Democracy Denied? The urgent need to rebalance power between Parliament and the Executive Contents

Summary

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.

So concerned are we about the erosion of parliamentary power that we have once again joined forces with the Secondary Legislation Scrutiny Committee (SLSC) to express — what, in 1992, the Jellicoe Committee called — the “considerable disquiet” about the denial of democracy implicit in what are often seen as obscure practices and procedures by which laws are made. We have collaborated with the SLSC and are producing parallel reports reflecting our overlapping interests.

We acknowledge that the delegation of legislative powers is necessary — and even, on occasion, that Henry VIII powers can be justified. But far too often primary legislation has been stripped out by skeleton provisions and the inappropriate use of wide delegated powers. This means that it is increasingly difficult for Parliament to understand what legislation will mean in practice and to challenge its potential consequences on people affected by it in their daily lives.

We make recommendations covering a wide range of issues, some familiar, others less so. These include:

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. We have never denied an appropriate role for such legislation but one clearly and specifically defined. We have, however, refuted the argument that parliamentary legislative procedures cannot respond swiftly to address urgent unforeseen situations. And there can be no better proof of the case than in the way Parliament responded to Brexit and the pandemic. As our historic account of delegated legislation shows, there have been times when the government of the day have been impatient of parliamentary legislative constraints. We detect such impatience today. But Parliament rightly demands patience in fulfilling its most important role — the making of our laws.

The abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy, and this report will, we hope, be a prompt to strengthen Parliament in the coming years.





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