The Legislative Process
Legislative process inquiry
17.Our major inquiry work focused on the legislative process, which followed up our 2004 report on Parliament and the Legislative Process.7 The inquiry was broken down into four parts:
- preparing legislation for Parliament;
- the passage of legislation through Parliament;
- the delegation of powers; and
- the period after Royal Assent.
18.During the session we sought evidence on the parts of the inquiry dealing with preparing legislation for Parliament and delegated legislation. We heard oral evidence from the then Leader of the House of Commons, David Lidington MP, the Shadow Leader of the House of Lords, Baroness Smith of Basildon and the Leader of the Liberal Democrats in the House of Lords, Lord Newby. We also heard from the Chairman of the Delegated Powers and Regulatory Reform Committee, Baroness Fookes, from former Ministers, current and former Parliamentary Counsel, academics and expert groups.
19.For part 1 of the inquiry, preparing legislation for Parliament, we heard evidence on what it means to create ‘good law’; how the impact of the UK’s decision to leave the EU might affect the legislative process; how changes in technology might impact the legislative process, and the extent to which there might be public and stakeholder engagement in the legislative process, and the likely effectiveness of such engagement.
20.For part 3 of the inquiry, the delegation of powers, we heard evidence on the effectiveness of current parliamentary scrutiny of delegated legislation, the effects and appropriateness of Henry VIII powers, and the potential impact of Brexit-related legislation.
21.We expect to publish reports on these aspects of the legislative process later in this session.
Strathclyde Review: Government response
22.On the subject of delegated powers, we received the Government’s response to our report on the Strathclyde Review in December 2016.8 We concluded in our report 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.9 We were therefore pleased that the Government decided not to bring forward legislation to implement the proposals in the Strathclyde Review.
23.We were however concerned that the Government’s response stated that they would “introduce the legislation if it becomes necessary to intervene to maintain the primacy of the House of Commons.”10 This could be interpreted as a threat hanging over the House of Lords, such that if it decided to challenge secondary legislation in the future then the Government would seek to limit its powers. We maintain that such action would be inappropriate without a full assessment of the processes by which delegated legislation is scrutinised, especially in light of the greater numbers of statutory instruments that are expected in order to facilitate Brexit.
7 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173)
8 HM Government, Government Response to the Strathclyde Review: Secondary legislation and the primacy of the House of Commons and the related Select Committee Reports, Cm 9363, December 2016:
http://www.parliament.uk/documents/lords-committees/constitution/GovernmentResponse/Government-response-Strathclyde-Review-011216.pdf [accessed 27 June 2017]
9 Constitution Committee, Delegated Legislation and Parliament: A response to the Strathclyde Review (9th Report of Session 2015–16, HL Paper 116)
10 HM Government, Government Response to the Strathclyde Review: Secondary legislation and the primacy of the House of Commons and the related Select Committee Reports