The forthcoming Great Repeal Bill will be the most prominent piece of enabling legislation since the controversial Public Bodies Act 2011.
The main provisions of that Act were heavily criticised at the time for the substantial Henry VIII powers it delegated to the executive. Its shortcomings should act as a warning to parliamentarians when considering similar powers within the Great Repeal Bill.
Today (14 February 2017) marks the end of the road for the ‘bonfire of the quangos’ and the controversial delegated powers that implemented the 2010-15 coalition government’s review of public bodies.
In a series of Henry VIII clauses, which give powers to ministers to amend and repeal primary legislation by secondary legislation, the Public Bodies Act 2011 allowed ministers to abolish, merge or amend the constitutional and funding arrangements of a number of public bodies listed in the Act’s schedules by Order. Today, those schedules lapse, with the remaining parts of the Act continuing on the statute book.
Parliament spent 14 months considering the Bill. During this time it was heavily criticised for the ‘wide and ill-defined’ legislative powers delegated to the executive. As a consequence, procedural safeguards were added in the House of Lords, creating Public Bodies Orders (PBOs), a new variant on the strengthened scrutiny procedure, which subjects certain powers to a higher level of parliamentary scrutiny than the affirmative procedure, and of which there are now 11 variants.
By the time Royal Assent was achieved on 14 December 2011, 285 public bodies were listed in the Act’s schedules, with the government envisaging that 58 Public Bodies Orders would be laid before the Act came to an end.
However, in the five years since the Act came into effect, the ‘bonfire of the quangos’ has failed to ignite. Only 31 (53%) of the 58 PBOs originally intended have been laid before Parliament, amending only 53 of the 285 public bodies set out in the Act’s schedules.1
No Public Bodies Orders have been laid since December 2014, and the House of Lords Secondary Legislation Scrutiny Committee (SLSC), the committee charged with scrutinising PBOs on behalf of the Upper House, has noted that a third of PBO proposals were dropped by the government within two years of the Act’s Royal Assent. Given that over 100 hours were spent in Parliament scrutinising the Bill, the SLSC rightly reiterated its concern that the outcome is ‘disproportionately small’ in comparison to the amount of parliamentary time and resource expended.
The SLSC has gone further in its criticism of what it calls the government’s, ‘unacceptably cavalier approach to the use of Parliament’s time’, in respect of the government’s decision to use pre-existing legislation, in the form of the Enterprise and Regulatory Reform Act 2013, to abolish the Agricultural Dwelling House Advisory Committees and Agricultural Wages Board for England and Wales, instead of the PBO procedure, as originally intended.
The government has since responded by stating that the primary objective was to achieve its programme of public bodies reform, and, ‘how this was delivered, whether through the Act or through other means, was secondary’.2 It is questionable whether this was understood by parliamentarians during the Bill’s passage. MPs and peers spent a significant amount of time debating procedure and the means of delivery; time that could have been used debating important matters of policy.
In its post-legislative assessment of the Act published last December, the SLSC concluded by noting with concern the government’s ‘continued misunderstanding’ of the nature of the Public Bodies Order procedure, and in particular, the belief that creating a Henry VIII power and subjecting it to a strengthened scrutiny procedure would ‘avoid the need for time and resource-demanding individual pieces of legislation or amendments to other legislation’.3
But, as noted in a previous blog, it can take just as long to steer instruments subject to some of the 11 variants of strengthened scrutiny procedure through Parliament as it does a piece of primary legislation, negating the advantages of legislating with speed and flexibility rather than putting the matters on the face of the Bill.
For example, it can take between 11 and 18 months to complete a Legislative Reform Order, arising from the 2006 Legislative and Regulatory Reform Act which permits a minister to remove regulatory burdens in primary legislation. As a result, only 32 Legislative Reform Orders have been laid since the legislation received Royal Assent in 2006.
Whilst quicker than a Bill, it took on average just over three months for a PBO to complete its passage through Parliament, consuming considerably more time and resource than a usual affirmative instrument. The Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013 was signed-off 8 months after it was laid before Parliament.
Lessons for the Great Repeal Bill?
The Public Bodies Act provides a salutary example of ministers claiming delegated powers in instances where policy proposals are not fully formulated, and of the consequences when insufficient consideration has been given to how those powers will actually be used. This is especially pertinent given the likelihood that the government will seek broad and highly flexible powers to ‘repeal, amend and improve’ EU-related law in the proposed Great Repeal Bill, and the possibility that Parliament will seek to hem these powers in by means of a strengthened scrutiny procedure akin to what it did with the Public Bodies Act.
The ‘bonfire of the quangos’ legislation should act as a warning of the consequences of such an approach. Given the scale and importance of the legislative task now facing Parliament as a result of the vote to leave the EU, both the Government and Parliament can ill-afford to put forward and approve another new strengthened scrutiny process that wastes valuable parliamentary time, fails to deliver the government’s policy objectives in a timely way and provides an inadequate scrutiny mechanism for important policy changes.
But neither can MPs or peers afford to hand over a blank cheque for ministers to legislate with limited oversight by Parliament. While the strengthened scrutiny procedure may not meet the speed and flexibility needs of the Brexit legislative overhaul, the only alternatives are the less stringent processes afforded to powers subject to the negative or affirmative scrutiny procedures, both of which generally favour the executive.
We have previously argued that, given the scale and complexity of the legislative demands that Brexit will impose, a fresh look at the delegated legislation system is needed. In the coming weeks we will be publishing our proposals for a new model of delegated legislation scrutiny in the House of Commons, combining the rigour and robustness of the strengthened scrutiny procedure with the speed and flexibility of the negative and affirmative procedures.
Enjoy reading this? Please consider sharing it
In 2018, Jersey saw the launch and then abandonment of what could have been a unique official attempt to define formally the role of the jurisdiction’s parliamentarians.
In the run-up to the UK’s exit from the EU on 29 March 2019 we will be tracking the progress made by government and Parliament in preparing the statute book for exit day. Our analysis draws on parliamentary data and our own Statutory Instrument Tracker which we built several years ago to support our research on delegated legislation.
If the result of the ‘meaningful vote’ - whenever it is held - is that no UK-EU Withdrawal Agreement enters into force, it could be near-unique in 170 years of UK treaty-making. But if the Withdrawal Agreement goes through, its parliamentary process will still be unusual: it could be the UK treaty with the most parliamentary decision-making involvement ever.
For its ‘fake news’ inquiry the House of Commons DCMS Committee has reportedly acquired papers related to a US court case involving Facebook. Andrew Kennon, former Commons Clerk of Committees, says the incident shows how the House’s powers to obtain evidence do work, but that it might also weaken the case for Parliament’s necessary powers in the long term.
Attention is focused on the ‘meaningful vote’ on the UK-EU Withdrawal Agreement, but the Agreement will also be subject to a parliamentary ratification consent procedure, under the Constitutional Reform and Governance Act 2010, notable mainly for not involving a vote.