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

Chapter 3: “Considerable disquiet” – the problem of wide and ill-defined delegated powers

Introduction

36.In the recent past, we have reported on many bills — often Brexit-related bills — in strongly critical terms. For example, in session 2017–19, we said that clause 2 of the Healthcare (International Arrangements) Bill had “a breath-taking scope. Indeed, the scope of the regulations could hardly be wider”31 and the bill contained “unprecedented powers”.32 We said of the European Union (Withdrawal) Bill that, amongst other things, it conferred “wider Henry VIII powers than we have ever seen”;33 and in our report on the first Agriculture Bill (introduced into the House of Commons in September 2018) we said that we were “dismayed at the Government’s approach to delegated powers” and that Parliament would not be able to debate the new agriculture regime because the Bill did “not contain even an outline of the substantive law that will replace the [Common Agricultural Policy]”.34

37.Concern about the extent to which power is delegated to the executive is not, however, a new phenomenon. In this chapter we set out a short historical overview of important events which show how that concern has, from time to time, resurfaced and taken centre stage. These include publication of The New Despotism and the appointment of the Donoughmore Committee, events leading up to the appointment of the Scrutiny of Delegated Powers Committee, the Strathclyde Review and the recent exceptional circumstances of Brexit and the pandemic.

The New Despotism

38.In 1929, the Lord Chief Justice, Lord Hewart, in a book entitled The New Despotism, referred to the Rating and Valuation Act 1925 and, in particular, to section 67 which enabled a minister, in the event of any difficulties in bringing the Act into operation, to remove the difficulty “by order”, including a power to “modify the provisions” of the Act “so far as may appear to the minister necessary or expedient for carrying the order into effect”. Lord Hewart concluded: “It would be difficult to imagine more comprehensive powers or more remarkable legislation”.35 Following the publication of The New Despotism, the Donoughmore Committee was appointed to consider delegation of powers and what safeguards were needed “to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the law”.36 The Donoughmore Committee observed that, at that time, for practical reasons, Parliament had had to pass so many laws, it lacked “the time to shape all the legislative details” but, in adopting the practice of delegation, “Parliament [had] steadily pursued a course without fully realising its attendant risks”.37 The Committee doubted whether Parliament itself had “fully realised how extensive the practice of delegation [had] become, or the extent to which it [had] surrendered its own functions in the process, or how easily the practice might be abused”.38

Background to the establishment of the DPRRC

39.The impact of the Donoughmore Committee appeared to last decades. But then, in a debate in 1990, Lord Simon of Glaisdale commented:

“It is alarming to find a recrudescence of an age-long pretension; namely, the claim of the executive to legislate. It was settled at the Glorious Revolution. There was a slight attempt to revive it in the 1930s but then the Donoughmore Committee seemed to put the stop on the executive pretensions. The recommendations of that committee were observed for over 50 years; but, then, suddenly during the last session a crop of Bills was produced with Henry VIII clauses.”39

As a result, late last century, a resurgence in concern about the use of delegated legislation occurred.40 On 31 January 1990, Lord Simon41 moved a debate “to ask Her Majesty’s Government whether they will reduce the quantity and improve the quality of legislation”. Lord Simon commented not only on the increase in the amount of primary legislation passed by Parliament but also in the number of statutory instruments made by ministers: “In 1976 the statutory instruments amounted to seven volumes. By 1986 there were 10 volumes. Therefore, the increase in the statute book of public and general Acts was accompanied by a massive increase on secondary legislation”.42 Lord Rippon of Hexham made a similar point, drawing attention in particular to skeleton bills and the use of Henry VIII powers:

“The mass of legislation is one thing, the mode is another. The practice whereby the Government seek in statutes to make their general intention clear, although in some complexity, while leaving detail — sometimes essential detail — to subordinate legislation is another growing mischief. Increasingly the Government, in spite of the length and complexity of Bills, seek skeleton or framework legislation allegedly to allow greater flexibility in bringing it into operation. Time and again, as the noble and learned Lord, Lord Simon of Glaisdale, has explained, they use the Henry VIII clause to give them the right to amend or even repeal primary legislation by order.”43

