The long and winding road: reforming delegated legislation

So I was looking up a report for this post and I had what can only be described as a Moment of Clarity. I realised that I was sitting in a dingy and dusty room in the back of the library working a forty-year old microfiche reader which took the guts of an hour to figure out all so I could just about read an eighty-year old government report which took over an hour to find. There are moments when I question my sanity…

Still, it was good to finally read the Lord Donoughmore’s 1932 Report of the Committee on Ministers’ Powers (placed before the House of Commons by command of His Majesty apparently – how kind of him). Half the report is dedicated to examining the safeguards around delegated legislation.

Just to be clear, that’s legislation which doesn’t go through parliament in a bill but is made by ministers and Parliament often has to approve it in some way. There are three main ways of doing this: after the minister has received representations both houses can debate a committee report on the legislation, and both houses can make a resolution to approve it (the ‘super-affirmative procedure’, rarely used) by resolution of both houses (the ‘affirmative procedure’, more common) or by either house not approving a resolution to annul it within a certain time limit (the ‘negative procedure’, most common).

A bit of background: one of the best known times that Parliament gave away power to the Crown was in 1539 with the Statute of Proclamation. This gave King Henry VIII the power to create, amend or repeal legislation without even having to look to Parliament. It was repealed on his death in 1547, but his name lives on in what are now colloquially called Henry VIII clauses: where power is given to a minister to amend or repeal primary legislation without needing to look to Parliament. In the 19th and early 20th Century they became rather more widespread, but they were each devised for the bill they went into, with no coherent standards or logic behind their safeguards and extent.

By 1929, the then Lord Chief Justice of England Viscount Hewart wrote a book, The New Despotism, which discussed among other things how ministers were making delegated legislation which was untouchable by Parliament or the Courts. This, perhaps understandably, caused a bit of a ruckus and a committee was appointed to have a look at the issue.

Their main recommendations on delegated legislation were:

  1. Adopting common categories for delegated legislation and putting in a systematic framework for their operation
  2. All delegated legislation should have clearly defined limits in the bill
  3. Henry VIII clauses should be abandoned in all but the most exceptional cases
  4. All Henry VIII clauses to expire a year after enactment and to be explicitly and solely for the purpose of putting the Act into operation
  5. Delegated legislation that is not justiciable should be abandoned in all but the most exceptional cases
  6. Any delegated legislation that is not justiciable must explicitly state so and must have a three to six month period where it can be challenged (emergency legislation excepted)
  7. If it is not stated that the delegated legislation is non-justiciable, then the language in the bill should not even suggest that it is.
  8. The Rules Publication Act 1898 should be amended to ensure: a) all exceptions to regulations being laid before Parliament should be removed; b) all rule-making bodies making *provisional* regulations should have to lay them before Parliament; c) Section 3 should apply to provisional regulations; d) Any regulation coming into operation should be published; e) the Documentary Evidence Acts should apply to all registered statutory rules and orders
  9. No law should provide an exception to this
  10. Consultations should take place on delegated legislation wherever practical
  11. Explanatory notes should explain delegated legislation where possible
  12. The default procedure for all regulations should be the negative procedure (Parliament doesn’t vote for them, but can vote against them) except where Parliament wants the affirmative procedure (Parliament votes for them)
  13. Standing Orders of both Houses should require explanatory notes to draw attention to any delegated powers in bills and explain how they would be used and any safeguards that exist
  14. A committee of each House should be set up to report on all acts with delegated powers after first reading to ensure they have adequate safeguards and comply with the guidelines set out, and to report on all delegated legislation laid before Parliament
  15. All delegated legislation should be drafted by legal experts, perhaps parliamentary counsel

That all seems quite sensible in the circumstances. But these recommendations weren’t even half-seriously acted upon until 1946 after five ministries had gone by. The sixth, under the legendary chairmanship of Clement Attlee, proposed the Statutory Instruments Act to attempt to address the half of the report on delegated legislation (the other half, on tribunals and quasi-judicial decision-making, wasn’t acted on until 1958, an extra three prime ministers). Clement Attlee’s time in office wasn’t a good time for Parliament. Just having come out of the second world war Parliament was still acting under the standing orders adopted during that time and members’ freedoms were not well adhered to – members could not propose bills or motions until the fifties for example. Bill after complex bill swept through Parliament establishing the welfare state and nationalising key industries. MPs were, relative to before the war, relatively quiescent in challenging their party. One of Attlee’s concessions to Parliament was putting a statutory framework in for delegated legislation and ensuring they are all published. So far so good – recommendation one sorted with eight and nine seemingly solved too.

