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. Continue reading

Constitutional reforms hit trouble in Parliament

The flagship constitutional reforms of the new coalition government are running into serious parliamentary trouble. They have all been the subject of scathing reports from parliamentary committees: in particular for their haste, and lack of pre-legislative scrutiny or public consultation. Two have been subject to defeat in the Lords, but none has yet completed all its stages. If the Lords share the criticisms voiced by the Select Committees they will want to make significant changes.


The vanguard bill is the Parliamentary Voting System and Constituencies Bill, which completed all its Commons stages on 2 November, and by Christmas had been in Committee for six days in the Lords. The bill provides for a referendum in May to change the voting system for the House of Commons to AV, and for boundary changes to reduce the size of the House to 600 in time for the next general election planned for 2015. For the AV referendum to be held on 5 May the bill needs to be passed by early February, allowing just three months for the referendum campaign.


The bill was the subject of critical reports by the new Political and Constitutional Reform Committee in the Commons, chaired by Graham Allen MP (HC 437, October 2010), and by the Lords Constitution Committee chaired by Baroness Jay (HL 58, November 2010). Both committees strongly criticised the government for its haste, and for combining in one bill two issues which should have been considered separately. The timetable for the referendum is particularly tight. There was no time for consultation with the devolved administrations, who are dismayed that the referendum is being held at the same time as the next devolved assembly elections. And there was no time for considering alternative approaches, or the option of PR. If the Lords make major amendments, the referendum may have to be postponed. The Lords have already amended the bill to provide for that.

Parliamentary debate on the plans to reduce the size of the House of Commons exposed the absence of any rationale for the new figure of 600 MPs; and the absence of any plan to reduce the number of Ministers, or the payroll vote (the new government had a record 46 PPSs). The government have said there will be a reduction, but not through this bill. Concerns were also expressed at the abolition of local inquiries into the results of boundary reviews (to be replaced by a 12 week written consultation period); at the spurious precision of equal sized constituencies based upon outdated (2010) electoral registers, from which 3.5m voters are said to be missing; and at 18 months being insufficient time for political parties to form new local associations and to choose candidates for the new constituencies.

The Fixed Term Parliaments Bill is next in line. Introduced in July, it had its Commons Second Reading in September, and by Christmas had undergone just two days in Committee (of the whole House). This bill has also been the subject of a quick report from the Commons Political and Constitutional Reform Committee (HC 436, September 2010), and a detailed inquiry by the Lords Constitution Committee (HL 69, December 2010). Both committees suggested a four rather than a five year term. On the wider issue, the Lords Committee were not convinced that a strong enough case had been made for fixed term Parliaments. The Committee also criticised the date clash with the devolved elections in May 2015, and every 20 years thereafter. It also pointed out that the Parliament Acts cannot be applied to the Fixed Term Parliaments Bill, so the Commons cannot override the Lords.

The third bill in trouble is the European Union Bill, which aims to strengthen the UK procedures for agreeing EU decisions and Treaty changes. It provides a sovereignty clause confirming that ultimate legal authority remains with Westminster; and for a referendum lock on any Treaty transferring further powers to the EU. The sovereignty clause was strongly criticised by the Commons European Scrutiny Committee, chaired by Bill Cash MP (HC 633-I). After taking evidence from EU and constitutional legal experts, the committee concluded that the legislative supremacy of Parliament was not under threat from EU law; so the sovereignty clause was unnecessary. It was also unlikely to have any effect, not least since it could be repealed by any future parliament. This second argument will also apply to the provisions for a referendum lock, to which the committee will return at a later date.

Finally there is the Public Bodies Bill, which started in the House of Lords in October. Following the Cabinet Office review of public bodies, led by Francis Maude MP, the bill allows Ministers to make orders abolishing, merging or modifying a wide range of public bodies. The Lords Constitution Committee issued a powerful warning in November about the extraordinary scope of the Henry VIII powers in the bill (HL 51, November 2010), repeated by the Lord Chief Justice when he gave evidence before them in December (see page 00). Labour opposition peers are ensuring that the bill makes painfully slow progress: so slow that the government may start all night sittings. The bill’s opponents will be further encouraged by the damning report of the Commons Public Administration Committee, whose chair Bernard Jenkin MP described the government’s bonfire of the quangos as ‘botched’ (HC 537, January 2011).

These bills will provide an early test of the extent to which the Lords are willing to vote down legislation of the coalition government. With Lib Dem peers committed to support the coalition, it should be in a stronger position than its Labour predecessor. The Crossbenchers now hold the swing votes.  But in the first 31 divisions in the Lords the government has been defeated eight times: much the same rate as under the previous government. And with the government’s decision to extend the first session for two years the Parliament Act is a weaker instrument, increasing the Lord’s powers of delay.

The fate of this legislation also provides an early test of Nick Clegg as leader of the coalition’s constitutional reform programme. There was no need to introduce these bills at quite such reckless speed. More deliberation would have allowed for consultation, long term planning, and better crafted legislation. The AV referendum is likely to be lost because of the mad rush. The plans for 200 state funded primaries are being shelved, as the government realises the consequences for 650 MPs competing for re-selection in new constituencies. It is not a good omen for the forthcoming plans for Lords reform. But having learnt some painful lessons, the government may now be willing to move more slowly.

This is the lead article in the Unit’s newsletter, the Monitor, now available to view on our website at the link below. It includes further reports on parliament, freedom of information, the executive and the judiciary.

Lord Chief Justice on the Public Bodies Bill and Judicial Independence

The Public Bodies Bill was already in serious trouble in the House of Lords, because of the cavalier way in which the government propose to abolish, merge or modify a whole raft of public bodies through secondary legislation.  Now the Lord Chief Justice Lord Judge has fired his own broadside, which may be enough to stop the bill in its tracks.  In evidence to the Lords Constitution Committee on 15 December he roundly criticised the use of ministerial orders to abolish or amend judicial and quasi-judicial bodies which had been established by primary legislation.

Lord Judge specifically mentioned the Judicial Appointments Commission, Criminal Cases Review Commission, Parole Board, and Sentencing Council and went on to say: “I very much hope that very careful reconsideration will be given to the whole series of bodies in Schedule 7 which currently perform a quasi-judicial function but whose independence is all part and parcel of the weft of an independent judiciary”.  He went on to discuss the impact of the budget cuts on the Courts Service, Legal Aid and the Crown Prosecution Service; and the circumstances in which he might decide not to sign a Concordat agreement because he judged the funding arrangements to be inadequate.

Lord Judge’s remarkably frank evidence is one example of how the Judiciary have become more independent since the Constitutional Reform Act 2005, but also feel themselves to be more accountable.  (Lord Judge offered to come and give evidence twice a year to the Committee if they wanted).  How the relations between the Judges, Parliament and the Courts are evolving, and the inevitable tensions which arise, are the subject of the Constitution Unit’s new three year project on The Politics of Judicial Independence, which starts in January.

Robert Hazell