40.Shortly after, on 14 February 1990, Lord Rippon moved a debate “to call attention to the case for a Select Committee to scrutinise all Bills coming before Parliament, and to report whether such Bills contain insufficiently defined administrative powers or propose any inappropriate delegation of legislative powers”.44 Lord Rippon referred to the earlier debate as having “… successfully identified the mischief, and in particular the growing tendency for an all-powerful executive to diminish effective parliamentary control and replace it by ministerial legislation in the form of innumerable rules, regulations and orders having the force of law”.45 He also referred to the prevalence of Henry VIII powers and “an increasing reliance on enabling powers of one kind or another”.46 By way of example, Lord Rippon cited “the Courts and Legal Services Bill, the Children Act, the Companies Act, the Financial Services Act, the Banking Act and the many local government finance Acts”.47

41.In February 1992, the Select Committee on the Committee Work of the House (under the chairmanship of Earl Jellicoe) published a report (“the Jellicoe Report”) in which it made wide-ranging recommendations about the committee work of the House of Lords. They included the appointment of a delegated powers scrutiny committee, for which “authoritative support” had been given by witnesses to the Committee’s inquiry.48 The Committee concluded:49

“Almost all the evidence we received on the proposal for a committee to give closer and more systematic scrutiny of delegated powers sought in bills was enthusiastic … . Such work would be well-suited to the revising function of the House and in recent years there has been considerable disquiet over the problem of wide and sometimes ill-defined order making powers which give Ministers unlimited discretion.”

The Committee therefore recommended the appointment of the Delegated Powers Scrutiny Committee. It could, the Jellicoe Committee believed, “have great potential value”.50

42.On 3 June 1992, Earl Jellicoe moved a debate to take note of his Committee’s report.51 Lord Rippon was acknowledged as the originator of the proposal for a delegated powers scrutiny committee and several contributors welcomed the recommendation. They included, for example, Lord Renton who commented that “[f]or some years past our Bills have been too lengthy, too detailed and too complex and have at the same time, in spite of their length, contained far-reaching powers to make delegated legislation”. He mentioned, as an example, the Child Support Act which included numerous delegations. He went on: “Really this vast use of delegated powers has become something to which informed opinion is totally opposed”.52 Lord Simon referred to the Donoughmore Committee recommendations in relation to Henry VIII clauses which he said had been “persistently flouted in recent times”.53

43.The Delegated Powers Scrutiny Committee was appointed by the House on 10 November 1992, at first as an experiment, later to become a permanent sessional committee. Following a short inquiry into the principles of its work, the Committee published its first bill report on 1 April 1993.54 Since then, the Committee has been meeting regularly throughout each session, publishing reports on bills as they proceed through Parliament, the flow of bills containing either inappropriate delegations of power or powers subject to an inappropriate degree of parliamentary scrutiny seemingly unabated.

Strathclyde Review

44.In the previous chapter (see paragraph 26), we referred to the Strathclyde Review as evidence of the weakness of Parliament’s powers in relation to delegated legislation. The Review (under the chairmanship of the Rt Hon. Lord Strathclyde) was appointed in 2015 by the Government following votes in the House of Lords on the draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015 (“the Tax Credits Regulations”). The circumstances prompting the Review, and Lord Strathclyde’s conclusions, gave rise to one of the most significant debates about the balance of power between Parliament and the executive, and threshold between primary and delegated legislation, in recent decades.

45.The Tax Credits Regulations had been approved by the House of Commons on 26 September 2015. On 26 October 2015, they were debated in the House of Lords. A motion to “decline to approve” the Regulations was disagreed to by 99 to 310 votes but two motions to “decline to consider” them until the Government had undertaken certain actions were agreed, by 307 votes to 277 and by 289 votes to 272.55 The following day, a motion was moved and narrowly defeated which would have annulled the Electoral Registration and Administration Act 2013 (Transitional Provisions) Order 2015.

