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

Summary of conclusions and recommendations

Chapter 1: An urgent need for change

1.A substantial groundswell of concern is developing about the shift in power from Parliament to ministers. 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. (Paragraph 5)

Chapter 2: Reasons for and against delegated legislation

2.Issues relating to whether delegated legislation should be amendable and whether parliamentary procedures could be changed to provide Parliament with a greater range of options than a simple “all or nothing” are beyond the scope of this report. That said, understanding what Parliament is currently able to do is integral to understanding why delegation of legislative powers by Parliament to the executive is constitutionally important. The limits on Parliament’s ability to intervene in delegated legislation places an even greater significance on ensuring the appropriateness of the delegation in the first place. Where laws are passed with little or no scrutiny, Parliament must do more to ensure that they do not amount to an abuse of power. (Paragraph 35)

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

3.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 COVID-19 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. (Paragraph 55)

Chapter 4: Familiar and emerging grounds for continued “considerable disquiet”

Skeleton bills

4.The appropriate threshold between primary and secondary legislation should not be dependent on the exigencies of timing but should be founded on the overarching principle that the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegated legislation. There is a long-standing maxim that ignorance of the law excuses no-one but if Parliament is ignorant of the law passed in its name, then how can the public be expected to know and obey it. (Paragraph 65)

5.Skeleton legislation signifies an exceptional shift in power from Parliament to the executive and entails the Government, in effect, asking Parliament to pass primary legislation which is so insubstantial that it leaves the real operation of the legislation to be decided by ministers. As such, it will rarely be justifiable. (Paragraph 66)

6.We recommend that:

7.We invite the Government to provide further examples of bills which were, in their view, necessarily skeletal — on grounds other than political expediency — and the justification for adopting the approach taken on each occasion. (Paragraph 68)

8.We propose below that consideration should be given to the DPRRC having a “scrutiny reserve”, exercisable in exceptional circumstances only. A difference of opinion about whether a bill contains skeleton provision and requires a skeleton legislation declaration would amount to such an exceptional circumstance. This would allow the Committee time to take evidence from the minister and prepare a report before second reading. (Paragraph 70)

9.We support the SLSC recommendation that the Government, together with the two Houses of Parliament and their Procedure Committees, should consider, following consultation, how the democratic deficit inherent in skeleton legislation can be remedied. (Paragraph 74)

Henry VII powers

10.Henry VIII powers are controversial, and for good reason. Every such power, and its scope, must always be fully justified. We will always deprecate the use of Henry VIII powers where they appear to have been included in a bill “just in case”. (Paragraph 83)

11.That said, we acknowledge that, on occasion, it is appropriate to use them, albeit subject to the presumption that the affirmative procedure should apply to their exercise and that their scope should be constrained on the face of the bill. (Paragraph 84)

12.We welcome the offer made by First Parliamentary Counsel:
(1) to ensure that departments are aware of the Committee’s concern about Henry VIII powers and; (2) to consider developing guidance about examples of Henry VIII powers which are likely to regarded as appropriate. We will, of course, continue to consider each use of a Henry VIII power on its merits. (Paragraph 85)

Guidance

13.We share the view of the Leader of the House “that guidance should not be used to circumvent the usual way of regulating a matter”. Mandatory guidance is such a circumvention. The very concept is a contradiction in terms and a power to make mandatory guidance will never be appropriate. Requirements which have legislative effect should always be expressed in legislative language, either in primary or secondary legislation, and subject to parliamentary oversight. (Paragraph 94)

14.When drafting a delegated powers memorandum for a bill which includes a power to issue guidance, departments must clearly explain and justify the character of the guidance. Where guidance is, in effect, legislative in character, it should be laid before Parliament and subject to parliamentary scrutiny. (Paragraph 97)

15.We share the concern of the SLSC, the JCSI and others about inconsistencies between legislation and guidance, and the use of guidance to fill gaps in legislation. We support the SLSC in its recommendation that it is crucial that departments ensure a clear and appropriate distinction between legislation and guidance. (Paragraph 100)

