Lord Igor Judge - Evidence in Review

On 29 June the Commission met to develop its discussions around executive power and the case for reform. This was part of a series of discussions the Commission is currently holding with key figures to examine executive authority.

The Commission met with Rt Hon. Lord Judge, the former Lord Chief Justice, and current convenor of crossbench peers, and held a broad discussion to identify issues of concern in the weakness of parliamentary challenge and overweening power of the executive.

A key problem was identified that government is giving the impression it can, and should, do anything and deal with any problem, and that once that is generally accepted, government takes increasing powers to do it.

The Commissioners noted that parliament has legitimacy by virtue of being elected, the judiciary because it is the arbiter, but that the executive lacks legitimacy.

The Commission discussed the troubling use of Henry VIII powers, clauses that enable ministers to amend or repeal provisions in an act of parliament using secondary legislation, which can avoid parliamentary scrutiny, an effective way of shifting power to the executive.

The Commission discussed the increasing role of statutory instruments which creates a more opaque legislative process. It heard that the Commons had last rejected secondary legislation in 1979, with the difficulty that a statutory instrument can only be rejected in full and not in sections. In effect, the legislature acting to reject government legislation has fallen into disuse, or as it was pointed out, has been excluded from the democratic role of scrutiny. It was posited that reversing this could be an achievable reform the Commission should promote to allow for greater accountability of secondary legislation.

Commissioners discussed the patronage the executive has over the first chamber and the absence of control that backbench MPs can exercise. It was noted that in the eighteenth and nineteenth century, the government was obliged to call a by-election on appointment of a minister.

The recent weaknesses of the Cabinet meant it had failed to challenge the growing power of the office of the prime minister.

It is not clear to whom secretaries of state are accountable, and whilst it is the prime minister who appoints and can dismiss ministers, they should also have a wider responsibility of the public good. It was suggested that there could be legislative limits and definitions for secretaries of state, set out in a formal job description and in legislation, in a similar mould to those that guide local government.

Commissioners observed that, whilst the role of the Lords is limited in holding the executive to account, the devolved parliaments of Scotland and Wales have no second chamber at all.

The select committee system in parliament was mentioned as a worthy development in the accountability process in recent decades. The Commission discussed the idea of improving and empowering select committees by giving them increased powers over departmental budgets.

The power of parliament could be bolstered by giving it more power over its procedures and timetables.

The Commission shared the view that incremental improvements can have a cascade effect, and might trigger parliament to start thinking more about what they can do. To this end, examining ways to repeal parts of statutory instruments rather than throwing full legislation out; incrementally improving the transparency and powers of select committees; and more formally defining the key roles in government, represent appealing starting points.