46.The Government’s response was to appoint the Strathclyde Review. Its purpose was to examine “how to protect the ability of elected governments to secure their business in Parliament” and, in particular, to consider “how to secure the decisive role of the elected House of Commons in relation to its primacy on financial matters and secondary legislation”.56

47.The Review reported on 17 December 2015.57 In the Foreword to the report, Strathclyde Review: Secondary legislation and the primacy of the House of Commons, Lord Strathclyde said:

“The Lords convention on statutory instruments has been fraying for some years and the combination of less collective memory, a misunderstanding of important constitutional principles, a House more willing to flex its political muscles, and some innovative drafting of motions against statutory instruments has made it imperative that we understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto.”

48.The Report set out three options for reform, with a recommendation in favour of the third:

49.In 2016, this Committee, the Constitution Committee and the SLSC each published a special report in response to the Strathclyde Review. Each Committee challenged the assertion by the Review that the relationship at issue was the relationship between the two Houses of Parliament and that the key concern was “the primacy of the House of Commons”. Instead, the Committees argued, the relationship at issue was the balance of power between Parliament and the executive.

50.The focus of the DPRRC’s response to the Strathclyde Review was the question: is too much being “left for implementation by statutory instrument?” The Committee noted that setting the appropriate boundary between primary and delegated legislation was not a simple, objective exercise and that, for that reason, since its inception, the Committee had taken the view that “it would not offer a list of criteria but would consider each delegation in a bill on its merits”.61 As a result, it said, “any assessment of the extent to which primary legislation may or may not be leaving too much for implementation by delegated legislation is not directly quantifiable”. That said, the Committee went on to say that its reports had indicated “that time and again successive governments have attempted to relegate too many important policies to delegated legislation, leaving too little on the face of the bill”,62 and of particular concern were the use of skeleton legislation and Henry VIII powers.

51.In December 2016, the Government responded to the Strathclyde Review. It was decided that legislation would not be introduced to bring option three into effect although the then Leader of the House of Commons, the Rt Hon. David Lidington MP, gave a warning in the Foreword to the response: “Whilst recognising the valuable role of the House of Lords in scrutinising SIs [statutory instruments], the Government remains concerned that there is no mechanism for the elected chamber to overturn a decision by the unelected chamber on SIs. We do not believe that it is something that can remain unchanged if the House of Lords seeks to vote against SIs approved by the House of Commons when there is no mechanism for the will of the elected House to prevail. We must, therefore, keep the situation under review and remain prepared to act if the primacy of the Commons is further threatened.”63

52.In a letter dated 19 December 2016, the Chairs of the three Committees — Baroness Fookes of the DPRRC, the Rt Hon. Lord Lang of Monkton of the Constitution Committee and the Rt Hon. Lord Trefgarne of the SLSC — replied to the Government’s response, amongst other things, regretting the “minatory tone” of the final remarks in the response which concluded: “ … if the House of Lords puts itself in a position where it seeks to vote against SIs approved by the House of Commons, then Lord Strathclyde’s recommendation provides a clear mechanism for the House of Commons to be able to assert its primacy over SIs” and drawing attention again to what the three Committees believed to be the “fundamental error” underpinning the remit of the review which the Government had commissioned.64

These “exceptional times”

53.Following the referendum in June 2016 and the decision of the UK to leave the EU, the legislative landscape was dominated by Brexit-related primary and delegated legislation. Then, in 2020, the legislative response to the pandemic added to the weight of urgent legislation. In response to a letter from this Committee, the Constitution Committee and the SLSC to the Lord President (see paragraph 61 below) about the frequent use of skeleton provision in recent years — on many occasions related to Brexit — the Lord President acknowledged that “we have been living in exceptional times”.

