That this House takes note of the Report from the Delegated Powers and Regulatory Reform Committee Democracy Denied? The urgent need to rebalance power between Parliament and the Executive (12th Report, Session 2021–22, HL Paper 106).
My Lords, we are debating two unprecedented reports from the House of Lords Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee. Never before have two committees acted in tandem to draw attention to a serious parliamentary problem. The number of noble Lords signed up to speak on a matter many would consider to be just a legal, technical, boring parliamentary issue is also unprecedented. The issues may be that, but when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual. Both our reports express considerable alarm and criticise the increasing tendency of all Governments in recent years to adopt procedures that effectively bypass Parliament’s role in the legislative process.
Why are we reporting now? The Delegated Powers Committee and the Constitution Committee have drawn attention to the abuse of excessive delegated powers over many years. However, this time we did a comprehensive study and looked at these issues going back 90 years, and we found that the problems identified have been worsening over the last 20 years. The result of this trend has been an increase in the power of the Government at the expense of Parliament.
It is worth reminding the House and the Government that the committee members who drew up these two reports are not naive new colleagues. The combined parliamentary experience of our committee members is over 520 years, with some members having exceptionally long parliamentary careers. For example, the noble Lord, Lord Rowlands, entered the House of Commons in 1966, and the noble Lord, Lord Lisvane, has 51 years’ experience of Parliament. That does not make us experts, of course, nor does it give us any moral authority over the Commons. It just means that some of us have seen these problems growing for a considerable time. Having reviewed the use of delegated powers over the last 90 years, we concluded that,
“a critical moment has been reached and it is now a matter of urgency that Parliament should … take stock, and consider how the balance of power can be re-set.”
Let us be clear that the reports and all our members accept that delegated legislation is absolutely essential; no democratic Government in the world can function without it. However, far too often primary legislation is just skeletal, with all the details filled in by secondary legislation, which may get little or no scrutiny at all. I shall let my noble friend Lord Hodgson of Astley Abbotts set out the injustices caused by skeleton Bills.
Our Delegated Powers Committee report identified some other key issues and abuses. There is a completely inappropriate use of excessive Henry VIII powers. This, as your Lordships will know, is a 584 year-old device, which allowed the King to make and unmake any laws he liked by proclamation. That ancient power now rests with Ministers, who can use affirmative and negative resolutions to rewrite or abolish Acts of Parliament. Criticism of Henry VIII powers goes back to 1929 when the Lord Chief Justice, Lord Hewart, criticised them in his book, The New Despotism. If he thought that it was a bit despotic then, I think he would struggle to find language pejorative enough to describe today’s legislation.
My Lords, my term of office as the chairman of the Secondary Legislation Scrutiny Committee comes to an end in a couple of weeks, but over the past three and a half years I have had the chance to see, at first hand, some of the ways that, almost imperceptibly, the Government have been gaining power at the expense of the two Houses of Parliament. It is that process that forms the background to our report, Government by Diktat.
We have just heard a very powerful speech from my noble friend Lord Blencathra, the immediate past chairman of the Delegated Powers Committee, our sister committee. I support entirely the points he made and the views he expressed. The DPRRC plays a vital role in drawing the attention of the House to the weaknesses in proposed legislation. However, once the legislation has gone through, its work, inevitably, is done. At that point, it is the SLSC that has to consider, examine and, where necessary, draw the House’s attention to the real-life consequences of what has been passed. The SLSC is supported by expert, informed and very hard-working staff, who will examine some 600 to 700 regulations every year. As my noble friend Lord Blencathra said, each of these binds on every citizen of the country as firmly as any primary legislation.
If I may use a cinematic analogy, the DPRRC takes a snapshot; the SLSC is a cine camera, recording the changes that go on week by week, month by month, as the regulations are brought forward. We have been concerned that our cine camera has seen yet more changes since the time we produced Government by Diktat. We have produced two subsequent reports: What Next? The Growing Imbalance between Parliament and the Executive, which we published in April last year, and then Losing Impact: Why the Government’s Impact Assessment System is Failing Parliament and the Public in October. While these two reports will come to be debated another day, they do provide important contextual background to the issues that concern us in Government by Diktat.
My Lords, it is a great privilege to take part in this debate. It gives me an opportunity to pay tribute to the outstanding leadership of the noble Lords, Lord Blencathra and Lord Hodgson of Astley Abbotts, in bringing forward these reports. I also pay tribute to the clerks who deal with the scrutiny committees and have done tremendous service over the years, and I mention Christine Salmon Percival in this context. I am very much looking forward to hearing the maiden speech of my noble friend Lord Prentis of Leeds.
