1: Clause 2, page 3, line 7, leave out “negative” and insert “affirmative”
Member’s explanatory statement
This amendment and others in the name of Lord Lennie make the regulations in the relevant sections subject to the affirmative procedure.
My Lords, this group of amendments is all about making various clauses subject to the affirmative procedure in your Lordships’ House. I give notice that we intend to divide the House on Amendment 25.
The amendments affect Clauses 2, 3, 6, 7 and 16, and Schedules 1 and 2, making them subject to the affirmative procedure. The Government seek to justify some of the use of the negative procedure by pointing out that the Secretary of State already has the power to modify or revoke the schemes in Clauses 2 and 3, and Clauses 6 and 7 for Northern Ireland.
Clause 16, which confers powers to make it a temporary requirement on electricity generators to make payment regulations, uses the affirmative procedure on first use and the negative procedure thereafter. The Government’s justification for a temporary requirement represents a significant intervention in the electricity market. This clause will define the main parameters of the scheme. After this, the Government believe that interest will wane, with only minor or technical amendments likely to occur, therefore justifying the negative procedure thereafter.
The justification for the Schedule 1 powers is that, although the Government recognise that the powers are significant, they are necessary to allow the schemes for relief of GB businesses. The Delegated Powers and Regulatory Reform Committee report, established in haste last week, says that by including paragraph 3(2) of Schedule 1 the Government have completely ignored the recommendation contained in its report:
“No attempt has been made to limit the powers or to ensure that they will be subject to parliamentary scrutiny.”
Nor was any “compelling justification” offered to support the Government taking these powers. Schedule 2 powers relate to Northern Ireland, where a similar provision is proposed.
In Clauses 21 and 22, the subject of Amendment 25, the Government assert that their approach would include a fuller period of consultation with relevant stakeholders providing suppliers with earlier certainty. However, what guarantee is there that these steps will ever be taken? The department also considers that any delay could have negative consequences for those who were to benefit from the scheme. However, there are enough examples of regulations being scrutinised after the fact—for instance, those relating to Covid—and even after this primary legislation, which, as it stands, took effect from 1 October 2022. I cannot see why this cannot be applied here.
My Lords, I shall speak briefly to some of the amendments in my name in this group. This is the only time I shall intervene. Although I have tabled amendments in the second and fourth groups, I do not propose to speak to them. What I am about to say covers the same points.
I declare an interest as a member of the Delegated Powers and Regulatory Reform Committee. I do not speak for the committee; the report does that. Over the weekend, I read the Government’s inadequate response to the report. I am grateful for the speed with which the Government responded, as I suspect other committee members are. That was useful but their response was completely inadequate. It is significant that the government response makes no mention at all of the Delegated Powers Committee’s report from November 2021, Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive.
Clause 22(5), which is not referred to in the government response, is the subject of Amendment 28. According to paragraph 14 of the Delegated Powers Committee’s report, Clause 22(5) is, in effect,
“a Henry VIII power because it allows the effect of legislation, including primary legislation, to be modified by a direction.”
Paragraph 14 also says:
“There are no limits on the kinds of requirements which may be imposed through the directions power.”
Paragraphs 14 to 18 say firmly that the powers in Clause 22 are inappropriate. Clause 22 brings in what is referred to as “disguised law”. This was referred to in the November 2021 report as “camouflaged legislation” and an “unacceptable ploy”.
The Delegated Powers Committee report on this Bill refers to the memorandum supplied with the Bill, particularly paragraphs 154 to 162. Referring to the government memo, the report says that it
3:45 pm
The fact of the matter is that they draft the Bills. They are drafting Bills, one after another—this is only one, but there have been others in recent years, and in the last few months in particular—after the two major committees of this House publish reports, as in November last year, criticising the transfer of powers from Parliament to the Executive. Parliamentary counsel seem not to have given a tinker’s cuss about that. They have just carried on doing what Ministers want to get more power.
I do not think the Secondary Legislation Scrutiny Committee or the Delegated Powers Committee have seen any evidence that their agreed recommendations are being taken on board by the Government. The House of Commons in particular needs to wake up, and fast, to what has been happening, for the sake of our democracy. I think this Bill would be a good place to start.
My Lords, I apologise for not speaking at Second Reading. I did listen to the Minister’s opening speech and I had made my views clear in an earlier briefing. My views sync very closely with those of the noble Lord, Lord Rooker. Quite honestly, this Government are out of control—we have known that for months, if not years—and it is time they understood they are not acting in a democratic manner. This is a “something must be done” Bill, and I understand why something must be done. However, it has so little detail, and the Government are expecting us to take this on trust. I do not trust the Government, and so there is a big problem here for me.