54.The Lord President also acknowledged — quite rightly — that “exceptional times … do not necessarily provide a model example of how Parliament would like to see legislation brought forward”.65 The Donoughmore Committee, in 1932, made a similar point: “The recent emergency statutes … afford other illustrations of the necessity of this method of legislation where there is thought to be need of giving to the Government power to take very rapid decisions which to be effective must possess the force of law. There is in truth no alternative means by which strong measures to meet great emergencies can be possible; and for that reason the means is constitutional”. But the Committee went on: “It is the essence of constitutional Government that the normal control of Parliament should not be suspended either to a greater degree, or for a longer time, than the exigency demands. … Emergencies are exceptional …”.66

Conclusion

55.The “considerable disquiet” identified in the Jellicoe Report, and wider issues relating to the balance of power between Parliament and the executive, remain as live an issue in the current political environment as it was at the time of the Donoughmore Committee, brought to the fore in recent years by the circumstances surrounding the Strathclyde Review and then the impact of Brexit and the pandemic. It is for this reason that we say that a critical moment has been reached and it is now a matter of urgency that Parliament should revisit these important issues, take stock, and consider how the balance of power can be re-set.


31 39th Report, Session 2017–19 (HL Paper 226) para 10.

32 47th Report, Session 2017–19 (HL Paper 289) para 3.

33 3rd Report, Session 2017–19 (HL Paper 22) para 9.

34 34th Report, Session 2017–19 (HL Paper 194) para 4. The Agriculture Bill was introduced a second time during Session 2019–21: 13th Report, Session 2019–21 (HL Paper 69).

35 Lord Hewart, The New Despotism, Chapt 1, p 10.

36 April 1932, Cmd 4060.

37 April 1932, Cmd 4060, p 23.

38 April 1932, Cmd 4060, p 24.

39 HL Debs, 14 Feb 1990, col 1419.

40 See “Henry VIII Clauses”, The History of Parliament (13 July 2017): https://historyofparliamentblog.wordpress.com/2017/07/13/henry-viii-clauses/ [accessed 22 November 2021].

41 Former MP, Law Officer, Treasury Minister, High Court judge and President of the Probate, Divorce and Admiralty Division (forerunner of the Family Division), and Law Lord.

42 HL Debs, 31 Jan 1990, col 382.

43 HL Debs, 31 Jan 1990, col 386.

44 HL Debs, 14 Feb 1990, col 1407.

45 Ibid.

46 Ibid.

47 HL Debs, 14 Feb 1990, col 1408.

48 Session 1991–92 (HL Paper 35).

49 Ibid., para 133.

50 Ibid., para 185.

51 HL Debs, 3 June 1992, col 899.

52 HL Debs, 3 June 1992, col 966.

53 HL Debs, 3 June 1992, col 971.

54 On the Education Bill. 2nd Report, Session 1992–93 (HL Paper 79).

55 The first of these motions, in the name of Baroness Meacher, was “that the House should decline to consider the regulations until the Government had laid a report before the House, “detailing their response to the analysis of the draft Regulations by the Institute for Fiscal Studies, and considering possible mitigating action”. The second, in the name of Baroness Hollis of Heigham, was “that the House should decline to consider the regulations until the Government “(1) following consultation have reported to Parliament a scheme for full transitional protection for a minimum of three years for all low-income families and individuals currently receiving tax credits before 5 April 2016, such transitional protection to be renewable after three years with parliamentary approval, and (2) have laid a report before the House, detailing their response to the analysis of the draft Regulations by the Institute for Fiscal Studies, and considering possible mitigating action”.

56 HL Deb, 28 October 2015, cols 1175–76, and HL Deb, 5 November 2015, HLWS285.

57 Cabinet Office, Strathclyde Review: Secondary legislation and the primacy of the House of Commons (December 2015), Cm 9177.

58 DPRRC, 25th Report, Session 2015–16 (HL Paper 119), para 77.

59 SLSC, 32nd Report, Session 2015–16 (HL Paper 128), para 87.

60 Constitution Committee, 9th Report, Session 2015–16 (HL Paper 116), summary.

61 25th Report, Session 2015–16 (HL Paper 119), para 21.

62 Ibid., para 22.

63 Cabinet Office, Government Response to the Strathclyde Review: Secondary legislation and the primacy of the House of Commons and the related Select Committee Reports (December 2016), Cm 9363.

64 Mr Lidington’s response to the letter of 19 December 2016, dated 12 January 2017, is published in DPRRC, 14th Report, Session 2016–17 (HL Paper 97), Appx 3.

66 April 1932, Cmd 4060, p 52.




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