The government’s increasing reliance on delegated powers rather than primary legislation to determine policy, create criminal offences and establish public bodies is 'constitutionally objectionable’, a hard-hitting report by a House of Lords committee warns today.
The Constitution Committee’s report follows widespread criticism of the inclusion of so-called Henry VIII powers in the the European Union (Withdrawal) Act. Such powers, which permit changes to primary legislation to be made through secondary legislation are a departure from constitutional principle, the committee says. 'Primary legislation, subject to lengthy and detailed parliamentary scrutiny, should not be amended by the lighter-touch processes of secondary legislation other than in exceptional circumstances.’
Recent examples of acts in which secondary legislation has been used inappropriately to give effect to significant policy decisions, include the Childcare Act 2016 and the Housing and Planning Act 2016, witnesses told the committee.
It has harsh criticism for 'skeleton bills’, where a government has 'committed themselves to doing something and do not know quite what to do’. Recent examples include the Cities and Local Government Devolution Bill and the Childcare Bill. It concludes: 'Skeleton bills inhibit parliamentary scrutiny and we find it difficult to envisage any circumstances in which their use is acceptable.’
Committee chair Baroness Taylor of Bolton (the Labour former MP Ann Taylor) warned that parliamentary tolerance for the practice of delegating powers is wearing thin: 'Parliament has rarely rejected secondary legislation, and this remains the right approach. However, such restraint may not be sustained if the government persists in the inappropriate use of delegated powers.
'We remind the government that defeat on a statutory instrument need not be considered momentous or fatal. The government can always lay a revised instrument the following day to respond to parliament’s scrutiny and correct deficiencies.’