There are two big issues. First, these energy price schemes will make the difference between people being able to pay their bills or not pay their bills, and whether they can feed themselves, clothe their kids and that sort of thing. We have to be sure of all this detail. The Government are proposing to fill in about 90% of the Bill’s details at a later date, and they expect us to just wave it through. We cannot know the impact of this Bill on ordinary people.
Secondly, the Government have been determined to protect the profits of oil and gas companies, which we all know is a piece of idiocy when we look at the climate emergency. That profit will probably be reinvested in creating more opportunities for the oil and gas industry. The Government take a different approach to renewables, and this will cause a long-term disruption to renewable development. I would argue that investors will be encouraged to invest more in dirty oil and gas, rather than in clean renewables. That is a huge bailout for all those stranded carbon assets, and seems to me to be a completely illogical way to move forward.
I sense that the Government might mean well—actually, I am being too generous. I understand that something must be done, but this is not it. I want the Minister to explain those two issues. Will people be able to pay their bills? Will this cause more investment in dirty oil and gas?
My Lords, I will speak to Amendments 27, 31, 34 and 40. What I have to say is very much in line with the speeches that have already taken place and I will not detain the House for long, except to make this point again. We understand the urgency of the Bill, for the health of households and their heat and energy over the next winter, and that of businesses as well, but there is a lot else included in this Bill that need not be rushed through in the same way.
I turn to Amendment 27. On reading the Bill, I was quite shocked—the noble Lord, Lord Rooker, forensically went through this in principle—that it says on page 21, in Clause 22 (4)(a), that these directions “must be in writing”. These are key bits of government policy, where a Secretary of State or a person who is subject to directions under this clause—we do not even know who it might be—is able to just write what should happen. Our own amendment would substitute that with
“made by regulations subject to the affirmative procedure”.
Amendments 31 and 34, with Amendment 34 relating to Northern Ireland—it is great to see the noble Lord, Lord Rogan, here following his contribution during the Second Reading—would remove the powers of sub-delegation.
Amendment 40 is around the sunset clause, which again the Opposition has, quite rightly, majored on. Here, we have put down a two-year limit.
Clearly, the Bill goes way beyond the authority given to the Government and the Secretary of State, without reference to Parliament. Some of these amendments must be voted on for the Bill to be put right and sent back to the House of Commons.
Lord Cunningham of Felling (Lab)
My Lords, I begin by expressing my wholehearted support for the speech given by my noble friend Lord Rooker. He has so comprehensively discussed these issues that it is barely necessary for me to support him, but I intend to do so wholeheartedly, as I have said.
Perhaps I had better say that I was previously a member of the Secondary Legislation Scrutiny Committee and I am now a member of the Delegated Powers and Regulatory Reform Committee, as indeed is my noble friend Lord Rooker, as he said. I participated in the discussions of the two reports that he referred to: Democracy Denied and Government by Diktat. It is amazing how little response there has been from Ministers to those fundamentally important reports; fundamental in relation to this House and the other place, and in relation to the control—I use the word “control” advisedly—of ministerial actions and decisions.
The latest report of the Delegated Powers and Regulatory Reform Committee—the 14th report of this Session—on the Energy Prices Bill, says in paragraph 10:
“We are disappointed that, by including paragraph 3(2) of Schedule 1, the Government appear to have completely ignored the recommendations contained in our report.”
That is true: the Government have completely ignored the recommendations made in the committee’s report. Paragraph 10 continues:
“No attempt has been made to limit the powers or to ensure that they will be subject to parliamentary scrutiny.”
There is no provision for that under the Government’s proposals—no provision for parliamentary scrutiny of any kind. Paragraph 10 goes on:
“Nor do we consider that anything close to a compelling justification has been offered for these powers”,
and their inclusion in what the Government intend to pursue.
Paragraph 11 of the report says:
“Accordingly, we consider that the legislative sub-delegation provided by paragraph 3(2) of Schedule 1 is inappropriate. We also take the view that the power to give directions is inappropriate to the extent that paragraph 3(2) enables general directions to be given which would have legislative effect.”
This is Ministers giving themselves powers to give general directions that would have legislative effect. In my long experience—35 years in the other place, and a long time in this House—I have never seen proposals like this, ever, from any Government. That is the reality of it. I quote from paragraph 12 of the report:
20 of 174 shown
The pace of things is another justification offered by the Government. The affirmative procedure would not allow certainty that the licence modifications would follow and this in turn would inhibit suppliers making required operational changes, slowing delivery this winter.
There does not seem much justification for the Secretary of State taking these overwhelming powers. Clause 22 applies similar powers to Northern Ireland, also without the same compelling justification. It allows the Secretary of State to tackle barriers to delivering implementation of the schemes as necessary. There appears no justification for this at all. The Delegated Powers and Regulatory Reform Committee is firmly of the view that any power conferred by Clause 22 is inappropriate and that the Government should act by,
“imposing a time limit on the exercise of the power which is commensurate with other time limits contained within the Bill.”
