My Lords, this is a debate about power and the damage done to ordinary people and democracy when the workings of power are hidden. In this country, laws which affect people’s lives are increasingly being made through delegated powers, secondary legislation and regulations which do not require the parliamentary scrutiny that voters expect. However, voters themselves are largely unaware because the shift in power towards the Executive is cloaked in technical language. The heading of our debate today would make most people’s eyes glaze over, and I thank all my noble friends for recognising its importance.
During a global pandemic, it is one thing to restrict people’s freedoms by pushing rules through quickly using procedural mechanisms which require minimal scrutiny by Parliament. Laws introducing the national lockdowns, limiting social gatherings and closing offices and schools were all made through public health regulations, the vast majority of which became law before being seen by Members of either House of Parliament. That is understandable—although I have been staggered to discover how keen Ministers have been to use this route. Over 100 such Covid regulations have been made in this way since March 2020. However, it is quite another thing to find that, beyond Covid, we are sleepwalking into a world where Governments increasingly rule by diktat, without even fully realising the cumulative effect of what can often seem to them like small tweaks made for efficiency.
Two excellent reports guide our debate today: the Secondary Legislation Scrutiny Committee report, Government by Diktat, and the report by the Delegated Powers and Regulatory Reform Committee, Democracy Denied. I am delighted to see that the noble Lords, Lord Blencathra and Lord Hodgson of Astley Abbotts, are both speaking in this debate, as are many other noble Lords who are much more expert than me.
Each of the reports contains a stark warning about a shift in power towards the Executive which has been occurring for decades. They describe in detail how Bills are often drafted only in outline, as skeletons
“so devoid of content they leave the real operation of the law to Ministers.”
Of course, the important detail is left to secondary legislation. They describe how Henry VIII powers let Ministers amend and even repeal Acts just by making regulations, and how Whitehall is using guidance and protocols as a form of disguised legislation, with legal effect but no oversight. According to these reports, hundreds of laws are being imposed on all of us, with no effective scrutiny and control by Parliament. This should be better known.
Exceptional powers are lent, not granted, to Governments by the legislature, in times of emergency. In such times, such powers should be returned in their entirety as fast as possible. Yet Governments of all stripes have increasingly sought to expand their power. In 2006, the Legislative and Regulatory Reform Bill sought to give Ministers the power to amend, repeal or replace any Act of Parliament by simply making an order. That was eventually withdrawn, after pushback from the House of Lords Constitution Committee. But during the financial crisis of 2008, the Banking Act gave the Treasury power to disapply any other relevant statute bearing on the Act, which was a pretty substantial power. In 2010, the Constitutional Reform and Governance Act allowed any Minister to make changes, again by ministerial order, as she or he considered appropriate. There are many other examples, which I am sure we will hear about in a moment.
My Lords, I warmly congratulate the noble Baroness on setting out the case so thoroughly and eloquently on the inappropriate delegated powers that skeleton Bills contain.
In December, the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee published joint reports heavily criticising skeleton Bills. Let us be clear: our criticism was not an attack on this current Government alone, since the abuses of delegated legislation have been growing under all Governments for the last 30 or 40 years—not just since Brexit or Covid.
What do I mean by abuses? Our Delegated Powers Committee report listed four main concerns, including: first, skeleton Bills, which we are debating today; secondly, the growing predilection of departments to stick Henry VIII clauses on to every Bill, just in case it might be convenient in the future; and, thirdly, the sub-delegation of legislative powers. These are laws made not even by Ministers as secondary legislation but by people or bodies who have been granted the powers to do so. These tertiary rules can have a big impact on citizens and are legally enforceable.
We will have a perfect example of this before us on Monday, when the Home Office will have to table an urgent amendment to correct unlawful guidance produced by the College of Policing. Our report on the police Bill criticised the fact that the College of Policing is not a statutory body but a private limited company, but the dear old Home Office had been merrily shovelling to it powers to invent statutory guidance. I have tabled an amendment to say that all such guidance should be held in abeyance until the college has been approved by Parliament, since its guidance could be illegal. Well, what do you know? The Court of Appeal ruled on Christmas Eve that its guidance on placing 110,000 innocent people on a criminal records list for non-crime hate crime was unlawful, and the Home Office tabled an amendment just yesterday to rectify it. Both Houses of Parliament will now have a chance to debate it for the first time. How much more possibly illegal guidance is being manufactured by third parties which will never be exposed unless it is challenged in court?
