I know that discussion of the constitution is not a popular topic, but at the moment the relationship between the Executive and the Legislature is under attack, with the Executive (the government) trying to take away as much power that they possibly can from the Legislature (the MPs and the Lords in Parliament) by means of using 'Henry VIII powers and Statutory instruments, which give the Executive power to alter legislation without Parliamentary scrutiny.
As I've said before, the Executive represents the Crown, it is Her Majesty's government. But, in theory, it has no powers to pass legislation without the approval of the Legislature. It is the Legislature that is the law making body, the Executive can only propose legislation, if the Legislature doesn't pass its bills they either fall, or must be amended to the satisfaction of the Legislature. The English Civil war was fought to establish the supremacy of Parliament over the Executive (the Crown).
With that in mind, while the Lords were debating the Queen's Speech, Lord Judge, former Lord Chief Justice, had this to say:
My Lords, listening to the gracious Speech I heard words that filled me with joy:
“Her Majesty’s Government will ensure the constitution is defended.”
Then I listened, as one does:
“Her Majesty’s Ministers will restore the balance of power between the legislature and the courts”,
and I thought, like the editor of Private Eye, “surely some mistake”.
There is no balance needed. We legislate—we try to legislate with clarity—the courts interpret our legislation and, if we do not like the way the courts have interpreted the legislation, it comes back to us and we put them right. There is no difficulty about that relationship—perish the thought.
I thought the words were going to be, “Her Majesty’s Ministers will restore the balance of power between the legislature and the Executive”, because that is the relationship that needs to be addressed.
Noble Lords have heard me bang on about Henry VIII powers. I just do not like a Minister by statutory instrument being able to revoke primary legislation, let alone secondary legislation. As for skeleton Bills, I find it absolutely extraordinary that we ever pass them. We say to ourselves: “Let us give the Minister powers before the Minister has the slightest idea how he or she is going to exercise them.”
He then referred to the work of two cross party committees which reported that there was a need to rebalance the power between the Executive and Parliament. (Clearly they were concerned that Parliament was losing powers which it should have) Their recommendations have been ignored by the government.
He saw this issue as being of prime constitutional importance.
In the Conservative manifesto there was a promise that there would be a first-year commission on the constitution, democracy and rights. Where is it? Why are we not addressing the issue of this imbalance now in such a commission?
I am now about to be very courageous, particularly with the noble Lord, Lord Strathclyde, here: what is the point of us being here if, when we identify a serious constitutional problem, we never do anything about it except talk? We cannot keep doing that.
I just want us to consider the possibility that the next time we have a Henry VIII clause in a Bill that has not been given careful explanation in advance, we chuck it out.
Is it not possible that some time, instead of a regret Motion, if a statutory instrument proposes the extension of undue power to the Executive, we throw that one out too? I am only asking your Lordships to consider the possibility—otherwise, why do we not just go on talking?
(his full speech here: hansard.parliament.uk/Lords/2022-05-12/debates/A16649EE-B273-4953-8846-708C8B4965ED/Queen’SSpeech#contribution-667C1836-26A7-47D0-87D7-A57147FD6D6E )
This is fighting talk from a respected Law Lord...
People might think this is all a bit boring, but if the Executive takes all legislative powers to itself, with no checks from Parliament, then this is the way to dictatorship. It renders MPs, and thus their representation of the electorate, superfluous. This is what dictators do. It is not democratic.