Two House of Lords committees – the Secondary Legislation Scrutiny Committee (‘SLSC’) and the Delegated Powers and Regulatory Reform Committee (‘DPRRC’) – warned last week in two new damning reports that the power imbalance between Parliament and the Government needs an urgent re-set. Failure to do so risks inadequate legislation becoming the new normal. The long-term implications could be harmful to millions of people across the UK.
By Joanna George
Research Associate, University of Cambridge
The word ‘diktat’ sounds as strikingly severe as its actual meaning. It originates from 1919 Germany when the Germans considered the Treaty of Versailles (which brought World War I to an end) a ‘diktat’ because the treaty was dictated to them, as opposed to consensually consulted on. Yet it is this word – as well as other foreboding ones – that the SLSC deliberately chose last week when it published its report ‘Government by Diktat: A call to return power to Parliament‘.The report highlights the increasing tendency of all UK Governments in recent years to ‘by-pass Parliament’s role in the legislative process’ leading to ‘hundreds of laws being imposed on all of us, in effect by government diktat’.
The intention behind the report is to provide a ‘stark warning’ about the balance of power being shifted to the Government at the expense of parliamentary power. In parallel with this, the DPRRC published its report ‘Democracy Denied? The urgent need to rebalance power between Parliament and the Executive’ on the same day to emphasise how urgent it is for Parliament to ‘take stock and consider how the balance of power can be re-set’. The alarming consequences of not doing so may lead to Britain’s balance of constitutional powers being beyond recognition in a matter of years.
Both reports simultaneously condemn the growing trend of using skeleton bills, which are broad delegated powers that lack well-thought through policy details. Instead, they provide little account of operational, administrative, or technical details, leaving these to be filled in by Ministers or other members of the executive. In practice their use, which has been accelerated by Brexit and the Covid-19 pandemic, avoids effective parliamentary scrutiny when these provisions are enacted. Skeleton Bills are ‘so devoid of content that they leave the real operation of the law to ministers and secondary legislation’. The DPRRC uses the legal examples of ‘granting rights, imposing obligations, involving enforcement measures possibly including criminal sanctions and imprisonment’ to illustrate the significant power that skeleton bills confer.
This is concerning as it denies Parliament and MPs a clear understanding of what they are actually being asked to approve. This is confusing for MPs and citizens alike who have to work and live with this vague legislation. Considering that parliamentary scrutiny is one of the core functions of MPs – with some of them recently criticised for having second jobs which take them away from their vital parliamentary work of scrutinising legislation – these bills effectively undermine the role of MPs in the parliamentary process. It’s no surprise then that both reports consider the use of skeleton bills to be ‘rarely justified’.
Particular criticism was drawn to the ‘most striking and disturbing recent development’ of ‘disguised legislation’ whereby ministers make laws through ‘guidance, determinations, protocols – often not subject to parliamentary scrutiny’. This method of bypassing and gradually eroding constitutional principles is a wake-up call for British democracy and citizens who are largely unaware of such methods being used by the Government. It also makes it extremely difficult for citizens to be aware of the rules that are meant to guide their action. It can be particularly confusing when guidelines appear to go beyond legal requirements – as was seen with regard to the rules regarding the first ‘lockdown’ in regard to the Covid-19 pandemic.
A number of practical action points have been made in response to these concerns, with both committees agreeing on two key steps. Firstly, significant amendments to the Cabinet Office Guide to Making Legislation should be made to include an explicit assertion of the fundamental principles of parliamentary democracy (in contrast to political expediency) as the basis for the way in which bills are framed. Secondly, that the balance between primary and secondary legislation, the quality of legislation, and the provision of supporting explanatory materials should be accentuated. By way of example, the DPRRC has recommended that should the Government introduce skeleton legislation it should be accompanied by a declaration with a full justification for adopting that approach, including why no other approach was reasonable to adopt and how the scope of the skeleton provision is constrained.
It’s worth noting the cross-party consensus, significant constitutional experience and detailed comments that has contributed to the observations made in the reports. As highlighted by Joshua Rozenberg, the combined total of both committees’ members’ parliamentary experience is more than 520 years. This is an important point to observe as it confirms that the culture of Whitehall (which refers to the Government) has historically and detrimentally changed in recent years with the concerning trend of relying on delegated legislation (as opposed to primary legislation) when it is politically expedient.
Can we envisage what Whitehall will be like in a decade or a century from now based on current trends? What will parliamentary sovereignty, the rule of law and the accountability of government to Parliament come to mean to modern citizens in the UK if nothing changes? Only a serious shift in culture and greater respect for legislation and its implications for people affected by it in their daily lives will lead the executive away from using the delegation of legislative powers ‘as a matter of political expediency’ to one of greater consideration for the function it provides in a parliamentary democracy.