Lords warn: Government by diktat – the urgent need for the balance of power between Parliament and the Government to be re-set and the role of Parliament restored

The reports are by the Secondary Legislation Scrutiny Committee (SLSC), entitled Government by Ditkat: A call to return power to Parliament and the Delegated Powers and Regulatory Reform Committee (DPRRC), entitled Democracy Denied? The urgent need to rebalance power between Parliament and the Executive. Each contains a stark warning about a shift in power towards the executive.

Both reports express considerable alarm and criticise the increasing tendency of all governments in recent years to adopt procedures which effectively by-pass Parliament’s role in the legislative process by enabling ministers to make the detailed laws which govern every aspect of how we live and how businesses and other organisations operate.

The reports condemn a growing trend, made worse by the twin challenges of Brexit and the COVID-19 pandemic, in using skeleton bills to give ministers sweeping powers to make secondary legislation that can be passed with little or no consideration by the two Houses. The DPRRC report also draws attention to the fact that, on occasion, these minister-made laws are disguised as “protocols” “directions” or “guidance”, which have legislative effect but are often made without parliamentary oversight.

The Committees highlight the lack of effective parliamentary scrutiny of secondary legislation which, unlike Acts of Parliament, is not subject to several stages of robust scrutiny but is only debated once in each House – if at all. Most importantly, secondary legislation cannot be amended, it must either be accepted or rejected in whole. As a result, rejection rarely happens – the DPRRC comments that the “all or nothing approach” is firmly rooted in favour of all.

The Committees also raise a further concern – that conferring powers in primary legislation may be concealing a tendency in departments to introduce bills before the underlying policy has been thoroughly thought through. Leaving policy development to be mopped up by secondary legislation lacks the intellectual rigour that should have been exercised at the start of the legislative process and denies Parliament a clear understanding of what it is being asked to approve.

While the reports note that the extensive use of secondary legislation might be necessary at a time of national crisis, such as during the pandemic, both conclude that this government by diktat needs to stop: “a critical moment has been reached when Parliament as a matter of urgency should take stock and consider how the balance of power must be re-set afresh. Not restored does not mean just returning to how things were immediately before the pandemic, but reset afresh. If Parliament is being asked to accept new methods of legislating, then it is surely right that the government must stand ready to accept new methods of scrutiny and of holding them to account.”

Both reports highlight other areas of concern including the blurring of lines between legislation and simple guidance and the use of guidance to fill gaps in legislation, the poor quality of legislation and supporting information, the use of Henry VIII powers which enable ministers to change or repeal Acts of Parliament using secondary legislation, and the use of tertiary legislation enabling ministers to give powers to themselves or others to make law.

Considering the concerns raised, the reports offer several solutions and make a number of recommendations.

First and foremost, the report calls for the Cabinet Office Guide to Making Legislation to be amended so that it is clear to departments that they must base their decisions about the delegation of powers to ministers on the principles of parliamentary democracy and not political expediency.

Other recommendations include:

• A commitment by the Government that skeleton bills should only be used in the most exceptional circumstances. When used they should be accompanied by a declaration that they are skeletal, with a full justification for the approach adopted and setting out the safeguards in place to ensure that the lack of scrutiny at the primary legislation stage is recompensed by enhanced scrutiny at the secondary legislation stage.
• A commitment by the Government that, where regulations need a full impact assessment, the impact assessment should be laid at the same time as the instrument. Where a formal impact assessment is not required, the explanatory memorandum (notes) accompanying the instrument should contain enough information to highlight and make clear the effects of the instrument.
• A commitment by the Government that where regulations contain a delegation of power (to make tertiary legislation), then the explanatory memorandum accompanying the instrument makes this clear with a full justification for the grant of such power.

The Committees also suggest that end of session reports from both committees along with relevant reports from the Joint Committee on Statutory Instruments and the Constitution Committee should form the basis of regular debates in the House on issues relating to the balance between primary and secondary legislation, the quality of legislation and the provision of supporting explanatory materials.

Commenting on the reports Lord Blencathra, Chair of the Delegated Powers and Regulatory Reform Committee said:

“Legislative scrutiny really matters and while this report is full of parliamentary language and technical procedural explanations bordering on abstract constitutional essays or debate, the issues raised are relevant on a far more basic and everyday level.

“The way our laws are made can have a profound effect upon every aspect of our lives, granting rights, imposing obligations and involving enforcement measures possibly including criminal sanctions and imprisonment. As such it is imperative that the substantial shift in power from Parliament to ministers that has occurred over the years even prior to Brexit and Covid should be rebalanced.

“We believe that a critical moment has been reached where action is needed to bring about a significant change in the way in which legislation is framed so that it is, first and foremost, founded on the principles of parliamentary sovereignty, democracy, the rule of law and the accountability of the executive to Parliament.

“The Government must follow our new guidance so that when they draft new bills they will focus not on their ease of passage through Parliament without appropriate scrutiny, but with a duty to consider that our democracy demands that Parliament is supreme and acts as a check on the Executive.”

Also commenting Lord Hodgson of Astley Abbotts, Chair of the Secondary Legislation Scrutiny Committee said:

“These reports from our two committees are a blunt warning, that hundreds of laws are being imposed on all of us, in effect by government diktat, with no effective scrutiny and control by Parliament.

“Increasingly the Government has made use of secondary legislation, regulations and orders which are subject to a much lower level of scrutiny than primary legislation. Given this, it is not surprising that the executive can be tempted to put as much of the law as possible into regulations.

“At a time of national crisis, as during the pandemic when urgent action is required it may be necessary to pass laws speedily with the minimum of parliamentary process. However, government by diktat must not become the norm and the balance of power between the Parliamentary and the Executive must be reset to ensure effective legislative scrutiny resulting in laws that are necessary, which address the issues they are intended to resolve without creating further issues or resulting in other unintended consequences because they are unclear.

“Our reports set out solutions to arrest this development and we would urge the Government to heed our call to follow them and restore power to Parliament to effectively perform its role”.