We must reset the balance of power between Parliament and the government
In November 2021, the Lords Delegated Powers and Regulatory Reform Committee (DPRRC) and the Lords Secondary Legislation Scrutiny Committee (SLSC), working in close collaboration, issued a stark warning – that, for years now, power has been shifting away from Parliament towards the executive and it is now a matter of urgency that the shift should stop and the balance be re-set.
The two thematic reports that contained the warning – Democracy Denied? The urgent need to rebalance power between Parliament and the Executive (DPRRC) and Government by Diktat: A call to return power to Parliament (SLSC) – describe how over recent years government bills have 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 minister-made secondary legislation.
Sounding the alarm about the state of the constitution may seem a far cry from the pressing concerns of the cost of living crisis, the legacy of Brexit, the Covid-19 pandemic, climate change, the war in Ukraine, and unrest and tragedy elsewhere in the world. But the important point is that much of the legislation needed to meet some of these pressing concerns is made by ministers using secondary legislation under powers conferred by Acts of Parliament.
The pandemic is a good example of the sheer weight of law made by ministers: in sessions 2019-21 and 2021-22, over 500 instruments relating to the pandemic were laid before Parliament. And it is vitally important that both the bills conferring legislative powers and the secondary legislation made under them should be subject to thorough and effective scrutiny by the two Houses.
Early this year, the themes set out in the reports were taken up in a debate initiated by Baroness Cavendish of Little Venice and subsequently, during the debate on the Queen’s Speech, they were described as “addressing a prime issue of constitutional importance”. But, whilst the stark warning resonated within the House and beyond, the government’s response to the two reports was disappointing in almost every respect.
Meanwhile, our Committees continue to find evidence of poor legislative practices, which are then highlighted in our reports. The DPRRC, for example, which scrutinises delegations of legislative power in bills, in its recent report on the Schools Bill said that powers in the Bill showed it appeared that no heed had been taken by the government of the concerns expressed in the two reports. And the SLSC, alongside its weekly scrutiny of secondary legislation, is currently looking into the provision of Impact Assessments because of departmental lapses which have left Parliament less able to perform the level of scrutiny necessary. It is important to recognise that this is an issue about the balance of power between Parliament (both Houses of the legislature) and government (the executive). It is not an issue about Commons and Lords.
And it is an issue which has assumed greater importance as the government have sought to deliver more and more of their policy objectives through secondary legislation. Critically, not only is the scrutiny of secondary legislation less detailed, but it also cannot be amended meaning it can only be passed or rejected. Faced with this nuclear option both Houses have been reluctant to press the “Reject” button.
Resetting the balance of power between Parliament and government will take time. The culture within Whitehall will have to change. Hearts and minds will have to be won. But we are not discouraged. In July, the DPRRC and the SLSC will be sitting concurrently to hear evidence from the Leaders of the two Houses and First Parliamentary Counsel so that we may press them further about the reports and the government's response.
We anticipate a number of major scrutiny challenges in the present session – the Schools Bill, the Online Safety Bill and notably the “Brexit Freedoms Bill”. We wonder how many people realised that “taking back control” meant passing control from Brussels to Whitehall with little if any parliamentary input. We will work hard but constructively – and wherever possible working with our colleagues in the Commons – to ensure that the Bill respects and safeguards Parliament’s fundamental constitutional role in the effective scrutiny of primary and secondary legislation.
Lord Hodgson of Astley Abbotts is Chair of the Secondary Legislation Scrutiny Committee
Lord McLoughlin is Chair of the Delegated Powers and Regulatory Reform Committee
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