The government should only reject peers’ advice about the use of secondary legislation to enact key parts of legislation like the Civil Liability Bill if there are “clear and compelling reasons”, the House of Lords constitution committee said today.
The committee described the government’s use of delegated powers as “increasing and constitutionally objectionable” and warned it that the “constitutional restraint” shown by peers towards challenging secondary legislation could be undermined.
Earlier this year, the government largely rejected advice put forward by the House of Lords’ delegated powers and regulatory reform committee (DPRRC) that key measures in the Civil Liability Bill should feature in primary, not secondary, legislation.
In a report published today on the broader issue – which did not refer specifically to the bill – the constitution committee said ministers should follow the recommendations of the DPRRC unless there were “clear and compelling reasons not to do so”.
In the case of the Civil Liability Bill, the DPRRC recommended that the government should set out the definition of whiplash and the levels of compensation for claimants under the tariff scheme on the face of the bill, rather than in secondary legislation.
It also said judges, rather than the Lord Chancellor, should set the new tariff and that the Lord Chancellor should not be granted powers to make provision for damages relating to ‘minor psychological injuries’ caused by a whiplash injury.
The government acceded to putting a definition on the face of the bill, but not the tariff and introduced an amendment only that the Lord Chancellor must consult the Lord Chief Justice before setting the tariff.
The bill is set for its ‘ping pong’ stage today, during which the different versions of the bill approved by the Commons and Lords are reconciled. It is highly unlikely that the Lords will make any further changes.
The constitution committee said the government should accept the recommendations of the DPRRC “more frequently” and ensure that the lessons from its reports are applied to future bills.
“As part of our scrutiny of bills, and from the work of the DPRRC, we have identified a number of recurring problems with delegated powers.
“We have observed an increasing and constitutionally objectionable trend for the government to seek wide delegated powers, that would permit the determination as well as the implementation of policy.
“In recent years the government has sought to create criminal offences and establish public bodies through delegated powers. This is constitutionally unacceptable.”
Members of the constitution committee include former Lord Chief Justice, Lord Judge, Conservative solicitor Lord Hunt of Wirral and Lord Pannick QC.
The committee went on: “Delegated powers should be sought only when their use can be clearly anticipated and defined. Broad or vague powers, or those sought for the convenience of flexibility for the government, are unacceptable.
“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.
“Where broad powers are sought, the government should publish draft secondary legislation to allow parliament to assess their potential usage.”
The committee warned: “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.”
Baroness Taylor of Bolton, chair of the constitution committee, added: “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.”