Lords warn of power shift from Parliament to executive

A warning has been sounded by a House of Lords Committee over a recent trend in legislation of delegating extensive but ill defined powers to ministers.

In its report on the 2015-16 parliamentary session, the Constitution Committee expresses concern about "a constitutionally inappropriate shift of power from Parliament to the executive". It highlights a number of bills such as the Cities and Local Government Devolution Bill, the Psychoactive Substances Bill, the Charities (Protection and Social Investment) Bill and the Childcare Bill as examples of vaguely worded legislation containing extensive delegated powers that would allow ministers a great degree of discretion when making regulations.

Referring to the Strathclyde review, which sought to curb the power of the Lords in favour of the Commons, the committee states that "The Government appears to be seeking greater discretion in how it implements and interprets legislation while simultaneously seeking to restrict the right of the House of Lords to subsequently scrutinise and approve or reject the Government’s use of delegated powers."

Similar concerns are raised in a separate report about the Children and Social Work Bill, one of the first bills introduced into Parliament this session. The committee states that when the House of Lords debates the bill, which applies to England & Wales, it may wish to consider whether the creation of a new regulator of social workers – and its powers and functions – should be detailed to some degree on the face of the bill to allow proper parliamentary scrutiny, rather than left entirely in the hands of the Secretary of State.

The report also points out that the bill would allow ministers to create new criminal offences by regulation. The committee asks the House to consider how it can be expected to scrutinise appropriately the creation of criminal offences when not only are the offences currently undefined, but they relate to other aspects of the bill which are also undefined and left to ministers' discretion.

Lord Lang of Monkton, who chairs the Constitution Committee, commented: "The Children and Social Work Bill continues a worrying trend in which Parliament is asked to agree legislation that is lacking crucial details that allow it properly to scrutinise Government proposals.

"Our political system relies on Parliament having the ability to scrutinise legislation through the full multi-stage process in both Houses. The Government’s reliance on legislating by regulation undermines that and risks poorly constructed proposals becoming law.

"The Children and Social Work Bill proposes giving the Secretary of State significant powers to establish a new social work regulator, to define its functions and powers, and to create new, and currently undefined, criminal offences. Changes of that nature should be set out in to at least some degree in primary legislation so they can be debated, scrutinised and improved. Instead, by giving the minister the power to make these changes by regulation, there is a risk Parliament will again be denied its proper role in holding the Government to account."