I should say that, although I do not know where I fit into the 500 years’ scope, I have had the privilege of serving twice on the DPRRC and the SLSC. It has been a privilege, and a grim experience of watching the erosion of parliamentary control over a number of years. It is not as if this House has been colluding in this process. We had the Strathclyde report and the way the House and the committees responded to it. We have had the work of the Constitution Committee on delegated legislation, and now the Hansard Society has taken up the cudgels on behalf of rebalancing the power of Parliament. I declare an interest as a member of that advisory committee, as is my noble friend Lady Taylor of Bolton, who cannot be with us.
These reports strike a very different note. They take the long view in both directions. They look at the evidence and recommend a profound shift in the always precarious relationship between Ministers and Parliament which we have witnessed. They make demands for change from the Government that go far beyond the usual admonitions that they should know better and act differently. The DPRRC has been adamant that there must be no less than a return to the first principle that legislation must be explicitly founded on and reflective of the principles of parliamentary democracy, not political expediency.
These reports are fluent in the language of the barricades. We have never heard before the language of diktat, of denial of democracy, or such a stark warning to Parliament itself of what we are facing. That presents us as parliamentarians with a real challenge. A reset is long overdue. As it is, our role in this House is largely to pull the Government back from the brink, but it has become increasingly difficult to do that. There are skeleton Bills, where no analysis or interrogation of impact is possible; policy-making is banished from the face of the primary legislation; outcomes are buried in delegated legislation; and Henry VIII powers are a routine convenience defended on spurious grounds with frivolous explanations. Added to that, as my noble friend—and I will call him my noble friend—has explained, disguised regulation has emerged, with ingenious devices, ingeniously defended. Directions and guidance are used as a proxy for legislation, and Parliament is an exasperated but essentially impotent onlooker. If Parliament cannot understand, interrogate or challenge perverse consequences, how can we protect people and communities from bad laws?
My Lords, this is an extremely important debate and, as the Government by Diktat report says, we are talking about
“the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of government to Parliament”.
The report says:
“In recent years, the balance of power between Parliament and government has shifted significantly towards the government, a trend that has been accentuated by Brexit and the pandemic.”
I recall the noble Lord, Lord True, in his previous position, declaring that Boris Johnson was accountable as Prime Minister to the British people rather than to Parliament, as ratified by both the 2019 election and the Brexit referendum—popular democracy against the alleged elitism of parliamentary democracy. I hope that, now we are on our second Conservative Prime Minister who has not been immediately ratified by the British people, the Leader of the House, with his customary flexibility, will now return to arguing that it is parliamentary democracy that supports a Prime Minister and a Government, rather than popular democracy as such.
I am worried about the extent to which a number of current Ministers have preferred a sort of permanent campaign to recognising that the hard business of government is worrying about detail and difficult choices, and that the devil is very often in the detail. We have talked about the problem of skeleton Bills. The DPRRC report says
“the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegated legislation”.
Some of us have been dealing with the Procurement Bill in recent weeks. The beginning of Part 2 is headed “Principles and Objectives”, and it states:
My Lords, I think it is fairly safe to say that the term “delegated legislation” will never make the headlines in the popular press or cause stirs of excitement on social media. But the irony is that this can have such an impact on the individual citizen. We could see that during the Covid-19 regulations, which had such an impact on individual people.
I first became aware of the shortcomings of the system when I became a member of the Delegated Powers Committee, and subsequently its chairman. I congratulate my immediate successor on bringing forth this excellent and powerful report, most powerfully presented by my noble friend. I hope it will really become a turning point in this endless worry about the extension of government powers at the expense of Parliament.
My noble friend made many points and, in a short speech, I will make reference to only two. The first is the shortcoming, as I see it, of inappropriate wide powers in regulations. Departments will often say that they will interpret them in X or Y way, but that does not mean that the powers are not there when they have long gone and may be interpreted quite differently. They seem to have a touching faith in their immortality, which has no basis in fact.
I will give one example of something being used differently. Let us go back to 2015 and the infamous tax credits amendment regulations, which had powers to alter financial arrangements. I am sure they were intended to deal with issues such as the erosion of inflation on the values, but instead they were used to cut money out as a cost-saving exercise. In my view, that was a change of policy that required and demanded primary legislation. We all know what became of that and the furore that existed, but my point is clear: such regulations can be used in quite different ways by different Administrations.
I will also touch briefly on guidance, which my noble friend dealt with very clearly. One of my worries, in addition to it being disguised legislation, is that it has different meanings in different Acts of Parliament, which means that it is extremely difficult to give it a general meaning that is accepted. That makes for unclear legislation, which in itself is totally wrong.
