Two Lords committees say Strathclyde Review recommendations would benefit Government at the expense of Parliament
Two House of Lords Committees, the Constitution Committee and the Delegated Powers and Regulatory Reform Committee (DPRRC), have today published reports in response to the recent Strathclyde Review of the House of Lords' role in the scrutiny of secondary legislation.
The Strathclyde Review was set up by the Government in response to the House of Lords' decision to decline to consider draft regulations which would have made significant changes to the thresholds and rates at which tax credits could be claimed, until certain conditions were met.
Both Committees are critical of the focus of Strathclyde Review with the DPPRC saying the Review is "based on a misunderstanding about the difference between primary and delegated legislation". The Constitution Committee states that the review is "not a proper basis for determining constitutional change" and that proceeding with changes to Parliament's role based on the Review "will only damage Parliament's role and reputation".
The Committees share the view that the remit of the Strathclyde Review was misguided. Both Committees reiterate serious concerns about successive governments proposing primary legislation containing broad and poorly-defined delegated powers. The Constitution Committee states that as a result "delegated legislation has increasingly been used to address issues of principle and policy, rather than to manage administrative and technical changes." The DPRRC notes that weakening parliamentary scrutiny of delegated legislation, as proposed by Lord Strathclyde "would tilt the balance of power away from Parliament … towards Government."
The Constitution Committee states that by tasking Lord Strathclyde to consider the relationship between the two Houses, rather than between Parliament and the Government "the Government focused his Review on the wrong questions … consequently it addressed the wrong issues". Both Committees therefore recommend that the Government should not seek to move forward with proposals based on the Strathclyde Review without further consideration, by both Houses, of the delegated legislation process in its entirety.
Specific conclusions and recommendations in each report include:
- The House of Lords' rejection of the tax credits regulations did not represent a constitutional crisis.
- The starting point for reviewing how Parliament scrutinises government should not be how the Government can secure its business. Instead the focus should be on how Parliament can perform its scrutiny role effectively.
- The Government should consider the extent to which it is appropriate to make legislative changes with significant financial implications through delegated legislation. The House of Commons already has its financial privilege assured in relation to measures contained in finance bills.
- The Government should recognise the need for restraint in its use of delegated powers and take care to ensure that proposals for delegated powers are appropriately detailed and narrow in scope.
- The Committee undertakes to ‘sharpen its teeth' and, where substantial powers sought in the bill are not adequately explained, the Committee reserves the right to call in Ministers to justify the powers sought.
- Furthermore the Committee suggests it should be given the power to hold legislation back under a ‘scrutiny reserve' until a proper explanation has been provided.
- A Joint Committee of the House of Commons and House of Lords should be established to reflect properly on the crucial question of Parliament can effectively perform its role in scrutinising delegated legislation.
Commenting Lord Lang of Monkton, Chairman of the Constitution Committee, said:
"The Strathclyde Review was asked the wrong questions by the Government. The role of the House of Lords in rejecting the tax credits regulations was not about the House of Lords versus the House of Commons; it was about Parliament scrutinising the Government.
"These events have, however, brought our growing concerns about successive governments' use of delegated legislation to the fore. We hope that both Houses will take this opportunity to consider the delegated legislation process in its entirety and address the concerns expressed by us and many others about primary legislation that contains broad and poorly-defined delegated powers, including Henry VIII powers, that give too much discretion to ministers."
Baroness Fookes, Chairman of the Delegated Powers and Regulatory Reform Committee, said:
"I welcome this Review for shining a spotlight – perhaps unintentionally – on the unfortunate tendency of successive governments to leave substantial issues of policy and principle to be dealt with by delegated legislation instead of setting them out on the face of the bill.
"At best this is sloppy practice, and at worst it gives Ministers far too much power to do whatever they want without sufficient scrutiny by Parliament.
"As a Committee, we are going to be more demanding of Ministers. If they seek substantial and wide powers without adequate explanation, we reserve the right to call them before us to explain themselves."