House of Lords Constitution Committee reports on delegated powers

photo_2017_1_cropped (1)tierney2.e1489415384219Last week, the Constitution Committee published its report on the increasing use of delegated powers by the government. Mark Elliott and Stephen Tierney highlight the key concerns raised and proposals made by the Committee in two principal areas: the ways in and extent to which legislative powers are delegated, and scrutiny of such powers’ exercise.

The House of Lords Constitution Committee last week published a major report on delegated powers. It is a component of a larger, four-part inquiry that the Committee is undertaking into the legislative process. The first report in this series, concerning the preparation of legislation for parliament, was published in October 2017; reports on the passage of legislation through parliament and post-legislative scrutiny will be published in due course.

Delegation of power

The Constitution Committee, unsurprisingly, does not begin from the unworldly premise that parliamentary delegations of law-making authority are inherently problematic; after all, they are, and will remain, a fact of life. The Committee does, however, adopt as its premise the position that the legitimacy of such delegations is governed by ‘constitutional standards’ whose enforcement amounts to a ‘constitutional obligation’ on parliament’s part.

The Committee goes on to articulate two key principles by reference to which the legitimacy of delegations of power ought to be judged. First, it is ‘essential that primary legislation is used to legislate for policy and other major objectives’, with delegated legislation used only ‘to fill in the details’. Against this background, the Committee laments the ‘upward trend in the seeking of delegated powers in recent years’. Second, and relatedly, the Committee states that it is ‘constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken’ — a phenomenon in which there has been ‘a significant and unwelcome increase’. Having thus nailed its colours to the mast, the Committee goes on to identify a suite of constitutionally dubious trends and practices to which its attention was drawn during the course of the inquiry and which it has itself discerned in recent years through its constitutional scrutiny of all Bills that reach the House of Lords.

First, the Committee draws attention to the increasing tendency ‘for bills to be introduced with broad or vaguely worded delegated powers that leave considerable discretion to ministers’, citing its earlier reports on the Cities and Local Government Devolution Bill, the Psychoactive Substances Bill and the Charities (Protection and Social Investment) Bill, the Immigration Bill 2015–16, and the Space Industry Bill. The Committee observes that the last of these ‘conferred around 100 delegated powers and that some fundamental policy choices would be made using the powers’. On this point, the Committee concludes that: ‘Where broad powers are sought, the Government should publish draft secondary legislation in time to allow Parliament to assess its potential.’

Second, the issue of ‘skeleton bills’ are flagged up. Lying at the ‘extreme end of the spectrum of legislative uncertainty’, such Bills are characterised by ‘broad delegated powers [that] are sought to fill in policy details at a later date’. The Constitution Committee points to the Agriculture Bill, which is currently before parliament, as a particularly egregious example, noting that the Delegated Powers and Regulatory Reform Committee had reported on it in excoriating terms. Indeed, the DPPRC went as far as to state that ‘it cannot even be said that the devil is in the detail, because the [Agriculture] Bill contains so little detail’. The Constitution Committee concludes that skeleton bills ‘inhibit parliamentary scrutiny’ and that it is ‘difficult to envisage any circumstances in which their use is acceptable’. If the government does seek to use such bills, it must ‘provide an exceptional justification for them’ and ‘cannot rely on generalised assertions of the need for flexibility or future-proofing’.

Third, the Committee addresses Henry VIII clauses: that is, clauses that authorise the making of delegated legislation that amends or repeals primary legislation. Increasing recourse to Henry VIII powers is noted; the Data Protection Bill was cited as a particular example. Repeating a view that it expressed in its report on the Public Bodies Bill, the Committee states that Henry VIII clauses represent ‘a departure from constitutional principle’ and that such departures ‘should be contemplated only where a full and clear explanation and justification is provided’. The Committee goes on to say that such justification ‘should set out the specific purpose that the Henry VIII power is designed to serve and how the power will be used’, concluding that: ‘Widely drawn delegations of legislative authority cannot be justified solely by the need for speed and flexibility.’

Fourth, a recent trend is noted concerning the interaction of (on the one hand) legislative powers delegated to UK ministers and (on the other hand) the devolution settlements. For instance, as the Committee notes, the Digital Economy Bill ‘included a Henry VIII power that permitted primary and secondary legislation passed by the devolved legislatures to be amended by secondary legislation passed by the UK Parliament without the consent or involvement of the relevant devolved legislatures or governments’. The Committee has flagged the same issue in its reports on several other bills, including the Space Industry Bill and the Sanctions and Anti-Money Laundering Bill, and in correspondence with the government concerning the Telecommunications Infrastructure (Relief from Non-Domestic Rates) Bill. The Committee concludes in its latest report that: ‘Where UK ministers seek a power to amend devolved legislation, they must be subject to a statutory requirement to consult the relevant devolved administration.’

Fifth, the Committee expresses concern about the use of guidance (as distinct from delegated legislation) to fill in gaps in legislation, particularly where such guidance relates to significant aspects of the legislative scheme or represents the expression of a significant policy choice. Here, the Committee relies on its recent report on the Counter-Terrorism and Border Security Bill. That bill contains significant new powers to stop, search, question, and detain people on the grounds of ‘hostile activity’. However, the concept of hostile activity is only vaguely and broadly defined in the bill itself, while and the government sought to provide reassurance by stating that guidance would be issued as to how the power would be exercised in practice. Noting that the draft code of practice was not published until the committee stage in the Lords was well underway, the Committee points out that ‘this meant that a crucial supporting document was not available to the House of Commons for the entirety of its consideration of the Bill’ — a situation it considers to be ‘unacceptable’. On this point, the Committee concludes that: ‘Guidance is not legislation and should not be treated as such.’ It follows that: ‘If there are policy lacunae in the legislation itself, it is unacceptable that guidance, which for the most part avoids parliamentary scrutiny, should serve to fill them.’

