House of Lords Committees criticise Government for growing use of skeleton legislation and the shift in power from Parliament to the executive
Chairs of three influential House of Lords Select Committees, with responsibility for scrutinising all legislation before Parliament, have written to the Rt Hon. Jacob Rees-Mogg MP, Lord President and Leader of the House of Commons, and the Rt Hon. Michael Gove MP, Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, expressing their deep concern about the growing tendency for the Government to legislate using bills that confer such wide-ranging powers on ministers and contain so little detail about how those powers will be used that they are described as “skeleton” bills.
Use of skeleton legislation is, the Chairs say in their letter, “a constitutionally fundamental issue”, not only in terms of the balance of power between Parliament and the executive but also in terms of “the relationship of trust between government and the public at large”.
The Constitution Committee, Delegated Powers and Regulatory Reform Committee and Secondary Legislation Scrutiny Committee, in a letter dated 25 September, have asked the Government to provide the following assurances:
- That skeleton bills will be used only in exceptional circumstances, when no other approach is available, and the scope of the powers conferred will be as limited as possible;
- That statutory safeguards will be provided for to ensure full parliamentary scrutiny of the exercise of the powers conferred; and
- That the explanatory document accompanying a bill – known as the delegated powers memorandum – will identify, where appropriate, that it is a skeleton bill or includes skeleton provision, provide a full justification for adopting that approach and set out the statutory safeguards put in place to protect the role of Parliament.
The Select Committees acknowledge that exceptional events – in particular, the COVID-19 pandemic and UK withdrawal from the European Union – call for exceptional legislation. Even so, bills introduced into Parliament in response to these events have been extraordinary in the extent to which they have permitted a shift in power from the legislature to the executive.
Responding to the letter Mr Rees-Mogg acknowledged that it raised important matters and agreed that “bills with substantial powers … should not be a tool to cover imperfect policy development”. He added however that there would be occasions when the Government would “need to rely heavily on delegated powers”, particularly in times of urgency.
Baroness Taylor of Bolton, Chair of the Constitution Committee said:
“We welcome the confirmation from Jacob Rees-Mogg that substantial powers should not be a tool to cover imperfect policy development. However, given the Government’s approach to many recent bills, our committees will continue to scrutinise legislation closely for inappropriate delegated powers.
“We have replied to the Leader of the Commons with a series of further questions about the quality of legislation, including on the work of the Parliamentary Business and Legislation (PBL) Cabinet committee, the role of Parliamentary Counsel, and guidance for lawyers across Government. We look forward to his reply and further engagement on these important issues.”
Commenting on the Government’s response, Lord Blencathra, Chair of the Delegated Powers and Regulatory Reform Committee said:
“Effective scrutiny and legislative certainty are at the heart of good governance and not simply a preference of parliamentarians. While no-one could dissent from the view that we are living in exceptional times which have given rise to a need for exceptional powers, we agree with Mr Rees-Mogg that a legislative approach necessitated by a crisis does not “provide a model example of how Parliament would like to see legislation brought forward".
“We urge him to remind Secretaries of State of the fundamental importance of providing a thorough and convincing delegated powers memorandum which sets out, clearly and transparently, the full justification for the powers being sought”.
Lord Hodgson of Astley Abotts, Chair of the Secondary Legislation Scrutiny Committee said:
“We welcome Mr Rees-Mogg’s acknowledgement of the important scrutiny work undertaken by the three Committees, and also the importance of the issues raised in our letter.
“Whereas the Constitution Committee and the DPRRC examine the skeleton bills – the primary legislation – and the powers conferred by them, the SLSC looks at the laws Ministers make when exercising those powers – the secondary legislation.
“In recent months, one particular concern has been about the exercise of powers where their purpose has been to address the temporary crisis of the pandemic, but where their effect is permanent. We have in mind, for example, the significant and far-reaching changes made by the Town and Country Planning (General Permitted Development) (England)(Amendment)(No. 2) Order (and related instruments) and question whether they would have been more appropriately addressed in a future planning bill.
“We urge the Government to ensure departments do not use the exceptional powers given to them by Parliament to address temporary measures during the pandemic as a means for effecting longer term, post-pandemic changes which would more properly be included in primary legislation.”