My Lords, it is a pleasure to follow the noble Baroness, Lady Fookes, and I am glad she was not my teacher. I declare an interest as a current member of the Delegated Powers and Regulatory Reform Committee and a former member of the Secondary Legislation Scrutiny Committee. I too pay tribute to the staff of these two committees, who provide incredible support, week in, week out.
These two hard-hitting reports highlight the continuing and growing misuse of secondary legislation through unnecessary Henry VIII powers, skeleton Bills, and disguised and tertiary legislation. Together, they express real disquiet about what is going on. This is not surprising. As the titles of the two reports suggest, the concern about secondary legislation scrutiny goes to the very heart of the balance of power between Parliament and the Executive.
This is of major constitutional significance and, as we have heard, it has real, practical consequences. Effective scrutiny makes better law, but secondary legislation is not subject to effective scrutiny because, to be effective, scrutiny ultimately entails an ability to amend or at least to think again. This lack of effective scrutiny is the essence of the problem addressed by these two reports.
Of course, it is easy to see why nothing gets done. Parliamentary time is in short supply, the wider constitutional agenda is pretty full, and secondary legislation is seen as something for constitutional technicians. But above all, turkeys do not vote for Christmas, and Ministers are not going to fall over themselves to limit their own powers.
Let me try to remind the Minister why he might urge his colleagues to take a longer view. First, the current situation is a muddle and inherently unstable. Few understand the present complicated range of scrutiny processes and procedures, and the present all-or-nothing approach rests on a potentially fragile understanding, challenged in the past, that the Lords does not vote down secondary legislation. Secondly, the problem will not go away. Brexit and Covid have highlighted the problem, while the temptation to produce more and more contentious Bills seems insatiable. There is wide and growing concern, and not just in this Chamber. Thirdly, and most importantly, the issue is above all about public trust in our democratic system. As others in this Chamber so effectively remind us, we do well to recall the importance through history of the balance of power between Parliament and the Executive. We only have to look across the Atlantic to remind ourselves of the apparent fragility of even the strong democratic systems in a world of populism and social media.
My Lords, as has already been noted by other speakers in this debate, delegated legislation is indeed a necessary part of the process, but I echo the concerns about the increasing use of skeleton legislation, Henry VIII powers, disguised legislation and tertiary legislation. I support these two excellent reports that look at how we might limit the use of delegated legislation and address the culture that is now taking it for granted. Both committees highlighted very valid concern about the transfer of power from Parliament, with clear democratic oversight and public scrutiny, to instead ruling by Executive edict.
The past few years have been turbulent times, although probably if anybody looked back over any decade in the life of this nation they would see that there have always been turbulent things happening. Therefore, I guess it is easy to understand why the Executive may need to respond in unusual and challenging circumstances with delegated authority. However, it is absolutely crucial that this is done sparingly and in a transparent manner. The Government’s response to the pandemic is the classic example of this. Of course, there are times when a national emergency will demand that we fast-track legislation, or grant broad delegated powers, but those should be exceptional and rare cases. The Government must always recognise the importance and value of parliamentary scrutiny. What is concerning, as is brilliantly highlighted in these reports, is that the Government’s widening use of delegated legislation is not limited to emergencies but is now being used routinely.
We were promised by this Government that we would “take back control” by putting power back into the hands of the British people through Brexit, but it looks as though the opposite is in fact happening. The DPRRC report has described Brexit-related Bills as some of the “starkest examples” of disguised legislation. A year ago, the noble Lord, Lord Lisvane, who is speaking later in the debate, summed it up perfectly when he said:
My Lords, it was my very good fortune to have served for four years, under the noble Lord’s chairmanship, on the Delegated Powers Committee. It is currently my good fortune to be serving on the Secondary Legislation Scrutiny Committee under the chairmanship of the noble Lord, Lord Hodgson. As the noble Lord reminded me, I have been here rather a long time; I have seen some dozen Prime Ministers come and go. Throughout that period, the one thing has driven me—and I think it has driven all Members of this House and the other—is the profound belief that parliamentary legislative scrutiny is vital to the whole issue of parliamentary democracy. It is an essential, integral cornerstone of our constitution.
The Delegated Powers Committee report is a very fine one. First, it is rooted in detailed research, and for that we must pay tribute to the staff who advised us. It is a very finely researched report. Secondly, it all draws upon something like two decades of experience that the Delegated Powers Committee has. I recommend that Members of the House look at Appendix 3 of the report, which lists more than 30 Bills that the committee has reported upon, drawing attention to what it considers to be inappropriate delegated legislation. The findings and recommendations of this report are rooted in the experience we have had, over nearly two decades, in scrutinising delegated legislation. Therefore, the findings of report are, in my opinion, irrefutable.
