Summary
This Report is intended to issue a stark warning—that the balance of power between Parliament and government has for some time been shifting away from Parliament, a trend accentuated by the twin challenges of Brexit and the COVID-19 pandemic. A critical moment has now been reached when that balance must be re-set: not restored to how things were immediately before these exceptional recent events but re-set afresh.
Over recent years, bills—which become Acts of Parliament and which are subject to robust scrutiny in their passage through Parliament—have often provided only the broadest outlines of the direction of policy travel, with all the detail that will have a direct impact on individual members of the public left to secondary legislation. And the more that is left to secondary legislation, the greater the democratic deficit because, in contrast to primary legislation, there is relatively scant effective parliamentary scrutiny of secondary legislation; it cannot be amended; in some cases, it may become law without any parliamentary debate; and, because the decision to accept or reject is all or nothing, very rarely will the Houses reject it.
To underline our acute concern, in preparing this report we have adopted the novel approach of working in close collaboration with the Delegated Powers and Regulatory Reform Committee (DPRRC). We have held joint evidence sessions and shared our findings, and, through our parallel reports, the two Committees have been able to join forces on:
- asserting the fundamental importance of the appropriate balance between primary and secondary legislation as the foundation of the relationship between Parliament and government;
- seeking to bring about culture change by recommending that ministers, when deciding whether a bill should include delegated legislative powers, should take into account to the fullest extent possible the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of government to Parliament;
- restricting the use of skeleton bills (or skeleton clauses)—bills (or clauses) so devoid of content that they leave the real operation of the law to ministers and secondary legislation—by recommending that such bills are used only in the most exceptional circumstances and where their use can be fully justified; and further recommending that the exercise of powers conferred by skeleton legislation is balanced by new statutory safeguards to ensure that the absence of adequate parliamentary scrutiny at the primary legislation stage is recompensed by a more challenging scrutiny procedure at the secondary legislation stage; and
- ensuring that, where secondary legislation itself delegates legislative powers (called legislative sub-delegation of power), the explanatory memorandum accompanying the instrument makes this clear and provides a full justification.
We also raise issues of specific concern to the SLSC, including: the need to maintain a clear distinction between legislation and guidance; the importance of high quality legislation and supporting materials, and in particular the need for impact assessments or impact information to be available at the same time that an instrument is considered by the Houses—afterwards is too late for effective parliamentary scrutiny; greater use of sunset provisions; and allowing sufficient opportunity for effective parliamentary scrutiny.
We believe that the House and the wider public will have a keen interest in these important issues that go to the heart of our constitution and of our parliamentary democracy. Re-setting the balance of power is a matter of urgency—but, whatever is done now, we cannot allow complacency to take hold in the future. We therefore share with the DPRRC the view that end of session reports by the SLSC and the DPRRC, along with relevant reports of the Joint Committee on Statutory Instruments and the Constitution Committee, should form the basis for regular debates in the House.