I beg to move.
“does not explain the full range of the things which can be done”.
It goes on to say, in paragraph 16:
“We are also not convinced by the reasons given in the Memorandum for the power not being subject to parliamentary scrutiny.”
As such, the Delegated Powers Committee report says that the Government appear
“to have completed ignored the recommendations”
in the committee’s report of November 2021.
I want to make a more general point, which I shall not repeat on the other group of amendments. I was not a member of the Delegated Powers Committee when its November 2021 report, Democracy Denied?, was published, in tandem and in co-operation with a report from the Secondary Legislation Scrutiny Committee of your Lordships’ House, entitled Government by Diktat: A Call to Return Power to Parliament. Both reports—that from the Delegated Powers Committee and that from the Secondary Legislation Scrutiny Committee—were about Parliament and the Executive. They were not about this House and the elected House of Commons. Parliament and the Executive are what this is about.
Both reports were debated in this House on 6 January under a Motion tabled by the noble Baroness, Lady Cavendish of Little Venice. I have no criticism of the Minister or his team for reasons I shall make clear. I do not expect he has read either report; I am not sure any Minister has. I do not hold the Minister responsible. He and his government colleagues are taking advantage of the slack role Parliament has played to bequeath powers from Parliament to the Executive.
On Wednesday 20 July this year—a significant date because it was the day before the Summer Recess started—both the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee, including Peers who had been members of those committees last year when the reports were prepared, took evidence on the reports from the then Leaders of both Houses and First Parliamentary Counsel. There was no sign that anybody had read anything about the 6 January debate on both of them. It was abundantly clear that neither of the then Leaders had even been briefed on the views of this House.
Parliamentary counsel have clearly continued to draft Bills, such as this Bill, which have “completely ignored” the recommendations of the Delegated Powers and Regulatory Reform Committee report, Democracy Denied? Why have they done this? Repeatedly, parliamentary counsel are producing Bills which transfer powers from Parliament to the Executive. It is parliamentary counsel doing this—they draft the Bills.
During the exchanges on 20 July in respect of what is referred to as Question 16, I asked the First Parliamentary Counsel, Dame Elizabeth Gardiner, about her saying during our evidence that day that counsel
“have that discussion on a daily basis with the teams and with the Ministers about the nature of what they are asking for”.
I pointed out that, in my time as a Minister, in both Houses, over 12 years—it is in the minutes—
“I understood … that parliamentary counsel took instructions from the department’s lawyers and Ministers never got involved with parliamentary counsel.”
Dame Elizabeth’s answer was:
“I think things have changed a lot ... Probably we do meet policy officials and Ministers more frequently on Bills than we would have done 30 years ago”.
I have checked on this. I think this change, or breach of convention, has happened in the past 12 years. My experience, particularly in two departments, as I recall, when I served in this House—there were four altogether, but two in particular—was that it was specifically said to me when I joined, because Bills came up, that in general the Government accepted most of the recommendations from the Delegated Powers and Regulatory Reform Committee. It was the norm to accept the majority. I was repeatedly told that. I think this change, or breach of convention—it is certainly a lapse in the accepted standards of conduct—has happened only since 2010, when somebody started playing wild with parliamentary procedures, and the House of Commons was blindsided by it. That, I think, is very dangerous.
I am prepared to say that I think the old way was best. If lawyers gave instructions for policy officials so that the policy officials would have to say to department’s lawyers, “This is what we want to do, and what our Ministers want to do”, the lawyers would then use the legal structures to put that case to parliamentary counsel. By and large, the system worked. I think it would be far less likely that clear recommendations made by Parliament would be “completely ignored” if the lawyers were the ones who gave the instructions to parliamentary counsel, as was the case up until 2010.
I trust the lawyers here to follow the conventions. Quite clearly, parliamentary counsel work with the Government—let us make no bones about it. These days, they do not even have their own office block in Whitehall, to which I was once invited to when I was a Minister in the other place. I know the way they work; they are now ensconced inside the Treasury. They work for the Government; they are not independent.
“Accordingly, for the same reasons we consider that powers conferred by paragraph 3(2) of Schedule 2 are inappropriate.”
The Delegated Powers and Regulatory Reform Committee is chaired by a person who sits on the Government Benches—a privy counsellor and former Cabinet Minister in the other place. There is no doubt that he is a good chair of the committee. He, along with other Conservative committee members, has signed up to this report, which is a damning indictment of what the Government are doing. It is time for this House and the other place to call a halt.