There has been a growing and dangerous development: the increasing use of delegated powers legislation, such as skeleton Bills; Henry VIII powers; the new devices the report describes in detail; mandatory guidance, which is a quasi-form of legislation; and, of course, most obnoxious of all, tertiary legislation. The House might remind itself what tertiary legislation allows a Minister to do. It allows a Minister to give power to unelected bodies, such as a quango, to amend or repeal an Act of Parliament—after all the efforts both Houses make, power can be granted to an unelected body to repeal or amend. That cannot be justified in any sense.
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We all agree that Henry VIII powers are necessary at times. However, after the European Union (Withdrawal) Act, where many powers were appropriate, we saw that departmental lawyers were tacking them on to tiddly little Bills. Their only justification was, “just in case”—but just in case of what? If some new emergency arises, both Houses can pass emergency primary legislation in a couple of days. We have all had examples of that. However, we have had examples of Ministers taking the power not just to amend a current Bill and other related, relevant Acts, but any Act of Parliament passed from 1066 onwards. That is utterly unacceptable; any Henry VIII power should always be very narrowly drawn and use the affirmative procedure.
The other worrying and increasing abuse we saw was legislative sub-delegation of power, or tertiary legislation. We see Ministers able to confer power on themselves and delegate it to some other body, which may include a power to amend or repeal an Act of Parliament. These bodies have, of course, impeccable credentials; they may be royal colleges or learned institutes, but they can make rules and regulations which determine the fate of individuals by setting entry standards, fees and procedures. We quote quite a few examples in our report. These laws can have a big impact on citizens, are legally enforceable and Parliament may never see them. We say that conferring legislative sub-delegation of power is potentially a more egregious erosion of democratic accountability than a simple delegation to a Minister to make secondary legislation. We say that any sub-delegation or tertiary legislation must be limited and specific and its exercise must be subject to parliamentary scrutiny, even if simply by laying it before both Houses. There must also be a statutory obligation to consult all those affected, and the delegated powers memorandum should set out the full extent of the power, why it is necessary and how it will be constrained.
We drew attention to disguised legislation. Noble Lords may ask how legislation can be disguised. It comes in various forms. First, there is guidance, which departments call advisory and say that it need not be approved by Parliament. The Department for Education is a serial offender. When I challenged it, for example, on the guidance on the new school uniform legislation, the response was that it traditionally never set out its guidance before Parliament, so why on earth should it start doing it now? No matter how extensive, new or radical the guidance, the arrogant attitude was that the department and its stakeholders knew best and that we in Parliament should keep our noses out of it.
That leads to another excuse for not consulting Parliament. Departments say that they have very wide consultation with professionals, experts and stakeholders who know the subject matter, and are much better qualified to comment on the legislation rather than ignorant parliamentarians. As Adam Smith said,
“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”
I suggest that the same can be said of experts and stakeholders, whose common interest may not be that of the ordinary person.
The other rapidly increasing trend has been guidance which one “must have regard to”. To all intents and purposes, this is treated like statute law by those who must have regard to it. Noble and learned Lords will rightly say that it is not legally mandatory. One can disregard it, provided that one has had regard to it in the first place, and then come up with impeccable, judicial review-proof reasons for disregarding it. However, in reality, 99% of people and organisations will treat it as mandatory, because that is the impression given in the guidance. It is in the spin of the government press releases which accompany the guidance, and people are simply afraid not to follow it. That is legislation in disguise.
The final bit of disguised legislation that we encountered was guidance or rules which were called lots of fancy names to hide the fact that they should have been statutory instruments. We came across instructions called “determinations”, “protocols”, “directions”, “arrangements” and even “public notices.” The last one was dear old Henry VIII’s Proclamation by the Crown 1539 Act in a new form. However, this time the proclamation of the new law by the Treasury would be published in the Times and the London Gazette.
Noble Lords may ask why all this matters. It is not just some esoteric parliamentary debating point. The way in which our laws are made have profound effects on everyone in the country. Delegated legislation is essential to run the country, but it should be open, transparent, debated and not disguised. The excuse that excessive delegated powers are needed because Parliament cannot move quickly enough has been proved false on many occasions, not least by Parliament’s reaction to Covid legislation. However, our committee did not stop at pointing out what was wrong. We attempted to provide solutions.