My Lords, I congratulate the noble Baroness, Lady Cavendish, on her choice of debate and the brilliant way in which she introduced it. As a member of the DPRRC, it is a particular pleasure to follow our chair, the noble Lord, Lord Blencathra—the Braveheart who led us into this important report alongside his colleague, the noble Lord, Lord Hodgson of Astley Abbotts. I am sure the Minister knows how formidable a duo he faces.
What is different about the two reports at the heart of this debate is not just the arresting language or, indeed, the fact that we have a pincer movement on Westminster and Whitehall; it is the nature of the analysis and the depth of the recommendations, which will go beyond this Chamber. This is about context.
Take the titles of the reports, for a start: Democracy Denied? and Government by Diktat. One might be forgiven for thinking that these were the product of some raving pamphleteer but no, they are not. They come from the two most senior scrutiny committees in the House, and the language is justified. They express with little reservation all the frustration that we in this House have felt for a long time at the growing contempt for Parliament, which has been accelerated by the expediency of Brexit, the concentration of ministerial powers, the interpretation of “emergency” in terms of Covid and the stranding of Parliament.
The reports confront this challenge holistically and head on. They take the long view: they look backwards over a century of accumulated frustration but they also look forward. If Parliament is to reassert its power, it will be for the long term. Over the years, the DPRRC has won many battles on the Floor of this House. What we have been less successful at is changing and challenging habits, which these reports do. What should be exceptional has become business as usual, whether it is skeleton Bills or delegated powers.
The prescription set out in these reports goes far beyond “Chaps should do better”. It challenges the Government in principle and in practice to assert and govern by the basic principle that legislation is the servant of parliamentary democracy. In that context, the state we are in is not an extension of a game of cat and mouse between Ministers and Parliament. The reports document a structural shift in both the culture and strategy of the Government and Whitehall—that is, a culture that says that anything goes, anything can be tried on and any excuse can be offered and a strategy through which Ministers can, without restraint, hide in delegated legislation aspects of policy that need to be open to scrutiny and challenge. Skeleton Bills, Henry VIII powers and guidance rather than regulation are defended on the grounds of urgency and flexibility, no matter how flimsy or, frankly, nonsensical the argument. It is a creative culture, as we have seen in the raft of inventive ways, language, protocols, directions and so on in the form of disguised legislation.
My Lords, I start by congratulating the noble Baroness, Lady Cavendish, on securing this debate and her masterful speech, as well as the two committees on their excellent, hard-hitting reports.
I am conscious that, unlike many speaking today, I am not a constitutional expert, nor am I a lawyer. That said, what I do know is that although much of what we are talking about may sound abstract, this debate —about the power of Parliament versus the Executive and the processes that underpin our democracy—has a direct impact on all our lives. If those processes that underpin scrutiny and accountability are not cherished and nurtured, and the Executive are allowed to chip away at them, the freedoms that we all take for granted risk being eroded. My concern is that this is happening thanks to a subtle but profound shift in the culture of government over the last 30 years—a shift that is having a big impact on process and, therefore, on democracy itself.
Politicians’ lax approach to Cabinet government has led to sofa government and the rise in the power of unaccountable special advisers. The 24-hour media cycle, turbocharged by social media, fuels hysterical calls that something must be done to tackle a problem or Ministers’ demands for an eye-catching initiative. Process, precedent, accountability and scrutiny are all seen as mere irritants that get in the way of action.
Having worked in No. 10—many moons ago with my noble friend the Minister and more recently as a Minister—I know only too well what happens. To manage a crisis on the evening news or a Twitter storm, a press release is cobbled together, which spawns a piece of legislation barely longer than the press release itself, which then gives rise to a skeleton Bill full of delegated powers. This creates the issues that these excellent reports touched on and which the First Parliamentary Counsel delicately mentioned in her evidence when she talked about the
My Lords, I shall speak in shorthand in this very welcome debate. As a former chair of the Delegated Powers Committee, I am familiar with this battleground, and I have the scars to prove it, particularly from the Public Bodies Bill.
