Lords call out "objectionable" Government use of delegated powers
The Government’s escalating use of so-called "Henry VIII" powers is constitutionally objectionable, a House of Lords committee claims today.
A report by the Constitution Committee, part of an ongoing inquiry on the legislative process, criticises the increased use of delegated powers by the Government. Seeking broad delegated powers that permit the determination as well as the implementation of policy is “constitutionally objectionable”, it concludes, as is the use of such powers to create criminal offences and establish public bodies.
On the criteria for the use of delegated powers laid before the committee by the Government, the report comments: "If these criteria were rigorously applied, we would have fewer concerns with their use. We do not accept that there is a 'high threshold' for the inclusion of delegated powers in bills, and it is unacceptable that the delegation of power is seen by at least some in the Government as a matter of what powers they can get past Parliament. It is a responsibility for all, including parliamentary counsel, to uphold constitutional standards in relation to delegated powers."
While recognising that delegated powers are necessary, allowing Parliament to focus on important policy frameworks and decisions and leave the detail of implementation to secondary legislation, the report states that broad or vague powers sought by the Government for convenience or flexibility are unacceptable. Secondary legislation has been used inappropriately to give effect to significant policy decisions.
It adds that the Government must provide a full and compelling justification for all delegated powers and it is for Parliament to decide whether that justification is acceptable.
In particular, Henry VIII powers, which permit changes to primary legislation to be made through secondary legislation, are a departure from constitutional principle.
The peers say the Government must take more account of parliamentarians’ concerns when deficiencies in statutory instruments are identified. If it does not, in exceptional circumstances Parliament should use its powers to block such instruments and require the Government to think again.
Committee chair Baroness Taylor of Bolton commented: "We are very concerned about the increasing use of broad delegated powers by successive Governments. Delegated powers should not be sought purely for the convenience of the Government, especially where it is hard for Parliament to assess how they might be used.
"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."
The report concludes: "If the Government’s current approach to delegated legislation persists, or the situation deteriorates further, the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained."