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

Chapter 1: An urgent need for change

Introduction

1.This report is about the relationship between Parliament and the executive, and the urgent need for that relationship to be rebalanced and the power of Parliament reasserted.

2.In April 2021, the Hansard Society said:1

“Since March 2020, the public has lived under some of the UK’s most restrictive peacetime laws, and to support the economy public money has been spent on a vast scale. Yet parliamentary accountability for, and control over, these decisions has diminished to a degree that would have been unthinkable prior to the COVID-19 pandemic. One year on, with lockdown easing, the restoration of parliamentary control and functioning is now an urgent priority.”

While we agree about the urgency, we believe that the twin challenges of Brexit and the pandemic did not mark the beginning of the shift but an acceleration and intensification of an existing trend.

3.In a debate in the House of Lords on 16 September 2021, the
Rt Hon.Baroness Taylor of Bolton, Chair of the Constitution Committee, described how she had become increasingly alarmed at the “extremely unhealthy trends”—trends which she believed were accelerating — “in what government ministers think they can get away with without properly consulting Parliament” in an attitude which she described as “cavalier”.2 We share this view, and also agree with Baroness Taylor’s later comment that: “The more significant problem is not the issues in each individual bill but the underlying trend we are seeing of moving away from Parliament making our laws and ministers increasingly taking powers to change the rules, regulations and guidance”.3

4.Concerns have not only been expressed within Parliament. In remarks to the Statute Law Society, Sir Jonathan Jones KCB QC (Hon.), former Government Legal Department Permanent Secretary and Treasury Solicitor, said that the use of delegated legislation over the last few years “gives a number of causes for concern”, and he concluded that there was “a strong case for a kind of re-set”.4 On 2 November, the Hansard Society launched a review of delegated legislation because recent events had led the Society to conclude that “fundamental and far-reaching reform is needed”.5

5.A substantial groundswell of concern is developing about the shift in power from Parliament to ministers.6 We take the view that a critical moment has been reached where action is needed to bring about significant change in the way in which legislation is framed so that it is, first and foremost, founded on the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament.

Purpose of the report

6.The purpose of this report is to consider what can be done to stop the “unhealthy trends” identified by Baroness Taylor, and to make recommendations intended to assist in re-setting the balance of power between Parliament and the executive. Our aim is an ambitious one. It is not to return to how things were immediately pre-Brexit and pre-pandemic but to establish a new relationship based on principle and informed, amongst other things, by the conclusions set out in this report.

7.The Delegated Powers and Regulatory Reform Committee (DPRRC) has, we believe, a crucial role to play in achieving this important aim. Its function goes to the heart of the relationship between Parliament and executive: namely, “to police the boundary between primary and delegated legislation” and “in doing so playing a critical role in protecting the integrity of Parliament in the face of any attempts by governments of whatever political persuasion to erode it”.7 Its remit is to report on whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny.

8.The DPRRC was established — as the Scrutiny of Delegated Powers Committee — in 1992. For some years after that, it was the practice of the Committee to publish an end of session report in which it would reflect on its work during the previous session. We have decided to reinstate the practice, beginning with this report in which we consider not only the impact of Brexit and the pandemic but also take a longer view, back to the Committee’s inception and beyond. We draw attention to both familiar and emerging legislative practices about which we, and others, have over the years been highly critical, and make recommendations intended to bring about the change which, in our view, is now urgently needed.

Collaboration with the SLSC

9.Whereas the DPRRC scrutinises provisions in primary legislation which confer powers on ministers to make delegated legislation, the Secondary Legislation Scrutiny Committee (SLSC) is responsible for the scrutiny of the delegated legislation itself.8 The DPRRC and the SLSC therefore perform complementary functions and it is unsurprising that the two Committees share a common concern about the delegation of legislative powers.

10.A testament to the level of concern about the extent to which power is being delegated to ministers is that the two Committees have taken the unusual step on this occasion of collaborating, not only in holding joint evidence sessions (see paragraph 11 below), but also in the preparation and publication of parallel reports.9 This has enabled the Committees, in areas of overlapping interest, to make common cause in addressing the imbalance in the relationship between Parliament and the executive.

Acknowledgements

11.In April 2021, the SLSC held an evidence session with three Permanent Secretaries: Dame Elizabeth Gardiner, First Parliamentary Counsel and Permanent Secretary, Government in Parliament Group; Susanna McGibbon, Treasury Solicitor and Permanent Secretary, Government Legal Department; and Tamara Finkelstein, Permanent Secretary of the Department for Environment, Food and Rural Affairs and Head of the Civil Service Policy Profession.10 The SLSC invited members of the DPRRC to attend the session. On 12 May, we held an evidence session with the
Rt Hon. Jacob Rees-Mogg MP, Lord President of the Council and Leader of the House of Commons, and members of the SLSC were also invited.11 On 26 May, we held a further evidence session with Dame Elizabeth. We are grateful to those who gave evidence. We would also like to thank members of the SLSC for contributing to the evidence session with the Lord President, for inviting members of the DPRRC to join them in their evidence session with the three Permanent Secretaries, and for their collaboration more generally.

12.We are also grateful to the House of Lords Library which provided a comparative analysis of the Committee’s reports looking at the period immediately after its establishment and more recent sessions. It was a very substantial and thorough piece of work.

Explanation of terms

13.We believe that the issues raised in this report will be of interest to those outside the immediate parliamentary community, including members of the wider public who are affected daily by the regulations made by ministers using powers conferred by Parliament. For this reason, on occasion, we have provided explanations of terms which, although well-known to members of the House, may be less familiar to members of the public.

Structure of the report

14.The following chapters are arranged as follows:


1 Hansard Society, House of Commons marginalisation under Covid (21 April 2021): https://www.hansardsociety.org.uk/publications/briefings/the-marginalisation-of-the-house-of-commons-under-covid-has-been-shocking-a [accessed 18 November 2021]

2 HL Debs, 16 September 2021, col 1604.

3 Ibid.

4 Sir Jonathan Jones KCB QC (Hon), Speech on The Rule of Law and Subordinate Legislation for the Statute Law Society (edited) (29 September 2021): https://www.ucl.ac.uk/laws/sites/laws/files/statute_law_society_re_secondary_legislation_edited_-_j.jones_27102021.pdf [accessed 5 November 2021].

5 Hansard Society, Delegated Legislation Review: https://www.hansardsociety.org.uk/projects/delegated-legislation-review [accessed 16 November 2021].

6 Acts of Parliament confer delegated powers on ministers and other bodies or individuals. Throughout this report we refer only to ministers to avoid complicating the text.

7 DPRRC, Special Report: Submission to the House of Commons procedure Committee inquiry on the delegated powers in the “Great Repeal Bill”, 23rd Report, Session 2016–17 (HL Paper 143), para 10.

8 The SLSC considers policy aspects of delegated legislation. The Joint Committee on Statutory Instruments considers legal and technical aspects.

9 We refer to the SLSC’s report as “the SLSC’s parallel report”.

10 SLSC, Corrected oral evidence: Departmental support of secondary legislation (21 April 2021): https://committees.parliament.uk/oralevidence/2063/default/

11 DPRRC, Corrected oral evidence: Delegation of legislative power (12 May 2021): https://committees.parliament.uk/oralevidence/2175/pdf/




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