Other disguised legislative instruments

16.The number of occasions on which the Government have sought to acquire legislative powers under the guise of various devices not subject to parliamentary scrutiny is perhaps the most striking and disturbing of recent developments that have had the effect of shifting the balance of legislative power from Parliament to the executive. This finding is especially significant given that it has emerged so prominently at a time when Brexit and the pandemic have given so many other examples of a shift in power. (Paragraph 102)

17.We have already referred to the statement by the Leader of the House that guidance should not be used to circumvent the usual way of regulating a matter. The same is also true of these other devices. Provision in bills giving ministers powers to make determinations, directions, arrangements or to issue codes of practice, public notices etc. — where they are in effect camouflaged legislation — is an unacceptable ploy and, as matter of principle, should not be sought by the Government in the bills they put before Parliament. (Paragraph 103)

18.Furthermore, the multiplicity of disguised legislative instruments is confusing to Parliament and to the public, and does not, in our view, promote the good law principles of law that is clear and accessible. (Paragraph 104)

19.In the absence of convincing reasons to the contrary, therefore, we recommend that they should not be used. Where the Government take the view that they have convincing reasons, then the use of these devices – and the level of scrutiny applied to them – should be clearly identified in the delegated powers memorandum and fully justified. (Paragraph 105)

20.Where a department is uncertain as to whether use of one of these devices amounts to delegation of a legislative power, they should err on the side of caution and provide a clear explanation in the delegated powers memorandum about why the view has been taken that the power is administrative rather than legislative in character. (Paragraph 106)

Legislative sub-delegation of power

21.Tertiary legislation has as much legal force as any other form of law. Conferring a delegated power on ministers to sub-delegate power is potentially a more egregious erosion of democratic accountability than a simple delegation to a minster to make secondary legislation. Where the government seek a legislative sub-delegation of power in a bill, the power should be limited and specific, and its exercise, and the exercise of sub-delegated powers, should be subject to parliamentary scrutiny. Consideration should also be given to including a statutory duty to consult those affected by the exercise of a sub-delegated power. The delegated powers memorandum should provide a compelling justification for the power, why it is needed, how it is intended to be exercised and how it is to be constrained. The memorandum should also explain the choice of parliamentary scrutiny to be applied to the exercise of the sub-delegated power and, where it differs from the level of scrutiny applied to the secondary legislation containing the sub-delegated power, provide a compelling justification for the divergence. (Paragraph 111)

22.Where, in turn, an instrument — made under powers delegated by primary legislation — delegates a power to either ministers themselves or another body to make tertiary legislation, the explanatory memorandum accompanying the instrument should state this and explain its scope and why it is needed. (This is a matter to which the SLSC refers in its parallel report.) (Paragraph 112)

Made affirmatives

23.When drafting a delegated powers memorandum, departments should ensure that where the negative procedure is chosen on the ground that there is insufficient time for an affirmative, the memorandum explains why the “made affirmative” procedure is not applied. The threshold between the negative and the affirmative procedure depends on the substance of the instrument and should not be determined by political expediency. (Paragraph 117)

24.We recommend that, where an instrument is subject to the made affirmative procedure, the Government should undertake to schedule a debate on the instrument sooner rather than later. (Paragraph 119)

25.We acknowledge that the recommendation above will have implications for the ability of the SLSC and the JCSI to report on an instrument in time for the debate. We therefore further recommend that, where a debate is scheduled soon after a made affirmative has been laid, the formal approval motion should be deferred and taken later, either formally or as a second debate if either the SLSC or the JCSI raise matters of concern. (Paragraph 120)

Conclusion

26.Long-standing issues of skeleton legislation and the use of Henry VIII powers remain matters of significant concern. Meanwhile new and complex issues have emerged. These developments cannot be explained simply as an aberration prompted by the recent “exceptional times”. We have made some proposals which are intended to address aspects of the issues identified. In the following chapter, however, we consider how more radical change can be brought about so that the relationship between Parliament and the executive can be re-set and a balance restored. (Paragraph 121)

