On 12th January 2022, the House of Lords debated a report from the Delegated Powers and Regulatory Reform Committee: Democracy Denied? The urgent need to rebalance power between Parliament and the Executive. The Bishop of St Albans spoke in support of the report’s recommendations on legislation and regulatory powers:
The Lord Bishop of St Albans: My Lords, as has already been noted by other speakers in this debate, delegated legislation is indeed a necessary part of the process, but I echo the concerns about the increasing use of skeleton legislation, Henry VIII powers, disguised legislation and tertiary legislation. I support these two excellent reports that look at how we might limit the use of delegated legislation and address the culture that is now taking it for granted. Both committees highlighted very valid concern about the transfer of power from Parliament, with clear democratic oversight and public scrutiny, to instead ruling by Executive edict.
The past few years have been turbulent times, although probably if anybody looked back over any decade in the life of this nation they would see that there have always been turbulent things happening. Therefore, I guess it is easy to understand why the Executive may need to respond in unusual and challenging circumstances with delegated authority. However, it is absolutely crucial that this is done sparingly and in a transparent manner. The Government’s response to the pandemic is the classic example of this. Of course, there are times when a national emergency will demand that we fast-track legislation, or grant broad delegated powers, but those should be exceptional and rare cases. The Government must always recognise the importance and value of parliamentary scrutiny. What is concerning, as is brilliantly highlighted in these reports, is that the Government’s widening use of delegated legislation is not limited to emergencies but is now being used routinely.
We were promised by this Government that we would “take back control” by putting power back into the hands of the British people through Brexit, but it looks as though the opposite is in fact happening. The DPRRC report has described Brexit-related Bills as some of the “starkest examples” of disguised legislation. A year ago, the noble Lord, Lord Lisvane, who is speaking later in the debate, summed it up perfectly when he said:
“The real losers are our citizens.”—[Official Report, 6/1/22; col. 780.]
It is for them that we are standing here today, to appropriately scrutinise the laws that affect their daily lives. To take this away from them is to do all of us a great disservice.
His Majesty’s Government would be advised to think very carefully about the use of skeleton Bills, Henry VIII powers and so on, as they will have no grounds for complaining if a future Government of another political persuasion use the very same powers. If this becomes the norm, any Government will take it for granted that they can ignore scrutiny by Parliament. As a minimum, we need policies that have the support of both Houses and all parties and clear principles on what needs primary legislation and what can, in exceptional circumstances, be dealt with by delegated legislation. We also need to agree on more effective ways for Parliament to scrutinise things such as statutory instruments.
Parliamentary scrutiny is one of the core constitutional functions, and the Government need to have a willingness to be scrutinised, particularly on any matter relating to the rights of the individual: their privacy, security and right to speak or assemble. So, from these Benches, I reiterate our support for the recommendations of these reports and some of the interesting material that is now being produced by the Hansard Society—which we will need to look at when we have, I hope, more time and leisure—and express my grave concerns about the shifting balance of power from Parliament to the Executive.
Extracts from the speeches that followed:
Baroness Altman (Con): I urge noble Lords to heed the words of John Adams:
“Remember, democracy never lasts long. … There never was a democracy yet that did not commit suicide.”
We are in danger, as the two reports point out. The rallying cry in 2015 of those angered by so-called EU edicts urged people to vote to leave the EU to ensure lawmaking power returned to our sovereign national Parliament. Parliamentary sovereignty means that Parliament is superior to the Executive. This is a cornerstone of our constitutional system. Replacing the fear of EU edicts with the reality of edicts from one political party’s handful of Ministers is obviously attractive to current leaders but must be resisted. The Government are not synonymous with the state.
EU membership never actually removed or overrode the UK constitution. Parliament always had the power to repeal the 1972 legislation which took us into the EU, but ironically, as the right reverend Prelate the Bishop of St Albans and these committees’ excellent reports have pointed out, not only has Covid legislation overridden some of our parliamentary scrutiny powers— this might be excusable on life and death, public protection grounds—but EU exit-related Bills have been at the forefront of those that seek to gather untrammelled powers to the Executive. Witness the Northern Ireland Protocol Bill or the Retained EU Law (Revocation and Reform) Bill, which is coming up, as so many noble Lords have mentioned.
Brexit has happened. I am not speaking about rejecting Brexit. This is about parliamentary sovereignty and our democracy. These are just the most egregious examples of proposals seeking to take away Parliament’s powers of scrutiny or amendment, replacing them with ministerial diktats.
There may be some confusion about the meaning of parliamentary sovereignty. Sometimes the term “parliamentary control” has been used, but I prefer to think of this as parliamentary protection of the public interest. Democracy is about representation of the people. Authoritarian dictatorship is about control of the people and transferring powers to an Executive. This vastly increases the risk that the rights of the minority could be trampled on by a narrow majority. I urge the Government to resist the attraction of acting with a cavalier indifference towards the concept of parliamentary scrutiny which is incompatible with the reality of parliamentary sovereignty.
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