First, as the noble Lord, Lord Bridges, said, the practice of bringing framework Bills to Parliament must be discouraged from the outset, however tempted Governments are to use them. Secondly, the House must have agreed procedures to swing into action if there are inappropriate delegations. I endorse the “scrutiny reserve” plan in Democracy Denied?, but we must beware: no Government will agree to this willingly if it means that legislation will be held up. So we must watch out for that.
Before closing, I want to say that I hope that the House will never give up its priceless unfettered power over secondary legislation, even if it is hardly ever used.
4:47 pm
Lord Judge (CB)
I do not feel like following any of those speakers; they have said everything that I want to say. It is awfully tempting to sit down, but I should just mention one or two things.
The noble Baroness, Lady Cavendish, referred to something that I said when I was Lord Chief Justice. It was a political speech—nothing to do with party politics—and I addressed the issue of Henry VIII clauses. That was more than a decade ago. The moral of the story is that judges should not interfere in the political processes—because no one took the slightest bit of notice of what I had to say. Indeed, the response was the opposite: the departments invented a new button on their computers that said “Henry VIII” on it, and every piece of legislation since I spoke has had it pressed and Henry VIII drawn into it. So I have given the Red Bull treatment to Henry VIII and the corresponding treatment for somnolence—I do not know what the right pill is for that—so we just go on producing delegated legislation. It is more than 10 years since I spoke, and has the House of Commons rejected a single piece of delegated legislation? No. I am sure that every piece of delegated legislation that we have had has been sublimely wise, but the House of Commons has not rejected a piece of delegated legislation since 1979—1979, for heaven’s sake—when thousands and thousands of pages, in small print, are sent out to us every year, telling us all how we should live.
I go back to the time when Henry VIII was first trying to get these powers. It is an interesting story. This Parliament had given him the power to decide that he was the Pope—or the head of the Church in England—who would succeed him, that he could bring down the monasteries and that he could do anything that he liked. But the one thing that it drew the line at is something that we have been pathetic at. It said: “No, we will not give you the power to amend our statutes.” Here we are doing it 400 years later.
It is sometimes said that Thomas Cromwell fell because he introduced Anne of Cleves into Henry VIII’s bed and she could not quite arouse his—whatever you call it—interest. I must say, nobody ever asked her what she thought about him. But that is not the whole story. When I retire, I will launch a piece of research which will demonstrate that Thomas Cromwell fell because he did not produce for the king the power that the king wanted: absolute power. If he had had time—his head came off too quickly—he would have thought of skeleton Bills, guidance, protocols, and so on. However, he did not have time. However, if we turn to Henry VIII for inspiration and to Thomas Cromwell for further inspiration, we are running up a very strange path.
My Lords, I add my thanks to the noble Baroness for introducing this important debate. When I wrote to her, I said that this was not an issue that would have them dancing in the saloon bar of the Dog and Duck but that, nevertheless, it would affect their lives even if they did not know about it.
I have the privilege—it is a privilege—to chair the Secondary Legislation Scrutiny Committee of your Lordships’ House. As my noble friend Lord Blencathra has explained, we have been working together to introduce these two reports. I will not repeat what we said in our SLSC report, which is entitled Government by Diktat, except to thank my noble friend Lord Sherbourne, who we will hear from in a minute, as the progenitor or author of the word “diktat”, which has resonated so well in the House and in the country. However, I will quickly remind the House about one thing. Last year, the SLSC looked at 901 pieces of legislation—every law binding on every citizen—passed with, I think we can all agree, a very inadequate level of scrutiny.
The reaction to our two reports was positive; indeed, the number of noble Lords who wish to speak this afternoon shows that we have struck a chord. In the last couple of minutes that I have I will turn the guns forward and decide what we could do to remedy and improve the situation. I have two suggestions. First, to pick up on the point the noble Baroness made, we have to discuss and make common cause with the Commons about how we might improve the situation. Any change will inevitably restrict the power of the Government, and no Government will like that. Many reasons will be given why these proposals are worthy but not necessary, and I am sure we will hear a great many of them from my noble friend when he winds up shortly. Without being unduly cynical, I hope that the House will forgive me if I say that I think the enthusiasm from Her Majesty’s loyal Opposition, always with an eye on the future, may be only limited, and that tears may be shed but they will be crocodile tears. The killer blow is the allegation—the accusation—that this is an attempt by the unelected Lords to tell the elected Commons how to do their job better. It is not a fair accusation or allegation; this is about the balance of power between the legislature and the Executive—between the two Houses of Parliament and the Government.
