August 9, 2016    10 minute read

Parliamentary Accountability And The Secondary Law Making Process

A Breakdown Of The Process    August 9, 2016    10 minute read

Parliamentary Accountability And The Secondary Law Making Process

Executive power in relation to the making of secondary legislation is rendered constitutionally acceptable by the presence of Parliamentary control, as illustrated most recently by the response of the House of Lords in October 2015 to the statutory instrument on tax credits, and also the possibility of judicial oversight – critically assess this statement.

This article will argue that executive power is constitutionally unacceptable due to the lack of effective democratic mechanisms. The exercise and role of secondary legislation are and has been of central importance in the British governmental system. Parliamentary control is evident through the recent tax credit saga, accountability mechanisms (affirmative and negative resolution procedures) and Parliamentary committees. Judicial oversight through judicial review and the Human Rights Act of 1998 renders executive power more constitutionally acceptable. This is counterbalanced by executive power in times of emergency, control over the parliamentary timetable and lack of pre-legislative scrutiny. The secondary law making process casts doubt on the doctrine of parliamentary sovereignty, the rule of law and separation of powers. This article will also argue that executive power over secondary legislation is variable due to the different levels of scrutiny being applied to the Statutory Instruments (SI’s), Orders in Council and By-laws. Overall, a fresh inquiry must be sought as a pretext for the exercise of executive power over secondary law making, rendering it constitutionally unacceptable.

Different Ways Of Measuring

What is constitutionally acceptable may be judged on whether the making of secondary legislation is appropriate under the doctrine of separation of powers, the rule of law and parliamentary sovereignty. Primary legislation is made up of Acts of Parliament whereas secondary legislation is made by ministers under powers delegated by the legislative bodies of the UK. The extent of secondary legislation has led to the vast bulk of legislation being secondary rather than Acts of Parliament. Parliamentary scrutiny can be seen in light of the secondary law making process. Most SI’s are subject to the negative resolution procedure, meaning that they will become law unless one or the other House votes it down, which is a rare occurrence, and will cease to exist in 40 days. This occurred in 2000 when the Lords rejected the Greater London Authority Elections Rules (SI 2000/208). A minority of SI’s are subject to the affirmative procedure, meaning that they cannot become law unless approved by both Houses, providing a more stringent parliamentary control. Thus, the secondary law making process is accorded a patchy form of policy scrutiny due to the different processes of legitimising secondary legislation.

The tax credit saga conveys limits of executive power over secondary law making. The Tax Credit Regulations 2015 were subject to an expedited parliamentary process, thus much less onerous than passing a bill. The Lords rejected the Treasury’s decision to reduce tax credit thresholds. Although the Lords’ power was restrained in declining to pass a motion authorising the instrument under the affirmative procedure, many claim there is a convention restraining it from using that power at all. However, if caution were amplified into a convention requiring inaction, it would denature the only effective procedure there is for secondary legislation, freeing executive law making from all effective scrutiny. Nevertheless, the saga is evidence of effective parliamentary control through the Lords’ systematic rejection of secondary legislation, showing the extent to which executive power may be rendered constitutionally acceptable.

Controversies And Criticism

However, the application of the Henry VIII clauses has attracted a great deal of criticism, raising political concerns for parliamentary sovereignty, rendering it constitutionally objectionable. The clauses allow the executive to insert clauses into bills that allow for acts of Parliament to be amended or repealed via secondary legislation. Clause 1 of the Legislative and Regulatory Reform Bill making provision for “reforming legislation” produced significant uproar. The government made concessions, discounting the arbitrary provisions in the resulting Act, questioning the scope of Parliament’s ability to legislate on the basis that whatever Parliament enacts is law. This shows Parliament at its most effective in scrutinising government due to the great deal of cross-party, non-partisan work and debates on the floor of both Houses made more effective by timely reports from select committees. Hence, the application of Henry VIII clauses may be seen as more constitutionally acceptable due to the presence of parliamentary controls.

Executive power is stretched in times of emergency, upholding its political rather than constitutional connotation. Tomkins argues that the executive dominates the Commons by “abandon[ing] [the] notion that Parliament is the legislator.” The Civil Contingencies Act illustrates the broad remit of executive power allowing ministers to make emergency regulations where the situation is such that cumbersome legislative procedures cannot practically be used. Thus, although executive power over though politically acceptable due to its flexibility, it is constitutionally unacceptable through the lack of substantive checks.

The Lack Of Scrutiny

This lack of substantive checks is qualified by executive dominance over the parliamentary timetable and lack of pre-legislative scrutiny. The Parliamentary Voting System and Constituencies Bill (PVSC Bill) and the Fixed-term Parliaments Bill were met without any pre-legislative scrutiny. Mark Harper MP, in giving evidence to the House of Commons Political and Constitutional Reform Committee, stated that the PVSC Bill was “traumatic for the parliamentary process because we had a timetable and it obviously did take place quite quickly.”

