amendments made by the other (‘Ping Pong’). But as secondary legislation cannot be amended, there is no scope for compromise—and thus little opportunity for parliamentarians to affect the substance of secondary legislation. There are few incentives for MPs to devote precious time to scrutinise legislation which cannot be amended. In a House of Commons dominated by a Government majority, outright Government defeats are rare. This is particularly true in relation to delegated legislation: as we have noted, the last time the House of Commons rejected a statutory instrument was in 1979.57 If it is assured of getting delegated legislation through the House of Commons, the threat of defeat in the House of Lords in exceptional circumstances is a major bulwark protecting effective scrutiny of the Government’s delegated legislation.
48.We recognise that, although there is little scope for compromise after an instrument has been laid, the threat of defeat in either House can cause the Government to change its position. While the House of Commons has not rejected a statutory instrument for over 35 years, it can have an impact by forcing a withdrawal; the Hunting Act 2004 (Exempt Hunting) (Amendment) Order 2015 was withdrawn in July 2015, reportedly over fears that it would be defeated on division.58
49.The consequence of altering the process by which secondary legislation is considered by the House of Lords was set out clearly by the Hansard Society: “any reform that curtails the role of the House of Lords in relation to delegated legislation risks turning an already flawed process into a farce.”59 Given the challenges MPs face in scrutinising delegated legislation, the effect of diluting or weakening scrutiny in the Lords is to “empower the executive, not the House of Commons.”60
50.The thinking behind the Strathclyde Review is premised upon the notion that the balance of power between the two Houses must be adjusted in order that democratic concerns about the frustration of the will of the Commons might adequately be addressed. We note that Lord Lisvane, a former Clerk of the House of Commons, stated in evidence to the Secondary Legislation Scrutiny Committee that “It would be much better if the events of the last few weeks were to result in Parliament as a whole getting a better grip on the totality of how to deal with delegated legislation … this is not about Lords and Commons; I see this as about Parliament and the Executive”.61 We agree.
51.We recognise the primacy of the House of Commons. But it is essential that any proposals to change the means by which delegated legislation is agreed by Parliament must be evaluated not only in terms of their effect on the balance of power between the two Houses, but between the Executive and Parliament as a whole.
52.The Government stated that the Review’s remit was “to examine how to protect the ability of elected governments to secure their business in Parliament”,62 and Lord Strathclyde stated in his foreword that he tried to balance parliamentary scrutiny against “the certainty that government business can be conducted in a reasonable manner and time”.63 We consider that the starting point for reviewing how Parliament scrutinises the Executive should not be how the Executive can secure its business. The focus should be on how to ensure that the actions of the Executive are scrutinised effectively and that parliamentary approval of delegated legislation—by members of both Houses of Parliament—is not a mere box-ticking exercise.
The “role of the House of Lords with respect to delegated legislation”
53.At the conclusion of its ‘Background’ chapter, the Strathclyde Review states that “the time has come to put in place new procedures to clarify the relationship between the two Houses on delegated legislation, and to confirm that the role of the House of Lords in respect of delegated legislation is to ask the House of Commons to think again, similar to how it is in the case of primary legislation.”64
54.This statement seems to us to rest on two assumptions. The first is the ‘confirmation’ that the role of the House of Lords in relation to delegated legislation is currently to ask the House of Commons to think again. That may or may not be considered to be an appropriate role for the House in principle, but given that the Lords has historically exercised a veto over delegated legislation it would seem proper to consider whether that should indeed be the entirety of its role before arriving at that conclusion. Indeed, at a purely practical level, the House of Lords may consider statutory instruments before they are debated by the Commons. It is therefore hard to understand how its role at present could be characterised simply as a mechanism by which the Commons might ‘think again’.