My Lords, I too congratulate the noble Baroness. I much enjoy her FT Weekend pieces and I have detected a major change in tone in the last three or four months. I used New Year’s Eve to read the report from the Delegated Powers and Regulatory Reform Committee cover to cover, and I admit to feeling quite bad about it—bad about my sheer ignorance of what had been happening to the imbalance between the Executive and Parliament. Of course, I was aware of the odd complaint, but I confess to being sadly unaware of the wholesale undermining of Parliament’s role. Built-in checks and balances have been dismantled on a huge scale.
Others have been seized of the issue, as paragraph 32 makes clear, such as the Wakeham commission in 2000 and the Leader’s Group in 2011. Over the years, those involved—I do not know who they are—have almost acted as a conspiracy by seeking to make the issue one between the elected House and this unelected House. Having served in both Houses for over 20 years and having been a Minister in both, I can fairly say that that is not the issue. The issue is indeed the relationship between the Executive and Parliament. I have been at the same place as the noble Lord, Lord Bridges, on emergencies and everything else in both Houses.
It also seems sensible to ensure that Parliament must never be in ignorance of the laws passed in its name. The report highlights the disturbing new trends in detail. As disguised law goes, I am familiar with some of the terms—“mandatory guidance”, “to have regard to”, powers to determine “arrangements” and “protocol”—but I had never heard of “public notice”. That was a new one, the consequences of it anyway. All combine to camouflage legislation.
The most worrying aspect of the discussion is tertiary legislation. That appears deadly. We have indeed delegated far too much to the Executive. I do not want this to be misunderstood, but I deeply regret that parliamentary counsel has acquiesced to all this. I have never picked up bad vibrations from parliamentary counsel to any of this. I know they are government lawyers, but parliamentary counsel is their title.
20 of 58 shown
Cynics might suggest that, when any Government have a large majority, they will get their way anyway, and so does this really matter? The principle of our parliamentary democracy is that Parliament’s core constitutional functions are to legislate and to hold the Government to account in order to protect individuals from the arbitrary exercise of power. One of the important aspects of secondary legislation, as you all know, is that, unlike Acts of Parliament, it is not subject to several stages of robust scrutiny; it is debated only once in each House, if at all, and it cannot be amended—it can only be accepted or rejected as a whole, and wholescale rejection is, unsurprisingly, something this House has been reluctant to do.
I am not alleging any grand conspiracy to subvert the constitution. While this Prime Minister has perhaps been keener than some others on Henry VIII clauses, he is by no means alone in wanting to expedite business. And I am not in any way comparing him to Henry VIII, although in writing this I did reflect that he has actually outdone Henry VIII in some ways: he has broken with Brussels—the new Rome—and he has had his third marriage blessed by the Catholic Church. But I know that he believes in the sovereignty of Parliament; after all, he led a withdrawal from the EU in order to reassert our parliamentary sovereignty.
The truth, I think, is more banal. It is that Whitehall increasingly finds it convenient to use these powers. I know from experience, as do many of us here, that Ministers are usually mightily relieved if they are told that they can get something done without the tedium of having to go back to Parliament. Who would not be relieved? When you are in government, it can feel unbelievably hard to get anything done at all.
But the cumulative effect is, I fear, corrosive. To quote the noble and learned Lord, Lord Judge, in a speech he made as Lord Chief Justice, if Whitehall gets into the habit of using Henry VIII clauses,
“we are … in … danger of becoming indifferent to them.”
This indifference, I fear, encourages Governments to be too casual. Shortly before Christmas, the Home Secretary added 18 pages to the Police, Crime, Sentencing and Courts Bill which had not been there when MPs voted on it in July, including on the right protest, where this Government’s stance seems to me to be approaching the Orwellian. If the Executive add things to Bills after MPs have voted, or if they use skeleton Bills to push the detail to later, ultimately Parliament is not really clear what it is being asked to approve, and that is dangerous for democracy.