Similarly, the Constitutional Reform and Governance Bill of 2010 was subject to the wash-up, reaching the Lords only a month before the expected date of dissolution, denying it the full parliamentary deliberation. This shows that executive power was constitutionally unacceptable through the poor quality of checks and balances provided by Parliament.

Parliament’s broader political form of scrutiny is seen in its technical scrutiny exercised by the Joint Committee on Statutory Instruments. This was seen in the complete rejection of the Draft Gambling Bill by three votes partly due to the prominent report by JSCI that was extensively quoted.

However, the lack of scrutiny was seen in the SI’s where the Act of Parliament conferred powers on local authorities to make delegated legislation in the form of By-laws. Wandsworth Borough Council was not subject to substantive scrutiny albeit approval must be sought from ministers responsible for local government. This shows the lack of scrutiny of By-laws questioning the democratic application of secondary law making.

The Select Committee on the Constitution noted regarding the Public Bodies Bill that unamendable delegated legislation will not provide a sufficient opportunity for parliamentary oversight. Its report criticised the use of Henry VIII powers, stating that it vastly extends Ministers’ powers to amend primary legislation by order and should be subject to adequate parliamentary oversight. The committee made a judgment that the Bill failed both tests, leaving the government to make amendments or leave the bill with the charge of unconstitutionality. The Coalition Government’s acceptance of objections is representative of effective scrutiny despite the Committee’s lack of formal legal powers.

Different Levels Of Scrutiny

Overall, the quality of scrutiny applied by Parliamentary committees is variable depending on the type of secondary legislation.

Judicial oversight makes executive power more constitutionally acceptable. Secondary legislation, unlike primary, is amenable to judicial review so the courts may quash it, nullifying its legal effect. The court ruled that the Minister of Labour acted ultra vires in Agricultural Training Board v Aylesbury Mushrooms, failing to follow the procedure in the enabling Act. In Javed, it quashed secondary legislation holding that the Secretary of State had been irrational regarding the treatment of women and members of the Ahmadi religious minority. In Witham, the Lord Chancellor acted ultra vires by setting fees contravening s130 of the Supreme Court Act 1981 and was impliedly limited by the common law right to access to the courts. This was a direct application of the rule of law to ensure that no one was above the law. Thus, the court appeared to show that if fundamental common law rights were at threat, every citizen had a right of unimpeded access to the court, rendering executive power more constitutionally acceptable by judges increasingly likely to apply the rule of law in declaring such legislation unlawful.

Ahmed demonstrates the practical limits on the doctrine of separation of powers with the executive having the capacity to make new laws, hence constitutionally unacceptable. The Order in Council was ultra vires under s1 of the United Nations Act 1946. Lord Hope underlined that the constitutional acceptance was dwarfed by the lack of parliamentary scrutiny, raising questions about the relationship between Parliament and the executive and about judicial control over the power of the executive. This endorses Bagehot’s fusion of powers theory of the reliance of the executive to dispense an unlimited delegation of the power to give effect to Security Council resolutions. The freezing of assets was an encroachment on personal liberty, hence a necessity to comply with the rule of law. Nevertheless, the government made a new law to offset parliamentary scrutiny.

The Stronger Arm

The Human Rights Act 1998 conveys a more potent check on executive power. As opposed to primary legislation, the courts may strike down secondary legislation. There had been a denial of the right to a fair hearing in R (Bono) v Harlow DC. There is an important distinction: where it is a duty to interpret all legislation in a consistent manner compatible with Convention rights, it goes beyond the long-established power of the courts to quash delegated legislation that is ultra vires. This shows that executive power over secondary law making is a more potent remedy of regulating executive power over secondary law making, hence more constitutionally acceptable.

To conclude, secondary legislation “is, if anything, under rather than over-scrutinised.” Though the Tax Credits Regulations 2015 was rejected, legislation made under the negative procedure is “effectively a power for the executive to legislate free from effective scrutiny.” It is the courts’ role [offering a more potent check] to regulate secondary legislation through judicial review and HRA by adhering to the [rule of] law to make sure citizens are adequately protected. Since executive authority derives from parliamentary sovereignty, when combined with a loose separation of powers, it renders executive power constitutionally unacceptable, yet politically expedient in times of emergency. The extent to which parliamentary control through committees is rendered constitutionally acceptable cannot be definitively assessed though there remains a fundamental question as to how far it goes in checking executive power. An inquiry must be launched to homogenise the quality of scrutiny. Therefore, executive power is rendered constitutionally unacceptable due to the practical limitations placed on the application of key constitutional principles as well as its lack of substantive checks with much secondary legislation circumventing the democratic process.

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