We said that we must challenge the culture of Whitehall. Making laws is a democratic process, not just a functional legal exercise for clever lawyers in the Office of the Parliamentary Counsel. We called for the Cabinet Office Guide to Making Legislation to be rewritten. This is the bible that legal drafters have to follow. The part on delegated legislation was not fit for purpose and deliberately directed young drafters to follow the easiest way to bash through secondary legislation without Parliament considering it.
We drafted a revised guide which puts parliamentary democracy at the heart of decision-making when drafting laws and we set out some principles, the first of which is that our democracy is founded on parliamentary sovereignty, the rule of law and the accountability of the Executive to Parliament. We said that, where any provision in a Bill delegates legislative powers, departments must satisfy themselves that the delegation is framed in a way that takes into account, to the fullest extent possible, the principles of parliamentary democracy, especially Parliament’s ability to scrutinise it.
So that is what we said. What have the Government done since we reported? Well, to be fair, they have rewritten the Cabinet Office guidelines and incorporated some of what we said, but it is not really in the form of instructions to the 50 to 60 drafters in the Office of the Parliamentary Counsel. It says that the Delegated Powers Committee has said, “Here’s some revised guidance, and here’s a copy of it”—but I suggest that there is a subtext that they can take it or leave it. They do not have to follow it. I say that because there is a complete failure in the guidance to understand this House’s concern about delegated legislation and powers.
Section E of this 120-page guidance document, on Bill handling in the Lords, has the wonderful opening line:
“The House of Lords is usually the more difficult House to take legislation through”.
It then lists various spurious reasons for the Lords being difficult. This first of these is:
“The Lords minister and Whip taking the bill through the House is less likely to be familiar with the subject matter of the bill and will require additional briefing.”
We can all chuckle but, quite honestly, I find that offensive and plain wrong. It was my experience in the Commons, and I see it here in the Lords, that Lords Ministers and Opposition spokespersons are usually more able than their Commons counterparts. The Commons can have four or five Ministers in a department to cover the whole brief, but the Lords Ministers are usually on their own, possibly with a Whip helping out on a few amendments, and have to master the whole departmental brief.
So I ask my noble friend the Leader to please tell the Cabinet Office to rewrite this bit of the guide, and explain that the House of Lords is more difficult because we care about parliamentary scrutiny, about excessive powers being given to Ministers and others, about hidden laws, about Acts of Parliament being overturned at the stroke of a ministerial pen, and about skeleton Bills with the details filled in later outside Parliament. It is called parliamentary democracy and that is the only reason both our Houses exist. So the guidance is still not good enough. I accept that much of it has to be technical, but if the 50 or so legal drafters follow it as currently drafted, we will not see any change and abuses will continue.
Just before Christmas, the noble Lord, Lord Rooker, talking about the inappropriate delegated powers in the precision breeding Bill, said:
“It cannot be right for Parliament to abrogate the power. These Bills are drafted by parliamentary counsel. My conclusion from the debates we had earlier this year in January, and will have again next January on Government by Diktat, is that parliamentary counsel should be renamed ‘government counsel’. They are government employees located in the Treasury.”
Well, that is wrong: it is the Cabinet Office.
“They actually act against Parliament, because they constantly draft Bills, following instructions from Ministers, that remove powers from Parliament—not this House but Parliament—and give them to the Executive.”—[Official Report, 14/12/22; col. 713.]
The Office of the Parliamentary Counsel has a duty, in my opinion, not just to draft legislation which is clever and gives departments devious ways to change laws in future without coming to Parliament, but to draft laws with the maximum or appropriate level of parliamentary scrutiny, so that everything which affects the liberty, livelihood and freedoms of the individual is debated or has the chance to be debated—or even seen —by Parliament. That is what is required and nothing less.
The abuse of delegated power is in effect an abuse of Parliament and an abuse of democracy. Our reports will, we hope, be a prompt to strengthen Parliament in the coming years: not the Lords over the Commons, but the legislature over the Executive. We have identified the problem, produced the evidence and offered the solution. We call on the Government to rise to the challenge of delivering real parliamentary democracy. That will be good for the Government, good for Parliament and good for all the people of the United Kingdom. I beg to move.
The concerns of the SLSC can be grouped into two primary pieces. The first is the growing misuse of secondary legislation. Secondary legislation should be restricted to what it says on the tin: issues of secondary importance. But, increasingly, this is not the case. My noble friend referred to the long-running saga of Henry VIII powers, but recent years have seen increasing use of what have become known as framework or skeleton Bills—or, perhaps more accurately, framework or skeleton clauses in Bills. As we pointed out in our report, these skeleton clauses are so devoid of content that they leave the real, practical application of the law to a ministerial pen or to regulation.