55.The second assumption is that the role of the House of Lords in relation to primary legislation is also to ask the Commons to “think again”. This seems to be us to be significantly underplaying not only the powers of the House of Lords in relation to primary legislation, but also the role the Lords plays in practice. In most circumstances, the two Houses need to agree on the text of Bills for them to receive Royal Assent. While the Lords may usually give way when the Commons insist on their amendments at ‘Ping Pong’, the two Houses will often compromise to reach agreement. The Lords’ role in relation to primary legislation goes beyond simply asking the Commons to ‘think again’: the Lords is able to reject the Commons’ position and to offer amendments in lieu, multiple times if necessary. It uses this power, on occasion, to achieve a compromise. History has shown that, in all but a handful of cases,65 the two Houses have chosen to compromise rather than invoke the Parliament Acts (by which the House of Commons can override the House of Lords), which involve a lengthy process and are not used lightly.
56.We do not attempt in this report to reach a conclusion as to the proper role of the House of Lords in the delegated legislation process. It is a complicated matter which requires greater thought than a simple statement that purports to “clarify” and “confirm” the existing role of the Lords. The role of the House of Lords needs to be considered alongside the roles of the House of Commons and the Government. Full consideration needs to be given to the constitutional relationship between Parliament as a whole and the Executive.
48 Constitution Committee reports on the Childcare Bill [HL] (3rd Report, Session 2015–16, HL Paper 16); Cities and Local Government Devolution Bill [HL], the Psychoactive Substances Bill [HL] and the Charities (Protection and Social Investment) Bill [HL] (2nd Report, Session 2015–16, HL Paper 9). See also bill correspondence on the Education and Adoption Bill.
49 Henry VIII powers are delegated powers which enable primary legislation to be amended or repealed by means of delegated legislation.
50 Constitution Committee, Cities and Local Government Devolution, Psychoactive Substances and Charities (Protection and Social Investment) Bills (2nd Report, Session 2014–15; HL Paper 9), para 2
51 Letter from Baroness Fookes and Lord Lang of Monkton to Chris Grayling MP, 22 July 2015, on Government legislation: http://www.parliament.uk/documents/lords-committees/constitution/Correswithministers/ChairmanDPRCtoGraylingLegislation220715.pdf
52 Hansard Society, Ruth Fox and Joel Blackwell, The Devil is in the Detail
53 Oral evidence taken before the House of Commons Public Administration and Constitutional Affairs Committee, 19 January 2016 (Session 2015–16), Q 78
54 Oral evidence taken before the House of Commons Public Administration and Constitutional Affairs Committee, 19 January 2016 (Session 2015–16), Q 21
55 Hansard Society Ruth Fox and Joel Blackwell, The Devil in the Detail; ‘Conservative Government accused of ‘waging war’ on Parliament by forcing through key law changes without debate’, The Independent (18 January 2016): http://www.independent.co.uk/news/uk/politics/government-accused-of-waging-war-on-parliament-by-forcing-through-key-legal-changes-without-debate-a6820176.html [accessed 15 March 2016]
56 Hansard society, Delegated Legislation: Frequently Asked Questions: http://blog..org.uk/delegated-legislation-frequently-asked-questions, [accessed 15 March 2016]
57 24 October 1979, the Paraffin (Maximum Retail Prices) (Revocation) Order 1979
58 ‘Government shelves foxhunting vote after SNP opposition’, The Guardian (14 July 2015): http://www.theguardian.com/uk-news/2015/jul/14/foxhunting-vote-shelved-by-tories-in-face-of-snp-opposition [accessed 25 Feb 2016]
59 The Constitution Unit, Reflections on the Strathclyde Review, https://constitution-unit.com/2016/01/13/reflections-on-the-strathclyde-review/ [accessed 15 March 2016]
60 The Constitution Unit, Reflections on the Strathclyde Review, https://constitution-unit.com/2016/01/13/reflections-on-the-strathclyde-review/ [accessed 15 March 2016]
61 Oral evidence taken before the Secondary Legislation Scrutiny Committee, 9 Feb 2016 (Session 2015–16), Q 17
62 Strathclyde Review, p 25
63 Strathclyde Review, p 3
64 Strathclyde Review, p 15
65 The Parliament Acts 1911 and 1949 have been used seven times since 1911.