Legislation: Skeleton Bills and Delegated Powers

Baroness D'Souza Excerpts

Thursday 6th January 2022 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, the following blunt phrases crop up repeatedly in the authoritative committee reports Democracy Denied? and Government by Diktat:

“a critical moment has been reached … signing a legislative blank cheque … should be used only in the most exceptional circumstances … striking and disturbing recent developments … egregious erosion of democratic accountability … wide and ill-defined delegated powers … The New Despotism … disguised legislative instruments”.

These phrases, and those such as

“most draconian powers ever seen in peacetime”,

indicate disquiet at the increasing use of skeleton Bills where the meat, both policy and technical, is supplied by means of secondary legislation, including Henry VIII powers, statutory instruments, tertiary legislation and guidance.

The recent upsurge in concern about the relationship between the Government and the Executive is by no means a new phenomenon. Parliamentarians were voicing similar concerns in the Donoughmore committee in 1932, the Jellicoe committee in 1992 and ever since in various articles, debates and lectures, notably the lecture on Henry VIII powers given by the noble and learned Lord, Lord Judge, at King’s College in 2014.

Clearly, there is a place for delegated legislation, but the democratic problem arises when Governments seek to push policies into secondary legislation, thereby depriving them of proper, sustained debate and amendment. This happened during the passage of the Brexit Bill and with the emergency Covid legislation. In recent years the Government have thus exercised an authority over lawmaking that goes well beyond the filling in of technical and administrative gaps, and strays into issues of policy and principle.

It has become a habit, and one which we in this House are reluctant to confront; we all remember to our cost the Strathclyde report of 2015, following the vote on the tax rebates secondary legislation. This, as noble Lords will recall, was an executive order and was challenged because of a very recent report indicating that acceptance of the policy as set out in the order would immediately catapult several hundred thousand families into dire poverty. Following a Motion to Regret, on which noble Lords overwhelmingly voted “content”, subsequent discussion at government level revolved around how to ensure that the wishes of the elected House were not thwarted. However, as we all know, the real issue was, and is, the relationship between the Government and the Executive.

Parliamentary scrutiny is a good thing; it is in fact the raison d’être of this House. What must never be minimised is the democratic process that enables the operation of parliamentary sovereignty on a daily basis and not just at elections. Again, as the noble and learned Lord, Lord Judge, has said:

“At the heart of the development of our constitutional arrangements, Parliament is there to protect us from authoritarianism, from despotism, from an over mighty monarch, but also from an over mighty executive.”


The two reports in question offer some solutions to this disturbing trend. Perhaps the most radical are those that seek to reset the balance of power. These might be initiated by Ministers taking on the responsibility of making reasoned decisions on whether or not a Bill should include delegated legislation and publishing these reasons in advance. The guiding principle here would be that such legislation is drafted only in the most exceptional circumstances and where the use of delegated legislation can be fully justified.

Finally, I suggest that the oxymoron of “mandatory guidance” should be immediately removed from the parliamentary lexicon.

The time has come to address this trend, and the Minister is earnestly entreated to take these reports very seriously and act upon them because, as the noble Baroness, Lady Cavendish, made absolutely clear, it matters.