Chapter 5: Ways to re-set the balance of power

Asserting the fundamental principles of parliamentary democracy

27.It appears that bill teams are, in effect, being encouraged to regard the inclusion of delegated powers, and the preparation of a delegated powers memorandum, as merely a political or practical matter. The absence in the Cabinet Office Guide to Making Legislation of any explicit statement of the underlying principles is, in our view, a fundamental flaw. We therefore recommend that the Guide should be amended to include a statement of principles which should underpin any decision by ministers about whether a bill should include delegated legislative powers. (Paragraph 126)

What departments can do

28.We welcome the Lord President’s assertion that bills should be supported by well-developed policies and also the steps that he has taken to ensure that the PBL Committee reinforces this message in departments. We have no doubt however that, on occasion, the processes of policy development and bill drafting, and the parliamentary legislative timetable are misaligned. As a result, powers are included in bills which are, in effect, “a tool to cover imperfect policy development”. This is unacceptable, and we look to the Government to undertake the systemic reforms necessary to prevent its happening. (Paragraph 129)

29.We endorse the Constitution Committee’s view that pre-legislative scrutiny of bills should be regarded as an integral part of the wider legislative process. The Guide states that publication of a bill in draft is the “default position” and that draft bills should be submitted to parliamentary pre-legislative scrutiny where possible. We recommend that the Government should refresh their commitment to publishing more bills in draft. (Paragraph 135)

What the DPRRC can do

30.We have no doubt that scrutiny by the DPRRC has a pre-emptive effect and we have noted the evidence of the Lord President that that effect has been “profound”. It cannot however be measured, and earlier chapters of this report have caused us to have some reservations about the Lord President’s assessment of the extent of the Committee’s impact. (Paragraph 142)

31.We urge the Government to amend the Guide so that it introduces an expectation that the Government will accept most, if not all, of the DPRRC’s recommendations and, where any recommendation is not accepted, a full justification should be provided for not doing so in the Government’s response. (Paragraph 146)

32.Reference is made to the Committee’s guidance in the Guide and departments are told that they should consider it carefully. We recommend that the Committee’s new guidance should be set out in full in the Cabinet Office Guide. (Paragraph 148)

33.We will continue our practice of commenting on the quality of delegated powers memoranda, in part to assist departments in preparing memoranda for future bills. (Paragraph 150)

34.It will remain our usual practice to report on bills after second reading and before committee stage in the House of Lords. Exceptionally, however, where appropriate and where timing permits, the Committee may report on a bill while it is in the House of Commons or before second reading in the House of Lords. (Paragraph 154)

35.We recommend that the Government should refresh their commitment in the Guide that a written response to Committee reports should be provided before committee stage. Where a written response cannot be provided in time, a written explanation should be given to the Committee before committee stage which should include an indication of when a response will be provided. (Paragraph 156)

36.We invite the Procedure Committee and the House to consider amending Standing Orders to allow the DPRRC a “scrutiny reserve” so that, in cases where a bill includes most exceptionally wide delegations for which there has been no satisfactory justification or the Committee takes the view that the bill contained skeleton provision, time will be available for the Committee to request a minister to provide further justification. Under the “scrutiny reserve” the committee stage could not proceed until the Committee had reported to the House. (Paragraph 160)

37.We will resume the Committee’s previous practice of publishing an end of session report to the House, raising concerns about issues relating to the delegation of powers and making specific comments about the quality of delegated powers memoranda and Government responses. In preparing the report, we may also invite oral evidence from the Leaders of the two Houses. (Paragraph 162)

38.We see these end of session reports, along with reports from other committees such as the SLSC, JCSI and the Constitution Committee, as an important resource which will inform, or prompt, regular debates in the House about the quality of legislation and the explanatory materials submitted in support of it, and about the wider issues raised in this report. (Paragraph 163)

Chapter 6: Culture change within departments: a revised Guide to Making Legislation

39.The Guide is currently a practical document to assist bill teams. With the addition of the new material, we believe that it has a broader purpose: to remind departments, both ministers and officials and also the PBL Committee, of the constitutional principles underlying the relationship between Parliament and the executive. Adoption and promulgation of a revised Guide will therefore be a powerful mechanism, we believe, for re-setting that relationship. We look forward to its introduction. (Paragraph 166)





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