The committees write that the use of delegated powers may also conceal a growing tendency to draft Bills before thinking through the underlying policy. I will refrain from pointing out examples of where that might have been the case—I am sure we all have our favourites—but we should not be putting Parliament in a situation where it is not clear what it is being asked to approve.
What is the common defence for using such powers? Necessity. We are always told the same thing: “We need to get this done quickly, and trust us, we will not abuse the power”. But as William Pitt once warned,
“Necessity is the plea for every infringement of human freedom.”
When scrutiny is limited, essential checks on executive power are lost. I often wonder why those in power today do not think more about what they are going to feel when the other lot get into power tomorrow.
I will leave it to others to outline the detailed recommendations made by the committees, but I very much support the suggestion that it would be useful for end-of-Session reports from both committees to form the basis of regular debates in the House on issues relating to the balance between primary and secondary legislation, the quality of legislation and the provision of explanatory materials.
I also wonder whether it would be possible to establish the equivalent of the Delegated Powers and Regulatory Reform Committee in the House of Commons, so that MPs can see the explanations for proposed delegations and get the opinion of a legal adviser with a higher profile. I say this partly because of the contacts I had with a number of Back-Benchers after I wrote about these issues a few months ago in the Financial Times. A number of MPs contacted me to say that they felt these were issues of real importance which they did not know enough about. If that is true, that is a gap in our democracy.
I will finish, if I may, with a personal reflection. Some years ago, I ran a campaign to expose miscarriages of justice that I believed were occurring in the family courts, which were taking children away from their families on the basis of evidence which, in my opinion, was not always sufficiently robust. My campaign resulted in the Government changing the law to open the family courts to more scrutiny. But to achieve that, we had to fight our way through thickets of legalese and rafts of procedural language which were preventing ordinary people seeing what was being done in their name. I think we face a similar but much bigger version of this in the issues we are debating today, and I hope that we can find ways to communicate their importance to the public.
In conclusion, laws affect our lives and rights. They should not be made by bypassing the very institutions which are supposed to be a check on power. We need a fundamental reset in the culture of both Ministers and senior officials, who should in fact be the gatekeepers of democracy. I beg to move.
Our fourth concern was disguised legislation. Guidance which is advisory need not be approved by Parliament, but so much of it now is guidance which one “must have regard to”. While it is not technically mandatory, our experience is that everyone treats it as such because the issuing body tells them that it is compulsory.
A year ago, we had an excellent little Bill on school uniforms which permitted the Department for Education to issue guidance. I moved an amendment to say that the guidance should be subject to the negative procedure, but the official answer was—I paraphrase slightly—that it was merely advisory. The department had issued lots of guidance every year and had gotten away with it not being checked by Parliament before, so why should it start now? There was also the usual answer that the department would consult all the relevant experts and stakeholders, and that we parliamentarians should not worry our pretty little heads about it.
However, noble Lords ought to see the press release that the department issued in November with the advisory guidance. It is headlined:
“Schools will need to follow statutory guidance”
and talks about “new legally-binding guidance” that
“schools will be required to”
follow and saying that the DfE
“guidance means schools … must ensure”
and so on. That does not sound advisory to me. This guidance should have been seen by Parliament, even just under the negative procedure, but drafters of Bills have become wise to the fact that we and this House will criticise things called guidance. So they now use disguised terminology, calling guidance “determinations”, “protocols”, “directions”, “arrangements”—even a “public notice”. What a wonderful way to make laws: do not bother with MPs and Peers, just publish a notice in the London Gazette and, hey presto, new rules.
I have deliberately covered more issues than just skeleton bills because these are part of a whole menu of thoroughly inappropriate delegations that should have no place in a democracy. Of course every democratic Government in the world needs secondary legislation if they are to work, but the nature and extent of that secondary legislation is what matters.
I conclude by saying to my noble friend and all government Ministers that not a single one of our recommendations would prevent any Government passing their full legislative and political programme. It would simply mean that both Houses of Parliament would have the chance to debate, if we wished, a little more secondary legislation than we do now. How can any Government object to that?