Now, again as my noble friend said, there are understandable reasons why regulation has to be used in various places. Particularly in the area of technology, the rate of change is faster than the rather stately pace of primary legislation can encompass. Regulation has to fill the gap. That is understandable and entirely reasonable. Less attractive is the impression that the intellectual heavy lifting required to think the policy right through has too often been avoided in favour of essentially making it up as you go along. Even more worrying is the possibility that Ministers do not even wish to have detail in primary legislation, because of the embarrassment if it proves that the wrong choice has been made: much easier to reset the policy direction by using secondary legislation.
Nobody in your Lordships’ House could reasonably argue that secondary legislation is as effectively scrutinised as primary. In part, this is a question of time—witness the number of regulations we have—but, much more importantly, it is a question of process. Secondary legislation is unamendable: it can be passed or rejected but it cannot be amended. For this reason, neither House has proved keen to press the button marked “reject”—and, on the very rare occasions where your Lordships’ House has pressed the button, we have had almost immediately the constitutional equivalent of full-scale nuclear war.
As issues coming through secondary legislation become more and more fundamental, I fear that the existing scrutiny procedures are proving less than adequate for the increasing weight placed on them. That is the summary of the SLSC’s worry about the big picture, but at the same time there are some disturbing short-term trends about the way the Government are increasingly casual about providing the information required under existing statutory provisions which is necessary to enable the House to scrutinise in sufficient detail and hold the Government to account.
There are two major areas. The first is impact assessments. I shall give the House some indication of what this means. Every regulation that has an impact of more than £5 million is supposed to have an assessment tabled at the same time as the regulation is tabled. I shall cite a practical example to give a bit of colour. The House will recall the controversy around the Government’s decision to require the compulsory vaccination of care home staff in the latter part of the pandemic. The wisdom or otherwise of that policy is nothing to do with the Secondary Legislation Scrutiny Committee, but the decisions that lie behind it are, and they are of such importance for the Committee to draw them to the attention of the House. The two essential issues were how many care home staff were likely to resign as a result of being forced to be vaccinated, either because they had religious views about it or, in the case of women, because they had worries about their fertility, and the long-term issue of the knock-on effects for the social care system and hence for the health service. When the regulations were laid on 20 June there was no impact assessment. We asked the Minister to attend our meeting on 13 July. He did, and we explained to him our concerns about the lack of an impact assessment. He agreed that there should be one and undertook to publish it. He did, on 9 November, four months later. In the event, by that point the policy was done and dusted.
The second area that we are very concerned about is that there is a statutory requirement for every regulation to be subject to a post-implementation review. In evidence to our committee, Christopher Carr of the Better Regulation Executive said that now only between 25% and 40% of regulations are so subject. Post-implementation reviews reveal what happened when hope and expectation met reality, and they surely have to be an important part of improving government performance and holding the Government to account.
Finally, and importantly, there appears to be absolutely no process for sanctioning Governments where their performance falls below what is statutorily required. Not only is this treating Parliament with disdain, but it is undermining confidence in the process of government more widely. As my noble friend Lord Blencathra said, providing opportunity for wider public scrutiny and challenge leads to not only better legislation but better accepted legislation.
So what needs to be done? It is no good just moaning on. There are two things the Government can do. First, they need to stop justifying the present procedures by claiming that this House has to approve all regulations. Technically that is true, but when the alternative is constitutional nuclear warfare, it is hardly a fair and open-minded decision. The Government should be more honest about this when they come to discuss these processes. Thy should also cease to claim that changing scrutiny legislation procedures would result in the whole work of government being gummed up. That is not right. Many aspects of the present procedure work perfectly adequately. What is needed is some form of triaging process to sort the sheep from the goats, the very important from the less important and the unimportant. About two-thirds of regulations that the SLSC examines are entirely technical. They are concerned with changing processes, upping fees or fines to reflect inflation and so on. There is no real concern as far as that goes.
Secondly, for the bulk of the remaining regulations, there needs to be a proper grip on process, the weakness of which I have talked about, so supporting documents and regulations are tabled in a timely manner and only in the most exceptional circumstances are regulations rushed through. That would have a sufficiently uplifting and effective result on this section to justify continuing with what we have at present.
Thirdly, for that small number of skeleton clauses, a new procedure needs to be developed. How might this work? I quote from the DPRRC guidance to Parliament:
“Skeleton legislation should only be used in the most exceptional circumstances. Where the government decides that such exceptional circumstances apply, the delegated powers memorandum should make an explicit declaration (“a skeleton legislation declaration”) that the bill is a skeleton bill or clauses within a Bill are skeleton causes.”