What about number two on clearly defined limits? Well, some of these clauses do indeed say that they should be used only for the general purposes of this act as the minister considers appropriate but I don’t have time to trawl through eighty years of Acts of Parliament. Either way I wouldn’t call that a clearly defined limit. This one has not been completed.

Now onto the third and fourth: Henry VIII clauses. Research conducted recently shows that upwards of 120 such clauses in the session 08-09. That’s a no to their use being vastly curtailed then. As far as I can tell these powers are not often, if ever, time limited either. In the same vein as above, some of these clauses state that they should be used only ‘for the general purposes of this act’ but they still have the caveat ‘as the minister considers appropriate’. So, that’s recommendation three not completed and four half-fulfilled at the very most and that’s stretching it. I can’t trace a date for it either.

For five, six and seven, as I understand it, all delegated legislation is amenable to judicial review these days thanks to the House of Lords judgment in Anisminic v. Foreign Compensation Commission of 1968: a total of eleven premierships since the report. That’s three of them implemented above and beyond what the report recommended. Even if it was technically the judges who did it and not Parliament.

Ten requires consultations wherever possible – it appears that ministers do tend to consult on statutory instruments though it has been noted they don’t often do it very well. Perhaps a half complete is appropriate here.

Recommendation eleven on explanatory memorandums for delegated legislation has been completed, but I can’t find a date when it happened. I’m assuming it coincided with the Statutory Instruments Act 1946 because most if not all the sample of statutory instruments I checked had explanatory notes attached.

Twelve looks at letting Parliament annul all delegated legislation. HMSO’s Statutory Instrument Practice looks at the issue and shows that not only does not all delegated legislation have to be annullable by Parliament, not all of it even has to be laid before it. Another recommendation unfulfilled.

Number thirteen, on the Standing Orders of both Houses requiring explanatory notes on all delegated powers, isn’t complete. Neither House’s Standing Orders require explanatory notes.

What about the fourteenth? It wasn’t until 1992 (a whole sixteen premierships since the report!) that the House of Lords set up the Select Committee on Delegated Powers, which examines bills to check whether they are appropriately delegating powers, and it was only in 2003 that they set up the Select Committee on the Merits of Statutory Instruments, which flags up statutory instruments which it finds interesting or important. The House of Commons has yet to establish similar committees though the Commons’ Procedure Committee has been lobbying for them since 1996. So number fourteen is half complete.

The final recommendation is about the drafting by legal experts of all delegated legislation. Fortunately, they are now drafter by legal advisers, so this counts as a yes.

So, in preparation for the Oak (apparently) Anniversary of the Committee on Ministers’ Powers, where does Parliament stand on delegated legislation?

  1. Complete – fourteen years post report
  2. Not complete
  3. Not complete
  4. Half complete at best – date unknown
  5. Complete, but by the hand of the judiciary/judicial House of Lords – thirty-six years post report
  6. Complete, see above – thirty-six years post report
  7. Complete, see above – thirty-six years post report
  8. Complete – fourteen years post report
  9. Complete – fourteen years post report
  10. Half complete – date unknown
  11. Complete – date unknown
  12. Not complete
  13. Not complete
  14. Half complete, the House of Lords only – sixty years and seventy-one years post report
  15. Complete

All in all not a stunningly quick nor effective response from our Lords and masters, although it should be said their Lordships are making rather more of an effort than their masters down the corridor.

You might wonder what inspired me to look into this benighted subject. In what I almost hope becomes a judicial tradition, the current Lord Chief Justice, Lord Judge, made a speech last year (it even made it into the papers*) at the Lord Mayor’s Dinner for the Judiciary in front of the Lord Chancellor and Secretary of State for Justice, Ken Clarke QC MP, condemning the wide-ranging powers in delegated legislation. Plus ça change…

*Killer quote? “It seems as unlikely that the courts will hold back from quashing ministerial decisions as it is that ministers will start repealing Henry VIII clauses – even though that could presumably be done without the need for legislation.”
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2 Responses to The long and winding road: reforming delegated legislation

  1. You should read Geoffrey Elton’s journal article on Henry VIII’s Act of Proclamation!

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