Scrutiny of delegated powers’ exercise

The Committee’s deep disquiet about the uses to which delegated legislation is put makes parliamentary scrutiny and regulation of secondary powers all the more salient. In addressing these questions, the Committee focuses upon three issues: the complexity of existing procedures, the level of scrutiny to which delegated legislation is subjected, and the relationship between parliament’s inability to amend statutory instruments on the one hand and the nuclear option of rejection on the other.

The Committee expresses considerable concern with the multifarious, and at times bewildering, range of scrutiny procedures that lie at parliament’s disposal, a complexity that grows as new forms of scrutiny emerge, often at the initiative of government itself. The Committee concludes that this proliferation adds unnecessary complexity. One recommendation is that the Government use ‘an existing model of the enhanced affirmative procedure in any future bill, when strengthened scrutiny is required, rather than creating a new variation.’

A more significant concern for the Committee is the extent to which these powers are scrutinised at all. It notes that the overwhelming weight of evidence received about the scrutiny of secondary legislation ‘was critical.’ This failing was attributed by witnesses in particular to the House of Commons which has no equivalent to the Secondary Legislation Scrutiny Committee (SLSC) of the Lords. The Constitution Committee praises the SLSC for performing ‘a vital role in scrutinising whether delegated powers are being used for matters of detail not policy.’ The Lords Constitution Committee is however aware that it is not its place, in constitutional terms, to make recommendations in relation to the procedures of the other House. Instead, somewhat diplomatically, it observes that: ‘The House of Lords undertaking important scrutiny functions without duplicating the work of the Commons is a good example of the complementary roles of the two Houses.’

Having highlighted the gaps in scrutiny of delegated legislation, the Committee turns to the power which parliament has to regulate its creation.  It balances, on the one hand, evidence from prominent witnesses, including Lord Hope of Craighead who suggested that delegated legislation should be amendable, with, on the other, submissions, including from the SLSC itself, that such a process would be unworkable, largely due to the demands it would place upon parliamentary time. The Committee also notes the submissions given by David Lidington for the government, seemingly with no hint of irony, that a power of amendment would blur the distinction between the primary and secondary legislative processes. In the end the Committee does not go so far as to propose the introduction of an amendment process for draft delegated legislation, but it does take the opportunity to emphasise that the lack of such a power ‘places a greater onus on the Government to respond to the concerns raised by parliamentarians, and to withdraw and re-lay statutory instruments where appropriate.’

The Committee then turns to the only formal remedy available to parliament for deficient secondary legislation — rejection. It is remarkable how rarely this option has been used: the Hansard Society has calculated that parliament has only rejected 16 SIs out of over 169,000 (0.01%) since 1950 — 11 by the House of Commons and five by the House of Lords.

In this context, the Committee discusses the controversy surrounding the draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015 to which the Lords objected, prompting the Strathclyde review. The Committee reported on this review at the time and considered that its focus upon the Salisbury-Addison convention, and the balance of power between the two Houses of Parliament, was largely a distraction; the real issue being the efficacy of scrutiny itself and how parliament holds the executive to account. In its new report the Committee maintains its robust view that the Lords must be entitled to reject statutory instruments, particularly in light of current trends. If ministers attempt to use statutory instruments to give effect to significant policy decisions there needs to be proper oversight — and without a genuine risk of defeat, and no amendment possible, ‘Parliament is doing little more than rubber-stamping the Government’s secondary legislation.’ The Committee concludes bluntly: ‘This is constitutionally unacceptable.’

Concluding remarks

The Committee’s report lays out detailed examples of the ways in which government now uses delegated powers to allow it not only to fill in policy details but in fact to make and implement policy in the future; a trend that is growing in legislation relating to Brexit. The Committee is blunt in recognising that these trends, illustrated by the rise of skeleton bills and the use of Henry VIII powers to create criminal offences and establish public bodies, represent a shift, by stealth, in the balance of constitutional power towards the executive: ‘it is unacceptable that the delegation of power is seen by at least some in the Government as a matter of what powers they can get past parliament.’

The constitutional concerns which this raises are exacerbated both by the limited scrutiny to which these powers are subjected and by parliament’s lack of ultimate control. On the former issue the Committee is careful not to criticise the dearth of scrutiny in the Commons. A crucial point should, however, not be missed. The chamber with greater democratic legitimacy should surely have a more robust mechanism with which to review, bill by bill, the disturbing trend by which parliament effectively abdicates many of its law-making functions to the executive.

As to parliamentary control of delegated powers, while the Committee does not recommend the introduction of an amending power, it is aware that without such a power parliament is left potentially emasculated by the use of SIs to give effect to policy initiatives. In this context all that is left to parliament is the ultimate power of rejection. While noting the deferential approach which parliament in general, and the Lords in particular, has hitherto adopted in relation to this nuclear option, the Committee’s warning is clear: ‘If the Government’s current approach to delegated legislation persists, or the situation deteriorates further, the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained.’ Far from accepting the suggestion that the second chamber has no legitimacy to resist the misuse of delegated powers, the Committee strongly reasserts that the House of Lords has a constitutional duty to do so.

This blog originally appeared on the blog of the UK Constitutional Law Association and is reposted with the kind permission of the authors.

About the authors

Mark Elliott is Professor of Public Law at the University of Cambridge and a Fellow of St Catharine’s College, Cambridge.

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh.

Both authors serve as Legal Advisers to the House of Lords Constitution Committee. However, they have written this post in their purely personal capacities.