That should trigger a new scrutiny procedure to be agreed by the two Houses of Parliament, a process in which the House of Commons must play the leading role. As my noble friend said, this is not a Lords versus Commons issue and the Government must not be allowed to get away with that. This is about the legislature, the two Houses of Parliament and their powers vis-à-vis the Executive, the Government. For that new procedure to be effective, I have little doubt that there will need to be a power to amend.
We read frequently of a decline in confidence in our system of government to deliver effective, thought-through solutions. We are discussing today ways in which the system has been performing less well than it should. Within a few weeks, your Lordships’ House will begin proceedings on the Retained EU Law (Revocation and Reform) Bill, by any standards the grandfather of skeleton Bills and Henry VIII powers. If I judge matters aright, there is a mood in your Lordships’ House to see whether this Bill can provide a focus point to discuss the various suggestions for improvement in scrutiny that have been made. I very much hope that His Majesty’s loyal Opposition and my noble friend the Leader of the House on behalf of the Government will be able to respond constructively to these concerns.
It is therefore all the more disappointing that the Government have accepted the easy stuff—14 recommendations, but none that change the culture or challenge Ministers. This attitude of “take it or leave it” has been well explained by the noble Lord, Lord Blencathra. Guidance is not going to enable or empower the junior civil servant to stand up to a Minister who wants to do something quickly and does not want the bother of parliamentary interference. Since that response a year ago, not only has nothing changed but things have got worse this year. We have had the chaos of the Schools Bill; the summary powers set out in the Northern Ireland Protocol Bill; the extraordinary powers under the Health and Social Care Bill; the landgrab of the levelling up Bill; and the extraordinary powers in the Retained EU Law (Revocation and Reform) Bill, to which we have already had reference, and all that that implies.
What is to be done if Parliament is to retain credit and purpose? I do not think Government will choose to do anything, other than perhaps to be aware of the danger of precedence. We have to take the initiative in this House as parliamentarians, and we are assisted in that in two ways. First, this is not a party-political issue; it affects both Houses, and it has arrested the attention of people outside this House who are concerned about the growing impotence of Parliament. The Hansard Society has made an excellent start in exploring how explicit principles for delegated legislation could be established, possibly by a new statutory instrument Act, for better processes to be created. We heard some of that—and that would inevitably, in my view, involve new procedures or avenues to involve the Government in thinking again. These might include stronger safeguards around legitimate claims of urgency and new joint processes for both Houses.
Parliament is in trouble. We need to be courageous and recognise the urgency of the situation we face.
“A Minister of the Crown may publish a statement setting out the Government’s strategic priorities in relation to procurement … Before publishing the national procurement policy statement, a Minister of the Crown must … carry out such consultation as the Minister considers appropriate”.
That is as good a definition of a skeleton Bill as one could find.
The National Security Bill, with which we are currently dealing in Committee, has an entire part—Part 3—introduced in Committee in the Commons without pre-legislative scrutiny or very much detail at all on how it is to be implemented. The Minister in last night’s debate assured me that one needs to implement the possibility of guarding against threats to Britain’s national interest as strongly as against the Netherlands, China, Iran and Russia. I think it requires a little further scrutiny than it has so far had. We have heard from others already about what we expect with the Retained EU Law (Revocation and Reform) Bill.
I am concerned, as I think many of us are, about the declining quality of legislation coming into this House. The proper legislative process should start where necessary, with complicated Bills, with pre-legislative scrutiny, a Green Paper, consultation with stakeholders and early publication of draft secondary legislation and guidance. That has not happened with too many Bills currently before the House. There should then be post-passage scrutiny of secondary legislation, carefully undertaken as it goes through—and, if necessary, that draft secondary legislation should be sent back. We have to grapple with that one.
The likelihood of a change of Government in less than two years’ time should surely concentrate the Government’s attention on proper parliamentary government and the need for effective opposition in challenging Government as they go forward. Perhaps we can expect again cries of electoral dictatorship from the Conservatives as soon as they are in opposition. It is the role of this House to work to ensure that legislation is workable and easy to understand. I was struck in Committee last night by the ranks on the Cross Benches who knew a great deal more about national security and the intelligence services saying they did not understand parts of the legislation as currently framed. Legislation has to be clear and, as it goes through, command public consent, sufficient consent to last beyond the next change of Government. That is the role of this House as a revising Chamber, and that is what we should defend.
What are we to do about this? Unfortunately, we are in the hands of the Government of the day as to how seriously they take these matters. My hope is that my noble friend will take on board seriously the various matters that have already been mentioned and the more that no doubt will be mentioned in this wide-ranging debate. I would like to feel that certain measures could be taken immediately.