The point is that this transfers powers to people and institutions that are well out of Parliament’s sight, sometimes in contested areas when the police are asked to do something by guidance that should have been regulation. The impact of this secondary legislation is the sharp end of the law: the point at which perverse consequences that could have been cleared away become real and make a real difference to people.
Sometimes it is argued that the Government do not understand what they are doing—of course they understand. Why else would they have introduced attempts to prorogue Parliament, or indeed to strip out treaty obligations by law? It marches on: the Health and Care Bill has so much delegated legislation and, with 50% of it beyond parliamentary control, the committee had to weigh it rather than analyse it.
We can no longer rely on the good chaps reasserting control. A reset means putting the Cabinet Office on the line so that its own guidance insists that the making of all legislation and the behaviour of Ministers is subject to the explicit principle of parliamentary democracy. It means identifying skeleton Bills as the outlaw Bills that they are and treating them as such, and it means ensuring that every civil servant assumes that Henry VIII powers can expect to be constrained by regulation.
It is time that we reopened the whole debate over the nature of secondary legislation and the sole nuclear option open to us. We ought to revisit this because it disables us as a Parliament. If we intend to strengthen Parliament in future, we have an obligation now to revisit that.
“practical or political drivers to bringing forward the legislation at a particular time”
and the “great demand for legislation”.
As has just been said, delegated powers are necessary. But we now have a culture in which Ministers either push for, or allow, half-baked legislation—not, as the Prime Minister might call it, “oven-ready” legislation—to be brought to Parliament. The fact that Mr Rees-Mogg could find, in the mountain of Acts passed, only one example of legislation—the Cities and Local Government Devolution Act—to justify skeleton Bills makes me conclude that we must act to stop this culture of creating more skeleton bills and turning Parliament into a graveyard of democracy.
Cultural change take years, but processes can be changed quickly. Let me ask my noble friend—he is an old friend who I know is a steadfast defender of parliamentary democracy—a simple question: does he agree that it should be made explicitly clear to Ministers and the Civil Service that skeleton Bills are, in the words of the report, “rarely justifiable” and, if so, that this is written explicitly into the Cabinet Office’s Guide to Making Legislation? That would begin to put the genie back in the bottle.
I have three suggestions. First, let us never ever pass legislation like Clauses 55 and 56 of the current police Bill, which enable the Secretary of State to define what the Bill means by “serious disruption” after it has been enacted. We should reject any and every Henry VIII clause until the Minister identifies the specific areas it is intended to address and then we should limit the Henry VIII power to a power to amend specific clauses in the instant Bill, not any statutory provision in any Bill past and to come. Finally, on statutory instruments, we should at least have the power to have a process to say, “We agree with 99 but number 100 we do not want.”
My second suggestion is perhaps slightly more radical. We in Parliament might be able to agree that the pace of change in our modern society is so fast that the more stately rate of change and passage of primary legislation is possibly too slow to keep up with events. We may have to accept that, in future, more fundamental changes will have to be contained in regulation. If we were to accept that, the Executive, the Government, might in return accept that new and better methods of scrutinising these fundamental changes could be introduced. This would not need wholesale reform but could be focused on improving methods of scrutiny of regulations that are of high statutory significance. If the Government could bring themselves to accept that as a first step, we would be on the way to improving a situation that, as I think every Member of the House agrees, is unsatisfactory.
I have two points to make. Sitting days for Parliament are not mentioned. I think they should be controlled by Parliament, via the Speaker and the Lord Speaker, not the Government. If this were the case, government using the excuse of emergency very fast legislation fixed by Ministers without recourse to Parliament because it is not sitting or is not due to sit could be avoided. If we decide to sit as and when necessary, that would be one excuse out the door.
There is a strong case for a targeted and limited ability of Parliament to amend some SIs. “Targeted and limited” is a phrase I picked up during the discussion on one of the breaches of international law in the other place. It would be targeted and limited; there is no way we would go for wholesale. That should be looked at in detail.
I am interested in the future and in solutions. Chapter 5 is crucial. Some of the recommendations in chapter 5 are for the House, not the Government, so there is no excuse that the Government will not buy them. For two or three key matters, the House should make the decision. That is where the power lies, so that is really important. Scrutiny reserve is the key recommendation. I do not want to put a hierarchy on them, but that seems to be the nuclear option. The fact is that they should all be accepted.