First, let us deal with the Guide to Making Legislation. We have already seen the faults in that. As a former schoolteacher, I would like to put a stroke through it and say, “Not good enough—start again”. And start again with the useful points made in the report, which sets forth the principles before dealing with the actual issues. The other point is that, at that early level, where we are dealing with particular matters, we should see that ill-considered Bills are not let out of the Cabinet committee that is supposed to oversee their readiness. Too often that does not seem to be the case, and it certainly needs help. What is more, I believe that where regulations are going to be important, they should be ready in draft at the outset so that they can be considered by the various committees of the House when the occasion demands.
I turn briefly to statutory instruments, and thank my noble friend for his introduction. At the moment we have a system that is, in my vulgar parlance, “swallow it whole or spit it out”. I believe there should be a third way of dealing with this, by asking the Government to allow a House that is unhappy with a statutory instrument the chance to think again. I see that my time is up, so I will resume my seat.
What should the Government do? The very minimum would be to look again at the suggestions in these two excellent reports to make the existing procedures work more effectively. The government responses were disappointing and, in my view, short-sighted. I ask the Minister to spell out in detail why skeleton Bill declarations, a scrutiny reserve or more rigorous avoidance of disguised and tertiary legislation should not be pursued.
Beyond this, I urge the Government to review the whole question of how best to scrutinise secondary legislation, including the power to amend or think again. I suggest using as a starting point the current Hansard Society review, which is about to issue its preliminary findings. With his long experience of constitutional matters, the Minister is well placed to take a lead on this, perhaps by setting up a Joint Committee of the Lords and the Commons to consider a new secondary legislation Bill. Effective Commons engagement is crucial, despite the Strathclyde review on the balance of power between Parliament and the Executive—and not Lords versus Commons, as has already been pointed out.
This is a fundamental constitutional issue, with practical consequences for every citizen in the land. The present system is a mess and crying out for reform. It is surely time to act.
“The real losers are our citizens.”—[Official Report, 6/1/22; col. 780.]
It is for them that we are standing here today, to appropriately scrutinise the laws that affect their daily lives. To take this away from them is to do all of us a great disservice.
His Majesty’s Government would be advised to think very carefully about the use of skeleton Bills, Henry VIII powers and so on, as they will have no grounds for complaining if a future Government of another political persuasion use the very same powers. If this becomes the norm, any Government will take it for granted that they can ignore scrutiny by Parliament. As a minimum, we need policies that have the support of both Houses and all parties and clear principles on what needs primary legislation and what can, in exceptional circumstances, be dealt with by delegated legislation. We also need to agree on more effective ways for Parliament to scrutinise things such as statutory instruments.
Parliamentary scrutiny is one of the core constitutional functions, and the Government need to have a willingness to be scrutinised, particularly on any matter relating to the rights of the individual: their privacy, security and right to speak or assemble. So, from these Benches, I reiterate our support for the recommendations of these reports and some of the interesting material that is now being produced by the Hansard Society—which we will need to look at when we have, I hope, more time and leisure—and express my grave concerns about the shifting balance of power from Parliament to the Executive.
Unfortunately, I think the quality of this report was not met by the initial response of Ministers in their letter of 2 January last year. The letter was signed by the then Lord President of the Council and Leader of the House, the right honourable Jacob Rees-Mogg. Unfortunately, in the very first line of this letter he thanks the committee for its letter dated 23 November 2021 and copy of the SLSC’s report entitled Democracy Denied?He got the wrong committee: it was the Delegated Powers Committee that submitted this report, not the Secondary Legislation Scrutiny Committee. That shows some of the character of the response we had and it seemed hopelessly inadequate.
I hope now, with a new Front Bench and a new set of Ministers, that we will have a much better and much more reasoned approach to the issues, and these very useful and not excessive recommendations. They are practical, useful recommendations that will allow this House and the other House to fulfil their fundamental role of scrutinising legislation. As we say in pages 4 and 5 of our report, this is not an “esoteric constitutional” issue but:
“The way our laws are made can have a profound effect upon the lives of millions of citizens … parliamentary scrutiny is a cornerstone of parliamentary democracy … As our historic account of delegated legislation shows, there have been times when the government of the day have been impatient of parliamentary legislative constraints. … But Parliament rightly demands patience in fulfilling its most important role—the making of our laws”,
because that is in fundamental to the whole nature of our parliamentary democracy.
I invite the Minister, when he replies, to take a new look. I hope he will come to the Dispatch Box with a better response than we received a year ago from the previous Lord President. I ask my own Front Bench to endorse, in the strongest possible way, the powerful recommendations in the Delegated Powers Committee’s report.